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Gauhati High Court · body

2015 DIGILAW 1549 (GAU)

Md. Safiqur Rahman v. State of Assam

2015-12-22

RUMI KUMARI PHUKAN

body2015
JUDGMENT : Heard Mr. B. Kaushik, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam appearing for the respondent. 2. The present appeal has been preferred against the Judgment and Order dated 19.10.2012 passed by the learned Sessions Judge, Nagaon, in Sessions Case No. 153/2009, convicting and sentencing the appellant to undergo R.I. for 5 years and also to pay a fine of Rs. 1,000/-, in default, 3 months R.I. 3. The facts of the case is that on 24.04.2009 at night about 10:30 p.m., the accused taking advantage of the absence of the informant ‘X’ (name withheld) entered into the house of the informant and showing threat to her life, he took her to the backside of her house and committed rape upon her forcefully. Though the matter was informed to the family of the accused person but they did nothing, and ultimately, the informant had lodged a petition before the learned Chief Judicial Magistrate, Nagaon which was forwarded to the O.C. of Uluoni Police Station for investigation. Accordingly, a case was registered under Section 376/341/506/457 I.P.C. against the accused person vide Uluoni P.S. Case No. 22/2009. 4. The statement of the victim women was recorded under Section 164 Cr.P.C. and after due investigation, the Investigating Officer submitted charge-sheet against the accused person under Section 341/457/376/506 I.P.C. 5. The offence under Section 376 I.P.C. being exclusively triable by the Court of Sessions, the case was committed to the Court of Session. The learned Sessions Judge after hearing the learned counsel for both the parties framed the charge under Sections 457/376 I.P.C. against the accused person to which he pleaded not guilty. 6. In support of the case, prosecution examined as many as 9 witnesses and defence examined none. Plea of defence is total denial. At the conclusion of the trial, the learned Trial Court held the accused guilty under Section 457/376 I.P.C. and sentenced him under said Sections of law. Being dissatisfied with the aforesaid order of conviction, present appeal has been preferred by the appellant. 7. I have considered the submissions of the learned counsel for both the parties. The thrust of the argument of the appellant is that, the whole prosecution case is doubtful because of the conduct of the prosecutrix who made no hue and cry at the time of occurrence. 7. I have considered the submissions of the learned counsel for both the parties. The thrust of the argument of the appellant is that, the whole prosecution case is doubtful because of the conduct of the prosecutrix who made no hue and cry at the time of occurrence. The minor daughter of the victim women has also not stated anything about the occurrence. Pointing towards the facts and circumstances of the case, it has been argued that the evidence of the prosecutrix, is fully clouded by the shadow of doubt as the facts and circumstances of the case do not corroborate her testimony. As because there is nothing to show that the door of the house of the informant was broken, then how the accused appellant entered into the house is a crucial question and there is no answer to the same. The further case is fatal on the point of delay as nothing has been explained about the point of delay. On the other hand, the learned counsel for the respondent has urged the Court to maintain the conviction in view of the testimony of the victim herself as there is no any enmity between the parties for false implication and an offence of like nature, the conviction can be passed only on the basis of evidence of prosecutrix. 8. Let us appreciate the evidence of proxecutix/the complainant herein who appearing as PW – 1 (name withheld) has stated that on 24.04.2009, while her husband was not at home and she was sleeping alongwith her 8 years old daughter, then at about 10:30 p.m., the accused entered into their house by breaking the door of their house and forcefully took her away towards the bamboo plantation in the backside of their house. Thereafter, he laid her on the ground and committed rape upon her. On the next day, her husband came and she informed the matter to him and very next day she went to the house of accused to inform the incident but they rebuked her and accused run away. On 3rd day she filed the F.I.R. before the Police and on the next very day of filing F.I.R., when she was proceeding to the Police Station parents of the appellant met her and they wanted to settle the matter but it was failed. On 3rd day she filed the F.I.R. before the Police and on the next very day of filing F.I.R., when she was proceeding to the Police Station parents of the appellant met her and they wanted to settle the matter but it was failed. Thereafter, she filed a Court case and also gave her statement in the Court vide Exhibit – 1 is the complaint which was registered as F.I.R. and vide Exhibit – 2 is her statement under Section 164 Cr.P.C. 9. In her cross-examination, she has deposed that the house of the accused is about half-a-furlong away from their house and he used to visit their house on earlier occasion, during the presence of her husband. Further, it is stated that after the incident, she informed the matter to neighbour, Hormuj Ali and his wife. It is also stated that she made no hue and cry even if she cry loudly, neighbour person can hear her voice. It has also be categorically stated that complaint was written by a lawyer and it was read over to her. Prior to 2/3 months of the incident, the accused came to their house and took her photograph and her daughter in his mobile but accused never informed her that there was a CD of the photograph. The accused never threatened her that he would show the photograph to the other. However, she denied to be a consenting party to the occurrence having love affair with the accused. 10. According to the prosecutrix, on the day of occurrence, her husband was not present and supporting the said fact, her husband, Pabitra Keot as PW - 2 has stated that on the day of occurrence he had gone to Silchar on duty and after about four days, when he came back, his wife informed him that accused has committed rape upon her and before his arrival his wife lodged the case before police. His wife reported him that occurrence took place under bamboo plantation in the backside of their house and their neighbour, Rohima P.W. 4 also informed him about the same. On the other hand, their minor child, Maina Keot/PW – 3, who is 9 years on the day of deposition (7 years on the day of occurrence) unable to answer the questions put to her so no statement could be recorded. 11. On the other hand, their minor child, Maina Keot/PW – 3, who is 9 years on the day of deposition (7 years on the day of occurrence) unable to answer the questions put to her so no statement could be recorded. 11. According to the prosecutrix/PW – 1, she reported the incident immediately after the occurrence to the neighbour, Hormuj Ali who resided with family near their house. The said Hormuj Ali died in the meantime and his wife Rohima Khatun/PW - 4 and her two sons Habibur Rahman/PW – 6 and Ajibur Rahman /PW – 7, all of them have stated that on the day of occurrence at about 11:00 p.m. P.W. 1 came to their house and she knocked at the door. As soon as they opened the door, them found the PW – 1 was standing in front of the door and her cloth were torn in several places and upon asking, she replied that accused has committed rape upon her. As it was late night, they advised her to go to the house. Though the PW – 4 has used some word ‘misbehave’, which was committed upon her by the accused but other two witnesses, i.e., PW – 6 and PW – 7 has stated that the PW – 1 informed about commission of rape by accused. Their versions being similar can be treated on similar footing. These three witnesses have denied to have any sort of enmity with the accused. No any contradiction, omission has been proved of any of these witness and they have denied to give false evidence, rather PW – 7 has made it clear that the accused is their cousin brother. In her statement, PW – 5, Farida Begum denied to any knowledge about the occurrence. 12. According to PW – 1, she was dragged away by the accused from her house towards the bamboo plantation in the paddy filed and thereafter she was forcefully laid down on the ground and the offence was committed. In course of investigation, when the PW - 1 was examined by the Medical Officer, Dr. Chinta Ram Hazarika/PW – 8 on 29.04.2009 at Civil Hospital, Nagaon, then he found injury of two numbers of abrasions 3/4th cm x 2 cm with scab foundation on the posterior forearm. In course of investigation, when the PW - 1 was examined by the Medical Officer, Dr. Chinta Ram Hazarika/PW – 8 on 29.04.2009 at Civil Hospital, Nagaon, then he found injury of two numbers of abrasions 3/4th cm x 2 cm with scab foundation on the posterior forearm. However, there was no sign of recent sexual intercourse at the time of examination, nor there is any injury on her private part. He has opined that her age was above 20 years and the injury so found was simple and three days old and such injury may happen due to collusion in blunt object or due to resistance. Thus, the evidence of Medical Officer has corroborated the version of the PW – 1 which is supportive of the fact that as alleged by the PW – 1 that while forcefully dragging her towards the field of bamboo plantation, she sustained injury on her person. 13. The evidence of IO, Harendra Nath Bora/PW – 9 as usual stated about receipt of the complaint from the learned Chief Judicial Magistrate on 28.04.2009, and accordingly, case was registered. He prepared a sketch map of place of occurrence and recorded the statement of victim under Section 164 Cr.P.C. in the Court and sent the women for medical examination. After completion of all the investigation, he submitted charge-sheet against the accused person. 14. Defence however could not prove any sort of contradiction and omission of any witness or any material aspects. 15. It is to be noted that in the instant case the defence has not taken any specific plea except denial and according to him, the false case has been filed against him by prosecution. To appreciate the piece of argument of the learned defence counsel, I have noticed the facts and circumstances and evidence on record which clearly reveals that the PW – 1 used to remain alone in her house alongwith minor child, who was aged about 7/8 years and her husband used to work outside, who is a driver by profession and taking advantage of absence of her husband, the accused used to go to the house of the PW – 1 and took photograph. The prosecutrix did not object against such affair, because accused is their neighbour and he also used to come their house in the presence of her husband. The prosecutrix did not object against such affair, because accused is their neighbour and he also used to come their house in the presence of her husband. It appears that though there is some deviation of facts as divulged in the complaint petition and in course of evidence in the trial, but the same is not so vital to discard her case as her main allegation as regards the incident which remains same. Though some earlier conduct of the accused has been referred in the complaint petition but not mentioned in the course of trial is not so significant. It is pertinent to note that the statement of victim women/PW – 1 remain consistent on the allegation of rape by the accused throughout the course of investigation and in the trial, (her statement made before the IO under Section 161 Cr.P.C. and before the Court under Section 164 Cr.P.C.) and her testimony in the course of trial remain consistent without any exaggeration and omission, etc, nor the defence could exploited her evidence in her cross-examination. Her evidence does not suffer from any vice so as to raise doubt upon the authenticity of her testimony. 16. As admitted by all the witnesses that husband of the PW – 1 was not present in their house on the day of occurrence and she could not lodge the FIR immediately. It is also mentioned in the complaint petition that as there was holidays after the occurrence, the case could not be filed immediately. On appreciation of the calendar for the month of April, 2009, the submission of the PW – 1 found to be true. The occurrence took place on 24.04.2009 at about 10:30 p.m. and 25.04.2009 and 26.04.2009 were holidays (4th Saturday and Sunday) and on 27.04.2009, PW – 1 lodged the complaint before the Court and the same was forwarded to the police station and the case was registered accordingly on 28.04.2009. The PW – 1 is a rustic woman, in view of which her perception that the complaint which was actually filed before the learned Chief Judicial Magistrate, Nagaon, was the ejahar as the police subsequently, registered the case. So the same cannot be raised as to a ground to discard her case. 17. The PW – 1 is a rustic woman, in view of which her perception that the complaint which was actually filed before the learned Chief Judicial Magistrate, Nagaon, was the ejahar as the police subsequently, registered the case. So the same cannot be raised as to a ground to discard her case. 17. In view of the facts and circumstances and the status of the prosecutrix, who remain alone, in my opinion, delay in filing the complaint has been duly explained by prosecution and there is nothing to doubt about the matter. 18. As regards the submission of the learned counsel for the appellant that the conduct of the prosecutrix is doubtful as she made no hue and cry and her minor daughter who was sleeping with her has not supported her case, it is to be noted that the instant incident took place at about 10:30 to 11:00 p.m. while the victim women was sleeping with her minor child and there was no other family members and her husband was away from the house. Suddenly, the accused entered into her house and drug her away by showing threat to her life due to which she was unable to make hue and cry. On the other hand, the minor daughter of the victim women, aged about 7/8 years at that time, was on deep sleep. In view of the background of the case, nothing found to be doubtful to nullify the statement of the victim woman. The fact as to how accused entered into the house of victim woman bears least importance as the accused person who used to come to the house of the victim woman, might know as to how the things to be done and it is not very difficult to open the door of a house with little effort, which is not a RCC building. The defence on the other hand, put no relevant question to the victim woman on the subject except mere suggestions which is not enough to demolish the testimony of the victim woman. On appreciation of the matter in hand, I found that the victim is a married woman having a child and the accused appellant used to come to their house who has acquaintance with her husband and her husband has no enimity with the accused person. On appreciation of the matter in hand, I found that the victim is a married woman having a child and the accused appellant used to come to their house who has acquaintance with her husband and her husband has no enimity with the accused person. She was not aware about the motive of the accused, who tried to indulge with her family by getting close to her child by taking family photograph. Accused was very much aware about the fact that the husband of the victim used to remain absent his house and went out on duty for several days and by taking advantage of the absence of her husband, the accused committed the rape upon her on the day of incident as alleged. I also found that she has explained as to why she could not made hue and cry at the time of incident and her subsequent conduct reveals that she immediately went to the neighbouring house, i.e., PW – 4, 6 and 7 (members of same family) and reported the incident. Now a crucial question will arose if the victim was a consenting party to the occurrence as has been challenged by the defence side, then why she would report the matter to her neighbour, and made complaint to the family of the accused person and thereafter, lodged the case? Answer of the question will be that; she was never a consenting party to the occurrence as her conduct itself reflect thus so. Moreover, by giving suggestion that the victim was a consenting party, defence has admitted occurrence. 19. Admittedly, the time of occurrence is at late hours of night and nobody witnessed the occurrence and then if the victim was a consenting to the affairs so alleged, then she could have maintain silence by enjoying the same, without complaining the same to her neighbour by exposing herself. It is a difficult job in our society to expose such incident to public as it will certainly lower down the esteem of the victim in the eye of society. But the victim woman at the risk of her prestige, even, reported the matter to her neighbour and then to her husband. A consenting party would have never done so. 20. But the victim woman at the risk of her prestige, even, reported the matter to her neighbour and then to her husband. A consenting party would have never done so. 20. It has been emerged from the evidence of PWs – 4, 6 and 7 that while reporting the matter, they found the victim woman in a bad condition and her cloth were torn in several places and the Medical Officer/PW – 8 has also found mark of injury on her forearm and elbow. All these aspects are supportive of fact that the force was used to the victim woman while drugging her towards the backside bamboo plantation, and thereafter, forcefully made her lie on the ground. The evidences of these three neighbouring witnesses have clearly supported the case of the victim woman and there is nothing to disbelieve their evidences. They have no any enimity with the accused person for his false implication. On the other hand, they have admitted that the accused person is related to them being a cousin brother. No any contradiction, omission, etc., of these witnesses has been proved by the defence side so as to discredit their evidence. 21. As regards the findings of Medical Officer about non-having of sign of recent sexual intercourse and non-having of injury on her private part is of no consequence in view of the fact that victim woman was examined after about a week of the incident, that too, the victim was a married woman. However, the evidence of Medical Officer has corroborated the factum of injury so sustained by the victim woman. 22. The Hon’ble Apex Court in the case of Vijay @ Chinee Vs. State of Madhya Pradesh, reported in 2010 (7) SCALE 502, it has held that an woman who is a victim of assault who is not accomplish to the crime but of a victim of another accused, and therefore, her evidence need not be tested as said amount of suspicion as matter of accomplish. Same is the observation in the case of Maharashtra Vs. Chandraprakash Kewalchand Jain, reported in AIR 1990 SC 658 . 23. In the case of State of UP Vs. Same is the observation in the case of Maharashtra Vs. Chandraprakash Kewalchand Jain, reported in AIR 1990 SC 658 . 23. In the case of State of UP Vs. Pappu @ Yunus and Anr, reported in AIR 2005 SC 1248 , the Hon’ble Apex Court held that even in a case where it is shown that the girl, is of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the presecutrix may not be a factor that leads the Court to absolve the accused. The Hon’ble Apex Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the Court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. 24. In the case of State of Punjab Vs. Gurmit Singh and Ors., reported in AIR 1996 SC 1393 , the Hon’ble Apex Court held that in cases involving sexual harassment, molestation etc. the Court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The Court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. 25. Again in the case of State of Orissa Vs. Thakara Besra and Anr, reported in AIR 2002 SC 1963 , the Hon’ble Apex Court held that rape is not mere a physical assault, rather it often distracts the whole personality of the victim. 25. Again in the case of State of Orissa Vs. Thakara Besra and Anr, reported in AIR 2002 SC 1963 , the Hon’ble Apex Court held that rape is not mere a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. Further, in the case of In the case of State of Himachal Pradesh Vs. Raghubir Singh, reported in (1993) 2 SCC 622 , the Hon’ble Apex Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which mitigate her veracity. Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix. 26. In view of the proposition of law if we scrutinize the evidence of the victim women, it would be found that it suffers from no any sort of vice, rather she has reported the matter immediately to her nearest neighbour and her evidence as alleged about other facts and circumstances has been corroborated by the matters of record and there is nothing to discard her evidence. It is to be borne in mind, in the given circumstances, there can be no eye witness to the occurrence and nothing emerges which may indicate falsity of evidence of the victim woman so as to sake the credibility of witnesses and her evidence inspire confidence and is found trustworthy. 27. The Hon’ble Supreme Court in the case of Wahid Khan Vs. State of Madhya Pradesh, reported in AIR 2010 SC 1 , observed in paragraphs 21 and 22 as follows: “21. 27. The Hon’ble Supreme Court in the case of Wahid Khan Vs. State of Madhya Pradesh, reported in AIR 2010 SC 1 , observed in paragraphs 21 and 22 as follows: “21. It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are. 22. Thus, in a case of rape, testimony of a prosecutrix stands at par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible.” 28. In the given case, as evidence of the victim woman is fully corroborated from all aspects as has been discussed above and the learned Trial Court has fully appreciated all the evidences on record in proper perspective of law and facts, I find nothing to interfere of the order passed by the learned Court below and in the result, impugned judgment and order is hereby upheld. 29. Accordingly, the criminal appeal is dismissed. Send back the L.C.R.