High Court
Case Details
Crl.A. 240/2007 BEFORE HON’BLE MR. JUSTICE S.C. DAS This criminal appeal under Section 374 OF CrPC is directed against the j udgment and order of conviction and sentence, dated 29.09.2007, passed by learne d Sessions Judge, Hailakandi, in case No.62 of 2006, whereunder learned Sessions Judge found the accused appellant, Md. Jakir Hussain alias Jakir Hussain Laskar and Md. Rehan Uddin alias Kuki guilty of committing offence punishable under Se ction 366 read with Section 34 of IPC and sentenced both the accused appellants to suffer RI for three years and to pay a fine of Rs.1,000/-(rupees one thousand ) each, in default of payment of fine to suffer further RI for fifteen days. Lea rned Sessions Judge also found accused, Md. Jakir Hussain, guilty of committing offence punishable under Section 376 of IPC and sentenced him to suffer RI for f ive years and to pay a fine of Rs.2,000/-(rupees two thousand), in default of pa yment of fine, to suffer further RI for one month. Sentences in respect of accused Jakir Hussain were directed to r un concurrently. 2.
Legal Reasoning
Heard learned counsel, Mr. A.M. Barbhuiya for the appellants and learned Addl. P.P., Assam, Mr. B.S. Sinha for the State respondent. Brief Fact: 3. 3.1 Fact of the case, in short, for the purpose of disposal of this criminal appeal is that on 28.07.2003(Monday), at about 11.00 pm(intervening nig ht of 28.07.2003 and 29.07.2003), the victim prosecutrix, (cid:28)Jahanara (cid:29)(actual name kept concealed), went out of her residential hut to urinate in her house premis es and, at that time, the accused persons caught hold her from behind, gagged he r mouth and forcefully took her away from her house and, then took her in the ho use of accused, Jakir Hussain and kept her confined in the room. She was threate ned not to raise any alarm. The accused bolted the door from inside and, thereaf ter, against her will, committed rape on her three/four times on that night. She was a student of Class-V and was aged thirteen years at that time. she requeste d the accused to open the door but the accused declined and, at dawn, she asked the accused to open the door saying that she would go out to urinate and the acc used took her out and after urination she was again taken back in that room and the accused, asking her to wait there on the cot, went out of the room and whisp ered something with her sister and parents and then went away. After sometimes, sister of the accused, namely Sajia Begum, entered into the room and assaulted (cid:28) Jahanara (cid:29). Thereafter, the parents of the accused, Jakir and her relatives also assaulted her but she was still waiting in that room as there was no scope for h er to go back to her house as she was afraid of being ill treated by her father. Subsequently, she was driven out from the house of the accused Jakir after phys ical assault by him and, then, she went to the house of Gafur Uddin alias Gafur Panchayat and, ultimately, she took shelter in the house of Sonu Miah, brother o f Gafur, in the same house. Mother of (cid:28)Jahanara (cid:29), namely, Kamlarun Nessa(PW2), while woke up 3.2 , found (cid:28)Jahanara (cid:29) missing in the room and she went out on a search but found he r nowhere in the house. She reported her neighbours and also called her husband, who was ill, but on search (cid:28)Jahanara (cid:29) could not be traced out. On the following morning, Noorjan Begum(PW3) went out in the village to find out (cid:28)Jahanara (cid:29) and in course of search she went to the house of accused Jakir and enquired with Saj ia about (cid:28)Jahanara (cid:29) to which Sajia told her(witness) that (cid:28)Jahanara (cid:29) was not the re. While Noorjan was coming back home, some minor boys of the locality, informe d her(witness) that they found the inmates of the house of Jakir Hussain were as saulting (cid:28)Jahanara (cid:29) in the house. Thereafter, she came back home and reported th e incident to Kamlarun, i.e. the mother of the victim girl. 3.3 On 30.07.2003, Kamlarun went to Lala PS and reported the inciden t lodging an FIR in writing narrating the fact and, accordingly, Lala PS Case No .138 of 2003 under Sections 447, 366A, 342, 376, 323 and 34 of IPC was registere d and an investigation was taken up. 3.4 In course of investigation, the victim prosecutrix was forwarded to Hailakandi Civil Hospital for her medical examination and, three medical off icers, namely (i) Dr. P.K. Majumder, (ii) Dr. T.K. Bhattacharjee and (iii) Dr.(M rs.) R. Begum, medically examined the victim girl and her ossification test also was done. It was reported that she was aged between fourteen-fifteen years as o n 30.07.2003. The prosecutrix was also produced before the learned Judicial Magi strate, Hailakandi and her statement was recorded under Section 164 of CrPC. In course of investigation, I.O. examined all material witnesses and recorded their statements under Section 161 of CrPC. I.O. also collected the medical examinati on report, etc. and, thereafter submitted charge sheet against accused, Jakir Hu ssain and Kuki Mia, and prayed for discharging FIR named accused, Sajia Begum. 3.5 Cognizance was taken on the basis of the police report and, ther eafter, in due course, the case was committed to the Court of Sessions for trial against accused, Jakir Hussain and Kuki Mia. 3.6 Learned Sessions Judge, in course of trial on 20.09.2006, framed charges against accused, Jakir Hussain for commission of offence punishable und er Section 376 of IPC and, as against Jakir Hussain and Kuki Mia, under Section 366 read with Section 34 of IPC, to which the accused persons pleaded not guilty and claimed to be tried. 3.7 To prove the charges, prosecution examined six witnesses, namely -PW1, the victim prosecutrix, PW2, Kamlarun Nessa, mother of the prosecutrix, wh o was also the informant of the case, PW3, Noorjan Begum, a neighbour of the inf ormant, PW4, Abdul Gafur, another neighbour and relative of the accused Jakir, w ho was declared hostile by the prosecution, PW5, Dr.(Mrs.) R. Begum, one of the doctors, who conducted medical examination of the prosecutrix and, PW6 was the I .O. of the case. 3.8 Accused persons were examined under Section 313 of CrPC after cl osure of the prosecution evidence and, thereafter, in their turn, they declined to adduce any defence evidence. Defence case so far ascertained from the trend o f cross-examination as well as from the statements of the accused persons made w hile examination under Section 313 of CrPC, is that of bare denial of the prosec ution case and nothing else. At the conclusion of trial, learned Sessions Judge found both th 3.9 e accused persons guilty of the charges framed against them and, accordingly con victed them for the offence and sentenced them as stated hereinbefore. 4. Learned counsel, Mr. Barbhuiya, with all his emphasis, has submi tted that the incident occurred on 27.07.2003 at 11.00 pm, as alleged by the inf ormant and the victim prosecutrix. No FIR was lodged on that night itself, which was quite unnatural for the parents of a minor girl. On 29th also no FIR was lo dged. Only on 30th the FIR was lodged, narrating the fact and the delay has not been explained, so an adverse inference may be drawn. Learned Addl. P.P., Mr. Sinha, on the other hand, has submitted that it is a case of rape on a minor girl. It might happen that because of socia l stigma the parents might have thought twice to inform the police and to make s uch things in public considering the future of such a young girl. Delay in such case is not at all fatal since there is nothing that there was embellishment or afterthought in the prosecution case. 4.1 The second argument advanced by learned counsel, Mr. Barbhuiya, is that the sole evidence of the prosecutrix in the given facts and circumstance s of the case may not be relied on, since it is not supported by the medical evi dence. The medical report in no way supporting that the prosecutrix was raped by the accused, Jakir Hussain. He has also submitted that, according to the statem ent of the prosecutrix, the accused committed rape three/four times on that nigh t, i.e. the night between 28.07.2003 and 29.07.2003. She was medically examined on 30.07.2003. She was an unmarried young girl, aged about 13/14 years, as alleg ed. If she was raped by a young person for three to four times in one night, the re might be some sorts of lacerations in the private parts of the victim, i.e. i n her labia majora and labia minora. In absence of any positive finding by the d octors the sole oral evidence of the prosecutrix should not have been relied on by the learned Sessions Judge for recording a conviction under Section 376 of IP C. Learned Addl. P.P., Mr. Sinha, per contra, has submitted that pe netration or discharge of semen is not necessary to prove rape. If the penis tou ches the vulva, in the process, it amounts to rape. A minor girl of twelve to fo urteen years was taken in the house of the accused and kept her confined in the room and her evidence has not been shaken in any manner and while she stated tha t the accused committed rape on her three/four times, her statement should not b e thrown overboard, unless a reasonable case to the contrary is brought on recor d. It is contended by learned Addl. P.P. that the sole testimony of the prosecut rix, if inspires confidence, is enough to record a conviction for rape. 4.2 Learned counsel, Mr. Barbhuiya has further argued that the victi m prosecutrix, even if believed as a whole, might be a consenting party, who wen t out of her house at her own volition. The story that she was forcefully taken away by the accused persons can in no way be believed since there was no injury on her person and it was humanly not possible without causing any physical injur y to carry a girl away about one kilometer from her house. Under such circumstan ces, the finding of learned Sessions Judge in respect of Section 366 of IPC also cannot be held good and should be interfered. Contrary to the submission of learned counsel, Mr. Barbhuiya, it is submitted by learned Addl. P.P., Mr. Sinha, that two young men can easily ov erpower a minor girl aged about thirteen/fourteen years and she can be easily ta ken away not only one kilometer but far more during night time in a remote villa ge without creating any sorts of hindrance. He has also submitted that the prose cutrix was taken to the police station by her mother from the house of Sonu Mia, the brother of PW4, Abdul Gafur, where she took shelter after she(prosecutrix) was driven out from the house of the accused. Even if it is presumed that the pr osecutrix was enticed away, the accused persons committed the offence of kidnapp ing since she was minor and enticing away of a minor girl without the consent of her legal guardian is an offence punishable by law and, so, the finding of the learned Sessions Judge is absolutely correct and it does not deserve interferenc e. 5. oth side, let us have a glimpse to the evidence on record. 5.1 FIR was lodged on 30.07.2003 narrating the fact wherein it has b een specifically stated that on 28.07.2003, at about 11.00 pm, when the prosecut rix went out of her hut to urinate, she was forcefully kidnapped by the accused, Jakir Hussain and Kuki Mia and was taken to the house of accused, Jakir Hussain , kept her confined in a room and she was raped by the accused, Jakir Hussain th ree/four times on that night. FIR has been proved as Exbt.5. The prosecutrix was placed before the Judicial Magistrate for recording her statement under Section 164 of CrPC on 31.07.2003 and, accordingly, her statement was recorded, which h as been proved as Exbt.1 and she made the substantially the same statement as st ated in the FIR. To consider the submissions advanced by the learned counsel of b In her deposition the prosecutrix, (cid:28)Jahanara (cid:29), has stated that o n the night of occurrence, at about 11.00 pm, she went out of her house to disch arge urine informing her mother, who was sleeping with her. When she sat to disc harge urine the accused persons, Jakir Hussain and Kuki Mia, coming from her bac kside, caught hold of her, gagged her mouth by pressing hands and, thereafter, b oth of them carried her away to the house of Jakir Hussain and confined her in a room of the house and Kuki Mia left for his house. Keeping her inside the room, Jakir bolted the room from inside and, thereafter, Jakir removed her wearing ap parels and performed sexual intercourse on her. He performed sexual intercourse on her three times on that night though she vehemently objected but the accused did not listen to her. The accused made her naked at the time of performing sexu al intercourse. She requested the accused to open the door and to allow her to g o out of the room but the accused did not allow her. When she said the accused t hat she will discharge urine, the accused opened the door and after urination th e accused again took her inside the room. At about 5.00 am, the accused asked he r to sit on the bed and, then, he went out of the room and had some discussions with his sister and then the accused left the house. At about 8.00 am, sister of the accused, namely, Sajia Begum came to her room and assaulted her and drove h er out of the room. Thereafter, father of the accused and another nephew of the accused, namely Kala also came to the room and they also assaulted her by a broo m and drove her out. One Tabarak, Alauddin, Gafur Panchayat, and many others, sa w the occurrence when she was assaulted. Even after sustaining injuries, as a re sult of assault, she remained in the house of Jakir Hussain throughout the day. She did not return home because of fear of being assaulted by her father. At abo ut 4.00 pm, accused came back home and he also assaulted her. The distance betwe en the house of Jakir and her house was about a kilometer. While the accused and other inmates of his house put her out it was evening and out of fear she did n ot go back to her house and she went to the house of Gafur Panchayat and disclos ed the fact to Gafur. On the next morning, her mother came there and, thereafter they went to Lala PS and lodged the FIR. Police sent her to Hailakandi Civil Ho spital for medical examination and she produced her before the Magistrate and sh e narrated the incident before the Magistrate. She was reading in Class-V at tha t time. She duly proved her statement recorded by the Magistrate. Except denial and suggestion there is nothing material in the cr oss-examination of the witness. 5.2 PW5, Dr. R. Begum was one of the medical officers, who examined the prosecutrix in the Civil Hospital, Hailakandi. Ossification test for determi nation of her age was also done in the said hospital. Medical report has been pr oved as Exbt.2 by the witness and the X-ray report, i.e. age determination repor t has been proved as Exbt.3. In Exbt.2, i.e. the medical examination report, the medical officers recorded that the prosecutrix was examined on 30.07.2003, at a bout 4.10 pm, and observed that her growth was average with average built and he ight of her age. Pubic hairs were well grown with auxiliary hairs, breasts were well developed and the prosecutrix gave a history of assault by other family mem bers and there were injuries, (i) one old haematoma over right upper part(4 cm x 2 cm), (ii) another old haematoma over left forearm(3 cm x 2 cm) and another li neal old bruise over the back(5 cm x 1.5 cm). There was no violent mark present over her private parts. Hymen was with old healed tears and menstruation was pre sent. Vaginal swab was collected for medical examination to find out whether the re was any spermatozoa. The age of the victim girl was determined after X-ray an d other examination and it was opined by the doctors that she was aged between f ourteen to fifteen years. It was stated that from the findings noted, no definite opinion could be given as to whether the girl was subjected to recent rape prior to the medical examination. No injury was found in her private parts. In her cross-examination, the doctor stated that no spermatozoa was found in the vaginal swab of the victim girl. 5.3 PW2, the mother of the victim prosecutrix, materially corroborat ed the evidence of the prosecutrix. In her deposition she stated that she took h er(prosecutrix) to P.S. and lodged the FIR. Her evidence also has not been shaken. 5.4 PW3 simply made a search on the following day of the night of mi ssing of the prosecutrix and reported about her as she learnt from the village b oys that the prosecutrix was found beaten up in the house of accused, Jakir Huss ain and, based on that information PW2, the mother of the prosecutrix, went to t he house of Sonu Mia and recovered the girl. PW4, Abdul Gafur, was declared hostile but his statement materia 5.5 lly supported the prosecution case. He has stated that on the date of occurrence , brother of accused Jakir Hussain, namely Sibu, came to his house and informed him that Jakir Hussain brought a girl in their house and he(witness) was request ed to go there to perform their marriage. Accordingly, he went to the house of a ccused Jakir at about 2.00/3.00 pm and he saw the victim (cid:28)Jahanara (cid:29) in the house of accused Jakir. After a while Jakir came to the house and expressed his anger seeing the victim girl in the house. On his query, the victim girl told him tha t she was taken by accused Jakir to his house and, thereafter, he(witness) took the victim girl to the house of Asai Mia and kept her there and, thereafter, lef t for his house. Asai Mia produced the victim girl in the house of Sonu Mia(brot her of the witness). 6. A careful reading of the evidence on record makes it abundantly clear that the victim prosecutrix was aged between 13/15 years at the time of al leged occurrence. In absence of any age proof certificate, we may safely rely on the evidence of PW5 in respect of the ossification test report and it is abunda ntly clear that the prosecutrix was a minor girl on the date of alleged occurren ce. So, taking her out from the custody of her guardian was an offence punishabl e by law and I find nothing to disbelieve the prosecution story that the prosecu trix was kidnapped by accused Jakir Hussain and Sonu Mia on the alleged date and time of occurrence. 6.1 Regarding the delay in lodging the FIR, as a find, it is a case of rape of a minor girl, the incident occurred in the extreme rural area of Assa m. The Supreme Court in the case of State of Himachal Pradesh v. Gian Chand repo rted in (2001) 6 SCC 71 : 2001 AIR SCW 1903 has held- (cid:28)Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lo dging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if o ffered, whether it is satisfactory or not. If the prosecution fails to satisfact orily explain the delay and there is a possibility of embellishment in the prose cution version on account of such delay, the delay would be fatal to the prosecu tion. However, if the delay is explained to the satisfaction of the court, the d elay cannot by itself be a ground for disbelieving and discarding the entire pro secution case. (cid:29) The Supreme Court in the case of Ramdas & Ors. v. State of Mahar 6.2 astra reported in (2007) 2 SCC 170 in paragraph 24 of the judgment has observed thus- (cid:28)Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly stated to me rit acceptance. It is no doubt true that mere delay in lodging the first informa tion report is not necessarily fatal to the case of the prosecution. However, th e fact that the report was lodged belatedly is a relevant fact of which the cour t must take notice. This fact has to be considered in the light of other facts a nd circumstances of the case, and in a given case the court may be satisfied tha t the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider whether the d elay in lodging the report adversely affects the case of the prosecution. That i s a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to l odge the report promptly. There may also be cases where on account of fear and t hreats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, a re all factors which have a bearing on the question of delay in lodging of the r eport. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action , nor was any such advice available to them. In the case of sexual offences ther e is another consideration which may weigh in the mind of the court i.e. the ini tial hesitation of the victim to report the matter to the police which may affec t her family life and family’s reputation. Very often in such cases only after c onsiderable persuasion the prosecutrix may be persuaded to disclose the true fac ts. There are also cases where the victim may choose to suffer the ignominy rath er than to disclose the true facts which may cast a stigma on her for the rest o f her life. These are case where the initial hesitation of the prosecutrix to di sclose the true facts may provide a good explanation for the delay in lodging th e report. In the ultimate analysis, what is the effect of delay in lodging the r eport with the police is a matter of appreciation of evidence, and the court mus t consider the delay in the background of the facts and circumstances of each ca se. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No strait jac ket formula can be evolved in such matters, and each case must rest on its own f acts. It is settled law that however similar the circumstances, facts in one cas e cannot be used as a precedent to determine the conclusion on the facts in anot her. (See Pandurang v. State of Hyderabad : (1955) 1 SCR 1083 : AIR 1955 SC 216) . Thus mere delay in lodging of the report may not by itself be fatal to the cas e of the prosecution, but the delay has to be considered in the background of th e facts and circumstances in each case and is a matter of appreciation of eviden ce by the court of fact. (cid:29) . Learned Addl. P.P., Mr. Sinha also referred the decision of Stat 6.3 e of Chhattisgarh v. Darha reported in (2004) 9 SCC 699, wherein the Apex Court in paragraph 7 of the judgment has held thus:- (cid:28)7. We have noticed the fact that there has been some delay in filing the compla int which according to us has been explained by PW.1, the mother. The fact that the father was out of station on the date of occurrence is not disputed. In such circumstances since it is a minor who was violated, the possibility of there be ing hesitation on the part of the mother to lodge a complaint cannot be overrule d. Even otherwise, the mere factum of delay in filing complaint in regard to an offence of this nature by itself would not be fatal so as to vitiate the prosecu tion case. The fact that the accused did not suffer any injury on his private pa rts also will not be of much help to him because he was medically examined 4 day s after the incident in question. For the reasons stated above, we are satisfied that the High Court was in error in taking a view different from that of the tr ial court and acquitting the accused. (cid:29) 6.4