Gauhati High Court
Md. Jamiruddin Ahmed vs State Of Assam on 10 May, 2007
Equivalent citations: 2008CRILJ586, 2008 CRI. L. J. 586, (2007) 4 GAU LR 502 (2007) 56 ALLINDCAS 766 (GAU), (2007) 56 ALLINDCAS 766 (GAU)
Author: Aftab H. Saikia
Bench: Aftab H. Saikia
JUDGMENT Aftab H. Saikia, J.
1. Heard Mrs. A. Devi, learned Amicus Curiae representing the appellant from the jail. Also Mr. P.C. Gayon, learned P.P., Assam.
2. This Criminal Jail Appeal has been directed against the judgment and order dated 10-2-04 rendered by the learned Sessions Judge, Sivasagar in Sessions Case No. 59(S-S)/2003 whereby the appellant was found to be guilty of commission of offence of rape upon the victim, prosecutrix, P.W. 4 and accordingly, sentenced him to undergo rigorous imprisonment for 10 years by convicting him under Section 376(2)(f), I.P.C.
3. The prosecution case in brief is that an FIR was lodged on 24-10-02 by P.W. 1, the father of the victim, Md. Gyasuddin Ahmed with Sivasagar police station being registered as Sivasagar P.S. Case No. 401/ 2002 under the above mentioned Section alleging inter alia that his daughter P.W. 4 while going to School at about 9 a.m., on the same day, i.e. on 24-10-2002, she went to purchase "Hajmola" from the stationary shop owned by the accused/appellant who at that time was in the shop and accordingly, he lured her to go inside the shop and subjected her to sexual intercourse. Thereafter, she attended her class and during recess when she came home, she narrated the incident to her parents. She was immediately taken up to the School Head Master PW 3 who refused to interfere with the matter since it was a personal matter of the informant. Then the father PW 1 took her to the village Headman and then to Sivasagar Police Station to lodge the F.I.R.
4. On the basis of the above F.I.R., a police case was registered being. Sivasagar P.S. Case No. 401/2002 and the Investigating Officer (I.O.) PW 7-Premodhar Bora, S.I., who was entrusted with the investigation, started investigation.
5. During the trial before the learned Sessions Judge, the prosecution examined as many as 7 witnesses including the P.W 5 Dr. Sadhan Bora and P.W. 7 Shri Permodhar Bora, Investigating Officer as well as PW 4 the prosecutrix, the victim girl. The defence adduced 2 witnesses and pleaded not guilty.
6. On appreciation of the materials available on record both oral and documentary and also upon hearing the learned Counsel for the parties, the learned Sessions Judge found the accused/appellant guilty of the offence of rape under Section 376(2)(f), I.P.C. and accordingly, convicted and sentenced him as already noted above.
7. Being aggrieved by the impugned conviction and sentence, the accused/appellant preferred this appeal from jail and Mrs. A. Devi has been appointed as Amicus Curiae to assist this Court.
8. Assailing the impugned conviction and sentence, Mrs. Devi, learned Amicus Curiae has drawn attention to this Court primarily to the evidence of P.W 4 the victim girl who was admittedly a minor aged about 7 years and the P.W. 5 - the Doctor who examined P.W. 4. According to her, the deposition of the victim girl, being the child witness, cannot be said to be reliable and credible as she was appeared to be tutored and the same cannot, therefore, be the basis of conviction. It is forcefully contended by the learned Amicus Curiae that the reason not to believe the evidence of this child witness is her conduct shown during the entire peiud of the eventful day. The occurrence took place, according to her, at 9 a.m. before the School started and after such criminal assault, she attended her school normally without reporting the matter to anyone including her class teacher and Head-Master of the School and during the recess only she reported the matter to the parents while coming home. Thus the entire story of the victim girl in the prosecution case so narrated was appeared to rope the appellant in the offence of rape.
9. Further referring to the medical report, the learned Amicus Curiae has categorically submitted that the medical evidence totally belied such offence of rape because the Doctor PW 5, who examined the girl immediately on the same day, specifically stated that there was no sign of rape as no injury was found on any part of the body of the victim. To bolster up her submission and to put reliance on the medical evidence, the learned Amicus Curiae has relied upon a recent reported case in (2006) 9 SCC 713 Yerumalla Latchalah v. State of A.P. wherein paragraphs 2 and 3 the Supreme Court observed as under:
2. The sole appellant was convicted by the trial Court under Section 376 of the Penal Code (for short "IPC") and sentenced to undergo rigorous imprisonment for a period often years. On appeal being preferred, the High Court upheld the conviction and reduced the sentence from ten years to seven years. Hence, this appeal by special leave.
3. In the present case, age of the victim was only eight years at the time of alleged occurrence. Immediately after the occurrence, she was examined by Dr. K. Sucheritha (PW 7) who has stated in her evidence that no injury was found on any part of the body of the victim, much less on private part. Hymen was found intact and the doctor has specifically stated that there was no sign of rape at all. In the medical report, it has been stated that vaginal smears collected and examined under the microscope but no sperm detected. The evidence of the prosecutrix is belied by the medical evidence. In our view, in the facts and circumstances of the present case, the High Court was not justified in upholding the conviction.
10. Before delving upon the submissions canvassed by the learned Amicus Curiae and the learned P.P., it would be necessary and apt to appreciate and evaluate the evidence of P.W. 4, the prosecutrix and P.W. 5 the Doctor.
11. P.W. 4 in her evidence, on being thoroughly examined under Section 118 of the Evidence Act, testified that on the day of occurrence which was a Thursday and weekly market day, she came to school at about 9 a.m. After keeping her school bag she went to the shop of accused-appellant to purchase "Hajmula" who took her inside the shop of the accused and lied her down on the bed and committed criminal assault. When she felt pain the accused released her. The accused discharged semen on her private part. Thereafter, when she came out from the shop weeping and told the incident to P.W. 2 Rahimuddin who on the contrary P.W. 2 gave her two slaps on her face and then she went to school. During recess she went home to take food. Since P.W. 2 warned her that he would report the matter to her father, she also reported the matter to her father due to fear. Then her father took her to the Head Master and then the Gaonburah and ultimately she was taken to the police station. She also produced before a Magistrate who recorded her statement. On her cross-examination she deposed that very often she went to purchase "Hajmula" from the shop of the accused and there were two rooms in the shop and she was molested in the inside room. She was accompanied by one Yasmin and one Tazbin. She did not report them about the criminal assault by the accused.
12. To justify such claim of commission of offence of rape for which she suffered pain for such penetration, let us examine the medical evidence as deposed by Dr. P.W. 5. As per medical evidence of P.W. 5 on examination found as follows:
Height 3' x 11", weight 25 kgs. Teeth 12/3 (four lower milk teeth had fallen). Breast not well developed, Valva and vagina not well developed, Hymen were found present.
No spermatozoa was seen on examination of labial smear.
X-ray of the left elbow and wrist joint showed that epiphyseal plates of both the joints did not fuse with the corresponding shafts.
The injury was (not) found on any part of the body including genetalia and breasts.
13. The Doctor in his opinion clearly stated that the girl was about 7 years but below 11 years of age. He did not find any symptom of sexual intercourse or any sexual assault on the girl. On cross-examination he explained that it was a fact that if a girl of less than 12 years was subjected to sexual intercourse by an adult boy, there was bound to rupture of fourchetty and abrasion of labia majora and minora and there was every possibility of tearing of hymen.
14. On bare perusal of the medical evidence it would be clear that there was no element of offence of rape on P.W. 4 and the girl did not suffer any injury on any part of her body as claimed by the prosecutrix in her deposition as P.W. 4.
15. In such a situation supported by the medical report of the Doctor, it can be easily held that there was no symptom of sexual intercourse or any sexual assault on the girl and the evidence of P.W. 4 is belied by the medical evidence.
16. Having meticulously considered the testimony of P.Ws. 4 and 5 and also having regard to the Judicial pronouncement referred to in Yerumalla Latchaiah's case (supra) as well as upon hearing the learned Counsel for the parties, we are of the considered opinion that in the facts and circumstances of the case in its totality, the testimony of P.W. 4 cannot be accepted as the same has been totally Impeached by medical evidence.
17. Consequently, the conviction and sentence of the appellant under Section 376(2)(f), I.P.C. is hereby set aside and quashed and he is acquitted of the alleged charge.
Appellant be set at liberty forthwith if he is not wanted in connection with any other case.
Before parting with the case record, we would like to put on record our appreciation to Mrs. A. Devi, learned appointed Amicus Curiae for her help and assistance rendered to arrive at a decision in the jail appeal and accordingly, it is ordered that she is entitled to get her professional fee which is quantified at Rs. 2500/-.
L.C.R. be sent down forthwith.