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2017 DIGILAW 53 (GAU)

Nazimul Hussan v. State of Assam

2017-01-10

RUMI KUMARI PHUKAN

body2017
JUDGMENT AND ORDER : Rumi Kumari Phukan, J. Heard Mr. H.R.A Choudhury, learned senior counsel for appellant. Also heard Mr. B. Sarma, learned additional public prosecutor. 2. This appeal is directed against the judgment and order dated 17.12.2013 passed by the learned Assistant Sessions Judge, Karimganj in sessions case 86/2013 whereby the appellant is convicted u/s 376(1) of the IPC and sentenced to rigorous imprisonment for 8 years with a fine of Rs 5,000/- and in default to rigorous imprisonment for 6 months. 3. The prosecution case arose from a complaint filed by one Moriom Bibi alleging inter alia that the accused/appellant taking advantage of her absence committed rape on her minor daughter and as a result of which her daughter gave birth to a baby girl who however expired after 28 days. On the basis of the said complaint a case was registered against accused and after due completion of investigation charge sheet was submitted against accused u/s 376 of the IPC. The case was committed to the Court of Sessions and accordingly the learned trial court framed charge under Section 376(1) of the IPC which was explained to the accused who pleaded not guilty. 4. In course of trial prosecution examined 8 witnesses while the defence examined 2 witnesses to prove his plea of innocence and on conclusion of trial the learned trial court convicted the accused person as aforesaid. 5. Being aggrieved by the aforesaid judgment and order the present appeal has been preferred raising certain grounds that the learned trial court without proper appreciation of evidence on record came to a perverse finding. It has been contended that the learned trial court did not take into consideration the defence evidence and ignored the same. That apart the material portion of cross-examination of witnesses was not scrutinsed by the learned trial court when there is specific evidence that the victim maintained unfair relation with one Iraj Ali with whom she even tried to flee away and there was a proposal for marriage between the two. 6. Assailing medical evidence it is contended that the age of the victim is stated to be between 14 and 17 years and she has no birth/school certificates to prove her age and therefore her age can be taken as 17+2 = 19 years. 6. Assailing medical evidence it is contended that the age of the victim is stated to be between 14 and 17 years and she has no birth/school certificates to prove her age and therefore her age can be taken as 17+2 = 19 years. That apart the conduct of the victim girl coupled with the fact of long delay in filing the FIR and unfair relation of the victim girl with a boy is stated to be vital aspect which raised serious doubt about the veracity of the prosecution case. 7. I have heard argument of learned counsel for both parties as well as considered the evidence on record and the grounds of appeal. 8. As per the evidence of the victim girl/PW1 whose age is stated to be 15 years she alleged that accused committed such sexual intercourse with her firstly about 1½ years back and thereafter on many occasions with a plea that he will marry her and when she became pregnant of 3-4 months the victim reported the matter to her mother who in turn approached the parents of the accused and a bichar was held. Though the parents of the accused assured the victim to solemnize their marriage, they declined later on. After 10 months of the first sexual conduct the victim girl gave birth to a child in her house and after 28 days the child died and thereafter only her mother lodged the FIR. 9. The mother of the victim girl Mayuran Bibi/PW2 in her evidence stated that the accused used to come to her house in her absence and commit sexual intercourse with PW1 which she came to know only after physical change of her daughter due to pregnancy. As soon as she was reported by PW1 about such matter she approached the parents of the accused and asked them to arrange for marriage of PW1 with the accused but they did not agree. A bichar was also held in their village but nothing was finalized and in the meantime PW1 gave birth to a child and the child died after few days. She thereafter filed a case but it was withdrawn on the pressure of local people and thereafter filed the complaint vide exhibit 1 which was forwarded to the police. She has produced photocopy of birth certificate of her daughter/PW1 which was objected by the other side. 10. She thereafter filed a case but it was withdrawn on the pressure of local people and thereafter filed the complaint vide exhibit 1 which was forwarded to the police. She has produced photocopy of birth certificate of her daughter/PW1 which was objected by the other side. 10. Four independent witnesses were also examined by the prosecution, namely PW3 Rahmat Ali, PW4 Mubarak Ali, PW5 Abdul Rouf and PW6 Abdul Rashid. All of them have given evidence on different aspects. According to PW3, he was informed by PW2 that her daughter PW1 has given birth to a child and the child was born due to the relation maintained by the accused with PW1. On being asked as to why the matter was not informed earlier it was disclosed by PW2 that due to shame the occurrence was not disclosed. It is also stated by him that village people were gathered and all the people expressed their astonishment that the accused was not available in the village after appearing in HSLC Examination 2011 and went to Bangalore and only prior to one 1½ months of his arrest the accused returned from Bangalore. The said witness in his further cross-examination has deposed that one Iraj Ali was staying in the house of Mayruni Bibi for 7-8 months prior to the birth of the child and one day one Kala Mia asked him to the house of PW2(prior to 1½ months of the birth of the child of PW2) and he found that said Iraj Mia was tied with a rope in the house of PW2 and Iraj Ali told him that they were apprehended by Kala Mia, Mobarak Ali(PW4) and Cheraj Ali while Iraj and PW1 were eloping and at that time PW2 insisted to arrange for the marriage of Iraj Ali with PW2 with condition that Iraj should become ghar jamai. Later on he came to know that Iraj Ali took shelter in the house of village president Shyamal Das(DW2). 11. PW4 Mubarak Ali stated that he found the accused while visiting the house of PW1 and 2 several times and then he came to know that PW1 has given birth to a child and then PW2 told him that accused has made her daughter pregnant and she gave birth to a child. 11. PW4 Mubarak Ali stated that he found the accused while visiting the house of PW1 and 2 several times and then he came to know that PW1 has given birth to a child and then PW2 told him that accused has made her daughter pregnant and she gave birth to a child. After the birth of the child a bichar was held in the house of PW1 where he was present and in the bichar PW1 disclosed that she was impregnated by the accused but nothing was decided in the meeting and ultimately a case was filed. 12. The evidence of PW5 and 6 reveals that they were called to the house of PW2 in the year 2012 and then they were informed by PW1 and 2 that PW1 was impregnated by the accused and thereafter PW1 gave birth to a girl child. Only after the birth of the child the bichar was held and as nothing was materialized PW2 filed the case. In cross-examination PW5 has divulged that he heard the story from one Baitul Hoque that one Iraj Ali came to the house of one Morion Bibi and told that an incident had happened in the house of Morion Bibi. Similarly PW6 in his cross-examination stated that he had stated before I.O. that the accused had gone out of the house long back in the month of March, 2011 after appearing HSLC Examination and returned after about 5-6 months i.e. prior to his apprehension by the police. He was also informed that the victim girl/PW1 was tried to be abducted by Iraj and he was called in the said situation. The said Iraj wanted to take away PW1 and therefore he was apprehended and he was taken to the house of Shyamal Das. 13. Dr Abul Hussain/PW7 proved the medical examination report of PW1 given by a medical officer who happens to examine the victim girl. According to the medical opinion the age of PW1 was above 14 years and below 17 years. But doctor who examined the victim was not a Radiologist but was a Pathologist. Lastly, the I.O. Jyotimoy Das gave his deposition where he stated about the receipt of FIR(complaint petition)/exhibit 4 through the court and about the investigation being carried out. According to the medical opinion the age of PW1 was above 14 years and below 17 years. But doctor who examined the victim was not a Radiologist but was a Pathologist. Lastly, the I.O. Jyotimoy Das gave his deposition where he stated about the receipt of FIR(complaint petition)/exhibit 4 through the court and about the investigation being carried out. He has contradicted various testimonies of witnesses to the effect that the PW1(victim) did not disclose before him that the accused used to supply bamboo to their house and that there was a village meeting prior to the birth of the child. Similarly PW2(informant) did not state before I.O. that she took PW1 to the house of the accused when she was 9-month pregnant. PW4 Mubarak Ali also did not state before I.O. that he saw the accused visiting the house of PW2 and he used to supply split bamboo to the house of PW2. In the like manner, PW5 and 6 did not state before I.O. that they were informed by PW2 that PW1 was impregnated by the accused and thereafter a child was born to PW1 and nothing was materialized in the village meeting called by PW2 after the birth of the child. 14. In this case the plea of the defence is of total denial and in support of its plea the defence has examined two witnesses, Rajjak Mia/DW1 and Shyamal Kr Das/DW2. In his evidence DW1 has stated that after appearing HSLC Examination the accused went to Bangalore for study and thereafter he returned home and he never saw the accused in the house of PW2 at any point of time. He knows Iraj Ali who used to stay in the house of PW2 and also in the house of PW4. There was a talk of compromise between PW1 and said Iraj and PW2 told him that she has asked him to bring his guardian for final discussions of marriage and also told that she would keep Iraj as ghar jamai and one night of Baisakh month said Iraj Ali was apprehended by the police while he was eloping with PW1 and on hearing a hullabaloo he arrived there and said Iraj Ali was taken to the house of Shyamal Das. The said Iraj was asked to stay in the house of Shyamal Das but he fled away. The said Iraj was asked to stay in the house of Shyamal Das but he fled away. It is also stated that no bichar was held by PW2 against the accused nor she made any complaint either to villagers or to the police. 15. Shri Shyamal Das/DW2 is VDP secretary. He stated that on 24.12. 2014 on being called by PW2 he came out and found several persons outside his house, namely Mubarak Ali(PW4), Cheras Ali, etc who brought one person namely Iraj Ali whose hands were tied with a gamocha and he was held up by PW2 and on being asked PW2 reported that said Iraj was staying in her house for quite some time and proposed to marry PW1 even though he is a married man but on the fateful day said Iraj had eloped with the daughter of Moriom (victim girl) and they were apprehended and later produced before DW2 being the VDP secretary and on being asked said Iraj replied that he has physical relation with PW1 and proposed to marry her. But after some time Iraj fled away from his house.(His evidence is also supported by PW3 and PW6 as discussed above. 16. As regards the occurrence it is stated by DW2 that PW2 lodged the case against the accused only after her daughter gave birth to the child and prior to that no bichar was held regarding the pregnancy of PW1. Further he knows the accused being a class mate of his son, who went to Bangaluru after appearing HSLC Examination 2011 and returned in the month of April, 2013. Defence evidence which is supported by the prosecution witness itself is found reliable. 17. Thus it appears from the defence evidence that the accused left for Bangaluru for higher studies in the year 2011 and returned in the month of April, 2013. In fact this aspect is supported by the prosecution witnesses ~ PW3, 5 and 6. This aspect is very much vital to consider as to whether the accused appellant was physically present and maintained relation with the victim girl. That apart the fact that the informant as well as the victim never lodged any complaint with the local people or the police since the date of the occurrence or till the birth of the child. Nor there was any local bichar held by people as claimed by PW1 and PW2. 18. That apart the fact that the informant as well as the victim never lodged any complaint with the local people or the police since the date of the occurrence or till the birth of the child. Nor there was any local bichar held by people as claimed by PW1 and PW2. 18. It is admitted by the victim girl that she has no love affair with the accused. Then what prompted her to remain silent all throughout the affair if she was raped by the accused. She is matured enough and she should not have allowed the accused to get herself impregnated when the accused is a married man having children. Admittedly a bichar was held and that too only after the birth of the child and not prior to that. According to PW1 the occurrence took place on 15.2.2012. Complaint was filed on 20.4.2013. Such a long delay is not explained properly by the prosecution. This factum coupled with the silence maintained by the PW1 as well as PW2 and also the vital aspect of having relation of PW1 with one boy Iraj Ali which is proved by defence evidence and even by the prosecution witnesses throws a shadow of doubt over the prosecution story. Even if we keep aside the defence evidence then also the evidence of the prosecution witnesses having stated the above episode of having unfair relation of PW1 with a boy is clinching enough to strain credulity of the prosecution story. 19. It is to be noted that PW2 giving different story at different times that she had filed FIR at earlier point of time but it was withdrawn at the behest of some local people perhaps cannot be accepted because it was not proved properly. No such document was produced or proved. As for the age of the girl, it is found that her age is not exclusively proved by the prosecution except verbal submission made by her mother. No school certificate or birth certificate is produced to prove her actual age. Besides, the medical opinion says her age is 14-17 years. In this context the medical opinion cannot be regarded as conclusive evidence as regards her age. 20. No school certificate or birth certificate is produced to prove her actual age. Besides, the medical opinion says her age is 14-17 years. In this context the medical opinion cannot be regarded as conclusive evidence as regards her age. 20. Learned counsel for petitioner relied upon the judgments of Supreme Court in Jaya Mala v. Home Secretary, Government of Jammu & Kashmir and others reported in (1982) 2 SCC 538 to contend that if the age is determined by the doctor then another 2 years have to be added to such excess age and when the age is determined on radiological and orthopaedic test the Court can take judicial notice that margin of error in age ascertained by such examination is two years on either side. This judgment is being followed consistently in similar cases to assess the age of the victim. 21. The decision of the Supreme Court in Dilawar Singh v. State of Delhi reported in (2007) 12 SCC 641 is also relied on to contend that in criminal trial one of the cardinal principles for the court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. 22. The decision of this Court in Nasib Hussain (Md) v. State of Assam and others reported in 2015 (3) GLT 89 is also relied upon by learned counsel for petitioner. 23. I have gone through the cited judgments. 24. Delay in filing of FIR in the given background is fatal to prosecution and therefore no explicit reliance can be given to the evidence of the victim trial. 25. 23. I have gone through the cited judgments. 24. Delay in filing of FIR in the given background is fatal to prosecution and therefore no explicit reliance can be given to the evidence of the victim trial. 25. Having regard to the above the age of the victim girl in the given case can also be treated as 18 plus and as a major girl and her conduct itself reflects that she was a consenting party to the above affairs and also she maintained such physical relation with someone and in such given scenario it is very difficult to hold that the offence u/s 376 of the IPC is proved beyond reasonable doubt to hold the accused guilty. Accordingly the charge framed u/s 376 of the IPC failed. The accused is acquitted of the charge and set at liberty forthwith. The appeal is allowed. LCR be returned with copy of this judgment forthwith.