High Court
Case Details
Crl.A. 199/2009 BEFORE HON’BLE MR JUSTICE P.K.SAIKIA JUDGMENT AND ORDER (ORAL) 1. Heard Mr. A.Ahmed, learned counsel appearing for the appellant a s well as Mrs. A. Begum, learned Additional Public Prosecutor, Assam for the Sta te respondent. 2. This appeal is directed against the judgment and order dated 1 5.7.2009, passed by the learned Addl. Sessions Judge(FTC), Bongaigaon in Sessio ns Case No. 15(GLP)/2006 convicting the appellant U/s. 376 of the IPC and senten cing him to undergo rigorous imprisonment for 7 years with a fine of Rs. 5,000/ -, in default R.I. for another 3 months. It was also ordered that at the time of realization of fine, may be paid to the prosecutrix. 3.
Legal Reasoning
Being aggrieved by and dissatisfied with the aforesaid judgment, the accused/appellant (hereinafter referred to as ’accused’) has preferred this appeal citing several infirmities in the judgment. 4. The prosecution case, in nutshell, is that on 29.09.2005, in bet ween 7 to 8 P.M , while the prosecutrix was returning from a marriage ceremony h eld at the residence of one Najimuddin, one of their co villagers and their rela tive as well, the accused met her on the way at a lonely village path. Taking ad vantage of her loneliness on the village path, the accused took her to some dist ance from the road and committed rape on her. 5. On hearing hue and cry from the place of occurrence, Bhutto Sheikh came thereto and saved the prosecutrix from the clutches of the accused p erson. In the meantime, some people like Jial Hoque Ali and Jubbar Ali as well a s her father too assembled at the place of occurrence. On seeing very many peopl e coming to the place of occurrence, the accused fled the scene apprehending dan ger to him. 6. In that connection, a village ’Bichar’ was convened which was a ttended to by family members of the accused person. In that Bichar, the accused agreed to marry the victim of the alleged incident but only to backtracked there from . subsequently. Having found no other way out, the father of the prosecutr ix filed a complaint before the learned S.D.J.M (M) North Salmara, Abhayapuri. 7. On receipt of the complaint, the learned S.D.J.M (M) North Salma ra, Abhayapuri, forwarded the same to the Officer-in-charge of Pancharatna Rive r Police Station to register a case thereon as well as for doing needful in acc ordance with law. Having received the complaint so sent, O/c Pancharatna River P olice Station treated it as an FIR, registered a case thereon as directed and or dered investigation. On completion of the investigation, police submitted charge shee 8. t U/s 376 IPC against the accused person and forwarded him to the Magistrate for doing needful in accordance with law. Since the offence U/s 376 IPC is exclusi vely triable by the Court of Sessions, the learned SDJM (M) ) North Salmara, Abh ayapuri committed the case to the Court of learned Sessions for disposal. 9. The learned Court of Sessions on receipt of the case on commitme nt, transferred it to the file of the learned Addl. Sessions Judge, (FTC) Bong aigaon for disposal in accordance with law. The learned Addl. Sessions Judge ,on receipt of the case on transfer, heard the parties having regard to the materi als on record and thereafter framed charge under section 376 IPC. Charge,so framed, on being read over and explained to the accuse 10. d person, later pleaded not guilty and claimed to be tried. During trial, th e prosecution side examined as many as 9 PWs including the victim, the Medical O fficer as well as the I.O who conducted the investigation of the case under cons ideration. The statement of the accused person under Sec.313 CrPC was also recor ded. His plea was of total denial. He, however, declined to adduce an 11. y evidence of his own. On completion of trial and on hearing the arguments, adv anced by the learned counsel for the parties, the learned trial court convicted the accused of offence U/s. 376 IPC and sentenced him to punishment as aforesaid . It was that judgment which was assailed in the present appeal on the grounds s pecified in the memo of appeal. The learned counsel for the appellant had stated that the judgme 12. nt of the learned trial court needs to set aside since the prosecution has mis erably fails to make out the charges brought against the accused person. In that connection, it has been stated that the prosecution case is bad since there w as delay in lodging the case and such delay remained unexplained, the testimonie s of the witnesses are inconsistent, contradictory and defective on material par ticulars and that the medical evidence did not support the prosecution case. 13. It has further been stated that there was a dispute between the parties over some domestic matter and in order to settle their private dispute, the prosecutrix has lodged this false case against the accused person. The evide nce on record makes such position more than clear but the learned trial court ov er looked all those serious infirmities in the prosecution case and came to the conclusion that prosecution has proved the charge, leveled against the accused p erson. 14. It has also been contended that at the time under consideration, the prosecutrix was a major girl and even if it is found that accused had sex wi th her on the night in question, such sexual encounter was consensual one for wh ich the accused cannot be prosecuted and punished. Learned counsel for the appel lant therefore urges this court to set aside the judgment of the trial court and to acquit the accused person of the offence aforesaid. 15. Refuting such an argument from the side of appellant, the learne d Addl. P.P. has submitted that the trial court has rendered its judgment on mat erials on record having regard to the law which holds the field. That apart, th e learned trial court assigned valid reason for recording verdict of guilt U/s 3 76 IPC and for convicting him thereunder. Such a reasoned judgment therefore inv ites no interference from this court of appeal. 16. Above being the rival submissions, I find it necessary to have a brief overview of the evidence on record. I have found that the learned trial c ourt had appropriately re-produced the evidence on record . For the convenience of discussion, I find it necessary to re reproduced the salient part of the evid ence so reproduced by the learned trial Judge in my judgment as well. The releva nt part is reproduced below:- (cid:29)Miss A(PW3) is the alleged victim in this case, whose age is recorded as 15 to 16 years on the date of her examination that is on 28.07.2006. She has narrated in her evidence that the accused Ainal is known and familiar to her, as he very often used to visit her at their residence and that he proposed to marry her, in reply to which she asked him to talk with her parents, as there was no objectio n on her part in the matter. Since about one month after such proposal, at about 8/9 P.M. while she was returning home from the marriage ceremony, held at the r esidence of their co-villager Najimuddin, at a distance of about half of a kilom eter from her residence; on the village path in front of the residence of Anowar , the accused caught hold of on her hands, forcibly put her wearing Urna on her mouth and dragged her towards the back side of the residence of Anowar, and that at a distance of about fifteen feet from the village path, he undressed her pu tting off her wearing paijama he forcibly placed her on the ground. She could no t railse alarm, as it is further stated by PW in her evidence , as because the a ccused forcibly placed her wearing Urna on her &. To her requests to leave her, the accused turned a deaf ear, and that thus he forcibly committed sexual interc ourse with her for about 10(ten) minutes at a distance of about 15(fifteen)feet from the village path. At that very moment, according to PW3, Bhuttu arrived at the place of occurrence and that on the flash of light from his torch light Bhut tu could see the entire occurrence. Having seen Bhuttu, the accused immediately got up from her chest and ran away, leaving his wearing apparels at the spot. Bh uttu as it is narrated by PW 3, hurled abuses against her and that he took her t o the residence of Anowar, where she met the mother of Anowar and Jabbar. Someti me after, according to PW 3, Bhuttu came to the residence of Anowar along with h er father, subsequently, she informed the matter to her parents at her residence . At the village ’Bichar’ according to PW3, initially Ainal was ready to marry h er, but subsequently, as he failed to marry her, she has instituted this case. During cross examination PW 3 has inter alia stated that the distance between vi llage path in front of the residence of Anowar and the place where the marriage ceremony was held is about forty feet and in between the two residence of Fajal stands. Bhuttu Seikh (PW 2) states in his evidence that about one year b ack at about 8 pm while he came back home from the marriage ceremony, held at th e residence of Najimuddiln, a co-villager, at the village path near the residenc e of Anowar, he could hear the voice of a girl, uttering leave me. He immediatel y threw a beam of light from his torch light and thus he could see that a girl w as lying on the earth, that her cloths were raised up to her waist and that sudd enly accused Ainal ran railing from her chest. According to PW 2, he could ident ify that the girl was A and he immediately took her to the residence of Anowar. On being asked, A reported him that the accused forcibly committed the shameless act (of rape) on her. He called Abdul Hakim, the father of A, from the marriage ceremony and thus he handed over A to her father. Subsequently, in the village ’Bichar’ accused admitted his guilt and initially agreed to marry A, but subsequ ently, he became untraced. During cross examination, he (PW2) denies that he could not iden tify the accused at the time of occurrence. Md Abdul Hakim (PW1), is the father of alleged victim girl A. Ac cording to him, his daughter A was prosecuting her studies in Class VII and that her age was 15 years (on the date of deposition on 28.7.06). He has deposed tha t on the night of occurrence, he took his daughter A to the marriage ceremony he ld at the residence of Najimuddin , a co villager. At about 8 pm, while his daug hter A was returning home, leaving him at the marriage ceremony, sometime after Bhuttu Seikh reported him at the residence of Najimuddin that he (Bhuttu) could see that the accused Ainan Hoque committed sexual intercourse on A., near the vi llage path, in front of the residence of Anowar Hussain. On receiving such infor mation, accordilng to PW 1, he went to the residence of Anowar to meet his daugh ter there, and subsequently, he took her to his residence. At her residence, A r eported him that the accused Ainal Hoque dragged her from the village path towar ds the residence of Anowar, while she was coming back from the marriage ceremony and that he forcibly committed sexual intercourse on her. PW 1 also could know about such occurrence from his wife, as it was reported to her by A and that sub sequently, as deposed by PW 1, he convened a village ’Bichar’ relating to the oc currence. Subsequently, after about seven days a village ’Bichar’ was held where the accused took some time, but subsequently no fruitful result was achieved an d for that matter he lodged the complaint (Exhibit-1). It is further stated by A bdul Hakim (PW 1) in his evidence that it is because of the assurance to marry A achieved at the village ’Bichar’ delay occurred in instituting the present case . In her evidence Musstt Mohiran Nesa (PW 4) has stated that about three y ears back, on the next day of occurrence, she could hear that on the previous da y, at the night hours, accused Ainal Hoque committed rape on A, near the residen ce of Najimuddin, a co villager, and therefore case was instituted relating to h e occurrence. Musstt. Rubia Khatun (PW 8) has deposed that she does not know anything about the occurrence. Juran Ali (PW 5) is the village head man of village Kheluapara. He has s tated in his evidence that about three years back at about 8.30 P.M. the informa nt Abdul Hakim informed him at his residence that his daughter A went to attend a marriage ceremony in the house of Sahidul/ The accused took her to a neighbou ring house and committed rape on her. On the following day, of his call the accu sed appeared before him and took time for holding on a local Bichar. In that vil lage Bichar the accused promised that he would marry A and that for that matter he took time for three days and that after lapse of five days when the accused d id not comply with his promise, it was advised at the Bichar that the informant should take recourse of law. Abdul Jabbar (PW 6) has stated in his evidence that about three years ba ck at about 7/8 P.M. while he was attending the marriage ceremony at the residen ce of Najimuddin, a co-villager. Bhuttuk Seikh called him and took him to the h ouse of Anowar Hussain, where he found A in almost necked condition and there sh e reported them that while she was coming to the house of Najimuddin, a co-villa ger, for attending the marriage ceremony, the accused pulled her on the gateway of Najimuddin applying force and dragged her to the back silde of the house of A nowar Hussain and committed rape on her. On the following morning, according to PW 6, a Bichar was called and the guardians of the accuksed took time for three days, but after three days, as no Bichar was held, the father of the victim inst ituted this case. On examining A on 14/11/2005 at the Goalpara Civil Hospital, Dr. Jaykant a Rava )PW 10) submitted the medical report (Ext.3) and found: on Vaginal Examin ation--- Hymen absent, no bleeding injury, uterus normal size, Ante-Verted (in normal position), formices (portion between Vagina Cervice of the uterus) are cl ear. On Vaginal Swab examination-found no spermatozoa was present. X Ray reports of wrilt joint, hip joint and elbow joint for age determination, showed that th e age of the girl was between 14 and 15 years. According to the Medical Officer, his report (Ext.3) is not suggestive of recent rape. Jyoti Prakash Ghosh (PW9) is the Investigating Police Officer, who was e ntrusted with the task of preliminary investigation. According to him, before re ceipt of the ejahar by the O/C concerned on 7.12.2005, the victim girl appeared before the Goalpara River Police Station on 14.11.2005 and that he took her to t he Goalpara Civil Hospital for medical examination. PW 9 has further added in hi s evidence that on being entrusted him with the task of investigation, he visite d the place of occurrence, recorded the statement of the witnesses and collected the Medical Report. In the mean time, he having been transferred, he handed ove r the case dilary to the O/c concerned and that O/c Biren Baruah according to PW 9, submitted the charge sheet (Ext 2), where upon Ext 2(1) is the signature of Biren Baruah, which he knows. He has also proved the ejahar (Ext.1) where upon E xt-1(1) is the signature of Biran Baruah, which he knows. Defence witness Md. Jamaluddin (DW 1) has stated in his evidence that th is false case is instituted against the accused Ainal solely on the ground of an imosity that arose for not marrying A by the accused Ainal, as proposed. Examining himself as defence witness No.2 the accused Ainal Ali @ Ainal Hoque has stated that this false case has been instituted against him only on th e sole ground of animosity that arose for damaging his crops by the cattle belon ging to A and her family and for that matter A’s father instituted a case agains t him, on earlier occasion too and that village ’Bichar’ was also held for the p urpose. (cid:29) 17 The above evidence needs to be seen how far above evidence makes out the allegation brought against the accused person. Before we proceed furthe r, we need to know what was the age of prosecutrix at the time of incident in qu estion. The prosecutrix in her evidence claims that on the date of incident she was a girl of about 15/16 years of age. According to father of the prosecutrix, at the time relevant, the prosecutrix was reading in Class VII and her age was 1 5 years. On the other hand, the doctor who examined the prosecutrix on police req 18. uisition on 14.11.2005 at Goalpara Civil Hospital, found her age to be 14 to 15 years and he rendered such opinion on the basis of clinical examination of the p rosecutrix. I have found nothing on record to disbelieve the above claims made b y PWs despite they being subjected to cross examination. 19. Quite contrary to it, the evidence rendered by victim and her fa ther reveals that at the time under consideration the prosecutrix was a girl of about 15 yeas of age and such evidence finds full corroboration from the evidenc e of doctor who based his finding regarding the age of the girl on the scientifi c examination. Above being the position, I am of the considered view that the ag e of the girl at the time under consideration was less than 16 years. 20 So situated, let us consider the evidence of witnesses if on the night in question, the prosecutrix was subjected to sexual intercourse by the a ccused person. Undoubtedly, the star campaigners from the side of prosecution on this count are victim herself as well as one Bhuttu Seikh who claims to have ar rived at the P.O. as the incident under consideration was going on. 21. On scrutinizing the evidence of prosecutrix (PW 3) I have found that according to her, on the night in question, she attended a marriage ceremon y in the residence of one Najimuddin and thereafter about 8/9 P.M. she was retur ning home alone through their village path. As she crossed some distance, the ac cused appeared in front of her and taking the advantage of her loneliness on th e village path, the accused dragged her to nearby field behind the residence of one Anowar. 22. Having taken her to such place, he laid her there on the ground a nd had subjected her to sexual intercourse. As she was protested the conduct on the part of accused person, some passer by heard the same and came there for whi ch the accused fled there from. The person so arrived at the P.O. was none other than Bhuttu Sheik who was examined as PW 2. 23. The evidence, so rendered by PW 3, finds full support from the test imony of the PW 2. PW 2 in very clear term stated that as he passed by the side of the P.O. he heard some noises coming out from some distance in the field. The noise was raised by a girl. He immediately rushed to such place and found the a ccused performing sex with a girl. On seeing him, the boy ran away from such pla ce. 24. It is also in his evidence that he could identified the boy who was A inal Hoque. According to him, he could identify the boy in the light of torch wh ich he was carrying at the time under consideration. He, thereafter, reported th e matter to the father of prosecutrix and also handed over the girl to her fathe r. 25. Though the PW 2 and PW 3 are subjected to detailed cross exami nation, yet such cross examination could elicit nothing to show that the evidenc e rendered by PW 2 and PW 3 could not/should not be acted upon for any reason wh atsoever. Such cross examination also fails to show that those two PWs had false ly implicated the accused for any reason whatsoever. 26. On a conjoint reading of PW2 and PW3 I have found that these two w itnesses clearly established that on the night in question the accused forcibly performed sex with the prosecutrix at a place on the back side of house of one Anowar. The statements as rendered in the FIR (Ext.1) also lends full support to the story so projected by PW 2 and PW3. 27. PW 1 Md. Abdul Hakim, and PW 6, Md Abdul Jabbar have also lends sup port to the claims of PW 2 and PW 3 on some very vital points. These two PWs sta ted that they were in the residence of one Anowar on the night in question atten ding a marriage ceremony there. Precisely at that time, PW 2 took the victim to such place and reported them what occurred to prosecutrix at the place of occur rence moment before. 28. The above evidence rendered by PW 1 and PW 6 did not find any seri ous objection from the side of decence which only served to show that what PW 1 and PW 6 have started before the court in respect of incident in question is bas ically true. Such versions of the PW 1 and PW 6 put the prosecution on more and more firm footing. 29. PW 2 and PW 3 had stated that a Mel was convened in their village fe w days after the alleged incident to sort out the dispute. These claims of PW 2 and PW 3 find corroboration from PW 1, PW 5, PW 6 and PW 7. According to them, t he Mel could not resolve the dispute for which the aggrieved party was advised t ake recourse to the law. 30 The above revelations, coupled with the fact that the accused app ellant, as claimed by some of the above witnesses and which remains un rebutted, agreed to marry the prosecutrix, however, only to be backtracked there from sub sequently, in the facts and circumstances of the present case, affirms more and more that on the night in question the prosecutrix was subjected to sexual assau lt by the accused person. 31. The prosecution case however comes under fire for reasons more than one. In the first place, it was contended that there was delay an such delay rem ained totally unexplained. This is fatal to the prosecution case. On the materia ls on record, however, I am not inclined to accept the above contention from the side of accused appellant. 32. It is true that there was some delay in lodging the case under co nsideration. But then I have found that soon after the alleged incident above, t he villagers got involved therein and a Mel was arranged to sort out the dispute between the parties. There is also undeniable evidence to show that the accused proposed to marry the girl. However, as stated above, he went back from his pro
Legal Reasoning
mise. 33. These clearly show that the delay was caused for the reason that an e ffort was made to settle the matter between the parties amicably. Unfortunately that did not happen which forced the aggrieved party to take recourse to the law . In above view of the matter, it cannot be said that the delay in lodging the c ase remained unexplained. 34. It has also been pointed out that one set of witnesses while claim that the incident in question occurred in the backyard of one Najimuddin, the o ther set of witnesses that incident in question occurred on the backside of one Anowar. According to appellant, such variations in the place of occurrence occur red for prosecution’s projecting a false and frivolous allegations. This is no t true. 35. I have found from the materials on record that the residences of Ano war and Nijiuddin are situated quite closely to one another. In fact, their back yards appears to be quite contiguous as well. In above view of the matter, one c annot find fault with the witnesses when some of them are found saying that inci dent in question occurred on the backyard of Anowar while other set of witness a re found telling that same is situated on the backyard of the Nijiuddim . 36. It has further been contended on the point of referring the matt er in dispute to ’Mel’, the PWs have rendered evidence which are contradictory, inconsistence and defective on material points. Such evidence, therefore, accor ding to learned counsel for the appellant does not inspire confidence on the cl aim that the matter in dispute was actually referred to a Mel for adjudication. This is also testimony of prosecution case being erected on claims which have n ot substratum at all . 37. I have considered such an argument having regard to the evidenc e on record. On such an exercise, I have found that it is true that there was so me inconsistencies about the time of conducting the Mel in question but the fact remains that the dispute in question was referred to Mel for adjudication whic h, however, did not yield any meaningful result for which the aggrieved party wa s advised to take shelter under the law. In the face of above revelations, I a m to hold that inconsistencies in the evidence of witnesses in matter of holding the ’Bichar’ (Mel) in no way takes wind out of the sail of the prosecution. 38. It has also been stated that doctor did not notice any mark of vio lence on the body of the prosecutrix nor did he find any spermatozoa on her pri vate part. This negative finding of the doctor, in fact , is supportive of the claim of defence that the accused was no way involved with the offence under co nsideration. 39. I have found that such an argument too is without any substance . It is true that the doctor did not notice any mark of violence on any of the b ody part of prosecutrix nor did he notice any spermatozoa to her private part. B ut then, one must not be oblivious to the fact that the victim was examined by d octor on 14.11.05, whereas the incident in question occurred on 29.9.05. In the face of her above, it is quite but natural for the doctor not to find any mark o f violence on the body part of the prosecutrix or for that matter any spermato zoa on her private part. 40. Viewed from that angle, doctor evidence no way advances the defenc e tplea that the accused was not involved with the offence in question. Here , it may be stated that honourable Supreme Court has held again and again that f or recording a conviction U/s 376 IPC, a positive finding of the doctor is not a lways a sine-quo-non. It depends on the facts and circumstances of a particular case. 41. These apart, when the prosecutrix claims that she was subjected to se xual intercourse by the accused person and that too against her will and when s uch evidence is found to be confidence inspiring , a conviction U/s 376 IPC can be maintained even the prosecutrix without being in corroborated by other witnes ses including the Medical Officer. 42. In the facts and circumstances of the case, I have found that pros ecutrix has very categorically stated that she was subjected to sexual intercour se by the accused person which was again supported by PW 2 who appeared at the s cene when the incident in question was still going on. In that scenario, I have no other option but to reject the contention of the appellant that prosecution c ase needs to be thrown away for her evidence not being corroborated by doctor. 43. The defence also wants the court to believe that there was a dispu te between the parties on some domestic matter and the prosecutrix has filed cas e under consideration to satisfy their grudge which they had for having a disput e with the accused persons. Such a claim remains far from being probabilised d espite examination of the two witnesses from the side of defence. I, therefore, find it difficult to conclude that prosecutrix has lodged the case in question for having a dispute with the accused person. 44. On perusal of the materials on record, having regard to the argume nts, advanced by the learned counsel for the parties, I am of the opinion that t he impugned judgment as far as conviction is concerned invites no interference. However, on considering the materials on record in their entirety, I am 45. of the opinion that the sentence, imposed upon the accused person is on higher s ide and same needs little interference. 46. Consequently, the sentence, imposed on the accused appellant, is reduce d to 5 years and fine of Rs. 2000/- in default, R.I. for 2 months for the offenc e U/s 376 IPC. The period which he has already undergone would be set off agains t the sentence so imposed on him. 47. In the result, the appeal is partly allowed and judgment under chall enge is modified to the extent stated above. 48. Send down the LCR forthwith.