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2013 DIGILAW 554 (GAU)

Nur Islam v. State of Assam

2013-08-12

P.K.SAIKIA

body2013
Heard Mr. P.C. Dey, learned counsel for the appellant. Also heard Mr. B.J. Dutta, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment dated 4.3.2011 passed by the Addl. Sessions Judge, F.T.C., Nagaon, Assam in Sessions Case No. 77(N) of 2008 convicting one Md. Nur Islam of offence under section 457/376, IPC and sentencing him to suffer rigorous imprisonment for 4½ years and fine of Rs. 1,000 in default to undergo simple imprisonment for 15 days for offence under section 376, IPC and sentencing him to simple imprisonment for 3 years and a fine of Rs. 1,000 in default to undergo simple imprisonment for another period of 15 days for offence under section 457, IPC. 3. Being aggrieved by and dissatisfied with aforesaid judgment, the petitioner Md. Nur Islam, hereinafter, referred to as accused person, preferred this appeal citing several infirmities in the judgment, impugned. 4. The brief facts necessary for disposal of the present appeal are that on night of 7.1.2008, at about 11 p.m. accused Md. Nur Islam surreptitiously opened the doors of the victim's house, entered there into and had sexual intercourse with her lying her on the bed. It has been stated that at point of time, her husband was not in her house. Being so raped, she raised hue and cry which brought her neighbours to her house who found her in almost naked condition. 5. An FIR to that effect was lodged with O/C, Nagaon Police Station on 8.1.2008. On the receipt of the FIR, police registered a case under section 457/376, IPC and ordered investigation. During the course of the investigation, victim was examined by the I.O., he also got her statement, recorded by the Magistrate and also had her examined by the Doctor. The IO, after doing all the needful, submitted the charge sheet under section 376/457, IPC and forwarded the accused to the court to stand trial. 6. 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 Court of Sessions. The learned Sessions Judge, on the receipt of the case on commitment, transferred the case to the file of the Addl. Sessions Judge, FTC for disposal in accordance with law. Learned Addl. The learned Sessions Judge, on the receipt of the case on commitment, transferred the case to the file of the Addl. Sessions Judge, FTC for disposal in accordance with law. Learned Addl. Sessions Judge, FTC, Nagaon, on the receipt of the case on transfer and after hearing the parties thereto, framed the charges under section 457/376, IPC against the accused person and charges, so framed, on being read over an explained to the accused person, he pleaded not guilty and claimed to be tried. During trial, the prosecution examined as many as 7 witnesses including the victim and the I.O. of the case. The statements of the accused person under section 313, Cr.PC were recorded. His plea was of denial and examined himself as a defence witness in support of his contention. On the conclusion of trial and on hearing the arguments, advanced by the parties, learned trial court convicted the accused of offences under section 457/376, IPC and sentenced him to punishment as aforesaid. It is that judgment which has been challenged in the present appeal. 7. Mr. PC. Dey, learned counsel for appellant, argues that the judgment of learned trial court is unsustainable for reasons more than one. According to the learned counsel for the appellant, the story which the informant has narrated in her FIR is totally unbelievable since it run totally against the normal human behaviour. He, therefore, argues that the story, so narrated in the FIR run counter to the stories stated in her evidence as well as in her statement under section 164, Cr.PC which was proved as Exhibit-5. The other principle witnesses too did not support the story, told and retold by the prosecutrix during the various stages of the proceeding under consideration. 8. The Doctor also did not support the prosecution version although there was allegation that the accused had sex with the prosecutrix forcibly. The absence of injury, particularly on her private part as well as absence of spermotozoa in such body part of the victim only serves to show that the prosecutrix has founded her allegation not on facts but on falsehood and lies. The learned counsel for accused appellant, therefore, urges this court to set aside the judgment of the learned trial court on acquitting the accused of offence under section 457/376, IPC. 9. The learned counsel for accused appellant, therefore, urges this court to set aside the judgment of the learned trial court on acquitting the accused of offence under section 457/376, IPC. 9. The argument, so advanced from the side of the learned counsel for appellant was resisted by Addl. Public Prosecutor contending that the evidence of PW1, the victim of the alleged incident is quite reliable and it draws supports from other witnesses, more particularly PW2 and PW6. He, therefore, urges this court to dismiss the appeal on affirming the judgment rendered by the trial court. 10. I have considered the rival submissions, having regard to the judgment impugned, including the materials available on record. Before I proceed further, I find it is necessary to have a brief overview of the evidence on records and the evidence of Doctor is taken up for consideration. The Doctor who examined the victim at hospital on 9.1.2008 was one Dr. Chinta Ram Hazarika. On examining the victim, he found the following : (1) Clothes -- Sari, Petticoat, no stain, clothes intact. (2) Height -146.5 cm, Weight 32 Kg, Teeth-16/16, Breasts -- Developed, Axillary hairs-present, Pubic hair-present, non-matted, Hymen-absent, Vaginal- no injury, no discharge. Investigation : (1) Vaginal smear for spermatozoa- Lab SL No.3 dated 9.1.2008. The report no spermatozoa seen. (2) X-ray for age determination -- X ray Nos. 239+240+241/08 dated 9.1.2008. Reported by Dr. B.K. Hazarika radiologist. The report the epiphysis for lower end of radius and ulna, lower end of humorous and right iliac bones are united. She did not bear any sign of recently committed sexual intercourse. There was also no sign of injury of recent origin in her private parts or on her other body. He also opined that the victim was a woman of about 20 years of age. He proved his report as Ext. 1 11. We have already found that the chief campaigner from the side of the prosecution is the victim herself. According to her, on the fateful night, her husband was not in her house. She was sleeping in her house along with her 2 daughters, aged about 3 and 6 years. At about II p.m. while she was so sleeping, the accused entered into her house by opening the bamboo doors. She first thought the intruder to be her husband. According to her, on the fateful night, her husband was not in her house. She was sleeping in her house along with her 2 daughters, aged about 3 and 6 years. At about II p.m. while she was so sleeping, the accused entered into her house by opening the bamboo doors. She first thought the intruder to be her husband. But as she did not get any answer from him she had some suspicion about the intruder. In the meantime, the accused came to her bed and forcibly laid her down on the bed by catching both her hands and then committed rape on her. Being so raped, she raised hue and cry for which the accused fled from such place. While the accused was running away from house, she could recognize him in the light of torch she had at that time. Upon hearing the hue and cry, she raised, one of her relatives, namely, Rabia came her house. The victim thereafter went to the house of the brother of the accused person along with Rabia and informed him about the alleged incident. The victim thereafter came to the house of the accused person taking Rabia with her and started raising hue and cry in front of the house of the accused person. In the meantime, she met some people who were returning home after attending electioneering works. Those people were told about the alleged incident. Among the people whom she met there were one Abdul, Ward Commissioner and some other persons. 12. The matter was also reported to the village Gaonburah, Joinal, who convened a meeting next day in the morning. The accused was called to such meeting but he did not attend the same for which she lodged the FIR before the police. Police took her to the Doctor for medical examination and also had her statement records by the Magistrate under section 164, Cr.PC. In her cross-examination, she had stated that there was no electricity in her house at the relevant point of time, that when the victim raised hue and cry, the accused prevented her from doing so by pressing her mouth by hand, that she met her husband and the group of the people aforesaid soon after the alleged incident. In her cross-examination, she further admitted that the wife of the accused too filed a case against her husband alleging that he raped her. In her cross-examination, she further admitted that the wife of the accused too filed a case against her husband alleging that he raped her. 13. PW4, Rabia Khatoon, is a neighbour of the victim. According to her, on the fateful night, at about 1 to 1.30 a.m., when she was still sleeping in her house, the victim came to her house, awoke her up from sleep and she her told what had occurred in her house little before. She along with the victim visited the house of the accused person but they did not found anybody in his house. In her cross-examination, she has stated that when the prosecutrix came to her house, it was quite dark and that she did not hear any hue and cry coming from the house of victim 14. PW2 Md. A. Haque is the brother of the victim. According to him, one day, at about 10.30 p.m. while he was returning home from the house of Muslimuddin, Ward Member, after attending a meeting held in connection with ensuing Panchayat Election, he met the informant on his way. The informant told him that some time before, the accused having entered into her house committed rape on her. On the next day, a village meeting was arranged to discuss the matter aforesaid but the meeting could not take any decision since the accused did not come to such meeting. In his cross-examination, he has stated that when he returned home there were 6/7 persons were with him which included the husband of the victim. 15. PW 6 Md. Joinal Abedin is the Gaonburah of the village. According to him, one day, Sahidul Islam, the husband of the victim, complained him about his wife being raped by the accused person and requested him to convene a mel in that regard. Accordingly, he visited the house of the victim and came to know about the incident under consideration from the prosecutrix herself. In that connection, a meeting was called upon next day but it could not yield any result since the accused remained absence. 16. The Investigating Officer who conducted the case under consideration is one Shri Dilip Bhorali, who was examined as PW 7. According to him, on 8.1.2008 he was posted at Haibargaon TOP. In that connection, a meeting was called upon next day but it could not yield any result since the accused remained absence. 16. The Investigating Officer who conducted the case under consideration is one Shri Dilip Bhorali, who was examined as PW 7. According to him, on 8.1.2008 he was posted at Haibargaon TOP. On that day, he received an FIR from the prosecutrix and on the basis of such FIR, the G.D. Entry No.207 of Haibargaon TOP dated 8.1.2008, was made and thereafter, he forwarded the FIR to O/C Nagaon P.S. for registering a case. O/C Nagaon P.S received the FIR, registered a case thereon, vide Nagaon P.S. No. 27 of 2008 and ordered him to investigated the case. 17. During the course of such investigation, he met the prosecutrix, recorded her statement, had her statement recorded by the Magistrate and also sent her to hospital for medical examination. In the course of investigation, he visited the place of occurrence, prepared the sketch map of the same, recorded the statement of other witnesses and arrested the accused Md. Nur Islam, forwarded him to the judicial custody and on completion on investigation, he submitted charge sheet under section 457/376, IPC against the accused person. 18. In his cross-examination, he has stated that P.W. 6 did not tell him during the investigation that the victim informed him about the accused opening the door of her house at night or his tearing her blouse or his restraining her from raising hue and cry. PW8 Smt. M. Day is a judicial officer who recorded statement of the victim under section 164, Cr.PC in connection with Nagaon P.S case No. 27/2008 under section 457/376, IPC. 18(a). Since the accused set up the plea of total innocent, he also got himself examined as DW1. According to him, a political rivalry between him and the husband of the informant had propelled the victim to lodge a false case against the accused person. He also stated in his evidence that PW6 (Gaonburah) deposed against him falsely since he also caught him misappropriating rice which was placed at his custody for distributing among the flood affected people. It is also in evidence that while he was in detention, in connection with the case under consideration, the husband of the victim too attempted to commit rape on his wife. 19. It is also in evidence that while he was in detention, in connection with the case under consideration, the husband of the victim too attempted to commit rape on his wife. 19. Above being evidence on record, let see how far such evidence makes out the case brought against the accused person. We may note here that FIR is not the encyclopaedia of the prosecution case but then, prosecution side needs to state the frame up of the case in its FIR leaving the detail to be told and retold during trial. In our present case, too, if one considers the version recorded in the FIR in its totality, it would appear clear that the present case too has some salient features. 20. They are : (i) On the day in question, the accused entered into the house of the prosecutrix by opening the doors of her house. (ii) Having entered into her house, he forcibly felled her on the bed and then committed rape on her. (iii) She could not raise hue and cry as she apprehended that by doing so she would be inviting huge danger to her. (iv) Once the accused left her house, she started raising hue and cry which brought many people nearby to their house who found her in almost naked condition. 20(a). Above being from the fundamental features of the prosecution case, as per the FIR, one needs to know how far such a case, as narrated in the FIR, stood collaborated in view of the testimonies rendered by PWs during the trial. In this connection, we may also look at the prosecution story, so narrated in the Ext.5. In her statement under section 164, Cr.PC ( Ext. 5), the prosecutrix alleged that on the fateful night, the accused broke open the doors of her house, entered there into and having caught her on her bed, he forcibly committed sexual intercourse with her. Once he committed rape on her, the accused fled therefrom. The soon thereafter, one Rabia came to her house and taking Rabia with her, she chased the accused person but in vain. The story, so recorded in the Ext. 5, I find, drastically disputes the claim made in the FIR. 21. So situated, let us see, how the prosecutrix has projected her story before the court during trial. The soon thereafter, one Rabia came to her house and taking Rabia with her, she chased the accused person but in vain. The story, so recorded in the Ext. 5, I find, drastically disputes the claim made in the FIR. 21. So situated, let us see, how the prosecutrix has projected her story before the court during trial. I have already found that in her evidence, the victim claims that on the fateful night having entered into her house, the accused committed rape on her. In her evidence, she further claims that the moment the accused entered her house, she started raising hue and cry for which the accused pressed his hands against her mouth which prevented her from raising hullaballoo. Thus, she gave some more and more new twists to her story as the trial progress from stage-to-stage. 21(a). However, the matter did not stop there since she also found saying during the course of evidence that when Rabia come to her house she along with Rabia went to the house of brother of the accused person to complaint about the misdeed of the accused and reported the incident to him. Soon thereafter she came to the house of the accused person armed with a dao and started raising hue and cry in front of the house of the accused person. Unfortunately, such an account, narrated before the court during trial contradicts not only the incident recorded in the FIR but also the story stated in Ext.5. Such a state of affair does not augur well to advance the cause of prosecution case. 22. Coming to the evidence of PW4 Rabia, I have found that her evidence adds more and more suspicion to the prosecution case. Though the prosecutrix claim that Rabia came to her house on hearing hue and cry from such place, she (PW4) very categorically claims that on the night in question, the victim came to her house, awoke her up from sleep and told her that the accused had raped her. It is also in her evidence that the prosecutrix came to her house without any torch/lamp in her hand. Thus, PW4 refused to support the prosecution case so projected by the prosecutrix. It is also in her evidence that the prosecutrix came to her house without any torch/lamp in her hand. Thus, PW4 refused to support the prosecution case so projected by the prosecutrix. Even the PW5, who was said to have posted about the incident in question moment after the alleged incident claims that he came to know about such incident next day in the morning. I have found on certain point the PW2 and PW6 supported the prosecutrix. However, such corroboration comes only on peripheral aspects of the prosecution case, and that too, on the points, which have no serious bearing upon the matter under consideration. 23. We may note here that in the incident occurred on a moonless night. More importantly, there was no electricity in the house of the prosecutrix. The PW4 has stated that when the prosecutrix came to his house in the night in question, she came there without any lamp or torch in her hand. On the other hand, the prosecutrix claims that she could recognize the accused in the light of torch which she had when she was subjected to rape. However, in the facts and circumstances, narrated above, it is quite unbelievable that the prosecutrix had a torch in her hand or that she could recognize the accused in the light of the torch which she had during the time aforesaid. 24. In her evidence, the prosecutrix claims that soon after the alleged incident, she rushed to the house of the accused person taking a dao in her hand. When she so proceeded to the house of the. accused person, PW4 Rabia was also with her. Rabia did not corroborate such a claim that when she went to the house of the accused person Rabia had a dao in her hand. Very importantly, her claim that she armed with a dao went to the house of the accused person soon after the alleged incident did not find corroboration from the statement made in the FIR either. Nor did the story projected in the Ext.5 support such a claim made by the PW1 (prosecutrix) during the trial. 25. The Doctor examined the victim next day of the alleged incident and he did not find any injury in her private part or any other body part. He did not find spermatozoa in her private part either. Nor did the story projected in the Ext.5 support such a claim made by the PW1 (prosecutrix) during the trial. 25. The Doctor examined the victim next day of the alleged incident and he did not find any injury in her private part or any other body part. He did not find spermatozoa in her private part either. The absence of injury on any body part of the victim or absence of spermatozoa in her private part bears enormous importance since in her evidence, the prosecutrix claims that the accused committed rape on her subjecting her to huge physical force since she had done everything possible to prevent the accused from committing rape on her. It is also in her evidence that the accused forcibly felled her on her bed by catching both of her hands. In the teeth above revelations, it is really a paradox as to how the prosecutrix could remain unhurt despite there being a fierce fight between her and her perpetrator during the time under consideration. Similarly though the accused committed full fledged rape on her, the Doctor did not find any spermatozoa on her private part although she was medically examined next day of the alleged incident. Such projections make the prosecution case more and more doubtful. 26. In view of above, I am of the opinion that learned trial court was not justified in convicting the accused/appellant of offence under section 457/376, IPC and as such, the judgment, impugned, convicting the accused of the offences under section 457/376, IPC and punishing him as aforesaid is liable to be set aside. 27. In the result, the appeal is allowed and the judgment of the trial court is set aside. 28. The accused be set liberty forthwith if he is not required with any other case.