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2008 DIGILAW 236 (CAL)

Md Mizam v. State of West Benagal

2008-02-25

KALIDAS MUKHERJEE

body2008
Judgment :- (1.) THIS appeal is directed against the judgment and order of conviction and sentence passed by learned Additional Sessions judge, Fast Track Court-4, Raghunathpur in Sessions Trial No. 2 (1) of 2003 corresponding to Sessions Case No. 63 of 2000 convicting thereby the appellants under section 363 IPC and sentencing each of them to suffer R. I. for 4 years and to pay a fine of Rs. 5,000/-i. d. to suffer R. I. for one year. Appellant Md. Mizan has been convicted and sentenced to suffer imprisonment for five years and to pay a fine of Rs. 5,000/-i. d. to suffer R. I. for one year under section 366a IPC. No separate sentence was passed by the learned Trial Judge against convict Niamul Hoque under section 366a ipc. The appellant Md. Mizan has also been convicted and sentenced to suffer R. I. for seven years and to pay a fine of Rs. 10,000/- i. d. to suffer R. I. for one and half years under section 376 IPC with the direction that the sentences shall run concurrently. (2.) THE prosecution case, in short, is that the informant Gulzar Hossain lodged complaint with Raghunathpur P. S. on 17. 08. 96 alleging that his daughter aged less than 16 years and a student of Class IX in Cheliama girls High School went to the school, but, did not return home on 13. 08. 96. On 14. 08. 96 the informant lodged a missing diary with Raghunathpur P. S. During search the informant came to learn that on the date of incident i. e. on 13. 08. 96 during the tiffin hours at about 1. 30 p. m. Niamul Hoque took her away from the school. The victim was taken to Md. Mizan who took her to Cheliama bus stand. Thereafter the victim girl was enticed away to Purulia by a trekker and they spent one night in the house of one Munna Tailor near Purulia Court. Thereafter they stayed in a house near Islamia hotel at dhanbad Road. Taking advantage of the minority of the victim girl, Mizan might have married and committed rape upon her. Upon receipt of the complaint, the Raghunathpur P. S. case No. 47 of 1996 was started and after completion of investigation chargesheet was submitted. The charges were framed against the accused persons under sections 363, 366a and 366a/109 ipc against both the accused persons. Upon receipt of the complaint, the Raghunathpur P. S. case No. 47 of 1996 was started and after completion of investigation chargesheet was submitted. The charges were framed against the accused persons under sections 363, 366a and 366a/109 ipc against both the accused persons. The charge of section 376 IPC was also framed against the accused Md. Mizan. Both the accused persons pleaded not guilty and claimed to be tried. (3.) MR. Bag, learned Counsel appearing on behalf of the appellants submits that the incident occurred on 13th of August, 1996 and on the next day missing diary was lodged and on 17th August, 1996 the FIR was lodged by the informant. Mr. Bag contends that there is no evidence of enticing away the victim girl. Mr. Bag contends that from the evidence of the P. Ws. it would appear that if the victim left the school, she had left voluntarily and the learned Trial Court failed to appreciate the evidence from its proper perspective. Mr. Bag contends that learned Trial Court ought to have relied on the ossification test which clearly shows that the victim girl was major on the date of alleged incident. It is contended that no shouts or hue and cry was raised by the victim girl while she was allegedly taken away. It is further contended that there was no mark of violence on the private parts of the victim girl. It is contended that medical evidence was not properly considered by the learned Trial Court and the absence of hymen, ipso facto, is not the conclusive proof of alleged commission of rape upon the victim girl. Mr. Bag contends that the learned Judicial Magistrate recorded the statement of the victim girl under section 164 Cr. PC in a casual manner. Mr. Bag contends that the learned Trial Court was not justified in recording the judgment of conviction and sentence against the appellants. (4.) MR. S. S. Roy, learned Counsel appearing on behalf of the State submits that the date of birth as noted in the admission register of the school which was produced at the time of trial before the learned Court below should be relied upon. Mr. Roy contends that when the admission register of the school has been produced to prove the age of the victim girl, the ossification test report should not be relied upon. Mr. Mr. Roy contends that when the admission register of the school has been produced to prove the age of the victim girl, the ossification test report should not be relied upon. Mr. Roy contends that there is no ground to disbelieve the evidence of the prosecutrix and the statement made by her before the learned Magistrate under section 164 Cr. PC. Mr. Roy contends that the evidence adduced by the prosecution was sufficient to prove the charges levelled against the appellants and there is no ground to interfere with the impugned judgment passed by the learned Trial Court. (5.) THE learned Trial Judge while recording the judgment of conviction and sentence held that the statement of the victim girl under section 164 cr. PC, made earlier in point of time, was corroborated at the time of trial by her oral testimony. As regards the age of the victim girl the learned judge discussed the entries made in the admission register (Exhibit - 8) and the ossification test report and relied on the entries in the admission register wherein the date of birth of the victim girl was recorded as on 22.04.1982. The learned Trial Judge held that the victim girl was kidnapped and thereafter by promise of marriage as well as creating fear in the mind of the victim, accused Mizan committed rape on the victim girl. It has also been held that the victim girl was minor on the date of incident. The learned Judge ultimately held that the prosecution has been able to substantiate the chargel under sections 363, 366a and 370 IPC against the accused Md. Mizan. As, against the other appellant Niyamul Hoque the learned Judge held that the prosecution has been able to substantiate the charges under sections 363 366a/109 IPC and recorded the sentences aforesaid. (6.) PROSECUTION in this case has examined as many as 13 P. Ws. including the victim girl, her father, other witnesses of the same village, the headmistress of the school, the Doctor and the I.O. The defence examined one D.W. Sri Paresh Mukherjee, Headmaster of Cheliama Bijaliprava high School where accused Niamul Hoque was a student of Class XI. It is the defence contention that on 13. 08. 96 accused Niamul Hoque attended his class and the attendance register was produced by the Headmaster (Exhibit - A). It is the defence contention that on 13. 08. 96 accused Niamul Hoque attended his class and the attendance register was produced by the Headmaster (Exhibit - A). (7.) P. W. 1 is the victim girl who has stated that on 13. 08. 96 during tiffin hours of the school, Niamul Hoque in order to talk to her called her away; accused Mizan was standing there; Niamul Hoque gave her a betel leaf and after chewing the same she felt reeling of head. It is in her evidence that niamul thereafter, took her to Mizan and then she was taken by Mizan by a trekker to the house of Munna Tailor at Purulia whore Mizan expressed his desire to marry her and further told her that in case of refusal he would torture upon her parents. She has further stated that on that night the accused Mizan tried to commit rape upon her, but, due to menstruation he could not cohabit; On 14th August, 1996 she was taken to Chirkunda by mizan and therefrom to Barakar; after taking meal on that date she was taken to Beliapur to the house of Akbar, a friend of Mizan. It is in her evidence that she was forcibly raped there by accused Mizan for three days. It is in her evidence that on 17. 08. 96 she was taken to Gobindapur where accused Mizan contacted Moulana to arrange for marriage and on 18lh August, 1996 on getting information her father reached the said place and recovered her with the help of police. She has stated that she was medically examined on 18th August and on 19th August she was produced before the learned magistrate where she made a statement. (8.) IN the statement recorded under section 164 Cr. PC victim girl categorically stated that on 13. 08. 96 during tiffin hours Niamul Hoque called her away and he gave her a betel leaf and chocolate and after chewing the same her head started reeling. It is also in her statement that she was taken to Purulia, Chirkunda and Beliapur. At Beliapur she stayed for three days in the house of a person who was known to Mizan. She has categorically stated that in the said house Mizan committed rape upon her forcibly for three days. It is also in her statement that she was taken to Purulia, Chirkunda and Beliapur. At Beliapur she stayed for three days in the house of a person who was known to Mizan. She has categorically stated that in the said house Mizan committed rape upon her forcibly for three days. (9.) THE father of the victim girl has been examined as P. W. 2 who has corroborated the FIR P. W. 3 who is a resident of the same village has stated that on 13. 8. 96 after closing his shop in the Bazar he saw Niamul and Mizan coming out of the school with the victim girl and then Mizan and the victim girl boarded a trekker and proceeded towards Purulia, P. W. 4 is the mother of the victim girl who has stated that on the date of incident her daughter had gone to school, but, did not return home and on 1st Bhadra i. e. on the sixth day after the incident her daughter returned. P. W. 5 Samsuddin answary is a tenant in the complex of Islam Hotel at village Gobindapur and in the evening he saw that a girl and a boy came from Bengal to the house of Raffique Laskar and on the following clay police came there and recovered the girl. (10.) P. W. 6 Murad Hossain Mirdhya was declared hostile by the prosecution. P. W. 7 is the Doctor who examined the victim girl and found the following injuries: "no external injury seen over the breast (both) and private organ also. No bleeding through vagina. Pubic hair shaved about 4-5 days. No vaginal discharge and blood seen at present. Hymen absent (not seen). " (Exhibi 5). (11.) IN the cross-examination P. W. 7 has stated that it was very difficult to opine and further investigation was needed. P. W. 9 is the staff of Cheliama b. C. Girls High School who has stated that as per the admission register of the school the date of birth of victim girl was 22. 04. 1982. The admission register has been marked Exhibit 8. P. W. 11 is the seizure witnesses. P. W. 12 and P. W. 13 are the Investigating Officers. (12.) IT is the settled law that in a case under section 376 IPC the evidence of the prosecutrix itself is sufficient to warrant conviction, if it inspires confidence. 04. 1982. The admission register has been marked Exhibit 8. P. W. 11 is the seizure witnesses. P. W. 12 and P. W. 13 are the Investigating Officers. (12.) IT is the settled law that in a case under section 376 IPC the evidence of the prosecutrix itself is sufficient to warrant conviction, if it inspires confidence. In such a case corroboration is not necessary. In the instant case, the statement made by the victim girl recorded under section 164 Cr. PC was corroborated by her in her evidence at the lime of trial. It is clear therefrom that during the tiffin hours of the school, accused Niamul Hoque called her away and Mizan took her to different places. It is also clear from the evidence that Niamul gave her a betel leaf and chocolate which caused her head reeling. She has categorically stated in her statement under section 164 Cr. PC and deposition during trial that at Beliapur accused Mizan forcibly committed rape upon her for three days. From her evidence and the evidence of her father (P. W. 2) it is also clear that she was recovered with the help of police. (13.) NOW as regards the medico-legal evidence it is clear from the evidence of Doctor that hymen was absent. The absence of mark of violence on her body and private parts does not, by itself, render her testimony incredible or does not cast any shadow of doubt in her testimony. Nothing has been elicited in her cross-examination so as to raise any suspicion as to the veracity of the prosecution case. (14.) MR. Bag, learned Counsel appearing on behalf of the appellants in this connection submits that the victim girl did not raise any hue and cry or shouts while she was allegedly taken to the bus stand or other places. Mr. Bag submits that this was not in consonance with probability. But I am unable to accept such contention of Mr. Bag. In this connection it is clear from her testimony that she was put under constant threat and intimidation and thereby Mizan forcibly ravished her sexually. Under such circumstances, the absence of mark of violence does not create any doubt. (15.) AS regards the plea of alibi of accused Niamul Hoque, the Headmaster of the school has been examined as D. W. 1 who has stated that on 13. 08. Under such circumstances, the absence of mark of violence does not create any doubt. (15.) AS regards the plea of alibi of accused Niamul Hoque, the Headmaster of the school has been examined as D. W. 1 who has stated that on 13. 08. 96 as per the attendance register Niamul Hoque was present in the class. The class teacher has not been examined. Although accused Niamul Hoque was marked present in the attendance register, it does not, by itself, suggest that the accused Niamil Hoque was present in the class during the entire school hours. The class teacher or any student of the class, if examined, could say whether or not Niamul was present in the class at the material time. Moreover, this plea was not taken at the earliest point, of time. During cross-examination of the victim or other P.Ws. , no such specific question was put to them that on 13. 8. 96 Niamul was present in the class. The plea of alibi, therefore, is unacceptable. (16.) REGARDING the age of the victim girl it has been mentioned in the FIR that she was less than 16 years of age. The admission register of the school was produced and the Headmistress has been examined as P. W. 10. She has stated that as per the admission register the date of birth of the victim girl was 22. 04. 82 (Exhibit 8). (17.) ACCORDING to the ossification test report (Exhibit 12), the victim girl was above 20 years and below 25 years. Mr. Roy in this connection has referred to and relied on the decisions reported in 2006 (1) SCC (Cri) 217 [vishnu alias Undrya vs. State of Maharashtra] and 2006 (3) SCC (Cri) 66 [state of Chhattisgarh vs. Lekhram]. In the case of State of Chhattisgarh vs. Lekhram, the observation of the Honble Apex Court is set out hereunder: "12. A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of section 35 of the Evidence act. . . . . . . . . . . . . . . . . . . . . " The observation of the Honble Apex Court made in para 13 is quoted hereunder: "13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " The observation of the Honble Apex Court made in para 13 is quoted hereunder: "13. . . . . . . . . . . . . . . . . . . . . It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix. " In the other case Vishnu alias Undrya vs. State of Maharashtra (supra) it has been held by the Honble Apex Court that the opinion of the medical officer is to assist the Court as he is not a witness of fact and the evidence given by the medical officer is really of an advisory character and not binding on the witness of fact. In the instant case the father of the victim girl lodged the FIR wherein it has been categorically stated that the victim girl was below 16 years at the time of occurrence. Relying on the said decisions, I find that the learned Trial Judge was justified in relying on the entry in the admission register of the school and holding that the victim girl was minor at the time of the alleged incident. The question of consent or leaving the school voluntarily by the victim girl, therefore, does not arise at all. From the evidence of victim girl it is clear that she was enticed away. (18.) CONSIDERING the evidence on record, I am of the considered opinion that the evidence of prosecutrix is quite natural and inspires confidence. There is nothing to discard her testimony. The contention of animosity between the parties as put to the P. Ws during their cross-examination has not been established. The evidence on record is sufficient to warrant conviction and the learned Trial Judge was, therefore, justified in passing the impugned judgment of conviction and sentence. It calls for no interference in this appeal. There is no merit in this appeal and the same stands dismissed. The impugned judgment is hereby affirmed. It appears that vide order dated 05.02.2004 the appellant Niamul Hoque was granted bail. It calls for no interference in this appeal. There is no merit in this appeal and the same stands dismissed. The impugned judgment is hereby affirmed. It appears that vide order dated 05.02.2004 the appellant Niamul Hoque was granted bail. The appellant niamul Hoque is, therefore, directed to surrender before the learned Trial court within one month from this date to serve out the sentence, failing which, the learned Trial Court will take necessary action according to law. Interim order, if any, stands vacated. (19.) LET a copy of this order be sent immediately to the concerned correctional Home where the appellant Md. Mizan is detained. Let a copy of this order along with L.C.R. be sent immediately to the learned Trial court. (20.) URGENT Xerox certified copy, if applied for, be handed over to the parties as early as possible. Appeal dismissed.