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Gauhati High Court · body

2014 DIGILAW 866 (GAU)

Sahid Uddin v. State of Assam

2014-09-10

P.K.SAIKIA

body2014
1. This appeal is directed against the judgment dated 27.6.2013, passed by the learned Assistant Sessions Judge, Karimganj in Sessions Case No.24/2013 under section 376/417, IPC convicting the accused/appellant of the offence under section 376, IPC and sentencing him to suffer R.I. for 8 years and to pay a fine of Rs.20,000, in default, R.I. for another 6 months. 2. Being aggrieved by and dissatisfied with the aforesaid judgment the accused/appellant, namely, Sahid Uddin ('the accused person') has preferred this jail appeal citing several infirmities in the judgment under challenge. 3. The facts necessary for disposal of the present appeal, in brief, are that on 21.2.2007 one Saira Begum, mother of the victim lodged a complaint with the learned Chief Judicial Magistrate, Karimganj alleging inter alia that about 7 to 8 months prior to the filing of such complaint before the Court of the learned Chief Judicial Magistrate, Karimganj, the accused person came to their house in absence of the family members of the victim and taking advantage of loneliness of the victim, who was a girl about 15 years of age at the time relevant performed sexual intercourse with her against her will. 4. Having committed rape on her, the accused person threatened the victim not to divulge such episode to any one or she would face serious consequence. The accused person also promised to marry her one day. Due to such promise and also due to treat, the victim did not disclose those episodes to her family members. Even thereafter taking advantage of the absence of her parents in the house and also on promising to marry her, the accused person committed sexual intercourse with her on several occasions. 5. Due to such sexual inter-courses, victim became pregnant and her appearance started to change which was, however, noticed by her mother, namely, Saira Begum (PW1). Having seen such changes in the physical appearance of the victim, her mother Saira Begum (PW1) reported the matter to her elder daughter, already married, who then immediately came to her parents house and enquired her sister as to what had gone wrong with her. On being so enquired, the victim girl divulged as to how she became pregnant. 6. Having seen such changes in the physical appearance of the victim, her mother Saira Begum (PW1) reported the matter to her elder daughter, already married, who then immediately came to her parents house and enquired her sister as to what had gone wrong with her. On being so enquired, the victim girl divulged as to how she became pregnant. 6. On getting information as to how she got pregnant, PW1 and her husband PW3 went to the house of the accused person and narrated the occurrence to the parents of the accused person and reported to them what their son had one to their daughter. Being so informed, the parents of the accused person initially agreed that they would arrange a marriage between the victim and the accused person but later on, they declined. Having found no other way, the mother of the victim (PW1) lodged a complaint before learned Chief Judicial Magistrate, Karimganj. 7. Learned Chief Judicial Magistrate, Karimganj, in turn, sent the same to the Officer-in-charge, Badarpur to register a case and to do the needful in accordance with law. The O/C, Badarpur having received the complaint registered a case against the accused person vide Karimganj P.S. Case No. 25/2007 under section 376/417 and ordered one Hema Kanta Bora, S.I. of police to investigate the matter. The police office, so entrusted, started investigating the case, arrested the accused person, examined the witnesses and did other needful, and on completion of investigation submitted charge sheet under section 376/417 IPC against the accused person and forwarded him to the court to stand his trial there. 8. 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 learned Sessions Judge, Karimganj, who, in turn, transferred the case to the file of the learned Assistant Sessions Judge, Karimganj for disposal in accordance with the law. On receipt of the case on transfer and on hearing the learned counsel for the parties, the learned court below framed charge under section 376, IPC against the accused person and charge, so framed, on being read and explained to the accused person, he pleaded not guilty and claimed to be tried. 9. On receipt of the case on transfer and on hearing the learned counsel for the parties, the learned court below framed charge under section 376, IPC against the accused person and charge, so framed, on being read and explained to the accused person, he pleaded not guilty and claimed to be tried. 9. It may be stated here that in the meantime, the victim girl gave birth to a female child and at the time of rendering judgment by the learned court below the age of the victim was about 16 years, During trial, the prosecution had examined as many as six witnesses to make out the charge brought against the accused person. The prosecution witnesses were subjected to cross-examination. The statements of the accused person was also recorded under section 313, Cr.PC. His plea was that he was no way involved in the offence under consideration. 10. His further case was that at the relevant time, he was working in the State of Meghalaya. He also adduced two witnesses to support of his claim as innocence. On conclusion of the trial and on hearing the argument advanced by the learned counsel for the parties, the learned court below was pleased to convict the accused person of offence under section 376, IPC while acquitting him of offence under section 417, IPC and since the punishment as aforesaid, it was that judgment which has been assailed in the present appeal. 11. Opening up the argument on behalf of the accused person, Mr. S.C. Biswas, learned counsel, submits that the judgment of the trial court needs to be set aside since it suffers from several infirmities. In that connection, it has been pointed out that has not been properly explained. Non-explanation of delay is fatal to the prosecution case under consideration. 12. It is stated that some Very vital witnesses were not examined by the prosecution. One of them was grandmother of the victim girl. Non-examination of such vital witnesses without assigning any reason requires this court to view that the entire prosecution case with huge suspicion and such suspicion again requires the court to hold that the allegation of accused person having committed the offences under consideration without any basis. 13. One of them was grandmother of the victim girl. Non-examination of such vital witnesses without assigning any reason requires this court to view that the entire prosecution case with huge suspicion and such suspicion again requires the court to hold that the allegation of accused person having committed the offences under consideration without any basis. 13. Even one assumes that for the sake of argument for a moment that the accused person had sexual intercourses with the victim girl yet such sexual intercourse encounters which the victim had with the accused person were all consensual ones. Her conduct in suppressing the matter over a period of the close of 5 months and her conduct in having sexual intercourses with the accused person on several occasions are clear testimony to such a fact. 14. The learned counsel for the accused person further submits that though the prosecution claims that victim was a minor girl at the time relevant, yet it withheld the best of the testimonies on the on her age, same being the school certificate since the was evidently and admittedly a going student. Non-production of such a vital document is fatal, more so, when the prosecution basically tries build the edifice of case on such a point on the basis of the evidence of Doctor which is found to be riddled with serious infirmity. 15. Therefore, in view of other materials on record, it needs to be concluded that at the time of incident in question, the victim was girl, who attained the age of discretion, she being more than 16 years age at the time under consideration. Since she attained the age of discretion and since she was a consensual party to all those sexual intercourses, the learned court below was not right in holding that the accused person was guilty of offence under section 376, IPC. In view of above, the learned counsel urged this court to set aside the judgment under challenge on acquitting the accused of offence under section 376, IPC. 16. On the other hand, the learned Addl. P.P., Assam appearing for the State respondent contends that the judgment under challenge in this appeal does not suffer from any infirmity whatsoever. In view of above, the learned counsel urged this court to set aside the judgment under challenge on acquitting the accused of offence under section 376, IPC. 16. On the other hand, the learned Addl. P.P., Assam appearing for the State respondent contends that the judgment under challenge in this appeal does not suffer from any infirmity whatsoever. According to him, the learned court below properly marshal the evidence on record and then came to the conclusion that the prosecution has proved the charge under section 376, IPC beyond all reasonable doubt and as such, the judgment aforesaid does not call for any interference from this court of appeal. He, therefore, prays for dismissal of the appeal. 17. I have considered the rival submissions of the parties having regard to the evidence on record as well as the judgment under challenge. On perusal of the evidence on record in between the lines, I have found that the parties to this appeal fought a force fight over the question of age of the victim girl at the time relevant. While the prosecution submits that at the time relevant, she was 15 years or less, the accused person claims that during the time under consideration, she was a girl, more than 16 years of age. 18. Since the age of the girl has huge bearing on the outcome of the case and since both the parties the case laid claims on such a point which are pole apart, I find it necessary to know if the victim was a girl, more than 16 years of age at the time relevant. On the perusal of the record, I have found that this question was also considered by the learned trial court and on considering the evidence on record from various angles, it comes to the conclusion that at the time relevant the victim girl was about 15 years and as such, she was a minor. The relevant part of the judgment is reproduced below : "Appreciation of evidence Now the basic issue that falls for consideration is what was the age of the prosecutrix (PW4) at the relevant time of occurrence. The occurrence, as per Ext.1 had taken place about 7/8 months prior to 17.2.2007 being the date of filing Ex.1. The relevant part of the judgment is reproduced below : "Appreciation of evidence Now the basic issue that falls for consideration is what was the age of the prosecutrix (PW4) at the relevant time of occurrence. The occurrence, as per Ext.1 had taken place about 7/8 months prior to 17.2.2007 being the date of filing Ex.1. This implies that the occurrence might take place in the month of May/June, 2006, But the specific evidence of PW4 who is the victim girl as well as the prosecutrix is that the accused person, in January 2006, while she was 15 years Old and Studying in Class IX at Bhanga Higher Secondary School, the accused person on a certain day at about 3 p.m. came to her house in absence of her parents and her younger sister, and committed physical intercourse with her after gagging her mouth (during her deposition before this court, she burst in to tears) and removing her wearing cloths. And blood was oozing out from her gavina. In Ext 1 also, PW1 has mentioned the age of PW4 as 15 years. Therefore, it becomes clear that the occurrence of forcible sexual intercourse with PW4 by the accused person had taken place in the month of January 2006. Therefore, the age of PW4 in the month of January 2006 is relevant. Aforesaid medical evidence, viz. PW 5 & Ext.3 with regard to the age of PW4 is totally silent. Although, medicate evidence corroborate the evidence of PW4, PW1 & PW 2 that PW4 was pregnant as on 22.2.2007. It appears that the I.O. did not give medical requisition for age determination of the victim girl (PW4) while she was sent to Karimganj Civil Hospital. So, it is the lapse on the part of the IO. But it is well settled that due to the fault of the IO, the prosecution should not suffer. The hon'ble Supreme Court, in the case of Karnel Singh v. State of M.P., (1995) 5 SCC 518 held "In cases of defective investigation, the court has to be very circumspect in evaluating the evidence of but it would not be right in acquitting the accused person solely on account of the defect; to do so would tantamount to the playing in the hands of the Investigating Officer, if the investigation is designedly defective". Therefore, keeping in mind of the said ruling of the Supreme Court, now we are to meticulously see the evidence regarding the age of PW4 at the relevant time of occurrence. The evidence of PW1 and PW3 who are the parents of PW4 as regards her age is of fundamental importance. PW1 and PW3 have deposed that at the relevant time of occurrence, PW4 was 15 years old. Although, PW1 during her cross-examination has replied that she cannot remember the exact date of birth of OW4, but she specifically stated that at the relevant time, she was studying in Class IX at Bhanga Higher Secondary School. PW1 and PW3 are poor village labourers who some how can put their signatures cannot be expected to remember the exact date of birth of their daughter (PW4). But their evidence based on their knowledge regarding the age of their daughter cannot be said to be not acceptable and tentative. PW4 in her evidence before the court and in her statement recorded under section 164, Cr.PC (Ext.2) has specifically stated that she was 15 years old at the relevant time of occurrence and was reading in Class IX at Bhanga Higher Secondary School. During her cross-examination, the defence side did not give any suggestion to PW4 that she failed twice or thrice before being promoted to class IX or that she was already detained in class IX. Normally, in the rural area, a child at the age of 6 years is admitted in the L.P. School. Viewed from this angle also, one can easily assess that PW4 being a student of class IX at the relevant time of occurrence attained the age of 15 years only. And it cannot be held that she had crossed 16 years. In the light of above discussion, it can be safely concluded that PW4 at the relevant time of occurrence was 15 years old and as such, she was a minor at the relevant time of occurrence". 19. The learned counsel for the appellant, however, contends that the above finding of the learned trial court cannot be accepted since the prosecution did not produce before the court the best of evidence regarding the victim girl, same being the school certificate. This more so, since, there is definite evidence on record to show that the victim was a school going girl. This more so, since, there is definite evidence on record to show that the victim was a school going girl. Since the best evidence of the victim girl was not produced, it needs to be presumed that at the time of incident, the victim was a major girl, at least, she was a girl who attained the age of 16 years which is held to an age when the girl attained the age of discretion. 20. However, such an argument is found untenable. I have found that the parents of the victim girl categorically stated that at the time relevant, the victim was a girl of about 15 years of age. The victim too supports such claim of her parents stating that she was 15 years of age at the time relevant. Since the prosecution has proved through the evidence of the victim, her parents and sister that at the time relevant, the victim was a girl less than 15 years of age, it was the duty of the defence to repudiate such projection and if necessary by calling for the school certificate. Since it was not done, it cannot be said that evidence of the victim, her parents and sister is to be brushed aside only for school certificate not being produced. 21. The defence also contends that though the Doctor has examined the victim and he opined that the victim was pregnant on the date on which he examined her, yet, he rendered no opinion as to the age of the victim. This is fatal. However, such an argument too is without any basis. I have already found that the prosecution has very firmly established that the victim was less than 15 years of age during the time under consideration. There is nothing on record to conclude that the projection so made needs to be rejected for one reason or other. 22. It is worth noting that the sister of the victim was examined as PW2 on 5th March, 2013. In her evidence, she stated that the prosecutrix was about 5 to 6 years younger to her. The alleged incident took place in 2007. The record shows that on 5th March, 2013, PW2 recorded her age as 25 years. Such evidence was not disputed and as such, there cannot be any difficulty in accepting such evidence of PW2. 23. In her evidence, she stated that the prosecutrix was about 5 to 6 years younger to her. The alleged incident took place in 2007. The record shows that on 5th March, 2013, PW2 recorded her age as 25 years. Such evidence was not disputed and as such, there cannot be any difficulty in accepting such evidence of PW2. 23. If One Calculates the age of the victim during the time under consideration in the light of evidence of sister of the prosecutrix, he would find that at the time relevant, the victim was undoubtly a girl less than 15 years. This further supports the claim of the prosecution that the prosecutrix was a minor girl when the alleged incident took place. 24. So situated, let us see, if the accused had sexual intercourses with the victim during 2007 which ultimately makes her pregnant requiring her to file a case against the accused person. Such aspects of the prosecution case were considered by the learned court below having regard to the evidence on record. The relevant part of the evidence rendered by the witnesses and the decision thereon is reproduced below : "Now as regards the occurrence of sexual intercourse with PW4 by the accused person, PW1, PW2 and PW3 are the reported witnesses and they did not seen the occurrence, although they noticed the pregnancy of PW4 and witnessed the giving birth of a female baby by her after filing of the case. In this case, it is pertinent to mention here that the testimony of PW4 that she gave birth of a female baby is not denied by the defence during her cross-examination. Surprisingly enough, the defence side did not dare to give suggestion to PW4 that the female baby born to her was not as a result of sexual intercourse by the accused person, probably, the defence side avoided the matter of DNA test of the accused person with the child of PW4 to conceal him from being proof of paternity of her daughter. Thus, the established truth of this case is that PW4, a young unmarried girl reading in Class IX at the relevant time of occurrence became pregnant and the mother of a child which is very sad and shameful affairs in the society. Thus, the established truth of this case is that PW4, a young unmarried girl reading in Class IX at the relevant time of occurrence became pregnant and the mother of a child which is very sad and shameful affairs in the society. Now on scrutiny of the testimony of PW4 who is the most vital witness of this case, it appears that her specific, very clear and cogent evidence is that the accused person in the month of January 2006, on a certain day at about 3 p.m., in absence of her and while her younger sister was at school came to their house and having gagged her mouth forcibly made sexual intercourse with her by inserting his penis into her vagina and as result she sustained blood injury and experienced pain. She also stated that the accused person threatened her with dire consequence not to disclose the fact to any one and promise her to marry. Arid as such she did not disclose to any one out of fear and shy. In Ext. 2 also, she stated on oath before the learned Magistrate that the accused person about eight/nine months back from the date of her statement (statement recorded on 21.2.2007), taking advantage of the absence of her parents came to their house and forcibly made sexual intercourse with her and she became pregnant. In Ext. 2, although she did not give the vivid picture as to how the accused person committed sexual intercourse with her, but it is very clear that he made such sexual intercourse with her by applying force on her in absence of her parents and other while she was alone at her house. It has already been held that PW4 was a young girl of 15 years old. Therefore, her statement in Ext. 2 that she had love affairs with the accused person for about one and half years prior to the occurrence of forcible sexual intercourse with her by the accused person will not amount to her consent to such sexual inter course. Because, minor's consent is no consent. That apart, both before the court in her deposition as well as in Ext. 2, PW4 has specifically stated that he accused person by applying force upon her made sexual intercourse with her. There appears minor contrast in the deposition of PW4 before this court and her statement (Ext.2) recorded under section 164, Cr.PC. Because, minor's consent is no consent. That apart, both before the court in her deposition as well as in Ext. 2, PW4 has specifically stated that he accused person by applying force upon her made sexual intercourse with her. There appears minor contrast in the deposition of PW4 before this court and her statement (Ext.2) recorded under section 164, Cr.PC. In Ext. 2, she did not state that the accused person threatened her with dire consequence if she discloses the fact of making sexual intercourse with her while she has stated so while deposing before this court. Again, it is clear that PW4 did not state before the IO that as a result of sexual intercourse she experienced pain and there was oozing of blood from her vagina. All such variation and contrast have no much bearing to shake the credence of PW4 and has to be over looked under the facts and circumstances of the case. Undoubtly, PW4 after almost six years of occurrence having been stigmatized in the eye of the society of being a mother of an illegitimate child without being married has undergone serious mental trauma and has been definitely looked with narrow eye in the society with hate has deposed. As such, naturally there would be certain variations/contrast in her testimony before the court as well as her previous statement before the IO and her statement vide Ext. 2. However, she is consistent in her deposition before the court and in her said statement vide Ext. 2 that he accused person committed sexual with her forcibly taking advantage of her parents at their house at the relevant time. In the middle of her cross-examination, PW4 has replied that after four /five days of occurrence, the accused person for the second time came and made sexual intercourse with her and she did not disclose the occurrence to her parent. Although, it appears from her evidence during her cross-examination that the accused person after the first occurrence, made sexual intercourse with her for more than once and she did not disclose until she attained the five months of her pregnancy, but her such conduct cannot be treated herself as consenting party in view of the fact she was threatened by the accused with dire consequence if she discloses the crime to any one and also promised her to marry. And it is explained by her that out of fear and shy, she did not immediately disclose to her parents or other person. Moreover, at the relevant time, as it has been held she was a minor girl of 15 years old. It is well settled that a rape victim cannot be treated as accomplice. PW4 being an unmarried girl definitely and consistently, both during the investigation and her evidence before this court during trial has pointed the accused person alone responsible for forcible sexual inter course with her which resulted her pregnancy and ultimately she had given birth of a baby girl. There appears no reason and no evidence of enmity with the accused person for falsely implicating him in the crime. No. unmarried girl would falsely depose at her own risk of being outcast from the society as well as her future marriage prospect, and reputation that she has been made pregnant and become mother of her child without marriage at the instance of the accused person." 25. I have considered the above finding of the learned court below in the light of the evidence on record and have found that the decision, arrived at by the learned court below on the point of accused person's indulging sexual intercourse with the prosecutrix is sound and proper. Therefore it needs to be held that the accused had indulged in sexual intercourses with the prosecutrix during the time under consideration which ultimately makes her pregnant. 26. Since the victim was a young girl, less than 15 years of age at the relevant time and since the accused had committed sexual intercourse with her leading to her pregnancy, the accused/appellant is liable to be convicted of the offence under section 376, IPC regardless of consent of the prosecutrix to such sexual intercourses and is also liable to be punished in accordance with law. 27. In the result, I have found that the judgment, in question, insofar it relates to conviction under section 376, IPC does not suffer from any infirmity and as such, the conviction under aforesaid provision of law is maintained. 28. However, in my opinion, sentence, imposed on the accused person appears to be little on the higher side. This is because of the fact that when the offence in question took place, the accused person seemed to be boy of about 20 years of age only. 29. 28. However, in my opinion, sentence, imposed on the accused person appears to be little on the higher side. This is because of the fact that when the offence in question took place, the accused person seemed to be boy of about 20 years of age only. 29. That apart, there is nothing on record to show that the antecedents of the accused person were not satisfactory. Being so, I am of the opinion, the sentence, imposed on the accused person calls for some interference. 30. Consequently, the accused is sentenced to suffer RI for seven years and also directed to pay a fine of Rs.5,000, in default, R.I. for another 2 months for offence aforesaid instead of undergoing R.I. for 8 years and paying a fine of Rs.20,000, in default, R.I. for another 6 months, so imposed on him by the trial court. 31. It may be stated that in view of my foregoing discussion, the remaining parts of the judgment under challenge including order of compensation under section 357(A), Cr.PC are maintained. 32. With the above modification in the judgment, under challenge, appeal is dismissed. 33. The period of detention, already undergone by the accused person, is to be set off in the terms of section 428, Cr.PC. 34. Return the LCR. 35. The accused person is directed to surrender before the trial court immediately failing which the court below would do the needful to secure his attendance in accordance with law so that the sentence, imposed on him, could be executed.