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2015 DIGILAW 245 (GAU)

Ranjan Ali @ Ramjan Ali v. State of Assam

2015-03-02

B.K.SHARMA

body2015
Judgment 1. This appeal is directed against the judgment of conviction dated 09.10.2013 of the learned Sessions Judge, Barpeta in Sessions Case No.244/2011, convicting the accused/appellant u/s 457 IPC with the sentence of 04(four) years rigorous imprisonment with fine of Rs. 2000/- (Rupees two thousand) and in default, further imprisonment for 03(three) months and also convicting the accused/appellant u/s 354 IPC with the sentence of rigorous imprisonment for 01(one) year. Both the sentences are to run concurrently. The period already undergone during investigation, enquiry or trial, is to be set off u/s 428 of the Cr.P.C against the term of imprisonment imposed on him. 2. On the basis of the FIR lodged on 10.10.2011 by the prosecutrix with the Officer-in-Charge, Salbari P.S Case No.58/2011 was registered u/s 457/354/376/511 IPC. In the FIR, it was stated that on 08.10.2011 at about 11.00 P.M, taking advantage of absence of her husband, the accused entered into her house and tried to rape her. In order to protect her chastity and there being no other alternative, she was compelled to brought out a blade from under her bed with which she inflicted injuries on the accused and thereby managed to save herself. 3. Upon registration of the aforesaid police case, investigation was carried out and in due course on completion of the investigation, charge sheet was submitted against the accused/appellant u/s 457/354/376/511 IPC. During trial, the charges were read over and explained to the accused/appellant, to which he pleaded not guilty and claimed to be tried. 4. In order to bring home the charge against the accused/appellant, the prosecution examined 05(five) witnesses including the prosecutrix and the Investigating Officer of the case. Defence also examined the mother of the accused as DW-1. The accused person was also examined u/s 313 Cr.P.C., wherein he denied the allegations leveled against him and pleaded his innocence. The learned trial Court raising the following points for determination, having answered the same in the affirmative vide the impugned judgment of conviction, the accused/appellant has preferred this appeal. (I) Whether the accused on or about 8th day of October, 2011 at around 11.00 P.M at Pakalagi under the jurisdiction of Salbari P.S committed lurking house breaking by night by entering into the house belonging to the prosecutrix Rukia Khatun, and used as a human dwelling, after sun set and before sun rise, in order to commit the offence of rape? (II) Whether the accused on the same date, time and place used criminal force to the prosecutrix Rukia Khatun intending to outrage her modesty? (III) Whether the accused on the same date, time and place attempted to commit rape on the prosecutrix Rukia Khatun? 5. PW-1 in his deposition stated that when he was sleeping at his house at around 11.00 P.M on the day of occurrence, he heard hue and cry in the house of the prosecutrix, which was adjacent to his house. On that night, the prosecutrix was alone in her house along with her minor children. Having heard the hue and cry, he proceeded to the house of the prosecutrix and on being asked her, she told him that the accused entered into her house by breaking open the bamboo door and attempted to commit rape on her. She also told him that she could identify the accused in the light of the burning lamp in her bedroom. Thereafter, the PW-1 went to the house of the accused and asked his father about his whereabouts. The father told him that the accused was not present in the house and had gone out somewhere. In the meantime, the prosecutrix also informed the matter to some other elderly persons of the village and people also gathered in the place of occurrence. Thereafter, PW-1 along with the elderly people of the village decided to convene a Bichar (settlement). On the next day morning, he along with other village people came to the house of the accused, but the father of the accused told them that he had left for medical treatment in the hospital as he sustained injuries on his penis. Thereafter, they proceeded to the house of the prosecutrix and on being asked, she again reiterated that the accused tried to commit rape on her and to save herself from his clutches, she inflicted injuries on his penis with a blade. In the evening, the villagers gathered in the house of one Harej Ali to discuss about the incident. In the discussion, they decided to take the statement of the accused and when they wanted to take his statement, his father did not agree to the decision. Thereafter, the villagers suggested the prosecutrix to lodge an FIR as per the provisions of law. 6. PW-2 in his deposition stated the same thing like that of the PW-1. 7. In the discussion, they decided to take the statement of the accused and when they wanted to take his statement, his father did not agree to the decision. Thereafter, the villagers suggested the prosecutrix to lodge an FIR as per the provisions of law. 6. PW-2 in his deposition stated the same thing like that of the PW-1. 7. PW-3 is the prosecutrix, who vividly narrated about the incident as to how the accused entered into her house by breaking the door and tried to commit rape on her. 8. PW-4 in his evidence stated that on the day of incident, he was sleeping at his house, when one Omar and Harej called him. Upon such calling, he came out of his house and Omar and Harej narrated the incident to him. Thereafter, he proceeded to the house of the prosecutrix and on meeting her, she narrated the incident. After knowing about the incident from the prosecutrix, they went to the house of the accused an asked his father about his whereabouts and the father of the accused told them that he was not at home. Then, they left for their respective houses. But before the dawn on the same night, the father of the accused came to his house and informed him that the condition of the accused was serious as someone had cut his penis and the accused was lying seriously injured under a bamboo grove near his house. They all proceeded to the place where the accused was lying injured. The accused told them that someone had cut his penis with a blade. Significantly, he did not name the victim or Rustam Ali as was named by the DW-1, his mother. 9. PW-5 is the Investigating Officer, who in his deposition generally stated about the investigation that was carried out and submission of charge sheet etc. 10. DW-1 is the mother of the accused/appellant, who in her deposition stated that it was the victim, who had invited her son to her house and upon such visit, she along with one Rustam Ali with whom she had illicit relationship, inflicted injury on the accused/appellant. When she searched for her son, she heard some sound near a bamboo grove and by the flash of torch light, she could see her son lying under the same and his face was tied with a cloth. When she searched for her son, she heard some sound near a bamboo grove and by the flash of torch light, she could see her son lying under the same and his face was tied with a cloth. Thereafter, her son was brought to house and she found him bleeding profusely from his private part and there was blood stained on his wearing Lungi. She did not lodge any FIR with the police. 11. The learned trial Court on a cumulative consideration of the evidence on record as discussed hereinabove, found the accused/appellant guilty of the offence u/s 354/457 IPC. 12. Mr. B. Choudhury, learned counsel along with Mr. A.A. Ahmed, learned counsel for the accused/appellant submits that there is nothing to disbelieve the testimony of DW-1. He further submits that the testimony of DW-1 finds support from the evidence of PW-4. On the other hand, Mr. D. Das, learned Additional Public Prosecutor, Assam submits that nothing contradictory having been brought out in the cross examination from what the prosecution witnesses stated in their examination-in-chief, the prosecution could establish its case beyond all reasonable doubt. He submits that the testimony of DW-1 is not believable, more particularly, when no complaint was lodged relating to the alleged injuries sustained by her son i.e. the accused/appellant. According to him, DW-1 being the mother of the accused/appellant, just tried to save him from the clutches of law. 13. I have given my anxious consideration to the submissions made by the learned counsels for the parties and have also considered the entire materials on record. 14. As discussed above, all the PWs are unequivocal in their depositions about the commission of the offence by the accused/appellant. PW-3 in her deposition categorically stated as to how the accused/appellant entered into her house by cutting the rope of the door and to save her chastity, she had to take the recourse of inflicting injury on the private part of the accused/appellant. Immediately after the incident, she raised hue and cry and when the people gathered there, she narrated the incident to them. PW-1, PW-2 and PW-4 duly corroborated her testimony. Although they were cross examined, but nothing contradictory could be brought out. DW-1 although tried to give a different version of the incident, but when the same is tested in the touch stone of the evidence of the PWs, finds no support of the defence case. PW-1, PW-2 and PW-4 duly corroborated her testimony. Although they were cross examined, but nothing contradictory could be brought out. DW-1 although tried to give a different version of the incident, but when the same is tested in the touch stone of the evidence of the PWs, finds no support of the defence case. Neither she nor her son i.e. the accused/appellant had lodged any complaint. In the normal circumstances, had the story narrated by the DW-1 been true, a complaint would have been lodged. 15. In view of the above, I do not find any infirmity in the impugned judgment of conviction. However, as regards the sentence that has been imposed which is rigorous imprisonment for 04(four) years for the offence u/s 457 IPC and 01(one) year for the offence u/s 354 IPC, in the given facts and circumstances coupled with the fact that the accused/appellant is already in judicial custody since the date of the impugned judgment dated 09.10.2013 and during trial also he was in judicial custody for about 03(three) months, I am of the considered opinion that the ends of justice would be met if the sentence for rigorous imprisonment for 04(four) years in respect of the offence u/s 457 IPC is reduced to 02(two) years, while maintaining the fine and also the sentence imposed u/s 354 IPC. Accordingly, the sentence of rigorous imprisonment for 04(four) years u/s 457 IPC imposed on the accused/appellant stands reduced to 02(two) years, however, without any interference with the fine imposed on the accused/appellant. 16. With the above modification of the sentence, the appeal stands disposed of. The modified sentence for the offence u/s 457 IPC and the sentence retained for the offence u/s 354 IPC shall run concurrently and the period already undergone by the accused/appellant shall be set off as per the provisions of Section 428 of the Cr.P.C. 17. Registry shall send down the LCR along with a copy of this judgment and order to the learned Court below.