High Court
Case Details
Crl.A. 96/2012 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN This appeal is directed against the judgment and order dated 15. 03.2012 passed by the learned Addl. Sessions Judge (FTC), Bongaigaon in Sessions Case No. 13(A)/2010 convicting accused/appellant Abdul Samad under Sections 448 /376 IPC and sentencing him to undergo Rigorous Imprisonment (RI) for a period o f 7 (seven) years and to pay fine of Rs. 1000/-, in default, to undergo Simple I mprisonment (SI) for a further period of 2 (two) months for the conviction under Section 376 IPC and to undergo RI for 3 (three) months for the conviction under Section 448 IPC, both the sentences to run concurrently. 2. Prosecution case in brief is that on 08.09.2008 at about 6:00 p. m., one Rupbanu Bewa lodged a first information before Kokila Watch Post (WP) un der Abhayapuri Police Station alleging that on 05.09.2008 at about 12 midnight, about 8 to 10 persons, armed with deadly weapons had entered into her house by c utting the ropes of the door and forcefully took away her 17 years old daughter. Informant stated that she could identify two of the persons as Abdul Samad (app ellant) and Abdul Gafur of Nayagaon
Legal Reasoning
On receipt of the first information, a GD entry was made and the 3. reafter the same was sent to Abhayapuri Police Station, where it was registered as Abhayapuri PS Case No. 225/2008 under Sections 458/365/34 IPC. Police investigated the case and after completion of the investi 4. gation, submitted chargesheet against the accused/appellant under Sections 458/3 66 IPC. Learned Magistrate committed the case to the Court of Sessions a 5. s offence under Section 366 IPC is exclusively triable by the Court of Sessions. Thereafter, on committal, learned Sessions Judge, Bongaigaon transferred the ca se record to the trial Court for disposal. 6. Learned trial Court found that though the other accused Abdul Go fur was not chargesheeted, a prima facie case was made out against him as well. Accordingly, summons were issued to him and on receipt of the summons, Abdul Gof ur appeared before the Court. 7. Learned trial Court framed charge against the accused under Sect ions 458/366/34 IPC. When the charges were read over and explained to the accuse d persons, they pleaded not guilty and claimed to be tried. 8. Prosecution examined as many as 8 witnesses to prove the charges against the accused persons. Thereafter, the accused were examined under Sectio n 313 Cr.PC. Plea of defence was of total denial. However, the defence side did not adduce any evidence. 9. After examining the evidence adduced and other materials on reco rd, the learned trial Court came to the conclusion that prosecution had failed t o prove the charge under Section 458 IPC against the accused but the offence of house trespass was established. However, no evidence was found against the accus ed Abdul Gofur. Holding that age of the victim girl was below 16 years at the re levant time and, therefore, consent for sexual intercourse was immaterial, learn ed trial Court came to the conclusion that the accused had committed the offence of rape. Thus, it was held that the prosecution had proved the case against the accused/appellant under Sections 448/376 IPC beyond reasonable doubt and he was convicted and sentenced accordingly.
Legal Reasoning
10. Mr. B. Hussain, learned counsel for the appellant submits that t he victim was a major and she had voluntarily eloped with the accused/appellant. In the face of the evidence on record, no case of either rape or house trespass is made out against the accused/appellant. He submitted that PW 3 i.e. the brot her of the victim had made a missing complaint before the police on 06.09.2008 i n respect of which a GD entry was made. Informant suppressed this fact when she belatedly lodged the first information on 08.09.2008. Suppression of this vital information has materially affected the prosecution case, he submits. Radiologic al examination clearly shows that the victim girl was above 18 years of age and in the absence of any documentary or reliable evidence to the contrary, the medi cal evidence should have been accepted by the learned trial Court. The prosecuti on version as a whole is completely unbelievable and, therefore, the accused/app ellant should be cleared of the charge. 11. r supports the conviction and sentence passed by the learned trial Court. On the other hand, Ms. B. Bhuyan, learned Addl. Public Prosecuto 12. record may be made. Before proceeding further, a brief reference to the evidence on 13. PW 1 is the informant and mother of the victim girl. In her exam ination-in-chief, she has stated that while she was sleeping alongwith her 16 ye ars old daughter in their residence, 4 miscreants including the accused persons entered into their residence. They were armed with pistols, daggers etc. She sta ted that accused/appellant forcibly took away her daughter. On raising hue and c ry, villagers came and thereafter searched for her daughter. 22 days after the o ccurrence, brother of informant, Rahul Amin and two others brought back the accu sed and her daughter from Guwahati. She stated that her daughter reported to her that at Guwahati she was kept confined by the accused and used her as his wife and he forcibly committed rape on her against her will. In her cross-examination , she stated that the accused used to visit her house quite often. The residence of the accused and their residence was at a distance of about 3 Kms. She furthe r stated that the accused used to even stay overnight in their residence, someti mes even for a week. Likewise, she and her daughter also used to visit the resid ence of the accused and sometimes used to spend 2-3 nights at his residence. She admitted that she did not possess the birth certificate of her daughter. 14. PW 2 is the victim. She stated that on 05.09.2008 while she was sleeping with her mother, the two accused and two other persons entered into th eir residence by cutting the ropes of the bamboo door. They were carrying dagger s and pistols. The accused/appellant threatened her and also gagged her mouth. T hereafter, he forcefully took her away. At this stage, she became unconscious an d regained consciousness only after 5 days. After regaining consciousness, she f ound that she was in a room with the accused at Guwahati. There, the accused by threatening her, committed rape for about 4-5 days. On the 22nd day after disapp earance, her brother Rahul Amin and 2 others came and took her and the accused b ack to Abhayapuri. The accused was handed over to the Abhayapuri Police Station. In her cross-examination, PW 2 (victim) stated that she did not remember her da te of birth. Because of fear on seeing the accused and other persons with pistol s and daggers, she remained unconscious for 5 days. She also stated that on 05.0 9.2008 she had invited the accused home for dinner and about 8:00 pm she came ou t with the accused with the permission of her mother and stayed with him in the house of one person at Howli from where they came to Guwahati and stayed in a re nted place. At Guwahati she fell ill when her brother came alongwith others and took them back to Abhayapuri by assuring them that they would be married of soc ially. 15. PW 3 is Rahul Amin, the son of PW 1 and brother of PW 2. He stat ed that on the night when his sister went missing, he was at Guwahati. On being informed by his mother the next morning, he came home. He stated that he lodged the first information on 08.09.2008. According to him, age of his sister was abo ut 16/17 years. In cross-examination, he also admitted that his family had a goo d relation with the family of the accused and they used to visit each other. Bec ause of the frequency of such visits, the village people did not like it. According to PW 5 Sarbat Ali, the brother of the informant, the 16. age of the victim girl would be 17/18 years. He also stated in cross-examination that informant had treated the accused/appellant as her (cid:28)Dharma bhai (cid:29) (brother) . 17. PW 6 is the doctor, who had examined the victim on 28.09.2008 at about 11:30 am. He has stated that as per radiological examination, the age of the victim girl would be above 18 years. As per his evidence, the hymen was foun d absent but there was no sign of injury on her person. 18. PW 8 is the IO. In his examination-in-chief, he has stated that on 06.09.2008, while he was posted at Kokila WP under Abhayapuri Police Station, he received a missing report from one Rahul Amin (PW 3) in respect of which, a GD entry was made. Next day (07.09.2008) he visited the house of the informant. After about 15-20 days, the victim alongwith the accused were brought from Guwah ati by persons from the informant’s side. He had submitted chargesheet under Sec tions 458/366 IPC. In his cross-examination, he has stated that the victim girl had told him while her statment was recorded under Section 161 Cr.PC that she wa s 19 years of age and that the accused used to visit her house quite often. He a lso stated that the victim told him that she had developed a love affair with th e accused and also had a physical relationship with him. This was not liked by t he villagers. He further stated that on the day of occurrence, at about 6:00 p.m . accused visited the residence of the victim and had taken meal with them and a fter taking permission from PW 1 (mother), he took PW 2 to his home at about 8:0 0 p.m. PW 2 stated that though her mother initially did not give permission, she went out with the accused voluntarily with bag and baggage. Thereafter, she wen t with the accused and stayed in a rented place at Guwahati. Her brother alongwi th a few persons brought her and the accused to their native place on promise of performing their marriage socially. He stated that on 06.09.2008, PW 3, the bro ther of the victim lodged a missing report before the police on the basis of whi ch GD entry was made, though FIR was filed by PW 1 thereafter on 08.09.2008 at 6 :00 pm. A close perusal of the evidence adduced would indicate that ther 19. e was a close relationship between the victim girl and the accused, which has be en explained by the IO in his deposition. It has also come on record that such i ntimacy led to physical intercourse between the two. Obviously, such frequent vi sits by the accused to the family of the victim and the return visits by the vic tim and her mother to the residence of the accused was not liked by the villager s, which is quite natural in a rural set up, moreso when PW1 (the mother) treate d the accused as her brother. PW 3 had filed a missing report on 06.09.2008 i.e. , on the next day and 2 days thereafter, the FIR lodged. It is thus clear that t he prosecution had suppressed the first missing report on the basis of which a G D entry was made. This fact, coupled with the delayed filing of FIR, clearly goe s to show that it was an attempt at covering up what appears to be a clear case of elopement. The facts are so obvious that the allegation of committing rape by the accused on PW 2 within the meaning of Section 375 IPC appears to be highly improbable. It appears to be a case of elopement which had the dis-approval of t he community which may have led to the filing of FIR by PW 1. The version of PW 2 that she had lost consciousness for 5 days and that when she had regained cons ciousness, she found herself in the company of the accused in a room in Guwahati is not at all believable, if not bizarre. 20. Coming to the age of PW 2, no age or birth certificate was produ ced before the Court or exhibited. As per radiological examination, PW 2 would b e more than 18 years old. Though medical evidence is in the nature of opinion, n evertheless, in the absence of any documentary or reliable evidence, Court would be inclined to accept the finding of the radiological enquiry. 21. PW 2 being an adult and no reliable evidence of either house tre spass or of forceful sexual intercourse with her having been proved beyond all r easonable doubt, I am of the view that the accused/appellant is entitled to the benefit of doubt. 22. It is the cardinal principle of criminal jurisprudence that the charge against the accused must be proved beyond all reasonable doubt. In the fa cts of the present case, it cannot be said with any degree of certainty that the charge against the accused stood proved beyond all reasonable doubt. Accordingl y, the appellant would be entitled to the benefit of doubt. 23. In view of the discussions made above, impugned conviction and s entence is hereby set aside and quashed and the accused/appellant is set at libe rty. 24. Office to send down the case record immediately.