High Court
Case Details
Crl.A. 45/2008 PRESENT HON’BLE MR JUSTICE A. C. UPADHYAY This appeal is directed against the judgment and order dated 30th January, 2008 passed by the learned Sessions Judge, Goalpara in Sessions case no. 58/2005 conv icting the appellant u/s 376(f) of the IPC and sentencing him to undergo rigorou s imprisonment for ten years and pay a fine of Rs 2,000/- and in default to unde rgo rigorous imprisonment for six months more. The facts leading to filing the a ppeal may be stated as follows: The sordid time was around 7 PM on 15.6.2005 when the daughter of the fi 1. rst-informant was playing on a road near her house, the accused, with an allurem ent that she would be given a chocolate, escorted her to a nearby field and late r raped. 2. on thereof, submitted a charge-sheet u/s 376 of the IPC against the accused.
Legal Reasoning
On the basis of the FIR, police started an investigation and on conclusi 3. se of that process, as many as eleven witnesses were examined by prosecution. On committal of the case to the Court of Session, trial started. In cour 4. On conclusion of recordings of the evidence of PWs, defence statement of the accused was recoded u/s 313 of the Cr.PC. The accused pleaded innocent and declined to adduce evidence in defence. 4. After hearing learned counsel for the parties, the learned Sessions Judg e convicted the accused and sentenced him as aforesaid, giving rise to this appe al.
Legal Reasoning
5. Learned counsel for the accused submitted that since prosecution has mis erably failed to prove the charge against the accused beyond all reasonable doub t, the accused deserves acquittal. On the other hand, learned Additional Public Prosecutor submitted that as the judgment & order passed by the learned trial co urt is a well-reasoned judgment, the same does not warrant any interference by t his court. 6. d like to state herein below the core of the prosecution evidence: To appreciate the submissions of learned counsel for the parties, I woul 7. PW1, the father of the victim, deposed that accused Khambu is known to h im. Accused was working as handyman. The occurrence took place nearly eight mont hs ago, and when his daughter was an 8-year-old lass. On the fateful evening, he was in Guwahati and when he returned home at around 9.30-10.00 AM the following day, he was told by his daughter that when she was playing, accused Khambu took her to the Bhatipara field, with an assurance of giving her a chocolate. When t he accused raped the victim, she cried in pain. He left her near her house. Ther eafter, he took his daughter to Goalpara Police station and lodged an ejahar. Po lice enquired about the matter, took the victim for a medical examination and th en to a Magistrate to get her statement recorded. In cross-examination, PW1 deposed that he cannot remember the exact time of occurrence. The ejahar was lodged on the following day. 8. PW2, Rejia Begum, deposed that accused Khambu is known to her. She does not know the schooling name of the accused. The victim is her daughter. The occu rrence took place about 6 PM. The accused is a handyman in profession and his ho use is nearby her. On the date of occurrence while the accused was sitting near her house, her daughter playing with 2-3 children. After half-an-hour when she c ame outside and found her daughter missing and after about an hour, Khambu broug ht her. On the following day, her husband came to know of the occurrence from ot hers as well as from her and their daughter. On being asked, her daughter told t hat the accused took her to a nearby field with an assurance that she would be g iven a chocolate and later raped her. The witnesses examined the body of her dau ghter and found abrasion in the vagina. The witness deposed that thereafter she lodged the ejahar, on the basis of which the police took the victim for a clinic al examination and from there to a court to get her statement recorded. In cross-examination, the witness deposed that the name of her husband i s Yusuf Ali and that she cannot remember the date of occurrence. She deposed tha t before being asked by her husband, her daughter did not tell her anything abou t the outrage perpetrated on her. She also deposed that she did not see the occu rrence taking place, but admitted that both her husband and the accused are hand ymen in profession. She denied the suggestion that her husband had had a quarrel with the accused and that out of grouse her husband lodged this false case agai nst the accused. 9. From the evidence of PW1 and PW2, it appears that they are the parents o f the victim. On the day of occurrence the accused Mofidul Islam alais Khambu lu red their daughter with a chocolate and took her to a nearby field and raped her . On the following day when the father of the victim came to know about the occu rrence from others, he enquired about the matter from his wife as well as from t he victim. PW1 was told that accused Khambu with an assurance of giving a chocol ate, took her to a nearby field, removed her pant and penetrated his penis in he r vagina and on being checked up, PW2 found some abrasion in the vagina of her d aughter. It also transpires from the evidence of PW1 & PW2 that PW1 lodged an ej ahar with the police. Police, after taking a resume of the matter, took the vict im to a court to get her statement recorded and from there to a doctor to get he r clinically examined. 10. PW3 deposed that the accused is known to him. The pet name of the accuse d is Khambu and his good name is Mofidul. Informant Saiful Islam and his daughte r are also known to him. He deposed that one day about 7-8 months ago at about 7 .30 PM, the occurrence took place. At the time he was sitting in the verandah. H e along with his friend Rakesh went towards the accused and the victim. On seein g them the accused took away the victim wading through a water body and when the accused came closer to them, he could see the accused and the accused fled with the victim. The father of the victim is a handyman in a bus and he was reported the matter the following morning. 11. It transpires from the evidence of PW3 that accused Mofidul alias Khambu is a handyman in a bus. In cross-examination, PW3 deposed that the verandah of the house of his friend Rakesh, where PW3 was sitting, is about 15-16 feet away of the spot of oc currence. The PW3 was stated to have seen the accused compromising with the vict im trying to enjoy sexual intercourse with her. The defence could not demolish h er testimony. 11. PW7 Md Rakesh Ahmed deposed that accused Khambu is known to him. His goo d name is Mofidul. The informant and the victim are not known to him. About 8-9 months ago, he was in his house. After hearing a boisterous sound of people he c ame outside and went to the spot and saw a melee there. He did not see the occur rence. On the following day, police and a Magistrate went to the spot and on bei ng called on by them he went there. Accused Khambu was also taken to the spot by the police. 12. On a perusal of the evidence of the victim, it appears that when she was playing near her house, accused, with an allurement to give her a chocolate, to ok her to a nearby field, removed her panty and raped her. She also deposed that though she felt aching but her body did not bleed. It also transpires from the evidence of the victim that one of her friends saw rape taking place. The accuse d brought the victim to her residence but the victim did not tell anything about the rape to her mother. Her father came to know about the occurrence in the nex t morning and on being enquired, the victim told him that the accused took her t o a nearby field, alluring she would be given a chocolate, and raped her. There after, her father took her to police station who, in turn, took her to a doctor for a clinical examination and from there to a Magistrate to get her statement r ecorded. It is clear from the evidence of the victim that on the fateful day even 13. ing when she was playing nearby her house, she was enticed by the accused on an allurement that she would be given a chocolate and being a teenager does not kno w the pun, she followed the accused to a nearby field, where she was raped force fully after disrobing her waist, which was witnessed by one of her friends. Ther eafter the accused took her to her house. She also deposed that she resisted the accused ~ cried out in pain, though her body did not bleed. It is also clear th at she did not report the matter to her mother. In the next morning her father c ame to know about the occurrence and on enquiry being made she informed her fath er that the accused, with a promise to give her a chocolate, took her to a nearb y field and raped her. So, the evidence of the victim that she was 12 years age at the time occurrence cannot be disbelieved. Had the accused Mofidul Islam not raped her, she would not have deposed that she was raped by the accused. The evi dence of the victim is quite inspiring, and clearly points the needle of guilt t owards the accused. 14. PW8 is the medical and health officer-I, Goalpara deposed that on 16.6.2 005 he was working as Medical & Health Officer-I at Goalpara Civil Hospital. On that day he examined the victim, the daughter of Md Saiful Islam and Babu in con nection with Goalpara PS case no. 177/05 u/s 376(f) IPC brought and identified b y UBC 260 Mohim Khaklary of Goalpara PS in presence of Mrs Kamala Khatun of Goal para Civil Hospital and on examination he found the followings: Identification mark: A black mole on lower lip(left side). Height Weight Breast Teeth Per vaginal examination: Hymen closed. No bleeding of injury found. : 3’10 (cid:29) : 16 kg : Not developed. : 10/10. Vaginal swab examination for spermatozoa: Negative. X-ray examination of right wrist, elbow, two hip joint for age determination: The age of the girl is below 18 years. X-ray plate (two nos.) are enclosed in his report. PW8 opined t hat no recent sexual intercourse found and no injury found on her private part. The age of the victim girl is below 18 years. Ext. 5 is his report and Ext. 5(1) is his signature. Ext. 6 is the report of vaginal swab examination and Ext. 7 i s the x-ray report and Ex. 7(1) is the signature of Dr M.A. Farukie which is kno wn to PW8. Ext. 8 is the X-ray plate. He was not cross-examined by the defence. 15. On a careful evaluation of the evidence, particularly the evidence of PW 9 & PW10, and more specificaly, PW1, PW2, PW3, it appears that they supported th e prosecution case. The defence has totally failed to show any animosity among t he victim and the witnesses. 16. Learned counsel for the appellant submitted that as, according to the ev idence of PW8, the victim was below the age of 18 years, it has to be inferred t hat the victim was above the consenting age at the time of occurrence. 17. From the above, it is clear that prosecution has been able to prove the charge against the accused beyond all reasonable doubt. In my view, the convicti on of the accused under Section 376 of the IPC is justified. 18. Learned counsel for the accused, referring to the decision of the Suprem e Court in State of Chattisgarsh v. Dehra, (2004) 9 SCC 699, submitted that the punishment of the accused may be reduced to the period already undergone by the accused, since the accused is in custody from the date of his conviction, and wa s 23 years old at the time of occurrence. 19. Taking into consideration entire gamut of facts and circumstances and su bmissions of learned counsel for the appellant, while maintaining the conviction of the accused under Section 376 of the IPC, in so far as the sentence is conce rned, I sentence accused to undergo rigorous imprisonment for seven years and to pay a fine of Rs 2,000/- and in default to undergo rigorous imprisonment for on e month more. 20. R.
Decision
With the above modification, the appeal is disposed of. Send back the LC