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2020 DIGILAW 390 (GAU)

Anor Ali v. State Of Assam

2020-03-13

MIR ALFAZ ALI

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. NS Laskar, learned counsel for the appellant and Mr. H.K. Sarma, learned Addl. Public Prosecutor for the respondent. 2. This appeal is directed against the judgment and order passed by learned Sessions Judge, Hailakandi in Sessions Case No. 39/2007, whereby the learned Sessions Judge convicted the appellant under Sections 417 IPC and sentenced him to rigorous imprisonment for 1 (one) year and to pay fine of Rs. 10,000/- (Rupees ten thousand) with default stipulation. 3. A complaint was lodged by the alleged victim/complainant (PW-1) before the Chief Judicial Magistrate, alleging that the accused was his cousin brother and used to visit her residence frequently. The appellant proposed to marry her, which was turned down by the complainant. Thereafter on 09-11-2005 at about 10/11 O'' lock at night when the victim went out of the house to attend the call of nature, the appellant along with the other co-accused Namor Ali and Sipat Ali dragged her to the field by gagging her mouth, and the appellant committed rape on her twice and then he took her to the house of his maternal uncle, where all the four accused persons named in the complaint forced her to marry the appellant. She spent the night in the house of her maternal uncle, where also the accused forcibly subjected her to rape several times and she was also pressurized to marry the appellant. On the following day, the FIR named accused Namor and Sipat Ali took away the complainant on the pretext of resolving the matter after few days, but later on, they did not turn up and therefore, an FIR was lodged on 13.11.2005. The officer in charge of the police station did not take any action and therefore, the instant complaint was lodged before the Chief Judicial Magistrate on 05-01-2006. On the basis of the said complaint, the learned Magistrate took cognizance and having found prima facie materials of commission of offence triable by the Court of Sessions, committed the case to the learned Sessions Judge, Hailakandi. After commitment of the case, the learned Sessions Judge framed charges u/s 366/376 IPC, to which the appellant pleaded not guilty. 4. On the basis of the said complaint, the learned Magistrate took cognizance and having found prima facie materials of commission of offence triable by the Court of Sessions, committed the case to the learned Sessions Judge, Hailakandi. After commitment of the case, the learned Sessions Judge framed charges u/s 366/376 IPC, to which the appellant pleaded not guilty. 4. Four witnesses were examined by the prosecution in order to bring home the charges and on appreciation of the evidence learned Sessions Judge having found no material to substantiate the charges u/s 366/ 376 IPC acquitted the appellant of the charges u/s 366/376 IPC, instead, recorded conviction of the appellant u/s 417 IPC and awarded sentence, as has been indicated above. 5. Learned counsel for the appellant Mr. Laskar submits that when the learned Sessions Judge rejected the evidence of the prosecution and acquitted the appellant of the charges u/s 366/376 IPC, no conviction under Section 417 IPC could have been recorded on the basis of the same set of evidence, and more particularly in absence of any specific evidence that the appellant made any promise of marriage and thereby obtained consent of the victim fraudulently for sexual intercourse, which caused harm to her body, mind and reputation. 6. The victim, who was examined as PW-1 deposed, that the accused/appellant used to visit her house with assurance to marry her and on such assurance, he committed sexual intercourse with her and consequently, she became pregnant. She (PW-1) further stated that one day, while she was coming out of her house to attend the call of nature, at about 10 O'' clock at night, the appellant forcibly took her to the house of her maternal uncle, Md. Basiruddin, where the appellant committed sexual intercourse with her. She also stated that the accused had sex with her on several occasions. Her father went to the house of Basir, where the appellant assured, that he would sent his father and elder brother to finalize the marriage, but later on he did not come. Though she stated in her evidence in court that the accused/appellant used to visit her house and committed sexual intercourse upon assurance and promise to marry her, such evidence in court appears to be quite contradictory to her statement recorded by the Magistrate u/s 200 CrPC as well as the complaint lodged by herself. Though she stated in her evidence in court that the accused/appellant used to visit her house and committed sexual intercourse upon assurance and promise to marry her, such evidence in court appears to be quite contradictory to her statement recorded by the Magistrate u/s 200 CrPC as well as the complaint lodged by herself. In the complaint and also the statement on oath recorded by the Magistrate during the course of enquiry u/s 200 CrPC she did not tell that accused committed sexual intercourse with her upon assurance and promise to marry her. Rather she stated specifically that the accused/appellant kidnapped her while she went out to attend the call of nature and committed rape on her. Thereafter she was dragged to the house of her maternal uncle, where also she was subjected to rape forcibly. It was also her version both in the complaint and also during the course of enquiry u/s 200 CrPC, that the accused forcibly kidnapped her and committed rape on her. Therefore, her version about the occurrence appears to be contradictory and also mutually destructive, and as such, in my considered view, no credibility can be attached to the oral testimony of PW-1 (victim) that the accused had sex with her on assurance to marry her. 7. Pw-2, Basir Uddin, who happens to be the maternal uncle of both accused and the victim, testified that in the evening 2/3 years back, when he came home at night his wife told him that the accused brought the victim to their house. Upon enquiry made by him, his daughter told that they have come with the intention to marry. He also stated that thereafter he called the parents of the victim, however, the accused/appellant left the house. 8. Pw-3, Manik Uddin, another maternal uncle of the victim and appellant stated, that the accused/appellant and the victim came to their house and stayed for the night and on the next morning they informed the relatives of the victim and the guardians of both the sides to fix the date of marriage but ultimately the marriage did not take place and the appellant left the house. During cross-examination, he stated that at the time of negotiation of marriage by the parents, the appellant was not present, nor his consent was taken for the marriage. 9. During cross-examination, he stated that at the time of negotiation of marriage by the parents, the appellant was not present, nor his consent was taken for the marriage. 9. Pw-4, Nurul Hoque stated, that while he was coming from the market, he saw the victim in the field along with a boy. He (PW-4) further stated that though, he could identify the victim, he could not identify the boy, who was with the victim. PW-4 also stated that the person, who was seen by him with the victim was not the present appellant. 10. Although the PW-2 and PW-3 stated that the accused and the PW-1 went to their house with the intention to marry and subsequently the appellant disappeared, such evidence of the PW-2 and PW-3 appears to be contrary to the statement of the PW-1, inasmuch as, according to PW-1, the appellant forcibly took her to the house of the PW-2 and PW-3. It is also evident from the testimony of pW-2 & PW-3 that they made endeavour to arrange the marriage, but when there was talk of marriage between the guardians of the victim, the accused was not present there and he also did not give his consent. The oral testimony of the PW-4 that he had seen the victim along with another boy in the field at night also creates doubt about the testimony of the PW-2 and PW-3 that the accused and the PW1 together went to the house of the PW-2 and PW-3 with the intention to perform marriage. What is therefore, evident from the testimony of all the above prosecution witness is that although PW-2, PW-3 and PW-4 stated, that accused went with the victim to their house, there is nothing in their evidence to support the prosecution version, that the accused made any promise or gave assurance to marry the victim or committed intercourse with her upon such promise, which resulted in her pregnancy. Therefore, only testimony to substantiate the prosecution case was the oral testimony of PW-1, the victim herself. Therefore, only testimony to substantiate the prosecution case was the oral testimony of PW-1, the victim herself. As already indicated above, the testimony of the victim as to promise or assurance of marriage given by the accused and having sex with her upon such assurance or promise was hardly worthy of inspiring confidence, reason being that such statement was made by her for the first time in court, that too, contradicting her previous statement, both in the complaint as well as during her enquiry u/s 200 CrPC, wherein she clearly stated that the accused forcibly kidnapped her and subjected her to sexual intercourse forcibly against her will. Once the evidence of PW-1, the victim is disbelieved, prosecution is literally left with no evidence to support the conviction of the accused u/s 417 IPC and this aspect of the matter escaped the notice of the learned Sessions Judge while recording conviction of the appellant u/s 417 IPC after acquitting him of the charges u/s 366-A/376 IPC on the same set of evidence. 11. When the learned Sessions Judge disbelieved the PW-1 (victim), having found her testimony unworthy of trust and acquitted the appellant of the charges u/s 366-A/376 IPC, appellant could not have been convicted u/s 417 on the same evidence, i.e., the sole testimony of the victim. Though the principle "falsus in uno falsus in omnibus" is not a rule of evidence in India, when two self contradictory and mutually destructive version is put forward by a witness rendering him unworthy of trust and one of the version, which tend to support the prosecution case is rejected because of glaring inconsistency in the evidence, the other version also cannot be relied upon for the same reason and both the version has to be rejected. This vital aspect of the prosecution evidence escaped the notice of the learned Sessions Judge. In the above facts and circumstances, I find no convincing evidence to prove the ingredients of cheating as defined in Section 415 IPC. In absence of the evidence of cheating that the accused/appellant promised or assured the victim to marry and committed sexual intercourse with her by obtaining the consent fraudulently with false promise, resulting in her pregnancy causing harm to her body, mind and reputation, no conviction could have been recorded for an offence u/s 417 IPC. In absence of the evidence of cheating that the accused/appellant promised or assured the victim to marry and committed sexual intercourse with her by obtaining the consent fraudulently with false promise, resulting in her pregnancy causing harm to her body, mind and reputation, no conviction could have been recorded for an offence u/s 417 IPC. Therefore, the conviction and sentence of the appellant u/s 417 IPC cannot be sustained. Accordingly, the conviction and sentence of the appellant is hereby set aside. Resultantly, the appeal filed by the appellant stands allowed. 12. Send back the LCR.