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2018 DIGILAW 613 (GAU)

MD ABDUL ALI v. STATE OF ASSAM

2018-04-09

ACHINTYA MALLA BUJOR BARUA, AJIT SINGH

body2018
JUDGMENT AND ORDER : AJIT SINGH, J. 1. The two appellants -Abdul Ali and Samir Ali – have been convicted under Section 376(2)(g) of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.50,000/-each, or in default, to undergo six months rigorous imprisonment. By the same judgment, the trial court has acquitted co-accused Joynal Abedin of the charge under Section 120B of the Indian Penal Code. One another co-accused Mustafizur Rahman has also been discharged of the offence under Section 120B of the Indian Penal Code by the trial court under Section 227 of the Code of Criminal Procedure. 2. On the date of incident, the prosecutrix was aged 20 years and a teacher in the Chikanmati Tea Estate Line No.2 School under Dalgaon Sialmari Elementary Education Block of District Darrang. 3. According to the prosecution case, the prosecutrix had two friends, namely, Marami Das (PW-6) and Jitumani Deka. All of them were teachers. The prosecutrix taught in the school mentioned above, whereas her friends taught in another school in the same Tea Estate, which was at a distance from the school of prosecutrix. The prosecutrix and her two friends made it a point to travel together for their schools every morning in a bus. They would get down from bus at the gate of Tea Garden and then walk together upto a particular point from where the prosecutrix would walk for one more kilometer to reach her school, while her friends would ride bi-cycle to reach their school. They followed the same practice, while returning home from their schools and would also co-ordinate their timing, in this regard, by talking over their mobile phones. 4. On the fateful day, i.e. 1/10/2013, after the school time was over, the prosecutrix while returning could not be contacted by her friends over her mobile phone as it was reporting “not reachable”. The friends of the prosecutrix, therefore, without waiting for her, boarded the bus and proceeded for their home. In the meantime, the prosecutrix, while walking alone towards the gate of Tea Garden, around 1:45 PM, was intercepted by the appellants. The appellants then threatened her with a sharp edged weapon and committed gang rape on her turn by turn. They also took the mobile handset of the prosecutrix and threw its SIM card leaving her in a helpless condition. The appellants then threatened her with a sharp edged weapon and committed gang rape on her turn by turn. They also took the mobile handset of the prosecutrix and threw its SIM card leaving her in a helpless condition. After committing gang rape, when the appellants left, the prosecutrix somehow managed to reach the garden gate and informed the gateman-Mazibur Rahman (PW2), who, in turn, informed her parents by his mobile phone. Mazibur gave shelter to the prosecutrix in his house situated near the garden gate. The prosecutrix also telephoned her friends -Marami Das and Jitumani Deka about the incident. They immediately came back to the prosecutrix from midway. After sometime, the parents of the prosecutrix also arrived and then they all went to Dalgaon Police Station where the prosecutrix lodged First Information Report Exhibit 1 about the incident of gang rape on her. The Officer In-charge of the Police Station -Shankar Das (PW-9) responded by rushing to the place of occurrence. He seized the undergarment of the prosecutrix vide exhibit-4 and sent it for forensic examination. He also seized her hair pin and one top cover of her chappal from the place of occurrence vide Exhibit-5 in the presence of Nila Kanta Saharia (PW-3). He even referred the prosecutrix for medical examination. Dr. Anjana Bordoloi (PW-5) found injuries with fresh blood on the private part of prosecutrix. She, in her medical report Exhibit 5, confirmed that prosecutrix was subjected to sexual intercourse. The report exhibit 6 of the Forensic Science Laboratory prepared by Smti Renu Borah Handique (PW-8) confirmed the presence of human spermatozoa and blood on the undergarment of the prosecutrix. 5. Appellants – Samir Ali and Abdul Ali were arrested on 12.10.2013 and 14.10.2013 respectively. Samir Ali also led the police to the house of Kasem Ali from where Mobile Phone of the prosecutrix exhibit 9 was seized. Both the appellants were put for identification on 23.10.2013 in the Test Identification Parade held by Nilakshi Lahkar (PW-7), Munsiff No.1, Darrang. The prosecutrix identified both the appellants. The memorandum of Test Identification Parade is Exhibit-5. 6. The Station Officer -Sankar Das -after completing the investigation submitted charge sheet Exhibit-10 against the appellants under Sections 341/376D and 379 of the Indian Penal Code. The prosecutrix identified both the appellants. The memorandum of Test Identification Parade is Exhibit-5. 6. The Station Officer -Sankar Das -after completing the investigation submitted charge sheet Exhibit-10 against the appellants under Sections 341/376D and 379 of the Indian Penal Code. He also submitted charge sheet under Section 120(B) of the Indian Penal Code against Joynal Abedin and Mustafizur Rahman on the allegation that they had conspired with the appellants for committing the crime as the prosecutrix had some dispute with Mustafizur Rahman regarding non-supply of mid-day meal in the school. But, as mentioned above, Mustafizur Rahman was discharged by the trial court. 7. During trial, the appellants pleaded false implication. But the trial court relying upon the evidence of the prosecutrix as well as her medical report, convicted and sentenced the appellants as aforesaid. The trial court, however, acquitted co-accused Joynal Abedin because no evidence of conspiracy was proved against him. 8. It is argued on behalf of the appellants that the prosecutrix is not a reliable witness and her evidence cannot be the sole basis for their conviction. No independent witness had seen the occurrence and conviction on the basis of sole testimony of the prosecutrix alone is not safe. Besides, the identification of the appellants by her in the Test Identification Parade is also doubtful inasmuch as it was held after 23 days of the occurrence. Further, there was no injury in any part of the body of the prosecutrix showing resistance by her and as such the allegation of rape is doubtful and not proved beyond reasonable doubt. The learned public prosecutor has vehemently opposed the submissions and argued that the evidence of prosecution is sufficient to convict the appellants more so when the commission of rape on her is proved by medical evidence. 9. The prosecutrix has deposed that on the day of occurrence, she was coming alone from her school at about 1:30 PM to board the bus and on way, she saw the appellants cutting grass. At that time, there was no one but for the appellants. As she passed by them, appellant Abdul Ali gagged her from behind and appellant Samir Ali held her legs. Both of them then pushed her into a drain and threatened to kill if she would raise an alarm. At that time, there was no one but for the appellants. As she passed by them, appellant Abdul Ali gagged her from behind and appellant Samir Ali held her legs. Both of them then pushed her into a drain and threatened to kill if she would raise an alarm. According to the prosecutrix, she saw Samir Ali hiding something under his clothes and she thought it was a dao. The prosecutrix has also deposed that the appellants demanded money and took her inside the garden where Samir Ali removed her clothes and committed rape on her. At that time, Abdul Ali had gagged her. Thereafter, Abdul Ali committed rape on her. The prosecutrix has further deposed that both of them had also snatched her mobile phone and threw its SIM Card away to make her helpless. According to her evidence, the appellants after committing gang rape on her fled from the scene of occurrence and then she somehow managed to reach the garden and met the Chowkidar-Mazibur there, to whom she narrated the incident. The prosecutrix then contacted her parents and her two friends (referred above) over phone. The prosecutrix during her cross-examination remained firm in her evidence. She even confirmed in her evidence that she identified both the appellants in the Test Identification Parade. 10. The evidence of the prosecutrix that she was gang raped is corroborated by the evidence of Dr. Anjana Bordoloi, who, after examining her, found evidence of sexual intercourse and injuries on her private parts. Not only this, the evidence of prosecutrix is further corroborated by the forensic evidence of Smti Renu Borah Handique who has deposed that she found human spermatozoa and blood in her undergarment (panty). The friend of prosecutrix Marami Das has deposed that on the day of occurrence when she could not contact the prosecutrix while returning from school, she along with Jitumani Deka boarded the bus without her and when they reached Kharupetia, they received a call from the prosecutrix. Marami has deposed that since the prosecutrix was crying on phone, she scenting some evil, immediately returned to the garden gate along with Jitumani Deka where they found the prosecutrix. According to the evidence of Marami Das, the prosecutrix then narrated the incident of being gang raped by two persons. The evidence of prosecutrix is thus corroborated by the evidence of Dr. According to the evidence of Marami Das, the prosecutrix then narrated the incident of being gang raped by two persons. The evidence of prosecutrix is thus corroborated by the evidence of Dr. Anjana Bordoloi, Smt. Renu Borah Handique and Marami Das that she was gang raped by two persons. 11. The prosecutrix was not known to the appellants prior to the date of incident. She has, therefore, no reason to falsely implicate them. Rather, during cross-examination, the prosecutrix has deposed that she never saw the appellants prior to the date of incident. The prosecutrix has identified both the appellants in the Test Identification Parade as the persons who had committed gang rape on her. Munsiff No.1-Nilakshi Lahkar in his evidence confirmed that the prosecutrix identified the appellants amongst 45 persons who were of same age group and similarly dressed and of same appearance. The occurrence took place in broad day light and as such, the prosecutrix could clearly see the appellants closely. In her cross examination, the prosecutrix testified that both of them had raped her turn by turn which lasted for 45 minutes. She also testified that Samir Ali raped her first for 10 minutes and then Abdul Ali raped her for the same duration. So, the prosecutrix had enough time to identify both of them without committing any mistake. The Test Identification Parade was also conducted as per law within few days after the arrest of the appellants. There is nothing on the record to even remotely suggest that the appellants were shown to the prosecutrix before conducting the Test Identification Parade. Therefore, not the slightest doubt remains that none but the appellants committed gang rape on the prosecutrix. It is also clear from the evidence of prosecutrix that the appellants had overpowered her by gagging her mouth. She, therefore, could not cry for help and resist. She may thus not have any external injury, but she had injuries on her private parts. We find the testimony of prosecutrix firm and consistent and hence her evidence can safely be the basis for the conviction of appellants. 12. Besides, the Investigating Officer – Shankar Das – has testified that Samir Ali led the police to the house of Kasem Ali from whom the mobile phone of the prosecutrix was discovered and seized. We find the testimony of prosecutrix firm and consistent and hence her evidence can safely be the basis for the conviction of appellants. 12. Besides, the Investigating Officer – Shankar Das – has testified that Samir Ali led the police to the house of Kasem Ali from whom the mobile phone of the prosecutrix was discovered and seized. This further leads to an inference that both the appellants were the perpetrators of the crime and the trial court has rightly convicted them. 13. The appellants have been convicted and sentenced under Section 376(2)(g) of the Indian Penal Code which provides punishment for gang rape. The appellants have been found guilty of committing gang rape on 1.10.2013. But on that date, Section 376(2)(g) had already been substituted by Act No.13 of 2013 for Section 376D which provides more stringent punishment in cases of gang rape. Apparently, on the date, when appellants committed the offence of gang rape, Section 376(2)(g) was not in existence and instead, Section 376D had been enacted. The trial court, therefore, ought to have framed the charge against the appellants for an offence under Section 376D instead of 376(2)(g) of the Indian Penal Code, more particularly, when the charge sheet itself was filed for an offence under Section 376D. Be that as it may, since no prejudice has been caused to the appellants, we modify their conviction to an offence under section 376D in place of 376(2)(g) of the Indian Penal Code. We, however, having regard to the fact that appellants are first offenders without previous criminal antecedents, reduce their sentence from life imprisonment to imprisonment for 20 (twenty) years, but the sentence of fine, as passed by the trial court, is affirmed. 14. With the above modification of sentence, the appeal is partly allowed.