Gauhati High Court
Kutu Mia And Ors. vs State Of Assam And Anr. on 29 November, 1990
Equivalent citations: 1991CRILJ1977
Author: S.N. Phukan
Bench: S.N. Phukan
JUDGMENT S.N. Phukan, J.
1. According to First Information Report, Ext. 1 on 16th August, 1981 at about 2.00 a.m. (night) seven accused persons named in the F.I.R. formed an unlawful assembly being armed with deadly weapons and trespassed into the house of Md. Alimuddin, the informant, P.W. 2 and abducted his sister, Mustt. Ayarun Bibi, P.W. 9, who was at that time 16/ 17years'old.
2. Thereafter she was taken to the jungle along the path on the western side of the house of the informant. The informant was also assaulted by the accused persons and he got injuries on his person and his brother, after being assaulted, was kept confined. On hearing their hue and cry the neighbouring witnesses came running to the place of occurrence.
3. The learned trial Court framed charges under Sections 366/376, I.P.C. against the three accused-appellants, namely Kutu Mia, Surman Ali and Kala Mia.
4. The learned Sessions Judge, Silchar in Session Case No. 128/83 found all the accused guilty Under Section 366, I.P.C. and sentenced all of them to suffer rigorous imprisonment for five years. The learned Court found Kutu Mia and Kala Mia guilty Under Section 376, I.P.C. and convicted them accordingly and sentenced them to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- each. Hence, this present appeal.
5. I have heard Mr. M. A. Laskar, learned Counsel for the appellants and Mr. K. Agarwalla learned P.P., Assam. At the outset I must say that the learned P.P. is very fair and has placed before this Court all the materials for the ends of justice.
6. The prosecution examined 12 witnesses including the Doctor and the Investigating Officer. The accused persons did not examine any witness and their plea was totally denial. From the cross-examination of the P.Ws. and the statements made under Section 313, Cr. P.C., it appears that the defence wants to take the plea that they have been falsely implicated in this case at the instigation of one Balu Mia alias Majraf. Accused Kutu Mia has stated that the victim girl, P.W. 9, was legally married wife.
7. According to F.I.R., Ext. 1, on the night of the occurrence, 7 (seven) persons named in the F.I.R. trespassed in the house of informant, P.W. 2, armed with deadly weapons and took away his younger sister, P.W. 9. Accused persons also assaulted informant, P.W. 2 and kept confined his brother after assaulting him.
It may be stated that the prosecution examined the Doctor, P.W. 1 to prove P.W. 2 got injuries on his person, but has no charge has been framed for such injuries. I need not consider this aspect of this matter.
8. In the case in hand, the material witnesses are P.W. 2, the informant and P.W. 9 the victim girl. In the F.I.R. as stated above, seven persons have been named. It is true that F.I.R. is not a substantive peace of evidence and it can be used only for the purpose of corroboration or contradiction. But it has got its importance as this is the story disclosed by the prosecution at the first point of time, though in the F.I.R. seven persons have been named, from the evidence of P.W. 2, I find that he has made a statement in his examination-in-chief that he could recognise only accused Kutu and Kala Mia. He has specifically stated that he could not recognize the other accused persons named in the F.I.R. This has not been explained by the prosecution. That apart this witness has stated that he could recognize the above accused persons from their talks. It is settled law that recognization by voice is a weak piece of evidence. From his evidence it also comes out that as a result of fire from the gun of the accused, the neighbouring persons came after the occurrence. His sister, P.W. 9 was found after 12/13 days of the occurrence in the night by Rahmat Ali, P.W. 3 and Habibur Rahman who has not been examined. According to this witness, P.W. 9 told him that accused Kutu and Surman committed "Bad Acts" i.e. rape on her. It may be stated that accused Surman was acquitted by the learned trial Court. P.W. 2 has admitted that the F.I.R. was written by Majraf Ali alias Balu. In cross-examination this witness had first stated that his sister was not married earlier. Subsequently he admitted that she was married to Abidur Rahman and after leaving as husband and wife for 8/9 months there was a divorce. He has also admitted prior to this occurrence on an earlier occasion, accused Kutu took his sister, P.W. 9 and kept her in his house for about 12 days. He has denied that P.W. 9 was married to accused Kutu. From his evidence, I find that after Kutu took his sister on the earlier occasion, there was a village Bichar and he took her back by paying Rs. 500/ - to accused Kutu. He has admitted that subsequent to the present occurrence, P.W. 9 was married to Majraf Ali alias Balu and they are now leaving as husband and wife.
9. P.W. 3 that has been examined only to prove recovery of the girl after the present occurrence and he has stated that the victim girl, P.W. 9 was taken away by accused Kutu, Kala and Surman. He has admitted in a cross-examination that prior to one year before the present occurrence, Kutu married the victim girl P.W. 9 and they lived together for 5/6 months.
10. P.W. 4 came to the place of occurrence only after the incident took place and he has stated that P.W. 2 informed him that accused Surman and Kutu took P.W. 9 away. According to him, some other persons also came with the above two accused persons. I may mention here that P.W. 2 has not mentioned the name of accused Surman who was acquitted.
11. P.W. 5 also came to the place of occurrence after the incident and according to him the informant told him that accused Kutu, Kala, Surman and Jakhan took P.W. 9 away. So, this witness added two other names.
12. P.W. 6 also came to the place after the occurrence and according to him, P.W. 2 told him that accused Surman and Kutu along with other persons entered his house and abducted P.W. 9. This witness also admitted that after divorce and before the present occurrence accused Kutu took away P.W. 9 and kept in his house.
13. According to P.W. 7 who also went to the place after the occurrence, P.W. 2 informed him that accused Kutu took P.W. 9 away. From this witness, it appears that P.W. 2 did not report about the other accused. In cross-examination he has admitted that after divorce, P.W. 9 was married to accused Kutu and they lived together for about one year.
14. P.W. 8 is a Police Officer and he has made an interesting statement that after the occurrence there was apprehension of breach of peace between Mojrof Ali alias Balu and accused Kutu and therefore he filed a case on 12-11-83 Under Section 107, Cr. P.C. He has made another statement in cross-examination that while investigating another case against accused Kutu, he came to know that the present case "was a made up case" by Mojrof Ali alias Balu.
15. P.W. 9 is the victim girl and from her statement I find that she was taken away by accused Kutu and Surman along with another person and she was kept in the jungle at different places for two days and thereafter accused Kutu took her to his house in the jungle. In other words, she was kept in the jungle for three nights and only on 3rd night accused Kutu and Surman and another person whom she could not recognize committed rape on her. As stated earlier accused Surman was acquitted. She has admitted that prior to the present occurence, accused Kutu took her to his house and they lived together for about 12 days and Kutu gave a proposal for marriage which she refused and thereafter she was taken back home by her brother P.W. 2, by paying Rs. 500/- to accused Kutu. She has admitted that after the present occurrence she was married to Balu as stated by defence, though she has denied her marriage prior to the present occurrence to accused Kutu. She had admitted that after she was taken by accused Kutu on the earlier occasion there was cohabitancy.
16. From the above evidence for the prosecution it has been proved that the victim girl was first married to Abidur, thereafter there was a divorce, and after that accused Kutu took her prior to the present occurrence and there was cohabitancy between them. From the prosecution witnesses, I am of the opinion that it has been proved that prior to the present occurrence and after divorce Kutu married P.W. 9. From the evidence of the above Police Officer, I am constrained to hold that the present case has been falsely filed at the instigation of Balu alias Mojraf. Though seven persons have been named of the FIR, P.W. 2 could recognize only two accused persons in the night by their voice and some other witnesses of the prosecution tried to improve the story by implicating two more persons. It is also difficult to believe that only after the 3rd night the rape was committed. From the evidence of P.W. 9, it is clear that she could recognize accused Kutu and Surman who committed rape on her. Accused Surman is not before this court and accused Kutu has stated that he married P.W. 9 before this present occurence which I have accepted.
17. Another important point is that, though I.O. sent the girl after recovery for medical examination to the Medical College, no medical evidence was proved during the trial regarding rape. Relying the decision of the Apex Court, Mr. M.A. Laskar, learned Counsel for the Appellants has urged that in such a case the medical evidence is most important. On this point there cannot be any dispute.
18. Mr. K. Agarwalla, learned Counsel P. P., Assam has drawn my attention to the decision of the Apex Court in State of Maharashtra v. C.K. Jain, 1990 CRI LJ 889, wherein it was held that ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.
19. In the case in hand, the evidence of P.W. 9, the victim girl does not inspire confidence in view of the fact that she has suppressed that she was married to accused Kutu. That apart other witnesses have also not given the actual version of the prosecution story. I may also refer to the evidence of the Police Officer, P.W. 8 that the present case is a false one.
20. It may be stated that regarding offence Under Section 366, IPC, the only evidence available is that of P. W. 2, the informant. His evidence is not at all acceptable and that apart other reported witnesses have given different versions of the story. Even P.W. 9 has stated that she was taken by accused Kutu and Surman and another person whom she could not recognize. Accused Surman, as stated has already been acquitted and thereafter only Kutu remains. I have already held that P.W. 9 was married to accused Kutu. In view of the above position the prosecution has failed to bring home the charge Under Section 366, IPC.
From what has been stated above, I find merit in the present appeal and accordingly it is allowed by setting aside the conviction and sentence imposed by the learned Sessions Judge, Silchar. Accused -- Appellants are acquitted of the charges and they are released from the liability of the Bail Bond.