Gauhati High Court
Abdul Kalam @ Kalamoni vs The State Of Assam on 19 July, 2012
Author: I A Ansari
Bench: I A Ansari
Page 1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA;
MANIPUR; TRIPURA; MIZOAM AND ARUNACHAL PRADESH)
Criminal Appeal 77 of 2004
Abdul Kalam @ Kalamoni,
Son of Late Abdul Jabbar of Sonapur,
P.S. Ratabari,
District Karimganj, Assam.
- Appellant
- Versus -
The State of Assam,
Represented by the Public Prosecutor,
- Respondent
BEFORE
THE HON'BLE MR. JUSTICE I A ANSARI
Advocates present:
For the Appellant : Mr. P.K.R. Choudhury,
Mr. Aslam Khan,
For the respondent : Mr. K. A. Majudar,
Addl. Public Prosecutor,
Date of hearing and judgment : 19.07.2012
JUDGMENT & ORDER
(ORAL)
This is an appeal against the judgment and order, dated 15.03.2004, passed by the Sessions Judge, Karimganj, in Sessions Case No. 61/1999, convicting the accused-appellant, Abdul Kalam @ Kalamoni along with one Mista Namasudra, under Sections 457 and 342 read with Section 34 IPC and also under Section 376(2)(g) IPC and sentencing him (the present appellant) to suffer, for his conviction, under Section 457 read with Section 34 IPC, rigorous Crl. Appeal 77 of 2004 Page 2 imprisonment for a period of two years with fine of Rs. 500/- and, in default in payment of fine, suffer rigorous imprisonment for a period of 6 months and also to suffer, for his conviction under Section 342 read with Section 34 IPC, simple imprisonment for 3 months and to further suffer, for his (present appellant's) conviction under Section 376 (2)(g) IPC, rigorous imprisonment for a period of 5 years with fine of Rs. 500/- and, in default thereof, undergo rigorous imprisonment for a period of 6 months, all these sentences of imprisonment having been directed to run concurrently making it clear that the provisions of set off, as embodied in Section 428 CrPC, shall remain available to the convicted persons.
2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:
(i) On 25.08.1993, at about 1-00 a.m., the present appellant, Abdul Kalam @ Kalamoni, along with one Mista Namasudra and some others, entered into the house of the informant (PW9) by breaking open the back-door of the informant's house and caught hold of the informant's recently married daughter-in-law (PW8) and tried to subject her to rape, whereupon PW8 raised hulla. On hearing PW8 crying out for help, her parents-in-law, namely, PW9, who is the informant, and the informant's wife (PW10), tried to enter into the room, wherein their daughter-in-law (PW8) was sleeping with her 10 years old sister-in-
law, but the miscreants prevented them (PW9 and PW10) from entering into the said room, and they (i.e., the miscreants) tied and kept them (PW9 and PW10) in another room and PW8 was, then, subjected to rape by the present appellant and others, who Crl. Appeal 77 of 2004 Page 3 had accompanied him. On the cries for help being raised by PW9 and 10, their neighbour, Ram Lal Namasudra (PW11), accompanied by some other neighbours, rushed to the house of PW9 and 10 and, on their coming into the house, the miscreants fled away. In the meanwhile, however, some of the miscreants, including the present appellant, Abdul Kalam @ Kalamoni, had been seen by PW9 and 10 in the focus of the torchlight, which the miscreants were using. The neighbours, who had so arrived, particularly, Ram Lal Namasudra (PW11), untied PW9 and 10, whereupon PW9 came to know about the incident of rape, which his daughter-in-law had been subjected to by the miscreants, who had entered into his house, the present appellant having been recognized in the focus of the torchlight by PW10, mother-in-law of the victim (PW8). Their daughter-in-law (PW8) was found lying in the courtyard.
(ii) At the time, when the occurrence took place, the husband of the victim (PW8) was away from his house in connection with his duties. PW9, thereafter, along with his daughter-in-law, went to Ratabari Police Station and reported the occurrence by lodging a written Ejahar. Treating the said Ejahar as First Information Report, Ratabari Police Station Case No. 184/93 was registered, under Section 457/342/376/34 IPC, against the said Bikul Namasudra, Mista Namasudra and Abdul Kalam (i.e., the present appellant).
(iii) During the course of investigation, the victim (PW8) was medically examined, her medical examination having revealed multiple injuries on her face and also on her breasts. It is pertinent to mention here that during the course of investigation, accused Crl. Appeal 77 of 2004 Page 4 Mista Namasudra also made judicial confession implicating himself and the present appellant, along with some others, in the alleged occurrence. On completion of investigation, police laid charge- sheet against three persons, namely, Abdul Kalam @ Kalamoni (i.e., the present appellant), Mista Namasudra and Bikul Namasudra. Out of these three charge-sheeted accused persons, Bikul Namasudra was shown to have absconded. The trial, therefore, proceeded against the present appellant and the said Mista Namasudra.
(iv) During trial, when charges, under Section 457, 342 and 376, read with Section 34 IPC, were framed against the accused-appellant and his co-accused, namely, Mista Namasudra, both of them pleaded not guilty.
(v) In support of their case, prosecution examined altogether 14 witnesses including the victim (PW8). The accused persons were, then, examined under Section 313 CrPC. In their examinations aforementioned, both the accused aforementioned denied that they had committed the offences, which were alleged to have been committed by them, their case being that of denial and accused Mista Namasudra having taken a further plea of animosity between his family and PW9 over a land dispute existing between PW9 and one Nripati, his (Mista Namasudra's) father having mediated in a reconciliation meeting held over the said land dispute and he (Mista Namasudra), though innocent, having been roped falsely, in the case, out of the animosity.
(vi) Having, however, found both the accused persons guilty of the offences charged with, the learned trial Court Crl. Appeal 77 of 2004 Page 5 convicted them accordingly and passed sentences against them as mentioned above.
(vii) Though both the convicted persons preferred appeals, the present appellant was allowed to go on bail, while the co- accused, Mista Namasudra, remained in jail and, having served out the sentence, he declined to press his appeal and his appeal was accordingly disposed of.
3. I have heard Mr. R. K. R. Choudhury, learned counsel for the appellant, and Mr. K. A. Majumdar, learned Additional Public Prosecutor, Assam, appearing on behalf of the opposite party.
4. While considering the present appeal, it is imperative to note, first, the evidence of the doctor (PW1), who had examined the alleged victim (PW8) on 26.08.1993, i.e., the following day of the day of the alleged occurrence. According to the evidence of PW1, on examining PW8, at the civil hospital, Karimganja, on 26.08.1993, he found following injuries on the person of PW8:-
"Multiple scratch marks on both sides of the face. Transversely placed four bruises over the left breast.
6 cm. X 0.1 cm, 6 cm X 0.1 cm, 10 cm. X 0.5 cm, 5 cm X 0.5 cm.
Obliquely placed bruises over the right breast. 10 cm. X 0.3 cm.
Vulva - no marks of any injury seen.
Vagina admits two fingers. No marks of injury inside seen. Vaginal swab test for spermatozoa did not reveal any live or dead sperms."
5. The defence, while cross-examining PW1, did not dispute the fact that the injuries aforementioned were found on the person of PW8. The fact, therefore, that the injuries, as described above, Crl. Appeal 77 of 2004 Page 6 were found on the person of PW8, remained undisputed and unchallenged.
6. Bearing in mind the fact that multiple injuries were found on the face and breasts of PW8, let me come, now, to the evidence of PW8. According to her evidence, though she knows accused Mista Namasudra, she does not know the other accused persons and the occurrence took place at about 1-00 a.m. at night, when she was on her bed.
7. Describing the occurrence, PW8 has deposed that on the night of the occurrence, when she was on her bed, accused Mista Namasudra and Bikul Namasudra (since absconder) entered into her house by breaking open the back-door, when her parents-in- law were in another room and her husband was away in Meghalaya, and, then, both the said accused persons, namely, Mista Namasaudra and Bikul Namasudra, caught hold of her. It is also in the evidence of PW8 that on being caught hold by the said two accused, she raised hulla, whereupon her parents-in-law came to her room, but the accused persons tied them up and, then, the accused persons committed rape on her. It is the further evidence of PW8 that on hulla being raised by her, their neighbours came to their house and the accused persons fled away and that, on the following day, her father-in-law took her to the police, she was medically examined, her statements were recorded by Magistrate, her garments, which she had been wearing at the time of commission of rape, were seized by the police by a seizure list, which is Exbt. 3, Exbt. 3(1) being her signature.
8. In her cross-examination, PW8 has clarified that she did not know as to who had tied up her parents-in-law meaning thereby Crl. Appeal 77 of 2004 Page 7 that she had not seen her parents-in-law being tied up and this Court has to, therefore, keep her evidence, given to the effect that her parents-in-law were tied up by the accused, excluded from the purview of consideration. What, however, remains, in the evidence of PW8, is that the accused-persons, as described hereinbefore, subjected her to rape. She has also clarified that there were altogether six accused persons involved in the occurrence. She has further deposed that she was, first, raped by accused Bikul Namasudra and, then, by Mista Namasudra.
9. Though it is in the evidence of PW8 that her sister-in-law, who was aged about 10 years old, was sleeping in the bed with her (PW8) at the time of the occurrence, her sister-in-law was not examined, as a witness, at the trial. It is, in this regard, extremely important to note that the Investigating Officer has admitted that he had not examined PW8's said sister-in-law. In such circumstances, the omission to examine PW8's said sister-in-law, cannot be taken to have demolished the evidence given by PW8 nor can her evidence be discarded.
10. Apart from the fact that nothing significant was elicited by the defence to show that the evidence given by PW8 was false or untrue, there was also no allegation of any animosity existing between the present appellant, Abdul Kalam @ Kalamoni, and the family members of PW8. There was, thus, no reason for PW8 or her family members to falsely implicate the present accused- appellant.
11. As pointed out by the defence, there is, however, one important contradiction in the evidence of PW8, the contradiction being that while, in her statement before the police, she (PW8) had Crl. Appeal 77 of 2004 Page 8 stated that she had recognized Bikul Namasudra in the focus of the torchlight, she, later on, deposed, in her evidence, at the trial, that she had recognized accused Bikul Namasudra in the light of the lantern. This contradiction cannot be taken, in my view, to have rendered the entire evidence of PW8 untrustworthy or unbelievable, when one notices that her evidence was recorded after about 10 years of the occurrence. Such contradiction, as pointed out hereinbefore, could have occurred due to the inability of the victim (PW8) to recollect the event correctly, which had taken place years ago.
12. Close on the heels of the evidence of PW8, her father-in-law (PW9) has deposed that on the night of the occurrence, accused Mista Namasudra and Bikul Namasudra, accompanied by others, entered into his dwelling house by breaking open the back-door of the house and, thereafter, the accused persons confined him and his wife (PW10) in another room, but in the focus of the torchlight, which the accused persons had been carrying with them, he (PW9) could recognize the accused persons.
13. As regards the occurrence, PW9 has deposed that on the night of the occurrence, his daughter-in-law was sleeping along with his (PW9's) daughter and, he (PW9) was sleeping with his wife in another room and, at midnight, he and his wife (PW10), suddenly, woke up hearing their daughter-in-law's cries. As they (PW9 and PW10) were about to rush to their daughter-in-law's room, they saw some persons in their room and, in no time, the persons tied him (PW9) and his wife(PW10), but, in the focus of the torchlight, which the accused persons were carrying with them, he (PW9) recognised Mista Namasudra and Kalamoni (i.e., the Crl. Appeal 77 of 2004 Page 9 accused-appellant) and, thereafter, hearing the hulla raised by him, his wife and his daughter-in-law, his neighbours, including Ram Lal Namasudra, arrived there and the accused persons fled away from the place of occurrence and, on arriving at the place of occurrence, his neighbours freed them (PW9 and PW10) from confinement by untying them and, later on, on being asked, his daughter-in-law told them that the accused had torn out her dresses and also caused some injuries on her person, whereupon he took his daughter-in-law to police station, in the morning, and lodged a written Ejahar (Exbt. 4).
14. In his cross-examination, PW9 has clarified that his son was not at home on the day of the occurrence and that his (PW9's) son came home after a week from Meghalaya, but he (PW9) did not state anything to his son about the incident. There is no major contradiction elicited by the defence. There is, therefore, no reason to disbelieve his evidence.
14. Broadly in tune with the evidence of her husband, PW10 has deposed that PW8 is her daughter-in-law and, on the night of the occurrence, the accused persons, namely, Mista Namasudra and Kalamoni (i.e., the present appellant) entered into the house by breaking open the back-door and, upon confining her and her husband (PW9) in a room by tying them up, the miscreants tortured her daughter-in-law in a different room. PW10 has also deposed that she could recognize both the accused aforementioned, namely, Mista Namasudra and Kalamoni (i.e., the present accused-appellant), in the focus of the torchlight, which the miscreants had been carrying with. It is also in the evidence of PW10 that hearing them shouting, their neighbours gathered at Crl. Appeal 77 of 2004 Page 10 the place of occurrence and Ram Lal Namasudra (PW11) released them from their confinement and, on being asked, their daughter- in-law told her that the accused persons had torn up her cloths and raped her and, on the following morning, her husband informed the police about the occurrence.
15. While considering the evidence given by PW10, it is significant to note that no contradiction, between her previous statement given before the police, and the evidence, given by her in the Court, could be pointed out by the defence. The evidence of PW 10 has, therefore, remained wholly intact and unshaken.
16. Turing to the evidence of PW11, I find that, according to his evidence, on the night of the occurrence, on hearing hulla raised from the house of PW10, he, along with his neighbours, came to the house of PW10 and released PW10 and his wife from confinement and, later on, PW8 was found lying in the courtyard and she (PW8) was medically examined with the help of the police.
17. Though it has been pointed out by the defence that, in the previous statement, made before the police, PW11 had not stated that he had released PW9 and PW10, I do not consider this omission to be such a vital omission that it would amount to contradiction. Thus, it is found that the evidence of PW11 substantially corroborates the evidence of PW8, PW9 and PW10.
18. Though there is judicial confession, which accused Mista Namasudra has made, I consider it unsafe to place reliance on the said judicial confession for two reasons, firstly, that no assurance had been given by the Judicial Magistrate to the accused, before recording the judicial confession, that even if he (accused Mista Namasudra) would choose not to make any judicial confession, he Crl. Appeal 77 of 2004 Page 11 would not be remanded to police custody and, secondly, the judicial confession of the said accused shows that he had unwillingly participated in the alleged occurrence; whereas the evidence, given by the witnesses, shows that he had willingly associated in the commission of the offence, namely, subjecting PW8 to rape.
19. What emerges from the above discussion is that even if the judicial confession of the said accused is kept excluded from the purview of consideration, which could not have, otherwise also, been made, in the light of the provisions of Section 30 of the Evidence Act, the basis of the conviction of the present appellant, the evidence of PW8, describing the occurrence of rape, to which she had been subjected to, as well as the clear and unshaken evidence of PW9 and PW10 that the present appellant was one of the associates of those, who had entered into their house and had subjected her daughter-in-law to rape, make it more than abundantly clear that on the night of 25.08.1993, the accused persons, including the present appellant, had entered into the house of PW9 by breaking open the back-door of his house, tied up PW9 and his wife and subjected his daughter-in-law (PW8) to rape. Further-more, in the absence of any believable and trustworthy evidence on record showing that the present accused-appellant was falsely implicated in the alleged commission of rape on PW8, there is no reason for this Court to infer, as noted by the learned trial Court, that PW9 and PW10 had falsely implicated their daughter-in-law in an incident of rape committed by not one but several persons and thereby indulge in publicly exposing the chastity and prestige of their daughter-in-law. Crl. Appeal 77 of 2004 Page 12
20. Situated thus, it becomes clear that the finding of guilt, which had been reached against the accused-appellant by the learned trial Court, under Sections 457, 342 and 376 (2)(g), were warranted by the evidence on record and the law relevant thereto. I find no infirmity, legal or factual, in the finding of guilt, reached by the learned trial Court, as against the present appellant.
21. This appeal, in the firm view of this Court, is wholly without merit and the same stands, therefore, dismissed.
22. The accused-appellant, namely, Abdul Kalam, is hereby directed to surrender, in the Court of the learned Chief Judicial Magistrate, Karimganj, within a month from today, in order to serve the sentence of imprisonment, which has been passed against him.
23. Before parting with this appeal, it is also placed on record that I have also considered the sentences, which have been passed against the accused-appellant, and I find that the learned trial Court has dealt with the appellant very leniently as far as the sentences were concerned. Hence, the sentences, not being unreasonable and excessive, do not call for any interference by this Court in exercise of its appellate jurisdiction.
24. Send back the LCR.
JUDGE rk Crl. Appeal 77 of 2004