High Court
Case Details
Crl.A. 53/2007 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI This is an appeal against the judgment and order, dated 29.11.2006, pass ed, in Sessions Case No. 81 of 2005, by the learned Additional Sessions Judge (F TC), Karimgang, convicting the accused-appellant under Section 376 IPC and sente ncing him to suffer rigorous imprisonment for 7 (seven) years and pay fine of Rs .2,000/- and, in default of payment of fine, suffer simple imprisonment for a fu rther period of 1 (one) year. 2.
Legal Reasoning
The case of the prosecution may, in brief, be described as under: The accused-appellant is a neighbour of PW1, who, having been divorced b y her husband, had been living in her parental house with her step-mother (PW3), her brother and other members of the family. The accused had given a proposal f or marriage, but PW1 declined. On 05.11.2004, at around midnight, the accused en tered into the room, where PW1 was sleeping on the ground alone, by breaking ope n the door and showing her a dagger and threatening to kill her if she resisted or shouted, the accused forcibly had sexual intercourse with PW1. After committi ng rape, as soon as the accused left the room, wherein the occurrence had taken place, PW1 raised hulla and the inmates of her house and neighbours arrived ther e, the first amongst the members of the family being her step-mother (PW3). To t he members of her family and neighbours, who came there, PW1 reported that the a ccused had committed rape on her, when she was sleeping on the ground, by saying her Namaz (i.e., a prayer), because of the fact that it was the month of Ramada n, a lamp was kept lit near her pillow. As the accused had threatened her by sho wing a dagger, PW1 did not, out of fear, shout for help. PW1, then, lodged a wr itten Ejahar on 06.11.2004. Treating the said Ejahar as First Information Report (in short, ’FIR’), R. K. Nagar Police Station Case No. 81 of 2004, under Sectio ns 457/376/506 IPC, was registered against the accused. 3. During the course of investigation, police visited the place of occurren ce, drew sketch map of the place of occurrence, got PW1 medically examined and t hough the police made attempts, during the course of investigation, to apprehend the accused, whose first wife had died and who had married another woman as thi rd wife after his second wife stopped living with him, the police failed and the accused remained absconding. A charge-sheet was, therefore, laid against the ac At the trial, when a charge, under Section 376 IPC, was framed against t cused by showing him as absconder. 4. he accused, he pleaded not guilty thereto. 5. In support of their case, prosecution examined altogether 7 (seven) witn esses. The accused was, then, examined under Section 313 Cr.PC and, in his exami nation aforementioned, the accused denied that he had committed the offence, whi ch was alleged to have been committed by him, the case of the defence being that of denial and the accused-appellant having been forcibly implicated due to the fact that the father of PW1 had sold a plot of land to the accused, the accused was not only unwilling to leave the said plot of land, he had, rather, closed th e access to the road, PW1 had lodged the case by making false allegation of rap e. The defence also adduced evidence by examining one witness. 6. Having, however, found the accused guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sent ence against him as mentioned above. Aggrieved by his conviction and the senten ce, which has been passed against him, the accused, as a convicted person, has p referred this appeal. 7. ave also heard Mr. K. A. Mazumdar, learned Addl. Public Prosecutor, Assam. 8. While considering the present appeal, it needs to be noted that the accu sed-appellant and PW1 are, admittedly, neighbours. It also an admitted case of t
Legal Reasoning
I have heard Mr. L. N. Dihingia, learned counsel for the appellant. I h he prosecution as well as the defence that PW1 is a divorcee, she having been di vorced long before the alleged occurrence took place, and, at the relevant point of time, she used to live, at her parental house, with her step-mother, her bro ther, one of her sons, namely, Kabir, and others. It is the further admitted cas e of the prosecution as well as the defence that PW1 used to sleep alone in one of the rooms of the said house and her son used to sleep in another room. 9. Coupled with the above, it is in the evidence of PW1 that immediately pr eceding the occurrence, she was sleeping on the ground with a lamp lying lit nea r her pillow. 10. Describing the occurrence, PW1 has deposed that while she was sleeping, as mentioned above, the accused entered into her room by removing the bamboo pos t by which the door of the room was kept closed and he (accused) threatened to k ill her by showing her a dagger if she shouted for help. Out of fear, according to the evidence of PW1, she did not shout and the accused forcibly had sexual in tercourse with her and when the accused left, she shouted and the members of her family and neighbours arrived, her step-mother (PW3) being the first one to arr ive. 11. Though PW1 has been put to cross-examination, at length, nothing could b e elicited from her cross-examination by the defence to show that her evidence w as untrue or unreliable or unbelievable. The evidence, given by PW1, has, in fac t, remained wholly unshaken on all material aspects. 12. Close on the heels of the evidence of PW1, pw3, who is step-mother of PW 1, has deposed that on the night of the alleged occurrence, she heard PW1 scream ing for help and, when she entered into the room, where PW1 had been sleeping, P W1 reported to her that she had been subjected to rape by the accused. To the sa me effect is the evidence of PW4, a cousin and a neighbour of PW1. In fact, PW4 has also deposed that when he came to the room of PW1, PW3 was already present t here. These assertions of PW5 went unchallenged by the defence. In such circumst ances, it is natural that PW3 had been reported about the occurrence by PW1 befo re PW4 came to the place of occurrence. The evidence of PW3 and PW4, thus, lends substantial support and credence to the evidence of PW1. 13. Though PW2, who is the doctor, and who had, admittedly, examined PW1, di d not find any injury on the person of PW1 or any sign of her having been put to forcible sexual intercourse, what is crucial and cannot be ignored is the fact that PW1, according to the evidence on record, could not struggle and free herse lf nor could she run away inasmuch as she was immobilized by putting her in fear by the accused-appellant, because the accused-appellant had, according to the e vidence on record, shown a dagger to PW1 and threatened to kill her if she chose to raise hulla. This apart, the medical examination had, admittedly, taken plac e after four days of the alleged occurrence. Hence, not having any sign of forci ble sexual intercourse or any sexual intercourse on the person of PW1 is neither unnatural nor unreal. The absence of any injury on the person of PW1 cannot, in the facts and the attending circumstances of the case, be said to have demolish ed the credibility of the evidence of PW1. 14. Further-more, according to the Investigating Officer, the accused was ab sconding. Though abscondence is, by itself, not sufficient to prove the guilt of an accused, abscondence is nonetheless an incriminating circumstance, which has to be taken into account, while determining the guilt or otherwise of an accuse d. What surfaces from the above discussion is that the prosecution adduced 15. sufficient credible and convincing evidence, proving beyond reasonable doubt, th at the accused, by intimidating PW1, forcibly had sexual intercourse with her an d committed thereby offence of rape. This Court does not find that the conclusio n of guilt, which the learned trial Court has arrived at, suffers from any infir mity, legal or factual. Though the defence has adduced evidence by examining on e witness (DW1), the evidence of this witness is not at all sufficient to show t hat the evidence of PW1, PW3 and PW4 are untrue, false or cannot be relied upon. Except saying that the accused is a good man, DW1 could not say anything else. In fact, DW1 has admitted in her cross-examination by the defence that she does not know as to why she had been called by the accused. Situated thus, this Court does not find any merit in this appeal. 16. 17. The conviction of the accused-appellant and/or the sentence, passed agai nst him, do not, therefore, call for any interference. The appeal is, in the con sidered view of this Court, wholly without merit and the same shall accordingly stand dismissed. 18. Send back the LCR.