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2018 DIGILAW 294 (GAU)

Makibul Islam v. State of Assam

2018-02-16

HITESH KUMAR SARMA

body2018
JUDGMENT & ORDER : 1. This is a criminal appeal, filed under Section 374 (2) of the Cr.PC, against the judgment and order, dated 30.1.2014, passed by the learned Additional Sessions Judge No. 4, (FTC), Kamrup, Guwahati, in Sessions Case No. 197 (K)/2012, convicting the accused-appellant under Sections 448/354 of the IPC and sentencing him to rigorous imprisonment for 1 month under Section 448 of the IPC and also rigorous imprisonment for 1 year with a fine of Rs.2,000/-, in default of payment of fine, simple imprisonment for another 1 month for offence under Section 354 of the IPC. Both the sentences were ordered to run concurrently. 2. I have heard learned counsel Mr. S.C. Biswas, assisted by Ms. J. Bora, learned counsel for the accused-appellant. Also heard Mr. B.J. Dutta, learned Additional Public Prosecutor for the state respondent. 3. The fact leading to the prosecution case is that, on 2.3.2012, at about 2:30 pm, while the parents of the victim were not available in her house, the accused-appellant went to the house of the victim, a 11 years old girl, and outraged her modesty by pressing her breast as well as attempting to commit rape on her person pulling her on a bed and trying to put off her pant. 4. On receipt of the FIR, on such facts, alleged by the father of the victim/PW1, the officer-in-charge on Nagarbera Police Station, registered a case, being No. 10/2012, under Sections 448/354/376/511 of the IPC, investigated into it, collected evidence, and on completion of the investigation, laid the charge-sheet against the accused-appellant under Sections 448/354/376/511 of the IPC. 5. During investigation, statement of the victim was recorded under Section 164 of the Cr.PC. 6. After exhausting all the required legal formalities, a formal charge was framed by the learned trial court under Sections 376/511 of the IPC, to which the accused-appellant pleaded innocence. Hence, the trial commenced. 7. During the trial, prosecution examined as many as 7 (seven) witnesses including the investigating officer. The defence declined to adduce evidence. 8. After closure of the prosecution evidence, statement of the accused-appellant was recorded under Section 313 of the Cr.PC, and in his such statement, the accused-appellant has taken the stand of denial of the allegations made against him. 9. This court has meticulously scanned the evidence on record. 10. The defence declined to adduce evidence. 8. After closure of the prosecution evidence, statement of the accused-appellant was recorded under Section 313 of the Cr.PC, and in his such statement, the accused-appellant has taken the stand of denial of the allegations made against him. 9. This court has meticulously scanned the evidence on record. 10. For the purpose of appreciating the evidence on record in his correct perspective, considering the nature of the offence, this court proposes to examine the evidence of the victim first. 11. The victim has been examined by the prosecution as PW2. The evidence of the victim/PW2 is that, on 2.3.2012, while she was alone in her house, the accused-appellant came there. She was alone in her house as her both her parents are college teachers and were in the college. She was taken from her school, where she was studying in Class-VII, by her father and after dropping her in her house, he again left for his college. Therefore, she was alone in her house. The accused-appellant enquired about her parents and while she said that her parents were not there, he caught hold of her, kissed her, touched her breast and then brought her to the bed, put off the pant she was wearing, with a view to commit rape on her person. The victim/PW2 has also alleged that the accused-appellant had touched her private parts. It has also been alleged in her evidence that the accused-appellant gagged her mouth while brought to the bed with a view to commit rape on her person. In her statement under Section 164 of the Cr.PC also, the victim/PW2 appears to be consistent with her evidence, on oath, before the learned trial court on the core issue of kissing her, touching her breast, and also on the issue of attempting to commit rape on her person by putting off her pant. It has also come out from the evidence of PW2/victim that while she was laid on the bed by the accused-appellant with a view to commit rape, she raised alarm with loud voice calling Meghali, who is examined as PW4 in this case. It has also been stated in the evidence of the PW2 that the accused-appellant left the place of occurrence by crossing over the wall as she shouted for help from PW4 and another Nilakshi. 12. It has also been stated in the evidence of the PW2 that the accused-appellant left the place of occurrence by crossing over the wall as she shouted for help from PW4 and another Nilakshi. 12. The evidence of PW4 is that, on hearing the alarm, she came to the house of the victim/PW2 and noticed the accused-appellant fleeing by crossing over the wall of their house. The accused-appellant was, however, caught by the public there who gathered at the place of occurrence immediately after the occurrence, and subscribed to the fact of nabbing the accused-appellant by the public. 13. The evidence of PW7/investigating officer is of routine nature. He deposed from the stage of receipt of the FIR till completion of the investigation including laying of the charge-sheet. He has also deposed that he got the statement of the victim recorded under Section 164 of the Cr.PC by a Magistrate as well as in respect of the examination of the other witnesses under Section 161 of the Cr.PC. 14. The consistent evidence of the victim/PW2, supported by PW4, in respect of nabbing of the accused-appellant while fleeing away from the house of the victim crossing over the wall, prove the accusation leveled against the accused-appellant beyond all reasonable doubt. There is no such cross-examination of the witnesses, particularly, the victim, which assails her evidence even to doubt the veracity is not only of the fact but also of the circumstances. The evidence of PW2 appears to be inspiring confidence and there is no reason to disbelieve her evidence. Therefore, on the basis of the consistent prosecution evidence and unassailed evidence of victim/PW2, this court can confidently hold that the prosecution evidence is creditworthy and there is no reason at all to discard the evidence of the victim/PW2 whose evidence inspires confidence of this court, as stated above. 15. In this connection, the decision of the Honble Supreme Court, in the case of State of Himachal Pradesh vs. Sanjay Kumar alias Sunny, reported in (2017) 2 SCC 51 , in paragraph 31, can be usefully referred to. Paragraph-31 of this judgment of the Honble Supreme Court reads 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. Paragraph-31 of this judgment of the Honble Supreme Court reads 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. 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." 16. Therefore, the evidence on record, led by the prosecution, particularly the victim/PW2, inspiring confidence of this court and in view of the decision rendered by the Hon’ble Supreme Court, in the aforesaid case, this court does not find any merit in the appeal to interfere with the finding of the learned trial court convicting the accused-appellant. 17. Therefore, the evidence on record, led by the prosecution, particularly the victim/PW2, inspiring confidence of this court and in view of the decision rendered by the Hon’ble Supreme Court, in the aforesaid case, this court does not find any merit in the appeal to interfere with the finding of the learned trial court convicting the accused-appellant. 17. So far the sentence is concerned, considering the facts and circumstances of the case, this court is of the view that substantive sentence of imprisonment, if reduced to rigorous imprisonment for 4 months, retaining the fine with a default clause as was imposed by the learned trial court, will meet the ends of justice. 18. Accordingly, the sentence upon the accused-appellant is modified to rigorous imprisonment for 4 months and the fine amount is retained with the default clause as imposed by the learned trial court. 19. The period of detention of the accused-appellant in jail, during investigation and trial, be set off against the substantive sentence. 20. Accordingly, the appeal, is partly allowed. 21. Send down the LCR along with a copy of this judgment. 22. The accused-appellant is directed to surrender before the learned trial court within 1 (one) month from today to serve out the sentence.