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2014 DIGILAW 928 (GAU)

Moham Ali v. State of Assam

2014-10-17

C.R.SARMA, PRASANTA KUMAR SAIKIA

body2014
Judgment C.R. Sarma, J. 1. The above cited appeals are directed against the judgment and order, dated 05.09.2009, passed by the learned Addl. Sessions Judge (FTC), Darrang, Mangaldai, in Sessions Case No. 58 (DMFT) of 2006. As both the appeals have arisen out of the same judgment and order, based on the same set of facts and evidence, for the sake of convenience and as agreed to by the learned Counsel, appearing for both the parties, we have heard both the appeals together and propose to dispose of the same by this common judgment and order. 2. The prosecution case, in brief, is that, on the night of 31.08.2005, at about 7 P.M. the appellants trespassed into the house of the informant and kidnapped his minor daughter (PW-1) with intent to have sexual intercourse with her. The victim girl was taken to village Bahgauda, in a boat and in the boat itself, she, was raped by appellant Faizul and thereafter, she was taken to the house of Ms. Chandbhanu, situated in No. 2 Cheetkaguri village, where from she was rescued by her father, uncle and other members of the family, in presence of the Gaonburha. The victim's father Md. Tabibur Rahman (PW-2) lodged the First Information Report (for short, FIR), on 02.09.2005, with Police. On receipt of the FIR, Police registered a case under Sections 448, 342 and 376 read with Section 34 of the Indian Penal Code (for short, IPC) and launched investigation into the matter. 3. At the close of the investigation, Police submitted charge-sheet under Sections 448/342/366A and 376 read with Section 34 I.P.C. and forwarded the accused persons to the court of Sessions to stand trial. 4. The case being committed to the Court of Sessions, the learned Additional Sessions Judge, Darrang, Mangaldai framed charges under Sections448 and 366A, IPC against all the accused persons and under Section 376(2)(f) IPC against Md. Faizul Ali. The charges were read over and explained to the appellants, to which they pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution examined as many as 9 (nine) witnesses as PWs. 5. At the close of the evidence for the prosecution, the accused persons were examined under Sections 313Cr.P.C. They denied the allegations, brought against them. They also examined two defence witnesses. Their plea was a denial one. In order to prove its case, the prosecution examined as many as 9 (nine) witnesses as PWs. 5. At the close of the evidence for the prosecution, the accused persons were examined under Sections 313Cr.P.C. They denied the allegations, brought against them. They also examined two defence witnesses. Their plea was a denial one. Considering the evidence, on-record, the learned Sessions Judge convicted both the appellants under Sections 4458/366A IPC and sentenced them to suffer rigorous imprisonment for six months for their conviction under Section 448 IPC and suffer rigorous imprisonment for three years and pay fine of Rs. 2000/- (Rupees Two Thousand) each, in default, suffer rigorous imprisonment for another period of six months for their conviction under Section 366A IPC. Appellant Faizul Ali has also been convicted under Section 376(2)(f) IPC and sentenced to suffer rigorous imprisonment for ten years and pay fine of Rs. 10,000/- (Rupees Ten Thousand), in default, suffer rigorous imprisonment for another period of one year. It has been provided that all the sentences shall run concurrently. 6. Aggrieved by the said conviction and sentence, the convicted persons have come up with these appeals. 7. We have heard Mr. Y.S. Mannan, learned Counsel, appearing for appellant Mr. Moham Ali and Ms. P. Chakbarotry, learned Amicus Curiae, appearing for appellant Md. Faizul Ali. We have also heard Ms. S. Jahan, learned Additional Public Prosecutor for the State. 8. Mr. Y.S. Mannan, learned Counsel for the appellant Md. Moham Ali has submitted that the evidence, given by the vital witnesses i.e. the victim (PW-1), her father Md. Tabibur Rahman (PW-2) and her uncle Joher Ali (PW-3) are contradictory and that the same does not inspire confidence to believe that the appellants had forcefully taken the victim and committed rape on her. It is submitted that the prosecution failed to prove the allegations, brought against the appellants, beyond all reasonable doubt and as such, the appellants are entitled to be acquitted. Ms. P. Chakbarotry, learned Amicus Curiae, appearing for the appellant Md. Faizul Ali has submitted that the victim was not forcefully taken by the appellants and that the prosecution's evidence can't be accepted without corroboration and support by other reliable evidence. Ms. P. Chakbarotry, learned Amicus Curiae, appearing for the appellant Md. Faizul Ali has submitted that the victim was not forcefully taken by the appellants and that the prosecution's evidence can't be accepted without corroboration and support by other reliable evidence. It is submitted that the contradictory evidence, given by the prosecution witnesses and non examination of the person, who had apprehended the appellants along with the victim and handed over to police, raises doubt about prosecution version. The learned Amicus Curiae has submitted that the impugned conviction and sentence are not maintainable. 9. Refuting the said argument, advanced by the learned Counsel for the appellants, Ms. S. Jahan, learned Additional Public Prosecutor has submitted that there is sufficient evidence, on-record, to show that the appellants had forcefully taken the victim girl (PW-1) and that the appellant Md. Faizul Ali had raped and taken her to the house of Ms. Chandbhanu (PW-4), wherefrom she was rescued. Therefore, it is submitted that the learned Sessions Judge committed no error by convicting and sentencing the appellants, as indicated above. 10. Having heard the learned Counsel, appearing for both the appellants and the learned Additional Public Prosecutor, in order to appreciate the arguments, advanced by the earned counsel, appearing for the parties and to examine the correctness of the impugned judgment, we feel it appropriate to scrutinize the evidence. 11. The victim girl, deposing as PW-1, stated that the appellants had carried her from her house for about 1 (one) K.M. and then they took her in a boat to the house of Ms. Chandbhanu, wherein she was kept for one night. She also stated that Md. Faizul had raped her in the boat and that she was recovered by her father, uncle and the Gaonburha from the house of Ms. Chandbhanu. She also stated that though Md. Faizul Ali had taken her with a view to marry, the marriage could not be performed. 12. During the cross-examination, she stated that Md. Faizul Ali, who was known to her, used to visit at their house. She further stated that, while taking her in a boat, she raised alarm and persons from a nearby brick kiln had apprehended the accused persons and handed over them along with her to the Police. This time she clearly stated that she was not recovered from the house of the Ms. Chandbhanu. She further stated that, while taking her in a boat, she raised alarm and persons from a nearby brick kiln had apprehended the accused persons and handed over them along with her to the Police. This time she clearly stated that she was not recovered from the house of the Ms. Chandbhanu. She also stated that she has already got married with another person and that she has no objection in granting acquittal to the accused persons. 13. A close scrutiny of the evidence, given by the victim, in her in-chief examination and during the cross-examination, reveals major contradiction regarding place of recovery. According toiler in-chief examination, the appellants had taken her to the house of Ms. Chandbhanu and she was recovered from the said house, but, as per her cross-examination, she, while, taking her in a boat raised alarm and the appellants were apprehended by people from a brick kiln and handed over to Police. This indicates that she was not taken to the house of Chandbhanu. Hence, the evidence regarding her recovery from the house of Ms. Chandbhanu is not correct. The said contradictory evidence, on such vital point, raises doubt about the veracity of the prosecution story. 14. Ms. Chandbhanu Begum, deposing as PW-4 stated that Md. Faizul Ali had taken the victim to her house and that her father and the Gaonburha, on being informed, had taken the victim from her house. In her cross-examination, she stated that the victim had conversation with her in jolly mood. This statement of PW-4 belies the story of forceful taking. Because, if the victim was forcefully taken, then she would have complained before PW-4. That apart, in the event of forceful taking, she would not have remained in happy mode. As noted above, the evidence given by PW-1, in her cross-examination, belies PW-4's evidence that the victim was taken to her house. In view of PW-1's cross-examination, she was not taken to the house of Ms. Chandbanu. However, this evidence of PW 1 is contrary to her evidence given in in-chief examination. In view of such contradictory evidence, in our considered opinion, it is not safe to rely on her evidence. 15. Mr. Tabibur Rahman i.e. the father of the victim, deposing as PW-2 stated that the victim was recovered by his brother Md. Taher Ali (PW-30) on the next day from the house of Ms. Chandbanu. Mr. In view of such contradictory evidence, in our considered opinion, it is not safe to rely on her evidence. 15. Mr. Tabibur Rahman i.e. the father of the victim, deposing as PW-2 stated that the victim was recovered by his brother Md. Taher Ali (PW-30) on the next day from the house of Ms. Chandbanu. Mr. Taher Ali (PW-3) also stated that he along with Mr. Mubarak Ali (PW 5) had rescued the victim girl from the house of Ms. Chandbanu. This witness stated that he did not ask the victim girl anything. His evidence does not indicate involvement of the appellants. 16. Mr. Mubarak Ali (PW-5) stated that he along with people from the village visited the house of Ms. Chandbanu and that, despite asking, the victim said nothing. Though this witness was declared hostile and cross-examined by the prosecution, nothing could be elicited against the accused persons. 17. The evidence of PW-4 reveals nothing except recovery of the victim girl from the house of PW-5. He did not say anything regarding involvement of the accused persons. From the evidence of PW-4, it is found that the victim was taken to her house by Md. Faizul Ali. 18. As discussed above, PW-4's evidence does not reveal application of any force by Md. Faizul Ali and involvement of Md. Mohar Ali. This evidence of PW-4, indicates that the victim had gone to her house at her own will. The father of the victim i.e. PW-2 stated that the victim was brought home by his brother Md. Taher Ali i.e. PW-3 from the house of PW 4 and that he (PW-2) had, lodged the FIR. But the victim's evidence, given during the cross-examination, belies the said statement of PW-2. According to the Victim, she along with the accused persons were apprehended by persons from a brick kiln and handed over to Police. Hence, the prosecution version regarding taking of the victim to the house of the PW-4 stood contradicted and negated by the evidence given by the victim, in her cross-examination. In our considered opinion, this is a major contradiction, on material point, raising doubt, against the prosecution story. 19. That apart, PW-2, in his cross-examination, stated that the age of the victim was about 20 years. He deposed on 16.03.2007 and the occurrence took place on 31.08.2005. In our considered opinion, this is a major contradiction, on material point, raising doubt, against the prosecution story. 19. That apart, PW-2, in his cross-examination, stated that the age of the victim was about 20 years. He deposed on 16.03.2007 and the occurrence took place on 31.08.2005. In view of the said statement, made by the PW-2, the age of the victim at the time of occurrence was about 18 years. In the absence of any birth certificate or record of birth, the parents are the best persons to say about the age of their child. Hence, taking the said evidence of PW-2 in to confidence, were inclined to hold that the victim was a major at the time of the incident. 20. PW-2 further stated, in his cross-examination, that the victim, on being asked, told that she had gone to the house of Ms. Chandbanu (PW-4) at her own will and that she did not state that she was taken by the appellants. The said evidence of PW-2 clearly negates the prosecution version that the appellants had forcefully taken the victim and that she was raped by Md. Faizul Ali. The above discussed contradictory evidence given by the victim and the said evidence of PW 2 rules out the criminal involvement of the appellants. 21. The Medical evidence, given by Dr. Ellore Choudhury (PW-7) does not indicate any sign of rape or violence in respect of the person of the victim girl. 22. In view of the above discussion, we have no hesitation in concluding that it is a doubtful that the appellants had forcefully taken the victim and that Md. Faizul Ali had committed rape on her. 23. In our considered opinion, the prosecution failed to prove the allegations, brought against the appellants, beyond all reasonable doubt. Therefore, they are entitled to benefit of doubt. Hence, we find merit in these appeals. Accordingly, the appeals are allowed. The impugned conviction and the sentences are set aside. The appellants be acquitted and set at liberty forthwith, if not required in any other case. 24. Before we part with this record, we acknowledge the valuable assistance rendered by Ms. P. Chakraborty, as Amicus Curiae. An amount of Rs. 7,000/- (Rupees Seven Thousand) be paid by the State as her remuneration. As desired by Ms. Chakraborty, the said amount be deposited in favour of the High Court Mediation Centre. 24. Before we part with this record, we acknowledge the valuable assistance rendered by Ms. P. Chakraborty, as Amicus Curiae. An amount of Rs. 7,000/- (Rupees Seven Thousand) be paid by the State as her remuneration. As desired by Ms. Chakraborty, the said amount be deposited in favour of the High Court Mediation Centre. Return the LCR.