High Court · 2012

The prosecution case, in brief, is that the on 10-10-2004, the informant and her minor daughter aged at about 11 years were alone in the house. At midni ght, the informant along with her daughter came out of the house to answer the n ature’s call. In the meantime, 4-5 youths immediately came there and caught the victim and she was dragged away from her mother. Accused Mazedur Rahman committe d rape on the victim while the present accused appellant (Abdul Hai) caught hold of the victim girl. After the occurrence, the victim was brought inside the hou se. Next day, informant reported the incident to the Village Gaon Burah, who co nvened a meeting. However, the accused did not attend the meeting, then, the Ga on Burah advised the informant to lodge FIR. Accordingly, the informant lodged the FIR.. The father of the victim was away from the house during incident and he returned after 7 days. The incident was reported to him on 19-10-2004. The mother of the victim i.e. informant lodged the FIR on 19-10-2004 with the OC, Ba rpeta Police Station. On receipt of the FIR, police registered a case i.e. Barp eta P.S. Case No.36/04 under Section 376/109/34 IPC. On completion of the invest igation, Investigating Officer submitted the charge sheet against the accused pe rsons Mazedur Rahman and Abdul Hai (present accused appellant) under Section 376 /109/34 IPC showing them absconder. However, the accused persons surrendered bef ore the trial Court and they were taken in the judicial custody. 3]. The charge under Section 376 IPC against the accused Mazedur Rahman was framed while the charge against the present accused appellant (Abdul Hai) was fr amed under Section 109 read with Section 376 IPC. Both the accused pleaded not g uilty to the charge framed against them and claimed to be tried. 4]. The prosecution examined altogether 9 witnesses. The accused persons, in their statements recorded under Section 313 Cr.P.C. while denying the allegatio ns levelled against them, took the plea that on the alleged date of occurrence, they were at Udalguri to attend the interview for Army. However, they did not ad duce any evidence in support of their statements. On conclusion of the trial, th e learned trial Court convicted the accused Mazedur Rahman under Section 376 IPC and the present appellant Abdul Hai under Section 109 IPC read with Section 376 IPC and sentenced to undergo rigorous imprisonment for 8 years. 5]. I have heard Mr. MH Ahmed, learned counsel appearing on behalf of the ap pellant and Mr. K. Munir, learned Addl. Public Prosecutor appearing on behalf of the State of Assam. 6] It is submitted by the learned counsel appearing on behalf of th e appellant that the involvement of the accused appellant in commission of crime was not established beyond reasonable doubt and the appellant has been convicte d under Section 109 IPC read with Section 376 IPC. 7] The learned Addl. P.P. Mr. Munir, on the other hand, has contend ed that although, there may be minor discrepancies, which may be overlooked, the witnesses clearly stated that the accused appellant abetted the commission of c rime. 8] PW-1, the father of the victim, did not see the occurrence. He depos ed that his wife reported that the accused Mazedur Rahman committed rape on thei r daughter while the present appellant Abdul Hai was standing near his wife hold ing by a dragger. PW-2, the mother of the victim, stated that 3 youths dragged her daughter to a few distance and one of them, armed with dagger has guarding h er. The present accused appellant Abdul Hai caught hold of the legs of the vict im and the accused Mazedur Rahman committed rape on her. She also stated that next day, the FIR was lodged. PW-3 is the brother of the victim, who deposed th at he did not see the occurrence and only the incident was reported to him. PW- 4, Md. Julhas Ali is the reported witness. 9] PW-5, Md. Rajmamud Ali, the Gaon Burah, deposed that the mother of the victim reported him that the accused Mazedur Rahman committed rape on her da ughter. He, thereafter, convened a meeting but the accused did not attend the me eting. Then, he advised the informant to lodge the FIR. PW-6 is the victim. Sh e deposed that in the night of the occurrence she was sleeping with her mother. Her father was not at the residence on that night. At about 12 midnight, she and her mother came out to answer the call of nature, with burning lamp. In the mea ntime, she was caught by 2-3 boys and dragged away to a few distance under a tre e. The accused Mazedur Rahman committed rape on her while the accused appellant Abdul Hai was holding her legs at the time. PW-7, Dr. Sanjit Kr. Sarkar, who examined the victim on 18-10-2004 at B 10]. arpeta Civil Hospital and his findings are as follows:- (cid:28)(1) Height : 146 CM. (2) Teeth- 7/7 (3) Secondary sexual character well developed. (4) No injury mark in her person. (5) Hymen- Intact. (6) Vagina-Admits one finger. (7) Vaginal swab examination report- not found. (cid:29) In the opinion of doctor, there was no sign of recent sexual intercourse at the time of examination. Her age is 16-17 years. In cross-examination, he st ated that according to him, he did not find any injury or any sign of sexual int ercourse upon the person of victim. 11]. PW-8, Md. Mohammed Ali, turned hostile to the prosecution. He denied th at the incident was reported to him. PW-9, Sri Krishna Kanti Medhi is the I.O. o f the case, who deposed that he visited the place of occurrence and recorded the statement of some witnesses. He produced the victim girl before the learned CJ M Barpeta for recording her statement under Section 164 Cr.P.C. and also brought the victim girl to Barpeta Civil Hospital for medical examination. 12]. From the above discussions, it appears that the evidence of the victim is corroborated by the evidence of informant, who is the mother of the victim. PW-5, an independent witness, he was Gaon Burah of the village who convened the meeting but the accused persons did not attend the meeting. Therefore, the cond uct of the accused persons after the occurrence is relevant in this case. It is submitted by the learned counsel for the appellant that there is a delay in lod ging the FIR. From the evidence of informant and her husband (PW-1), it appears that the delay has been satisfactorily explained that the husband and son of th e informant were away from the house, they came back after 7 days. Next day aft er the incident, the informant reported the incident to the Gaon Burah. The Gao n Burah convened a meeting but the accused did not attend the meeting and after arrival of her husband and son of the informant, the FIR was lodged. 13]. One witness was examined on behalf of the accused. DW-1 stated that Md. Ali (PW-8) was fishing along with Md. Falu Mia but he did not report h im about the incident. He could learn about the incident next day morning. Thu s, it appears from the defence witness that the incident was reported to him als o. He has not supported the defence case that the accused persons were absent fr om the village in the night of the occurrence. The plea taken by the accused pe rsons has not been proved by adducing the defence evidence. 14]. None of the prosecution witnesses were cross-examined or suggested on t he point that the accused persons were away from the village in the night of the occurrence. The learned trial Court has discussed all the aspects elaborately a nd I find no infirmity to interfere with the findings of the learned trial court . Therefore, the conviction of the accused appellant under Section 109 IPC read with Section 376 IPC is upheld. 15]. It is submitted that the accused appellant is only abetted the commissio n of offence and therefore, the quantum of sentence, which is imposed at par wit h the principal accused, may be reduced. The present accused appellant has suff ered imprisonment since 11-10-2006. Considering the nature of involvement of the accused appellant and the period of sentence of 8 years is reduced to the perio d already undergone by him with a fine of Rs.5000/- in default, further rigorous imprisonment for 3 months. 16]. With the above modifications, this appeal is accordingly disposed of. 17]. urt below. Send down the LCR along with a copy of this judgment and order to the co