Gauhati High Court
Sahnaz Uddin Laskar vs The State Of Assam on 1 September, 2016
Author: N. Chaudhury
Bench: N. Chaudhury
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CRIMINAL APPELLATE JURISDICTION)
Criminal Appeal (J) No.62 of 2015
Sahnaz Uddin Laskar ... ... ... Appellant
-Versus-
The State of Assam ... ... ... Respondent.
BEFORE HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH HON'BLE MR. JUSTICE N. CHAUDHURY For the appellant : Mr. R. Dey. Amicus Curiae.
For the respondent : Ms. Shamima Jahan,
Addl. Public Prosecutor, Assam.
Date of hearing : 01.09.2016.
Date of Judgment : 01.09.2016.
JUDGMENT & ORDER
(N. Chaudhury, J.)
The appellant in this case was convicted under Section 459 of the Indian Penal Code in Sessions Case No.187/2013 of the Court of learned Sessions Judge, Cachar at Silchar by judgment and order dated 05.05.2015 and sentenced to suffer imprisonment for life and also to pay a fine of Rs.20,000/-, in default, to undergo rigorous imprisonment Crl.A.(J) No.62/ 2015 Page 1 of 10 for further two years. This judgment and order has been challenged in the present appeal.
2. The prosecution story as made out in the ejahar is that one Smti. Dulua Rabidas lodged written ejahar with the Officer-in-charge of Sonai Police Station on 17.11.2006 alleging that Md. Sahanaj Uddin Laskar entered inside the house by opening the door forcibly at 1.30 a.m. of the same night and searched for Anita Rabidas, aged about 13 years, for having sexual intercourse. As he did not find her in the house he dragged the younger daughter of the informant who was aged about 9 years forcibly and by taking her outside dealt repeated cut blows on her with two daggers injuring her in her abdomen whereupon her intestine came out. Police registered Sonai Police Station Case No.326/2006 under Sections 457/326 of the Indian Penal Code and started investigation.
3. The injured was sent to hospital for treatment, sketch map of the place of occurrence was prepared, statements of the witnesses were recorded and thereupon the investigating officer filed charge-sheet on 28.02.2007 in the Court of learned Judicial Magistrate First Class, Silchar. The learned Magistrate by order dated 16.12.2013 committed the case to Court of Sessions and thereupon Sessions Case No.187/2013 in the Court of learned Sessions Judge, Cachar at Silchar was registered. The learned Sessions Judge framed charge under Section 459 of the Indian Crl.A.(J) No.62/ 2015 Page 2 of 10 Penal Code. The charge was read over to the accused whereupon he pleaded not guilty and claimed to be tried.
4. In course of trial prosecution examined as many as eleven witnesses whereas defence examined three witnesses. Considering the materials placed on record by the parties the learned trial Court was of the view that the accused is guilty of committing offence under Section 459 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and also to pay a fine of Rs.20,000/-, in default, to undergo rigorous imprisonment for further two years. The learned Sessions Judge also directed the District Legal Services Authority under Section 357A of the Code of Criminal Procedure to adequately compensate the victim.
5. We have heard Mr. R. Dey, learned Amicus Curiae for the appellant and Ms. Shamima Jahan, learned Additional Public Prosecutor. We have also perused the evidence on record.
6. In this case informant died after filing of the ejahar and before the trial was commenced. One Lakhia Rabidas was examined as PW 1 who was declared hostile and thereupon both the prosecution and the defence cross-examined her. PW 2, Gailalong Rongmai, was similarly declared hostile by the prosecution and thereafter he was cross- examined both by the prosecution and by the defence. Crl.A.(J) No.62/ 2015 Page 3 of 10
7. PW 3 is the victim. She deposed that her mother died. She has two sisters she being the elder. On the date of occurrence she was a student of Class-IV in primary school. At night of the date of occurrence the accused came to their house and called her mother. She told that her mother was not at house. At that the accused dragged her out and stabbed on her abdomen with a dagger whereupon her intestine came out. She raised alarm, the neighbouring people gathered and she became unconscious. She regained her sense in Silchar Medical College Hospital where she was treated as indoor patient. But even no suggestion was given to her during cross-examination that the accused did not stab her at the abdomen.
8. PW 4, Bangi Rabidas, is the father of the victim. According to him, he was inside the house when the incident had taken place. Accused Sahanaj Uddin Laskar came at night and called his wife. The victim replied that she was not at home. Then the accused dragged the victim out of the house and stabbed her on the abdomen by a knife. The victim sustained severe injuries on her stomach. She was taken to hospital. In course of cross-examination he stated that he did not see the incident. This is because he was inside the room. But no suggestion was made to him during cross-examination as to whether he could not identify the accused by sound. This is because accused and PW 4 lived in same village and they knew each other over years.
9. PW 5, Dr. Pinak Pani Dhar, proved the injuries as follows :- Crl.A.(J) No.62/ 2015 Page 4 of 10
"(1) A sharp penetrating injury over the left upper lateral aspect of epigastrium with omental proplapse and signs of peritonitis. On exploration - peritoneal contamination and a small penetrating injury found over anterior aspect of stomach. (2) A sharp cut injury over the right hypocondrium in the right midclavicular line at the level of 8th and 9th ribs measuring 3cm x 2cm x 1cm.
(3) Two sharp cut injury over the extensor aspect of right elbow, measuring (2 x 1) cm and (1 x 1 x 1)cm."
10. PW 6, Bina Rabidas, is a neighbour of the victim. She stated that the accused person always used to enter into the houses of their village and tried to commit rape upon the women folk. This is why village people fear him. One day the accused went to the house of the victim for committing rape. He brought out the minor victim from inside the house and caused stab injury on her person as his desire to commit rape was not fulfilled. By cross-examining this witness the defence could not find out any contradiction in her statement.
11. PW 7, Anita Rabidas, stated that the informant is her aunt and the victim is her cousin. She knows the accused as well. On the night of occurrence the accused came to the house of Dulua Rabidas. Hearing shouting her father came and thereafter she also came out and found the victim was injured. She came to know that accused Sahajan dealt dagger blow in the stomach of the victim. She came to know that accused wanted to rape the victim but as he could not do so he dealt a dagger blow on her person and then fled. Even 5/7 days before the Crl.A.(J) No.62/ 2015 Page 5 of 10 occurrence the same accused sought to rape her in the same place, she emphatically deposed. At that time she had raised hue and cry and people gathered whereupon the accused fled.
12. PW 8, Rafique Uddin, stated that he knows both accused and the victim. The prosecution declared him hostile and thereupon he was cross-examined both by prosecution and by defence.
13. PW 9, Smti. Lachmi Rabidas, deposed that she heard crying in the house of the victim and went there. She saw the injured victim. Blood was oozing out from her body and people gathered there told her that it is accused Sahanaz who had assaulted the victim. She is not an eye- witness.
14. PW 10, Rohim Uddin Laskar, firmly stated in course of his examination-in-chief that the accused is a bad character person. He has the habit of teasing the young girls of the locality. Even his daughter was teased by the accused for which his daughter gave up studies and stopped going to school. He used to do the same with Rabidas families. On the date of occurrence he heard hulla of people from the place of occurrence. Having gone there he found VDP people along with villagers had recovered the victim from near a tilla and after getting her body covered took her to Thana and thereafter to hospital. He heard from the people that since victim resisted and did not permit the accused to commit rape on her, she was stabbed.
Crl.A.(J) No.62/ 2015 Page 6 of 10
15. PW 11, Ajit Kumar Sarma, was the Officer-in-Charge of Sonai Police Station at the relevant time. He narrated the steps that were taken in course of investigation leading to submission of charge-sheet.
16. Defence examined three witnesses. DW 1, Abdulla Haque Laskar, is the brother of the accused. He sought to establish that on the night of occurrence the accused was at home. But in course of his cross- examination he himself disclosed that the accused had been convicted in two criminal cases - one of which is rape of an insane female. He was sentenced to four years or more in that case.
17. DW 2, Rafique Uddin Laskar, stated that the Horijan people used to sell liquor illegally and used to create chaotic situation in the locality. The present case has been filed at the instance of one Rohim Uddin with whom the accused had altercation earlier. His evidence was of no help either to the prosecution or to the defence.
18. DW 3, Bilal Ahmed Laskar, also stated that the ejahar was lodged at the instance of Rohim Uddin of their village who had strain relationship with the accused.
19. The learned Sessions Judge thoroughly examined the accused person under Section 313 of the Code of Criminal Procedure when he claimed to be innocent but as against Question No.17 he disclosed that he had been in jail hajot as convict of two other rape cases. His statement under Section 313 of the Code of Criminal Procedure itself Crl.A.(J) No.62/ 2015 Page 7 of 10 reveals that his attempt to commit rape on the victim was not the first instance.
20. PW 3 is the victim. She unambiguously stated on oath that the accused went inside the house at night, wanted to rape her mother and as he failed in his attempt he dragged the victim out of the house and then stabbed her at abdomen with a dagger. As pointed out above, the defence did not make any attempt to contradict her on the incident of stabbing at the abdomen at late night and, that too, after entering into the house when the inmates were sleeping. The injuries inflicted on the victim indicate the ruthless nature of the accused person. The victim was nine years old at that time. Accused dragged her out of the house at dead of night and as his desire to rape did not fulfill, he stabbed her repeatedly. A sharp penetrating injury at the lateral aspect of epigastrium was found along with three other injuries. If the injuries over the body of the victim and the deposition of the victim is compared with that of the evidence adduced by Bina Rabidas (PW
6) it would appear that accused Sahnaz Uddin used to intrude into the locality inhabited by the Horijon people and attempted to commit rape on their women folk. He attempted to rape PW 6 one day but as she raised hue and cry and people gathered, the accused fled from the scene. PW 7, Anita Rabidas, also supported and duly corroborated the evidence of PW 3 (victim) and PW 6, a neighbouring witness. The deposition of PW 10, Rohim Uddin Laskar, discloses a very sordid state of Crl.A.(J) No.62/ 2015 Page 8 of 10 affairs. He stated on oath that accused is a bad character person and has the habit of disturbing even the young girls of the locality. But for the immoral activities of accused Sahnaz Uddin, the school going daughter of PW 10 had to give up her studies. It has come to light from the evidence that this Sahnaz Uddin Laskar is a married person having two children. He was about 21 years of age at the time of commission of the offence and the offence in question is not the first of its kind committed by him. Earlier he committed rape on victims at least for two occasions for which he was convicted and sentenced to imprisonment but even thereafter he did not reform himself. When the victim herself has deposed with sufficient clarity that the accused had trespassed into the house at late night with a view to committing rape and on being resisted stabbed on her abdomen, there is no reason to disbelieve her. She was merely nine years old at that time. Even the other witnesses have disclosed sufficient materials to corroborate the deposition of the eye witness. It is, therefore, beyond reasonable doubt that the accused had entered into the house of the victim with a view to commit rape and then he stabbed at the abdomen of the victim since she offered resistance.
21. The learned Sessions Judge having perused such evidence convicted the accused under Section 459 of the Indian Penal Code but in view of the fact that the accused did not assault on the victim inside the house but did so by dragging her outside, we are of the view that Crl.A.(J) No.62/ 2015 Page 9 of 10 the offence committed by the accused does not attract Section 459 of the Indian Penal Code but thereby he has committed an offence under Section 326/453 of the Indian Penal Code. This is because an offence under Section 459 of the Indian Penal Code involves committing lurking house trespass or house breaking and causing grievous hurt in course of such trespass. If grievous hurt is caused either while making lurking house trespass or while inside the house wherein the trespass had taken place, then and then only Section 459 of the Indian Penal Code would apply. Here, in this case, the accused trespassed into the house of the victim and thus committed house breaking and then dragged her outside and sought to commit rape but on being resisted stabbed on her person four times causing grievous hurt and thus Section 459 of the Indian Penal Code would not apply.
22. Accordingly, the appeal stands partly allowed by converting the conviction into a one under Section 326/353 of the Indian Penal Code. Consequently, the sentence of life imprisonment stands modified to that of rigorous imprisonment for 10 years. The sentence of fine imposed by the learned Sessions Judge is maintained.
Send down the records.
JUDGE CHIEF JUSTICE
T U Choudhury
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