High Court
Case Details
Crl.A. 216/2011 BEFORE HON’BLE MR. JUSTICE A.K.GOSWAMI This appeal is directed against the judgment dated 1/10/11 passed by the learned Assistant Sessions Judge, Dhubri in Sessions case No.75/09 convicting the appel lant under Section 376 IPC and sentencing him to suffer rigorous imprisonment fo r 7 years and to pay a fine of Rs.5,000/- in default, to suffer rigorous impriso nment for 3 months. 2. B.J. Dutta, learned Addl.P.P. Assam. I have heard Mr. S.C. Biswas, learned counsel for the appellant and Mr. 3.
Legal Reasoning
The prosecution case, in brief, is that on 24/5/07, an ejahar was lodged by one Opial Haque, son of Soban Ali, before the Bondihana Out Post stating tha t his sister, hereinafter referred to as ’X’, is a physically challenged person, being a lame person and she cannot go out of the house. On 14/4/07, while the i nformant and the mother of the informant had gone out of the house for their wor k by leaving X in the house, the accused No.1, namely, Opial Haque, son of Amira Shiekh, taking advantage of the absence of the informant and the mother of the informant, trespassed into the house at around 11.AM and against the will of ’X’ , forcefully started having intercourse with her. ’X’ started shouting and witne ssess No.2 and 3, namely, Ahiman Bewa, mother of the informant as well as ’X’ an d one Syeeda Bewa reached the place of occurance and witnessed the incident. See ing the witnesses, the accused fled away by a separate door. A village ’Vichar’ was called in which accused No.1 admitted to having intercourse with ’X’ but lat er on, at the ill advice of the other accused persons, namely, Amira Shiekh and Mohidur Rahman, he fled away. The ’Vichar’ of the villagers was not accepted by the accused. Delay was caused in filing ejahar because of the aforesaid. 4. On receipt of the ejahar, GD entry No.353 was registered and subsequentl y based on the said GD entry, South Salmara P.S. 109/07 under Section 376/109 IP C was registered. 5. Police started investigation and on completion of the investigation ,cha rge-sheet was submitted against only Opail Haque son of Amira Shiekh. On appeara nce of the accused person, the case being exclusively triable by the Court of Se ssions, the case was committed to the learned Court of Sessions Judge wherein Se ssions case No.75/09 was registered. After hearing the parties and on perusal of the materials on record, charge under Section 376 IPC against the accused perso n who pleaded not guilty and claimed to be tried. 6. During trial, the prosecution examined 7 witnesesses and defence adduced no evidence. The defence plea was of denial. 7. PW 1 Ahiman Bewa is the mother of ’X’, who deposed that accused was a ne ighbour. She was working in a garden near her residence and the incident took pl ace at around 10 AM. While she was working in the garden, she heard shouts of Sy eeda Khatun (PW2) from near about the tube well near her house and she came runn ing to her residence and saw the accused running away from her residence. On ask ing Syeeda, she told her that she had caught hold of the accused but he ran away . Syeeda further told her that the accused was committing rape on her daughter. On being asked, her daughter also informed her that the accused had outraged her modesty. On that very day, a village ’Vichar’ was called. However, the accused did not attend the ’Vichar’. She further stated that one lower limb of her daugh ter was totally not functional and she cannot walk about and she was about 18 ye ars old. In cross-examination, she had denied the suggestion that she did not tell the po lice about Syeeda Khatun shouting from her near about the tube well and that she had seen the accused running away and that her daughter had told her that the a ccused had outraged her modesty. It is stated by her that distance between her h ouse and Syeeda Khatun PW 2 could be about ’100 Hat’ and that there were no othe r house in between. She also stated that the accused belong to a rich family and his father has vast tracts of agricultural land. 8. PW 2, neighbour of PW1, stated that ’X’ is physically challenged and she cannot walk and she moves about on a sitting posture. She deposed that on the f ateful day at around 9 to 10 AM she had gone to the tube well near the house of PW1 for drawing water. The accused went inside the house of PW 3 and asked for a glass of water. She started screaming inside the house and she also went inside the house and saw that the accused was having intercourse with ’X’ in the bed. Seeing her, the accused ran away. She also screamed and mother of ’X’ who was wo rking in a nearby field also came running. She told her about the incident. Late r on, the informant also came and he was also informed about the incident. A ’Vi char’ was called but nobody turned up from the side of the accused of the ’Vicha r’. Subsequently, there was another ’Vichar’ but the accused party did not parti cipate. ’Vichar’ was held for third time and on that occasion, the accused and h is parents came and the accused had admitted the incident but parents of the acc used did not accept the ’Vichar’. In her cross-examination, she had denied the suggestion that vichar was held on 3 occassions and that she did not see the accused having intercourse with ’X’ in the bed and that the accused had run away from a different door. She stated tha t water pump for sprinkling water in the field was running at that point of time and resultantly it was difficult to hear conversation. Therefore, she could not hear the sound distinctly. 9. The evidence of the victim ’X’ was recorded in camera as PW 3. She state d that at the time of occurance she was about 21 years old. The incident had tak en place around 11.AM and she was working in the kitchen at that time. There was nobody at home. She was an invalid person from birth and cannot walk properly. The accused had started the water pump and then he came inside the house and enq uired about her brother and mother. She informed that her mother had gone out fo r collection of fire wood and brother had gone for labour work. The accused aske d her for a glass of water and as she was preparing to pour glass of water from the pticher, the accused lifted her and took her to the bed of her brother which was in the kitchen. The accused raped her once and as she created ’hulla’, PW2 came and the accused ran away through another door. She stated that PW2 witness ed the occurrence and her mother had also reached the place of occurance. PW2 a nd she informed about the incident to her mother and the brother was also inform ed in the afternoon. The brother called a village ’Vichar’. The ’Vichar’ was cal led for 2/3 days but the accused person did not come. In her cross-examination, she denied the suggestion that she had not told the po lice about the accused committing rape on her. She also denied the suggestion th at she had not said in her Section 164 Cr.PC statement that Syeeda Khatun (PW 2) had come there upon hearing her ’hulla’. She also denied the suggestion that sh e had not informed about the incident to her mother and brother. She stated that at the time of sexual intercourse, she had kept her hand in the bed but did not resist. She also denied the suggestion that there was only one door in the kitc hen. PW 4 is the husband of PW2. He stated that after his wife had gone for f 10. etching water from the tube well, he had also gone to the tube well and hearing ’hulla’ in the house of PW3, as he was about to go towards the direction, he saw the accused running away from the house. He also went inside the house and foun d that she was lying on the floor and crying and told him that the accused perso n on the pretext having a glass of water forcefully committed intercourse with h er on the floor. His wife also informed him that she had witnessed the accused c ommitting rape on ’X’. In cross-examination, he stated that he had not witnessed the occurrence. He was a teacher and the victim was not related to him. 11. PW 5 is the informant and he stated that when he came to his residence a t around 1.00 O’clock, his sister informed him that the accused, by asking for a glass of water had committed rape on her. PW 2 also informed that she had witne ssed the accused having sexual intercourse with her and she also informed the sa me to him. He informed the ’Matabbar’ Ahumuddin Hazi about the incident who then called the ’Vichar’. On 3 occassions, the accused did not come but on the fourt h time the accused came and admitted the incident but his parents did not accept the ’Vichar’. 12. PW 6 is the Doctor who examined PW3. From the clinical radiological repo rt and laboratory investigation, he stated that it could not be ascertained as t o whether she had been raped or not. He also stated that the person examined was above 18 years of age. PW6 was not cross-examined. 13. PW7 is the Investigating Officer of the case who proved Ext.5 sketch Map as Ext.5 statement of the victim girl under Section 164, Cr.PC as Ext.6 and the charge-sheet as Ext.7. His cross-examination is as follows:- (cid:28)It is not a fact that I did not visit the P.O. Date of occurrence is 14 /4/07. Ejahar was filed on 26/5/07. Ejahar was filed before S.P. Dhubri. From th e P.O, the out post is nearer. The thumb impression in Ext. 6 is not identified. It is not a fact that I did not investigate the case properly. It is not that I did not examine proper witnessess. (cid:29) In her statement under Section 164 Cr.PC recorded on 4/6/07, the victim 14. stated that the accused had come in the afternoon and had enquired about her mot her and brother. When told that they were not at home, he asked her to give him a glass of water and as she was about to give him a glass of water, the accused grasped her from behind and pushed her on the floor and raped her. She shouted f or help and as she is a handicapped person, she could not run away from him. Hea ring her cries, PW2 and PW4 had come to her house. She stated that they saw the accused committing rape on her and that when they saw them, he ran away from the place of occurrence.
Legal Reasoning
15. Mr. S.C. Biswas, learned counsel appearing for the appellant submits tha t in the Section 164 Cr.PC statement, PW3 had stated that the occurrence had tak en place in the afternoon while during deposition in the Court, the witness had stated that the incident took place in the morning at about 10 to 11 AM. While i n the Section 164 Cr.PC statement it is stated that PW4 had also witnessed the i ncident, PW 4 did not say that he had witnessed the event. He has also pointed o ut that there is also great variance as to whether the alleged rape had taken pl ace in the bed or in the floor. It is also urged by him that it has come out in the evidence of PW 3 that she did not try to resist when the accused started hav ing intercourse with her. According to him, the prosecution miserably failed to prove the guilt of the accused beyond reasonable doubt and if at all there was a ny sexual intercourse, that was consensual. It is also pointed out by him that t here is no consistency in the evidence with regard to holding of ’Vchar’ and hav ing regard to the fact that ejahar was lodged about more than a month later, the prosecution case is vitiated. He submits that in view of the gross contradictio n in the evidence of the witnessess of the prosecution, the appellant is entitle d to an accquital. He also submits that because of gross inconsistency in the ev idence of PW3 and her statement under Section 164 Cr.PC, no conviction can be su stained on the basis of the testimony of PW3 alone. 16. Mr. B.J. Dutta, learned Addl. P.P. Assam, on the other hand, submits tha t the evidence of PW3 is not impeached in any manner and conviction can be suata ined on the basis of her evidence. Apart from that there is also the evidence of PW2 who is a eye witness to the occurance. He submits that no interference is c alled for with the impugned judgment. 17. I have heard the learned counsel for the parties and have also perused the materials on record. 18. That PW3 is a physically challenged person and unable to walk properly i s an admitted position going by her cross-examination. It is also apparent from the evidence on record that PW 3 and the accused are known to each other being o f the same locality. The evidence of PW 3 is categorical that as she had prepare d to give a glass of water to the accused, the accused lifted her and by puttin g her in the bed of her brother sexually assaulted her. She started screaming an d hearing her scream, PW 2 came and PW 2 had witnessed the incident. She had als o deposed in her evidence that the motor pump was on when the accused had come i nside her house. There is no cross-examination of Investigating Officer with reg ard to the suggestion given to PW 3. Evidence of PW 2 is also to the effect that when the water pump is switched on, it gives out noise and because of running o f the said machine, she had also not heard the ’hulla’ fully. PW 2 is also categ orical that hearing some ’hulla’ she came inside the house and saw the accused c ommitting sexual assault. The evidence of PW 2 has also remained unshaken. The a ccused had confirmed that there was nobody in the house. He knew that the victim would not be able to run away from his clutches. He had also switched on the ma chine so that if the victim girl shouted, the same will be drowned by noise crea ted by the machine. However, PW2, who was present near the tube well realised so mething was amiss in the house of PW 3 and she ran inside the house and saw the accused committing sexual assault. PW 4, husband of PW 2 stated that he had not witnessed the occurrence though reached the place of occurrence on hearing shout s of PW 2. PW 2 and PW 4 belong to the same village and the defence has not been able to show that there are partisan witnesses in any manner. In evidence, PW 2 did not say that PW 4 had witnessed the incident though she had stated so in he r statement under Section 164 Cr.PC. As held in Ram Kishan Singh vrs Harmeet Ka ul, reported in (1972) 3 SCC 280, a statement under Section 164 Cr.PC is not sub stantive evidence and can be utilised only to corroborate or contradict the witn ess vis-à-vis statement made in the Court. In other words, it can be utilized on ly as a previous statement and nothing more. It was quite plausible that because of proximity of time of arriving at the place of occurrence, it may have been p resumed by PW 3 that PW 4 had also witnessed the occurrence. Such a contradictio n is of no moment and significance. The evidence by these 2 witnesses cannot be disbelieved as their evidence had not been impeached in any manner. Even if ther e are some discrepancies with regard to time, the same cannot have a vitiating f actor nullifying the prosecutor case altogether. Bed as referred to may be a bed on the floor which was in the kitchen. Kitchen was having a wall of jute. There fore, these minor contradictions cannot have any bearing. 19. The evidence on record shows that accused belongs to a rich family. Havi ng regard to strata to which the PW 3 belonged to, it is not unusual or unnatura l for her to bring the matter to the notice of the villagers and also to hold a ’Vichar’. Delay in lodging ejahar in all cases do not vitiate the prosecution ca se. In view of the evidence of PW 3 which has not been discredited and impeached in any manner, corroborated by the evidence of PW 2, this Court is of the consi dered opinion that the prosecution case could not be discarded on the ground of delay in lodging the ejahar. 20. In view of the discussions aforesaid, I find no merit in this appeal and accordingly, the same is dismissed. 21. Send back the records.