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2018 DIGILAW 225 (JHR)

Md. Hasim v. State of Jharkhand

2018-01-29

RATNAKER BHENGRA

body2018
JUDGMENT : Ratnaker Bhengra, J. This criminal appeal is directed against the judgment of conviction and order of sentence dated 16.9.2003 passed by the learned Additional Sessions Judge, Fast Track Court-1, Chatra in S.T. No. 23 of 2003 whereby and whereunder the appellant has been found guilty and convicted for offence punishable under Section 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for 7 years. 2. The prosecution story in brief as narrated in the written report of victim (name concealed) dated 15th September, 2002 was that Md. Hasim who resided just adjacent to her house, two years ago when she was alone in her house, came in the evening and started behaving in an inappropriate manner. Subsequently, he used to write letters to her in which he expressed his love and affection towards her and expressed that if she will not reciprocate, his love then he will kill himself by consuming poison. She was, therefore, compelled to express her love for him. Thereafter the accused assured her that when he will return from Saudi Arabia, he will marry her. The accused used to send letters to her from Saudi Arab. When he returned from Saudi Arab, he again expressed his love towards the informant. The informant requested him to marry her. He assured her to marry and established physical relationship. On 09.09.2002 a letter was sent by Md. Hasim to her in the morning, wherein it was written to meet him at 11 a.m. near the power house but she could not go there. Thereafter, accused Md. Hasim came to her house and forcibly committed rape with her. The matter came to the knowledge of the people of the neighbourhood. The informant told the accused to marry her, However, Md. Hasim Assured her to get herself married to someone else and also offered her some money. Refusal of marriage by the Accused compelled the informant to file the written report before the Officer-in-Charge. Itkhori police station. 3. On the basis of the written report (Ext.-2), Itkhori P.S. Case No. 85 of 2002 under Section 376 of the Indian Penal Code was, registered. Investigation commenced, charge-sheet was filed and thereafter the case was committed to the Court of Sessions. Charges were framed under Section 376, IPC to which the accused pleaded not guilty and claimed to be tried. 4. Investigation commenced, charge-sheet was filed and thereafter the case was committed to the Court of Sessions. Charges were framed under Section 376, IPC to which the accused pleaded not guilty and claimed to be tried. 4. The prosecution examined altogether 7 witnesses and also proved Ext.-1 which is the letter said to be written and sent by Md. Hasim and Ext.-5, which is the medical examination report of victim. The defence examined three witnesses and produced a copy of Ext.-1 written by accused and Ext. A, B, C, D, E, E/1, F and G. 5. The trial was held and after conclusion of the trial, learned Additional Sessions Judge, Fast Track Court-I, Chatra convicted and sentence the appellant as aforesaid. Hence, this appeal. 6. PW 2 is the victim, the informant and prosecutrix. She deposed that the occurrence is of the 9.9.2002 and her parents were not in the house at that time. The accused sent a letter in which it was written that she should meet him at 11 a.m., near the Power House and she proved this letter which was marked as Ext.-1. As she did not go accused Hasim came and in spite of her protest, he forcibly committed rape with her. However, he assured that he would marry her. She has further deposed that the accused Md. Hasim while assuring her about the marriage, used to say if she will not marry him then he will kill himself by taking poison and also threatened to entrap her parents. She further deposed that two years back when he was going to Saudi Arab, the accused committed rape with her on the assurance that he will marry with her and committed rape twice. Hasim used to visit her house and when she asked to marry her then he replied he will many her and always assured her so and had physical relationship. She informed about the matter to her parents when they returned from Hazaribag. Her parents went to the house of Hasim and informed his elder brother about the occurrence. The elder brother also assured for her marriage with the accused, but after two days, he refused and the elder brother offered Rs. 10,000/- to her parents and told her parents to get their daughter married to any other person. Her parents went to the house of Hasim and informed his elder brother about the occurrence. The elder brother also assured for her marriage with the accused, but after two days, he refused and the elder brother offered Rs. 10,000/- to her parents and told her parents to get their daughter married to any other person. Subsequently, she went to the police station along with the letter sent by Hasim and tendered a written report for lodging the FIR. The written report is in her pen and signature and it was marked as Ext.-2. She was examined by a lady doctor. In her cross-examination, she repeated the accusation of rape committed upon her by the accused. 7. PW 1 is Md. Seraj, who is the father of the prosecutrix. He deposed that the occurrence took place on 9.9.2002. On the date of occurrence, he had gone to Hazaribagh and he returned to his house in the evening. In the morning, he went to village Jamari and came to his house on the next day. In the evening, his brother-in-law Abdul Mazid informed him that Md. Hasim had committed rape with his daughter. Subsequently, he asked Shabana and his daughter showed him a letter which was given by Md. Hasim to his daughter. In the letter, Md. Hasim expressed his desire to meet his daughter near the Power House. His daughter did not go there. He further deposed that his daughter told him that the accused Md. Hasim then came in the day light and flirted with her. Prior to the incident, his daughter was married to one Md. Abdal in the year 1997. The accused had compelled his daughter to leave Md. Abdal. Accused Md. Hasim assured his daughter that when he will return from Saudi Arab, he will marry with her. The accused committed rape with his daughter on the assurance that he will marry his daughter. Thereafter he refused to marry her daughter and subsequently offered Rs. 10,000/- to get married with any other person. 8. PW 3 is Ashma Khatun, who is the mother of the prosecutrix. She deposed that the occurrence took place nine months ago and at that time she gone to Hazaribagh along with her husband. On returning to her house, she received information that accused Md. 10,000/- to get married with any other person. 8. PW 3 is Ashma Khatun, who is the mother of the prosecutrix. She deposed that the occurrence took place nine months ago and at that time she gone to Hazaribagh along with her husband. On returning to her house, she received information that accused Md. Hasim had committed rape with her daughter and told her that he recognized her daughter as his wife. Accused Md. Hasim had given a letter to her daughter and committed rape with her forcibly when she was alone in her house. She informed about the occurrence to Sardul the elder brother of Md. Hasim who requested for two days time to marry her daughter with his accused brother. Subsequently, after two days, she went with her husband to the house of Sardul, but Sardul told her to take Rs. 10,000/-, to get her daughter married to another person and refused to marry his brother with her daughter. Sardul also threatened them. This witness had further deposed that the accused committed rape with her daughter on the assurance that he would marry with her daughter and he lastly refused to marry with her daughter and then the case was lodged. In her cross-examination, she repeated that Md. Hasim committed rape with her daughter on the assurance that he will marry her daughter. 9. PW 4 is Subhan Ali. He deposed that the occurrence took place about nine months ago. Informant is the daughter of his 'Sadhu'. He deposed that when victim was alone in her house then Hasim committed rape with her on the assurance that he would marry her. The parents of victim were not in their house. On getting knowledge about the said occurrence, he went to the house of Sardul, brother of the accused. Sardul took two days time and subsequently offered Rs. 10,000/- to marry victim to another person and refused to marry her with his brother. 10. PW 5 is Taj Muhammad. He has deposed that on 10.9.2002, Md. Seraj, father of the victim, came to his house and informed him that Md. Hasim committed rape with his daughter on the assurance of marriage. On the day of occurrence, Md. Seraj had gone to Hazaribagh with his wife. Md. 10. PW 5 is Taj Muhammad. He has deposed that on 10.9.2002, Md. Seraj, father of the victim, came to his house and informed him that Md. Hasim committed rape with his daughter on the assurance of marriage. On the day of occurrence, Md. Seraj had gone to Hazaribagh with his wife. Md. Seraj also told him that Hasim had handed over a letter to his daughter in which it was written that she should meet him at the Power House. His daughter did not go to the Power House. Thereafter, accused, Hasim came to his house, victim was alone in her house then accused flirted with her and committed rape. This witness further deposed that he also inquired from victim who corroborated her version further. Thereafter, he met Sardul, brother of the accused Md. Hasim. Sardul had taken one day time. He told Sardul to marry the accused with victim/informant. On the next day when he went to the house of Sardul, Sardul offered Rs. 10,000/- and told to marry victim to another person. Panchyati was also convened. In his cross-examination, he deposed that Sardul, brother of the accused Md. Hasim offered Rs. 10,000/- to marry the victim to another person. 11. PW 6 is Abdul Mazid. He deposed that the occurrence took place on 9.9.2002. He further deposed that he had gone to work in his field and on returning to his house at 2 p.m., there was hulla, that Md. Hasim had committed physical relationship with victim. He went to the house of victim and inquired from her. Victim told him that when she was alone in her house, the accused Md. Hasim came and committed rape with her on the assurance that he will marry her. She also told that prior to the alleged occurrence, Md. Hasim used to commit physical relationship on the assurance that he would marry her. Victim also showed him a letter in which Md. Hasim had expressed his love and affection. He further deposed that on the date of occurrence, the parents of victim had gone to Hazaribagh and on the next day, he informed the parents of victim about the occurrence. He met with the brother of Md. Hasim, Sardul who had taken two days time and subsequently when he and Seraj had gone to house of Md. Sardul, Sardul offered Rs. He met with the brother of Md. Hasim, Sardul who had taken two days time and subsequently when he and Seraj had gone to house of Md. Sardul, Sardul offered Rs. 10,000/- and told to get victim married to someone else and refused to marry his brother with the victim. 12. PW 7 is Ajay Kumar Mandal, the Investigating Officer of the case. The I.O. deposed that the investigation of Itkhori P.S. Case No. 85 of 2002 was entrusted to him. The case was registered on the basis of written report lodged by the victim. He has proved the endorsement on the written report, which is marked as Ext.-3. He has also proved the formal FIR which has been marked as Ext-4. He further deposed that during investigation, he recorded the statement of prosecutrix and also recorded the statements of Ashma Khatun, Serajuddin, Abdul Mazid, Nausad Alam, Subhan Ali, Taj Muhammad who all supported the alleged occurrence. He also deposed that, he visited the place of occurrence which is the house of the father of the prosecutrix situated at village Itkhori. There were four rooms and it was reported to him that in the western side of one room the accused committed rape with the prosecutrix. Prosecutrix was taken to Sadar Hospital, Hazanbagh for her medical examination, because a lady doctor was not available at Simariya and Chatra at that time. The prosecutrix was examined by Dr. S. Toppo of Sadar Hospital, Hazaribagh. He proved the medical report which is in the pen and signature of Dr. S. Toppo which was marked as Ext. 5. He further deposed on the basis of the statement of the witnesses and the supervision of the higher authority, he submitted the charge-sheet against the accused Md. Hasim under Section 376 bf the IPC. ARGUMENTS OF THE APPELLANT 13. Learned counsel for the appellant Ms. Priya Shreshtha has argued that there was huge delay of two years in lodging the FIR and there is no explanation for the huge delay in lodging the FIR. She has also submitted that the truthfulness of the prosecution is doubtful because there is contradiction between the statement recorded in paragraphs 75 to 78 and paras 80 to 84 of deposition of PW 2 and paragraphs 12 to 15 of the PW 7, who is the Investigating Officer. She has also submitted that the truthfulness of the prosecution is doubtful because there is contradiction between the statement recorded in paragraphs 75 to 78 and paras 80 to 84 of deposition of PW 2 and paragraphs 12 to 15 of the PW 7, who is the Investigating Officer. In these paragrapahs PW 2 said that she had not told the police that she had gone to the Power House and met Hasim and that Nausad was present subsequently when Nausad had gone away, she and the accused had sat down on the floor and the accused had romanced her. She had also not told the police that some women of the neighbourhood had seen them and when sexual relationship was established and people came to know slowly then she become worried and raised the issue of marriage with the accused. Counsel for the appellant says that in the paragraph cited for the I.O., in her restatement she had told the police that when she went to the Power House both Hasim and Nausad were present and that after Nausad had gone away then Hasim had romanced her and also that after some women of the neighbourhood had seen her and gradually people began to know then she got worried and then she raised the issue of marriage. So, counsel says while making her deposition, victim has said that in her statement she had not told the police that she had gone to meet Hasim at Power House and that Hasim romanced her and when woman of the locality came to know then on getting apprehensive she had raised the issue of marriage. But according to the deposition of I.O. in her statement to the I.O. she had admitted all this. Counsel for the appellant has then referred to paragraphs 52 and 53 of the evidence of PW 2 and submitted that PW 2 has deposed that for the two years the accused used to visit her and she did not complaint because she was apprehensive about her reputation. Counsel, hence says that there was a long period of consent and submission much before the main incident of alleged sexual assault for which complaint was made, so the conduct of prosecutrix shows fully that she had consented in her sexual relationship and that no offence of rape can be made out. 14. Counsel, hence says that there was a long period of consent and submission much before the main incident of alleged sexual assault for which complaint was made, so the conduct of prosecutrix shows fully that she had consented in her sexual relationship and that no offence of rape can be made out. 14. Learned counsel for the appellant further submitted that consent be inferred from the conduct of prosecutrix keeping quiet for two long years that she then alleged about the incident and made it appear as a crime when the whole colony started gossiping about the incident. Counsel had also pointed out to the evidence of the I.O. in paragraph Nos. 11 to 13 and said that in paragraph No. 11 it is referred to the restatement of the prosecutrix that love letters used to come from the accused and she used to burn the letters, meaning thereby that she was keeping her relationship as a secret and in paragraph Nos. 12 and 13 again she has repeated that she had gone to the Power House and met Hasim and Nausad and after Nausad had gone away then Hasim had romanced her. Counsel for the appellant says that this is also contrary to the written report in which she says that she did not go to the Power House. So evidence of victim does not seem to be trustworthy and reliable, and therefore, even the case of the prosecutrix does not seem to be reliable. 15. Counsel for the appellant has also pointed to paras 41 and 42 of the evidence of PW 2 of the prosecutrix wherein she has said that she cannot read from the written report because she cannot see, though she concedes that the written report is Written by her but because she cannot see fully, therefore, she cannot read. In paragraph 43, she says that if spectacles are given to her then she can read the written report. She further deposed that spectacles are not in the house now and they are broken. So counsel says that at the time of writing of the report her eyes were good but now they are not in good health. It is strange that she has come to the Court without spectacles and that she says that they are not in the home now because they are broken. 16. So counsel says that at the time of writing of the report her eyes were good but now they are not in good health. It is strange that she has come to the Court without spectacles and that she says that they are not in the home now because they are broken. 16. Counsel has then referred to the medical evidence and submitted that the Ext.-5 which is the medical report does not support the prosecution case and there is no evidence of rape. Counsel for the appellant has also said that no independent witnesses has been examined and all are related or interested witnesses. She has said that PW 1, PW 3, PW 4, PW 5 and PW 6 are all relative of the victim and this has come in the deposition. So in spite of such serious offences being committed and the village being a very big village, no other person has come to testify on behalf of prosecutrix and therefore, the allegations cannot be sustained. She has also pointed to the evidence of PW 1 in para 1 and then to the evidence in paras 11, 12, 13, 14 and said that they are contrary to each other. Counsel for the appellant has also said the so called love letters is also doubtful and it has not been sent for forensic science examination and the Court has simply accepted the truthfulness of the love letter sent by the accused asking her to come to the Power House even though it has accepted that it was written by someone else. Lastly, Counsel for the appellant has also stated that the victim is not to be trusted because even prior to this incident she was married with another person one Md. Abdal and this marriage was unsuccessful and broke down because she was having sexual relationship with one Munna at the same time and this is apparent from Ext-D, E, E/1 and F and therein appellant's counsel says that her character and history can also be assessed and therefore after a failed marriage she was seeking to entrap the current appellant who is working in Saudi Arab and seems to be a good prospect for her. ARGUMENTS ON BEHALF OF STATE 17. Learned counsel for the State, learned APP, has submitted that the victim has supported her case. The other witnesses PW 1 father Md. ARGUMENTS ON BEHALF OF STATE 17. Learned counsel for the State, learned APP, has submitted that the victim has supported her case. The other witnesses PW 1 father Md. Seraj, PW 3 mother Ashma. Khatun, PW 4 Subhan Ali PW 5 Taj Muhammad and PW 6 Abdul Mazid have also supported the prosecution case. It is further submitted that in rape cases there is no need of corroboration of the evidence of the prosecutrix. The sole evidence of prosecutrix inspires confidence. There is no chance of false implication of the accused. Though the doctor has not given definite opinion about the rape but there is no need of the opinion of the doctor regarding the rape because the prosecutrix has clearly stated that the accused, has committed rape forcibly upon her. FINDING 18. It has been already laid down that an accused person's character should not be determental in deciding a case, but the facts and circumstances of that particular case itself. So one should abide by that maxim. However, at times the history of a person, or the background of a case may be necessary to throw more clarity on the case. In this case the defence, have produced exhibits marked as Ext.-D, E and E/1 and F, which are part of a series. These exhibits deal with the proceeding of a meeting or a panchyati that witnessed the ending of a former marriage which the prosecutrix and one Mohammad Abdal had solemnized earlier. Ext.-E, is a document written and signed by the prosecutrix in which she has stated that she had been involved with one Munna, prior to her marriage between herself and Mohammad Abdal, which she was pressurized into by her parents. That even while in marriage, she was continuing her relationship with the said Munna, and in fact they used to even behave like husband and wife. She has also said due to this relationship she had even ran away, and finally she sought divorce from Mohammad Abdal. Ext. - E/1 is a statement by Mohammad Abdal, in which he recognizes what the prosecutrix has done, and expresses he is still willing to keep her if she mends her ways, but otherwise concedes to divorce. Ext.-F is a FAISALANAMA or document signed by a few witnesses, and the prosecutrix and Mohammad Abdal, annulling their marriage. A date on Ext.-F, show it is dated 6.6.2000. Ext.-F is a FAISALANAMA or document signed by a few witnesses, and the prosecutrix and Mohammad Abdal, annulling their marriage. A date on Ext.-F, show it is dated 6.6.2000. My reason for giving the background is only to demonstrate that the informant who is also allegedly the victim has a background of failed relationship. She was previously married and even then she was carrying on an affair or relationship with one Munna. Such experience will leave one hurt and broken. Again, she was into her third relationship. She was it seem looking for some permanency in her life, but was not seemingly able to find it. Hence, when she entered into a relationship with the accused, for the initial two years, she had settled into the "relationship. She even destroyed her letters to keep the relationship secret. As per the written report, it seems at the beginning she was averse to him, but because he was persistent, she says she faked agreement. It is not said that he had initially committed rape, she could have complained about a lessor offence and it would have ended there. Subsequently, it seem she developed intimate relationship. When the accused went to Saudi Arabia, he wrote her letters which she promptly burnt, thus continuing a secret relationship. When he returned, as per her, he brought a lot of gifts which she accepted. She even says he started loving her even more. Given the long duration or period of relationship, it was secretly conducted; sexual relationship existed. 19. She did raise the issue of marriage, which the accused it seems largely assured. Then came the incident on 9.9.2002, when as alleged, in the absence of her parents, the accused sent her a letter expressing love and asking him to meet him at the Power House at 11 a.m. She did not go, and then he came to her house and raped her. The occurrence on 9.9.2002 is corroborated by PW 1, PW 2, PW 3, PW 4, PW 5, PW 6 and PW 7 in some way or the other. However, there are also inconsistencies and down right contradictions. In her written statement, the prosecutrix, say that after receiving the letter from the accused, she did not go to the Power House, but in her deposition, she says she went there. However, there are also inconsistencies and down right contradictions. In her written statement, the prosecutrix, say that after receiving the letter from the accused, she did not go to the Power House, but in her deposition, she says she went there. This is a significant contradiction made by her in her written statement and then her deposition. Then, in her written statement, she say that after returning from Saudi Arabia, the accused gave her many presents, but in her deposition she says he did not give her any presents. 20. Of significance, in her statement is her deposition where she says that some women had seen her at the Power House with the accused, and fearing for her reputation she again raised the issue of marriage with the accused. A major contradiction against the allegation of rape, would be that prior to 9.9.2002 incident, and even prior to the accused going to Saudi Arabia, she maintained the relationship. There is reference to some protestation, but they appear mild. No complaint lodged, what so ever till then, no panchyati. The main charge of rape is of the incident of the 9.9.2002, but given the other inconsistencies or contradiction that have already been pointed out, the allegations cannot straightaway be accepted in toto. 21. In paragraphs 41 and 42 of the deposition of victim; she express her inability to read the written report, which is in her own handwriting and composition. She even deposes that her spectacles are not with her and rather they are broken. It is strange that she had not taken her spectacles with her, and even if one accepts the spectacles were broken, unless, she had rather poor eye sight now, it would have been possible for her to read her own written report that was written by herself. 22. After going through, the evidence of the witnesses, it seems that after the initial familiarity, the two got involved in a relationship, that also was of sexual nature with consent. So I am not able to hold the accused guilty of rape and the offence under Section 376 of the IPC. Therefore, after going through the arguments of the both counsels, the records in the case and in the facts and circumstances of the case, the appellant Md. So I am not able to hold the accused guilty of rape and the offence under Section 376 of the IPC. Therefore, after going through the arguments of the both counsels, the records in the case and in the facts and circumstances of the case, the appellant Md. Hasim is acquitted of the offence under Section 376, IPC and the order of conviction and sentence passed in S.T. No. 23 of 2003 passed by learned Additional District & Sessions Judge, Fast Track Court-I. Chatra dated 16.9.2003 is set aside. Accordingly, the appeal is allowed. He is discharged from his liability of bail bonds. Appeal allowed.