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2017 DIGILAW 1405 (GAU)

Monsur Ali v. State of Assam

2017-11-02

HITESH KUMAR SARMA

body2017
JUDGMENT : 1. This criminal revision petition under section 401/397 of the Cr.PC has been filed for setting aside the impugned judgment, dated 23.5.2012, passed by the learned Sessions Judge, Morigaon in Criminal Appeal No. 37/2011 upholding the judgment and order dated 14.12.2011 passed by the learned Assistant Sessions Judge, Morigaon in Sessions Case No. 63/2010, convicting and sentencing the accused petitioner to undergo rigorous imprisonment for 7 years, under section 376 of the IPC and to pay a fine of Rs. 2,000, in default of payment of fine to undergo simple imprisonment for 3 months and also sentencing him to undergo rigorous imprisonment for 4 years and to pay a fine of Rs. 2,000 and in default simple imprisonment for 2 months under section 366 of the IPC. Both the sentences are to run concurrently. 2. Heard Mr. D.C.C. Phukan, learned counsel for the revision petitioner. Also heard Mr. B. Sarma, learned Additional Public Prosecutor, appearing for the State of Assam/respondent No. 1. 3. I have perused the record of the learned trial court including the evidence and judgments of the learned trial court as well as the Appellate Court of the learned Sessions Judge. 4. The prosecution case, as unfolded during the trial, is that on 20.1.2010, in the absence of the informant-Md. Irfan Ali at his house, the accused-petitioner Md. Monsur Ali went to his house, riding a scooter, and kidnapped his 14 years old niece (victim) and induced her to marry him. There is also accusation that the victim was taken to the Kazi office at Morigaon for performing marriage and her signature was obtained on some papers under threat of causing her hurt by dagger and committed rape on her against her will and consent, for several days. 5. On receipt of the FIR on such facts, the Mikirbheta Police Station Case No. 6/2010, was registered under section 366A of the IPC, investigated into it, collected evidence, arrested the accused, and finally, on completion of the investigation, the charge sheet was laid against the accused Md. Monsur Ali. 6. The learned trial court, after exhausting all the required legal formalities and after hearing both sides, framed a formal charge against the accused petitioner under section 366/376/417 of the IPC to which he pleaded innocence, and, therefore, the trial commenced. 7. Monsur Ali. 6. The learned trial court, after exhausting all the required legal formalities and after hearing both sides, framed a formal charge against the accused petitioner under section 366/376/417 of the IPC to which he pleaded innocence, and, therefore, the trial commenced. 7. The prosecution, in the instant case, examined as many as 14 witnesses, the most relevant evidence amongst the witnesses is the evidence of the victim, examined as PW 1. 8. The PW 1, in her evidence is heard saying that at the relevant time of occurrence, she was staying at the house of her maternal uncle at Morigaon. The accused-petitioner went to the house of the victim's maternal uncle and requested the victim to accompany him to his father-in-law's house. But instead the accused-petitioner took the victim to the house of an unknown person and kept her there for 7 days. During her such stay there, she was forced to have sexual intercourse with him without her consent. Thereafter, she was taken to the office of the Kazi with a view to marry her, which she objected to but her signature was taken on the papers under threat by the accused-petitioner. Thereafter, the accused-petitioner took her to the house of one Tota Mia and there the victim informed the nearby people that she was abducted by the accused-petitioner and also gave the phone number of her maternal uncle to a person. Thereafter she was recovered by her maternal uncle with the help of Police. Before the offence took place, admitting the victim got married twice. On the date of occurrence she was 19 years of age as stated. 9. Such evidence of PW 1 received corroboration from the PW 2 to the effect that at the relevant time, the victim was in his house and the accused-petitioner was about to take the victim to his father-in-law's house but instead took her to the house of one Tota Mia, where he had sexual intercourse with her after execution of Kabilnama under threat. 10. Similarly, the evidence of PW 3, who also deposed supporting the evidence of PW 2 that the victim was in their house and the accused-petitioner had taken her with a view to take her to his father-in-law's house and since then the victim did not return. 11. The PW 4 also deposed that the victim was taken by the accused-petitioner. Similarly, the evidence of PW 3, who also deposed supporting the evidence of PW 2 that the victim was in their house and the accused-petitioner had taken her with a view to take her to his father-in-law's house and since then the victim did not return. 11. The PW 4 also deposed that the victim was taken by the accused-petitioner. PW 5 also deposed that the victim was kidnapped by Md. Monsur Ali and after 10 days, she was recovered with the help of Police. PW 6, who is an eye witness to the occurrence, is heard saying that at about 11 a.m. on the date of occurrence she saw the accused-petitioner taking away the victim with him in a scooter and she immediately rushed to the house of the PW 2 and reported the matter to him. She has also lent support to the evidence of PW 1 that the victim was taken in a scooter by the accused. PW 7 also supported the evidence of all the above witnesses while stating that the accused-petitioner had taken out the victim from the house of the PW 3 Margina Begum. PWs 8 and 9 are the witnesses who were reported about the occurrence. Since they have not disclosed the source of their knowledge about the occurrence and to substantiate their such evidence, the evidence of PWs 8 and 9 are not taken into account being evidence of hearsay in nature. PW 10 deposed that the accused has brought a women to the house of Tota Mia which he witnessed. The victim was recovered from the house of Tota Mia as stated by him in his evidence. PW 11, who is the VDP Secretary said that he had seen the accused taking away the victim in a scooter. PW 12 is the most important witness in the case in the sense that while he meet the victim in the house of Tota Mia, the victim reported that she was forcefully brought and kept in the house. PW 13 is the Doctor, who examined the victim. It is opined by the Medical Officer that there was no evidence of recent intercourse detected in the person of the victim. 12. Mr. B. Sarma, learned Additional Public Prosecutor, Assam has submitted that the fact that the victim was taken away by the accused-petitioner-Md. PW 13 is the Doctor, who examined the victim. It is opined by the Medical Officer that there was no evidence of recent intercourse detected in the person of the victim. 12. Mr. B. Sarma, learned Additional Public Prosecutor, Assam has submitted that the fact that the victim was taken away by the accused-petitioner-Md. Monsur Ali is corroborated by each and every witnesses beyond doubt and that the statement in evidence made by the victim that the accused had forceful sexual intercourse with her without her consent could not be demolished by the defence. He has vehemently submitted that the prosecution has failed to prove the case as there are a lot of contradictions in the evidence of the prosecution witnesses. He also submits that the victim was earlier married twice, and in fact, she married the present accused-petitioner in the Kazi office but the repeated evidence of the prosecution witnesses makes it appear that she complained that her signature was obtained under threat on some papers in the Kazi office and her such conduct makes it appear that she did not consent to the alleged marriage even if it had happened. That apart, she is heard saying that she did not consent to the sexual intercourse committed by the accused-petitioner with her. 13. It has come out from the evidence of PW 12, particularly, that when he met the victim in the house of Tota Mia she reported that she was forcefully kept there by the accused-petitioner, which is suggestive of the fact that she was not a consenting party not only in staying with the accused-petitioner but to the act of rape committed on her person also. 14. That being so, the judgment passed by the learned trial court appear to have been based on evidence on record. On the other hand, the hon'ble Supreme Court, in the case of State of Himachal Pradesh v. Sanjay Kumar alias Sunny, (2017) 2 SCC 51 , in paragraph 31 has observed as follows: “31. After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondents, has any merit. After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondents, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons, which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance - see Bhupinder Sharma v. State of H.P. Notwithstanding this legal position, in the instance case, we even find enough corroborative material as well, which is discussed hereinabove.” 15. I have not found the prosecution witnesses, particularly the evidence of the victim inspiring confidence. Therefore, in the absence of any evidence to disbelieve the evidence laid by the victim there is no reason to interfere with the judgment of the learned trial court. 16. I have not found the prosecution witnesses, particularly the evidence of the victim inspiring confidence. Therefore, in the absence of any evidence to disbelieve the evidence laid by the victim there is no reason to interfere with the judgment of the learned trial court. 16. That apart, as regards the offence of kidnapping, all the witnesses has said in their evidence that the victim was taken in a scooter by the accused-petitioner and there is no evidence on record brought out in cross-examination to negate such evidence. Therefore, the conviction under section 366/376 of the IPC, as recorded by the learned trial court and affirmed by the learned Appellate Court of Sessions Judge is affirmed. 17. Accordingly, the revision petition is dismissed. 18. The petitioner will surrender before the learned trial court to serve out the sentence. The period of detention of the accused-petitioner during investigation, trial and after delivery of the judgment by the learned trial court be set off against the substantive substance. 19. Send down the LCR along with a copy of this judgment.