Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 322 (GAU)

Furkaw Ali v. State of Assam

2018-02-20

MIR ALFAZ ALI

body2018
JUDGMENT : 1. Heard Mr. Anisul Alom for the appellant and Mrs. S. Jahan, Addl. P.P. for the State and Mr. B.N. Gogoi for the informant. 2. This appeal is directed against the judgment and order dated 15.12.2015 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 23/2015. By the said judgment, learned Sessions Judge convicted the appellant under section 366A/376(2) and 372, IPC and sentenced him to imprisonment for 10 years on each count and to pay fine of Rs. 10,000 with default stipulation. 3. As per prosecution case, the present accused-appellant was residing in a rented house of one Najim Ali near the house of the informant. On the day of occurrence, the present appellant and his wife kidnapped the victim by inducement and thereafter in spite of all effort, he could not trace out the whereabouts of the victim. Ultimately on 18.2.2009 the victim somehow could manage to get herself freed from the clutch of the accused and came home. On coming home, the victim informed, that the accused-appellant took her to Delhi and sold out her to a brothel. When she refused to stay there, she was subjected to physical torture. The accused brought her to Dimapur and tried to sell her again. However, knowing the intention of the accused, she could manage to escape from Dimapur with the help of a girl and reached home. Having came to know about the occurrence, the father of the victim lodged the FIR (Ext.1). On the basis of the said FIR, police registered a case and commenced investigation. During investigation, the victim was examined by doctor, her statement was recorded under section 164, Cr.PC and eventually charge sheet was laid against the present appellant under section 366A/376(2) and 372, IPC. 4. The offence being exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions. 5. In course of trial, learned Sessions Judge framed charges under section 366A/376(2) and 372, IPC against the accused-appellant, to which he pleaded not guilty. Nine witnesses were examined by the prosecution to establish the charges. On appreciation of evidence, learned trial court having found the charges proved, convicted the appellant and awarded sentence as indicated above. 6. Aggrieved by conviction and sentence, the accused-appellant, has preferred the instant appeal. 7. Nine witnesses were examined by the prosecution to establish the charges. On appreciation of evidence, learned trial court having found the charges proved, convicted the appellant and awarded sentence as indicated above. 6. Aggrieved by conviction and sentence, the accused-appellant, has preferred the instant appeal. 7. I have considered the submissions made by the learned counsel for both the parties and also the evidence and materials brought on record. 8. Mr. A. Alom, learned counsel representing the appellant, submits that the prosecution case was banking on the sole testimony of the victim, who was not at all reliable and, therefore, conviction on the basis of such unreliable testimony of the victim (PW-3) is not sustainable. Learned counsel further contends that age of the victim could not be proved by prosecution and entire prosecution evidence suggested that the victim was a consenting party and thereby ruled out the commission of any offence. In support of his submission, Mr. Alom placed reliance on the following decision: 1. State of Madhya Pradesh v. Munna, (2016) 1 SCC 696 2. Suraj Mai v. State of Delhi, (1979) 4 SCC 725 3. Diganta Majumdar v. State of Assam, (2009) 3 Gau LR 371; (2010) 1 Gau LT 731 9. Supporting the impugned judgment, learned counsel Mr. B.N. Gogoi, representing the informant, submits that there was no irregularity in the impugned judgment requiring interference by this court. Learned counsel further contended that after the occurrence, the victim has become mentally unsound because of the shock and trauma. 10. Out of the 9 witnesses examined by the prosecution, PW-6 and PW-7 pleaded ignorance about the occurrence. PW-2 was the doctor, who examined the victim and PW-8 and PW-9 were the investigating officers. Parents of the victim were examined as PW-1 and PW-5 respectively and another independent witness was examined as PW-4. PW-1, PW-4 and PW-5 appear to be reported witnesses as according to them, they were told about the occurrence by the victim. The victim herself was examined as PW-3. Therefore, essentially relying on the sole testimony of the victim, learned trial court convicted the accused-appellant. 11. PW-3, the victim stated in her evidence in court that the accused-appellant asked her to go to his native home at Gonabori, but she refused to go without permission of her parents. The victim herself was examined as PW-3. Therefore, essentially relying on the sole testimony of the victim, learned trial court convicted the accused-appellant. 11. PW-3, the victim stated in her evidence in court that the accused-appellant asked her to go to his native home at Gonabori, but she refused to go without permission of her parents. On the day of occurrence, while her mother was busy in a meeting, the accused told her, that her mother permitted her to go to the house of the accused. Accordingly she went to the house of the accused at village-Gonabori, where she was kept for one week and during that one week, the accused slept with her against her will and committed sexual intercourse with her; though, she tried to prevent the accused, but could not succeed. She stated to have reported the matter to the wife of the accused, but she did not pay any heed. She requested the accused to take her back home, but the accused took her to Guwahati and from Guwahati she was taken to Delhi by train. At Delhi, the accused handed over her to a woman, who kept her confined in a room and forced her to do prostitution and when she refused, she was assaulted. After 25 days, the said woman called the accused over phone and handed her. over to the accused-appellant. Thereafter, the accused brought her from Delhi by train and took her to Dimapur, where the accused kept her in a hotel and again forced her to indulge in prostitution with various persons. When she raised objection, she was assaulted by the accused severely. Ultimately, she happened to meet a girl there, who helped her to flee from the hotel and with the help of the said girl, who also purchased ticket for her, she came home. 12. During cross-examination, the victim stated that the wife, two children and mother of the accused were staying in his house. She further admitted that she did not tell anybody about the accused forcibly committing sexual intercourse with her. It was also elicited that after keeping her in the house of the accused for 7 days, she was brought by the accused to Guwahati and from the house of the accused she came some distance on bicycle with the accused. She further admitted that she did not tell anybody about the accused forcibly committing sexual intercourse with her. It was also elicited that after keeping her in the house of the accused for 7 days, she was brought by the accused to Guwahati and from the house of the accused she came some distance on bicycle with the accused. She also stated that she met many persons while boarded the vehicle, but did not state anybody about the incident. Even in the railway station at Guwahati she did not raise any alarm. She also stated that in the train also, she happened to met many passengers, but she did not tell anything to anyone. She also stated that while she was brought to Dimapur from Delhi, at that time also she did not tell anything to anybody. 13. The statement of this witness was recorded under section 164, Cr.PC, which was proved as Ext.3. In her statement under section 164, Cr.PC, she stated that she went to the house of the accused to pay a social visit and the accused kept her there for 7 days. She further stated that the accused forcibly committed rape on her. She raised hue and cry and then the accused promised to marry her. After one week, the accused assured that she would be taken back to her home, but instead of taking her home, the accused took her to Guwahati and boarded a Delhi bound train. She also stated that she stayed for 15 days in the house of a friend of the accused at Delhi, where the accused forced her to do prostitution. Every day, the accused used to bring ? persons and forced her to have sex with them. When she refused, she was beaten up by the accused. While she was constantly pleading to bring her back, finally the accused brought her to the railway station and brought her to Dimapur. At Dimapur also, the accused brought three persons and forced her to have sex with them. When she refused, the accused assaulted her physically. 14. It is no doubt true the statement recorded under section 164, Cr.PC is not substantive evidence, but such statement as previous statement can be used for twine purpose of contradicting or corroborating the maker. At Dimapur also, the accused brought three persons and forced her to have sex with them. When she refused, the accused assaulted her physically. 14. It is no doubt true the statement recorded under section 164, Cr.PC is not substantive evidence, but such statement as previous statement can be used for twine purpose of contradicting or corroborating the maker. When the statement of the victim recorded under section 164, Cr.PC and her evidence before court are placed in jasta position, it appears that she had stated two different stories. In her evidence in court, she stated that accused handed over her to a woman, who happens to be the owner of a brothel, where she was kept for 25 days and forced to indulge in prostitution. After 25 days, the said woman called the accused over phone and handed her over to the accused. Whereas in her previous statement, she stated that she stayed at Delhi for 15 days only in the house of a friend of the accused, where the accused himself used to bring ? persons everyday and forced her to have sex with them. 15. Above two versions of the victim (PW-3) at different stages appears to be totally contradictory and mutually destructive and such material contradiction and mutually destructive version render the prosecution story of victim having been sold and handed over to brothel owner hardly convicting. The Apex Court in Surajmal (supra) held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. 16. This apart, from the medical evidence as deposed by the doctor (PW-2), who examined the victim immediately after coming back home from Dimapur, it appears that there was no sign of recent vaginal penetration nor any injury over the private part. It was also stated by the doctor that there was no any sign of recent injury in her private part, specially on breast, perineum and vaginal area. Such medical evidence also negates the possibility of the victim being subjected to forcible sexual intercourse by multiple persons. It was also stated by the doctor that there was no any sign of recent injury in her private part, specially on breast, perineum and vaginal area. Such medical evidence also negates the possibility of the victim being subjected to forcible sexual intercourse by multiple persons. In her evidence in court, she stated that she was kept in a hotel where she was forced to indulge in prostitution, but in the statement under section 164, Cr.PC, she has not stated regarding her putting in a hotel. According to her evidence in court, the accused took her to his house stating that he obtained permission from her mother, for taking her to his house, whereas in her statement under section 164, Cr.PC, she stated that she went to pay social visit to the house of the accused. In her statement under section 164, Cr.PC, she stated that when the accused committed sex with her in spite of her refusal, she raised hue and cry and the accused promised to marry her and continued to have sex, but during evidence in court, she did not state about raising any hue and cry. Rather, she stated that she complained before the wife of the accused, but the wife did not pay any heed. 17. It is evident from her deposition that the accused took her to his house, kept her for 7 days and committed sexual intercourse forcibly against her will and thereafter she was taken to railway station on bicycle. She met several persons and she had ample opportunity to raise alarm, but she did not do so. When she was taken to Delhi by train, admittedly she came across lots of people, but nowhere she raised any alarm nor made any attempt to do anything to attract the attention of the people she came across. Though, she stated that she was forced to indulge in prostitution in Delhi and on her repeated pleading, she was brought back from Delhi, surprisingly at the time of return also she did not raise any alarm nor made any complaint to anyone, though she came across so many people in train. Even after arriving at Guwahati, when she was again taken towards Dimapur, she did not raise any alarm, nor made any complaint to anybody. Even after arriving at Guwahati, when she was again taken towards Dimapur, she did not raise any alarm, nor made any complaint to anybody. Above conduct of the victim strongly suggests that she accompanied the accused with consent and the sexual activity, if any with the accused was also consensual. 18. This court in Diganata Majumdar (supra) acquitting the accused, held, that there was enough opportunity for the victim to raise alarm and also to flee from the place of occurrence. She having not done so, her evidence did not inspire confidence and accordingly the conviction and sentence was set aside. 19. Evidently, the mother, wife and children of the accused were residing in his house and the victim made complaint before the wife of the accused, but the wife did not pay any heed and the accused continued to have sex for several days with her against her will. Such evidence of the victim appears to be highly improbable and absurd, inasmuch as, it is very difficult to believe that any woman will allow her husband to have sex with a woman in her house in presence of other family members, that too against the will of the victim. 20. From the evidence of the doctor (PW-2), it appears that the victim was examined on 20.2.2009, i.e., before lodging the FIR on 21.2.2009. According to the doctor, X-ray of the knee joint, elbow joint, shoulder joint and wrist joint were done as per his advice, but as the reports were not produced, he could not ascertain the age of the victim. However, the victim stated her age to be 16 years. Testimony of the victim with regard to her own age was merely a hear say one and not admissible. What therefore, follows is that there was no legal evidence regarding the age of the victim. It is pointed out by the learned counsel for the respondent that the report of medical test of the victim was available in the record showing the age of the victim as 19 years. But, the said report though collected by police and was available on record was not exhibited or proved in court by prosecution or defence. 21. It is pointed out by the learned counsel for the respondent that the report of medical test of the victim was available in the record showing the age of the victim as 19 years. But, the said report though collected by police and was available on record was not exhibited or proved in court by prosecution or defence. 21. The Apex Court in Munna (supra) observed that when prosecution failed to prove beyond reasonable doubt that the age of the victim was less than 16 years at the time of incident, it can be held that she was above 16 years of age and was competent to give her consent. Prosecution having failed to prove the age of the victim to be below 18 years and the material available on record as indicated above suggesting the age of the victim to be above 18 years, there was no scope for the trial court to presume the age of the victim to be below 18 years. This apart, even going by the well settled principle in the administration of criminal justice, that when there were two views in the criminal proceeding, the one which favours the accused has to be accepted and not the one favours the prosecution. The age of the victim in the facts and circumstances of the case could not be held as below 18 years. Thus, from the conduct of the victim as indicated above, coupled with the evidence with regard to her age, there could be no escape from the conclusion that she went to the accused out of her own will and the sexual activities, if any was also consensual. 22. It is no doubt true that in case of sexual assault, conviction can be based on the sole testimony of the victim and the court need not seek for corroboration to the testimony of the victim of sexual assault. At the same time, it is also equally true that, such witness has to withstand the test of credibility and reliability. When the testimony of the victim is believable and inspiring confidence of the court, no further corroboration is necessary. At the same time, it is also equally true that, such witness has to withstand the test of credibility and reliability. When the testimony of the victim is believable and inspiring confidence of the court, no further corroboration is necessary. When the sole testimony of the victim is found to be unbelievable and unworthy of inspiring confidence, no conviction can be based on such sole testimony of the victim, for the simple reason, that the fundamental principle of criminal justice that prosecution has to prove the guilt of the accused beyond reasonable doubt equally applies to the offence of sexual assault too. In view of the material contradiction in the evidence of the victim as indicated above and her conduct, the victim (PW-3) can by no stretch of imagination to be categorized as a witness to be fully relied upon. 23. Evidently, the victim, a young girl was missing for one and half months, but surprisingly, no FIR was lodged. It is only when the victim came back home after one and half month, the father of the victim lodged the FIR. Neither any explanation has been given for such inordinate delay in lodging the FIR nor any reason is discernible from the evidence and material to justify the inaction of the parents of the victim for not filing the FIR for one and half months until the PW-3 came back. This also appear to be a suspicious circumstances casting a reasonable doubt on the veracity of the prosecution story. When no credibility could be attached to the evidence of the victim being the sole witness and there was no other reliable evidence before the court to support the prosecution case, and the inordinate delay of one and half month in lodging the FIR remained unexplained, prosecution cannot be held to have discharged its burden to prove the guilt of the accused beyond reasonable doubt and, therefore, the impugned judgment of conviction and sentence cannot be sustained. Accordingly, the appeal is allowed and the conviction and sentence are set aside. The accused-appellant be released and set at liberty forthwith, if not required in any other case. 24. Send down the LCR.