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2010 DIGILAW 656 (GAU)

Moinul Haque alias Moina Mia v. State of Assam

2010-08-26

AMITAVA ROY, C.R.SARMA

body2010
JUDGMENT Amitava Roy, J. 1. Being aggrieved by his conviction under section 376(2)(g) of the Indian Penal Code ('the Code/IPC') and the sentence of rigorous imprisonment for life as well as fine of Rs. 10,000, in default, simple imprisonment for six months by the judgment and order dated 7.10.2005 passed by the learned Sessions Judge, Karimganj in Sessions case No.24 of 2005 the appellant is in appeal. 2. We have heard Mr. H.R.A. Choudhury, senior advocate assisted by Ms. S.K. Nargis, and Mr. I. Hazarika, advocates for the appellant and Mr. Z. Kamar, learned Public Prosecutor, Assam. 3. An FIR was lodged by one Karnel Khashia on 10.9.2003 with the Officer-in-Charge, R.K. Nagar police station, Karimganj alleging that about 1.30 a.m. of 9-10.9.2003, the accused-appellant and 2/3 others had trespassed into the house of the victims Bon Khasia, Bikha Khasia and Wangti Khasia and that not having been able to locate them had assaulted him. It was further alleged that prior thereto on 3.9.2003, the accused-appellant and others as above had similarly intruded into the house of the aforementioned victims and had committed rape on them besides injuring one Karnel Khasia by assaults. The FIR further disclosed that the accused persons had threatened the victims and the injured not to report the incident to the police as otherwise they would suffer serious consequences. 4. On the FIR, R.K. Nagar P.S. case No. 66 of 2003 under sections 447/325/307/376//34, IPC was registered and on completion of the investigation, charge sheet was laid only against the appellant under sections 457/342/352/376(g) of the Code. Though in course of the investigation, others were also arrested they were not sent up for trial as the Investigating Officer was of the view that no incriminating material could be detected against them. 5. Eventually, on being committed, charge was framed against the accused-appellant under sections 448/376(2)(g) of the Code. He having pleaded "not guilty" trial was held. The prosecution examined as many as 11 witnesses including the Magistrate who recorded the statements of the victims under section 164, Cr.PC, the doctor who examined the victims and the Investigating Officers. The statement of the accused appellant under section 313, Cr.PC was recorded. No witness was examined by the defence. By the impugned judgment and order the conviction and sentence as referred to hereinabove followed. 6. The statement of the accused appellant under section 313, Cr.PC was recorded. No witness was examined by the defence. By the impugned judgment and order the conviction and sentence as referred to hereinabove followed. 6. Before adverting to the rival submissions, it would be appropriate to deal with the evidence on record in brief. PW1 Toni Khasia, the husband of Wanti Khasia (PW3) stated that in the evening of the occurrence at about 9/9-30 p.m. while he along with Tham Khasia and one Repine Khasia were returning home from the market, the accused-appellant and the other accused persons and others intercepted them. They tied up the witness and Repine and sent Tham Khasia to fetch their wives. According to the witness, after Wanti Khasia and Bon Khasia, the wives of two captives reached the place of occurrence they in turn were taken to the nearby jungle and were raped successively by the accused-appellant and his companions. This witness stated that thereafter they were released with the warning not to inform the police about the incident. As the accused-appellant and his companions returned to their house at about 1/1-30 a.m. after a week the FIR was lodged. In cross-examination, this witness conceded that he was not familiar with the other accused persons though he knew the accused-appellant Moina Mia from before. He further stated that the place of occurrence was located at about 1/1 miles away from his house and that they were all detained by the miscreants for 1/ hours at the place of occurrence. 7. PW2 Smt. Bon Khasia, wife of Repine Khasia stated on oath that about 10/10-30 p.m. in the evening of the occurrence while she was in the house, her younger brother Tham came and informed her that the accused-appellant Moina had kept her husband Repine Khasia detained on the road to the market. On being asked the witness accompanied Tham to the place of occurrence. She also stated that on being asked by Tham, Wanti also accompanied them. After having reached the place of occurrence, the witness stated that the accused-appellant Moina Mia and his companions committed rape on her as well as on Wanti Khasia in succession. Thereafter, according to the witness, the accused-appellant asked her husband to bring Bikha Khasia who was at home. After she had arrived, she was made to accompany the accused-appellant. After having reached the place of occurrence, the witness stated that the accused-appellant Moina Mia and his companions committed rape on her as well as on Wanti Khasia in succession. Thereafter, according to the witness, the accused-appellant asked her husband to bring Bikha Khasia who was at home. After she had arrived, she was made to accompany the accused-appellant. The witness, however, expressed her unawareness of the fate of Bikha Khasia. She mentioned about the statement made by her under section 164, Cr.PC and also medical examination to which she was subjected. In cross-examination, this witness stated that it took about 10 minutes to reach to the place of occurrence from her house. PW3 Ms. Wanti Khasia, wife of PW1 reiterated the statement of PW2 in substantial terms. She also mentioned about her medical examination as well as the interrogation by the Investigating Officer. She stated to have made her statement before the court about the incident. In cross-examination, she affirmed the statement of PW2 that it took about 10/12 minutes to reach the place of occurrence from her house. She denied to have stated before the Magistrate that the accused-appellant and other accused persons had broken open the door of their house and had committed rape on her, Bon Khasia as well as Bikha Khasia at gun point. She denied the suggestion of not having stated before the police that the accused-appellant had taken her to the jungle and committed rape on her. The deposition of B. Khasia alias Bikha Khasia (PW4) is also to the effect that on being asked by Tham in the evening of the occurrence requiring her to go to accused-appellant Moina Mia being called by him, she went to the place of occurrence and was thereafter raped by him (accused-appellant). The witness also stated about the threat meted out by the accused-appellant if she dared to inform the police of the incident. In cross-examination, she denied to have stated before the Magistrate that on 3.9.2003 during night when she was sleeping in the house of Repine Khasia along with Wanti Khasia and Bon Khasia, the accused-appellant along with another Unknown person had trespassed thereto and had committed rape on them. The version of PW5 Dr. Nazma Begam is to the effect that on medical examination of Karnal Khasia, the informant, no injury was found on his body. PW6 Dr. The version of PW5 Dr. Nazma Begam is to the effect that on medical examination of Karnal Khasia, the informant, no injury was found on his body. PW6 Dr. Sibnath Paul had examined the victims. In his statement on oath he enumerated the signs/injuries detected by him in course of the medical examination on them. (1) Bon Khasia - A married girl. Hymen ruptured. Already given birth two children. Signs of molestation present over her breast. (2) Wanti Khasia - A married girl. Hymen ruptured. Already given birth two children. Signs of molestation present over her breast. (3) Bikha Khasia - Unmarried girl with ruptured hymen with signs of molestation over her breast. In my opinion, all three ladies are raped. In cross-examination this witness stated on oath about the absence of specific signs of violence on the bodies of the witnesses. According to him, the vaginal swab of the victims did not indicate presence of spermatozoa. He further stated that no injury was found in their private parts. According to him, he had concluded that rape was committed on the victims on the basis of signs of molestation bearing on their body and ruptured hymen. PW7 Sri Karnel Khasia is the informant. He stated on oath that on the date of the occurrence, Tham Khasia in the evening had informed him that the accused-appellant Moina Mia had asked him to take Bon Khasia and Wanti Khasia to the place of occurrence where Repine Khasia and Tone Khasia were kept tied. The witness stated that thereafter Bikha Khasia was also summoned by the accused-appellant. He stated that three women thereafter informed him that they had been raped by Moina and his companions. According to him, after a week the accused-appellant along with others visited their house and asked him to open the door and as he refused to do so, he was apprehended and assaulted whereafter he lodged the FIR. PW8 Sri Sunil Kr. Nath is the police officer who had taken steps for the investigation of the case on receipt of the FIR from Karnel Khasia (PW7). He stated to have forwarded the victims for medical examination. In cross-examination, he amongst others mentioned that the victims Bon Khasia, Wanti Khasia and Bikha Khasia had not mentioned in their statements under section 161, Cr.PC about the activities of the accused-appellant in course of the commission of rape on them. He stated to have forwarded the victims for medical examination. In cross-examination, he amongst others mentioned that the victims Bon Khasia, Wanti Khasia and Bikha Khasia had not mentioned in their statements under section 161, Cr.PC about the activities of the accused-appellant in course of the commission of rape on them. PW9 Sri Santosh Mohan Das and PW10 Sri Kanti Bhusan Deb are also police officers who had participated in the investigation. 8. Mr. Choudhury has argued with reference to the FIR that as neither in the charge framed against the accused-appellant nor in course of his statement under section 313, Cr.PC the incident of alleged rape committed by him along with others on 3.9.2003 was mentioned, the trial stood vitiated by such incurable omissions and that, therefore, the impugned judgment and order is liable to be adjudged null and void. As the accused-appellant stood wholly misguided by such omissions the learned senior counsel has argued that the trial was in total denial of his basic right to fairness in procedure and therefore the impugned conviction and sentence is liable to be set aside. 9. According to Mr. Choudhury, not only the prosecution case is inherently improbable, the same being wholly contradictory to the one projected in the FIR, rendered it untrustworthy and on this count as well and the impugned judgment and order is liable to be interfered with. Referring to the evidence of PW1, PW2, PW3 and PW4 in particular, the learned senior counsel has urged that the same is irreconcilable and has wholly razed the prosecution case. According to him, as the medical evidence demonstrates against commission of rape on the victims, the charge framed against the accused-appellant has to essentially fail. The learned senior counsel without prejudice to the above has argued with reference to the Explanation (1) to section 376, IPC that as in the facts and circumstances of the case, the prosecution has failed to prove the existence of any common intention involving the accused-appellant and others in the commission of the alleged act of rape, the charge under section 376(2)(g), IPC is not sustainable against him (accused-appellant) and therefore the impugned judgment and order ought to be set aside in the interest of justice. 10. Mr. 10. Mr. Kamar as against this has maintained that having regard to the evidence of the prosecution witnesses who are the victims of heinous offence of gang rape, the mere omission on the part of the Investigating Officer in not sending up the co-perpetrators for trial would not absolve the accused-appellant of the charge. As the prosecution witnesses have been able to convincingly demonstrate the commission of the offence of gang rape by the accused-appellant and his companions, the learned court below was perfectly justified in recording the conviction and sentence against him (accused-appellant). Mr. Kamar has dismissed the plea taken on the omission of the charge and statement under section 313, Cr.PC contending that the same did not mislead the accused-appellant in any manner whatsoever and the same at best constitute irregularities not vitiating the trial. 11. We have lent our anxious consideration to the materials on record and the arguments advanced. The FIR at the first instance in clear terms mentions about the alleged offence of rape on the same victims said to have been committed by the accused-appellant on 3.9.2003 in their house(s). Admittedly, following the said incident, if at all true, no FIR or information was lodged with the police about the same immediately thereafter. It is the case of the prosecution that when the accused-appellant along with his companions returned to the scene after a week in the dead of night of 9-10.9.2003 that the FIR was lodged. The version of the prosecution and more particularly the victims at the trial depict an apparent shift in material particulars bearing on the charge from the one disclosed in the FIR. The victims in their statements on oath have stated that the accused-appellant and his companions had committed rape on them in succession in a nearby jungle by the side of the road leading to the market from their house. They have stated that on being informed by one Tham Khasia that they had been summoned by the accused-appellant, they accompanied him to the place of occurrence whereafter they were subjected to gang rape. According to them, the distance between their house and the place of occurrence require 10/12 minutes to cover, PW3 in particular had stated that there is a human habitation in the vicinity of the place of occurrence, though scattered. According to them, the distance between their house and the place of occurrence require 10/12 minutes to cover, PW3 in particular had stated that there is a human habitation in the vicinity of the place of occurrence, though scattered. The incident according to them had taken place late in the evening between 9 to 10-30 p.m., PW7 Karnel Khasia, the informant had in his deposition stated about his interaction with Tham Khasia in the evening of the occurrence in course of which the latter had informed him that the victims were wanted by the accused-appellant who along with his companions had kept Toni Khasia, the husband of PW3 and Repine Khasia the husband of Bikha Khasia confined on the road near the place of occurrence. Surprisingly, on receipt of such information as well, no immediate step was taken either by PW7 or others. It passes one's comprehension as to why though a human habitation being present in the place of occurrence, no one was alerted or informed about the possible sordid consequences to follow. 12. The medical evidence as the testimony of PW6 reveals is not very decisive about the commission of gang rape on the victims. This witness in categorical terms stated about absence of signs of violence on their bodies, more particularly their private parts. According to him, no spermatozoa was found in their vaginal swab. 13. In a view of the noticeable anomalies as above and the burden of proof on the prosecution imposed by law, we have no hesitation to hold that the charge against the accused-appellant as framed has remained unproved. The evidence produced by the prosecution falls much short of the requirement of establishing the same beyond all reasonable doubt. 14. In the above view of the matter, the appeal is allowed. The impugned judgment and order dated 7.10.2005 referred to hereinabove is set aside. The accused-appellant is ordered to set at liberty forthwith. Appeal allowed.