High Court
Case Details
Crl.A. 80/2011 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) This appeal is directed against the judgment and order dated 10.2.2011 p assed by the learned Additional Sessions Judge (FTC), Lakhimpur in Sessions Case No.70(NL)/2010 convicting the appellant under Sections 376(f)/511 I.P.C. and se ntencing him to undergo Rigorous Imprisonment (R.I.) for a period of 5 years wit h fine of Rs.3,000/-, in default, to undergo further R.I. for a period of 2 mont hs
Legal Reasoning
2. Prosecution case in brief is that one Md. Rafiqul Islam lodged a fir st information before the Bangalmara Police Out-Post on 25.3.2010 alleging tha t at about 7-30 A.M. in the morning of that day while his 7 years old daughter w as returning home from ’Muktab’ (school), the accused called her to his shop a t No.1 Ahmedpur by offering ’Channa’, whereafter he took her inside the shop. A ccused disrobed her and attempted to commit rape on her. After his daughter ret urned home and informed about the aforesaid incident, the informant lodged the f irst information. It was forwarded to the Bihpuria Police Station where it was treated as FIR and on the basis of the same, Bihpuria P.S.Case No.109/2010 unde r Sections 376(f)/511 IPC was registered [should be Section 376(2)(f) IPC]. Police investigated the case. In the course of investigation, the vi 3. ctim was examined by a doctor and her statement was also recorded under Section 164 Cr.P.C. On completion of investigation, police submitted charge-sheet agains t the accused under Sections 376(f)/511 IPC. Being a sessions triable case, the case was committed to the Court of Sessions Judge, Lakhimpur, who thereafter pl aced the matter before the learned trial Court for disposal. Charge was framed under the aforesaid sections and when it was read over and explained to the accu sed, he pleaded not guilty and claimed to be tried. 4. Prosecution examined 6 witnesses to bring home the charge against th e accused. Statement of the accused was recorded under Section 313 Cr.P.C. Plea taken by the accused was of total denial. In addition, the plea of alibi was also taken. The accused also examined two witnesses as defence witness. 5. After considering the evidence adduced and other relevant materials o n record, learned trial Court convicted the accused under the aforesaid sections and sentenced him accordingly. 6. Aggrieved, the appellant has filed the present appeal. 7. The appeal was admitted on 16.5.2011. Though initially the prayer for sus pension of sentence and bail was rejected, this Court by a subsequent order date d 3.1.2012 passed in Criminal Misc. Case No.925/2011 suspended the judgment und er appeal and directed release of the appellant on bail.
Legal Reasoning
Heard Mr. F.K.R. Ahmed, learned counsel for the appellant and Mr. B. 8. J.Dutta, learned Additional Public Prosecutor, Assam, for the respondent-State. 9. Learned counsel for the appellant submits that the impugned convicti on and sentence is based on surmises and conjectures. He submits that the plea of alibi taken by the defence was not properly considered which vitiated the impugned conviction. Though there are serious contradictions in the evidence of the prosecution witnesses, even then, going by the evidence of the alleged vic tim herself, no definite conclusion can be reached that the appellant attempted to commit rape on the victim. He also submits that the medical evidence had ru led out any attempted rape on the victim. He submits that the appellant would be more than 50 years of age and considering the period of detention already un dergone, the Court may consider setting aside the impugned conviction and senten ce and acquit the appellant. 10. Per contra, Mr. Dutta, learned Additional Public Prosecutor submits that nothing could be brought on record by the appellant to create a doubt in the mind of the Court about the veracity of the prosecution version. Going by th e evidence of PW 1 i.e. the victim girl, a clear case of attempt to commit rape was made out against the appellant and, therefore, there would be no justificat ion to interfere with the impugned conviction and sentence. 11. materials on record. I have heard learned counsel for the parties and also perused the 12. It is an admitted position that the age of the victim girl was belo w 12 years as on the date of occurrence. In the first information, PW 3, the in formant, who is the father of the victim girl, stated the age of the victim girl to be 7 years. As per medical report(Ext.5), the radiological age of the victim girl would be above 7 years and below 9 years. Victim herself stated her age t o be 7 years. The defence has also not raised any question about the age of the victim girl. 13. The victim girl adduced evidence before the learned trial Court as P W 1. Before recording her evidence, the learned trial Court had put certain ques tions to her to test the mental condition of the victim girl. Learned trial Cou rt found that the victim girl was able to answer the questions put to her in a r ational and intelligent manner. Being a child witness of 7 years age, her eviden ce was taken without oath. PW 1 could identify the accused who was present in Co urt. She stated that the accused had a grocery shop near her house. About a few days back while she was returning home from her school, the accused called her t o take some ’Channa’ from him. PW 1 went to his shop and told him that she had n o money and therefore could not purchase ’Channa’ from him. Accused told her tha t she need not pay as he would give the ’Channa’ free of cost. He closed the doo r of his shop and made her sit on his lap. Thereafter, he took off her undergar ment as well as his trouser. According to PW 1, accused indulged in ’Baya-Kam’ w ith her. After she raised alarm, her aunt (father’s sister) came to the shop an d peeped through a hole. At that time, the accused was indulging in ’Baya-Kam’ k eeping her on his lap. Thereafter he gave her a handful of ’Channa’ and opened t he door of the shop allowing PW 1 to leave. P.W. 1 stated that she told the ent ire matter to her aunt, mother and other family members. She stated that she suf fered pain in her private parts and that she used to suffer pain in her private parts at the time of passing urine. In her cross-examination, PW 1 stated that after the occurrence, her parents told her not to disclose about the said incide nt to her school friends. She stated that she saw her aunt peeping through a hol e. After returning home, she told about the incident to her aunt and to her moth er. 14. PW 2 is the aunt of the victim. She stated that on the day of occurre nce at about 7-30 A.M. she went to the grocery shop of the accused but found th e door closed. She went near the door and from a hole, peeped inside. She saw t he victim was on the lap of the accused. The victim was weeping and seeing her, the accused freed the victim and opened the door of the shop. She stated that o n a query made by her, the victim told her that the accused called her in by o ffering ’Channa’ and closed the door of the shop and thereafter did ’Baya-Kam’ w ith her. When the victim reached home, her father was not present. Later on, whe n he came and was informed about the incident, he lodged the first information before the police. Though she was cross examined, her testimony could not be d islodged in any material manner. 15. PW 3 is the informant i.e. the father of the victim girl. He stated that on the day of occurrence, he had gone out with his auto in the morning . O n receiving information about the alleged incident in the evening, he came back home. The victim daughter weepingly told him that when she was returning home f rom school in the morning, the accused called her to his shop for offering her ’Channa’. When she was inside, the accused closed the door of the shop. He took her on his lap. After taking her undergarment off , he committed ’Baya-Kam’. He was also cross examined but nothing contradictory could be elicited from him. 16. I.O. was examined as PW 5. He stated that after registration of the case, he investigated the same. He recorded statements of the informant and the victim, visited the place of occurrence, examined the witnesses , got the victi m medically examined and also got her statement recorded under Section 164 Cr.P .C. On completion of the investigation, having found materials against the accu sed, he submitted charge-sheet against the accused under Sections 376(f)/511 IPC . 17. PW 6 is the doctor. She stated that at about 2 P.M. on 29.3.2010 she examined PW 1, who was aged about 7 years. As per medical report, there was no sign of injury on the private parts of the victim though there was one nail mark at the base of her left thumb. Laboratory examination also did not show presenc e of spermatozoa. 18. In his statement under Section 313 Cr.P.C., accused denied all the all egations. He took the plea that on the previous night of the day of occurrence, he went to the residence of Md. Nazrul Islam situated at a distance of about on e kilometer to participate in a religious ceremony. He stayed there till the af ternoon of the next day and returned home only in the evening. According to him, he opened his shop at about 4 in the evening. At about 7 P.M. , police took h im for questioning and then only he came to know about the allegation levelled a gainst him. He also stated that the victim’s father used to buy goods from his shop on credit. He had to pay him more than Rs.3000/-. 19. As already noted, defence adduced two witnesses. DW 1 is Md. Naz rul Islam. He stated that on 27.3.2010, he had arranged a religious function in his residence to commemorate the death anniversary of his father. The accused ha d come to his house to participate in the ceremony and stayed back there till th e afternoon of the next day. In his cross examination, he stated that accused w as like a friend to him and also belonged to the same village. The shop of the accused was situated at a distance of about one kilometer from his house. 20. DW 2 is Md. Surab Uddin Ahmed, a neighbour of the accused. He stated that the grocery shop of the accused was just adjacent to his house. He also s tated that on the day of occurrence at about 6/6-30 A.M., he went to the shop of the accused to buy sugar but found the shop closed. Thereafter he went to his p lace of duty. 21. A cumulative assessment of the evidence on record clearly indicates th e prosecution stand. PW 1 is a child of about 7 years. She was categorical in her deposition that the accused offering her ’Channa’ lured her to inside his sh op, whereafter he closed the door of the shop. She stated that the accused took her on his lap and removed her undergarment. She also stated that the accused ha d taken off his trouser and thereafter committed ’Baya-Kam’. 22. Ordinarily, a child of 7 years in the normal course is not in a pos ition to fully comprehend the nature of a sexual assault, but she would be in a position to understand that what was being done was not the right thing to do . ’Baya-Kam’ literary means a bad thing. The words will have to be understood in the context or circumstances in which those were used. PW 1 clearly stated that when she went inside the shop, the accused made her sit on his lap and removed her undergarment. Thereafter he also took off his trouser and commi tted ’Baya-kam’. PW 2 saw this when she looked inside the shop through a hole o n the door of the shop. She also stated that she found the victim on the lap o f the accused and she was weeping. According to her, when the accused saw her, h e allowed the victim to go and opened the door of the shop. 23. There is no reason to disbelieve the version of the child. In the norma l course, a child will never tell a lie. Moreover, as already noticed above, she was firm and unwavering in her deposition. Her deposition is credible, trustwor thy and inspires the confidence of the Court. On the face of such clear assertio n of PW 1, the medical opinion would hardly be of any assistance to the accused. in her There is also no reason to believe that the parents of the victim will concoct such a story which may have the affect of stigmatizing their minor d aughter for her whole life. PW 1 in her cross examination had in fact stated th at her parents had told her not to tell her school friends about the said incide nt. In such circumstances, the defence plea that he was falsely implicated by t he parents of the victim to avoid payment of money due does not inspire confiden ce at all. For such a petty thing, no person can put the life of his minor daug hter in jeopardy. The plea of alibi taken by the defence is also not acceptable inasmuch as, the residence of the accused and DW 1 in whose house it was stated that the accused had spent the night before was just about one kilometer apar t. Moreover, the accused was a shop keeper and as a prudent shop-keeper, he w ould not have kept his shop closed for the whole day on the subsequent day of t he ceremony. 24. In such circumstances, the finding of the learned trial Court cannot b e said to be erroneous. Therefore, this Court finds no good ground to revers e the conviction and sentence imposed by the learned trial Court. 25. Accordingly, the appeal stands dismissed. Bail order passed earlier stands cancelled. Registry to send down the case record immediately. The accuse d/appellant shall surrender in the Court of learned Chief Judicial Magistrate , Lakhimpur, North Lakhimpur within 15 days from today to serve out the remaini ng part of his sentence. 26. It has also been brought to the notice of the Court that Government o f Assam has framed a scheme for payment of compensation to victims of criminal o ffences, called, the Assam Victim Compensation Scheme, 2012. In view of above, the case record be placed before the District Legal Services Authority, Lakhimp ur for payment of compensation to the victim as per the provisions of the afor esaid scheme.