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2012 DIGILAW 564 (GAU)

Md. Abdul Matin v. State of Assam

2012-05-07

P.K.MUSAHARY

body2012
JUDGMENT P.K. Musahary, J. 1. Heard Mr. A. Sharif, learned counsel for the convict appellant. Also heard Mr. D. Das, Addl. PP, Assam for the State respondent. This appeal is directed against the judgment and order dated 4.11.2003 rendered by the learned Sessions Judge, Darrang, Mangaldoi in Sessions Case No. 10 (DM) of 2003 convicting him under Section 376(1) IPC and sentencing him to suffer R.I. for 7 years and to pay fine of Rs. 5,000/- in default, further R.I. for 3 months. 2. Briefly stated, the prosecution case is that on 15.3.2002 at about 11 A.M, while the prosecutrix was sleeping in her house, the convict appellant suddenly entered into her house and committed rape upon her. She could not make hue and cry as her mouth was closed by the appellant and at that time, the prosecutrix was suffering from some illness. Some women from the neighbourhood saw the incident. After committing the offence, the convict appellant left the place in his bicycle. The husband of the prosecutrix returned home in the evening. She narrated the incident to her husband and on the next day, the prosecutrix lodged a written F.I.R. with Kharupetia Police Outpost under Dalgaon Police Station. On the basis of the aforesaid F.I.R., a case being Dalgaon PS Case No. 62/2002 was registered under Section 448/376 IPC. On completion of the investigation, the charge sheet was submitted against the accused appellant under Section 448/376 IPC. The case being committed, the learned Sessions Judge framed charge against the accused appellant under Section 376(1) IPC, which was read over and explained to the appellant, who denied the charge and demanded trial. 3. The prosecution examined 7 witnesses including I/O and the Medical Officer. The accused appellant was examined under Section 313 Cr PC by placing before him the evidence against him, but he examined no witness in his defence. Learned trial Court, on consideration of the evidence on record and hearing the learned counsel for the parties, passed the impugned judgment and order convicting and sentencing him, as stated earlier. 4. Mr. Sharif, learned counsel for the convict appellant submits that there is no cogent and reliable evidence on record for convicting the accused appellant. The prosecutrix, who was examined as P.W.1, gave evidence against the convict, but her evidence is corroborated by only one witness namely, P.W.2. 4. Mr. Sharif, learned counsel for the convict appellant submits that there is no cogent and reliable evidence on record for convicting the accused appellant. The prosecutrix, who was examined as P.W.1, gave evidence against the convict, but her evidence is corroborated by only one witness namely, P.W.2. He also submits that the evidence of so called eye-witness P.W.2 is not trustworthy inasmuch as her evidence was not supported/corroborated by P.W.4, who is also claiming to be an eye-witness. His further submission is that the prosecutrix was a consenting party and as such, the offence under Section 376(1) IPC is not at all attracted and in view of the same, the convict appellant is entitled to acquittal. 5. Mr. D. Das, learned Addl. PP submits that the prosecution has been able to prove the charge against the accused appellant and no interference is called for in this case. According to him, the evidence of the prosecutrix has been supported by at least one eye-witness and other witnesses. 6. I have carefully considered the submissions of the learned counsel for the parties. I have also carefully gone into the evidence of the prosecution witnesses, particularly, P.W.1, the victim herself, P.W.2, the eye-witness, who came to the house of the prosecutrix and could see the incident in her own eyes and also, the evidence of P.W.4, who also came to the place of occurrence and could see the incident. P.W.2 happened to come to the house of the prosecutrix looking for a dao for harvesting wheat crops. She is the aunt-in-law of the victim and a neighbour. She saw the incident in action. This witness was cross-examined at certain length, but her witness could not be shattered. No suggestion was put to her that she was a consenting party and the convict appellant did not use force. From the evidence of P.W.4, it appears that she came to the place of occurrence after P.W.2 and she could also see the commission of offence in her own eyes. P.W.4 clearly supported the evidence of P.W.2 and P.W.1. The defence could not demolish the evidence of P.W.1, 2 and 4. The defence also did not put any suggestion to this witness (P.W.4) that she never visited the place of occurrence or she did not see the incident in her own eyes. P.W.4 clearly supported the evidence of P.W.2 and P.W.1. The defence could not demolish the evidence of P.W.1, 2 and 4. The defence also did not put any suggestion to this witness (P.W.4) that she never visited the place of occurrence or she did not see the incident in her own eyes. No suggestion was also put on her that the convict used any force to have sex with the prosecutrix or the prosecutrix was a consenting party. 7. Mr. Sharif, learned counsel for the convict appellant, in the course of his argument, tries to establish that the evidence of P.W.2 and 4 are not at all acceptable, as they are not trustworthy, but he fails to outline the reasons why the aforesaid witnesses should be treated as un-trustworthy. No attempt was made on the part of the defence to adduce any evidence to establish the submission that the prosecutrix was a consenting party and, therefore, the convict is not at all liable under Section 376 (1) IPC. However, Mr. Sharif, learned counsel for the convict appellant fairly submits that the evidence of the prosecutrix could not be impeached in cross examination. 8. I have perused the contents of the F.I.R (Ext.1) and the medical report (Ext.2). The prosecutrix maintained the allegations/averments made in the F.I.R. and there is no significant contradiction in her evidence recorded during trial. The medical report is as under:- "Physical examination: No mark of injury or violence seen over her body and breast. Appearance Normal Gait normal. No mud and dirt seen over the body. Vaginal examination No mark of laceration seen over the vagina. Labia major and minora normal. Speculum examination Vaginal canal - normal looking White discharge - present Perinea teas - not seen Microscopic examination of vaginal swab for spermatozoa Normal saliva examination of vaginal examination with swab of virginal canal - revealed no spermatozoa. Comment - No evidence of sexual intercourse within 48 hours." 9. Admittedly, the prosecutrix is a married woman habitual to sexual intercourse and, therefore, there may not be sign of sexual intercourse or any injury on her person, which may happen to a virgin. Situated thus, in my considered view, the convict cannot claim benefit from such medical opinion. Comment - No evidence of sexual intercourse within 48 hours." 9. Admittedly, the prosecutrix is a married woman habitual to sexual intercourse and, therefore, there may not be sign of sexual intercourse or any injury on her person, which may happen to a virgin. Situated thus, in my considered view, the convict cannot claim benefit from such medical opinion. The Court has to see whether the evidence of the prosecutrix is cogent, convincing, trustworthy and sterling in nature and also whether there exist any circumstances which cast a shadow of doubt over her veracity. It would be appropriate to rely on case laws in Sudhansu Sekhar Sahoo vs. State of Orissa, (2002)10 SCC 743 and Ramdas vs. State of Maharashtra, (2007)2 SCC 170 . 10. The established law is that the prosecutrix in a rape case is not an accomplice and there is no law that her testimony cannot be acted upon and made the basis of conviction unless corroborated in material particulars. In this regard, suffice is to refer to Dilip vs. State of Madhya Pradesh, (2001)9 SCC 452 . The Court is not supposed to throw away or discard the evidence of the victim of sexual assault only because the medical report says that there is no sign of recent sexual intercourse or injuries on her person. Here is a case where the evidence of the prosecutrix is categorical, cogent and trustworthy besides being corroborated by at least some eye-witnesses. This being the position, I hold that the prosecution was successful in establishing the charge against the convict appellant and the impugned order of conviction and sentence call for no interference. The conviction and sentence thus stand upheld. 11. The appeal stands dismissed. The convict appellant shall surrender forthwith before the learned Sub-Divisional Judicial Magistrate, Udalguri to serve the sentence, failing which the learned SDJM, Udalguri shall take necessary action in accordance with law. Return the L.C.R. to the lower Court along with a copy of this judgment and order. The bail bond stands cancelled. Appeal dismissed.