Nazibul Hussain @ Nazimul Hussain v. State of Assam
2005-05-20
P.G.AGARWAL
body2005
DigiLaw.ai
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. M.U. Mahmud, the learned Counsel for the Appellant and the learned P.P. 2. This appeal is directed against the judgment and Order dated 30.6.2003 passed by the ad hoc Additional Sessions Judge, Bongaigaon in Sessions Case No. 2(M) of 2001 arising out of Manikpur P.S. Case No 49 of 1991 whereby the accused Appellant was convicted under Section 376, IPC, and sentenced to imprisonment for seven years and to pay a fine of Rs. 5000/- in default further imprisonment for three months. 3. The accused Appellant Nazibul Hussain and Nazimul Hussain was tried for commission of offence under Section 376, IPC. Accused Nazrul Ali alias Bapu and Rahimul Hussain were acquitted from the offence charged against them. Accused Kamruz Zaman and Monu Ali were convicted and sentenced under Section 323, IPC. 4. During trial the prosecution examined as many as 8 witnesses and one Court witness was also examined. The learned trial Court convicted the accused Appellant under Section 376, IPC and sentenced to imprisonment as stated above. The other convicted accused Kamruz Zaman and Monu Ali are not before us. 5. Smt. Shankhabala Roy, the informant (P.W. 3) is a widow and mother of six children. She used to work in a tea stall of one Sri Bibekananda and Kanu of Barbila situated at Manikpur Tiniali. On the evening of 19.7.1991 around 9.45 p.m. while she was returning home after attending her duties and reached near Manikpur Girls High School, the accused Appellant Nazimul Hussain along with Nazrul Ali and Bapu caught hold of her on the road and thereafter committed rape on her on the field of the school. The other accused thereafter tried to ravish her. After hearing her cry, Jagat Das (P.W. 2), Debananda Das (P.W. 1), Dipen Bhagabati (P.W. 4), Khanin Ch. Roy (P.W. 5) and Dhananjoy Roy (P.W. 6) arrived at the place of occurrence and they apprehended two accused persons. However, accused Nazrul Ali managed to escape and he brought some villagers from his own village and tried to release Nazimul whereupon some marpit took place. Shankhabala lodged FIR and Manikpur P.S. Case No. 49/91, was registered. During trial, the prosecution examined as many as 8 witnesses and there were paper exhibits. 6. This being a case of rape on a middle aged lady, the prosecution case rests mainly on the testimony of P.W. 3 only.
Shankhabala lodged FIR and Manikpur P.S. Case No. 49/91, was registered. During trial, the prosecution examined as many as 8 witnesses and there were paper exhibits. 6. This being a case of rape on a middle aged lady, the prosecution case rests mainly on the testimony of P.W. 3 only. The witness has deposed that after the death of her husband, she was finding it difficult to maintain herself and her children and as such she used to work in the tea stall of Bibekananda and used to return everyday around 8/9 p.m. after finishing her work and having her meal at the Hotel. She used to reside half a mile from the place of work and she used to come by the side of the Girls High School. The accused Appellant was not known to her from before. On the evening of the incident, while she was returning alone and reached near the High School, the two accused persons Nazimul and Bapu followed her in a bicycle and thereafter they caught hold of her and forcibly took her to the school field. She tried to shout, but her mouth was gagged. She was forced down on the ground and accused Appellant Nazimul forcibly committed rape on her. She raised alarm and thereafter P.W. 2 arrived at the scene and he chased the accused Appellant. She reported the incident to P.W. 2 and in the meantime, the other witnesses also arrived and she reported the incident to them also. They caught hold of the accused Appellant but the other accused Bapu managed to escape. The witness tried to take the accused Appellant to the Police Station, but the accused Appellant resisted and in the meantime the other accused returned back along with a number of Muslim villagers and they assaulted the witnesses. In the meantime police arrived and she was taken to Police Station, where she lodged the FIR. She was taken to hospital where she was examined by the doctor. Her statement under Section 164, Code of Criminal Procedure was also recorded. 7.
In the meantime police arrived and she was taken to Police Station, where she lodged the FIR. She was taken to hospital where she was examined by the doctor. Her statement under Section 164, Code of Criminal Procedure was also recorded. 7. The prosecutrix has been cross-examined on behalf of the accused Appellant and we find that the defence did not cross-examine her on any point except giving a suggestion that in her statement under Section 161, Code of Criminal Procedure as well as under Section 164, Code of Criminal Procedure that she did not state about gagging of her mouth. On perusal of Ext. 1 and Ext. 2 and the evidence of the Investigating Police Officer, the above omission has been established. However, as stated above, except establishing an omission as regards the gagging of the mouth, the evidence of this witness was not challenged in any manner by the present Appellant. 8. Jagat Das (P.W. 2) has deposed that he used to rear fishes in a pond belonging to the said school on yearly lease and at the time of incident, while he was sitting on the pond side, he heard shout for help of a woman from a distance of 200 ft. It was a moonlight night and he came to the place of occurrence and found accused Nazimul committing sexual intercourse on P.W. 3. He also saw the other accused Bapu standing at a certain distance and when he abused Nazimul and P.W. 3 the later reported that while she was returning home, she was forcibly caught hold by the accused Appellant and committed rape on her. In the meantime, P.Ws. 1, 4, 5 and 6 arrived and they caught hold of the accused Appellant. Thereafter, the villagers from the neighbouring Muslim villages came and some altercation took place. In the meantime, police also arrived and they were brought to the Police Station. P.Ws. 1, 4 and 5 were together discussing certain matters regarding invitation of Bhagyadevi Theater and at that point of time, they saw P.W. 3 who used to work in the tea stall of Bibekananda returning home alone. The witnesses also saw the two accused persons Nazimul and Bapu following her in a bicycle.
P.Ws. 1, 4 and 5 were together discussing certain matters regarding invitation of Bhagyadevi Theater and at that point of time, they saw P.W. 3 who used to work in the tea stall of Bibekananda returning home alone. The witnesses also saw the two accused persons Nazimul and Bapu following her in a bicycle. After some time they heard shout for help of a woman at a distance of 150 metres and they followed the sound and arrived at the place of occurrence and found the accused Appellant. P.W. 2 as well as P.W. 3 had tried to bring the accused Appellant to Thana. But in the meantime, the other accused persons arrived and some marpit took place between them. P.W. 4 and P.W. 5 have supported the evidence of P.W. 1. 9. P.W. 8 is Dr. P.C. Bhattacharjee who examined P.W. 3 on the night of occurrence itself and found as follows: (1) All signs and symptoms of rape were found in the person's body during my examination. (a) Spermatozoa (semen) found inside the vagina as well as on the labia majora and minora respectively collected and preserved. (2) Labia majora and minora on both sides found becoming eccymotic and swollen. (3) Peticoats and Mekhlla seen stained with semen. I/C Manikpur PHC informed immediately to preserve all these cloths worn found during my examination. 10. In the opinion of the doctor, it was absolutely a case of rape. We find that the evidence of the doctor has not been challenged. 11. Thus unlike other rape cases, we find that in the present case, besides the evidence of the prosecutrix, there is evidence of P.W. 2 who arrived at the scene of occurrence and found the accused Appellant committing rape on P.W. 3, a middle aged widow. An attempt was made at the Bar that this may be a case of sexual intercourse by consent but on arrival of the witnesses, the victim turned turtle and alleged rape. We find no basis for such surmises in view of the evidence on record that all these witnesses had arrived at the place of occurrence on hearing shout for help of a woman. Hence, if P.W. 3 was a consenting party, where was the need for shouting for help. She could have enjoyed herself and left the place without any trace. 12.
Hence, if P.W. 3 was a consenting party, where was the need for shouting for help. She could have enjoyed herself and left the place without any trace. 12. In the present case, we find that the victim had reported the incident to P.W. 2, who as a matter of fact, had seen the incident himself and informed to P.W. 1 and other witnesses who came there on hearing shout for help and the accused Appellant was also apprehended at the scene of occurrence. So far the subsequent incident of scuffle between two groups is concerned, we are not concerned in this appeal as the incident had nothing to do with the charge of rape. Moreover, the accused Appellant has also stated in his statement under Section 313, Code of Criminal Procedure that while he was returning home along with Bapu, he was apprehended by the witnesses and there were some 'marpit and he was brought to the Police Station on the night of occurrence by police. Thus, the presence of the accused Appellant at the place of occurrence at the relevant time is admitted. The accused, however, claims that he has been falsely implicated in view of the earlier dispute between two groups. We find that P.W. 3 is a middle aged widow and in the context of Indian society, it is unthinkable that she will make such imputation by bringing a slur on her own character and dignity just to feed fat some revenge in which she was no way involved or concerned. Further, we find that in the instant case, the victim was examined by the doctor within three hours of the incident and the doctor found tale tell materials as regards commission of rape on the victim. Thus, we find that the evidence of P.W. 2 and P.W. 3 have been amply corroborated by the other evidence on record including the medical evidence. 13. The learned Counsel for the accused Appellant has made certain statement regarding the identification of the accused Appellant and has referred to the alleged discrepancies in the evidence of the witnesses and it is submitted that the accused was not present at the spot. The learned Counsel for the accused Appellant has also referred to certain decisions of this Court as well as certain decisions of the Apex Court.
The learned Counsel for the accused Appellant has also referred to certain decisions of this Court as well as certain decisions of the Apex Court. We have perused the above decisions and find that the above decisions are of no help to the accused Appellant as the facts and circumstances of the above cases and the ratio of law laid down are not relevant and applicable to the present case. 14. In the impugned judgment, the learned trial Court has relied on the testimony of the prosecution witnesses for the reasons mentioned in the judgment and on consideration of the evidence as stated above, we find absolutely no material whatsoever to disbelieve P.W. 3, the victim as well as P.W. 2. In catena of decisions of the Apex Court it is held that there is no requirement of law that the evidence of the prosecutrix needs any corroboration. There was no motive on the part of P.W. 3 to falsely implicate the accused Appellant as because P.W. 3 has categorically stated that the accused Appellant was not known to her from before and she had seen the accused Appellant following her at the time of incident. The evidence of P.W. 3 stands corroborated by P.W. 2 as well as the medical evidence of P.W. 8. 15. In the case of State of H.P. v. Lekh Raj and another reported in (2000) 1 SCC 247 the Apex Court observed: If the prosecutrix is believed to be a truthful witness in her deposition, no further corroboration may be insisted. Corroboration is admittedly only a rule of prudence this Court in State of Punjab v. Gurmit Singh, took note of the existing rate of crime against women and held: Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault-it is often destructive of the whole personality of the victim.
We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault-it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. 16. In view of the above, we find no merit in this appeal as the offence under Section 376, IPC has been fully established from the evidence on record. The appeal is accordingly dismissed. Send down the records. Appeal dismissed.