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2015 DIGILAW 462 (TRI)

Md. Ahad Ali v. State of Tripura

2015-07-03

S.C.DAS

body2015
JUDGMENT 1. This Criminal Appeal is directed against the judgment and order of conviction and sentence, dated 06.01.2011, passed by learned Sessions Judge, North Tripura, Kailashahar, in Sessions Trial No. 38(NT/K) of 2010 whereunder the learned Sessions Judge found the accused-appellant guilty of committing offence punishable under Sections 376(1) and 343 of IPC and sentenced him to suffer R.I. for 6(six) months under Section 343 of IPC and further sentenced him to suffer R.I. for 7(seven) years and to pay a fine of Rs.10,000/- in default to payment of fine to suffer S.I. for 6(six) months under Section 376(1) of IPC. 2. Heard learned Counsel Mr. S. Chakraborty for the appellant and learned Public Prosecutor Mr. A. Ghosh for the State-respondent. 3. Prosecution case is that, on 07.03.2009 the victim prosecutrix (name kept withheld) went to the house of her neighbour Attar Ali alias Aktar Ali at about 9:00 a.m. with a view to meet the wife of Attar alias Akhtar Ali but found that except Ahad Ali none was present in the house. When she found that none else was present she was about to leave the house and at that time, Ahad Ali forcefully took her inside the room and locked the room from outside. He had also pointed a sharp weapon to her neck and threatened her to cause injuries and thereafter raped her. He then detained her in his house and did not allow her to go out. For three days she was kept detained in the house and only she was allowed to go out to answer natures call and otherwise she was detained in the house. On 3rd day she came out of the house and was sitting in the back side of the house of Ahad Ali and at that time her mother took her to her house and she disclosed the matter to her mother and her husband and thereafter reported the incident to the village Pradhan and other village elders who assured a respectable settlement but since there was no settlement at the instance of village Pradhan and village elders, she lodged FIR in writing on 04.04.2009 before the O.C., Kailashahar P.S. 3.1 Accordingly O.C., Kailashahar P.S. registered Kailashahar P.S. Case No.74/09, under Sections 342 and 376 of IPC and after investigation, submitted charge-sheet against the accused for commission of offence punishable under Sections 343 and 376 of IPC. 3.2 Cognizance was taken on the basis of the police report and on commitment of the case to the court of Sessions, learned Sessions Judge framed charges against the accused for commission of offence punishable under Sections 343 and 376(1) of IPC to which the accused pleaded not guilty and claimed to be tried. 4. In course of trial, prosecution examined 10(ten) witnesses namely- PW 1- Smti. Radha Nama, PW 2- Shri Balaram Nama, PW 3- Smti Anju Nama, PW 4- Shri Subal Ram Nama, PW 5- Shri Pramesh Nama, PW 6- Smti Niyati Bala Nama, PW 7- Dr. Gopal Krishna Debnath, PW 8- Smti Sankari Roy, PW 9- Smti Rekha Nath and PW 10- Shri Haripada Debbarma. 4.1 Prosecution also proved the FIR, the seizure list, medical examination report of the victim prosecutrix, statement of the victim prosecutrix recorded under Section 164 of Cr.P.C. etc. in course of examination of witnesses. 4.2 Out of the witnesses, PW 1 is the victim prosecutrix and she is the informant of the case. She is the star witness of the prosecution. PW 2 is her husband and PW 6 is her mother. PW 3 is the sister-in-law (wife of husband’s brother) and PW 4 is the brother-in-law (brother of husband) of the victim prosecutrix. PW 5 is a neighbour of the victim prosecutrix. PW 7 is the Medical Officer who examined the victim prosecutrix medically on requisition of police during investigation of the case. PWs 8 and 9 are constables of police and PW 10 is the I.O. of the case. 5. Defence cross examined the prosecution witnesses. After closure of the prosecution evidence, accused was examined under Section 313 Cr.P.C. and in his turn, accused declined to adduce any defence evidence. Defence case so far ascertained is the denial of the prosecution case and it is further suggested on behalf of the accused that there was boundary dispute between the husband of the informant and the accused person and therefore, a false case was instituted against the accused. 6. Learned Sessions Judge found the accused-appellant guilty of the charges and accordingly convicted and sentenced him as stated hereinbefore. 7. Aggrieved, the convict-appellant filed the present appeal. 8. Learned counsel Mr. Chakraborty has submitted that the story put forward by the prosecution at the very outset would appear that it is a concocted story having no truth behind it. 6. Learned Sessions Judge found the accused-appellant guilty of the charges and accordingly convicted and sentenced him as stated hereinbefore. 7. Aggrieved, the convict-appellant filed the present appeal. 8. Learned counsel Mr. Chakraborty has submitted that the story put forward by the prosecution at the very outset would appear that it is a concocted story having no truth behind it. He has submitted that the evidence of the victim prosecutrix does not inspire any confidence to record a conviction. He has further submitted that there is no supporting evidence of the victim prosecutrix except her husband, mother and brother-in-law who are interested witnesses and even the village Pradhan or any other village elders have not been examined by the prosecution to justify the case of the prosecution that the victim prosecutrix was detained in the house of the accused for three days and was raped by the accused. The medical evidence also not supported the prosecution case and the delay in lodging the FIR has also not been properly explained. 9. Learned Public Prosecutor with all his fairness has submitted that if the victim prosecutrix is believed then there is a positive case of the prosecution. He has however, contended that the story narrated by the victim prosecutrix no doubt appears to be a little bit confusing and not normal human conduct but the trial Court has believed the story and has convicted the accused for the offences alleged. He has, however, submitted that the conviction since recorded by the trial Court may be upheld. 10. The submission made by learned Public Prosecutor is half hearted submission. The prosecution evidence has to be appreciated as a whole and there should not be any isolated scrutiny. In a case of rape, it is a settled law that if the evidence of victim prosecutrix inspires evidence, her sole evidence is enough to record a conviction. There is no requirement of corroboration as a matter of law. Only the victim’s evidence is to be carefully scrutinized keeping in mind the facts and surrounding circumstances of particular case and a case of rape may be decided accordingly. 11. In the FIR, the victim prosecutrix stated that on 07.03.2009 at about 9:00 a.m. she went to the house of the accused Ahad Ali for visiting purpose. On going there, she found none except the accused Ahad Ali. 11. In the FIR, the victim prosecutrix stated that on 07.03.2009 at about 9:00 a.m. she went to the house of the accused Ahad Ali for visiting purpose. On going there, she found none except the accused Ahad Ali. Then and there she tried to leave the house but the accused Ahad Ali forcefully took her inside the hut and locked the room from outside. She tried to raise alarm but the accused pointed a sharpened dagger at her throat and threatened to kill her and therefore, out of fear, she could not raise any alarm. The accused detained her for three days in his house and committed rape on her every day. On 10.03.2009 at about 4:00 a.m. the accused allowed her to go out when she fell ill. She was sitting in the back side of the hut of accused Ahad Ali. She informed the matter to her husband through the sister of Ahad Ali. Her husband brought the matter to the notice of the village headman namely Durlav Nama and he assured a village settlement but it was not settled and therefore, she lodged the FIR. In her deposition she stated that about 1 and half year ago at about 11:00 a.m. she went to the house of her neighbour Attar Ali for visiting purpose. Only Ahad Ali was present in the house and his mother was also absent. So she intended to come out but the accused Ahad Ali caught her, took her inside the room, closed the door, bolted it and raped her. She resisted but the accused threatened to kill her if she raised cry. The accused caused bleeding injury to her and confined her inside the room and kept her there for three days. The accused allowed her to go out in the night to attend natures call. Several times the accused raped her during that period. She could not raise cry due to such threat. After three days in the morning at about 4:00 a.m. accused threw her out of the room. She had to spend the time for sun rise behind the house of the accused. Then father of the accused saw her and informed her husband but her husband did not come to take her. Then her mother came and took her in her custody. One month after she met with her husband and her husband accepted her. She had to spend the time for sun rise behind the house of the accused. Then father of the accused saw her and informed her husband but her husband did not come to take her. Then her mother came and took her in her custody. One month after she met with her husband and her husband accepted her. She informed the fact to the village Pradhan and other villagers who assured to settle the dispute at first but thereafter they did not settle and expressed their inability and so she filed the FIR. She duly proved her signature in the FIR. She further stated that she was sent to the hospital for medical examination and examination was done. She was also sent to the Magistrate and she narrated the fact to the Magistrate and the Magistrate recorded it and she put her signatures in her statement. In cross examination she stated that there were three huts in the house of Attar Ali and Attar Ali had 5 sons and 3 daughters in total 10 members in the family and they all were residing in the same house including the accused. She also stated that she did not raise cry when accused went out to take his meal or for other purpose. There were two cots in the western viti hut, 3/4 cots in the northern viti hut and another hut was a cowshed. She also stated in the cross examination that she did not complain to Pradhan Sushendra Nama about the rape on her by one Manu Nama. She denied the suggestion that at the instance of her husband she lodged a false complaint. 12. PW 2, her husband and PW 6 her mother in their deposition stated that the victim prosecutrix told them that the accused detained her in his house and raped her there. PW 3, sister-in-law of the victim prosecutrix though narrated the story but did not state anything incriminating that the accused committed rape on the victim prosecutrix. PW 5 is a neighbour and he stated that the victim prosecutrix stated about the occurrence to him. PW 7 Dr. Gopal Krishna Debnath examined the victim prosecutrix on 04.04.2009 and according to him the finding about rape was inconclusive. 13. It is an admitted position that the victim prosecutrix and the accused person are neighbours of each other. PW 5 is a neighbour and he stated that the victim prosecutrix stated about the occurrence to him. PW 7 Dr. Gopal Krishna Debnath examined the victim prosecutrix on 04.04.2009 and according to him the finding about rape was inconclusive. 13. It is an admitted position that the victim prosecutrix and the accused person are neighbours of each other. According to the victim prosecutrix she voluntarily went to the house of the accused with a view to visit mother of the accused. Her husband went out for REGA work at that time. When she found mother of the accused was not present she was about to come out of the house but the accused detained her and raped her in the house. It is the definite case of the victim prosecutrix that she was kept detained for three days in the house of the accused and on those three days, the accused committed rape on her. She made an explanation that she could not raise cry because the accused threatened her. The story narrated by the victim prosecutrix does not inspire confidence at all that she was kept confined in the house for three days and none of the inmates of the house could see her and she could not speak to anybody that she was forcefully detained in the house of the accused. According to the victim prosecutrix her husband did not accept her initially but after about a month her husband accepted her. The other witnesses also stated that initially her husband was not ready to take her back but ultimately he took her back to his house. The village pradhan or other village elders have not been examined. Under such circumstance, except the victim prosecutrix and her some relatives i.e. husband, mother and brother-in-law, there is no other item of evidence to support her case. While the conduct of the victim prosecutrix and the story narrated by her is found to be quite unnatural and do not inspire confidence, I think it is a fit case where the accused should be given the benefit of doubt. Learned Sessions Judge placed implicit reliance on the testimony of the victim prosecutrix and arrived at a finding of guilt which in the given facts and circumstances of the case is not sustainable. Learned Sessions Judge placed implicit reliance on the testimony of the victim prosecutrix and arrived at a finding of guilt which in the given facts and circumstances of the case is not sustainable. No doubt in a case of rape a victim has to be treated at par as an injured witness. Her evidence should not be discarded outright but it is also a settled law that her evidence should not be always treated as a gospel truth to arrive at a conclusion of guilt of the accused. It is no doubt very rare that a woman with chastity in our society will normally come out to make an allegation of rape which looks down her in the society. But it is not extremely rare that false cases of rape are instituted out of grudge or other reasons. Here in this case defence suggested that there is boundary dispute between the father of the accused and the husband of the victim prosecutrix and therefore after a long time of alleged occurrence, a false FIR has been lodged. Except suggestion there is no other item of evidence to support the defence version. Mere suggestion which is not supported by any evidence is not enough to arrive at a conclusion but the victim’s evidence is of utmost importance to be considered. The family of the victim prosecutrix and the accused are close neighbours. The victim prosecutrix alleged to have confined in the house of the accused for three days. In a family of 10(ten) members it is not quite un-natural that the victim prosecutrix was hidden in the house of the accused without her consent. She stated that she went out to answer nature’s call and accused also went out of the room to take his meal etc. She could raise her voice if she was at all detained in the house of the accused. She further stated that she was put out on 3rd day at dawn and she was waiting in the back side of the house of the accused and father of the accused informed her husband but her husband did not come to take her and thereafter her mother took her to her custody. She further stated that she was put out on 3rd day at dawn and she was waiting in the back side of the house of the accused and father of the accused informed her husband but her husband did not come to take her and thereafter her mother took her to her custody. Her such statement makes an inference that she was not speaking the truth and something was wrong in her statement that she was kept detained in the house of the accused without her consent or against her will. The husband, brother-in-law and mother of the victim prosecutrix stated that they searched all around in the locality for the victim prosecutrix but she was not available anywhere. While the accused is a close neighbour, definitely she could raise alarm had she been forcefully confined there. Her such conduct creates serious doubt about the truthfulness of the prosecution case as a whole and the benefit should go to favour the accused. Learned Sessions Judge appears to have failed to consider all those circumstances and arrived at a finding of guilt of the accused which is not sustainable. In the given facts and circumstances of the case, while the evidence of victim prosecutrix does not inspire confidence, the prosecution case cannot stand and the accused is entitled to get benefit of doubt. 14. Accordingly, the appeal is allowed. 15. The judgment and order of conviction and sentence, dated 06.01.2011, passed by the learned Sessions Judge, North Tripura, Kailashahar, in Sessions Trial No. 38(NT/K) of 2010 is set aside. 16. The accused-appellant is set at liberty at once. 17. Send back the L.C. Records along with a copy of this judgment.