Gauhati High Court
Md. Rafiqul Islam vs The State Of Assam And Anr on 21 December, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/13
GAHC010182752019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./308/2019
MD. RAFIQUL ISLAM
S/O- LATE NABIRUDDIN AHMED, R/O- VILL.- SANOWA (SALMARA), P.S.
SIPAJHAR, DIST.- DARRANG, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY P.P., ASSAM.
2:MD. NEKIBUDDIN AHMED
S/O- LATE FAZAL ALI
VILL.- SATKHALI
P.S. SIPAJHAR
DIST.- DARRANG
ASSAM
PIN- 784145
Advocate for the Petitioner : MR. L R MAZUMDER
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
(C.A.V.) Date : 21-12-2022 This appeal under Section 374 Cr.P.C., is directed against the judgment Page No.# 2/13 dated 27.06.2019, passed by the learned Addl. Sessions Judge (F.T.C.) Darrang, Mangaldai in Sessions Case No. 194 (DM)/2016. By the said judgment, the appellant was convicted for commission of offence punishable under Section 376 IPC and sentenced to undergo rigorous imprisonment for 7 (seven) years and to pay a fine of Rs.5,000/- (Rupees Five thousand only), in default to suffer simple imprisonment for a further period of 3 (three) months.
2. Heard Mr. A. Ahmed, learned counsel for the appellant and Mr. Bidyut Sarma, learned Addl. P.P. for the State.
3. Office note dated 03.06.2020 indicates that notice of this appeal, which was routed through the Addl. Deputy Commissioner, Darrang, Mangaldai, was duly served on the respondent no. 2, who had signed and received the notice to appear. Moreover, the notice of this appeal, which was routed though O/c., Sipajhar P.S. was received by Menuara Begum, wife of respondent no. 2. Thus, notice on respondent no. 2, who is the informant, was duly served. However, he has not entered appearance to contest this appeal.
4. The prosecution case was set rolling by the respondent no. 2, namely, Md. Nekibuddin Ahmed, who on 26.09.2016, had lodged an FIR before the Officer-In- Charge, Sipajhar P.S., alleging to the effect that on 24.09.2016 at about 4.00 pm his younger sister 'X' (name withheld), aged about 20 years had gone to Sipajhar Hospital for treatment of her eyes and thereafter, while waiting for bus at Bordoulguri Chowk, the appellant asked her to wait for some time and then he returned back at Bordoulguri Chowk and kidnapped his sister, took her to an unknown place and raped her. Thereafter, at about 12.00 pm in the night, he left at the front door of her house in a serious condition. On hearing the prosecutrix shout, the respondent no. 2 came out and saw his sister lying down Page No.# 3/13 smeared in blood. She was immediately taken to Sipajhar Hospital, where she was referred to Mangaldai Civil Hospital for better treatment.
5. On completion of investigation, charge-sheet was submitted by the Investigating Officer against the appellant under Sections 366/376 IPC. The case was committed for trial before the Court of Sessions, Darrang, Mangaldai. By order dated 03.02.2017, the case was transferred to the Court of Addl. Sessions Judge, FTC, Darrang, Mangaldai for trial. Vide order dated 03.03.2017, the said learned Court had read over and explained the charge to the appellant to which he pleaded not guilty and claimed to be tried.
6. The prosecution had examined 5 numbers of prosecution witness (hereinafter referred to as 'PW' for short), namely, respondent no. 2 (PW-1), prosecutrix 'X' (PW-2), Abdul Malik (PW-3), Dr. Archana Baruah, Medical Officer (PW-4), Khitish Deka, Investigating Officer (PW-5). The PWs had exhibited the following documents, FIR (Ext.1), seizure list (Ext.2), medical examination report of the prosecutrix [Ext.2(A)], statement of prosecutrix recorded under Section 164 Cr.P.C. (Ext.3), sketch map (Ext.4), charge-sheet (Ext.5) and another seizure list (Ext.6). After the prosecution witnesses were examined, the learned trial Court had examined the appellant under Section 313 Cr.P.C., wherein he had taken the plea of total denial and expressed his intention not to examine any witnesses in his defence.
7. The learned trial Court had relied upon the evidence of the informant, who had lodged the FIR, and the evidence of the prosecutrix, which was found to be corroborated by medical injury report regarding injury marks on her private parts in post vaginal wall and one stitch was given in Mangaldai Civil Hospital and opined that such injuries can be caused by forceful sexual Page No.# 4/13 intercourse. The learned trial Court had held that as per FSL report, presence of spermatozoa was seen in the smear. It was held that the prosecution could prove that the appellant was using the mobile phone given to him by the prosecutrix, which he was using by inserting the SIM card of Abdul Malik (PW-
3), i.e. 9859286687 and that the appellant was tracked by following the location of the mobile phone. Accordingly, by discussing the evidence on record, the learned trial Court had held the appellant guilty of committing the offence of raping the prosecutrix and he was convicted and sentenced accordingly.
Submissions of the learned counsel for the appellant:
8. The learned counsel for the appellant had submitted that there are a lot of lacuna in the investigation carried out by the investigating officer, which would be fatal to the prosecution, but was overlooked by the learned trial Court. In this regard, it was submitted that there was an inordinate delay of 2(two) days in lodging the FIR.
9. It was submitted that the investigating officer had not seized the medical documents from Mangaldai Civil Hospital where the prosecutrix was first examined; he did not examine any person nearby Bordoulguri; did not obtain call detail record to prove that the appellant had talked with the prosecutrix; did not seize blood stained clothes of the prosecutrix. Thus, it was submitted that the appellant had been convicted on the basis of surmises and conjectures.
10. The learned counsel for the appellant has submitted that in the FIR dated 26.09.2016, the informant (PW-1) had mentioned the name of the accused as Mukul Ali, son of Ohab Ali, resident of Village- Dumunichowki. Similarly, in her statement recorded on 01.10.2016 under Section 164 Cr.P.C., Page No.# 5/13 the prosecutrix had named Mukul Ali as the accused. However, no TIP was conducted to identify that the appellant namely, Rafiqul Islam, son of Late Nabiruddin Ahmed, resident of Vill. Sanowa (Salmara) was the accused.
11. It is also submitted that in the FIR it was alleged by the informant that the accused had thrown the prosecutrix i.e. sister of informant outside the informant's house, but in his cross examination, he had stated that he did not know who had thrown her.
12. It was submitted that although prosecution case is that the appellant had kidnapped the prosecutrix at about 4.00 pm on 24.09.2016, and then raped the prosecutrix and thereafter at about 12.00 pm in the night, he left her at the front door of her house in a serious condition and on hearing the prosecutrix shout, the respondent no. 2 (PW-1) came out and saw his victim sister lying down smeared in blood and that she was immediately taken to Sipajhar Hospital, where she was referred to Mangaldai Civil Hospital for better treatment, yet it was unnatural that neither the informant (PW-1) had asked his victim sister as to who was the criminal and it is equally unnatural that in Mangaldai Civil Hospital, the prosecutrix had told the informant (PW-1) that the appellant took her on a bike. It was submitted that it was unnatural that the PW-1 had come to know from others that his victim sister was raped by the appellant. Thus, it was submitted that till the FIR was lodged on 26.09.2016, the appellant was not the accused person but later on the identity of the accused together with name, father's name and address of the appellant was substituted.
13. It was further submitted that in her evidence, the prosecutrix had stated that on 17.09.2016, she got introduced with the accused by wrong Page No.# 6/13 number call. The prosecutrix had gone to the hospital with a boy and thereafter, the prosecutrix sent the boy home and while she was waiting at Bordaulguri Chowk for bus, the appellant asked her to wait for some time and then he arrived at Bordoulguri Chowk and kidnapped the prosecutrix. It was submitted that it was not believable that the appellant had kidnapped her because one cannot make someone sit on a motorcycle as a pillion rider forcefully on a public bus stand. Moreover, it was submitted that in her statement recorded under Section 161 Cr.P.C., it was stated that she had voluntarily accompanied the appellant. The prosecutrix had also stated in her evidence-in-chief that the accused knew that the prosecutrix was going to hospital. It was further stated by the prosecutrix that she gave the accused her mobile after removing her SIM card along with Rs.200/-. In her cross examination, the prosecutrix (PW-2) had stated that they had travelled about 30 km. from 06.30 pm to 12.00 midnight and in the said context, it was submitted that it was unnatural that the prosecutrix did not raise any hue and cry during about 5.30 hours while both the prosecutrix and accused were travelling together for about 30 km on a public road on a bike. Moreover, it was submitted that the appellant had allegedly taken Rs.150/- from the prosecutrix and filled up petrol on his motorbike, but the petrol pump personnel were not examined. Thus, it was alternatively submitted that the sequence of events would suggest that there was consensual sex between the prosecutrix and the appellant. Moreover, it was submitted that in her evidence-in-chief, the prosecutrix (PW-2) had stated that she was raped on 23.09.2016, which is not consistent with the FIR or evidence of PW-1.
14. It was also submitted that the FSL report did not implicate the appellant and the spermatozoa identified by the FSL report was not proved to Page No.# 7/13 be of the appellant. Moreover, the prosecutrix was medically examined by PW-4 on 01.10.2016, and as per her statement, the private part of the prosecutrix was stitched on 27.09.2016. The I.O. (PW-5) had stated in his cross- examination that the medical report of Mangaldai was not collected by him.
15. It was also submitted that the mobile CDR was neither seized nor exhibited to show that there was any contact between the prosecutrix and the appellant.
16. It was further submitted that the alleged statement of the prosecutrix that the appellant, i.e. Rafiqul Islam and Md. Mukul Ali, son of Ohab Ali were same person, was not exhibited and therefore, it was submitted that the identity of the perpetrator of rape was not proved.
17. It was also submitted that while examining the appellant under Section 313 Cr.P.C., lengthy questions were asked, which had caused serious prejudice to the appellant.
18. Thus, it was submitted that a false case was cooked up against the appellant, who was not the accused person at all.
19. In support of his submissions, the learned counsel for the appellant has relied on the following cases, viz., (i) Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171 (para 24, 29 & 30) (ii) Mussauddin Ahmed v. State of Assam, (2009) 14 SCC 541 (para 15, 16); (iii) Raju & Ors. v. State of Madhya Pradesh, (2008) 15 SCC 133 (para 10 & 11); (iv) Narayan Das @ Buchya Mali Das v. State of Tripura, 2012 (1) GLT 721 (para 13) .
20. The learned Addl. P.P. has submitted that as the PW-4, i.e. the Page No.# 8/13 Medical Officer had stated that the private part of the prosecutrix was stitched and had also stated that bleeding could be because of forceful sexual intercourse, the non-examination of the Medical Officer, who had stitched the wound/ injury was not fatal and in this regard, reliance is placed on the case of Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74 (para 5.2, 5.3, 5.6, & 7 to 11). It was submitted that as the evidence of the prosecutrix inspired confidence, trustworthy and believable, the non-exhibiting of certain documents, as pointed out by the learned counsel for the appellant was immaterial. In so far as the issue of identity of the perpetrator of rape is concerned, it was submitted that the I.O., in his cross-examination had admitted that the appellant and Mukul Ali were same person and therefore, the case was proved beyond reasonable doubt. Therefore, it was submitted that the projected minor discrepancy like the statement of PW-1 that he did not know who dropped the prosecutrix in front of his house, non-examination of petrol-pump attendant, or non-examination of garments of the appellant would not be fatal to the prosecution because the mobile of the prosecutrix was seized by the I.O., which contained SIM card given to the appellant by the PW-2.
21. In support of his submissions, the learned Addl. P.P. has placed reliance on the case of State of Punjab v. Gurmit Singh & Ors., (1996) 2 SCC
384.
22. The LCR and the cases cited at the Bar have been perused.
23. In view of the nature of order proposed to be passed, the Court does not feel that any need to discuss the evidence on record. The reasons are assigned herein after.
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24. Some of the discrepancies in the prosecution case, which were highlighted by the learned counsel for the appellant can be summarized as follows, viz., (i) as per the FIR, the date of alleged rape was 24.09.2016, but as per the evidence-in-chief of the prosecutrix (PW-2), the occurrence took place on 23.09.2016. Hence, it was submitted that the date of alleged offence as per version of the PW-2 was not consistent with the contents of the FIR (Ext.1) or evidence of PW-1; (ii) the questions put to the appellant during his examination under Section 313 Cr.P.C. were lengthy and complex and in this regard it was submitted that the appellant could not have given an effective answer and accordingly, it was submitted that the appellant had suffered serious prejudice.
25. Moreover, it is seen that the I.O. (PW-5), in his cross- examination, had stated that he had visited Mangaldai on 27.09.2016, but could not collect the medical report, presumably of Mangaldai Civil Hospital. However, on a perusal of the LCR, it appears that a medical examination report dated 12.10.2016 is available on record. However, the said medical report has not been proved but the PW-4 has relied on the said unproved lab report no.183 issued by the Mangaldai Civil Hospital. However, (i) the entry contained in the said unproved medical report dated 12.10.2016, (ii) the medical examination report (Ext.2(A)), and (iii) the evidence of the doctor (PW-4) is inconsistent with the finding recorded by the learned trial Court to the effect that "Presence of spermatozoa was seen in the smear."
26. It is noted with concern that while examining the appellant under Section 313 Cr.P.C., 3 (three) long questions, purportedly, the gist of evidence of the PW nos. 1, 2 and 3 were asked by the Court. As the questions are long and complex, in the considered opinion of the Court, effective answers Page No.# 10/13 could not have been given by the appellant. Thus, the Court has to concur with the submissions made by the learned counsel for the appellant that the appellant has suffered prejudice. In this regard, the Court finds support from the case of Jai Prakash Tiwari v. State of Madhya Pradesh, 2022 LiveLaw (SC) 658: 2022 Cr.L.J. 4060. Paragraphs 19, 20 and 25 to 27, thereof are quoted below:-
"19. In the case at hand, the alternate version put forth by the appellant-accused could not be ignored. Section 313 CrPC confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right, as a constitutional right to a fair trial under Article 21 of the Constitution. [See Reena Hazarika v. State of Assam, (2019) 13 SCC 289]
20. This Court in the case of Satbir Singh v. State of Haryana, (2021) 6 SCC 1, while emphasising upon the significance of Section 313 CrPC, has delineated the duty of the trial Court and held thus:
'22. It is a matter of grave concern that, often, trial courts record the statement of an accused under Section 313 CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defence. It ought to be noted that the examination of an accused under Section 313 CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness. This provision incorporates the valuable principle of natural justice 'audi alteram partem', as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the part of the court to question the accused fairly, with care and caution. The court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defence, since the inception of the trial, with due caution' (emphasis supplied)
25. In the present case, the courts below failed to scrutinize the defence version put forward by the appellant-accused in his Section 313 statement.
The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. (See Asraf Ali v. State of Assam, (2008) 16 SCC 328]
26. The purpose of Section 313 CrPC is to provide the accused a reasonable opportunity to explain the adverse circumstances which have emerged against him during the course of trial. A reasonable opportunity entails putting all the adverse evidences in the form of questions so as to give an opportunity to the accused to articulate his defence and give his explanation.
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27. If all the circumstances are bundled together and a single opportunity is provided to the accused to explain himself, he may not able to put forth a rational and intelligible explanation. Such, exercises which defeats fair opportunity are nothing but empty formality. Non-fulfillment of the true spirit of Section 313 may ultimately cause grave prejudice to the accused and the Court may not have the benefit of all the necessary facts and circumstances to arrive at a fair conclusion."
27. Moreover, the appellant was not put to notice of the circumstances appearing against him from the evidence of Medical Officer (PW-
4) and the Investigating Officer (PW-5). This, in the considered opinion of the Court is fatal to the prosecution. However, the evidence of PW-4 and PW-5 were relied upon by the learned trial Court in the impugned judgment. Thus, it appears that the learned trial Court had perfunctorily examined the appellant under Section 313 Cr.P.C. Moreover, the perfunctory manner of examining the appellant also appears from the fact that although the examination of appellant under Section 313 Cr.P.C. is recorded in three hand-written sheets, but the signature of the appellant has been taken only in the second page and the first and last/third page of such examination does not bear the signature of the appellant. Such an omission on part of the Court to (i) put the circumstances appearing against the appellant out of the evidence of PW-4 and PW-5; (ii) putting long questions to the appellant, by giving the gist of evidence of PW-1, PW-2 and PW-3 in question form to the appellant, and (iii) not taking signature of the appellant in all three sheets of examination under Section 313 Cr.P.C. have cumulatively caused serious prejudice to the appellant. The appellant has been deprived of a reasonable opportunity to effectively respond to such circumstances appearing against him. Therefore, the Court is of the considered opinion that the important circumstances appearing against the appellant does not appear in the examination of the appellant under Section 313 Cr.P.C. and Page No.# 12/13 therefore, there has been failure of justice. Resultantly, it has to be held that the appellant had suffered serious prejudice.
28. Therefore, the appeal has to succeed and therefore, this appeal stands allowed. For the aforesaid reasons, the rest of the evidence has not been discussed in this judgment.
29. The judgment of conviction and the resultant sentence imposed by the learned trial Court stands reversed. As this appeal has been allowed on technical grounds, the Court is inclined to invoke its jurisdiction under Sub- Clause (i) of Clause (b) of Section 386 Cr.P.C., order that the appellant be re- tried by the learned trial Court, i.e. the Court of learned Addl. Sessions Judge (F.T.C.) Darrang, Mangaldai from the stage of examination of the appellant- accused under Section 313 Cr.P.C.
30. The learned trial Court is directed to consider the law relating to manner in which accused is required to be examined under Section 313 Cr.P.C., and dispose of the case, as expeditiously as possible, preferably within a period of 6 (six) months from the date of receipt of records (LCR) together with a copy of the order.
31. The Registry shall expeditiously return back the LCR together with a copy of this judgment and order.
32. The learned Addl. Sessions Judge (F.T.C.) Darrang, Mangaldai on receipt of a copy of this order, direct the jail authorities to produce the appellant within next 7 (seven) days. Notwithstanding production of the appellant before the Court, the appellant is also granted liberty to produce a certified copy of this order before the learned trial Court and move the said learned Court for Page No.# 13/13 considering grant of bail during trial.
33. The appeal stands allowed to the extent as indicated above.
34. Before parting with the records, the Court is inclined to clarify that during re-trial, the learned trial Court shall not be influenced by the observations made by the Court in this order. In other words, the appellant shall not be prejudiced by any observations that have been made in this order.
JUDGE Comparing Assistant