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2012 DIGILAW 1276 (GAU)

Md. Mazir Uddin v. State of Assam

2012-11-20

I.A.ANSARI, P.K.MUSAHARY

body2012
JUDGMENT I.A. Ansari, J. 1. This appeal has been preferred against the judgment and order, dated 31.03.2007, passed, in Sessions Case No. 20/2005, by the learned Sessions Judge (FTC), Karimganj, convicting the accused-appellant under Section 457 and Section 376 read with Section 511, IPC and sentencing him, for his conviction under Section 376, read with Section 511, IPC, to undergo imprisonment for life and pay fine of Rs.2,000/- and, in default of payment of fine, suffer simple imprisonment for a period of 1 (one) year and also to undergo, for his conviction under Section 457, IPC, rigorous imprisonment for 5 (five) years and pay fine of Rs.2,000/- and, in default of payment of fine, suffer simple imprisonment for a period of 1 (one) year, both the sentences having been directed to run concurrently. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: On 24.05.2003, at about 2:00/2:30 a.m., when PW 1 was sleeping with PW 2, who is her husband's younger sister, and the baby of PW 2, the accused-appellant entered into the room, where PW 1 and PW 2 were so sleeping, and forcibly had sexual intercourse with PW 1 and, though the accused-appellant tried to have sexual intercourse with PW 2 as well, he did not succeed. Because of the hue and cry, which were raised by PW 1 and PW 2, the accused fled away. On hearing hulla being raised by PW 1 and PW 2, their neighbours, namely, PW 3 and PW 4, came to the house of PW 1 and both of them were reported by PW 1 and PW 2 that the accused-appellant had committed rape on PW 1. On the following day, a written ejahar, with regard to the occurrence, was lodged, at Patharkandi Police Station, by PW 1. Treating the said ejahar as First Information Report (in short, 'FIR'), a case, under Sections 457/376/511, IPC, was registered against the accused-appellant and, on competition of investigation, police laid charge-sheet against the accused-appellant under Section 457/376/511, IPC. 2. At the trial, when charges, under Sections 457 and 376, IPC were framed against the accused-appellant, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 6 (six) witnesses. 2. At the trial, when charges, under Sections 457 and 376, IPC were framed against the accused-appellant, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 6 (six) witnesses. The accused-appellant was, then, examined under Section 313, Cr PC and, in his examinations aforementioned, he denied that he had committed the offences, which were alleged to have been committed by him, the case of the defence being that of denial. The defence also adduced evidence by examining 2 (two) witnesses. 4. Having, however, found the accused-appellant guilty of the offence under Section 457 and Section 376, IPC read with Section 511, IPC, the learned trial Court convicted him accordingly and passed sentences against him as mentioned above. Aggrieved by his conviction and the sentences, which have been passed against him, the accused, as the convicted person, has preferred this appeal. 5. We have heard Mr. M. Nath, learned amicus curiae. We have also heard Mr. K.A. Majumdar, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, it needs to be borne in mind that though PW 1 was alleged to have been subjected to rape, there was no medical examination of her person nor was her apparels, which she had been wearing at the time of the alleged occurrence, were either seized and/or chemically examined for ascertaining the presence of semen on her cloths. To the question as to what was the reason for not getting PW 1 examined medically or for not getting her wearing apparels chemically tested, the answers are provided by the evidence, which the prosecution have themselves adduced. 7. Let us, first, consider the evidence of the alleged victim (PW 1). According to her evidence, she was sleeping with PW 2 on one and the same bed and, all of a sudden, at about 2:00/2:30 am, she felt someone's hands touching her body and she saw that it was the accused, who was touching her body, and, then, the accused committed rape on her and, when she raised hue and cry, PW 2 lit a lamp and she (PW 1) could recognize the accused, whereupon the accused ran away. 8. In her evidence, PW 1 has clarified that, on the night of the occurrence, her husband was not at home and, that is why, PW 2 was sleeping with her. 8. In her evidence, PW 1 has clarified that, on the night of the occurrence, her husband was not at home and, that is why, PW 2 was sleeping with her. In her evidence, PW 1 has, however, alleged that the accused had threatened to kill her (PW 1) and PW 2 as well by showing a dagger, should they divulge the occurrence to anyone. No assertion was, however, made by PW 1, as the evidence on record discloses, as to when her statement had been recorded by the police. 9. It is the further evidence of PW 1 that she lodged a written ejahar, at the police station, in connection with the incidence. This ejahar was, admittedly, written by PW 6, who has clearly deposed that he wrote the ejahar according to what PW 1 had told him and, having written the ejahar, he had read out the contents thereof to PW 1. The evidence, so given by PW 6, has remained unchallenged by the prosecution. Thus, PW 1 knew, in the light of the evidence of the disinterested witness, such as, PW 6, the contents of the ejahar, which she had lodged. 10. In the light of what have been discussed above, when we consider the cross-examination of PW 1 in the light of what the Investigating Officer (PW 5) has deposed, we find that neither in her ejahar nor in the statements, which she gave before the police, PW 1 had ever claimed that she had been subjected to rape. This apart, the Investigating Officer has clarified that as no rape was reported to have been committed on PW 1, he did not seize the wearing apparels of PW 1, because she (PW 1) did not claim to have been subjected to rape, and he, therefore, did not get the alleged victim (i.e., PW 1) examined medically by any doctor. 11. In fact, the Investigating Officer has further deposed that in her ejahar, PW 1 merely claimed that there was an attempt to commit rape on her and she had not complained of any rape having been committed on her. 11. In fact, the Investigating Officer has further deposed that in her ejahar, PW 1 merely claimed that there was an attempt to commit rape on her and she had not complained of any rape having been committed on her. Though PW 1 has denied that she had not mentioned, in her ejahar or (in her statement before the police, that she had been subjected to rape, the evidence, discussed above, clearly shows that neither in her FIR nor in her statement, made before the Investigating Officer, PW 1 claimed to have been subjected to rape by the accused-appellant. 12. In the circumstances indicated above, it becomes abundantly clear that PW 1 cannot be treated as a trustworthy and reliable witness and her evidence, therefore, could not have been made the foundation for convicting the accused-appellant. 13. It is also interesting to note that in her cross-examination, PW 1 has claimed that, at the time, when the rape was being committed on her, PW 2 was asleep and she (PW 1) called PW 2 only when the rape was over. It is also in the evidence of PW 1 that she had resisted the accused for about 7/8 minutes against his attempt to commit rape on her and it was thereafter that the accused committed rape on her. 14. It is not only difficult, but wholly impossible to believe that had PW 1 struggled for as long as 7/8 minutes and, then, rape had been committed on her, her sister-in-law (PW 2) would have remained sleeping throughout this period, when her sister-in-law (PW 2) was sleeping on the same bed with her baby. 15. It may be noted, with regard to the above, that as against the evidence of PW 1, PW 2 has claimed that, when she woke up, she saw the accused having sexual intercourse with PW 1. 16. Thus, apart from the fact that the evidence of PW 1 is inherently unbelievable, her evidence is belied by the evidence of none other than that of PW 2. In fact, PW 2 claims that she was sitting on the cot, when the accused was committing rape on her brother's wife (PW 1). This description of the occurrence is, if we may reiterate, is belied by the evidence of PW 1. In fact, PW 2 claims that she was sitting on the cot, when the accused was committing rape on her brother's wife (PW 1). This description of the occurrence is, if we may reiterate, is belied by the evidence of PW 1. This apart, this description of the occurrence is wholly unnatural and unbelievable, because it is not the evidence of PW 2 that on witnessing the commission of rape on PW 1 by the accused-appellant, she was nervous or confused to figure out instantly as to what was happening or what she was witnessing. 17. When the evidence of PW 1 and PW 2 are considered together, it becomes transparent that their evidence is not only contradictory and destructive of each other, but their evidence is wholly unbelievable and unreliable. 18. As far as the neighbours (PW 3 and PW 4) are concerned, their evidence is merely to the effect that, on hearing hue and cry raised from the house of PW 1 and PW 2, when they arrived at the said house, they were reported that the accused had committed rape on PW 1. There is nothing in the evidence of either PW 3 and PW 4 to show that PW 3 and PW 4 were reported by PW 1 and/or PW 2 that the accused had made any attempt to commit rape on PW 2. 19. Because of what have been discussed and pointed out above, it becomes abundantly clear that the evidence of PW 1 and PW 2 are wholly unbelievable and unreliable. Their evidence could not have, therefore, been made, as pointed out above, the foundation for convicting the accused-appellant in the manner as has been done by the learned trial Court. 20. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellant and the sentences, passed against him by the impugned judgment and order, are hereby set aside. The accused-appellant is held not guilty of the offences, which he stands convicted of, and he is accordingly acquitted. 21. Let the accused-appellant be set at liberty, forthwith, unless he is required to be detained in connection with any other case. 22. With the above observations and directions, this appeal stands disposed of. 23. Let the learned amicus curiae be paid a sum of Rs.5,000/- for his valuable assistance rendered to this Court. 21. Let the accused-appellant be set at liberty, forthwith, unless he is required to be detained in connection with any other case. 22. With the above observations and directions, this appeal stands disposed of. 23. Let the learned amicus curiae be paid a sum of Rs.5,000/- for his valuable assistance rendered to this Court. Send back the LCR along with a copy of this order. Appeal dismissed.