High Court
Case Details
Crl.A. 156/2008 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY The challenge in this appeal is against the Judgment and Order dated 12. 8.2008 passed by the learned Sessions Judge, Hailakandi, in Sessions Case No.17/ 07, whereby the accused-appellant was convicted under Section 448/376/511/323 of IPC and was sentenced to undergo R.I.(rigorous imprisonment) for 4 years and al so to pay fine of Rs.3000/-, in default, to undergo further R.I. for 6 months fo r offence under Section 376/511 of IPC, also for the offence under Section 448 I PC the accused-appellant was sentenced to undergo RI for six months and also fur ther sentenced to suffer RI for six months for committing the offence under Sect ion 323 of IPC. 2) llows:
Legal Reasoning
Brief facts, leading to filing this appeal, may be stated, as fo On the date of incident, i.e. on 28.3.06, at about 11/12-00 AM ( midnight), while the first informant, father of the victim, was away from his re sidence, it is alleged in the FIR that the accused Md. Jakir Hussain Mazumdar, a ccused-appellant, by entering into his house committed rape on the person of his minor daughter, aged about 13 years, on dagger point and hearing the crying voi ce of the victim, inmates of the house assembled there and tried to apprehend th e accused, then the accused voluntarily causing hurt on the person of the victim girl, fled away from the place of occurrence. 3) On the basis of the FIR, a case was registered and investigation was launched. On conclusion of the investigation, chargeshet was submitted alle ging commission of offence u/s 448/376/323 of IPC showing the accused being an a bsconder. Subsequently, the accused entered appearance and the trial ensued. Th e learned Sessions Judge, Hailakandi, framed formal charge against the accused u /s 448/376/323 IPC, on committal of the case. On reading over and explaining th e charge, the accused pleaded not guilty. 4) During trial, the prosecution examined as many as 8 witnesses to establish the charge against the accused-appellant. All the witnesses were dul y cross examined by the defence counsel. On conclusion of the evidence of prosec ution witnesses, the statement of the accused was recorded under the provision o f Section 313 of CrPC. Defence of the accused-appellant before the trial Court is that 5) out of animosity, he has been falsely implicated in the case. The accused in hi s statement categorically stated that one Md. Firuz Ali, a relative of the victi m girl, who was a member of their joint family, had instituted criminal and civi l case against the father of the accused for last 30-40 years back and also inst ituted one Sessions Case, in which his father and brother got acquittal. It has further been alleged by the accused-appellant that the present case instituted against him, is also a false and concocted case. On conclusion of the hearing, however, learned Sessions Judge convicted the accused appellant as aforesaid giv ing rise the present appeal.
Legal Reasoning
6) Learned counsel for the appellant vehemently submitted that the evidence of the prosecutrix as well as evidence of other witnesses are full of c ontradictions and the evidence of the prosecutrix do not appears to be a witness of sterling quality and her testimony do not inspire confidence and do not have the potential to convict the accused-appellant on such evidence. 7) On the other hand, learned Additional Public Prosecutor contende d that the prosecution has been able to prove the charge beyond all reasonable d oubt against the accused and there is no reason to reverse the judgment and orde r passed by the trial Court, in this appeal. In order to appreciate the arguments advanced by the learned cou 8) nsel for the parties, I would like to extract here-in-below the core of the pros ecution evidence: PW. 1, Miss Sila Begum, who is the victim of the case, deposed t 9) hat the occurrence had taken place nearly 14 months before and on the date of oc currence at about 11-00 PM, when she along with her mother and some minor brothe rs and sisters were present at the house, she was sleeping in another room alone . PW.1 deposed that on the very night of occurrence, her father and elder brother went out to attend one religious function held in her village and her mo ther was sleeping in another room along with her minor sisters and brothers. PW .1 further deposed that while she was sleeping; the accused entered in her room and grabbed her face with a gamusa and while she tried to get rid from the grip of the accused, he inflicted two blows with blunt portion of his dagger and ther eafter, after removing her wearing clothes, the accused performed sexual interco urse with her. PW.1 further deposed that after committing sexual intercourse, the accus ed tried to take her with him, but as she refused to accompany him, he inflicted a blow on her head. PW.1 deposed that she struggled with the accused, for which the cloths, which was tied on her face got loosened and she raised alarm. After hearing her panic voice, her mother and her younger brother arrived at the plac e of occurrence; then the accused fled away from their house. PW.1 further deposed that after 15/20 minutes of the occurrence, when he r father arrived, she reported the matter to him. In her cross examination, PW.1 stated that she did not visit the place of waaz and her father at the time of o ccurrence. In cross examination, PW.1 further stated that there was a lamp burni ng inside her room just behind her head and at the time of occurrence, her mothe r, her minors sisters and brothers were sleeping in another room intercepted by a bamboo barrier only at a distance of 2/3 cubits. PW.1 further stated in her cr oss examination that after inflicting two blows on her shoulder by the butt of a dagger, the accused laid her on the floor of the room and committed sexual inte rcourse by making her naked. In her cross examination, PW.1 stated that she sust ained injuries on her private parts and also some other scratch injuries on othe r parts of her body, due to scuffling with the accused. 10) PW. 2, Abdul Haque Barbhuiya, who is the father of the victim gi rl, deposed that at the time of occurrence while he hearing the ’waaz’ in a hous e adjacent to his homestead, he heard hue and cry of his wife, so he returned to his house and on arrival, he saw his daughter, who was dying with injuries on h er head and on being asked, his daughter PW.1 and his wife reported him that the accused by entering their house wanted to kidnap PW.1 from the house and while his daughter raised protest; the accused inflicted a blow on the head of his dau ghter and fled away from the house. In cross examination, PW.2 stated that the h ouses of Azir Uddin, Safi Mia, Saraf Uddin and Azijul Laskar are situated at a d istance of 20/25 nals away from his house. 11) PW. 3, Fulkhatun Nessa, who is the mother of the victim girl dep osed that on the date of occurrence at about 11-00 PM, while she along with her minor children were sleeping in a room, her daughter, Sila Begum was sleeping in another room. After hearing hue and cry of PW.1, she rushed to the room of her daughter and saw PW.1 sitting in the courtyard of their house with bleeding inju ry on her head. PW.3 further deposed that she saw the accused running away from her house and on being asked, her daughter PW.1 disclosed her that the accused c ommitted rape on her. Then, she raised alarm and on hearing her alarm, one Lodai Bibi and Asma came to the place of occurrence. In cross examination, PW.3 state d that she saw injuries on the head, shoulder and leg of her daughter. PW.3 furt her stated in cross examination that the house of Lodai and Asma is situated adj acent to western side of her house at a distance of 3 nals from her house. PW.3 further stated in her cross examination that there was no lamp burning in the ro om, where her daughter PW.1 was sleeping, but there was a lamp burning in the ma in room of PW.3. 12) The occurrence took place at the dead of night and from the evid ence of the prosecutrix, the victim, it appears that a lamp was burning in the r oom, wherein she was sleeping. But this evidence is contradicted by the mother of the victim i.e. PW.3. In her cross examination, PW.3 specifically stated th at there was no lamp in the room of PW.1, wherein the victim was sleeping and in stead there was a lamp in PW.3’s room. From the evidence of the witnesses of P W.3 and PW.1, it appears that none inside the house witnessed the accused, as th ere was no source of light. The victim herself even could not have distinctly id entified the accused in a dark room on dead of night. Further more, the victim alleged that she was raped by the accused, but the facts and circumstances revea led herein do not reflect that in fact an offence of rape was committed by the a ccused. Therefore, in the utter confusion the trial Court also convicted the ac cused u/s 376 of IPC read with Section 511 of IPC for an attempt to commit rape by the accused. 13) On careful perusal of the evidence of the victim, I find that he r testimony is not at all is of sterling quality, which can be believed to convi ct the accused-appellant for the commission of offence of rape. However, the Ap ex Court as well as the High Courts, in innumerable cases have held that accused can be convicted for the commission of offence of rape if the statement of the victim is found to be true and trustworthy and such statement remained unshaken. But from the above analysis, I find that the identity of the accused, at the d ead of night, without any source of light, as has been alleged by the victim, ap pears to be doubtful. 14) In view of above, I am of the considered opinion that the convic tion recorded by the trial court warrants interference since the prosecution has failed to prove the charge against the accused-appellant beyond all reasonable doubt. Accordingly, the accused/appellant is acquitted from the aforesaid charg e and is directed to be set at liberty forthwith, if he is not wanted in any oth er case. Bail bond so furnished by the accused-appellant stands discharged sinc e the appellant is on bail. 19) 20)
Decision
In the result, the appeal stands allowed. Send down the LCR immediately.