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2012 DIGILAW 175 (GAU)

Abdul Khalek v. State of Assam

2012-02-09

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 29.04.2011, passed, in Sessions Case No. 208(K)/2008, by the learned Sessions Judge, Kamrup, Guwahati, the accused-appellant has been convicted, under Section 376(1), IPC, and sentenced to undergo rigorous imprisonment for a period of 10 years with fine of Rs. 5,000/- and, in default of payment of fine, to undergo simple imprisonment for a further period of 6 months with further direction that the fine shall, if realized, be paid to the conviction as compensation. That case of the prosecution may, in brief, be described. On 01.05.2008, in the evening, the informant (PW 2) had gone to the market leaving her minor son (PW 4) and her minor idiot daughter (PW 5) at home. After the informant had left home, her minor son (PW 4) went to their shop, which was located nearby. Taking advantage of the absence of the informant and her minor son, the accused entered into the house of the informant and committed rape on PW 5. When the accused was in the act of having sexual intercourse with PW 5, her brother (PW 2) entered into the house and, having seen what the accused had been doing, he (PW 2) raised cry for help and, on hearing the same, PW 3 entered into the house of the informant and found PW 5 lying necked on the bed and the accused preparing to wear his cloths. On hearing the cries, which had been raised from the house of the informant, her other neighbours too assembled their, they caught hold of the accused, police was informed, police came and took away the accused and, on the following day, i.e., on 02.05.2008, a written ejahar was lodged by PW 2 at Bharalumugh Police Station. Treating the said ejahar as First Information Report (in short, 'FIR'), Bharalumukh Police Station Case No. 86/2008, under Section 376, IPC, was registered, on 03.05.2008, against the accused. During the course of investigation, the victim (PW 5) was subjected to medical examination and, on completion of investigation, charge-sheet was laid, under Section 376, IPC, against the accused. 2. During trial, the accused pleaded not guilty to a charge, framed against him, under Section 376, IPC. 3. In support of their case, prosecution examined altogether 7 witnesses including the Medical Officer and also the Investigation Officer. 2. During trial, the accused pleaded not guilty to a charge, framed against him, under Section 376, IPC. 3. In support of their case, prosecution examined altogether 7 witnesses including the Medical Officer and also the Investigation Officer. The accused was, then, examined under Section 313, Cr.P.C. and, in his examination aforementioned, the accused denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of denial. No evidence was, however, adduced by the defence. 4. Having found the accused guilty of the offence charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. 5. Aggrieved by his conviction and the sentence, passed against him, the convicted person has preferred this appeal. 6. I have heard Mr. A. Khanikar, learned counsel for the appellant, and Mr. Z. Kamar, learned Public Prosecutor, Assam. 7. While considering the present appeal, what needs to be borne in mind is that the fact, that at the time of the alleged occurrence, PW 5 was a minor, has not really been disputed. This apart, the doctor (PW 1), who had, admitted, examined PW 5 (the alleged victim on 03.05.2008, has recorded, in his report (Exhibit 1), on the basis of the physical examination and radiological investigation, that the age of PW 5 was above 12 years but below 14 years on the day of the medical examination, because the X-ray report showed that the epiphysic union of bones of the wrist and ulna were not completed. PW 1 also found that there was a bite mark on the left side of the neck of PW 5. 8. Apart from the fact that the defence did not dispute the finding and opinion of the doctor as regards the age of PW 5, there is really nothing, in the evidence of PW 1, showing that his evidence is inherently unfounded or unbelievable. This Court, therefore, sees no reason to disbelieve his (PW 1) evidence. 9. Moreover, when the evidence of PW 1 is considered in the light of his report (Exhibit 1), what transpires is that PW 1 had found on examination of PW 5, that there was an old tear present at 6 O clock at hymen of PW 5 and that there was also a bite mark on the left side of her neck. 10. 10. Bearing in mind the medical evidence on record, let me, first, come to the evidence of PW 4, i.e., the brother of PW 5. As PW 4 was a child witness, the Court had put several general questions to him to determine his level of understanding and, on finding that he was capable of understanding the questions, which had been put to him, and answering them clearly, his evidence was recorded. According to the evidence of PW 4, on the day of the occurrence, during the period, when his mother (PW 2) had gone to the market and their father had gone to his workplace leaving him (PW 4) and his elder sister (PW 5) at home, he (PW 4) went to their shop, which was near their residence, leaving her sister (PW 5) alone at their house, but when he returned home from the shop to drink some water, he found, on entering into the house, the accused and his sister (PW 5) lying or bed, in necked condition, and the accused kissing his sister and touching her breasts. On apprehending as to what was happening, PW 4 started shouting and, on hearing him shouting, PW 3 arrived at the place of occurrence and witnessed what was happening inside the house. In the meanwhile, the neighboring people, too, assembled there and they caught hold of the accused. It is also in the evidence of PW 4 that after the neighbouring people gather at there house, police arrived their and took away the accused and, later on, his mother narrated the occurrence to the police. 11. Broadly in tune with the evidence of PW 2, PW 3, who is one of the neighbours of the informant, as indicated above, has deposed that, on the day of the occurrence, at about 7.00 p.m., on hearing the cries raised from the house of the victim (PW 5), she (PW 3), went to the house on the victim (PW 5) to enquire as to what had happened and when she asked the brother of the victim as to what had happened, he (PW 4) told her that a person was engaged in physical relationship with his elder sister inside the house. It is in the evidence of PW 3 that she, then, entered into the house and saw the victim (PW 5) in necked condition and the accused trying to wear his cloths. It is also in the evidence of PW 3 that when she asked PW 5 as to what had happened, she (PW 5) told PW 3 that the accused had committed sexual intercourse with her (PW 5). PW 3 has further deposed that many people gathered at the place of the occurrence and they apprehended the accused. 12. Before proceeding further, it needs to be pointed out that though PW 3 has claimed that, on a query made by her, PW 5 told her that the accused had sexual intercourse with her (PW 5), no evidence has been given by PW 5 that she (PW 5) had reported to PW 3 that the accused had sexual intercourse with her. 13. Thus, the evidence, given by PW 3 to the effect that PW 5 had reported to her that the accused had sexual intercourse with her, is nothing but hearsay and ought to have been kept excluded by the learned trial Court from the purview of its consideration. What may also be noted, in this regard, is that, from the cross-examination of PW 3, it was also elicited that the accused was a frequent visitor to the house of the informant. 14. I may, now, turn to the evidence of PW 2, i.e., the mother of the alleged victim (PW 5). According to her (PW 2) evidence, on the day of the occurrence, at about 6-00 p.m. she had gone to market leaving her son and daughter at home and when she returned home, at about 7.00 p.m., she saw that a large number of people had gathered in front of her house and they had kept the accused detained by trying him, to a tree and she also noticed that the dress of her daughter was torn apart. 15. 15. It is in the evidence of PW 2 that she learnt from her daughter (PW 5) that, at around 6.00 p.m., when she was making her bed, the accused entering into their house and had sexual intercourse with her and that during the said period, when her brother (PW 4) saw the incident and he shouted, their neighbours gathered at the place of occurrence on hearing her brother's cries and their neighbours caught hold of the accused and, thereafter, she filed the FIR. 16. It may, once again, carefully noted that PW 5 has, nowhere, deposed that she had reported to her mother (PW 2) that the accused had sexual intercourse with her against her will. 17. Thus, the evidence, given by PW 2, that her daughter (PW 5) had reported to her (PW 2) that the accused had sexual intercourse with her (PW 5), is hearsay and ought not to have been relied upon by the learned trial Court. 18. That surfaces from the above discussion is that if the evidence of PW 2 and PW 3, as to what they had been reported by PW 5 as regards her being subjected to sexual intercourse by the accused, is kept excluded from the purview of consideration as hearsay, what remains in the evidence is that PW 2 is, admittedly not an eye-witness. 19. It is, thus, PW 3 and PW 4, who arc, in a way, eye- witnesses to the alleged occurrence. What is of immense to note, now, is that PW 4 has, nowhere, stated that he had seen the accused having sexual intercourse with PW 5. What he had seen, according to his evidence, was that PW 5 was lying necked on the bed and the accused was kissing her and touching her breasts. As far as PW 3 is concerned she, too, merely saw PW 5 on the bed, in necked condition, and the accused wearing his cloths. Whether the accused was wearing cloths after having sexual intercourse with PW 5 or even without having had sexual intercourse with her because of the cries for help, raised by PW 4, there is no legally admissible and credible evidence on record. It is trite that when there are two views possible on a given piece of evidence, the one, which favors the accused, has to be adopted. It is trite that when there are two views possible on a given piece of evidence, the one, which favors the accused, has to be adopted. Viewed in this light, it becomes clear that the Court has to go by the inference that the accused was found by PW 3 wearing his cloths before he could have had sexual intercourse with P W5, for, when PW 5's brother (PW 4) arrived at the scene of occurrence, he found both of them necked, but he did not find or see the accused having sexual intercourse with PW 5. 20. What is, now, of paramount importance is that the undisputed evidence of PW 2 is that she found her daughter's dress in torn condition, which is reflective of the fact that force had been applied on her daughter by none other than the accused. This apart, the medical examination report, as already indicated above, shows that there was a bite mark on the left side of the neck of PW 5. This injury also speaks loud and clear that the accused had applied force. What remains absent is the fact as to whether the accused had sexual intercourse with PW 5 or not. 21. For the purposes determining if PW 5 was subjected to sexual intercourse by the accused, the evidence of PW 5 is extremely important. However, while considering the evidence of PW 5, it needs to be noted carefully that when she was produced, on 14.05.2009, as a witness, at the trial, the learned trial Court could not record her evidence inasmuch as her answers were inconsistent and incoherent and both the learned Public Prosecutor as well as the learned defense counsel expressed their inability to examine PW 5 as a witness. PW 5 was, thus, found by the learned trial Court to be an idiot and incompetent witness. The record reveals that, thereafter, on 21.03.2011, when PW 5 was, again, produced at the trial, she, on that day, on being examined, on oath, alleged that the accused had come to their house and committed bad act on her. No concrete meaning can be attributed to the expression 'bad act'. Would the expression 'bad act' mean sexual intercourse or attempt to commit sexual intercourse or an act outraging her modesty? There can be no definite and confident answer to any of these questions. 22. No concrete meaning can be attributed to the expression 'bad act'. Would the expression 'bad act' mean sexual intercourse or attempt to commit sexual intercourse or an act outraging her modesty? There can be no definite and confident answer to any of these questions. 22. What is, now, relevant to note is that though, on 21.03.2011, i.e., on her second appearance at the trial Court as a witness, PW 5 claimed that the accused had committed 'bad act' on her, the learned trial Court ought to have kept in mind that on her first appearance as a witness at the trial Court, i.e., on 14.05.2009, she had already been found to have been answering the question incoherently and inconsistently revealing that she was an idiot. When, therefore, PW 5 appeared on the second occasion, as a witness, at the trial, the learned trial Court ought to have put some questions to her to ascertain her level of understanding of the questions put to her and her capacity to reply responsively. This exercise was, unfortunately, not done. In such circumstances, the evidence, given by PW 5, on 21.03.2011, to the effect that the accused had committed bad act on her, cannot be readily believed or relied upon. 23. What emerges from the above discussion is that, as far as PW 5 is concerned, she was, according to the overwhelming evidence on record, not only a minor, but also an idiot child at the time of the alleged occurrence. If the accused had sexual intercourse with her, it was immaterial whether he had her consent or not to such sexual intercourse; but the question remains as to whether the accused really had sexual intercourse with her or not? However, it is clear from the evidence on record that force had been applied on her inasmuch as there was a bite mark on the left side of her neck and her dress was also found torn apart. These two factors are indicative of force being applied on her. This apart, the accused was found lying necked with PW 5, who, too, was necked. Whether he had sexual intercourse or not, there is no legally dependable evidence on record. These two factors are indicative of force being applied on her. This apart, the accused was found lying necked with PW 5, who, too, was necked. Whether he had sexual intercourse or not, there is no legally dependable evidence on record. This much is, however, clear, if I may reiterate, that accused was lying, at the place of occurrence, necked not merely for outraging the modesty of PW 5 but to have obviously sexual intercourse with her (PW 5) and he would have succeeded in the act of having sexual intercourse with PW 5, but for the arrival of the PW 5's younger brother (PW 4). 24. In the circumstances, as indicated above, it could not have been held that the accused appellant had been proved to have had sexual intercourse with PW 5, but he could have succeeded in having sexual intercourse with PW 5, who was a minor and whose consent, if any, was immaterial. 25. There is no doubt that there was an old tear of the hymen of PW 5, but this tear of hymen cannot, necessarily and exclusively, be attributed to the act of the accused inasmuch as there is no direct or indirect evidence on record that the tearing of hymen took place at the time, when the accused was found in the company of PW 5. 26. Situated thus, it could not have been confidently held, far less held to be proved beyond reasonable doubt, that the accused had committed rape on PW 5. There can, however, be no doubt that the accused would have committed sexual intercourse with PW 5, but for the fact that PW 4 arrived there are started shouting and his shouting brought the neighbouring people to their house. Had the accused succeeded, his act would have amounted to rape, because his having sexual intercourse with PW 5 was nothing but rape, for, PW 5, being a minor, was incapable of giving consent and her consent, if any, was, thus, immaterial. While, therefore, the accused could not have been convicted of the offence under Section 376(1), IPC, he could have been held, and ought to have been held, guilty of having attempted to commit rape. 27. Because of what have been discussed above, this appeal partly succeeds. While, therefore, the accused could not have been convicted of the offence under Section 376(1), IPC, he could have been held, and ought to have been held, guilty of having attempted to commit rape. 27. Because of what have been discussed above, this appeal partly succeeds. While the conviction of the accused-appellant, under Section 376(1), IPC, is hereby set aside and he is held not guilty of offence under Section 376, IPC, he is hereby held guilty of the offence of attempt to commit rape and accordingly convicted under Section 376(1) read with Section 511, IPC. 28. I have heard the learned counsel for the appellant and also the learned Public Prosecutor on the question of sentence, which can be passed against the accused-appellant. In this regard, it needs to be noted that though, for an offence under Section 376(1), the punishment can be as high as life imprisonment, the learned trial Court has sentenced the accused-appellant to undergo rigorous imprisonment for a period of 10 years with a fine of Rs. 5,000/- and, in default of payment of fine, undergo simple imprisonment for another period of 6 months. The sentence, so imposed has not been appealed against by the State. 29. Situated thus, this Court is of the view that the accused appellant needs to be sentenced to half of the sentence, which has been passed by the learned trial Court. 30. I, therefore, sentence the accused-appellant to undergo rigorous imprisonment for 5 years and pay fine of Rs. 5,000/- and, in default of payment of fine, undergo simple imprisonment for a further period of 3 months with direction that the fine shall, if realized, be paid to PW 5, or her mother, as compensation. 31. With the above modification in the conviction and the sentence of the accused-appellant, this appeal shall stand disposed of. Send back the LCR.