High Court
Case Details
Crl.A. 137/2011 BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY This is a criminal appeal under Section 374(2) of the Code of Criminal Procedure challenging the judgment and order dated 23.06.2011 passed by the learned Addl. Sessions Judge, FTC, Karimganj in Sessions Case No. 47/2010 convicting the accu sed appellant under Section 457/376 IPC and sentencing him to suffer R.I for 1 y ear and to pay a fine of Rs. 500/- in default to suffer R.I for 2 months more u nder Section 457 IPC and R.I for 5 years with a fine of Rs. 1,000/- in default t o suffer R.I for 6 months under Section 376 IPC. Both these sentences were direc ted to run concurrently and a period already suffered was ordered to be set off. The appeal was admitted on 29.08.2011. After hearing Mr. P. Mahanta, lea 2. rned counsel for the appellant, the appeal was admitted. It appears subsequently none of the learned counsel appeared in this case even after the matter was lis ted for hearing since there was no representation from the side of the appellant . On 14.11.2013 one Mr. S. Islam, advocate was appointed as Amicus Curiae to ass ist the Court. Thereafter on two subsequent dates said Amicus Curiae also did no t appear and accordingly, the case was adjourned. Today when the matter has been called up for hearing neither the engaged counsel put up his appearance nor did the amicus curiae was available. Under such circumstances Mr. P.P. Dutta, learn ed counsel who was present in the Court was requested to appear in the case as A micus Curiae. Learned counsel readily agreed to appear in this case and accordin gly the case record was handed over to him, which he perused and then made submi ssion. He has drawn my attention to the evidence as well as other materials avai lable on record. 3. Prosecution story is that on 02.06.2010 when the husband of the victim w as not at home, the accused made lurking house trespass into her house on 01.06. 2010 at about 12.00/12.30 at night. At that time she was sleeping with her child ren. The accused opened the door from outside and came in with a dao in his hand . The victim woke up hearing the sound and tried to raise alarm, the accused sho wed her dao and threatened her to kill if she made any noise. Thereafter, the ac cused committed rape on her against her will by threatening and brandishing dao. On her sound, her 16 years old girl Musstt. Jibunnessa (PW-2) woke up and found the accused sitting on the floor near her mother. Allegedly, he threatened her with the dao and after sometime he left the room. On the following day, the info rmant informed two others and then filed an ejahar with Karimgang P.S. Case No. 268/2010 under Sections 457/376 IPC. Police after investigation, submitted the c harge-sheet against the appellant under Sections 457/376/511 IPC. The learned Ad dl. Sessions Judge to whose the case was committed framed as many as two charges and the same are as below:-
Legal Reasoning
(cid:28)Firstly, that you on 01.06.2010 at about 12.00 P.M. at night at village- Bagarsangan, under Karimganj police station committed lurking house tr espass by night by entering into the dwelling house of the informant Safna Begum after the hour of sunset and before the hour of sunrise in order to commit rape on her and thereby committed an offence punishable under Section 457 of the Ind ian Penal Code and within my cognizance. In course of trial, the prosecution examined as many as 8 witnesses incl Secondly, that you on or about the same date, time and place com mitted rape on the informant Safna Begum and thereby committed an offence punish able under Section 376 of the IPC and within my cognizance. (cid:29) 4. uding the I/O and M.O. while defence examined none. 5. The victim examined herself as PW-1 and in course of her deposition she vividly described the incident. She stated that she woke up hearing some sound a nd found that the accused had entered into the room by opening the door from out side and he was possessing a dao in his hand. He had threatened her with dao and then fell her on the ground and committed rape on her. Thereafter he further th reatened her that if she disclosed it to anybody then there would be dire conseq uences. At such sound, her daughter woke up and she also saw the accused person. The victim further stated that she narrated the incident to her neighbourers, N izam, Abul Hasan and Nimar Ali on the following morning. On the following mornin g she filed an ejahar, EX-1. Ex-1 was her signature. In course of the cross-exam ination it came out that the victim was the mother of five children and the accu sed is none other than the first cousin of her husband. And the accused is also a next door neighbour. She further stated that about 10/15 days before the incid ent, her husband was arrested by police in connection with a theft case and he w as in Hazot. She stated that there were two rooms in their house and the walls are made of bamboo although the door was made of wood but it can be opened from outside. She said that initially for about 5/7 minutes she tried to resist the a ccused but the accused forcibly committed rape on her by threatening to kill her . She stated that in the processes there was bleeding injuries over her private parts and that her garments were seized by police. She further disclosed in cour se of cross-examination that she had earlier lodged an ejahar against the brothe r of the accused and the said brother of the accused, namely, Jalal Uddin had al so filed a case against her husband which was pending trial at that time. She de nied that the case was filed for the enmity with the accused. 6. PW-2 Musstt. Jibunnessa, stated that on the night of occurrence at aroun d 12.00-12.30 P.M she woke up hearing the sound from the mouth of her mother and saw the accused sitting near her mother with a dao in his hand. The accused tol d her not to raise any sound and after some time he went out. In course of her cross-examination she said that when she called her mother after waking up initi ally, she did not give any reply, rather her mother asked her not to raise any a larm lest the accused would cut her. She further disclosed that at the time of o ccurrence there was a kerosene lamp burning in the room. She said that she did n ot raise any alarm. She denied the suggestion that the case has been falsely lod ged against the accused because of previous enmity. 7. Nimar Ali was examined as PW-3 and he disclosed in his evidence that on the following day after the occurrence was held, the victim had told her that th e accused gave her threat and nothing else was disclosed to him. At this stage, he was declared hostile and prosecution cross-examined him. He denied that he ha d stated before police about the disclosure by victim/informant as to commission of rape on her by the accused person. He denied that the accused person being h is nephew as well as husband of her niece he was trying to save her. In course o f cross-examination by the accused, PW-3 stated that rather the victim told him about giving of threat by the accused in regard to plucking mangoes from the tre e. 8. Abul Hussain, PW-4 is the neighbour of both the parties. He disclosed in course of evidence that on the following morning after the occurrence, the vict im went to his house but did not disclose anything about the commission of rape on her. This witness was also declared hostile at this stage and cross-examined by the prosecution. He also denied to have made any statement before the police that victim had disclosed to him about the commission of rape on her by the accu sed. He also denied to have told the lie to save the accused person. In course o f examination by the defence side, PW-4 stated that he and the accused belong to the same clan and that the victim had stated that the accused had threatened he r on the previous night regarding plucking of mangoes. 9. PW-5 is Abdul Gani, who is the elder brother of the victim’s husband. He denied to have been informed about commission of rape by the accused on her sis ter-in-law. This witness was declared hostile and then cross-examined by the pro secution. In course of cross-examination by the prosecution, PW-5 denied to have made statement before police that he had come to know about the rape on the fol lowing day after the occurrence and that he was trying to save the accused. He d isclosed in course of examination by the defence that he lived in the adjacent e ach house to the place of occurrence. 10. PW-6 is the doctor, who stated in course of deposition that there was no mark of violence on the person of the victim, that there was no sign of molest ation on her person and it was not possible to come to a finding as to whether she was subjected to rape or not. It is to be noted that the victim was not take n to doctor immediately after the incident. 11. PW-7 is another neighbour who stated in course of evidence that on the f ollowing day after the occurrence, the victim had asked him to come to her house and showed the broken fencing over the door by which the accused had entered in to her house and had committed rape on her by giving threat. In course of examin ation, the defence failed to find out any loophole in his statement in regard to disclosure about the rape of the victim immediately on the following morning of occurrence. This witness totally corroborated the version of PW-1 and PW-3. 12. PW-8 is the Investigating Officer who stated that he visited the place o f occurrence. After registration of the case, he prepared the sketch map which i s Ex-3 and recorded the statement of the witnesses. He claimed to have the victi m medically examined and arrested the accused. In course of his deposition, he q uoted the statement of Nimar Ali (PW-3) and Abul Hasan (PW-4) whereby they had d isclosed before the police that the victim had informed them about rape by the a ccused on the previous night. Although, defence thoroughly cross-examined him bu t nothing could be elicited from him to show that the statements of PW- 3 and PW -4 recorded by him under Section 161 Cr.PC and quoted in his evidence was fabric ated. After completion of the evidence by 8 witnesses, the accused was examined under Section 313 Cr.PC. when all the aforesaid materials were placed before him asking for his explanation. He said nothing in reply except denying the evidenc e by one line statement. Thereafter, the learned Addl. Sessions Judge heard the arguments of both sides and on perusal of the materials on record, passed judgme nt on 23.06.2011 holding the accused appellant guilty under Sections 457/376 IPC and sentencing him as stated above. It is against this judgment of conviction the present appeal has been pr
Legal Reasoning
13. eferred. 14. The learned Amicus Curiae submits that the prosecution failed to prove b eyond reasonable doubt that there was any rape at all as against the victim. Onl y evidence that could be established by the prosecution was that the accused had entered into the house and that he was sitting nearby the victim with a dao in his hand. The learned counsel further submitted that there was no injury on the person of the victim, despite her specific claim of sustaining injury in course of her examination in chief and that reasonable doubt arises as to commission of offence by the accused. The learned counsel also argues that failure on the par t of the victim to raise any sound of alarm and rather restraining her daughter, PW-2 herein, from raising alarm only goes to show that she was a consenting par ty to the incident if at all there was any sexual assault on her. With these arg uments, the learned counsel prayed for setting aside the judgment of conviction and prayed for acquitting the accused appellant. Per-contra, the learned Public Prosecutor, Mr. B.S. Sinha, argues that l 15. aw does not require multiplicity of evidence and that even on the basis of sole testimony of the victim in an offence under Section 376 IPC, an assailant can b e punished. He relied on the case reported on (1996) 2 SCC 389 and stated that c orroboration is not at all required in accepting the evidence of the prosecution if the evidence of prosecutrix is found truthful and acceptable one. The learne d Public Prosecutor stated that PW-8 corroborated the statement of PW-1 in-as-mu ch as these witnesses had stated in course of evidence that immediately on the f ollowing morning he was informed about the commission of rape on her by the accu sed person. Pointing out the evidence laid by PW-3 and PW-4, the learned Public Prosecutor would argue that both these witnesses are closely related to the accu sed. While PW-3 is the uncle and PW-4 is the uncle as well as uncle-in-law of th e accused and as such he had the anxiety to save the accused. While the Investig ating Officer proved the statement of these two witnesses recorded under Section 161 Cr.PC there was no substantial cross-examination from the side of the defen ce to discredit the I/O on such point. The learned Public Prosecutor fairly argu es that the statement under Section 161 Cr.P.C. may not be evidence but it can b e used for the purpose of contradicting the witnesses. Here in this case on the basis of the statement of PW-3 and PW-4 recorded under Section 161 Cr.P.C. attem pt was made to discredit the said witnesses after they were declared hostile. Re ading out the examination in chief of PW- 1 learned Public Prosecutor argues tha t the very description given by the prosecutrix is natural and believable one. Hardly 10/15 days ago her husband was taken into custody on the charge of commit ting theft and that she was living alone in her home with minor children and wit h a grown up girl of 16 years. In such vulnerable period of her life, the accuse d made his forceful entry into the house with a sharp weapon in his hand and gav e her threat of life. There was nothing unnatural on her part to yield under suc h circumstances and as such there was no wonder for not getting any mark of inju ry on her person. Pointing out to the evidence led by PW-2, the learned Public Prosecutor would argue that she had seen the accused inside the house at that ni ght with a dao in his hand. No one would enter into a neighbours house with a da o with any good intention and so the evidence of the PW-1 has been substantially corroborated by PW-2 in so far as the wrongful entry of the accused into the be d room of the victim is concerned. With these arguments the learned Public Prose cutor submitted that there was no infirmity in the judgment of the learned Trial Court in convicting the appellant and as such there is no scope for interferenc e in as much as the defence led no evidence to enable this Court to hold an opin ion that PW- 1 and PW-2 have told lies. 16. After hearing the learned counsel for the parties and on perusal of the materials on record it appears that the submissions made by the learned Public P rosecutor was force. PW-1 vividly described as to how the accused had made entry into her house at night with a dao in his hand. PW-2 saw him near his mother wi th a dao in his hand. The accused not only threatened PW-1 but also caused thre at to PW-2. This witness stated that she woke up from the sleep only after heari ng the sound from the mouth of her mother. This shows that the victim was growli ng. So there is not even a slightest chance of her a consenting party. In such c ircumstances on the face of the evidence led by the prosecution it is clear tha t the prosecution has proved the case beyond all reasonable doubt as to commissi on of rape on the victim. There being no evidence to come to a finding that PW-1 is not a truthful witness, there is no scope to disbelieve PW-1. Moreover, PW-2 and PW-8 have substantially corroborated the statement of PW-1. It is true that in a heinous offence like rape it is not possible to get eye witness and court has to rely on circumstantial evidence for the purpose of getting corroboration of the statement made by the prosecutrix. Under such circumstances, I do not fin d any merit in this appeal. 17. 18. Hence, the appeal is dismissed. Judgment of conviction and sentence passed by the learned Trial Court is upheld. 19. 20. Send down the records to the Trial Court. Registry shall communicate this order to the learned Magistrate. 21. Before parting, I like to keep on record the valuable assistance rendere d by Sri P.P. Dutta, advocate as Amicus Curiae. He shall be entitled to keep sum fee of Rs. 5,000/-.