Gauhati High Court
Md. Abdul Kadir vs The State Of Assam on 20 February, 2013
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
Crl. A. 231/2006
Abdul Kadir,
S/o. Late Tamjid Ali Choudhury,
Vill : Jungal Block,
PS : Kamunamukh,
Dist : Nowgong, Assam.
...........Appellant
-Vs-
The State of Assam,
..........Opposite Party.
BEFORE
THE HON'BLE MR. JUSTICE B.K. SHARMA
For the Appellant : Mr. B.S. Basumatary, Adv.
For the respondents : Ms. B. Saikia, APP, Assam.
Date of hearing : 20.02.2013.
Date of judgement : 20.02.2013.
JUDGEMENT AND ORDER (ORAL)
Sharma, J Heard Mr. B.S. Basumatary, learned counsel for the appellant. Also heard Ms. B. Saikia, learned APP, Assam. I have also perused the entire materials on record.
2. This appeal is directed against the judgement of conviction dated 17.8.2006 passed by the learned Additional Sessions Judge (Adhoc), Hojai, Sankardev Nagar, in Sessions Case No. 250(N)/2005, by which the accused appellant has been convicted under Section 376 and 454 IPC and sentencing him to undergo RI for 7 years with fine of Rs. 2,000/- for the offence under Section 376 IPC and SI for one year with fine of Rs. 500/- for the offence under Section 454 IPC. In Crl. Appl. 231 of 2006 Page 1 of 5 default, to pay the fine, the appellant is to undergo further RI for 30 days and SI for 15 days respectively.
3. The criminal proceeding stood launched against the accused appellant with the lodging of the FIR on 19.3.2005 by the PW-1. The FIR was lodged with the Hojai Police Station to the effect that on 16.3.2005 (Wednesday) at about 11 AM, her cousin sister i.e. the victim girl was raped by the accused appellant, taking advantage of absence of any other persons in the house. According to the FIR, the victim was sleeping at that point of time because of her illness and the accused appellant entered into the house forcing open the door. As disclosed in the FIR, the victim girl is a deaf and dumb girl and used to earn her livelihood by doing household works. As regards the delay in lodging the FIR, it was stated that since the land-lord of the accused appellant had promised for settlement of the matter, there was some delay in lodging the FIR.
4. On the basis of the said FIR, Hojai PS case No. 84/2005 was registered under Section 454/376 IPC. In due course, investigation was carried out and the statement of the victim girl was recorded under Section 164 Cr.P.C. On conclusion of the investigation, police submitted charge sheet and thereafter the trial Court framed the charge under Section 454/376 IPC. During trial, the prosecution examined 5(five) witnesses including the victim girl. However, the IO could not be examined as he was lying seriously ill. The statement of the accused-appellant was also recorded under Section 313 Cr.P.C.
5. The learned trial Court on the basis of the evidence on record, having convicted the accused-appellant, he has preferred the instant appeal. Be it stated here that pursuant to the order passed on 03.01.2007 in MC No. 3898/2006, the accused-appellant is on bail.
6. Mr. B.S. Basumatary, learned counsel for the accused- appellant has submitted that the victim girl being deaf and dumb, the conviction is not sustainable solely on the basis of her testimony. He further submits that there being enmity between the first informant i.e. PW-1 and the accused-appellant, it will be unfair to convict the accused-appellant on the basis of her story made out in Crl. Appl. 231 of 2006 Page 2 of 5 the FIR lodged by the PW-1. Pointing out the purported contradiction between the statement of the PW-1 and the PW-5 i.e. the victim girl, he submits that the testimony of such witness is not sustainable in law.
7. Ms. B. Saikia, learned APP, Assam, on the other hand submits that there is nothing to disbelieve the testimony of the victim girl (PW-5). She submits that merely because the prosecutrix is a deaf and dumb, her testimony cannot be brushed aside, more particularly, when her statement was recorded with the help of recognized interpreter of Deaf and Dumb School.
8. I have very carefully considered the submissions made by the learned counsel for the parties and have also scrutinized the evidence on record. As stated above, the PW-1 is the first informant with whom the victim girl used to stay. She in her deposition stated that on the date of occurrence, the victim girl was alone in her house, as she had gone to another place for work. On her return to home at about 11 AM, she found the victim girl crying as the door of the house was in open condition and upon entering, she found the accused-appellant over the victim girl, committing the offence under Section 376 IPC. She in her deposition also stated that the accused- appellant had applied force on the victim girl. When she tried to get hold of him, he pushed her back and fled away. She further stated in her deposition that all the articles in the room were in scattered condition, suggesting that there was struggle between the accused- appellant and the victim girl. PW-1 further stated in her deposition that the matter was sought to be resolved through village Mel but the same resulted in failure.
9. PW-2 is the co-villager, who in his deposition stated about the incident as was narrated to him by the PW-1. He in his deposition also stated that the victim had identified the accused-appellant in his Landlord's house in his presence. PW-3 is the husband of the PW-1, who in his deposition stated about the incident as was narrated by PW-1 and the victim girl. PW-4 is the Doctor, who had examined the victim, who in his deposition stated that he could not detect any sign of injury in the private parts of the victim nor on the other parts. Be Crl. Appl. 231 of 2006 Page 3 of 5 it stated here that the victim was examined on 21.3.2005 i.e. after 5 (five) days of the date of occurrence. The occurrence took place on 16.3.2005.
10. PW-5 is the most vital witness, who in her deposition categorically stated about the offence committed on her by the accused-appellant. As noted above, she was examined through an Interpreter. In her deposition, she stated as to how the accused- appellant forcibly entered into the house and got her cloths removed towards committing the offence under Section 376 IPC. She in her deposition stated about the injury she has sustained on her back due to such offence.
11. The learned trial Court on the basis of the aforesaid evidence has convicted the accused appellant as aforesaid. On perusal of the evidence, what I find is that nothing contradictory could be brought out so as to disbelieve the testimony of PW-5, duly supported by other witnesses. There is nothing to show that there was any enmity between the victim girl and the accused-appellant.
12. As regards the purported enmity between the PW-1 and the accused-appellant, there is nothing to suggest that the victim girl fell prey to such enmity, I hasten to add that no enmity could be established in the evidence adduced but only a suggestion was made to the effect that the whole story was made out because of the alleged enmity. The victim being deaf and dumb girl and she having categorically stated about the offence committed on her, her testimony cannot be disbelieved. As has been held by the Apex Court in Madhoram Vs. State of UP reported in AIR 1973 SC 469, conviction on a charge of rape, even on the un-corroborated testimony of a prosecutrix is legally valid.
13. In the instant case, apart from the testimony of the victim girl, the same has been corroborated by the other witnesses. Above being the position, I do not find any merit in the appeal and it is dismissed. Accordingly, the impugned judgement of conviction stands sustained. The fine that has been imposed by the impugned judgement of conviction shall be paid to the victim girl.
Crl. Appl. 231 of 2006 Page 4 of 514. The accused-appellant, who is presently on bail, shall now surrender before the learned SDJM, Hojai to serve out the sentence. Needless to say that the sentence that has already been served shall be set off from the sentence to undergo.
15. The Registry shall send down the case records immediately along with the copy of the judgement and order.
16. Bail bond stands discharged.
JUDGE Sukhamay Crl. Appl. 231 of 2006 Page 5 of 5