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2018 DIGILAW 172 (GAU)

Md. Rabul Hussain Laskar v. State of Assam

2018-01-30

HITESH KUMAR SARMA

body2018
JUDGMENT & ORDER : 1. This is an appeal, preferred under Section 374 (2) of the Cr.P.C, challenging the judgment and order, dated 31.3.2016, passed by the learned Special Judge, Cachar, Silchar, in Special (POCSO) Case No. 12/2015, convicting and sentencing the accused-appellants under Sections 366/34 of the IPC to undergo rigorous imprisonment for 5 years each, and to pay a fine of Rs. 2,000/- each, with a default clause and also convicting the accused-appellant Rabul Hussain Laskar to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000/- with a default clause under Section 4 Prevention of Children from Sexual Offences Act (hereinafter referred to as POCSO Act). The sentences of accused-appellant Rabul Hussain Laskar is ordered to run concurrently. 2. I have perused the appeal memo as well as the judgment of the learned trial court. I have also perused the records of the learned trial court including the evidence available therein. 3. Heard Mr. A. Ahmed, learned counsel for the accused-appellants. Also heard learned Additional Public Prosecutor for the state respondent Mr. B.J. Dutta. 4. The fact leading to the case, as appears from the evidence on record is that, on 18.7.2015, at about 4:00 pm, the victim went out through tea garden road to purchase one Urna. While she was proceeding, the accused-appellants appeared by her side with a cruiser vehicle and they had put her into the said vehicle forcibly and proceeded towards Kashipur tea garden. The victim complained that both the accused-appellants kidnapped her in the said vehicle. Accused-appellant Rabul Hussain Laskar committed rape on her person. They were also alleged to have committed theft of the gold necklace and her ear-rings which the victim was wearing at the relevant point of time. 5. On the above facts, an FIR was lodged with Udarbond Police Station, which registered a case, being No. 177/2015 under Section 342 of the IPC read with Section 6 of the POCSO Act, investigated into it, collected evidence, and after completion of the investigation, laid the charge-sheet against the accused-appellants under Sections 366/342 of the IPC read with Section 6 of the POCSO Act. 6. After exhausting all the required formalities, learned trial court of Special Judge, Cachar, Silchar, framed a formal charge against the accused-appellants under Sections 366/34 of the IPC as well as under Section 4 of the POCSO Act. 7. 6. After exhausting all the required formalities, learned trial court of Special Judge, Cachar, Silchar, framed a formal charge against the accused-appellants under Sections 366/34 of the IPC as well as under Section 4 of the POCSO Act. 7. The accused-appellants pleaded innocence to the charges, and therefore, the trial commenced. 8. The prosecution examined as many as 8 (eight) witnesses including the investigating police officer and the medical officer. Defence examined none. 9. After closure of the prosecution evidences, statements of the accused-appellants were recorded under Section 313 of the Cr.P.C and in their such statements also, they were heard denying the allegations made against them by the prosecution. 10. On conclusion of the trial, the learned trial court convicted and sentenced the accused- appellants, as indicated above. 11. I have scanned the evidence on record meticulously. 12. The victim, in this case, is examined as PW3 by the prosecution and she is heard saying in her evidence that, on 18.7.2015, she went to purchase one Urna after taking Rs. 100/- form her mother. While she was walking through the tea garden road, the accused- appellants, in a cruiser vehicle, stopped by her side. The victim/PW3 knew the accused- appellant Rabul Hussain Laskar, he being her neighbour. She was forced into the said vehicle and was taken to inside the Kashipur tea garden. She was administered tablets by mixing in cold drinks and then she felt drowsiness. The accused-appellant Rabul Hussain Laskar committed rape on her person. When she regain senses at about 10:00 pm, she found both the accused persons around her. Both the accused persons then took her and left her near a place called Nachghar. She was found with torn clothes by her cousin Jamrul and Bebul, and accordingly, they informed her father who then took her back to her house. She reported the entire incident to her parents, and thereafter, the FIR was lodged. The police got her examined in the Silchar Medical College and Hospital and her statement was recorded by the Magistrate under Section 164 of the Cr.P.C vide Ext.2. The doctor, who examined her, also got her statement recorded vide Ext.3. She has specifically narrated, in her cross-examination, the topography of the place of occurrence. The police got her examined in the Silchar Medical College and Hospital and her statement was recorded by the Magistrate under Section 164 of the Cr.P.C vide Ext.2. The doctor, who examined her, also got her statement recorded vide Ext.3. She has specifically narrated, in her cross-examination, the topography of the place of occurrence. During the cross-examination, it does not appear that the defence has been able to demolish the version given by the victim/PW3 in her examination-in-chief to the effect that she was forcibly taken by both the accused-appellants and that rape was committed by the accused-appellant Rabul Hussain Laskar except putting suggestions to the effect that the proposal for marriage between the victim and the accused- appellant Rabul was turned down by the family of the accused-appellant Rabul Hussain Laskar indicating thereby that due to such refusal to marry the victim by the accused- appellant Rabul Hussain Laskar a make-believe story has been staged by the informant/prosecution. 13. The evidence of the medical officer, examined as PW7 is that, on 19.7.2015 he got the victim examined in the Silchar Medical College and Hospital and found as follows. "Height 150 cm weight 43.3. kg chest girth at nipple level 81 cm and abdominal girth at naval level 78 cm General built and average voice female type. Teeth is seven numbers in all quarter. Auxiliary hair present: breast hemispherical nipple and areola brownish pink. Puberty attained at 12 year of age. Menstruation 4 days cycle, irregular interval LMP 35 days back" Mental and gait normal, intelligence average Suspected stains present-nil Body injury is nil. On genetic examination public hair- present. Hymen-Slight tenderness present. No tear present vagina-heathly; Cervix, uterus, Forchette and Perineum- healthy Velocit Kit-negative. X-ray plate being No. 37934 19/7/2015 Wrist joint : Epiphysis of lower and radius Ulna appeared and in the process of fusion. Elbow joint : Epiphysis appeared and fused with parent bones. Shoulder joint : Humerus head epiphysis appeared and partially fused with parent bones. Pelvis iliac crest epiphysis not yet appeared." On examination of the victim, as aforesaid, the medical officer did not find any evidence of recent sexual intercourse and no mark of violence. However, on examination, slight tenderness was found present in the hymen and no tear was found present in the vagina. Pelvis iliac crest epiphysis not yet appeared." On examination of the victim, as aforesaid, the medical officer did not find any evidence of recent sexual intercourse and no mark of violence. However, on examination, slight tenderness was found present in the hymen and no tear was found present in the vagina. According to the opinion of the medical officer, who examined as PW7, the victim was above 14 years and below 16 years of age on the basis of dental as well as the radiological examination. 14. In the instant case, the father of the victim is examined as PW1. Evidently, he has no personal knowledge about the occurrence and he heard about the occurrence from his daughter/victim, and thereafter, lodged the FIR on the next day of the date of occurrence vide Ext.1. Evidently, the victim was a student of Class-IX on the relevant date of occurrence. He was informed about the fact of his daughter/victim being located by one Jamrul and another Badrul, examined as PW4 and PW5 respectively, that the victim was found with torn clothes at a place called Nachghar. 15. PW2 is found to have stated in his evidence that at about 10:00 pm on 18.7.2015, i.e. the date of occurrence, hearing hue and cry, he went to the house of the victim and he found the victim there crying. At that time she was wearing torn cloths, and on being asked, he was told that while the victim went to purchase one Urna, she was abducted by the accused-appellants in a vehicle from a lonely plantation area, named Bogdhai, administered drugs to her mixing with cold drinks and thereafter committed rape on her. After committing rape, at about 10:00 pm, she was dropped at the place called Nachghar by the accused-appellants, and there, she was recovered by aforesaid Jamrul and Bebul out of whom Jamrul is examined as PW4. In his examination, he is heard denying the suggestions that she did not report the occurrence as stated in his examination-in-chief. 16. PW4, Jamrul, is found to have stated in his evidence that the victim is his niece in relation. On the date of occurrence, the father of the victim informed him at about 7:00 pm that the victim could not be traced out even after search and told him to search for her. 16. PW4, Jamrul, is found to have stated in his evidence that the victim is his niece in relation. On the date of occurrence, the father of the victim informed him at about 7:00 pm that the victim could not be traced out even after search and told him to search for her. Thereafter, he along with three of his friends went out in a cruiser vehicle towards Kashipur tea garden in search of the victim and while reaching the turning point of tea garden, he saw the victim coming alone wearing torn clothes. Accordingly, he informed her parents over phone and then she was taken back to her house by her father along with two others. 17. The evidence of locating the victim with torn clothes is found to have not been dislodged by the defence in cross-examination of the witnesses. 18. PW 5 is the Badrul Ali Laskar, who was along with PW4 at the relevant point of time of locating the victim/PW3 with torn clothes moving on her foot. On query made by him, the victim told him that the accused persons had forcibly taken her at about 4:00 pm from near the pharmacy and tried to commit rape on her inside the tea garden. The victim named accused Rabul Hussain Laskar out of the two accused persons. 19. PW6 is the Magistrate who recorded the statement of the victim under Section 164 of the Cr.PC and exhibited the same vide Ext.2. Except the suggestion that the victim did not make the statement as written in Ext.2 there is nothing to discredit the evidence of PW6. Vide the statement in Ext.2 the victim is found implicating both the accused-appellants and her such statement is similar to her evidence in oath on the core issues. 20. PW8 is the investigating officer whose evidence is of routine nature in respect of investigation of the case from visiting the place of occurrence, preparing sketch-map, examining the witnesses and getting the victim examined by the doctor as well as getting her statement recorded by the Magistrate under Section 164 Cr.P.C till laying of charge-sheet. 21. Learned counsel for the accused-appellants has submitted that, there was no rape committed on the victim by the accused-appellant Rabul Hussain Laskar, as according to him, the doctor who examined her, did not find any sign of recent sexual intercourse. 21. Learned counsel for the accused-appellants has submitted that, there was no rape committed on the victim by the accused-appellant Rabul Hussain Laskar, as according to him, the doctor who examined her, did not find any sign of recent sexual intercourse. He has also referred to the several contradictions in the evidence of the witnesses as to the place of occurrence thereby trying to impress upon the court that the evidence of the victim/PW3 is not reliable. 22. But, the fact remains that the victim/PW3 has implicated the accused-appellant with the commission of rape on her person after taking her away forcibly in a cruiser vehicle after administering some drugs to her. It has already been mentioned that the defence examined none in this case, and in cross-examination of the prosecution witnesses, the evidence of the victim/PW3 to the effect that she was taken away in the cruiser vehicle and was administered drugs making her feel drowsiness remain un-assailed. 23. Now, let us examine, on the basis of the evidence on record, whether rape was committed on the person of the victim/PW3 by the accused-appellant Rabul Hussain Laskar. 24. The evidence of PW5, relied by the prosecution, makes it appear that the victim told him that the accused-appellant Rabul Hussain Laskar attempted to commit rape on her person, and as such, she has not alleged the commission of rape by accused-appellant Rabul Hussain Laskar while narrating the facts to PW5/Badrul. The medical evidence also does not disclose that there is any sign of rape detected while she was examined. But, the doctor, examined as PW7, found tenderness in the hymen, as such, the fact of finding tenderness in the examination read together with the evidence of PW5 that the accused-appellant Rabul Hussain Laskar attempted to commit rape on her person appears to be so connected that an attempt to commit rape is found to have been substantiated. 25. It deserves to be recorded here that even the PW3/victim did not specifically narrate as to the manner in which rape was committed on her person and there was no evidence at all whether the rape, she means, was in fact, a penetrating sexual intercourse or not. 25. It deserves to be recorded here that even the PW3/victim did not specifically narrate as to the manner in which rape was committed on her person and there was no evidence at all whether the rape, she means, was in fact, a penetrating sexual intercourse or not. In the absence of any evidence about the penetrating sexual intercourse, coupled with the evidence of the medical officer to the fact that there was some tenderness found in the hymen of the victim/PW3, it could best be termed as a sexual assault as defined in Section 7 of the POCSO Act, instead of an offence as defined in Section 3 of the POCSO Act. 26. This court does not find any such materials in the record, brought out by the defence, to disbelieve the evidence of PW3/victim and rather considering the situation under which the occurrence was alleged to have taken place, her evidence is found to be creditworthy and inspiring confidence of this court. 27. The Hon’ble Supreme Court, in the case of State of Himachal Pradesh vs. Sanjay Kumar alias Sunny, reported in (2017) 2 SCC 51 , in paragraph 31 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. 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. 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." 28. It appears that the aforesaid decision of the Hon’ble Supreme Court is appropriately applicable in the instant case so far the evidence of the victim/PW3 is concerned which has already been found to be reliable and inspiring confidence. 29. Learned counsel for the accused-appellants has also submitted that there are number of contradictions in respect of the place of occurrence and the place where the victim was located by the PW4 and PW5. The place of occurrence has been vividly narrated by the PW3 in her cross-examination to specific questions put to her by the defence. The discrepancy about the place wherefrom the victim was recovered by PW4 and PW5 has also been given by the PW4 and PW5 in their respective evidence. 30. It appears from the discrepancies about the place of occurrence as well as place where the accused persons allegedly dropped the victim after the commission of the alleged offences and also about the place wherefrom she was recovered by PW4 and PW5, are only discrepancies and not contradictions as submitted by the learned counsel for the defence. 31. 30. It appears from the discrepancies about the place of occurrence as well as place where the accused persons allegedly dropped the victim after the commission of the alleged offences and also about the place wherefrom she was recovered by PW4 and PW5, are only discrepancies and not contradictions as submitted by the learned counsel for the defence. 31. Discrepancies which do not touch the root of the case, in the considered view of this court, cannot raise doubt about the veracity of the prosecution version. Since, the fact, that the victim was kidnapped in a cruiser vehicle while she was proceeding through the tea garden road by the accused-appellants has not been assailed and in the absence of any evidence to negate such evidence, there is no reason to look with suspicion the evidence of the victim. 32. That being so, in the considered view of this court, the accused-appellant Rabul Hussain Laskar committed an offence punishable under Section 8 of the POCSO Act and not punishable under Section 4 of the POCSO Act. 33. So far the offence under Section 366 of the IPC is concerned, the evidence of the victim/PW3 is that she was kidnapped by the accused-appellants in a cruiser vehicle at about 4:00 pm and she was let out at about 10:00 pm on the same day. 34. In such fact of the case, Section 342 of the IPC is attracted and not Section 366 of the IPC, as the victim was wrongfully confined for about 6 hours by the accused-appellants from 4:00 pm to 10:00 pm on 18.7.2015. 35. That being so, both the accused-appellants are found guilty of commission of offence under Section 342/34 of the IPC. 36. In view of the above findings recorded during the discussions on the evidence on record, the conviction of the accused-appellant Rabul Hussain Laskar is converted to Section one under Section 8 of the POCSO Act, and the conviction of both the accused/appellants under Section 366/34 of the IPC is converted to one under Section 342/34 of the IPC, and, on such conviction, accused-appellant Rabul Hussain Laskar is sentenced to undergo simple imprisonment for 3 years and to pay a fine of Rs. 5,000/- in default simple imprisonment for 3 months, and, both the accused-appellants are sentenced to undergo simple imprisonment for 1 year each, and to pay a fine of Rs. 5,000/- in default simple imprisonment for 3 months, and, both the accused-appellants are sentenced to undergo simple imprisonment for 1 year each, and to pay a fine of Rs. 1,000/- each, in default, simple imprisonment for 1 month each. The sentences in respect of accused-appellant Rabul Hussain Laskar will run concurrently. 37. The period of detention of the accused-appellants in jail during the trial and after the delivery of the judgment shall be set off against the substantive sentences. 38. The judgment of the learned trial court is interfered with as indicated above. 39. The appeal is partly allowed. 40. Send down the LCR along with a copy of this judgment.