High Court · 2012

1. The three appellants herein were tried by the learned Sessions Judge, Ba rpeta in connection with Sessions Case No.20/03 (CR Case No.523/2002) and convic ted the appellants 1 & 2 U/S 376/109 IPC and sentenced to undergo rigorous impri sonment for 7(seven) years and pay fine of Rs.2000/- each and in default of paym ent further rigorous imprisonment for 6(six) months, and convicted appellant no. 3 U/S 376 IPC and sentenced him to undergo rigorous imprisonment for 10(ten) yea rs and fined of Rs.5000/-, in default of payment of fine another one year’s rigo rous imprisonment. 2. Being aggrieved by the impugned judgment and order dated 20.12.2003 pass ed by the learned Sessions Judge, Barpeta, appellants/convicts preferred this in stant appeal before this Court. The prosecution story, in nut shell, is that upon a complaint petition d 3. ated 30.04.2002, learned Chief Judicial Magistrate, Barpeta had taken cognizance of the case and committed the case to the Court of Sessions, Barpeta for trial. 4. Victim is the legally married wife of the appellant/convict, Md. Hikmat Ali, who got married with the victim just 8 (eight) months prior to the complain t filed. Md. Hikmat Ali is the disciple of appellant/convict, Md.Kasem Ali, who is a ’Peer’. And another appellant/convict was the wife of convict, Md. Kasem Al i. It is alleged that on 20.03.2002, convict/husband, Md. Hikmat Ali, took his w ife( i.e.the victim) to the residence of convict, Md. Kasem Ali, where the victi m had been offered a cup of tea by the convict, Mustt. Kad Bhanu Nessa, the wife of convict, Md. Kasem Ali. Immediately thereafter, convict, Md. Hikmat Ali, adv ised his wife to co-habit with the convict, Md.Kasem Ali, and in return she woul d be able to give birth a beautiful child. Victim objected to such proposal and immediately thereafter, convict, Md. Hikmat Ali (i.e. husband of the victim) and Mustt.Kad Bhanu Nessa (i.e.wife of convict,Md.Kasem Ali) pushed the victim into a room where convict, Md.Kasem Ali, was waiting. The door was locked by other t wo convict persons, i.e.Md.Hikmat Ali and Mustt.Kad Bhanu Nessa, from outside an d they remained guard the door. As a result, convict, Md.Kasem Ali, committed ra pe upon the complainant against her will. The matter was reported to the in-laws of the victim, but they consoled her that it was their custom. Finding no other way out, complainant, Musstt. Tara Bhanu, came to her parental house and report ed the incident to her mother and thereafter, a ’village Darbar’ held responsibl e convict, Md. Kasem Ali, guilty of offence of rape and panalised him by shaving his hair.

5. Heard the learned counsel for the appellants/convicts, Mr.M.H.Ahmed, who submitted that in this instant case prosecution could not establish the charge against the appellants in spite of the fact that there was no evidence, learned Sessions Judge convicted the convict persons without applying judicial mind and laws. Learned counsel, further contended that in this instant case, no FIR was l odged at all; it was only on 30.04.2002 a complaint had been filed before the le arned Chief Judicial Magistrate, Barpeta though the incident occurred on 23.03.2 002. Since prosecution could not prove the charge, conviction of the appellants need to be set aside and they need to be set free on liberty. On the other hand, learned Addl. PP, Ms. A. Begum, argued that the convi 6. ct persons themselves admitted that convict, Md. Kasem Ali, was punished by the ’village Darbar’ as such learned Sessions Judge rightly passed the conviction an d awarded sentence so the appeal may be dismissed. After hearing the submissions advanced by the learned counsel for the pa 7. rties at the Bar, I find the crux of issue involved in this case, whether prosec ution evidence succeeded to establish the charge against the appellants/convicts ? 8. on record. 9. To answer the issue, as referred to above, let me examine on witnesses PW1, the complainant Musstt. Tara Bhanu, in her evidence disclosed that her husband, Md. Hikmat Ali, took her to the residence of Md. Kasem Ali, who was a ’Pir’ (i.e. religious Guru) and initially she (i.e.the complainant) was offer ed tea by other appellant Mustt. Kad Bhanu Nessa and thereafter appellant, Md. H ikmat Ali advised the victim to co-habit with the appellant, Md. Kasem Ali, so s he would be able to give birth a beautiful child. Musstt. Tara Bhanu, the victim , objected to the proposal and in spite of her objection, appellant, Md. Hikmat Ali (i.e. husband of the victim) and appellant, Mustt. Kad Bhanu Nessa (i.e.wife of Md. Kasem Ali) pushed Musstt. Tara Bhanu in a room and bolted the door from outside and in the said room appellant, Md. Kasem Ali, committed rape upon Musst t. Tara Bhanu. Victim Musstt. Tara Bhanu reported the matter to her in-laws but they consoled her that it was their custom. So finding no other way out, she too k shelter in her parental house and informed the matter to her mother. A village Darbar was called wherein Md. Kasem Ali admitted his guilt and he was panalised by the elders of the village by shaving his hair. From her cross-examination, v ictim admitted that she had narrated the matter to Jamal, Kamal and Abul. She fu rther admitted in her deposition that if she gets justice she is ready to go bac k to her husband, Md. Hidmat Ali again. She also further disclosed that appellan t, Md. Kasem Ali and appellant Md.Hikmat Ali are cousin brothers. 10. On bare perusal evidence of PW1, it appears that appellant, Md. Kasem Al i, co-habited and raped upon Musstt.Tara Bhanu against her will. But one questi on comes in mind that why she did not file any FIR to Police and what prevented her to file her complaint case in time to Chief Judicial Magistrate, remains une xplained. If the incident occurred on 20.03.2002, then why complaint has been lo dged only on 30.04.2002. Besides that, in her cross-examination, she had admitte d that appellant, Md. Kasem Ali, and appellant, Md. Hikmat Ali, are the cousin b rothers and she is ready to go back to her husband, Md. Hikmat Ali, if she gets justice. Therefore, after total evaluation of her evidence, I am unable to say t hat her evidence can be accepted in toto. Her version of evidence remains doubtf ul as the FIR was not lodged to Police timely. Secondly, the complaint has been filed before the Magistrate very late as such, I am not in a position to satisfy myself to rely solely on her evidence.

11. PW2, Musst. Safia Khatun, disclosed in her evidence that complainant, PW 1, is her daughter and from her evidence, she is not the eye witness of the inci dent. She admitted that before a village Darbar, appellant, Md. Kasem Ali, admit ted his guilt as such village elders punished him by shaving his hair. In her cr oss-examination, PW2 stated that her daughter, PW1, is not interested to go back to appellant, Md.Hikmat Ali, as he committed breach of trust of marriage. On ba re perusal of the evidence given by PW2, it appears that she is not an eye witne ss nor she was present in the scene and she deposed on the basis of the informat ion received from her daughter, PW1. 12. Similarly, PW3, father of the victim repeated the statement as given by PW2 as it was on the basis of the report received from PW1. It appears from h is evidence that he was not an eye witness. 13. PW4, from his evidence, nothing came in light about the actual incident except pertaining to the decision taken by the village Darbar on the basis of th e allegations made by PW1 and in cross-examination, he had admitted that he had no personal knowledge about the incident and he came to know about the incident from PW1 in the village vichar. 14. s just stated on the basis of the knowledge gathered from PW1 itself. 15. narrated the story on the basis of information gathered from PW1. 16. So, on evaluation of the evidence in its totality, I do not find any con crete evidence about the occurrence except PW1. Other witnesses, as discussed ab ove, narrated the incident on the basis of the information gathered from PW1. 17. It is a fact that in different judgments Hon’ble Apex Court has made cle ar that in the case of ’rape’ conviction can be awarded solely on the basis of p rosecutrix evidence. But at the same time, Supreme Court also reminds us to rema in cautious and alert whether prosecutrix evidence is trust worthy and reliable. To believe safely evidence must be trustworthy. As I have discussed already abo From the evidence of PW5 also nothing came to light about offence. He ha Similarly, PW6 also deposed in the same manner. Similarly, PW7 & 8 also ve, the evidence of PW1 cannot be relied safely as per my understanding because PW1 has failed to explain why only on 30.04.2002 she has filed her complaint bef ore the Chief Judicial Magistrate, Barpeta when the incident occurred on 20.03.2 002. Second question also remains unexplained why no FIR was filed immediately a fter the incident to Police to investigate the matter. Besides that evidence of PW1 & 2, I find contrary as PW1 stated that she is ready to go back to her husba nd, appellant Md. Hikmat Ali; whereas PW2 stated that PW1 is not willing to go b ack to her husband/appellant, Md. Hikmat Ali. Evidence of other PWs, as I have a lready discussed, are not on the basis of their personal knowledge; it were just on mere basis of the version of PW1.Therefore, it cannot be relied upon safely when the version of PW1 itself cannot be relied safely. In this instant case, during the trial, prosecution also did not make an 18. y endeavour to call all those elders of the village who had imposed penalty upon the appellants nor any Darbar proceeding has been placed before the Court of la Court cannot convict a person for mental satisfaction and Court is bound Presumption cannot be drawn on mere imagination or hypothesis. Presumpti w as such, who is right or who is wrong is difficult to say. 19. ed by evidence and law. 20. on can be drawn only on proved facts and circumstances. 21. It is the duty of the prosecution to prove their case beyond doubts, if there is two interpretations, one goes in favour of the prosecution and one is i n favour of the convict. Interpretation which goes in favour of the convict to b e adopted. 22. For the reasons discussed above, I find no sufficient reason to sustain the judgment and order dated 20.12.2003 passed in Sessions Case No.20 of 2003. Rather, I find the whole evidence is creating a bunch of doubts and fail to poin t finger to the appellants and none else. Therefore, impugned judgment and order dated 20.12.2003 in Sessions Case No.20 of 2003 is hereby set aside. Appeal is allowed. 23. Appellant persons are given the benefit of doubt. From the records of Mi sc.Case No.31 of 2004, it appears that appellants/convicts are already in bail. Accordingly it is ordered that they are to discharge from Bond. 24. d of. With this observations and directions, appeal stands allowed and dispose Registry to send back lower court records.