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2008 DIGILAW 305 (GAU)

Sukur Ali v. State of Assam

2008-04-29

P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. Heard Mr. P. Mahanta, learned Counsel for the appellants and Mr. B.B. Gogoi, learned Additional Public Prosecutor, for the Respondent State. 2. The prosecution story in brief is that on 12.3.1999, one Sri Krishna Singh of Pannaighuli village filed a written Ejahar with the In-charge, Mahabhairab Police Out post alleging that in the mid night intervening 10.3.1999 and 11.3.1999, two co-villagers namely Md. Sukur Ali and Md. Abu Husain trespassed into the house of the informant and committed rape on his wife Smti. Rani Singh. Some villagers having come to know went to the house of the accused persons to enquire about the occurrence but the accused persons and their relatives armed with dao and iron rod etc., chased them out and therefore they had to run away crossing the river. On the basis of the aforesaid Ejahar a crime being Tezpur Police Station Case No. 100/99 was registered under Sections 448/376/34 IPC on 12.3.1999. The crime was investigated by the Investigating Officer, PW 7, Sri Indreswar Bora. He visited the place of occurrence on 13.3.1999 and on observing the necessary formalities and after examining some witnesses of the village arrested the accused persons on 13.3.1999. On completion of the investigation, the Investigating Officer laid the charge sheet against the accused persons namely Md. Sukur AH and Md. Abu Hussain under Sections 448/376/34 IPC. The offence under Section 376 IPC, being exclusively triable by the Court of Sessions, it was committed to the Court of learned Sessions Judge, Sonitpun The learned trial Court framed charges under Section 376 IPC. On being read over and explained to them, the accused persons pleaded not guilty and claimed to be tried. 3. The prosecution examined as many as seven witnesses including the medical officer and the investigating officer. The defence examined none. 4. The learned Sessions Judge on the basis of evidence on record convicted the accused persons in Sessions Case No. 80/99 (corresponding to G.R. No. 266/99) under Section 376 IPC and sentenced to undergo rigorous imprisonment for three years and fine of Rs.500/- each, in default another rigorous imprisonment for two months each by the judgment and order dated 14.8.2002. 5. Being aggrieved and dissatisfied with the aforesaid judgment and order, the accused persons preferred the instant appeal before this Court. 6. The prosecutrix was examined as PW 3 by the prosecution. 5. Being aggrieved and dissatisfied with the aforesaid judgment and order, the accused persons preferred the instant appeal before this Court. 6. The prosecutrix was examined as PW 3 by the prosecution. According to her deposition, she was sleeping in the night with her three-year old son and her husband was not present. Her husband was sleeping in the farm house at a distance of half an hour walk. The accused appellants entered into her house breaking open the bamboo door. The accused appellant carrying dao in their hands entered the house and they tied her hands and legs. The prosecutrix raised hulla and on hearing her hulla one lady named Matu, PW 2 and her brother-in-law came to her house before whom she reported the incident. PW 5, Sri Laxman Singh is the elder brother of the informant husband Krishna Singh. The said Laxman Singh also lives near the residence of the prosecutrix. He visited the place of occurrence in the next morning. According to PW 5, the prosecutrix told him that the accused persons entered the house of the prosecutrix and raped her by gagging her mouth. Some villagers, caught the accused persons in the next day of the occurrence and they were produced before the Mahabhairab Police Out post. The other witnesses namely PW 2 and PW 4 are also co-villagers. They also visited the place of occurrence in the next morning of the day of occurrence before whom the prosecutrix narrated that she was raped by the accused persons in her residence in the night, in the absence of her husband. But in the deposition before the trial Court they have categorically stated that the victim did not tell them about the alleged rape. PW 2 was declared hostile and in the cross-examination nothing could be brought out that the prosecutrix in fact stated before this witness about the commission of rape by the accused appellants. 7. The Investigating Officer was examined as PW 7 by the prosecution. He deposed that he visited the place of occurrence on 13.3.1999. According to him the villagers of Parmaighuli detained the accused persons namely Md. Sukur Ali and Md. Abu Hussain and on being handed over to the Police they were arrested on 13.3.1999 and produced before the Court. The prosecutrix was sent for medical examination at Tezpur Civil Hospital. He deposed that he visited the place of occurrence on 13.3.1999. According to him the villagers of Parmaighuli detained the accused persons namely Md. Sukur Ali and Md. Abu Hussain and on being handed over to the Police they were arrested on 13.3.1999 and produced before the Court. The prosecutrix was sent for medical examination at Tezpur Civil Hospital. She was also produced before the Magistrate for recording statement under Section 164 Cr.P.C. During investigation he collected the medical report and examined other witnesses and after completion of the investigation he submitted charge sheet under Section 448/376/34 IPC against the accused appellants. In the cross examination the Investigating Officer deposed that the victim PW 3 did not state before him that her hands and legs were tied. 8. The most important witness is PW 6, Dr. Ranjan Kumar Das, who examined the prosecutrix medically after being produced before him. Deposition of PW 6 may be quoted below: On 12.3.19991 was attached to Kanaklata Civil Hospital, Tezpur. On that day I had examined one Mrs. Rani Devi, W/o Sri Krishna Seal in connection with Tezpur Case and found as follows: Height – 140c.m. Weight – 48 Kgs. Breast – well developed I did not notice any mark of violence on any part of the body. During chemical examination on the vaginal smear no spermatozoa was found. No violence mark was also noticed on the genital part of the victim woman. Uterus was of normal size. In my opinion the woman was not pregnant on the date of her examination. I also did not notice any symptom of sexual intercourse. Ext. 1 is the medical report and Ext. 1(1) is my signature. The victim woman was a married woman. 9. It is clear from the medical report that there was no mark of violence on any part of the body. No mark of violence was also noticed on the genital part of the victim woman. The conclusion of doctor is that there was no symptom of sexual intercourse. It is stated at the bar by Mr. Mahanta, learned Counsel for the appellants that the accused persons, against whom the allegation of commission of rape was made were not examined medically by any doctor, although it was necessary to be done by the prosecution. It could not be ascertained whether any injury could be found on the persons of the accused. 10. Mr. Mahanta, learned Counsel for the appellants that the accused persons, against whom the allegation of commission of rape was made were not examined medically by any doctor, although it was necessary to be done by the prosecution. It could not be ascertained whether any injury could be found on the persons of the accused. 10. Mr. Mahanta, learned Counsel for the appellants further submits that the evidence of the prosecutrix does not inspire any confidence in the mind of the Court inasmuch as there is no support from the medical report and also the evidence of the doctor, PW 6. The medical report is very much clear that there was no sign of violence and no symptom of sexual intercourse on the victim. It is submitted by Mr. Mahanta that unless the medical evidence supports the evidence of the Victim woman no conviction can be recorded by the trial Court. 11. It is also the submission of Mr. Mahanta that penetration is the sine qua non in the case of rape. There is no medical evidence of penetration and that being the position the offence of rape against the accused appellants has not been proved and they are entitled to acquittal. 12. The further stand of Mr. Mahanta is that the charge of rape against the accused appellant has not been proved beyond reasonable doubt and the accused appellant should be acquitted giving them benefit of doubt. 13. The last submission of Mr. Mahanta is that the informant husband of the prosecutrix brought the allegation against the accused appellant out of old vengeance that the prosecutrix's husband owed some money to the accused appellant and on his failure to refund the same a case of rape on his wife has been brought against them. Mr. Mahanta has drawn the attention of this Court on the evidence of PW 3 in which she admitted that the accused appellants were working as labourers under the informant. 14. I have gone through the evidence on record, particularly the evidence of PW 3, the prosecutrix who has brought the allegation of rape on her by filing the FIR through her husband. In the mid night, according to the prosecutrix, her hands and feet were tied with plastic ropes. She tried to get herself released and also shouted to attract the neighbours. In the mid night, according to the prosecutrix, her hands and feet were tied with plastic ropes. She tried to get herself released and also shouted to attract the neighbours. But had it been done so there must have been injuries on her legs and feet and some co-villagers would have come to the scene for her rescue but the medical report is very much clear that there was no sign of injury on her legs and feet although she categorically stated that she was tied by plastic ropes and was struggling. There is no evidence that the neighbours heard any hulla or cry from the prosecutrix in the night of occurrence. This belies her evidence that she was tied with ropes in her hands and feet and that she cried for help at the time of alleged incident. There is no evidence to the effect that the accused persons or one of the accused persons forcefully penetrated the man genital into her vagina and that she resisted against such forceful attempt. The established law in the case of rape is that there must be penetration or it must be said that the penetration is the sine qua non. Penetration may not mean full penetration. Slightest penetration is sufficient. It was so held by the Apex Court in the case of Tarkeswar Sahu v. State of Bihar reported in (2006) 8 SCC 560 . Such penetration in the vagina has not been established by the medical report and as such it cannot be firmly said that a case of rape has been established in the instant case. 15. In view of absence of support from the medical report and also the evidence of the doctor, PW 6, this Court finds the evidence of the prosecutrix, PW 3, unreliable and it has failed to inspire the confidence of the Court and accordingly I hold that the prosecution has failed to prove its case beyond reasonable doubt. 16. I am unable to persuade myself to accept the evidence of the prosecutrix, PW 3, and to hold that the prosecution has been able to prove the case against the accused appellants beyond reasonable doubt. 17. 16. I am unable to persuade myself to accept the evidence of the prosecutrix, PW 3, and to hold that the prosecution has been able to prove the case against the accused appellants beyond reasonable doubt. 17. That being the position, the impugned judgment and order convicting and sentencing the accused appellants is based on no evidence on record and the same is required to be interfered with giving the benefit of doubt to the accused appellants. 18. The impugned judgment and order dated 14.8.2002, passed by the learned Sessions Judge, Sonitpur, in Sessions Case No. 80/99 (corresponding to GR. Case No. 266/99), is liable to be quashed and accordingly the same is quashed. The accused appellants are acquitted on benefit of doubt and set at liberty forthwith. 19. This appeal is allowed. LCR may be sent down. Appeal allowed.