Gauhati High Court
Md. Jil Haque vs The State Of Assam on 18 April, 2016
Equivalent citations: 2016 CRI. L. J. 2822, (2016) 163 ALLINDCAS 612 (GAU), (2016) 3 CRIMES 327, (2016) 3 GAU LT 299, (2019) 1 GLR (NOC) 24
Author: A.K. Goswami
Bench: A.K. Goswami
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Crl. Appeal No. 192/2007
Md. Jil Hoque,
Son of Md. Gendu Sheikh,
Vill - Bamun Para,
P.S. Mankachar,
District-Dhubri, Assam.
.........Appellant
- Versus -
State of Assam.
........Respondent
For the Appellant : Mr. M.U. Mahmud,
Ms A Saikia,
Mr. M. Khan,
Mr. A.T. Sarkar,
Mr. S.K. Roy,
Advocates.
For the Respondent : Mr. D. Das,
Additional Public Prosecutor, Assam.
Date of hearing : 18.4.2016.
Date of judgment : 18.4.2016
BEFORE
HON'BLE MR. JUSTICE A.K. GOSWAMI
JUDGMENT AND ORDER
(ORAL)
Heard Mr. M. Khan, learned counsel for the appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam.
2. This appeal is directed against the judgment dated 26.02.2007 passed by the learned Sessions Judge, Dhubri, in Sessions Case No.172/2004, whereby the accused- appellant was convicted under Sections 448/354 IPC and sentenced to pay fine of Rs.500/-, Crl. Appeal 192/2007 Page 1 of 7 in default, to suffer simple imprisonment for 2(two) months for offence under Section 448 IPC and to suffer simple imprisonment for 6(six) months for offence under Section 354 IPC.
3. From the order dated 10.12.2015 passed in this appeal, it appears that the appellant had taken a plea of juvenility on the basis of a photocopy of a birth certificate showing the date of birth of the appellant as 1.1.1990, which makes him about 14 years old at the time of the occurrence on 24.2.2004. As Section 7A of the Juvenile Justice (Care and Protection) of Children Act, 2000, provides that the claim of juvenility may be raised before any Court at any stage, the Court considered it fit and proper to cause an enquiry regarding the age of the appellant and, accordingly, by the aforesaid order dated 10.12.2015, the learned Sessions Judge, Dhubri, was directed to make an enquiry and submit a report. From the copy of the order dated 28.1.2016, passed by the learned Sessions Judge, Dhubri, in Sessions Case No.172/2004 (Supplementary-I), it appears that on the basis of summons issued by the learned Court, the Senior Medical and Health Officer and In-charge, Gajarkandi PHC had appeared before the learned Sessions Judge. The learned Court below recorded that the Medical Officer informed that the Register where the date of issue of birth certificate of the accused was recorded, had been destroyed in a fire on 05.07.2013 and, as such, could not throw light as regards the authenticity of the birth certificate of the accused-appellant. As the accused-appellant had not gone to school and as he had already crossed the age of 25 years, it was opined that direction for ossification test of the accused-appellant will not bring the desired result and, as such, the learned Court below recorded that, in the circumstances, further progress with regard to the enquiry as to the juvenility of the accused-appellant could not be made.
4. Mr. M. Khan, learned counsel for the appellant submits that in view of the developments, he would not raise the plea of juvenility and instead argue the case on merits.
5. An ejahar was lodged by the victim, who is hereinafter referred to as X, on 2.3.2004, before the Officer-in-charge, Mankachar Police Station stating that, on 24.2.2004 at around 9 P.M., when her husband was not at home, taking advantage of his absence, the accused No. 1, namely, Md. Jil Hoque, criminally trespassed into her residence and by placing a dagger on her neck, he forcibly committed sexual intercourse with her and thereafter, the other accused persons namely, Gendu Sheikh and Jeleka Khatun assaulted her with lathi as a result of which she suffered grievous injuries and they had also taken away one golden nose pin, one pair of silver earrings and one silver necklace. She stated that a couple of Crl. Appeal 192/2007 Page 2 of 7 days before also, the accused No. 1, namely, Md. Jil Hoque had forcibly raped her. On the basis of the aforesaid ejahar, Mankachar Police Case No. 48/2004 under Section 448/376/325/329/34 was registered.
6. Police started investigation and finding incriminating materials against the accused No. 1 Md. Jil Hoque, submitted charge sheet on 30.6.2004. The other two accused persons, who were stated to have assaulted her, were not sent up for trial. At the time of filing of charge sheet, the accused was shown as absconder.
7. It appears that, subsequently, the accused appeared and the case being exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate committed the case to the court of the learned Sessions Judge at Dhubri wherein Sessions Case No. 172/2004 was registered.
8. After hearing the parties, charges under Section 448/376 IPC were framed against the appellant to which he pleaded not guilty and claimed to be tried.
9. During trial, prosecution examined nine witnesses whereas defence adduced no evidence and his plea is that of total denial.
10. The learned trial court found that charge under Section 376 IPC was not proved beyond reasonable doubt but at the same time held that prosecution had proved the offences punishable under Section 448/354 IPC and accordingly, convicted the accused appellant under Section 448/354 IPC.
11. Being aggrieved, the appellant has preferred this appeal before this Court.
12. Mr. Khan has submitted that on the basis of the evidence on record, the appellant could not have been convicted under Sections 448/354 IPC as the prosecution utterly failed to prove the guilt of the accused. There are discrepancies in the deposition of the witnesses in most material aspects and that the evidence of PW7, the informant, does not inspire confidence as it projected three different versions: one in the Ejahar, one during recording of her statement under Section 164 Cr.P.C. and the last one during her testimony before the Court. It is submitted by him that there being no other eye-witnesses, in view of inconsistent stand of the victim, the appellant is entitled to acquittal.
13. Mr. D. Das, learned Additional Public Prosecutor, Assam, submits that there is no other eye-witness save and except PW7, i.e., the victim, and if the evidence of PW7 is believed and accepted, no interference with the impugned judgment will be called for.
14. I have considered the submission of the learned counsel for the parties and have perused the materials and evidence on record.
Crl. Appeal 192/2007 Page 3 of 715. It will be appropriate at this stage to have a look at the evidence on record.
16. PW 1 Md. Rahamat Ali stated that as he was not in the residence at the time of occurrence he does not know anything about the incident.
17. PW 2 is one Azim Uddin who knew both the informant and the accused-appellant. He stated that his house is near to the house of the informant, separated by 4/5 houses, and that husband of the informant lives in Meghalaya in connection with his work. It is deposed by him that on one morning, he heard that some people had entered the house of the informant. The informant told him that the accused outraged her modesty. The informant's parents had also beaten the informant and there was an attempt for reconciliation but the accused party did not come. In cross-examination he had stated that at around 6 A.M. in the morning, he had gone to the house of the informant. 15/16 persons including Ameer Hamja, Samsher, Magar Ali, Fulbar Ali etc. were present and in their presence, the informant had not disclosed anything. At around 9/10 A.M., the informant went to the house of the accused. It was not known to him whether the accused was present. He also stated that he had not seen any assault. He further stated that after 9 A.M., the victim had stated about the accused going to her house at night. He stated that he did not state before the police that the informant was dragged by the accused by holding her hands to his house.
18. PW 3 is Ameer Hamja who stated that the informant was his God-child and that at the time of the occurrence, her husband was staying at Meghalaya. Hearing 'hulla' at night, he had gone to the house of the informant and on enquiries being made by him, he was told by the informant that the accused trespassed into her house and had outraged her modesty. It is also deposed by him that the informant had told him that parents of her husband had also beaten her up. In cross-examination he had stated that he heard 'hulla' at around 1 P.M. He, Ataur and others had also gone to the house of the informant and the informant had disclosed to the persons that the accused had outraged her modesty. He had not seen the accused in that place. It came out also from his evidence that the informant started staying in his place after the incident.
19. PW 4 is the medical officer who had examined the informant on 28.2.2004 at about 3.45 P.M. on being brought by a lady home guard. He stated that he had found no injury on her person. It appears that PW 4 was again examined as PW 8.
20. PW 5 is another medical officer, who was working in Dhubri Civil hospital. He deposed that as per radiological examination, age of the person is above 18 years. He also Crl. Appeal 192/2007 Page 4 of 7 stated that it could not be ascertained as to whether she was raped or not but stated that there were no marks of violence.
21. PW 6 is the younger brother of the husband of informant. He deposed that he lived in the same campus with his brother and he heard that the accused had taken away the informant to his house and later on had driven her away from the house after assaulting her. The witness was declared hostile.
22. PW 7 is the informant. She deposed that she had a child with her. The occurrence took place at around 1 A.M. while she was sleeping. She stated that her husband was caught having a relationship with the sister of the accused prior to the occurrence and later on, her husband had reformed. The accused was a friend of her husband and he was treated like a brother-in-law. She deposed that the accused had shown dagger and he sat on her chest and thereafter, took her to his house where the inmates assaulted her. A 'Bichar' was held but none of the accused was present and as such, nothing materialized in the 'Bichar'. She also stated that she had made a statement under Section 164 of the Cr.P.C., which was exhibited as Ext. 5. In her cross-examination, she has stated that she had suffered injuries on her hands and neck and blood was oozing out and her husband married twice after marrying her. She admitted to have executed an affidavit Ext. A, before the Executive Magistrate, Hatsingimari. She also proved her signature as Ext. A1.
23. PW 9 is the Investigating Officer who proved the ejahar as Ext. 4. He proved Ext. 6, which is a sketch map, Ext. 7, 8 and 9, which are seizure lists and Ext. 10, the charge sheet. In his cross examination, he had stated that PW 7 did not tell him that sister of the accused had an affair with her husband.
24. The allegations in the ejahar would go to show that the incident occurred at 9-00 PM on 24.02.2004. In the ejahar, the appellant, his father and his mother were shown as the accused persons. While the appellant was alleged to have committed rape on PW7 against her will and dragging her from her house to his house, the allegations against the father and mother of the accused-appellant are that they had assaulted the informant thereby causing grievous hurt and forcibly had taken away some ornaments.
25. PW7, in her deposition, however, had stated that the occurrence had taken place at 1-00 PM at night while she was sleeping. Though she had stated that she had sustained injury in hands and neck and blood had also oozed out, medical opinion does not corroborate the alleged injury sustained. The evidence of PW4 shows that he found no injury on the person of PW7 at the time of medical examination. PW5 also did not find any Crl. Appeal 192/2007 Page 5 of 7 mark of violence while he examined PW7. In her statement under Section 164 Cr.P.C. recorded on 3.3.2004, it was stated that at around 9/9.30 P.M. of 24.2.2004, taking advantage of the absence of her husband, the accused, by removing the lock of the door of her house, entered into the house and at that time she was sleeping with a three year old girl child of her brother-in-law. Suddenly the accused climbed upon her and as she started screaming, he, by showing a dagger, threatened to kill her and against her will, forcibly committed sexual intercourse and after he had left the place, she raised hue and cry, as a result of which villagers assembled there. She also stated that the family members of her husband had also assaulted her. After the aforesaid incident, after about five days, at about 9/9.30 P.M., the accused, by opening the door again entered into her house and had committed rape on her and had dragged her by tying her hands to his house and the family members of the accused had inhumanly assaulted her with lathi and tried to cut her neck with dao and had pushed her in a ditch.
26. It is to be noticed that in the ejahar as well as in her Section 164 Cr.PC statement, the victim had stated that the incident had occurred at around 9-00/9-30 PM. Change of time of the occurrence from 9-00/9-30 PM to 1-00 AM as stated in the evidence changes the entire edifice of the prosecution case. Significantly, in her deposition, PW7 did not say anything with regard to commission of rape on her by the accused and the only allegation that was made was that the accused sat upon her chest and then took her to his house. There was no allegation of dragging her, as stated in the Ejahar, as also tying her hands and dragging her to his house. However, in the ejahar as well as in the Section 164 Cr.P.C. statement, rape was alleged to have been committed by the accused. The ejahar shows that a couple of days before the occurrence on 24.2.2004 also, the appellant had committed rape on PW 7. On the contrary, in Section 164 Cr.P.C statement, PW 7 had stated that on 24.2.2004 rape had been committed on her and, after five days of the aforesaid incident, again rape was committed on her.
27. PW 2 had deposed that the parents of PW 7 had beaten PW 7. PW 3 had deposed that PW 7 had informed that the parents of the husband of PW 7 had assaulted her. Why the parents of both PW 7 and the husband of PW 7 would beat PW 7 had not been explained by the prosecution and their beating of PW 7 appears to be most unusual. It appears to the Court that the genesis of the actual occurrence had been suppressed by the prosecution. PW 7 was medically examined on police requisition on 28.2.2004, which necessarily goes to show that police had received some information about the alleged Crl. Appeal 192/2007 Page 6 of 7 assault. PW 9 did not throw any light as to on what basis PW 7 was sent for medical examination by the Officer-in-Charge, Mankachar Police Station.
28. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matter, which do not affect the core of the case of the prosecution, must not prompt the Court to reject the evidence in its entirety. Therefore, irrelevant details, which do not corrode the credibility of a witness, should be ignored and the court has to examine whether the evidence, read as a whole, appears to have a ring of truth. There are no eye-witnesses to the occurrence and, in the aforesaid context, the evidence of PW 7, the alleged victim, is of crucial importance. The inconsistencies in her deposition qua the projected case in ejahar as also in the statement made under Section 164 Cr.P.C., do not persuade the Court to take a view that solely based on the evidence of PW 7 conviction can be sustained. The golden thread, which runs through the web of administration of justice in criminal cases, is that if two views are possible on the evidence on record - one pointing to the guilt of the accused and the other to his innocence, the view, which is favourable to the accused, should be adopted.
29. Considering the materials in its entirety, I am of the considered opinion that in the facts and circumstances of the case, the appellant is entitled to be acquitted of the offences alleged. The impugned and judgment and order is set aside. The appellant is set at liberty. His bail bond stands discharged.
30. Registry will send down the records.
JUDGE madhu Crl. Appeal 192/2007 Page 7 of 7