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2005 DIGILAW 416 (GAU)

Aljul Rahman v. State of Assam

2005-05-27

BROJENDRA PRASAD KATAKEY

body2005
JUDGMENT B.P. Katakky, J. 1. This appeal is directed against the judgment of conviction dated 10.2.04 passed by the learned Sessions Judge, Kokrajhar, in Sessions Case No. 70/2002 convicting the Appellant Under Section 376 IPC and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for a further period of 3 months. 2. The prosecution case, in brief, is that on 2.10.01 the daughter of the informant alongwith Anr. girl went to the river for fishing and at that time the accused came to the spot and brought the prosecutrix down on the ground and raped her. The girl who accompanied the victim informed Sri Petu Sheikh (D.W. 2) and also the victim's mother, P.W. 4. With that allegations, informant, P.W. 6 lodged the FIR before Officer-in-charge, Kokrajhar Police Station on the basis of which police Case No. 168/01 Under Section 370 IPC was registered against the present Appellant. The police upon completion of the investigation submitted the charge sheet and since the case was triable by the Court of Sessions, the accused was committed for trial to the Court of the learned Sessions Judge, Kokrajhar. Accordingly, the Sessions Case No. 70/02 was registered and when the charge was explained, the accused pleaded not guilty and demanded trial. The learned Sessions Judge, thereafter, passed the aforesaid judgment of conviction and hence, the present appeal before this Court. 3. I have heard Mr. M.U. Mahmud, learned Counsel for the Appellant and Mr. B. Singh, learned Public Prosecutor, Assam. 4. This Court after admission of the appeal. vide order dated 3.3.2005, on the basis of the submission made by the learned Counsel for the Appellant, directed the learned Sessions Judge, Kokrajhar to hold an enquiry as regards the age of the accused Appellant and to submit the report. The said order was passed as submission was made by the learned Counsel for the Appellant to the effect that the accused Appellant was about 16 years of the age at the time of the occurrence and therefore, he is entitled to be dealt with under the provisions of Juvenile Justice (Care and Protection of Children) Act. 2000 (hereinafter referred to as the 2000 Act). 2000 (hereinafter referred to as the 2000 Act). The learned Sessions Judge, upon completion of the enquiry has submitted his report with the finding that the Appellant was 17 years 9 months 14 days old as on 1.1.05. The said report was submitted after taking into the consideration of the statements made by the persons examined in the proceedings as well as the relevant certificate issued by the school authority certifying the age of the Appellant. The finding recorded by the learned Sessions Judge in the said report has not been challenged by the learned Public Prosecutor and the said report being passed on the statement of the witnesses examined in that regard and the school certificate issued by the competent authority, has to be accepted. Therefore, the accused Appellant has not completed 18 years of age as on 1.1.05 and he was about 15 years of age on the date of occurrence i.e. on 2.10.01. 5. Mr. Mahmud, learned Counsel for the Appellant has submitted that though it is a settled position of law that the prosecutrix's testimony is not required to be corroborated to establish the charge Under Section 376 IPC, the Court before convicting the accused Under Section 376 IPC has to scrutinize whether the necessary ingredients to constitute an offence of 'rape' within the meaning of Section375 IPC are present or not. Referring to the testimony of the prosecutrix, who was examined as P.W. 1 and also the girl who was present with the prosecutrix at the time of occurrence i.e. P.W. 2, the learned Counsel for the Appellant has submitted that none of them have stated anything about the penetration of the male organ of generation into the vagina of the prosecutrix or stated having any sexual intercourse and therefore, according to the learned Counsel for the Appellant, no rape within the meaning of Section 375 IPC was committed and hence, the conviction Under Section 376IPC is not maintainable. Referring to the evidence of the Doctor, P.W. 5 who medically examined the prosecutrix, the learned Counsel for the Appellant has submitted that the prosecution has failed to prove the commission of the offence Under Section 375 IPC making it punishable Under Section 376IPC as the doctor has opined that there was no mark of violence over the body including the thigh, breast, vulva, vagina or face and according to the doctor there was no evidence of rape. The further submission of the learned Counsel for the Appellant is that in any case, the accused being about 15 years of age, he cannot be tried under the normal law, but he has to be tried under the provisions of the 2000 Act and the same having not been done in the present case, the judgment of conviction is to be set aside. The learned Counsel for the Appellant in support of his contention placed reliance in Pradeep Kumar v. State of U.P. reported in AIR 1994 SC 104 , Lalit Mohon Ghose and Ors. v. State of Tripura, reported in 1998 (3) GLT 16 and Somesh Ali v. State of Assam, reported in 2004 (1) GLT 673. 6. Mr. B. Singh, learned Public Prosecutor, supporting the judgment of conviction passed by the learned Sessions Judge, has submitted that the prosecution by examining the prosecutrix as well as the other witnesses including the doctor, who medically examined the prosecutrix, has proved beyond all reasonable doubt that the accused Appellant has committed the offence of rape, which is punishable Under Section 376 IPC. The learned Public Prosecutor has further submitted that it is evident from the statement made by the accused Under Section 313 Code of Criminal Procedure before the learned trial Judge that the accused declared himself to be aged about 22 years on the date when such statement was recorded i.e. on 11.9.03 and therefore, the accused was around 20 years of age on the date of occurrence i.e. 2.10.01 and hence, he is not entitle to the privilege of 2000 Act. Therefore, the learned trial Court has rightly conducted the trial under the normal law more so when the benefit of 2000 Act was not claimed by the accused during the trial before the learned Sessions Court. Therefore, the learned trial Court has rightly conducted the trial under the normal law more so when the benefit of 2000 Act was not claimed by the accused during the trial before the learned Sessions Court. The accused for the first time before the High Court in appeal has raised the question of his age claiming that he was below 18 years of age when the occurrence took place and thus, claiming the benefit under the 2000 Act, though Unaccused declared himself to be 22 years old in the statement recorded Under Section 313 Code of Criminal Procedure and hence, the accused cannot claim any benefit under the said 2000 Act. 7. I have considered the submission made by the learned Counsel for the parties and also perused the records. 8. The prosecution in order to bring home the charge against the present Appellant Under Section376 IPC has examined as many as Six witnesses, namely, the prosecutrix as P.W. 1, Miss Regina Begum, the girl who was present with the prosecutrix at the time of occurrence as P.W. 2, Sri Muzahar Ali, the first informant as P.W. 3, Smt. Sabina Bibi, mother of the prosecutrix as P.W. 4, Dr. Nikunja Das who medically examined the prosecutrix as P.W. 5 and Sri Dharmeswar Pathak, the investigating officer who conducted investigation as P.W. 6. The defence has also examined three witness including Sri Petu Sheikh as D.W. 2. 9. The prosecutrix who was examined as P.W. 1 in her deposition has stated that on the date of occurrence when she alongwith Regina (P.W. 2) went for fishing in the river, the accused caught hold of her and did some bad thing. She has further deposed that the said Regina though informed the persons present in nearby area, nobody came forward. Then, she informed the mother of the prosecutrix. When her mother came, the accused fled away. During her cross examination, she has stated that the accused caught hold of her from the front side and though she cried for help, nobody turned up. She has also stated that there was a talk of marriage between them but the accused father did not allow such marriage. 10. When her mother came, the accused fled away. During her cross examination, she has stated that the accused caught hold of her from the front side and though she cried for help, nobody turned up. She has also stated that there was a talk of marriage between them but the accused father did not allow such marriage. 10. Regina Begum P.W. 2 in her deposition has stated that on the date of occurrence when she alongwith prosecutrix went for fishing in the river, the accused also went there for grazing cattle and did some bad thing with the prosecutrix. This witness has further stated that on seeing the incident she ran towards Petu Sheikh (D.W. 2) and informed about the incident, but he did not go to the place of occurrence and therefore, she informed the mother of the prosecutrix. This witness during the cross-examination has stated that she saw the accused doing some bad thing with the prosecutrix. 11. P.W. 3 Muzahar Ali, is a reported witness, who lodged the FIR, Smti. Sabina Bibi, P.W. 4 mother of the prosecutrix, in her deposition has stated that Ragina (P.W. 2) informed her that the accused caught hold of her daughter and upon hearing the same, she ran towards the place of occurrence and seeing her, the accused left the prosecutrix. She has also deposed that after daughter informed her that the accused did some bad thing with her. 12. Dr. Nikunja Das who medically examined the prosecutrix, was examined as P.W. 5, who has exhibited the medical report as Ext. 2. The Doctor in his medical examination has found as follows: Identical mark-One black mole over the exgoma (Rt). Escerted and identified by UBC/328 Anowar Hussain of KJR P/S Date time place of examination: 1.30 PM, 5.10.2001, RNB Civil Hospital Kjr. Marks of violence: absent all over the body, thigh, breast, vulva, vagina, face. Gynaecological examination-Hymen not intact, Admits finger tight, uterus is of normal size. Radiological examination: Reg No. 2375 of 8.10.01 X-Ray (RL) Elbow joint, (Rt) wrist joint, (Rt) iliac crest show (1) Ossificatial of epiphysis and diayhysis of (rt) elbow is completed, (ii) ossificatial of (RL) wrist joint is not completed (iii) Ossificatial of epiphysis of illiee crest is riot completed-Vaginal smear does not show spermatozoa-X-Ray reported handed over to Police Kjr. In my opinion the girl is of below 17 years. In my opinion the girl is of below 17 years. Evidence of rape could not be ascertained. It is evident from the said medical report that there was no mark of violence in any part of the body including thing, breast, vagina, face and the doctor has opined that evidence of rape could not be ascertained. 13. Section 375 IPC defines 'rape' as under: 375. Rape-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First-Against her will Second-Without her consent Thirdly-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is Anr. man to whom she is or believes herself to be lawfully married. Fifthly-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through Anr. of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly-With or without her consent, when she is under sixteen years of age. Explanation-Penetration is sufficient to constitute the sexual inercourse necessary to the offence or rape. Exception-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. 14. To constitute the offence of 'rape' the penetration of male organ of generation into the vagina of a victim is necessary and such penetration may even be of a slightest degree. In the instant case, there is absolutely no evidence about the penetration of the male organ of the accused and the prosecutrix has not stated anything about having any sexual intercourse by the accused. In the instant case, there is absolutely no evidence about the penetration of the male organ of the accused and the prosecutrix has not stated anything about having any sexual intercourse by the accused. As, such positive statement has not been made by the prosecutrix in her evidence, the Court for the purpose of ascertaining whether there is any other evidence to prove the offence of rape has scrutinized the evidence of P.W. 2, Ragina, who was present at the place of occurrence and also of P.W. 4, the mother who was informed by P.W. 2 as well as the evidence of the doctor who medically examined the prosecutrix. As discussed above, neither the P.W. 2 nor the P.W. 4 has stated anything about the penetration of male organ of generation by the accused in the vagina of the prosecutrix. What they have stated is that the accused did some bad thing with the prosecutrix, without explaining any further. This position has led me to scrutinize the evidence of the Doctor, P.W. 5. The Doctor has also deposed before the Court that he did not find any injury in any part of the prosecutrix including the thing, vagina, breast or face and he did not find any evidence of rape. Taking into the account the evidence of the prosecution witnesses, it cannot therefore, be held that the accused Appellant has committed offence Under Section 375 IPC as the prosecution has failed to prove that the accused committed any 'rape' within the meaning of Section 375 IPC. That being the position, I have no alternative but to hold that the judgment of conviction passed by the learned Sessions Judge cannot be sustained in law and hence, the same is set aside. The accused is set at liberty if he is not wanted in any other case. 15. The other contention put forward by the learned Counsel for the Appellant is that the accused at the relevant point of time i.e. the date of occurrence, was about 15 years of age and therefore, he was required to be tried under the provisions of 2000 Act and as he was not tried under the provisions of said Act, the judgment of conviction is liable to be set aside. 16. 16. It appears from the statement of the accused recorded Under Section 313 Code of Criminal Procedure that the accused gave his age as 22 years on the date of such examination i.e. 11.9.2003. The accused never at any point of time has informed the trial Judge that he is below 18 years of age and therefore, he is entitle to the privilege of 2000 Act. The accused for the first time in appeal before this Court has raised the said question claiming privilege under the provisions of said 2000 Act claiming that he was about 15 years on the date of occurrence. This Court, as stated above, has ascertained the age of the accused through the learned Sessions Judge, Kokrajhar and has found that the accused was 15 years old at the relevant point of time. 17. The question whether the accused is entitle to the privilege of 2000 Act, in view of his declaration of age as 22 years at the time of his examination Under Section 313 Code of Criminal Procedure and in the absence of any claim during the trial, has not been gone into in the present appeal as this Court has recorded a finding to the effect that the prosecution has failed to prove the charge against the Appellant Under Section 376 IPC and therefore, entitle to be set at liberty. The decision of the Hon'ble Supreme Court in Pradeep Kumar (supra), a Division Bench judgment of this Court in Lalit Mohan Ghosh (supra) and the judgment passed by a Single Bench of this Court in Somesh Ali (supra) being related to the juvenile Justice Act, has therefore, not been discussed. 18. The appeal is accordingly allowed. The judgment of conviction and sentence dated 10.2.04 passed in Sessions Case No. 70/2002 by the learned Sessions Judge, Kokrajhar is set aside. The accused is set at liberty, if he is not wanted in any other case. Appeal allowed.