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2008 DIGILAW 670 (GAU)

Minajul Haque v. State of Assam

2008-09-09

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mrs. C. Sarma, learned Counsel who has been appointed as amicus curiae in place of Mrs. N. Moral, the earlier appointed amicus curiae as she has been found to be absent when this Criminal Appeal from jail is taken up for hearing. 2. Also heard Mr. K.A. Mazumdar, learned P.P. Assam. 3. The Appellant from jail has challenged his conviction under Section 376, IPC and sentence to undergo Rigorous Imprisonment (R.I) for 14 years and also to pay a fine of Rs. 5,000 in default, R.I. for 2 years so imposed by the learned Sessions Judge, Dhubri by his judgment and order dated 1.4.2004 in Sessions Case No. 115/2002. 4. The prosecution case in brief is that on 21.7.2002 one Md. Abubakkar Ali (PW-5) of Kaimari Part-VII, lodged an FIR with the in-charge, Chagolia Police outpost under Golakganj P.S. alleging that on 20.7.2002 (yesterday) the Appellant committed rape on his minor daughter aged about 8 years in the premises of one M.E. School. 5. On the basis of the above allegation, the police registered a case under Section 376, IPC and investigation ensued. 6. On completion of investigation, the police submitted charge sheet against the accused-Appellant under Section 376, IPC to stand for trial. 7. In course of the trial, the prosecution examined as many as 7 witnesses including the victim girl PW-4 and PW-6 Dr. Rajendra Nath Deka who examined the victim girl. 8. The accused-Appellant was also examined under Section 313, Code of Criminal Procedure. 9. The learned Sessions Judge, Dhubri, having closely appreciated the testimony of all the witnesses including the prosecutrix PW-4 and the medical evidence so adduced, by the Doctor PW-6 and also upon hearing the learned Counsel for the parties, found the Appellant guilty of the offence of committing rape on the victim girl and accordingly, convicted and sentenced the Appellant as indicated above. 10. We have scrupulously scrutinized and scanned the testimony of all the witnesses examined by, the prosecution including the prosecutrix PW-4. 11. PW-4 in her deposition categorically stated that on the day of occurrence, being a rainy day, she was sent by her mother to the market to inform her father to bring some articles. She went in the evening with her umbrella. On her return home on the way, the Appellant caught her umbrella and asked her to go together. 11. PW-4 in her deposition categorically stated that on the day of occurrence, being a rainy day, she was sent by her mother to the market to inform her father to bring some articles. She went in the evening with her umbrella. On her return home on the way, the Appellant caught her umbrella and asked her to go together. She refused the proposal by saying that her mother would be angry. Then the accused-Appellant took her into the School and loose her undergarments and committed rape with her on a bench in the class room. She protested but the accused used force on her. She attempted to raise alarm but the accused gagged her mouth. She suffered severe pain and blood was also coming out from her vagina. Thereafter she went to her house and wet her wearing apparels into the water in a bucket out of fear. She reported about the incident to her mother and according her mother sent message to her father and on his arrival she was taken to the Halakura hospital. On the following day, she was brought to Dhubri Civil Hospital by the police. She was taken to the court by the police and her statement was recorded by the learned Magistrate. 12. In her cross-examination, she reiterated her statement made in examination-in-chief stating that it was not a fact that the Appellant did not commit rape on her and no blood was coming out from her vagina. 13. Dr. PW-6 in his examination of the victim girl found the following injuries. The history of forceful sexual intercourse at 7 p.m. on 20.7.2002. Findings: the breast undeveloped. Pubic hair absent. Axillary hair absent. On P/B examination: there is second degree perineal tear with the injury of the rectal wall. Valva is redish inflame and tender. Vaginal smear: no spermatozoa seen in the smear supplied. Radiological examination: Plate No. L 3206 + 07 + 08. Left wrist joint: The epiphysis of the lower end of the radius and ulna are not fused. Left elbow joint: The epiphisis of the medial epicondyle is not fused. Left iliac crast: The epihysis is not fused. 14. Vaginal smear: no spermatozoa seen in the smear supplied. Radiological examination: Plate No. L 3206 + 07 + 08. Left wrist joint: The epiphysis of the lower end of the radius and ulna are not fused. Left elbow joint: The epiphisis of the medial epicondyle is not fused. Left iliac crast: The epihysis is not fused. 14. In the opinion of the Doctor mentioned that the radiolodical age of the person was below 18 years of age and in his opinion the rape could not excluded from the above finding considering the physical status, sex and ossification of the bones. The age of the victim girl was below 18 years of age. There was marks of violence in her private parts. 15. However, in his cross-examination, he opined that the injury on the private part of the victim girl might also be self inflicted. According to Doctor the age of the girl would be 14 years. 16. Having gone through the medical evidence as well as the version of the victim girl, it is seen that the evidence of Doctor, though contained some contradictions would go to exhibit that there were marks of violence in the private parts of the victim girl and commission of rape, could not be ruled out and at the same time, we do not find any such cogent or plausible reason to disbelieve and reject the testimony of the prosecutrix. 17. Besides, the other witnesses namely, PW-1, PW-2, PW-3 and PW-5 corroborated each other in depositing that they saw the blood was coming out on her both legs from the private part and she was crying. They also saw the blood on her garments below the waist. PW-2 in his deposition emphatically stated to the extent that he visited the school and found the blood on the bench. 18. In such circumstances, we are of the view that the prosecution could successfully prove its case beyond all reasonable doubt in bringing home the charge under Section 376, IPC against the Appellant. 19. Under the premises, we are in full agreement with the views expressed and findings recorded by the learned Sessions Judge in his impugned judgment and order and consequently, we have no hesitation to uphold the conviction so handed down to the Appellant. 20. At this stage, Mrs. 19. Under the premises, we are in full agreement with the views expressed and findings recorded by the learned Sessions Judge in his impugned judgment and order and consequently, we have no hesitation to uphold the conviction so handed down to the Appellant. 20. At this stage, Mrs. Sarma, learned amicus curiae has contended that since the Appellant is a person of young age and he has no previous criminal record, his sentence of 14 years may be reduced. 21. Having considered the submission of the learned amicus curiae and also taking into account the age of the Appellant, we find enough force in the submission of Mrs. C. Sarma and accordingly, we sentenced him for 8 years to the extent of modification of sentence of 14 years so imposed by the learned Sessions Judge. 22. This appeal stands disposed of accordingly. 23. Send down the L.C.R. immediately. 24. Before parting with the judgment, we would like to put on record our appreciation to Mrs. C. Sarma, learned amicus curiae for her valuable assistance rendered to arrive at a conclusion abovementioned. Accordingly, we order that she is entitled to get her professional fee which is quantified at Rs. 5,000.