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2016 DIGILAW 318 (GAU)

Abdul Maleque Sikder v. State of Assam

2016-04-25

A.K.GOSWAMI

body2016
ORDER : 1. Heard Mr. P.K. Mazumdar, learned counsel for the appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 27.07.2015, passed by the learned Sessions Judge, Barpeta, in Sessions Case No. 226/2014, convicting the appellant under Section 323 IPC. The appellant was sentenced to suffer simple imprisonment for six months with fine of Rs. 1,000/- in default, simple imprisonment for one month. 3. By an order passed on 26.08.2015, in I.A. No. 1352/2015, the appellant was allowed to remain on previous bail till the next date and thereafter, such order, allowing the appellant to remain on previous bail, is extended from time to time. 4. One Nurjahan Begum had lodged an Ejahar on 16.07.2014 before the Officer-in-Charge, Kalgachia Police Station, stating that the appellant had taken up the responsibility of her daughter (hereinafter referred to as “X”) and her daughter, “X” was, accordingly, residing in the house of the appellant since last 1½ year. The appellant, according to the Ejahar, works as a Forester and stays in Guwahati, but whenever he comes to the village home, which is about 2/3 times a month, he used to rape her daughter, which is known to the wife of the appellant, Muslima Khatun. When protested by the wife, she also gets assaulted. On 16.07.2014, at about 7-30 P.M., when her daughter refused to have sexual intercourse with the appellant, he assaulted her with his torch in his hand and caused grievous injury and felled her to the ground. It is stated in the Ejahar that on hearing the cries of her daughter, when the informant went there, she was also assaulted by the appellant. 5. Based on the aforesaid Ejahar, Kolgachia Police Station Case No. 728/2014, under Section 376/325 IPC was registered. After completion of investigation, Charge-sheet under Section 376(2)(i)/323 IPC read with Section 4 of Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’), was submitted against the appellant. Learned Magistrate, in G.R. Case No. 4752/2014, committed the case to the Court of learned Sessions Judge, Barpeta, whereupon Sessions Case No. 226/2014 was registered. After completion of investigation, Charge-sheet under Section 376(2)(i)/323 IPC read with Section 4 of Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’), was submitted against the appellant. Learned Magistrate, in G.R. Case No. 4752/2014, committed the case to the Court of learned Sessions Judge, Barpeta, whereupon Sessions Case No. 226/2014 was registered. After hearing the parties, charges under Section 376(2)(i)/323 IPC read with Section 4 of the POCSO Act were framed against the appellant and, on the charges being read over and explained to him, he pleaded not guilty and claimed to be tried. 6. During trial, prosecution examined 7 witnesses including two Medical Officers and the Investigating Officer. The defence adduced no evidence and its plea was that of denial. 7. Significantly, the informant as well as the alleged victim were declared hostile. It appears from the evidence of PW3, the informant, before she was declared hostile, that “X” (PW4) was her niece and to that extent the same was at variance with the statement made in the Ejahar that “X” (PW4) was her daughter. 8. From the evidence of PW4, before she was declared hostile, it appears that the appellant had admitted her in a school in Class-VIII. The evidence of PW5 also discloses that “X” is her niece and the informant (PW3) is her elder sister. PW5 is the wife of the appellant and she was also declared hostile. 9. PW6 is the Judicial Magistrate who had recorded the statement of PW4 under Section 164 CrPC. 10. PW7 is the Investigating Officer. PW1 and PW2 are the two Medical Officers. 11. The learned trial Court, on consideration of the evidence on record, held that no case was made out against the appellant under Section 376 (2)(i) IPC read with Section 4 of the POCSO Act and, accordingly, had acquitted him of the aforesaid offences. However, on the basis of the evidence of PW5 and the evidence of PW1, learned trial Court held that the charge framed against the appellant under Section 323 IPC had been proved. 12. PW1 had examined Nurjahan Begum (PW3) as well as “X” (PW4), on 06.07.2014. On such examination of PW3, he found soft tissue tenderness over neck and PW1 stated that the injury was caused by a blunt object. On examination of PW4, a simple injury of bruise over the nasal bridge was found. 12. PW1 had examined Nurjahan Begum (PW3) as well as “X” (PW4), on 06.07.2014. On such examination of PW3, he found soft tissue tenderness over neck and PW1 stated that the injury was caused by a blunt object. On examination of PW4, a simple injury of bruise over the nasal bridge was found. In his cross-examination, he had stated that such injury could be caused by falling on the ground or by assault. 13. The incident, as disclosed in the Ejahar is dated 16.07.2014 and, therefore, the evidence given by PW1 with regard to the medical examination conducted on 06.07.2014 cannot assist the prosecution. Under what circumstances PW3 and PW4 had gone to PW1 is also not spelt out from the evidence on record. Therefore, the evidence of PW1 cannot be brought into play for the purpose of conviction of the appellant. 14. So far as the evidence of PW2 is concerned, he found no injury marks on the body of PW4 as well as on her private parts when he had examined PW4 on 18.07.2014. The evidence of PW2 goes to show that he did not find any injury marks and, therefore, it will be hazardous to convict the appellant solely on the basis of the evidence of PW5, who was also declared hostile. 15. Considering the evidence on record, I am of the considered opinion that in the facts and circumstances of the case, the appellant is entitled to be acquitted. 16. Accordingly, the appeal is allowed. The impugned judgment is set aside. The appellant is set at liberty. The bail bond of the appellant stands discharged. 17. Registry will send back the LCR.