Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 511 (GAU)

Moinul Haque v. State of Assam

2004-09-02

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. S.P. Deka, learned Counsel for the Appellant and Mr. F.H. Laskar, learned P.P. 2. This appeal is directed against the judgment and order dated 23.4.04 passed by the Ad-hoc Additional Sessions Judge, Darrang, Mangaldoi in Sessions Case No. 28(DMFT) 03 (GR Case No. 172/02) convicting the accused Appellant Under Section 376(1) IPC and sentencing him to rigorous imprisonment for five years and to pay a fine of Rs. 5000/- in default to undergo further rigorous imprisonment for six months. 3. PW-1 Mustt. Jobeda Khatoon is young widow of 30 years and is the mother of three children. She used to live on begging and on the ill-fated day of 1.4.2002, she went to the village Bejinpur for begging. However, around mid-day while she was crossing the paddy field, it started raining and the accused Appellant Moinul Haque who is a 'Mulla' by profession showed sympathy to her and offered to give her shelter and asked her to follow him. Jobeda believing the 'Mulla' followed him and when reached a jungle ditch, it is alleged that the accused Appellant forcibly committed rape on her. Thereafter, the victim went to the Police Station and as the Officer-in-charge was not available, she was asked to come on the next day. The victim lodged FIR (Ext. 1) whereupon police registered a case Under Section 341 / 354 IPC and subsequently submitted charge sheet. 4. The accused was tried by the Ad-hoc Additional Sessions Judge, Darrang, Mangaldoi in Sessions Case No. 28(DMFT) 03 Under Section 376(1) IPC and on conclusion of the trial, the learned trial court convicted and sentenced the accused Appellant as stated above and hence, the present appeal. 5. The entire prosecution case rests on the testimony of Jobeda Khatoon (PW-1). She has fully supported the prosecution case as stated above. She has given the details as to how the accused showed sympathy towards her and asked her to follow him so that she can be saved from rain. PW-1 has also stated that the accused Appellant is a young Mulla and believing him she followed him and taking advantage of the loneliness of the place and weather condition, the accused caught hold of her and fell her on the ground. She raised alarm but none appeared and the accused committed rape on her by lifting her 'sari' etc. PW-1 has also stated that the accused Appellant is a young Mulla and believing him she followed him and taking advantage of the loneliness of the place and weather condition, the accused caught hold of her and fell her on the ground. She raised alarm but none appeared and the accused committed rape on her by lifting her 'sari' etc. PW-1 stated that she sought for mercy but the accused did not listen to her. PW-1 thereafter crossed the road and went to a house and reported the matter. No one came to help her and thereafter she went to the Police Station. 6. PW-2 is Dr. Dlora Chowdhury who examined PW-1 on 10.4.02. PW-3 recorded the statement of the victim Under Section 164 Code of Criminal Procedure PW-4 is the investigating police officer. So far the medical evidence is concerned, the Doctor did not find any marks of violence on the body of the victim and she could not give any comment as regards the commission of rape. 7. Mr. S.P. Deka, learned Counsel for the Appellant has submitted that in the absence of medical report regarding commission of rape on the victim (PW-1), no reliance can be placed on her evidence and in support of the above, he referred to a decision of this Court in the case of Thinga Mog and Anr. v. State of Tripura, reported in 2000 (1) GLT 495 : (2000)2 GLR 214 and that was a case of gang rape on woman by three persons and hence the court in the absence of medical evidence refused to rely on the statement of the prosecutrix. 8. Learned Counsel for the Appellant has also placed reliance on a decision of this Court the case of Dilip Borah v. State of Assam, reported in (2003) 3 GLR 470 : 2004 (1) GLT 30 wherein this Court held as follows: Though the existence of injuries on the person of the victim of rape may not necessarily, in all cases, become a ground for suspecting the veracity of the evidence of the prosecutrix, the fact remains that in the present case, no explanation has been given by the prosecution nor is there any explanation discernible from the evidence on record to show as to why the mark of teeth bite on the face of the prosecutrix could not be found on her medical examination. 9. 9. The need of corroboration of the testimony of the victim by way of medical evidence was considered by the Apex Court in the case of State of Himachal Pradesh v. Lekhraj, reported in (2000) 1 SCC 247 wherein the earlier decisions on the matter were considered and the court held that such corroboration is needed only when court finds difficulty to accept the testimony of the prosecutrix. In a later case in State of Rajasthan v. Om Prakash (2002) 5 SCC 745 where the alleged victim was aged about 8 years only, the Apex Court held that proof of injury on the prosecutrix is not essential to prove the charge of rape. Similar view was taken in the case of State of Himachal Pradesh v. Gyanchand (2001) 6 SCC 71 . 10. Now coming to the facts of the present case, we find that the alleged victim in a 30 years old woman and mother of three children. Moreover, from the evidence of P.W.-2, we find that she had examined the injured on 10.4.02 whereas the incident took place on 1.4.02. Thus, the medical evidence had taken place after ten days of the incident of rape. The medical evidence as such is not much relevant but for that the oral testimony of the prosecutrix can not be thrown out. 11. Learned Counsel for the Appellant has also submitted that as per the victim, there was a ditch near the place of occurrence but on the sketch map prepared by the I/O (P.W.-4), no ditch has been shown. The general situation has been shown that there were two roads in two sides in between three jungles and the incident of rape allegedly took place in the said jungle. This is what PW-1 has categorically stated. The learned Counsel for the Appellant has also referred that in the statement of the victim there was non showing of residential houses but in the sketch map prepared by the I/O, PW-1's house was shown on the other side of the road and on the northern side the incident took place. Thus, we find that there was no discrepancy on the oral testimony of PW-1 and the sketch map (Ext. 4). The victim (PW-1) in her deposition has stated that the accused was not known to her from before and she first time met him on the day of occurrence. Thus, we find that there was no discrepancy on the oral testimony of PW-1 and the sketch map (Ext. 4). The victim (PW-1) in her deposition has stated that the accused was not known to her from before and she first time met him on the day of occurrence. She identified the accused Appellant in the court. The identity is not disputed. Moreover, at the time of incident she raised alarm but no one came to the place of occurrence as there was no residential houses near the place of occurrence and it was raining at the relevant time. As a matter of fact, the accused took the advantage of weather condition loneliness of the place. Although PW-1 has stated that after the incident she went to a particular house to narrate the incident, but unfortunately the prosecution had not cited or produced any such person as a witness. The above person could have been a reported witness only and we find that the victim had reported the matter to police also. Thus, non examination of such witness is not fatal to the prosecution. 12. So far the law regarding basing conviction Under Section 376 IPC on the basis of the solitary testimony of the prosecutrix is more or less well settled by a catena of decisions of the Apex Court and the decision in the case of Surjan and Ors. v. State of M.P., reported in AIR 2002 SC 476 , relied upon by the Appellant supports the above proposition of law and in the said case the Apex Court held as follows: We are not laying down a proposition of law that the uncorroborative testimony of the prosecutrix is not sufficient for entering conviction for an offence under Section 376, IPC. But then the evidence of the solitary witness should inspire confidence in the judicial mind, and be of such a nature that the Court must be able to certify that the testimony is wholly reliable. 13. So far the facts in Surjan v. State of M.P. (supra) are concerned, there was allegation of gang rape on the prosecutrix by as many as six persons and the prosecutrix did not disclose about the incident to any one for 2/3 days and there was delay often days in lodging the FIR. But the facts in the present case, are altogether different. But the facts in the present case, are altogether different. The FIR was lodged immediately and the matter was reported. Thus, this is not a case of prosecutrix remaining silent for a few days of the incident. The other decision which the learned Counsel for the Appellant has relied upon is the case of Moinul Haque and Ors. v. State of Assam, reported in (2001) 1 GLR 576 and this case is also of not much help to the present Appellant as that was a case where the court found as many as seven infirmities in the prosecution case. Moreover, the court found that there was deep enmity between the husband of the prosecutrix and the Appellants. In the present case, the Appellant was not known to the victim and as such there was no reason on her part to make false accusation against the accused Appellant and she relied on him initially as he was a 'Mulla' by profession. 14. The learned Counsel for the Appellant has drawn our attention to the observations of the trial court as regards the perfunctory manner of investigation and submits that in view of the above defects in investigation, no conviction can be based on such prosecution. The fact that the investigation was carried out in shoddy manner as appears from the face of the record, the FIR (Ext. 1) contains specific allegation as regards commission of rape on her. However, police registered a case Under Section 341 / 354 IPC, maybe due to the fact that the complainant is not a rich person and she is a mere beggar. Police submitted charge sheet without taking the trouble of examining the other witnesses. Moreover, the accused can not get any relief of such defective investigation unless he can show that he has been adversely prejudiced due to said action of the investigation. The trial court has rightly relied on the observations of the Apex Court in the case of State v. Gurmit Singh AIR 1996 SC 1393 . 15. In view of the above discussion and considering the evidence of the prosecutrix, we find that her evidence is wholly reliable and we hold that the accused Appellant committed rape on the helpless woman on the ill-fated day of 1.4.02 and as such the trial court rightly convicted the accused Appellant Under Section 376(1) IPC. 15. In view of the above discussion and considering the evidence of the prosecutrix, we find that her evidence is wholly reliable and we hold that the accused Appellant committed rape on the helpless woman on the ill-fated day of 1.4.02 and as such the trial court rightly convicted the accused Appellant Under Section 376(1) IPC. We find no merit in this appeal and the appeal is dismissed accordingly. Send down the records. Appeal dismissed.