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2013 DIGILAW 340 (GAU)

Md. Abdus Samad v. State of Assam

2013-05-23

UJJAL BHUYAN

body2013
JUDGMENT Ujjal Bhuyan, J 1. This appeal is directed against the judgment and order dated 15.03.2012 passed by the learned Addl. Sessions Judge (FTC), Bongaigaon in Sessions Case No. 13(A)/2010 convicting accused/appellant Abdul Samad under Sections 448 /376 IPC and sentencing him to undergo Rigorous Imprisonment (RI) for a period of 7 (seven) years and to pay fine of Rs. 1000/-, in default, to undergo Simple Imprisonment (SI) for a further period of 2 (two) months for the conviction under Section 376 IPC and to undergo RI for 3 (three) months for the conviction under Section 448 IPC, both the sentences to run concurrently. Prosecution case in brief is that on 08.09.2008 at about 6:00 p.m., one Rupbanu Bewa lodged a first information before Kokila Watch Post (WP) under Abhayapuri Police Station alleging that on 05.09.2008 at about 12 midnight, about 8 to 10 persons, armed with deadly weapons had entered into her house by cutting the ropes of the door and forcefully took away her 17 years old daughter. Informant stated that she could identify two of the persons as Abdul Samad (appellant) and Abdul Gafur of Nayagaon. 2. On receipt of the first information, a GD entry was made and thereafter the same was sent to Abhayapuri Police Station, where it was registered as Abhayapuri PS Case No. 225/2008 under Sections 458 /365 /34 IPC. 3. Police investigated the case and after completion of the investigation, submitted chargesheet against the accused/appellant under Sections 458 /366 IPC. 4. Learned Magistrate committed the case to the Court of Sessions as offence under Section 366 IPC is exclusively triable by the Court of Sessions. Thereafter, on committal, learned Sessions Judge, Bongaigaon transferred the case record to the trial Court for disposal. 5. Learned trial Court found that though the other accused Abdul Gofur was not chargesheeted, a prima facie case was made out against him as well. Accordingly, summons were issued to him and on receipt of the summons, Abdul Gofur appeared before the Court. 6. Learned trial Court framed charge against the accused under Sections 458 /366 /34 IPC. When the charges were read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. 7. Prosecution examined as many as 8 witnesses to prove the charges against the accused persons. Thereafter, the accused were examined under Section 313 Cr.PC. Learned trial Court framed charge against the accused under Sections 458 /366 /34 IPC. When the charges were read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. 7. Prosecution examined as many as 8 witnesses to prove the charges against the accused persons. Thereafter, the accused were examined under Section 313 Cr.PC. Plea of defence was of total denial. However, the defence side did not adduce any evidence. 8. After examining the evidence adduced and other materials on record, the learned trial Court came to the conclusion that prosecution had failed to prove the charge under Section 458 IPC against the accused but the offence of house trespass was established. However, no evidence was found against the accused Abdul Gofur. Holding that age of the victim girl was below 16 years at the relevant time and, therefore, consent for sexual intercourse was immaterial, learned trial Court came to the conclusion that the accused had committed the offence of rape. Thus, it was held that the prosecution had proved the case against the accused/appellant under Sections 448 /376 IPC beyond reasonable doubt and he was convicted and sentenced accordingly. 9. Mr. B. Hussain, learned counsel for the appellant submits that the victim was a major and she had voluntarily eloped with the accused/appellant. In the face of the evidence on record, no case of either rape or house trespass is made out against the accused/appellant. He submitted that PW 3 i.e. the brother of the victim had made a missing complaint before the police on 06.09.2008 in respect of which a GD entry was made. Informant suppressed this fact when she belatedly lodged the first information on 08.09.2008. Suppression of this vital information has materially affected the prosecution case, he submits. Radiological examination clearly shows that the victim girl was above 18 years of age and in the absence of any documentary or reliable evidence to the contrary, the medical evidence should have been accepted by the learned trial Court. The prosecution version as a whole is completely unbelievable and, therefore, the accused/appellant should be cleared of the charge. 10. On the other hand, Ms. B. Bhuyan, learned Addl. Public Prosecutor supports the conviction and sentence passed by the learned trial Court. 11. Before proceeding further, a brief reference to the evidence on record may be made. 12. The prosecution version as a whole is completely unbelievable and, therefore, the accused/appellant should be cleared of the charge. 10. On the other hand, Ms. B. Bhuyan, learned Addl. Public Prosecutor supports the conviction and sentence passed by the learned trial Court. 11. Before proceeding further, a brief reference to the evidence on record may be made. 12. PW 1 is the informant and mother of the victim girl. In her examination-in-chief, she has stated that while she was sleeping alongwith her 16 years old daughter in their residence, 4 miscreants including the accused persons entered into their residence. They were armed with pistols, daggers etc. She stated that accused/appellant forcibly took away her daughter. On raising hue and cry, villagers came and thereafter searched for her daughter. 22 days after the occurrence, brother of informant, Rahul Amin and two others brought back the accused and her daughter from Guwahati. She stated that her daughter reported to her that at Guwahati she was kept confined by the accused and used her as his wife and he forcibly committed rape on her against her will. In her cross-examination, she stated that the accused used to visit her house quite often. The residence of the accused and their residence was at a distance of about 3 Kms. She further stated that the accused used to even stay overnight in their residence, sometimes even for a week. Likewise, she and her daughter also used to visit the residence of the accused and sometimes used to spend 2-3 nights at his residence. She admitted that she did not possess the birth certificate of her daughter. 13. PW 2 is the victim. She stated that on 05.09.2008 while she was sleeping with her mother, the two accused and two other persons entered into their residence by cutting the ropes of the bamboo door. They were carrying daggers and pistols. The accused/appellant threatened her and also gagged her mouth. Thereafter, he forcefully took her away. At this stage, she became unconscious and regained consciousness only after 5 days. After regaining consciousness, she found that she was in a room with the accused at Guwahati. There, the accused by threatening her, committed rape for about 4-5 days. On the 22nd day after disappearance, her brother Rahul Amin and 2 others came and took her and the accused back to Abhayapuri. After regaining consciousness, she found that she was in a room with the accused at Guwahati. There, the accused by threatening her, committed rape for about 4-5 days. On the 22nd day after disappearance, her brother Rahul Amin and 2 others came and took her and the accused back to Abhayapuri. The accused was handed over to the Abhayapuri Police Station. In her cross-examination, PW 2 (victim) stated that she did not remember her date of birth. Because of fear on seeing the accused and other persons with pistols and daggers, she remained unconscious for 5 days. She also stated that on 05.09.2008 she had invited the accused home for dinner and about 8:00 pm she came out with the accused with the permission of her mother and stayed with him in the house of one person at Howli from where they came to Guwahati and stayed in a rented place. At Guwahati she fell ill when her brother came alongwith others and took them back to Abhayapuri by assuring them that they would be married of socially. 14. PW 3 is Rahul Amin, the son of PW 1 and brother of PW 2. He stated that on the night when his sister went missing, he was at Guwahati. On being informed by his mother the next morning, he came home. He stated that he lodged the first information on 08.09.2008. According to him, age of his sister was about 16/17 years. In cross-examination, he also admitted that his family had a good relation with the family of the accused and they used to visit each other. Because of the frequency of such visits, the village people did not like it. 15. According to PW 5 Sarbat Ali, the brother of the informant, the age of the victim girl would be 17/18 years. He also stated in cross-examination that informant had treated the accused/appellant as her "Dharma Bhai" (brother). 16. PW 6 is the doctor, who had examined the victim on 28.09.2008 at about 11:30 am. He has stated that as per radiological examination, the age of the victim girl would be above 18 years. As per his evidence, the hymen was found absent but there was no sign of injury on her person. 17. PW 8 is the IO. PW 6 is the doctor, who had examined the victim on 28.09.2008 at about 11:30 am. He has stated that as per radiological examination, the age of the victim girl would be above 18 years. As per his evidence, the hymen was found absent but there was no sign of injury on her person. 17. PW 8 is the IO. In his examination-in-chief, he has stated that on 06.09.2008, while he was posted at Kokila WP under Abhayapuri Police Station, he received a missing report from one Rahul Amin (PW 3) in respect of which, a GD entry was made. Next day (07.09.2008) he visited the house of the informant. After about 15-20 days, the victim alongwith the accused were brought from Guwahati by persons from the informant's side. He had submitted chargesheet under Sections 458 /366 IPC. In his cross-examination, he has stated that the victim girl had told him while her statement was recorded under Section 161 Cr.PC that she was 19 years of age and that the accused used to visit her house quite often. He also stated that the victim told him that she had developed a love affair with the accused and also had a physical relationship with him. This was not liked by the villagers. He further stated that on the day of occurrence, at about 6:00 p.m. accused visited the residence of the victim and had taken meal with them and after taking permission from PW 1 (mother), he took PW 2 to his home at about 8:00 p.m. PW 2 stated that though her mother initially did not give permission, she went out with the accused voluntarily with bag and baggage. Thereafter, she went with the accused and stayed in a rented place at Guwahati. Her brother alongwith a few persons brought her and the accused to their native place on promise of performing their marriage socially. He stated that on 06.09.2008, PW 3, the brother of the victim lodged a missing report before the police on the basis of which GD entry was made, though FIR was filed by PW 1 thereafter on 08.09.2008 at 6:00 pm. 18. A close perusal of the evidence adduced would indicate that there was a close relationship between the victim girl and the accused, which has been explained by the IO in his deposition. 18. A close perusal of the evidence adduced would indicate that there was a close relationship between the victim girl and the accused, which has been explained by the IO in his deposition. It has also come on record that such intimacy led to physical intercourse between the two. Obviously, such frequent visits by the accused to the family of the victim and the return visits by the victim and her mother to the residence of the accused was not liked by the villagers, which is quite natural in a rural set up, moreso when PW1 (the mother) treated the accused as her brother. PW 3 had filed a missing report on 06.09.2008 i.e., on the next day and 2 days thereafter, the FIR lodged. It is thus clear that the prosecution had suppressed the first missing report on the basis of which a GD entry was made. This fact, coupled with the delayed filing of FIR, clearly goes to show that it was an attempt at covering up what appears to be a clear case of elopement. The facts are so obvious that the allegation of committing rape by the accused on PW 2 within the meaning of Section 375 IPC appears to be highly improbable. It appears to be a case of elopement which had the disapproval of the community which may have led to the filing of FIR by PW 1. The version of PW 2 that she had lost consciousness for 5 days and that when she had regained consciousness, she found herself in the company of the accused in a room in Guwahati is not at all believable, if not bizarre. 19. Coming to the age of PW 2, no age or birth certificate was produced before the Court or exhibited. As per radiological examination, PW 2 would be more than 18 years old. Though medical evidence is in the nature of opinion, nevertheless, in the absence of any documentary or reliable evidence, Court would be inclined to accept the finding of the radiological enquiry. 20. PW 2 being an adult and no reliable evidence of either house trespass or of forceful sexual intercourse with her having been proved beyond all reasonable doubt, I am of the view that the accused/appellant is entitled to the benefit of doubt. 21. 20. PW 2 being an adult and no reliable evidence of either house trespass or of forceful sexual intercourse with her having been proved beyond all reasonable doubt, I am of the view that the accused/appellant is entitled to the benefit of doubt. 21. It is the cardinal principle of criminal jurisprudence that the charge against the accused must be proved beyond all reasonable doubt. In the facts of the present case, it cannot be said with any degree of certainty that the charge against the accused stood proved beyond all reasonable doubt. Accordingly, the appellant would be entitled to the benefit of doubt. 22. In view of the discussions made above, impugned conviction and sentence is hereby set aside and quashed and the accused/appellant is set at liberty. Office to send down the case record immediately.