Calcutta High Court (Appellete Side)
Rezzak & Akka vs State Of West Bengal on 10 September, 2008
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice Mr. Tapas Kumar Giri
CRA No.169 of 1992
Rezzak & Akka
Versus
State of West Bengal
For the Appellant: Mr. H. Rahaman
For the State: Mr. R. K. Ghoshal
Heard on: 04.09.2008
Judgment on: September 10, 2008.
TAPAS KUMAR GIRI, J.:-
This appeal arises against the judgment and order of conviction dated
30.05.1992passed by learned Additional Sessions Judge, Islampur, Uttar Dinajpur in Sessions Case No.14 of 1990 (Sessions Trial No.49 of 1990) whereby the learned Additional Sessions Judge convicted the accused Akka under Section 448/506 read with Section 34 of the I.P.C. and sentenced to suffer R.I. for two years for the offence under Section 506 I.P.C. and six months R.I. for under Section 448 I.P.C. and accused Rezzak was convicted under Section 448/376 I.P.C. and sentenced to suffer R.I. for six months and two years respectively.
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The fact of the present case is that Bibi Lalman lodged a written complaint before the Court of Learned S.D.J.M., Islampur to the effect that on Sunday at about 11 P.M. when she was sleeping in her mother's room with her nephew aged about two years, both the accused entered into the room and Rezzak outraged her modesty and raped her. Accused Akka stood with a knife in his hand threatening her. Due to fear she did not raise any alarm. Afterwards she raised alarm and her brother Mansur came to the room and she narrated the incident to him. Mansur called his brothers and they went to the house of the accused but they did not find them. Afterwards they reported the matter to Abdul Rahim and Jainuddin of the same village and they assured to settle the matter on salish but no salish was held and thereafter she went to the P.S. but the police officer advised her to lodge a complaint before the Court. Bibi Lalman lodged the complaint to the learned S.D.J.M. After taking cognizance learned S.D.J.M. examined Lalman Bibi and other witnesses and issued summons against both the accused i.e., Rezzak and Akka who were released on bail. Charge under Section 376/448 I.P.C. was framed against the accused Rezzak and charge under Section 448/506 I.P.C. was framed against Akka. They pleaded not guilty.
In support of the prosecution case the prosecution cited six witnesses i.e., Bibi Lalman (P.W.1), Mansur Ali (P.W.2), Abdul Rahaman (P.W.3), Tayab Ali (P.W.4), Shebalal Singh (P.W.5), R. K. Halder (P.W.6).
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The learned Additional Sessions Judge, Islampur after going through the evidence of the above witnesses and after considering the submission of both sides convicted and sentenced the accused as stated above.
Learned Advocate Mr. H. Rahaman appearing on behalf of the petitioner Akka pointed out that the bail of accused Rezzak was refused by the High Court and as such he was in custody and he was released from the jail after serving the sentence. But accused Akka was released on bail by the Learned Court below confirmed by the High Court. Mr. Rahaman pointed out that no allegation against accused Akka came before the Trial Court by way of evidence. The evidence of P.W.1, P.W.2, P.W.5 and P.W.6 were not sufficient to prove allegation under Section 448/506 I.P.C. against the accused Akka. The evidence of P.W.3 and P.W.4 who were declared as hostile did not support the prosecution case.
As such the conviction passed by the Learned Trial Court in respect of the accused Akka is liable to be set aside.
Mr. R. K. Ghoshal learned Advocate appearing on behalf of the State contended that the sufficient evidence had come before the Learned Court below to prove the allegation under Section 448/506 I.P.C against the accused Akka beyond reasonable doubt and suspicion. The conviction passed by the Learned Court below is justified and the present appeal is liable to be dismissed. 4
Heard both sides.
After scrutinizing the evidence of P.W.1 it is clear that accused Akka stood with a knife in his hand threatening the victim that he would stab her if she raised any alarm and subsequently she raised alarm and her brother Mansur came to the room of P.W.1. The above evidence of P.W.1 was corroborated with the evidence of P.W.2, P.W.3 and P.W.4. But they were the hearsay witnesses. P.W.2 who was also hearsay witness did not state whether accused Akka threatened her with a knife or not at the time of commission of rape by Rezzak. In cross-examination of P.W.2 it was mentioned that Rezzak entered into the room and committed rape while Akka stood outside the room. The prosecution failed to give any satisfactory reply by way of cross-examination to disbelieve the evidence of P.W.2, P.W.3 and P.W.4 at the time of trial. Moreover, accused Akka remained silent during his examination under Section 313 Cr. P. C. while he was implicated in this case by the complainant P.W.1. From the evidence of P.W.1 it is clear that she found accused Akka standing inside her room with a knife by way of threatening not to raise any alarm when accused Rezzak committed rape upon her. There was no evidence from the part of the defence why such evidence of P.W.1 was reliable. In the present case P.W.1 was the sole witness in the alleged commission of offence of rape by accused Rezzak and 5 the active participation of accused Akka for his presence in her room with a dragger for threatening her not to raise any alarm. There was no scope to see the alleged incident by any independent witness though P.W.1 raised alarm just after the occurrence and P.W.2 came to the P.O. and she narrated the same. The said evidence of P.W.1 was corroborated with the evidence of P.W.2, P.W.3 and P.W.4. There was no scope to disbelieve the evidence of P.W.1 with reference to the evidence of P.W.2, P.W.3, P.W.4 and P.W.5. The allegation under Section 448/506 I.P.C. was proved against the accused Akka beyond reasonable doubt and suspicion. The conviction passed by the Learned Additional Sessions Judge, Islampur is justified. However, the matter is pending since 1992 and the accused Rezzak already served the punishment as imposed by Learned Additional Sessions Judge, Islampur.
As such the punishment of accused Akka passed by Learned Additional Sessions Judge, Islampur is modified. The accused Akka be sentenced to suffer R.I. for 15(fifteen) days for each of the offences. Sentences will run concurrently. The order of conviction passed by Learned Additional Sessions Judge, Islampur dated 30.05.1992 in respect of the accused Akka is modified accordingly. 6
Bail bond of accused Akka is cancelled. He is directed to surrender before the Learned Additional Sessions Judge, Islampur to serve the sentence. Learned Additional Sessions Judge, Islampur is directed to issue the modified jail warrant.
Let the copy of the judgment along with the L.C.R. be sent to the Learned Additional Sessions Judge, Islampur at once.
Urgent xerox certified copy be supplied to the party, if applied for.
(TAPAS KUMAR GIRI, J.)