High Court
Case Details
Crl.A. 97/2011 BEFORE THE HON’BLE MR. JUSTICE S C DAS JUDGMENT & ORDER(ORAL) This Criminal Appeal under Section 374 of Cr.P.C. is directed ag ainst the judgment and order of conviction and sentence, dated 19.01.2011, passe d by learned Assistant Sessions Judge, Karimganj in Sessions Case No. 74 of 2007 , whereby learned Assistant Sessions Judge found the accused-appellant Atabuddin alias Aftabuddin guilty of committing offence punishable under Sections 448 and 376 of IPC and sentenced him to undergo R.I. for 6 months under Section 448 of IPC and again sentenced him to undergo R.I. for 10 years and to pay a fine of Rs .25,000/- in default of payment of fine, to suffer R.I. for 1 year under Section 376 of IPC. 2. and sentence, the present appeal is filed by the accused-appellant. 3.
Legal Reasoning
Heard learned counsel, Mr. M.Nath, for the appellant and learned Having felt aggrieved with the judgment and order of conviction Additional P.P. Mr. D.Das, for the State respondent. 4. Facts of the case, in a short compass, is that on 03.06.2007 at about 8-30/9-00 p.m., the victim prosecutrix (cid:28)Afia (cid:29)(actual name kept concealed), along with her sister-in-law(brother’s wife) Alia Begam (P.W.3) and two childre n of Alia after taking their dinner were sleeping in separate room in the same h ut of their house where the rooms being partitioned with bamboo fencing. It is a lleged that the convict-appellant Atabuddin opened the bamboo made ’Jhap’ door o f the hut pushing it inside and trespassed in the room and thereafter he caught hold the victim on her cot and committed rape on her. After committing rape, the accused went away with a threat to the prosecutrix not to disclose it to her mo ther or anybody else and that if she discloses, she will be killed. After the ac cused left, the prosecutrix informed the incident to her sister-in-law Alia(P.W. 3) and thereafter Alia went out of the room, looked outside and again returned t o her room and went asleep. The prosecutrix also fell asleep thereafter and they did not raise any alarm. On the night of occurrence, mother of the prosecutrix namely Moina Bibi(P.W.1) was away from the house at Village Batarashi in her sis ter’s house and brother of the prosecutrix i.e. husband of P.W.3 in course of hi s employment was at Dimapur, Nagaland. 4.1 On the following morning, the prosecutrix went to Ansu Bibi (P.W .5) and along with her went to village Batarashi and informed the incident to he r mother Moina Bibi. Thereafter, Moina Bibi accompanied with the prosecutrix ’Af ia’ and Ansu Bibi went to Karimganj P.S. and reported the incident and lodged an FIR in writing with the O.C., Karimganj P.S. narrating the fact and accordingly , Karimganj P.S. Case No. 239 of 2007 under Sections 457 and 376 of IPC was regi stered and investigation was taken up. 5. In course of investigation, I.O. on the same day forwarded the p rosecutrix to the Karimganj Civil Hospital for her medical examination and accor dingly, she was medically examined. The prosecutrix was also produced before the Judicial Magistate for recording her statement under Section 164 of Cr.P.C. and accordingly, her statement was recorded and I.O. collected the copy of the stat ement recorded under Section 164 of Cr.P.C. and also the medical report of the v ictim. I.O. examined all material witnesses and recorded their statements under Section 161 of Cr.P.C. and on conclusion of investigation, submitted charge shee t against accused Atabuddin alias Aftabuddin for commission of offence punishabl e under Sections 457 of 376 of IPC. 6. Cognizance was taken on the basis of the police report and in du e course on commitment of the case to the Court of Sessions, learned Assistant S essions Judge, Karimganj on 18.08.2007 framed charges against the accused for co mmission of offence, punishable under Sections 448 and 376 of IPC and the charge s were read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 7. In course of trial, prosecution examined 7 witnesses to prove th e charges. Out of them, P.W.2, the victim prosecutrix (cid:28)Afia (cid:29) is the star witness of the prosecution. P.W.3 Alia Begam is the sister-in-law of the prosecutrix. P .W.1 Moina Bibi is the mother of the prosecutrix and maker of the FIR. P.W.5 Ans u Bibi is an aunt of the prosecutrix and a resident of the same village. P.W.4 D r. S.L.Sen is the Medical Officer who examined the prosecutrix. P.W.6 is the I.O . of the case and P.W.7 is the Judicial Magistrate 1st Class who recorded the st atement of the prosecutrix under Section 164 of Cr.P.C. 8. After closure of the prosecution evidence, accused was examined under Section 313, Cr.P.C. and in his turn, he declined to adduce any defence ev idence. So far it is mentioned in the impugned judgment, passed by the Court bel ow, defence case is nothing but a complete denial of the prosecution case. 9. Learned counsel, Mr. M. Nath appearing for the appellant submitt ed that the trial Court utterly failed to appreciate the evidence on record and arrived at a wrong finding. He has fairly contended that if the evidence of the prosecutrix inspire confidence and if she is believable even without other corro boration, a conviction can be recorded but where her evidence is not believable and she made fractured statement before the Court which is not supported by the surrounding circumstances, the Court has no other option but to acquit the accus ed. He has also contended that in our society, it is no doubt rare that a young woman will come up with a false allegation of rape touching her chastity as a ma tter of revenge, but such case is also not rare that in a given facts and circum stances such type of false allegation also can be made. It is contended by learn ed counsel, Mr. Nath that the prosecutrix was examined by the Medical Officer wi thin 24 hours of occurrence and medical evidence completely negated the allegati on of rape. The conduct of the prosecutrix and her sister-in-law who were in the house, according to prosecution, are quite unnatural since neither they raised any alarm after the alleged occurrence, nor they reported to their neighbours wh ich was natural for a common human being residing in the village. He has also dr awn my attention to the statements of P.Ws, 2 and 3 wherein it appear that they were sleeping in two attached rooms. The accused pushed the bamboo made ’Jhap’ d oor of the hut and made his entry inside the room, might be at that time they we re in deep sleep but when the accused touched the body of the prosecutrix, hold her hands, took his face near the face of the prosecutrix what was natural, subm its learned counsel, Mr. Nath that the prosecutrix suddenly would be frightened and raised a huge hue and cry. But here even after the prosecutrix being suddenl y woke up found the face of the accused near her face, remains silent and the ac cused by one hand as alleged pressed her mouth, by another hand caught hold her and then, submits learned counsel, Mr. Nath obviously by third hand or something else pulled her saree up and then committed rape on her which is quite an unbel ievable story in the facts and circumstances of the case. Therefore, learned cou nsel, Mr. Nath referring to other inconsistencies on record submitted that the p rosecution case is completely a false case because of inimical relationship with the accused and it has been lodged at the instance of Moina Bibi (P.W.1). He ha s also pointed out that the evidence of I.O. is clear that Moina Bibi is a regul ar visitor of P.S. and that she has habit of making cases against her rivals and there are many cases instituted by her. Mr. Nath in support of his contention r eferred the case of Bibhishan V. State of Maharashtra reported in (2007)12 SCC 3 90 and the case of Malay Das V. State of Tripura reported in 2012 2 GLT 1. 10. Learned Addl. P.P., Mr. Das, on the other hand, with all his usu al fairness submitted that though the victim prosecutrix is not supported by the medical evidence but it is settled law that if the evidence of the prosecutrix is consistent, cogent and credible, her sole testimony may be the basis for reco rding conviction in a case of rape. He has, however, pointed out that in the cas e at hand there are some major contradictions which remain alive on record and h e has nothing to support the case in view of those contradictions such as that b oth prosecutrix and her sister-in-law( P.W.2 and P.W.3) stated that husband of P .W.3 i.e. the brother of the prosecutrix was at Dimapur on the alleged date of o ccurrence, but P.W.3 in her cross examination made a quite contrary statement th at her husband was there in the night of occurrence and introduced the accused t o her. Learned Addl. P.P., therefore, left the issue to the consideration of thi s Court in respect of appreciation of evidence. 11. I have meticulously gone through the evidence on record. The evi dence of (cid:28)Afia (cid:29), the victim prosecutrix is of prime importance since it is a cas e of rape. Let us see what she stated in her deposition before the Court. She stated that the accused was known to her and that the incide nt occurred on 5/6 months ago (before the date of deposition). It was during nig ht time. She was in her room. Her sister-in-law Alia Begam with her two children was also in the adjacent room. Her mother was at Village Batarashi. Her elder b rother was at Dimapur. She and her sister-in-law were in different room of the s ame hut and were sleeping. She was alone in her room and her sister-in-law with her children was in her room. There was a lamp lighting in the room. At about 8- 30/9-00 p.m. she could feel touch of some body in her hand. She woke up and coul d see someone looking towards her with the face near her face and touching her h and. That man caught hold her and by one hand pressed her mouth and therefore, s he could not raise any alarm. The man pressed her mouth with hand and then after pulling her saree, raped her. After commission of rape, the accused left with a threat that if she discloses the incident to anybody, she will be killed. There after she called her sister-in-law and her sister-in-law went out in the courtya rd but did not find the accused. Thereafter, she returned inside the room and th ey again went to bed and fell asleep. On the following day she went to Ansu Bibi and with Ansu Bibi went to Batarashi and reported the incident to her mother. H er mother took her to the P.S. and lodged the FIR. Police took her to hospital f or medical examination and she was medically examined. She was also produced bef ore the Magistrate and Magistrate recorded her statement. In her cross examination, she stated that the accused was not re lated to her as a maternal uncle. Normally they took bed after 7/7-20 p.m everyd ay. They have only one hut in their house and inside the hut there was a partiti on with bamboo fencing and mud plaster. The house of the accused was a little aw ay from their house in the same village. Nobody can push the door of their hut a nd make entry inside. She denied the defence suggestion that the accused used to cultivate the land near their house and on that issue, there was quarrel and di spute between the accused and her family. She further stated that a few years ag o she was prosecuting studies in Narkheli Primary School but thereafter, she gav e up her studies and was only staying at home. 12. P.W.3, the sister-in-law of the prosecutrix, who was in the same hut, in her deposition stated that the prosecutrix is her sister-in-law and she knew the accused Aftab since they are the residents of the same village. About 8/9 months ago, the incident occurred. She and prosecutrix were sleeping in sepa rate rooms of the same hut. Her husband was at Dimapur in course of his work the re. At the time of incident, her mother-in-law was also away from house. Hearing the alarm raised by her sister-in-law(prosecutrix), she woke up and she went to the courtyard. She found the door of the room of prosecutrix open and entering in her room she found the clothes of the prosecutrix scattered and also found a person going away from their house. She asked as to what happened to which the p rosecutrix told her that accused Aftabuddin trespassed in her room and raped her . Thereafter, a police case was instituted at Karimganj P.S. In cross examination, she stated that there was fencing between her room and the room of (cid:28)Afia (cid:29). There were also domestic cattle in the room of (cid:28)Afia (cid:29) and another mad man also used to stay in that room. She denied the sugges tion that her statement that the accused entered in the room and committed rape on (cid:28)Afia (cid:29) was false. 13. P.W.1 lodged the FIR narrating the fact as alleged by P.W.2 i.e. the victim prosecutrix. 14. Let us now have a glimpse to the evidence of P.W.4, the Medical Officer who has examined the prosecutrix on 04.06.2007 i.e. the date of lodging the FIR at 9-00 p.m. which means the prosecutrix was examined within 24 hours of the alleged occurrence. In his deposition, P.W.4 stated that on 04.06.2007 whil e he was working as a Medical Officer at Karimganj Civil Hospital, on requisitio n of police, he examined the prosecutrix in presence of the woman constable and Moina Bibi and on examination, he found the prosecutrix was of average built, no rmal voice, normal behaviour at the time of examination. Secondary sex character s developed, auxiliary and pubic hair present, no injury found in her body and a lso in her private parts, hymen absent, teeth total 15/15, vaginal swab was coll ected and on microscopic examination, no spermatozoa found. Radiological examina tion was done to ascertain the age of the prosecutrix and it was found that she was aged about 18 years. There was no injury in her internal parts. The medical report proved as Exbt.1. In the medical report(Exbt.1), he opined that the vict im was not raped. The allegation of rape as alleged by the prosecutrix has been ne gated by the medical evidence. Now we are to only see whether the oral evidence of the prosecutrix is of such credibility and confidence that we may depend on t hat statement even without other corroboration. The conduct of the prosecutrix a nd her sister-in-law(P.W.3) does not seem to be natural. According to the prosec ution, she was sleeping at the relevant time. The accused trespassed his entry, touched her hand and on being so touched, she woke up and found the accused over her having his face near her face and holding her hands, but still she did not raise any alarm. What was natural in the ordinary course that she would get frig htened and would raise a heart renting cry. Might be we cannot expect that every person will be reacting in a similar manner in every situation, but at least sh e would raise a voice to draw attention of her sister-in-law who was sleeping in the attached room in the same hut. How silently, the incident occurred that the accused with his two hands caught hold her hands, pressed her mouth, hold her t ightly, pulled her saree and raped her without any resistance. No injury on her person anywhere either on her breast or lower part of her body. The doctor is ab solutely an independent person who clearly opined that there was no injury at al l which raises a reasonable suspicion that what the prosecutrix has stated was n ot true and at least no prudent man can place implicit reliance on such statemen t. It is also quite unnatural that after the incident the accused silently went away and the prosecutrix thereafter roused her sister-in-law and informed her. H er sister-in-law went out and then entered into the room and fell asleep without informing anybody without raising any voice. The total conduct of the prosecutr ix and here sister-in-law does not seem to be natural. As already stated above, we cannot expect that every human being will react in a similar manner but what is important how a normal human being in ordinary circumstances will react. The Supreme Court in the case of Hardeep V. State of Haryana and another, reported i n (2002) 7 SCC 11 has observed that- in criminal cases the court cannot proceed to consider the evidence of the prosecution witnesses in a mechanical way. The b road features of the prosecution case, the probabilities and normal course of hu man conduct of a prudent person are some of the factors which are always kept in mind while evaluating the merits of the case. No fixed formula can be adopted. 15. The Apex Court in the case of Bibhisan (supra) as referred by le arned counsel, Mr. Nath, in Para 6, has observed almost in a similar case that w here the victim’s statement is not even supported by the medical evidence and he r sole testimony does not inspire confidence, a conviction of rape cannot be rec orded. In Para 6 of the judgment, the Apex Court observed thus:- (cid:28)6.We have gone through the judgment of both the courts below an d also perused the necessary record. As per the evidence of the doctor, there wa s no injury on the body of the prosecutrix Anita. There was no sign of semen on the private part of the body. Neither her clothes were torn nor there was any pr esence of hair of the accused on the private part of the prosecutrix. The doctor after examining the prosecutrix deposed that the girl was habituated to sexual intercourse. In view of this evidence, we are of the opinion that the High Court as well as the trial court has not correctly appreciated the evidence and has w rongly convicted the appellant-accused. The accused who has been charged under S ection 376 read with Section 511 IPC is entitled to benefit of doubt. (cid:29) 16. The fact of Malay Das’s (supra) case is also taken into consider ation and in that case also the victim prosecutrix could not be believed in resp ect of the allegation of rape. Here, in the present case, the alleged entry of the accused and 17. commission of rape as alleged, as a whole, does not inspire confidence at all. T he mother of the prosecutrix, as stated by the I.O. in his evidence, is a habitu al case maker and attends the police station very often in connection with sever al cases which suggests that the prosecutrix might have been planted by the moth er i.e. P.W.1 to make a false allegation against the accused with whom they have enmity on the issue of cultivation of some plots of land near the house of the prosecutrix. Depending on such fractured evidence, it is quite dangerous to reco rd a conviction of a person under Section 376 of IPC. 18. Having given an anxious consideration of the facts and circumsta nces and the evidence on record, I think the prosecution case is doubtful as a w hole and the accused-appellant is entitled to get benefit of doubt. 19. Accordingly, the judgment and order of conviction and sentence, dated 19.01.2011, passed by the learned Assistant Sessions Judge, Karimganj in S essions Case No. 74 of 2007, is set aside. 20. The accused-appellant, if he is in custody, be set at liberty at once. 21. 22.
Decision
The Criminal Appeal accordingly stands disposed of. Send back the L.C. records along with the copy of this judgment.