High Court
Case Details
Crl.A. 101/2010 BEFORE THE HON’BLE MR. JUSTICE S C DAS JUDGMENT & ORDER(ORAL) This Criminal Appeal under Section 374 of Cr.P.C. is directed ag ainst the judgment dated 10.05.2010 passed by learned Sessions Judge, Hailakandi , in Sessions Case No. 77 of 2006 whereby the accused appellant Sarif Uddin Las kar was found guilty of committing offence punishable under Sections 448 and 376 of IPC and sentenced him to suffer R.I. for 10 years and to pay a fine of Rs.50 00/-, in default of payment of fine, to suffer further imprisonment for 6(six) m onths under Section 376 of IPC and again he was convicted and sentenced to suffe r S.I. for 6(six) months under Section 448 of IPC. The sentences were directed t o run concurrently. 2.
Legal Reasoning
Heard learned counsel, Mr. I.H. Barabhuiya for the appellant and learned Additional P.P. Mrs. A. Begam for the State respondent. Facts of the case for the purpose of disposal of this appeal, ma 3. y be summerised thus:- 3.1 One Abidur Rahaman Laskar filed a complaint in writing before Ch ief Judicial Magistrate, Hailakandi on 13.04.2006 alleging inter alia, that his younger sister, the victim/prosecutrix, (cid:28)Roshenara (cid:29)(actual name kept concealed), while she used to be on the way to her Madrasa School and back, often was annoy ed by uttering filthy and unusual words by the accused Sarif Uddin for which the complainant, his parents and his sister approached father of the accused to whi ch he assured the complainant that the accused would be restrained from doing so in future. 3.2 On 28.02.2006 at about 4 p.m. Roshenara returned home from her s chool and she was alone while her mother was away and at that time, accused with a sharp cutting weapon in his hand trespassed in the house of the complainant, entered into the room of Roshenara and committed rape on her. Because of the thr eat exposed by the accused, she could not raise any alarm and after committing r ape, the accused went away. When parents of the complainant returned home, Roshe nara disclosed the incident to them and thereafter the victim girl along with he r parents and the complainant together went to the house of the accused and info rmed the entire incident to the father of the accused and at that time, besides accused Sarif Uddin, other accused persons namely Amir Uddin Laskar and Ziab Udd in Laskar assaulted them and therefore, they returned home. Thereafter, they wen t to Lala Police Station and reported the incident to the Police officer on duty who, at once sent his sister, the victim Roshenara for a medical examination. A fter a few days police personnel called father of the complainant and obtained s ignature in some white paper but no action was taken on the basis of complaint l odged by them with the P.S. on 28.02.2006. The matter was reported to the villag e elders and a village meeting was called on 29.03.2006 and the incident was dis cussed in the village meeting where signatures of all concerned who attended the meeting were taken including that of the accused persons and the witnesses i.e. the victim girl and her parents and the complainant were obtained and all left the meeting place. Accordingly, the complainant prayed for justice. 4. The complaint was accepted by the learned Magistrate and after t aking cognizance in due course, the case was committed to the Court of Sessions since it disclosed an offence triable by the Court of Sessions. 5. In the course of trial, learned Sessions Judge on 20.01.2007 fra med charges against the accused appellant Sarif Uddin Laskar under Sections 448 and 376 of IPC to which the accused pleaded not guilty and claimed to be tried. Charge prepared by the learned Sessions Judge is at page 14 of the L.C. records but it does not contain signature of the accused. The rest two accused persons n amed in the complaint i.e. Amiruddin Laskar and Jiabuddin Barbhuiya were dischar ged. To prove the charge, prosecution examined 4(four) witnesses name 6. ly P.W.1, Abdul Mannaf Laskar, father of the prosecutrix, P.W.2, the victim pros ecutrix(Roshenara); P.W.3 Abidur Rahaman, brother of the victim prosecutrix who is the complainant of the case and P.W.4 Anowarun Necha, mother of the victim pr osecutrix. After closure of the prosecution evidence, accused was examined 7. under Section 313, Cr.P.C. and thereafter on behalf of the defence, 3(three) wit nesses were examined namely D.W.1, Dr. Jahidul Islam who examined the victim pro secutrix on 28.02.2006 i.e. on the date of alleged occurrence itself. D.W.2 Sri Ajit Chakraborty, a Sub Inspector of Police of Lala Police Station who has prove d Exbt.D, a report submitted on the alleged complaint dated 28.02.2006 and D.W.3 Abdul Azim, a relative of both the accused and the prosecutrix. At the instance of learned Sessions Judge, three more witnesses 8. were examined as Court witnesses namely C.W.1 Basarat Ali Laskar, C.W.2 Abdul Ha kim Laskar and C.W.3 Amir Uddin Laskar who was named as accused in the complaint . Defence case is that the allegation made by the complainant and 9. the evidence adduced by Roshenara is totally false. It is submitted by learned c ounsel, Mr. Barabhuiya that except the prosecutrix, her parents and brother i.e. the complainant, who were the prosecution witnesses (P.Ws 1 to 4), there is no other iota of evidence to support the allegation made by the prosecutrix. He has also submitted that the incident as alleged, occurred on 28.02.2006 but no FIR was lodged on that day. On the contrary, Exbt.D i.e. report sent by the O.C. of Lala P.S. to the Court of Chief Judicial Magistrate, shows that an oral complain t was made by (PW.1) Abdul Mannaf Laskar (father of the prosecutrix) that his da ughter, the prosecutrix was assaulted by his brother Sarif Uddin and on that rep ort, a G.D. entry was made and the victim girl, the prosecutrix was examined med ically. Exbt.A shows that she was medically examined by D.W.1, Dr. J. Islam on 2 8.02.2006 and there was nothing reported that she was raped by accused Sorif Udd in on that day. The present complaint was filed on 13.04.2006 i.e. one and half months after the occurrence and that was even not investigated by police and the evidence of D.Ws 1,2 and 3 rather belied the total prosecution case. He has als o contended that CWs 1 and 2 supported the defence case that there was a comprom ise between the parties on 29.03.2006 holding that because of the misunderstandi ng, the complaint was lodged to which CWs 1 and 2 were witnesses and CW 3 was na med as accused in the complaint petition and therefore, his evidence should be t otally discarded. Learned counsel, further submitted that the evidence of DW 3 c learly makes out a story that the victim prosecutrix is not at all reliable and she has hatched a false complaint against the accused appellant. 10. Learned Addl. P.P., Mrs. A. Begam with all her fairness referrin g to the deposition of P.W.2, the victim prosecutrix, has submitted that if her evidence is believed in toto, and if it inspire confidence, the conviction and s entence may be maintained. She has however admitted that her(victim) statement i s not supported by medical evidence and/or any other evidence of independent sou rce but her parents and elder brother i.e. P.Ws 1,3 and 4 supported her case and under such circumstances while the trial Court accepted the evidence of the pro secutrix, supported by her brother and parents this Court, may like to maintain the judgment and order of conviction and sentence. 11. The accused appellant, the victim prosecutrix, the prosecution w itnesses, D.W.3 and all the three Court witnesses are residents of same neighbou rhood. It is evident that the accused is related a paternal uncle of the prosecu trix. 12. According to the prosecution, the incident occurred on 28.02.200 6 at about 4-00 p.m. in the house of the complainant i.e. the house of the victi m prosecutrix when she was alone in the house. She just returned from her school and was changing her clothes and according to her, at that time, the accused ar med with a sharp weapon trespassed in the hut and forcefully committed rape on h er. She could not raise any alarm at the time of rape, as the accused gagged her mouth. When her parents came, she reported the incident to her parents and ther eafter with her parents the prosecutrix along with her brother, the complainant, went to the house of the accused and reported the incident to the father of the accused and at that time Amir Uddin Laskar and Ziab Uddin Laskar had assaulted them. Those Amir Uddin and Ziab Uddin had also been arrayed as accused in the co mplaint petition but they were discharged. Amir Uddin was later examined as CW 3 . Since he was an accused as named in the complaint, his evidence as a Court wit ness deserves no consideration. Learned Sessions Judge wrongly and illegally tak en into account the evidence of CW-3 Amir Uddin Laskar though he was an accused in the case. Except the corroborating statement of PWs 1,3 and 4 i.e. the father , brother and mother of the prosecutrix, none else is in support of the prosecut ion case that the prosecutrix was raped by the accused on 28.02.2006 at 4-00 P.M . in her house. Exbt.D is a report submitted by O.C. of Lala P.S. which makes it abundantly clear that on 28.02.2006 at about 8-30 p.m. P.W.1, father of the pro secutrix went to the P.S. along with the prosecutrix and reported that Sarif Udd in Laskar (accused), a brother of P.W.1, assaulted the proseuctrix. Had there be en an allegation of rape made before the police on that day, there would have be en no reason for the police officer in not registering the case. D.W.2 has prove d Exbt.D, the report sent by the O.C. and I find nothing incriminating in the ev idence of D.W.2 to support the prosecution case rather it seems that on 28.02.20 06 P.W.1 along with his daughter simply reported about an assault on the prosecu trix. The evidence of D.W.1 i.e. Dr. J. Islam further strengthened the defence c ase that on 28.02.2006 he examined the prosecutrix on a requisition from Lala P. S. and on his examination, the prosecutrix complained of pain in right deltoid, pain in right zigomatic area and pain in right blauked area. The injuries were s imple and fresh and caused by blunt object. Exbt.F is a compromise letter signed by CW 1 and 2 and D.W.3 as well as the accused and others including the father of the prosecutrix. In Exbt.F, it was stated that there was a misunderstanding b etween the parties on 28.03.2006 at 5 p.m. because of quarrel and therefore, a c omplaint was made in the P.S. which was compromised. DW 3 stated that in the nam e of going school the prosecutrix used to actually loiter elsewhere and she used to go to Hailakandhi town and on the date of alleged occurrence, at about 4/5 p .m. when she returned home from outside, at that time, her family members rebuke d her in presence of all and advised her not to loiter in that way since it will defame the family. Thereafter, a village ’Bichar Sabha’ was held where father o f the prosecutrix and other elders were present. In that ’Bichar Sabha’ father o f the prosecutrix reported that an FIR was lodged with the O.C. of Lala P.S. for rebuking and assaulting her daughter and that it was compromised. The incident occurred on 28.02.2006. The prosecutrix with her fa 13. ther attended Lala P.S. on that day but reported nothing about rape. On that day itself she was examined by D.W.1 in the Civil Hospital and nothing was reported about rape. Under such circumstances, a complaint filed after about one and hal f months alleging rape on the prosecutrix and supported by her parents and broth er only do not inspire confidence at all to record a conviction and sentence und er Section 376 of IPC. It is permissible in recording a conviction under Section 376 of IPC, if the evidence of the victim prosecutrix inspires confidence, if s he is found worthy and credible and at least supported by surrounding circumstan ces. Delay in lodging the complaint may be ignored in a given facts and circumst ances of a case but where it is clearly brought on record that at the inception the prosecutrix and her family members attended the P.S. but nothing was disclos ed to police about any such rape, a subsequent complaint after a considerable pe riod of time definitely will raise a serious confusion in the mind of the Court and before recording a conviction, the Court must look for some independent ite m of evidence corroborating the version of the prosecutrix. Even the Doctor who examined the prosecutrix on 28.02.06 in the hospital stated that the prosecutrix did not complain of any rape of her. 14. In the present case, there is nothing on record, rather, the evi dence of the Court witness Nos.1 and 2 and the evidence of the defence witness b elied the prosecution case. The judgment and order of conviction and sentence re corded by learned Sessions Judge, in my considered opinion, is not based on any cogent evidence on record except that of the fractured statement of the prosecut rix. The accused appellant, therefore, is entitled to get benefit of doubt.
Decision
Accordingly, the appeal is allowed. 15. 16. The judgment and order of conviction and sentence passed by lear ned Sessions Judge, Hailakandi, dated 10.05.2010, in Sessions Trial No.77 of 200 6, is set aside. 17. ce. 18. The accused appellant, if is in custody, be set at liberty at on Send back the L.C. records along with a copy of this judgment.