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Gauhati High Court · body

2014 DIGILAW 973 (GAU)

MD. Baharuddin v. State of Assam

2014-11-05

P.K.SAIKIA

body2014
In these appeals, the judgment dated 30.4.2007, rendered by learned Sessions Judge, Karimganj in Sessions Case No.58/06, convicting the appellant in Criminal appeal No. 186/2007 and appellant in Crl. appeal No. 187/2007 of offence U/s 376 2(G) of the IPC and sentencing them to suffer RI for 10 years and fine of Rs 5000 /-each i/d SI for six months is called into question. 2. Since both these appeals originated from the judgment dated 30.4.2007, passed by the learned Sessions Judge, Karimganj in Sessions Case No.58/06, I propose to dispose of these two appeals by this common judgment. 3. I have heard Mr. A. Sarif, learned counsel for the appellant in Criminal Appeal No.186/07 and Ms. R. S. Choudhury, learned Amicus Curiae appearing for appellant in Criminal Appeal (J) No.187 of 2007. I have also heard Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam. 4. The projected case of the prosecution in brief is that on 6.3.2006 at about 6 pm. one Mrs Maizun begum sent her minor daughter (hereinafter referred to as victim girl) to nearby shop to fetch some household articles. While returning home from the aforesaid shop, the appellant Md. Baharuddin and Jamal Uddin @ Jainal (hereinafter referred to as A-1 and A-2 respectively) met her on the way and forcibly took her to a lonely but swampy place where both of them raped her one after another. 5. Thereafter the victim girl was taken to a school nearby where A1 and A2 again committed rape on her at regular intervals till 2 A.M. At about 2 A.M, A1 took her to his house and allowed her to pass the remaining part of the night in his house. On the next day in the morning, she was brought to her residence by his mother. It has been alleged that the accused persons took the victim girl to the aforesaid places putting her to threat to her life. It is also the case of the prosecution that the accused persons warned her not to divulge such episode to anyone otherwise she would have to face dire consequences. 6. An ejahar to that effect on being lodged by the mother of the victim girl with the O/C, Patharkandi Police Station on 8.3.2006, a case was registered, vide Patharkandi P.S. Case No. 33 of 2006 under Section 342/376/34 IPC. 6. An ejahar to that effect on being lodged by the mother of the victim girl with the O/C, Patharkandi Police Station on 8.3.2006, a case was registered, vide Patharkandi P.S. Case No. 33 of 2006 under Section 342/376/34 IPC. After registering the case, O/C, Patharkandi Police Station entrusted one Sri S. Kalita, S.I., of the Police Station to investigate the case. Being so entrusted, Sri Kalita, SI and the IO of the case aforesaid went to the place of occurrence, examined the victim girl and other persons well acquainted with the facts and circumstances of the case, got the victim examined by doctor and also had her statement recorded by Magistrate. 7. On conclusion of investigation, IO submitted charge-sheet against the accused persons under section 376(2)(G) of IPC. The Magistrate, before whom charge-sheet was so laid, committed the case to the Court of Sessions since the offence under Section 366(G)(2) of IPC is exclusively triable by the court of sessions. After the commitment of the case aforesaid and on hearing the parties, the learned Sessions Judge framed charge U/S 376(2)(G) of IPC against the accused persons and charge, so framed, on being read over and explained to them ,they pleaded not guilty and claimed to be tired. 8. During trial, the prosecution has examined as many as 5 witnesses including the victim girl and the IO. The statements of the accused persons U/S 313 Cr.P.C. were recorded. In their statements under Section 313 Cr.P.C., accused persons pleaded that they are innocent. Their further plea was that on many occasions, prior to the incident under consideration, the victim girl left her house on being assaulted by her parents and took shelter in the houses of her neighbours. 9. Even on the night in question, she was beaten black and blue for which she took shelter in the house of A1. Since the A1 is a neighbour of the family of the victim and since she was forced out of her house, she was given shelter in the house of accused person (A1). But following day in the morning, mother of the A1 took the victim to her house along with her neighbouring people and left her in the custody of her parents. 10. But following day in the morning, mother of the A1 took the victim to her house along with her neighbouring people and left her in the custody of her parents. 10. Unfortunately, due to some previous grudge, mother of the victim filed a false case implicating A1 and A2 with the aforementioned case alleging that they had raped her daughter on the night of 06.03.2006 on occasions more than one. In support of such contention, it has been submitted that there were several disputes between the parties since before the alleged incident over some landed properties and other related matters. To make out their plea, the accused persons examined three persons as DWs. 11. On conclusion of trial and on hearing the arguments, advanced by the learned counsel for the parties, the court below convicted the accused persons of offence u/s 376(2)(G) of IPC and sentenced them to suffer R.I. for 10 years and to pay a fine of Rs.5000/- each, in default, to suffer another six months imprisonment. It is that judgment which has been challenged in the present appeal citing several infirmities in the prosecution case or for that matter in the judgment under challenge. 12. Opening up the argument on behalf of the appellant (A1) in criminal appeal No.186/07, Mr. Sarif, learned counsel submits that the judgment, under challenge is unsustainable in law for reasons more than one and in support of such contention, it has been contended that though the incident under consideration occurred on 06.03.2006 at about 6 PM, the matter was reported to the police only on 08.03.2006 around noon. Thus, there is huge delay in launching the case and such delay remains totally unexplained. 13. Since the delay in lodging the case remained unexplained, the court is duty bound to take an adverse presumption to the effect that the allegations made against the appellants in the FIR which ultimately gave rise to Sessions Case No.58/06 were based, not on facts but on fictions and concoctions, more so, when in the heart of the matter lies the allegation of kidnapping of a young girl. 14. It is also the case of the appellant in criminal appeal No.186/07 that some very vital witnesses who could have thrown enough light on the matter under scrutiny were kept beyond the arena of the case and that too without assigning any reasons, whatsoever. 14. It is also the case of the appellant in criminal appeal No.186/07 that some very vital witnesses who could have thrown enough light on the matter under scrutiny were kept beyond the arena of the case and that too without assigning any reasons, whatsoever. This is fatal since non examination of those witnesses requires the court to take a presumption that had those witnesses were examined, they would not have supported the prosecution case. 15. In support of such a contention, it has been pointed out that in the FIR, it has been stated that the victim girl was brought to her house on 07.03.2006 in the morning by three persons, namely, Sri Faiaz Ali, Sri Abdul Rasid and Sri Tamjud Ali. According to Mr. Sarif, learned counsel, those persons were very vital witnesses since they brought the victim girl to her house after spending in the house of the A1 the very crucial night of her life. Since those persons were not examined as witnesses and that too, without assigning any reason, it naturally requires the court to draw the presumption as contemplated in Section 114(g) of the Evidence Act. 16. It is also the case of the appellant in criminal appeal No.186/07 that incident in question had occurred on the night of 06.03.2006 at about 7.30 pm when the victim had gone missing all on a sudden. However, such an incident of enormous severity was not reported to anyone, even to the immediate neighbours, till she was brought to her house on 07. 03. 2006. This again casts a serious doubt about the authenticity of the prosecution case. 17. According to Mr. Sarif, there are some other infirmities of equally terrifying nature which afflicted the prosecution case. In that connection, it has been pointed out that the victim alleged that A1 and A2 subjected her to rape again and again on the night of 06.03.2006. It is also on record that A1 and A2 were healthy youths in their early thirties. If that be the position, after having been subjected to repeated rape by two healthy youths of early thirties, it is quite but natural for her to sustain some injuries at least on her private part. However, the evidence of doctor who examined the victim on 08.03.2006 did not find any injury on her private part. If that be the position, after having been subjected to repeated rape by two healthy youths of early thirties, it is quite but natural for her to sustain some injuries at least on her private part. However, the evidence of doctor who examined the victim on 08.03.2006 did not find any injury on her private part. It only shows that the allegation of victim being subjected to numerous rapes on the night in question is without any truth. 18. Learned counsel Mr. A. Sarif again submits that it is the consistent claim of accused persons that at the time in question, the victim was a major girl ,her age being above 18 years. However, the prosecution did not take any step to ascertain the age of the victim girl during the time under consideration. In that connection, it has been pointed out that in his evidence, the Doctor (PW-1) deposes that he could not give any finding about the age of the victim girl at the relevant time as the x-ray report was not furnished to him. Such revelation clearly demonstrates that the claim of appellant that the prosecutrix was major girl during the time under consideration cannot be brushed aside argues Mr. Sarif. 19. Referring to the petition dated Nil, which was filed by the victim girl, the court below during trial requesting to recall her so that she could tell before the court the actual incident which occurred on the night of 06.03.2006, it has been submitted that at the time in question, the victim was a major girl and she was never raped by accused persons as alleged by her since she had to depose implicating accused persons with the crime in question on the demand and threat of her parents. Such statements in the petition dated nil sealed the fate of prosecution case, once for all, requiring this court to hold that the allegations against the appellants are false and fabricated. 20. On those grounds, the learned counsel appearing for A1 urges this court to set aside the judgment under challenge on acquitting the accused persons of offence u/s 376 (2) (G) of the IPC. 21. Mrs. R.S. Choudhury, learned Amicus Curiae, appearing for A2 adopting the arguments, advanced by Mr. 20. On those grounds, the learned counsel appearing for A1 urges this court to set aside the judgment under challenge on acquitting the accused persons of offence u/s 376 (2) (G) of the IPC. 21. Mrs. R.S. Choudhury, learned Amicus Curiae, appearing for A2 adopting the arguments, advanced by Mr. A. Sarif, learned counsel appearing for A1, further submits that there is no evidence worth its name in respect of A2 since except some passing reference, made by victim girl, no one has implicated the A2 with the crime aforementioned. Therefore, the allegation that A2 along with A1 committed rape on her on the night in question again and again remains far from being established. 22. She further, submits that the narration of the incident as rendered by the prosecutrix before the court during the trial is so improbable that a man of average prudence would never believe such account as truthful story. This is because of the fact that if the accused persons wanted to commit rape on the victim on the night in question, there is no point of their dragging the victim from place to place in order to commit rape on her at those places. 23. More so, when victim (PW2) deposes that while coming from the shop, accused persons dragged her to a lonely field and then took her to the school at some distance and then they took her to his own house to allow her to spend the rest of the eventful night in the house of A1 in company of his mother. In view of the above, learned counsel for A2 has also prayed for setting aside the judgment in respect of A2 as well and acquit him of the offence u/s 376 (2) (G) IPC. 24. Referring to the evidence, rendered by DWs, it has been stated by the learned counsel for A1 and A2 that the consistent case of the appellants was that on the night in question the victim girl was badly beaten by his family members for which she took shelter in the residence of A1, and therefore, mother of A1 took the victim to her residence, next day in the morning. However, instead of being grateful for giving shelter to her daughter on the night eventful, she filed a case against her son (A1) and one of his friends (A2). 25. However, instead of being grateful for giving shelter to her daughter on the night eventful, she filed a case against her son (A1) and one of his friends (A2). 25. According to the learned counsel for A2, mother of the prosecutrix lodged the case aforesaid due to some previous grudge. In that connection, it has been alleged the relationships between the parties was far from cordial long before the incident in question since the parties fought several cases over some landed properties and other related matters long before the initiation of the case by mother of the victim girl on 08.03.2006. The witnesses, examined from the side of the accused persons clearly make out such a case ---argues Ms R S Choudhary. 26. It is a settled law that in normal circumstances, the accused need not establish his plea in a criminal case beyond all reasonable doubt. His burden is to parabolise his claim. However, in the present case, the accused persons have clearly established their plea that they did not commit the offence, they were charged with. But all these important factors were totally ignored by the court below while convicting and punishing them as aforesaid. Therefore, this court needs to set aside the judgment under challenge and to acquit them from offence under Section 376(2)(G) of IPC. 27. On the other hand, Mr. Sinha, learned Addl. Public Prosecutor, Assam, appearing for the State submits that the evidence on record firmly establishes that on the night in question, A1 and A2 subjected the minor daughter of the informant in Sessions Case No.58/2006 to multiple sexual assault at different places after dragging her from the road while she was returning home after purchasing some household articles as required by her mother. Therefore, the present appeals lack merit and as such, same is required to be dismissed. 28. I have considered the submissions, advanced by the learned counsel for the parties having regard to the judgment under challenge as well as the evidence on record. However, before I could proceed further, I find it necessary to go through the evidence of the PWs, the evidence prosecutrix and her mother in particular. The prosecutrix was examined as PW-2. In her evidence, PW-2 deposes that on the fateful night, she went to nearby shop to purchase some household articles. 29. However, before I could proceed further, I find it necessary to go through the evidence of the PWs, the evidence prosecutrix and her mother in particular. The prosecutrix was examined as PW-2. In her evidence, PW-2 deposes that on the fateful night, she went to nearby shop to purchase some household articles. 29. While returning home, accused persons, namely, Bahar (A1) and Joinal (A2) met her on the way and dragged her from the road and took her to a nearby marshy area and committed rape on her subjecting her to fear of death. According to her, she was first taken to swampy area where both the boys committed rape on her one after another. Thereafter, she was taken to a nearby school where she was raped again and again till well past midnight. 30. Around 2 P.M., she was taken to the house of A1where she met the mother of A2. Next day in the morning, mother of A1 along with some other persons took the victim to her own house. In cross examination, she stated that there are many houses in the vicinity of her house as well as the house of the A1. It was also in her evidence that she was sent to shop on that fateful night by her mother. 31. P.W-3, Smti Maizun Nessa, is the mother of the victim girl. According to her, on the fateful night, she sent her daughter to a shop nearby to bring some household articles. She did not return home on that night. In the morning, she came home and reported her that A1 and A2 took her to the nearby filed by gagging her mouth and then they committed rape on her at such places. 32. The suggestion that there were some disputes between the family members of the victim and the family members of the accused Baharuddin long before the incident in question over some landed properties was denied by PW3 . The suggestion that on the fateful night, PW 3 and her husband subjected her daughter to severe assault and the suggestion that due to such assault, the victim was forced to leave her house were also denied by the mother of the prosecutrix. 33. P.W.4, Sri Safir Uddin, is the step father of the victim girl. The suggestion that on the fateful night, PW 3 and her husband subjected her daughter to severe assault and the suggestion that due to such assault, the victim was forced to leave her house were also denied by the mother of the prosecutrix. 33. P.W.4, Sri Safir Uddin, is the step father of the victim girl. According to him, on the night in question, he was not keeping well and was not at his house. He also deposes that on that night, he sent her daughter to a nearby shop to fetch some house hold articles. But her daughter did not come back that night. She, however, returned home next day in the morning. He came to know from his daughter that A1 and A2 took her to a nearby jungle and confined her there whole night. 34. Dr. M. Sutradhar, (P.W.1), is the Medical Officer who examined the victim girl at Patharkandi PHC, on 08.03.2006. His evidence is that he did not find any injury on the private part of the victim. Nor did he find any injury on any other part of her body. He, however, could not render any opinion as to the age of the victim girl since he was not furnished with the X-ray report. 35. P.W.5, Sri Sadananda Kalita, is the I/O of the case. According to him, he was entrusted to investigate the case initiated by PW-3. In his cross-examination, he admitted that he did not seize any article pertaining to the case aforementioned during the course of investigation. 36. Now, let us see how far such evidence makes out the allegations, levelled against accused persons. A perusal of the evidence of the aforesaid PWs reveals that though PW 2 and PW 3 claim that on the eventful night, accused persons dragged her from the road while the victim was returning home after purchasing some articles from the nearby shop and took her to the lonely field and then took her to the school nearby where they raped her for most part of the night, yet, such claims do not find support from the evidence of PW 4. 37. 37. In that regard, it may be stated that PW 4, the step father of the victim girl, deposed that after dragging her to a nearby field, accused persons took her to a nearby jungle where they confined her till 3 A.M. on the night of 06.03.2006. In his evidence, PW 4 did not utter a word about his daughter being raped by accused persons, much less her being raped again and again on the night of 06.03.2006. His complete silence on a matter as vital as the alleged rape, throws the entire prosecution case to a maze of thick of doubt 38. On perusing the evidence on record more and more, I have found that on the fateful night in the evening the daughter of PW-2 was sent to the nearby shop to purchase some household articles but she did not return home on that night. She was, however, brought to her house next day by the mother of the A1. One may note here that in spite of a girl going missing on the night aforementioned, her family members did make no effort whatsoever to locate whereabouts of such a girl. 39. The family members of the victim girl conducted themselves as aforesaid despite the victim allegedly being a young girl and despite there being so many houses in the vicinity of the house of the victim and in spite of those neighbours not being inimical to the victim or to her family. Such revelations, in my opinion, raise a serious doubt about the authenticity of the prosecution case that on the fateful night, accused persons after dragging her from the road while she was returning home, took her to a nearby field and then to a school nearby to commit rape on her on those places. 40. PW 3 claims that on the night in question the victim girl was sent to a nearby shop by her mother. But then, PW-4 too claims that on the night in question, he, and not PW3, sent the victim to such a place. Thus, a question arises as to the person who actually sent the victim to purchase some household articles from the shop on that eventful night. But then, PW-4 too claims that on the night in question, he, and not PW3, sent the victim to such a place. Thus, a question arises as to the person who actually sent the victim to purchase some household articles from the shop on that eventful night. These inconsistencies only make the prosecution case even more and more doubtful, more so, when PW 4 is also found saying that on the night in question, he was not in his house. 41. I have found that the alleged incident occurred on the night of 06.03.2006 and the FIR was lodged only on 08.03.2006. Thus, there was a delay of 3 days in lodging the FIR. Regrettably, prosecution did not offer any explanation as to why a delay of three days occurred in launching the case under consideration. It is a settled law that the delay, if remains unexplained, may be fatal to the prosecution case. In my opinion, that was exactly what which had happened in the present case. 42. It is also the case of the appellants that the allegation of victim being sexually harassed by two healthy well grown adults for most part of the night of 06.03.2006 needs to be discarded for other reasons as well. In that connection, it has been stated that if two males committed rape on a young girl of 11 years again and again for most part of the night of 06.03. 2006, then the victim must have suffered some serious wounds on her body, more particularly, on her private parts. 43. However, if one believes the evidence of the Doctor, and there is no reason as to why he should not be believed, the Doctor did not find any injury in any part of the body of the victim when he examined her after three days of the incident This is another reason as to why the testimony of the prosecutrix is to be rejected. This is also a reason which requires this court to reject the prosecution story that on the night in question, she was forcibly taken from the road and then was taken to various places only to be raped by two well grown males most part of the night of 06.03. 2006. 44. This is also a reason which requires this court to reject the prosecution story that on the night in question, she was forcibly taken from the road and then was taken to various places only to be raped by two well grown males most part of the night of 06.03. 2006. 44. During the course of argument, it has been pointed out that as per the statements in the FIR, the victim girl was brought to her house next day of the incident by Fesai, Harun Uddin and Maya Bibi. Such a statement in the FIR finds support from the evidence on record. But none of those persons were made witnesses in the case under consideration. In my opinion, those persons, who brought the victim to her house next day in the morning, ought to have made witnesses since they could have thrown sufficient light on the matter under scrutiny. 45. But those three vital persons were not made witnesses and that too, without assigning any reason as to why they were not made witnesses in Sessions Case No.58/06. Such a failure on the part of the prosecution, now, requires the court to take an adverse presumption as contemplated under section 114 (g) of the Evidence Act and to conclude that had the prosecution examined those persons as witnesses in the case aforesaid, they would not have supported the prosecution case. 46. It is a settled law that prosecution has to prove its case on its own and in a case of the nature which we are seized with, the age of the victim occupies the centre stage. Therefore the prosecution is duty bound to prove the age of the victim adducing reliable evidence. However, where the accused denies the minority of the prosectrix , the prosecution must establish that on the date on which the alleged incident took place , the victim was a minor. 47. In the instant case, it is the consistent plea of the appellants that on the date of incident, the victim was major girl, her age being more than 18 years on such a date. The prosecution is, therefore, duty bound to show that on such a date, the prosecutrix was minor .But then, the prosecution made no serious effort to show that such a contention was not true by proving that on 06.03.2006, the age of the victim was less than 18 years. The prosecution is, therefore, duty bound to show that on such a date, the prosecutrix was minor .But then, the prosecution made no serious effort to show that such a contention was not true by proving that on 06.03.2006, the age of the victim was less than 18 years. Such a failure on the part of prosecution, now, requires this court to hold that on the date of incident, the prosecutrix was a major girl. 48. It may be noticed here that during the course of trial, the victim girl filed an application before the trial court stating that she had falsely implicated the appellants herein as being the persons who reportedly raped her on the night of 06.03.2006. But she claims that she did so under the pressure of her step father. It was also her case that on such a date, she was a major girl. Such an application was filed seeking permission to direct the prosecution to recall her to lay before the court some more information relating to crime in question. 49. Though the court passed no order on such a petition, yet, fact remains that the victim did file a petition during the course of trial in Sessions Case No.58/06 admitting that on 06.03,2006, she was a major girl and also admitting that she gave false evidence in the case aforesaid implicating the appellants with the crime under consideration on being pressurised by her step father. Such assertion made by the victim girl in course of trial in Sessions Case No.58/06, in my opinion fortifies the claim of the appellants that they were falsely implicated with the case under consideration. 50. It is worth noting here that the consistent claim of accused persons was that on the fateful night victim was beaten up by her family members. Being so beaten, she left the house and took shelter in the house of A1. When mother of A1 took her back to her house next day in the morning, instead of being grateful for providing shelter to her daughter on the eventful night, mother of the victim lodged a false case against the appellants in order to satisfy the grudge which she had for lodging some cases against them by the family members of the A-1. 51. 51. To substantiate such claims, the appellants had adduced evidence of three witnesses, they being i) Sri Faiaz Ali, ii) Sri Abdul Rasid and iii) Sri Talmud Ali. I have found that those three DWs support the claim of the appellants. Such revelations, coupled with the decisions which I have arrived at herein before, make it clear that the prosecution cannot be said that it has proved the charge against the appellants beyond all reasonable doubts and as such, learned trial Court was not right in convicting the appellants of offence U/s 376(2) (G) of the IPC and sentencing them to punishment as aforesaid. 52. Since that was not done, in my opinion, the judgment under challenge is found unsustainable in law and as such, same needs to be interfered with. 53. Accordingly the judgment under challenge is set aside and quashed acquitting the appellants of offence under section 376(2) (G) of IPC. 54. It is, therefore, ordered that the appellants be released forthwith, if they are not required in connection with any other case(s). 55. In the result, the Appeals stand allowed and disposed of accordingly. 56. I deeply appreciate the assistance rendered by Mrs. R.S. Choudhury, learned Amicus Curiae in disposing the Crl. Appeal No. 187/2007. 57. Consequently the State is directed to pay Rs.7000/- to Mrs. R.S Choudhury, Amicus Curiae as being her remuneration for conducting the appeal aforesaid. 58. Return the LCRs.