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2012 DIGILAW 487 (GAU)

Md. Matibur Rahman v. State of Assam

2012-04-19

P.K.SAIKIA

body2012
This appeal is directed against the judgment dated 21.11.2006 passed by the learned Sessions Judge, Nagaon in Sessions Case No.324(N)2005 convicting the accused appellant of offence under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 10 years and a fine of Rs.3,000/- in default, to simple imprisonment for three months for the offence aforesaid. 2. Being aggrieved by and dissatisfied with such a judgment, the accused appellant preferred this jail appeal. 3. The prosecution case, in brief, is that on 31.5.2005 at about 7 A.M, in the morning, a minor girl was coming home from the residence of her brother Md. Joynal through a village road. On her way home, she was also collecting firewood from the jungle situated by the side of the road. The accused, however, appeared at the place at that time, caught hold of the prosecutrix, dragged her to nearby jungle and having undressed her under garment and committed rape on her by forcing his penis into her vagina for which she sustained grievous hurt and started shouting for help. At that time, the accused by seeing some people coming towards him, he fled away from the place of occurrence. Abdul Rashid and Abdul Baten, who happened to pass by the same road, found the prosecutrix crying by sitting by the side of the road. On their enquiry, they came to know that the accused dragged her to jungle and had sexual intercourse with her against her will. They escorted the prosecutrix to her residence. On reaching home, the prosecutrix narrated the history to her father. Having come to know that his daughter was raped by the accused, he reported the matter to the police. He was suggested by the local villagers to inform the police immediately. In the meantime, the local villagers also apprehended the accused person, tied him down with a rope and thereafter, took the accused and the daughter to the police station and filed an ejahar on the same say. On receipt of the F.I.R. so filed, Samaguri Police registered a case and ordered investigation. In due course, the I/O visited the place of occurrence, examined the witnesses and the victim girl was examined by doctor. The I/O after doing the needful, submitted charge sheet against the accused person under Section 376 I.P.C. and forwarded the accused to the Court to stand his trial there. In due course, the I/O visited the place of occurrence, examined the witnesses and the victim girl was examined by doctor. The I/O after doing the needful, submitted charge sheet against the accused person under Section 376 I.P.C. and forwarded the accused to the Court to stand his trial there. 4. Since the offence under Section 376 IPC is exclusively triable by the Court of Sessions, the learned Magistrate, before whom the charge sheet was so laid, committed the case to the learned Sessions Judge, Nagaon for disposal in accordance with law. Learned Sessions Judge, Nagaon, on receipt of the case on commitment of the same, heard the parties and framed charge under Section 376 I.P.C against the accused person and the charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 5. During trial, the prosecution has examined 9 witnesses. The statement of the accused person under Section 313 CrPC was recorded. The accused plea was of total denial. However, on being required, he did not adduce any evidence. Learned trial Court, on conclusion of the trial and after hearing the counsel for the parties, held the accused guilty of offence under Section 376 I.P.C. and convicted the said accused and sentenced him to punishment as aforesaid. 6. It is that judgment which has been assailed in this appeal. I have heard the learned Amicus Curiae appearing for the appellant and also the learned Addl. Public Prosecutor for the State respondent. Learned Amicus Curiae submitted that he is not going to challenge the finding of the trial Court in so far as Section 376 I.P.C. is concerned, but then he has submitted that in view of various facts and attending circumstances of the present case, more particularly, the accused under consideration, ought to have dealt with leniently and set out sentencing to punishment as aforesaid, instead of the sentencing rigorous imprisonment for 10 years and to pay a fine of Rs.3,000/- for the offence as aforesaid. 7. I have considered the materials on record and heard the argument advanced by the parties. 7. I have considered the materials on record and heard the argument advanced by the parties. On perusal of the materials on record, I am of the opinion that the judgment of the trial Court needs to be interfered so far as Section 376 I.P.C. is concerned and does not invite interference as to whether the charge alleged and proved against the accused person in the light of the facts of the materials on record, particularly, the age of the accused person during trial under consideration and previous to the trial before the trial Court and I am of the opinion that the imposition of punishment be dealt with leniently, as has been done by the learned trial Court. 8. Accordingly, the sentence imposed on the accused appellant is reduced from 10 years rigorous imprisonment and a fine of Rs.3,000/- in default, to simple imprisonment for three months to rigorous imprisonment for 7 years and a fine of Rs.2,000/-, in default, simple imprisonment for two months for the offence aforesaid. 9. With the above modifications, this jail appeal is disposed of. 10. Return the L.C.R. to the lower Court along with a copy of this judgment and order. 11. I appreciate the assistance rendered by Mr.P.K. Das, learned Amicus Curiae, the concerned authority will release an amount to the tune of Rs.5,000/- as being his fees. _____________