Gauhati High Court
State Of Assam vs Ayub Hussain Mandal on 22 June, 2001
JUDGMENT P.G. Agarwal, J.
1. Heard Shri J.R. Saikia, learned Public Prosecutor for the appellant and Sri N. Mahammad, learned counsel for the respondent accused.
2. This appeal under Section 378(1), CrPC is directed against the Judgment and order passed on 25.1.1995 by the Assistant sessions Judge. Dhubri in Sessions Case No. 86/92 whereby the respondent accused Ayub Hussain Mandal was acquitted of the charge under Section 376/511 I.P.C. The prosecution story of the case in brief is that Sarifa Khatoon, an young girl aged about 10 years, was serving as a maid servant in the house of the accused Ayub Hussain Mandal, and on the ill fated day, while the girl was returning home after completing her duties in the house, the accused accompanied her on the plea that he will escorte her to the house and on the way, dragged her to a near by paddy field and ravished her. The accused had gagged the mouth of the girl by putting handkerchief, but she somehow managed to remove the same and raised hue and cry whereupon the villagers, including the brother of the victim, arrived at the place of occurrence and accused fled away. The girl reported the matter to the above persons and parents. The matter was informed to the police and after usual investigation. Police submitted charge-sheet and charge under Section 376/511 was framed. During trial, prosecution examined as many as 7 witnesees including Doctor, I.O. The defence examined 4 witnesses. On conclusion of the trial, the learned Judge vide impugned order acquitted the accused person and hence, the present revision.
3. Before proceeding to consider the evidence and materials on record, we would like to recapitulate the scope and ambit of power of the High Court in an appeal against the order of acquittal. On consideration of the various decisions of the Apex Court, this Court in the case of State of Assam v. Radha Oil Industries and Anr. reported in (1987) 1 GLR 134 held as follows :-
"The power conferred by Section 423(1)(a) of "the Code" which deals with an appeal from an order of acquittal is as large and wide as the power conferred by Clause (b) thereof, which deals with an order of conviction. It is, thus, obvious that the High Court's power in dealing with Criminal appeals are equally wide whether the appeal is one against acquittal or conviction. In an appeal against an order of acquittal the High Court has the full power to review at large the evidence upon which the order of acquittal is based and to reach the conclusion on the evidence as to whether the order of acquittal should be reversed or not. "The Code" places no special limitation on the appellate court to praise the evidence distinct and separate from the manner in which it should be appreciated in an appeal against conviction. Indeed the appellate Court dealing with an appeal against the order of acquittal has full power to review the evidence on which the order of acquittal is based and to reach a conclusion either to set aside the order or not but while exercising the function. It has been ruled by the Supreme Court in a catena of cases, the High Court should give appropriate weight and consideration to the following aspects :
(i) the views of the trial as to the credibility of the witnesses should be properly weighed and considered.
(ii) the presumption of innocence in favour of the accused is never weakened by the fact that he has bean acquitted at the trial.
(iii) the right of the acquitted persons to the benefit of reasonable doubt should not be denied on the score that they have been acquitted and are no longer accused :
(iv) the appellate court should be slow in disturbing the findings of fact reached by the trial Judge who had the advantage of personality seeing the witnesses : and,
(v) when the High Court does not agree with the view of the trial court yet reaches the conclusion that the view expressed by the trial court is reasonably possible, the same should not be disturbed".
4. In the case of Kamesh Babulal Doshi v. State Gujarat, reported in (1996) 9 SCC 225 the Apex Court restated the principles as below :-
"This Court has repeatedly laid down that the mare fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and efficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed.
Conversely, if the appellate court holds for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only - reappraise the evidence to arrive at its own conclusions. In keeping with the above principles We have therefore to first ascertain whether the findings of the trial court are sustainable or not".
5. At this stage we may recap the observations of the Apex Court in the case of Sanwat Singh v. State of Rajasthan (AIR 1961 SC 715). The Bench considered the matter in detail and held :
"The foregoing discussion yields the following results : (1) an appellate Court has full power to review the evidence upon which the order of acquittal is founded ; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate Court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) 'Substantial and compelling reasons' (ii) 'good and sufficiently cogent reasons' and (iii) 'strong reasons' are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the question of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."
6. After examination of legal question, let us advert to the facts to find out whether any intervention was called for into the findings of the Trial Court. The alleged victim Sarifa Khatoon. PW 1 is a young girl aged about 10 years she was questioned by the Court before recording her statement as required under the law and there is a observation of the Court that the witness understands the question and she has got the capacity to give rationale answers and she has competence to understand the question and give proper replies.
7. PW 1 has deposed that she know the accused Ayub Hussain Mandal as because she was working as a maid servant in the house of the accused from before. The victim girl, as usual used to return to her residence after completion of the work in the evening, on the date of occurrence, the accused had accompanied her on the plea that he will escort to her house and on the way, accused forcibly took her to a nearby paddy field. He tried to remove her pant and when she raised alarm, the accused gagged her mouth with handkerchief and he forced her on the field and thereafter he entered his male organ into her vagina and when she resisted, the handkerchief came out from the mouth and she raised alarm. Thereafter, her brother Jakir and other witnesses appeared at the place of occurrence and she reported the matter to them and later on, to her family members. She was examined by the Doctor and her statement was also recorded under Section 164 CrPC PW 2 Md. Sabed Ali, who is the father of the girl was not present at the time of occurrence and he was informed by PW 1 when he returned from outstation ; he lodged the FIR. He was present when the blood stained cloth of the victim were seized by the police and the above named girl was medically examined. Abdur Rashid, PW3, Masiemuddin, PW 1 and Asgar Ali, PW 5 are the four villagers and they deposed on hearing the sounds of the girl, they came to the field and saw the accused fleeing away and when they reached the field they saw PW 1 in naked condition with blood oozing out from the private parts. They brought her home and she reported that the accused has raped her. PW 6 is Doctor Sayed Md. Emadad Ullah, who examined the victim on 27.11.1991 and found as follows :
"1.
Height = 132 cm
2. Weight = 28 Kg
3. Teeth = 12 in uppar jaw 11 in lower jaw (one teeth in the lower jaw is broken)
4. Breast = not developed
5. Auxilary hair = absent
6. Pubic hair = absent
7. Vulva & vagina not fully developed
8. Abression on hymen .5 mm at the posterior aspect nearforechettee from where slight bleeding present. No other violence mark present.
9. Visal swab for sparmatozowa No spermatozowa is seen in smear supplied."
8. After ossification test the Doctor opined that the girl is aged about 10 years. There is no cross-examination whatsoever as regards the age of the girl and in view of the medical evidence on record, oral testimony of the victim, the Trial court held that the girl was minor teenaged girl about 10 years.
9. On perusal of the impugned judgment, it is seen that the learned Trial Court has not given any reason whatsoever for discarding the evidence of the victim PW 1. The entire prosecut ion case has been thrown out on the theory of grudge of the case was engineered by one Kasem, a person who was not before Court. The learned Trial Judge also discarded the medical evidence and disbelieved the evidence of PW Nos. 3, 4 and 5, who arrived at the field immediately. As regards the alleged grudge of Kasem, the Trial Court has placed undue reliance on the following statement of PW 1- "After hearing the incident Kasem become furious and he stated that necessary step should be taken as Mondal's family (family of the accused) have exceeded their limits. He would see how Mondal could win the election. Even if Kasem asked her to give false evidence, she is not going to speak lie in the Court." The learned Sessions Judge also observed that PWs 3, 4 and 5 were also tutored by Kasem but there is absolutely no material to presume such thing. Even the accused had nowhere claimed that he had any grudge with Kasem. The accused in his statement under Section 313 CrPC had stated that their family had grudge with the family of PW 1. The grudge story invented by the defence was readily accepted by the Trial Judge without applying its mind to it. If the family of the accused and the complainant were at loggerhead, how can the accused allowed PW 1 to work in his house. PW 1 and other witnesses have stated that she was working in that house from before and that part of the evidence of PW 1 had not been challenged. The theory of grudge is a mare after thought because if there was grudge, the accused would not have allowed PW 1 to work or call her to work in his place.
10. Although Doctor, PW 6 found injury on the posterior aspect of the hymen size near forchettee, he could not say definitely whether PW 1 was raped or not. However, Doctor opined that slight bleeding near the forchettee may be caused due to rape. The learned Trial Court taking hyper technical view of the matter that such injury is fully recovered within a period of 5 days and as she was examined after 5 days of occurrence. Doctor could not have found such injury on the person of the victim. In this case, prosecutrix statement found corroboration from the medical report and there are abression near on hymen and there was bleeding after 7 days even. PW 1 had categorically stated that there was bleeding when the accused pushed his male organ into her private parts. PW 3, PW 4 and PW 5 have also stated about bleeding from her private parts. The fact that the seized clothes were not sent for Chemical examination is immaterial when factum of bleeding is established.
11. In this case, the FIR was lodged on the 7th day of the incident. PW 2, who instituted the case, has deposed that at the relevant time, he was working at Gaosaigaon to earn his livelihood and on the 5th day of occurrence, on being informed by his nephew Baskar Ali about the occurrence, he returned home and he was informed about the incident by his daughter, thereafter he lodged the FIR. There was no cross-examination of PW 2 in the matter of explanation given by him for delay in lodging the FIR. In the impugned judgment, the learned Trial Judge has observed that PW 2 had not explained which factor prevented him for lodging the FIR on the Gth day of the incident. This gives rise to doubt that had the incident been true, the FIR would have been promptly lodged at least on the 6th day by PW 2. PW 2 further stated that on his return on 6th day, he went to the police station, but the police refused to accept the FIR and thereafter, he lodged the complaint before the Court. In absence of any cross-examination as stated above, where is the scope of finding hole in the explanation. In the case of Harpal Singh v. State of Himachal Pradesh reported in AIR 1981 SC 361, the Apex Court held that-"delay of 10 days in Lodging the First Information Report, stands reasonably explained when she stated that honour of the family was involved, its members would have to decide whether to take the matter to the Court or not. It is not uncommon that such consideration of delay in action on the part of the near relation of the young girl who is raped." In the instant case, we find that the guardian of the family, i.e., the father of the girl was away from the house and he had returned on the 6th day after the occurrence, the mother of the girl did not take any action and awaited for her husband to arrive, which is quite natural, it is seen that the learned Trial Court has made a mountain of the mole for the alleged delay in lodging the FIR.
12. On perusal of the impugned judgment, it is seen that the Trial court did not give a single reason as to why evidence of an young victim aged about 10 years is to be disbelieved.
13. In view of the guidelines of the Apex court, let us see whether the conclusion reached by the Trial court is plausible one and is based on the materials on record and whether acquittal needs to be interfered with or not. After reproducing statements of the witnesses, the learned Trial Judge took up the grudge theory and disbelieved the prosecution witnesses without considering the medical evidence. The three independent witnesses, PW 3, 4 and 5 had seen the accused at the place of occurrence and they also saw the accused fleeing away from the field on their arrival. Their statement was disbelieved on the premise that they might have been tutored by the imagenative character of Kasem. If the said Kasem was as powerful as he was projected by the Court below, he could have forced the victim and her mother to approach the Court on the date of occurrence itself. In view of my foregoing discussion, it is manifest that the impugned judgment suffers from serious and substantial errors of law and legal infirmities and this Court must interfere with an order of acquittal is order to render effective justice.
14. Now, coming to the evidence of the victim, she has deposed in details as to how she was ravished by the accused. The witness was cross-examined at length. Nothing was found to show that his young girl is deposing falsely. She has categorically stated that even if some one asks her to tell a lie, she is not going to depose false statement in the Court. The law is well settled that the victim or rape is not treated as accomplice. In the case of Bharawada Bhoginbhai Hirjibhai v. State of Gujarat reported in AIR 1983 SC 753, the Apex Court observed as follows :-
"In the Indian setting, refusal to act on the textimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury why should the evidence of the girl or the woman who complains of rape of sexual molestation be viewed the doubt, disbelief or suspicion ? To do so is to justify charge of male chauvinism in a male dominated society. It is conceivable in the eastern society that a female may level false accusation as regards sexual molestation against a male for several reasons.
The statement is generally true in the context of the urban as also rural society. It is also by and large true in the contest of the sophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites."
15. In another case of Krishan Lal v. State of Haryana reported in AIR 1980 SC 1252, the Apex Court observed as follows :
"In rape case, the Court must bear in mind human psychology and behavioural probability while assessing the testimonial potency of the victim's version. What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out ? The inherent bashfulness. the innocent naivete and the feminine tendency to conceal the outrage of masculine sezual aggression are factors which are relevant to improbablise the hypothesis of false implication. The injury on the person of the victim, especially her private parts, has corroboratice value. Her complaint to her parents and the presence of blood on her clothes are also testimony which warrants credence. More than all, it baffles belief in human nature that a girl sleeping with her mother and other children in the open will come by blood on her garment and injury on her private parts unless she has been subjected to the torture of rape."
16. In the present case, we find that the evidence of PW 1 has been fully corroborated by the evidence of PWs 3, 4 and 5. The medical evidence corroborate that she had injuryed on her private parts. The accused was known to her from before as she was working in his house. I find no justifiable reason on the part of the simple village girl to falsely implicate the accused person. On perusal of the statement of the other witnesses, it is seen that they are reliable and trustworthy witnesses and there is absolutely no reason to disbelieve them.
17. In this case, defence examined 4 witnesses. The DW1 to 4 have heard about the occurrence and they saw police investigated the matter. The evidence of these witnesses are negative in nature to show that accused was not involved.
18. In this case, accused has been tried for the offence u/s. 376/34 IPC. Although, the girl has stated that there was penetration which led to bleeding from her private parts. Doctor could not categorically state whether PW 1 was raped or not. In this case, victim was examined after 6th day of the incident and as such, there is no question of present of spermatezoa. As stated above, I find that the prosecutrix is a reliable witness and her evidence stands corroborated. In the case of Katnel Singh v. State of M.P. reported in AIR 1995 SC 2472, the Apex Court observed as follows :-
"The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such woman;
it casts and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false.
In State of Maharashtra v. Chandraprakash Kewal Chand Jain AIR 1990 SC 658, the Supreme Court had an occasion to point out that a woman who is a victim of a sezual assault is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. She is not in the category of a child witness or an accomplice and, therefore, the rule of produce that her evidence must be corroborated in material particulars has no application, at the most the Court may look for some evidence which lends assurance."
19. In view of the above, the order of acquittal passed by the Trial Court being perverse, is hereby set aside. The accused Ayub Hussain Mandnl is convicted for the offence under Section 376/511 IPC. After considering the submission of the learned counsel for both sides as regards sentence and considering the facts and circumstances of the case that young teenager girl aged about 10 years was the victim of rape by the accused Ayub Hussain Mandal and lost her virginity, the accused is sentenced to imprisonment for the period of 5 (five) years and to pay a fine of Rs. 10,000, in default, further imprisonment for 3 (three) months and if the fine is realised it is directed that the aforesaid amount shall be paid to the victim. The respondent accused person Ayub Hussain Mandal is directed to surrender forthwith to serve out the sentence. Send a copy of this order to the Assistant Sessions Judge, Dhubri for necessary action in the matter.