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2013 DIGILAW 160 (GAU)

Md. Bilal Ahmed Barlaskar v. State of Assam

2013-03-07

S.C.DAS

body2013
JUDGMENT S.C. Das, J. 1. By this criminal appeal, the appellant challenged the judgment and order of conviction and sentence, dated, 08.04.2010, passed by learned Sessions, Judge, Hailakandi, in Sessions Case No. 13 of 2007, whereunder learned Sessions Judge found the accused-appellant guilty of committing offence punishable under Sections 366 and 376 of IPC and, accordingly, sentenced him to suffer RI for two years and to pay a fine of Rs. 1,000/- (Rupees one thousand), in default of payment of fine to suffer simple imprisonment for two months under Section 366 of IPC and also to surfer RI for seven years and to pay a fine of Rs. 5,000/- (Rupees five thousand), in default of payment of fine to suffer simple imprisonment for three months under Section 376 of IPC. Learned Sessions Judge directed that both the sentences shall run concurrently. Heard learned counsel, Mr. A.M. Barbhuiya for the appellant and learned Addl. P.P., Assam, Mr. D. Das for the State respondent. 2 Without unnecessary elaboration, the fact of the case, for disposal of the present appeal, may be stated in a few lines: 2.1 On 09.09.2006, at about 1230 hrs., the victim prosecutrix, 'Jinnat' (actual name kept withheld) (PW1), along with her mother (PW2) Suratun Nessa and a minor brother, with a view to visit her maternal uncle's house, got down from a bus vehicle at a place, named Mirarping Mukham (Panchgram) and while they were about to proceed towards the house of her maternal uncle, the accused appellant along with a few others, driving a Tata Sumo vehicle, arrived there and forcefully lifted the victim prosecutrix, 'Jinnat' in the vehicle. When her mother tried to resist she was kicked down. She (victim) was taken to Dinonathpur and was kept confined in a house for about eight days. At night, the accused appellant Bilal Ahmed forcefully committed rape on her. On the following day, she gave telephone number of her parental home to a boy of that house and, thereafter, her parents and others were informed and she was recovered from that house of Dinonathpur. She was a minor girl, aged about 15 years having her date of birth, August 31, 1991, as per the Admit Card (Ext. 2) of the Board of Secondary Education, Assam, and she was kidnapped from the custody of her parents without their consent. She was a minor girl, aged about 15 years having her date of birth, August 31, 1991, as per the Admit Card (Ext. 2) of the Board of Secondary Education, Assam, and she was kidnapped from the custody of her parents without their consent. 2.2 Mother of the victim, i.e. PW2 Suratun Nessa lodged the FIR with the O/C Algapur PS on 09.09.2006 itself and, accordingly Algapur PS Case No. 159 of 2006 under Section 366A of IPC was registered and an investigation was taken up. 2.3 It is the case of the prosecution that O/C Katlicharra PS recovered the victim girl from her confinement at Dinonathpur and handed over her to the police officer of Algapur PS and she was thereafter handed over to her parents. In course of investigation, her statement was recorded under Section 164 of Cr PC. and she was produced before Hailakandi Civil Hospital for her medical examination and PW4, along with two other medical officers, examined her and submitted a medical report, marked as Ext. 4. Ossification test also was done and in Ext. 4 it has been mentioned that she was aged below eighteen years. Police on completion of investigation submitted charge-sheet against the accused-appellant for commission of offence punishable under Sections 366 and 376 of IPC and, accordingly cognizance was taken. 2.4 On commitment of the case to the Court of Session, learned Sessions Judge framed charges against the accused for the offence punishable under Sections 366 and 376 of IPC to which he pleaded not guilty and claimed to be tried. 2.5 To prove the charge, prosecution examined six witnesses and after closure of the prosecution evidence, the accused was examined under Section 313 of Cr PC. and, in his turn, the accused adduced no evidence. Defence case is nothing but a bare denial of the prosecution case. 3. Learned counsel, Mr. Barbhuiya appearing for the accused-appellant has concentrated his argument that prosecution could not prove the fact that the prosecutrix was kidnapped by the accused from Panchgram and that her recovery from Dinonathpur also has not been proved since nobody from that house has been examined by the prosecution. He has further contended that the prosecutrix alleged that the accused committed rape on her in the house of Dinonathpur, where she was kept confined but her contention has not been supported by the medical evidence. He has further contended that the prosecutrix alleged that the accused committed rape on her in the house of Dinonathpur, where she was kept confined but her contention has not been supported by the medical evidence. The prosecutrix was examined by the medical officer on 20.09.2006 and the doctor opined that there was no evidence of recent rape prior to the medical examination. According to learned counsel Mr. Barbhuiya, the finding of conviction and sentence, recorded by learned Sessions Judge, was, therefore, absolutely wrong since the evidence is not enough to hold the charges. Learned Addl. P.P., Mr. Das, in contrast, has argued that the victim's evidence itself is sufficient to hold the charges framed against the ace used-appellant. Her statement is cogent, confident and it inspires credibility. There is no room to suspect her statement in any manner, rather in cross-examination the accused by putting suggestions admitted that the accused had taken away the victim from Panchgram when she got down from the bus with her mother. PW2, mother of the victim, who has set the law in motion by lodging the FIR, fully corroborated the prosecutrix. The statement of the prosecutrix that she was raped by the accused in a house at Dinonathpur cannot be disbelieved based on the medical evidence since the medical examination was done only after ten days and after ten days the evidence of rape may disappear. Under such circumstances, the oral evidence of the prosecutrix, where inspires confidence, cannot be thrown overboard in circumstances of the case. 4. Learned counsel, Mr. Barbhuiya has further contended that the accused was a young man and a related maternal uncle. He had love affair with the prosecutrix. The prosecutrix wrote love letters to the accused and insisted him by writing letters to take her with him. That might be the reason of the alleged occurrence. The allegation, of rape is totally false since nobody has been examined from the house where the victim was kept confined as alleged. He has also contended that the victim girl has already been given in marriage, which she has admitted and, under such circumstances, a lenient view in respect of punishment may be taken. According to learned counsel, Mr. The allegation, of rape is totally false since nobody has been examined from the house where the victim was kept confined as alleged. He has also contended that the victim girl has already been given in marriage, which she has admitted and, under such circumstances, a lenient view in respect of punishment may be taken. According to learned counsel, Mr. Barbhuiya, since the prosecutrix has already been settled in life, her marriage being solemnized with another person and she is living now peacefully, and since the accused also a young man and has married in the meantime, in respect of punishment, a lenient view may be taken. Learned counsel, has referred, in support of his contention, the case of State of Punjab v. Rakesh Kumar reported in (2008) 12 SCC 33 : ( AIR 2009 SC 391 ). 5. The prosecutrix in her deposition stated that the accused is related to her as maternal uncle. The house of the accused is situated adjacent to her house. One day about eight months before, in the year 2006, at about 12 a.m. she was proceeding to the house of her maternal uncle with her mother Suratun Nessa and when they reached Panchgram Mukamkuti and after getting down from the bus, started proceeding towards their maternal uncle's house, the accused with a Tata Sumo vehicle arrived there and forcefully lifted her in the vehicle. She raised alarm and her mother tried to save her but the accused assaulted her mother and put her down. He took her away with the Tata Sumo vehicle. Three other persons were present in the vehicle but she could only identify the driver, whose name was Kalam. She became senseless in the vehicle and regained sense at Dinonathpur. The accused removed her wearing apparels and performed sexual intercourse with her. The accused committed four/five times sexual intercourse with her in the said house keeping her there and thereafter, the accused left the house. After the accused left the house she met a boy of the house to whom she gave the telephone number of her house and the boy informed her parents. On receipt of the telephonic information, her father, mother, maternal uncle, paternal uncle Farij and Kutub went to that house at Dinonathpur and took her back to her house. At the relevant time she was studying in Class-X in Ratanpur Girls High School. On receipt of the telephonic information, her father, mother, maternal uncle, paternal uncle Farij and Kutub went to that house at Dinonathpur and took her back to her house. At the relevant time she was studying in Class-X in Ratanpur Girls High School. Her mother lodged FIR with the police narrating the fact. Police took her to police station wherefrom she was sent to doctor for medical examination and police also produced her before a Magistrate and she narrated the fact to the Magistrate. 5.1 There were only denials and suggestions put to her in cross-examination of the witness. No contradictions with her previous statement recorded. It has been specifically suggested in her cross-examination on behalf of the accused that since four years before the occurrence she wrote love letters to the accused and she continued love affairs with the accused and that just before the date of occurrence she requested the accused by writing letter to remain present with a vehicle on way to Kanchanpur as she was going there to the house of her maternal uncle and, accordingly, the accused arrived at that place with an Indica car and took her with him. She, however, denied that suggestion. It is settled law that suggestions denied is no evidence. Accused did not adduce any evidence in support of his contention that there was love affairs between him and the prosecutrix and/or that she wrote any love letter to accused at any point of time. This Court in the case reported in AIR 1963 Assam 151 has held that mere suggestion not supported by any specific statement made by the accused person and not supported by any defence evidence would have no evidentiary value. No importance could be attached to such suggestions made during cross-examination. In the present case, neither any defence evidence adduced, nor accused made any statement during his examination under Section 313 of Cr PC. Under such circumstances, the fact put to the victim in the form of suggestion, rather amounts to admission of the allegation. 5.2 PW2, the mother of the prosecutrix, narrated the occurrence what had happened at Panchgram, where they got down from the vehicle. 5.3 PW4, Dr. Rehana Begum, is one of the three medical officers, who examined the prosecutrix and she proved the medical report, which is marked as Ext. 4. The medical officers in Ext. 5.2 PW2, the mother of the prosecutrix, narrated the occurrence what had happened at Panchgram, where they got down from the vehicle. 5.3 PW4, Dr. Rehana Begum, is one of the three medical officers, who examined the prosecutrix and she proved the medical report, which is marked as Ext. 4. The medical officers in Ext. 4 observed that victim's height and built was average, breasts developed, no violent mark present over her body or private part, hymen not intact, vaginal swab was examined and no spermatozoa was found. Doctor opined that there was no recent evidence of rape. Since the medical examination was done after ten days, evidence of recent rape was naturally not available but in the facts and circumstances of the case where the evidence of the victim has not been shaken in any manner where the accused admitted that he had taken the victim with him to Dinonathpur and kept her confined there, I find nothing to draw an adverse inference to disbelieve the version of the prosecutrix. It is amply proved that the prosecutrix was aged below sixteen years what is evident from the admit card of the prosecutrix, issued by the Board of Secondary Education, Assam, as stated hereinbefore. The charge that the prosecutrix was kidnapped by the accused and that she was raped while kept confined at Dinonathpur, stands established in the oral evidence of the prosecutrix. 5.4 The contention of learned counsel, Mr. Barbhuiya that the prosecution did not examine any witness from Dinonathpur or did not adduce any evidence in respect of recovery of the victim girl has become redundant since the accused himself admitted by putting suggestions that he had taken away the victim from Panchgram with him by a vehicle to Dinonathpur. The ratio of the decision referred by learned counsel, Mr. Barbhuiya in the case of Rakesh Kumar, ( AIR 2009 SC 391 ) (supra) is absolutely on a different context. 6. Punishment in a given case must commensurate to the gravity of the offence. The Apex Court nowhere observed to compromise on it. His Lordship, Hon'ble Justice Dr. The ratio of the decision referred by learned counsel, Mr. Barbhuiya in the case of Rakesh Kumar, ( AIR 2009 SC 391 ) (supra) is absolutely on a different context. 6. Punishment in a given case must commensurate to the gravity of the offence. The Apex Court nowhere observed to compromise on it. His Lordship, Hon'ble Justice Dr. Arijit Pasayat, while referring the cases of Sevaka Perumal v. State of T.N. reported in (1991) 3 SCC 471 : ( AIR 1991 SC 1463 ) and Dhananjoy Chatterjee v. State of W.B. reported in (1994) 2 SCC 220 : (1995 AIR SCW 510) and several other cases, observed that a punishment commensurate to the gravity of the offence should be imposed as otherwise society will lose its confidence in the criminal justice system. The Court has observed that imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. In the given facts of the case of Rakesh Kumar, ( AIR 2009 SC 391 ) (supra), the victim was aged less than sixteen years at the time of occurrence and it was an admitted fact that the victim was in love affair with the accused and they had sexual intercourse because of the love affair, which is not a fact in the present case. In that reported case, the father of the victim filed an affidavit before the High Court that since the victim was settled in life a liberal view may be taken in respect of punishment. But no such circumstance is available before us in the present case. Here the victim flatly denied any love affairs with the accused. She was minor girl, below 16 years and was a related niece of the accused. But no such circumstance is available before us in the present case. Here the victim flatly denied any love affairs with the accused. She was minor girl, below 16 years and was a related niece of the accused. Further the accused was much older than the victim, aged about 28 years (as stated in 313 Cr. P.C.). So, the case in hand, is quite different to that of the reported case and the ratio cannot be applied in this case. 7. In view of the discussions made above, I find no merit in the appeal and there is no reason at all to interfere with the judgment and order of conviction and sentence passed by learned Sessions Judge and, accordingly, the appeal stands dismissed. Send back the L.C. records along with a copy of this judgment and order.