Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 969 (GAU)

Md. Abdul Aziz v. State of Assam

2011-12-08

P.K.MUSAHARY

body2011
JUDGMENT P.K. Musahary, J. 1. Heard Mr. H.R.A. Choudhry, learned senior counsel along with Mr. S. Huda, learned counsel for the appellant and Mr. B.B. Gogoi, learned Addl. Public Prosecutor, Assam. The appellant was convicted under Sections 376/448/506, IPC and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 5000/- only, in default simple imprisonment for another six months for the offence under Section 376, IPC and further convicted and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 500/- only, in default simple imprisonment for another one month for the offence under Section 448, IPC and also sentenced to R.I. for one year and to pay fine of Rs. 500/- and in default simple imprisonment for another one month for his conviction under Section 506, IPC and all the above sentences have been directed to run concurrently vide judgment and order dated 8.11.2010 rendered by the learned Addl. District and Sessions Judge (FTC) Sankardev Nagar, Nagaon, Hojai in sessions case No. 10(N)2009. 2. The prosecution story is that on 31.8.2008 at about 10 p.m. when the prosecutrix was sleeping in her room the accused Abdul Aziz, by pushing open the bamboo door, entered her bed room, who on hearing sound of opening the door tried to get up but failed to do so as the accused had already gagged her mouth and thus forcibly committed rape on her. Initially she could not recognize the accused due to darkness but when the accused warned her not to file any case or report to anyone about the incident or else she would be killed, she could recognize the accused by his voice and she raised hue and cry. The accused then fled away. The victim lodged the complaint before the SDJM, Sankardev Nagar, Hojai on 3.9.2010. The delay was caused due to village Bichar which could not solve the matter. The said complaint was registered as CR 368/08 under Sections 457/376/526, IPC which was made over to a judicial Magistrate, 1st Class for disposal. After taking cognizance, the case was committed to the Court of Sessions at Nagaon who made over the same to learned Addl. Sessions Judge (FTC), Nagaon for disposal. The learned trial Court framed charge against the accused/appellant under Sections 448/376/506, IPC. After taking cognizance, the case was committed to the Court of Sessions at Nagaon who made over the same to learned Addl. Sessions Judge (FTC), Nagaon for disposal. The learned trial Court framed charge against the accused/appellant under Sections 448/376/506, IPC. The accused, on being read over and explained the charges, pleaded not guilty and claimed to stand the trial. The prosecution, to prove its case, examined Tour witnesses including the victim and the accused also, in his defence examined six witnesses including himself. On consideration of the materials and evidence on record, and upon hearing the learned counsel for the parties the learned trial Court convicted and sentenced the appellant as stated earlier. 3. The prosecutrix made statements before a Magistrate under Section 164, Cr.P.C. In her statement under Section 164, Cr.P.C. she clearly stated that her younger brother Abu Taleb was sleeping by her side in a separate bed. The victim woman was examined as PW 1. She was cross-examined thoroughly by the defence. In her cross-examination, she stated before the learned trial Court that her brother Abu Taleb was sleeping in a separate room in the same house. One Abdul Noser, brother of the victim was examined as PW 2. He stated that her victim sister slept in a single room and in the night of the incident Abu Taleb, aged about 5/6 years was sleeping in the same room. Another brother of the victim, Md. Abdul Kalam, who was examined as PW 3, deposed that Abu Taleb stayed in one room for his study and in the other room of the house the victim stayed. 4. The whole case depends upon the evidence of the victim who was examined as PW 1. The veracity and truthfulness of the victim in adducing the evidence is to be examined for upholding the conviction and sentence awarded by the learned trial Court inasmuch as there is no eye-witness to the incident of rape. In the night of incident, as per her statement under Section 164, Cr.P.C., the victim was sleeping in her room and her younger brother Abu Taleb was sleeping on the next bed. At the time of incident her father was not present at home. But her brothers namely Abdul Kalam (PW 3), Abu Noser (PW 2) and Abu Helal (PW A) were present who came out after hearing her shouting. At the time of incident her father was not present at home. But her brothers namely Abdul Kalam (PW 3), Abu Noser (PW 2) and Abu Helal (PW A) were present who came out after hearing her shouting. All her brothers searched for the accused but they could not find him. She has stated in her cross-examination that her brother Abu Taleb was sleeping in one room and she was sleeping in another room. It means that the victim and her brother Abu Taleb were sleeping in separate rooms. There is a contradiction in her statement as regards the sleeping of Abu Taleb who was not examined. As per the evidence of Abu Noser, PW 2, Abu Taleb a minor boy of 5/6 years. 5. As per the statement of the prosecutrix under Section 164, Cr.P.C. and also her evidence before the learned trial Court, the accused was her teacher and she knows him well. All the other PWs, who are brothers of the victim, also deposed that the accused is a teacher. In her statement before the Magistrate and the evidence before the learned trial Court she never stated that her brothers saw tile accused on the courtyard or they could see the accused in the flash light of torch used by Abdul Kalam (PW 3). It does not matter whether, in fact, the said PW could see or meet the accused on the courtyard. The said PWs who met the accused did not make any attempt to detain him although he was seen by them in the courtyard just after they heard the shouting of their sister. They easily let him go when the accused told them that he would return in a few moments after urination and would talk to them. The accused did not return, yet the said PWs, brothers of the victim, did not make any hue and cry or report the village elders, not even a villager regarding suspicious presence of the accused at their courtyard in the midnight. The said PWs were told by their sister that the accused trespassed into her room and committed rape on her. They have not reported the matter immediately to the police or the village headman about the said incident. They have waited reportedly for village bichar and lodged the complaint before the Magistrate on 3.9.2008 i.e. after 3 days. The said PWs were told by their sister that the accused trespassed into her room and committed rape on her. They have not reported the matter immediately to the police or the village headman about the said incident. They have waited reportedly for village bichar and lodged the complaint before the Magistrate on 3.9.2008 i.e. after 3 days. No evidence has been led by producing/examining the villager(s) to prove that the prosecutrix and/or her guardians sought justice in the village bichar and the villagers failed to solve the matter. 6. Admittedly the victim was not examined by any Medical Officer and naturally there is no medical report to ascertain or have the opinion of the Medical Officer on forcible rape and also to ascertain whether the victim received any injury on her person. It is to be noted that all the PWs, except the official witness, are related and interested witnesses. The prosecution did not examine any independent witness, not even any neighbour. It was necessary to do so to corroborate the evidence of the victim that she shouted in the night of incident and her cry for help was heard by at least some neighbours and search was made by the brothers of the victim. There is no evidence that the said brothers of the victim tried to wake up or inform some neighbours and join them in searching or apprehending the accused whom they met at the courtyard; after all the alleged incident took place in the village and it was expected that the villagers, at least the neighbours, would come out at any time if any commotion is created, particularly during night time. Why the brothers of the victim did not inform the villagers although they have suspicion over the presence of the accused in their court-yard in the night time in a doubtful manner, has not been explained and as such the veracity or truthfulness of the evidence of PWs 1 to 4, is not above any doubt. The evidence of PWs 1 to 4 is quite unnatural and unbelievable. Such evidence cannot lend any corroborative value to the evidence of the victim and it cannot be a basis for conviction of the accused. 7. The evidence of PWs 1 to 4 is quite unnatural and unbelievable. Such evidence cannot lend any corroborative value to the evidence of the victim and it cannot be a basis for conviction of the accused. 7. The victim woman in her evidence in cross-examination stated that her husband Asrof Ali expired long 15 years ago and after his death she was not married to any other person but the defence produced and examined the said Asrof Ali as DW-1. The said DW-1 clearly denied that he ever died. He rather stated that he married her 10 years back and out of such wedlock her wife (victim) gave birth to a stillborn male child. He was living in his in-law's house but he was driven out by the parent's of the prosecutrix, The said DW-1 categorically stated that the prosecutrix subsequently got married to three other persons. The prosecution cross-examined this defence witness but could not demolish his evidence that he married the prosecutrix. It is a strange behaviour of the prosecutrix that she could depose falsely stating before the Court that her husband had died although her husband is still alive. The evidence on record is very much clear that the prosecutrix got married to DW 1 and they; due to some reasons, had been living separately and her former husband, DW-1 is still alive, although living separately. The prosecutrix suppressed the fact of her marriage with Asrof Ali who is still alive. She has given false evidence that her former husband has expired. Whatever may be the reason for adducing such evidence, it is unthinkable that the prosecutrix could venture to say that her living former husband has died suppressing the known fact that he is still alive. It may be wrong to say that the prosecutrix is a bad character but it would not be wrong to say that she is a most untruthful and unreliable person. Evidence of such person cannot be accepted as true and correct, In my view, her evidence is as much unnatural and unbelievable as untrustworthy, far less inspiring confidence of the Court for convicting the accused person. 8. As per evidence on record after separation from her former husband, DW-1, she was lying in her parent's house. She has been staying in a separate room. In the night of incident she was living alone in a separate room. 8. As per evidence on record after separation from her former husband, DW-1, she was lying in her parent's house. She has been staying in a separate room. In the night of incident she was living alone in a separate room. Her younger brother was a minor boy of 5/6 years. It does not matter whether he was sleeping in the same room or in a separate room. What matters is that as a married woman, although as alleged by her, she was gagged by the accused she could have put physical resistance on the outrageous act of the accused, to save herself. She has not stated in her evidence that before being raped, she resisted the accused and inspite of such resistance she failed to prevent the accused and in course of such resistance she received injuries on her person. In absence of such evidence the Court may take other view that she was a consenting party and the accused entered the room of the prosecutrix at her invitation or call and there was no case or question of committing rape on her. How far the version of the prosecutrix is believable would depend on the evidence of independent witnesses who would make statements that they heard the shouting of the prosecutrix in the death of night and they came out to see what happened in the house of the prosecutrix. There is no such evidence from the neighbours or any independent witness supporting her version. She had only her own brothers, who deposed in support of her version that they heard the shouting of the prosecutrix. As stated earlier they also did not make any attempt to call any co-villager immediately after the incident. The evidence of PWs 2, 3 and 4 could be accepted only if their evidence was corroborated by any neighbour or at least some villagers. In the facts and circumstances of the case, particularly looking at the conduct of the prosecutrix as discussed earlier, the credibility of the aforesaid witnesses has been damaged and such evidence, in the eye of law, is not sufficient for awarding conviction of the accused. 9. There is another factor for disbelieving the prosecution case. The convict appellant took the stand that it is a false case and it was instituted out of old grudge. 9. There is another factor for disbelieving the prosecution case. The convict appellant took the stand that it is a false case and it was instituted out of old grudge. The appellant maintained in his evidence that the father of the prosecutrix was the President of the local School where he has been serving as a teacher. The appellant examined himself as DW-6. He deposed that Abdul Hai and Halima Khatun were father and mother of the prosecutrix. The mother of the prosecutrix has been working as a mid-day meal cook in the school under Sarvasiksha Abhijan Scheme. Abdul Hai, father of the prosecutrix was the President of the School building construction committee since 2006 and during his presidentship a meeting was held on 15.9.2007 in the school premises and as per the resolution of the said meeting the said Halima Khatun was removed from the service of mid-day meal cook for negligence of her duty. The appellant also deposed that on 25.9.2007 an executive meeting was held and it was discussed in the said meeting that Abdul Hai wanted Rs. 50,000/- out of Rs. 4 lack sanctioned for construction of School building but the said amount of Rs. 50,000/- was as not paid to him. At that time the appellant was the Secretary of the school building construction committee and the monetary transaction was done by the appellant as Secretary of the said construction committee. The said committee took resolution removing Abdul Hai from the presidentship of the school building construction committee. The parents of the prosecutrix became inimical to the accused after they were removed from their respective position. This piece of evidence of the accused appellant could not be dislodged by the prosecution during cross-examination, rather PW 1 (victim) admitted that her father was the president of the School Managing Committee in which the accused is a teacher and on allegation of mis-management of school found a case was filed against her father. Abdul Kalam (PW 3) also admitted that when his father was the president of the said committee, a complaint was lodged against him. A suggestion was put to him that his father wanted an amount of Rs. 50,000/- from Abdul Aziz (accused) but as he did not oblige there was a fight between his father and the accused. Abu Halem (PW 4) also deposed on the affairs of the school. A suggestion was put to him that his father wanted an amount of Rs. 50,000/- from Abdul Aziz (accused) but as he did not oblige there was a fight between his father and the accused. Abu Halem (PW 4) also deposed on the affairs of the school. It was suggested to him that as the amount of Rs. 50,000/- was not paid to her father out of Rs. 4 lacs sanctioned for construction of school building a false case was filed against the accused. The said PW 4 was also suggested that a case was filed against his father by accused Abdul Aziz for mismanagement of school fund and out of grudge this false case has been filed to take the revenge. The defence also took the plea that a false criminal case has been instituted against the accused out of grudge. On the face of such evidence the possibility of instituting a false criminal case cannot be ruled out. 10. The convict, as D.W. 6, deposed that while he was under treatment at Lanka Primary Health Centre, a meeting was held on 31.8.2008 in presence of public, including the victim and her father Abdul Hai. They demanded Rs. 13,000/- from him for withdrawal of the criminal case. There was a written agreement signed by the convict and he paid the said amount of Rs. 13,000/- to the victim on 17.2.2009 in presence of Abdul Hai, Hassen Ali and the village Headman. The said agreement was proved and marked Ext. A. It is recorded therein that the dispute has been settled amicably in their village in presence of their relatives, friends and well wishers for mutual good. The Ext.A agreement executed on 17.2.2009 between the prosecutrix and the accused appellant bears the RTI of prosecutrix and the signature of her father Abdul Hai. The fact that the appellant was under treatment in the said primary health centre has been proved by adducing Dr. Ranju Rajkhowa, DW-5, who was working as Medical and Health Officer in the said health centre at the relevant point of time. 11. In regard to delay in filing the complaint the prosecutrix deposed that the incident took place on a Sunday and on the next day i.e. Monday, Court was closed for which she had to file the complaint on 3.9.2008. 11. In regard to delay in filing the complaint the prosecutrix deposed that the incident took place on a Sunday and on the next day i.e. Monday, Court was closed for which she had to file the complaint on 3.9.2008. If on Monday the Court was closed, she was supposed to file her complaint on the next day i.e. Tuesday but from record it is found that she filed the complaint not on Tuesday but on Wednesday. Her explanation is that as she was waiting for settlement of the matter out of Court she filed the complaint on Wednesday when settlement could not arrived at. The conduct of the prosecutrix goes to show that she was interested in settling the matter out side the Court and in fact she received Rs. 13,000/- from the accused after signing the Ext.A agreement. She avoided lodging FIR with the local police and thereby she also avoided medical examination which is a must in a case of rape. This speaks volumes against the prosecutrix reducing her to a most unreliable witness. 12. Considering the questionable propensity of the prosecutrix, I am tempted to refer to the case of Moinul Hoque and Ors. v. State of Assam (2001) 1 GLR 516. In paragraph 16 of the judgment it is held as under: It is true that a Court has to take seriously the cases relating to violence against woman. Simultaneously, the Court has a duty to guard itself against false charges of rape. The narration of the prosecution case is full of vital omissions and contradictions and it raises strong doubt which over-shadows the genesis of the prosecution case. In my opinion, it would be unsafe to sustain the conviction in this case relying upon the testimony of the prosecutrix alone. Dignity of woman will have to be protected, but without aid of emotion. This is undoubtedly not a case where the prosecutrix has the last 'say'. 13. In my opinion, it would be unsafe to sustain the conviction in this case relying upon the testimony of the prosecutrix alone. Dignity of woman will have to be protected, but without aid of emotion. This is undoubtedly not a case where the prosecutrix has the last 'say'. 13. This Court is also not unmindful of the observations made by the Apex Court in Sadashiv Ramrao Hadbe v. State of Maharashtra (2006) 10 SCC 92 , wherein it has been observed that it is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring confidence in the mind of the Court and if the version given by the prosecutrix is supported by medical evidence and the whole surrounding circumstances makes the case set up by the prosecutrix highly probable and believable. Therein it is also observed that the Court shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. 14. The improbability factor found in the present case is that the accused-appellant who had a strange relationship with the family of the prosecutrix would never take any risk by visiting her house in the night time unless he was confident enough that the prosecutrix called him or desired his visit at her house. The other improbability factor is that all the brothers were present in the house in the night of the incident. The accused appellant, even supposing that the prosecutrix desired his visit, would not have taken the risk of being caught by her brothers because they were also inimical to the appellant. The question that has been posed is that inspite of risk factor whether, it was likely that he would visit the house of the prosecutrix. An answer to this question largely depends on the evidence adduced by the prosecution. In this regard, the evidence of PWs 1 to 4 may be appropriated as under: (a) The victim as P.W. 1 stated that though she did not see the accused Abdul Aziz physically, she could recognize him on hearing his voice, only. (b) She has nowhere mentioned that her brothers could see the accused on the courtyard and could see him in the flash light of torch used by Abdul Kalam PW 3. (b) She has nowhere mentioned that her brothers could see the accused on the courtyard and could see him in the flash light of torch used by Abdul Kalam PW 3. Her only claim is that she could recognize him on hearing his voice when accused Abdul Aziz cautioned her not to report the incident to anyone. Had the accused been seen by accused Abdul Kalam it must have been clearly mentioned in her complaint petition itself and her statements made under Section 164, Cr.P.C. Abu Noser PW 2, stated that at first Kalam went inside the bedroom of Anowara, and thereafter, they went, whereas the victim stated that her brother came near to her with a lathi in hand and nothing else was in his hand. She did not make any mention of use of any torch light by anyone. (c) Abu Noser PW 2, candidly admitted that he had not seen the accused in that night. (d) Abu Hilal PW 4, however, clearly stated that he had not seen the accused in that night. 15. From the above evidence it is, therefore, very much clear that the statement of Abdul Kalam, PW 3, is an improvement to testify that he had a torch and on the flashing of the torch light he could see the accused Abdul Aziz at their courtyard. Had it been factually true there could have been no reason for not mentioning this most vital information in the complaint petition, as well as, in statement of the complainant and her brothers. So, the claim of recognizing the accused Abdul Aziz in the flash light of a torch, deserves outright rejection. In this regard, I would like to refer to the case of State of Orissa v. Chandira Pentia, 1981 Cri LJ 1060 (Ori) wherein, in respect of risk of identification of accused by voice, it is observed as under: 9... Regarding the identification of the accused, it is also not safe to convict the accused merely on the identification from his voice. In Modi's Medical Jurisprudence also it has been observed that to recognize a person from his voice is an every day occurrence though it is too risky to be relied upon in criminal cases. 16. Regarding the identification of the accused, it is also not safe to convict the accused merely on the identification from his voice. In Modi's Medical Jurisprudence also it has been observed that to recognize a person from his voice is an every day occurrence though it is too risky to be relied upon in criminal cases. 16. Since the prosecutrix avoided medical examination, she could not be examined medically to obtain a report of the Medical Officer or to ascertain whether she received any injury on her person due to alleged rape committed upon her by the appellant. Except her oral evidence, there is no other medical or other documentary evidence supporting her allegation. As discussed earlier her evidence has been found as much artificial as imaginary, which is due to subsisting rivalry between her family and the accused appellant. The possibility of making false allegation against the appellant is not unusual and cannot be ruled out. This Court would definitely sustain the impugned conviction had her evidence been found to be natural, trustworthy and inspiring confidence of the Court. The Apex Court in Narayan v. State of Rajasthan reported in (2007) 6 SCC 465 , held that though evidence of prosecutrix can alone sustain conviction of the accused but if the evidence is found so artificial that it cannot be accepted, conviction and sentence imposed upon the accused for offences punishable under Sections 376 and 392, IPC is liable to be set aside. On appreciation of the evidence on record, particularly the evidence of prosecutrix, whose evidence has been found artificial, unreliable and inconsistent, which, as per the settled position of law, cannot be accepted or acted upon for awarding conviction, I would desist from affirming/upholding the conviction and sentence awarded by the learned trial Court. I am not satisfied that the prosecution has been able to prove the charge against the appellant beyond all reasonable doubt. The convict appellant is entitled to get the benefit of doubt and acquittal on that score. The impugned conviction and sentence are hereby quashed and set aside. The appellant is acquitted on benefit of doubt. The bail bond shall stand discharged. The appellant be set at liberty forthwith provided his further detention is not required in connection with any other case. The appeal is allowed. Sent down the LCRs forthwith.