Gauhati High Court
Md. Sahab Uddin Laskar vs The State Of Assam & Anr on 25 March, 2015
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
Criminal Appeal No. 249/2014
Md. Sahab Uddin Laskar
S/o Yasin Ali Laskar
Vill:- Ujankupa Part-III
P.S. & District- Hailakandi
Assam
(now in jail).
......Appellant/ Accused .
By Advocates:
Mr. S. U. Laskar
Mr. M. A. Barbhuiya
Mr. M. H. Laskar
-Vs-
1.The State of Assam.
2. Musstt. Jasmina Begum D/o Md. Chandu Mia Add.- Vill- Ujankupa Pt. III P.S. & Distt:- Hailakandi PIN-788801.
.....Opposite parties.
By Advocates:
Mr. K. Munir, Addl. P.P. BEFORE HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN Date of hearing : 24-02-2015.
Date of Judgment & Order : 25.3.2015
JUDGMENT & ORDER (CAV)
I have heard Mr. S. U. Laskar, learned counsel for the appellant and Mr. K. Munir, learned Addl. P.P., Assam.2
2. This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973, preferred against the judgment & order dated 09.05.2014 passed by the Assistant Sessions Judge, Hailakandi, in Sessions Case No. 39/2011 convicting the accused Md. Sahab Uddin Laskar, u/s. 448 IPC and sentencing him to undergo rigorous imprisonment for 6(six) months, with a fine of Rs. 500/- and in default of payment of fine, further simple imprisonment for another 15 days and also convicting the said accused u/s. 376 IPC to undergo a rigorous imprisonment for 9 years, with a fine of Rs. 2000/-, and in default of payment of fine, simple imprisonment for further period of 1 month.
3. The prosecution case, in brief, is that one Musstt.
Jasmina Begum, d/o Md. Chandu Miya, of village Ujankupa Part- III under P.S. & Distt. - Hailakandi, Assam, had lodged a complaint petition before the Court of learned Chief Judicial Magistrate, Hailakandi, stating, inter alia, that as the complainant earlier had lodged one case against the accused Md. Sahab Uddin Laskar, including his other three brothers and their father; and out of grudge, the said accused accompanying with three unknown persons armed with 'dao', 'dagger', etc., on 01.08.2010, at night, at around 8PM, taking advantage of absence of any family members in her house, had trespassed into her house illegally and scolded her and the said accused threatened her life by showing a 'dao' and caught hold of her and fell her on the ground by putting a cloth in her mouth an thereafter, committed sexual intercourse against her will, and after the said accused left their house, the complainant victim raised an alarm and on hearing her hue and cry, the neighbours came to her house and she narrated her ordeal to them.
3Upon receipt of the said petition, the learned Chief Judicial Magistrate, Hailakandi, forwarded the same to the Officer-in-charge, Hailakandi Police Station, for registration and investigation of the matter, who registered the said complaint as Hailakandi P.S. Case No. 353/2010 u/ss. 448/376 IPC. On conclusion of the investigation, charge-sheet was submitted against the accused person u/s. 448/376 IPC. The accused stood trial and after conclusion of hearing, the learned trial Court convicted the said accused, vide order dated 09.05.2014, passed in Sessions Case No. 39/2011, as stated above.
4. Being highly aggrieved by the said judgment & order dated 09.05.2014, the accused, above mentioned, has preferred the instant appeal, on the following grounds:
(i) The complainant has already lodged an FIR against the accused, which is pending before the Court of learned Chief Judicial Magistrate, so there will be double jeopardy for the subsequent case filed by the complainant, on the same occurrence.
(ii) The Court failed to appreciate the medical evidence so given by the M.O. who has denied the allegation of rape.
(iii) The statement of the victim girl is virtually contradicted by her parents on material aspect which has not been considered by the learned Court below.
(iv) No any independent witness has been examined by the prosecution though according to the victim girl, she reported the incident to the neighbouring persons. The own relative of the victim as well as informant has denied the 4 allegations and turned hostile and his evidence has negated the prosecution story who has indicated that out of enmity, the case has been filed.
(v) Certain material background of the case about the enmity between the father of the accused and father of the victim; that father of the victim was a man of bad character, for which, falsity of the allegation cannot be denied, etc., are not considered by the learned Court below.
5. I have heard the argument of the learned counsel for the appellant, who has vehemently challenged that the prosecution case is totally doubtful for the earlier enmity between the parties and the prosecution has not explained the delay of one week for filing the case. The learned Court below fails to appreciate vital aspect of the case that as claimed by the petitioner, she was alone in her house, at that night hours, is not true in view of the statement of her mother that there were other six minor children in the house at that relevant time. The medical evidence has also lent no support to the story of the victim. On the basis of such discrepancy in the evidence on record, the learned counsel for the appellant has submitted that the allegation is baseless and charges cannot be stated to be proved upon such unreliable evidence. Reliance has been placed upon the judgment & order of the Hon'ble Apex Court passed in Crim inal Appeal N o. 951/ 2005 Abbas Ahm ed Choudhury v. State of Assam , wherein it has been held that in a matter of rape, the statement of the prosecutrix must be given primary consideration but at the same time, the broad principle that the prosecution has to prove its case beyond all reasonable doubts, applies equally to a case of rape and there can be no 5 presumption that the prosecutrix will always tell the entire story, truthfully.
6. On the other hand, the learned Addl. P.P., Assam, has submitted that in the given case, medical examination report is of no consequence as it was made after several days. The word used 'recent' in the report means 24 hours, and as the victim was examined after several days, so non-finding of sign of injury will not negate the allegation of the victim woman. It has also been argued that the victim immediately informed the matter to her father and her silence about the children, does not ipso facto belied her allegation. Accordingly, it is urged that in view of the corroboration of the testimony of the victim by her parents, the charge is proved against the accused person and the accused can be convicted even on sole testimony of the victim.
7. I have considered the rival submissions of both parties and also scanned the evidence on record. To find the factum of double jeopardy as has been alleged by the appellant, it is to be noted that it has been raised in a wrong notion because there was no two cases against the same occurrence and against the same accused appellant as has been alleged. It was the same complaint which was lodged by the complainant/victim before the Court of learned Chief Judicial Magistrate, Hailakandi, on 07.08.2010 and which was forwarded to the Hailakandi P.S. for registration and accordingly, Hailakandi P.S. Case No. 353/2010 was registered and charge-sheet were submitted against the accused person, u/s. 448/376 IPC.
8. On the next, let us appreciate the evidence of star- witness of the prosecution i.e. the victim/PW-2, who, in her 6 short evidence, has, given a stereo-type evidence that on the fateful day, at about 8.30PM, the accused entered into their house and raped her, while she was preparing her bed, by gagging her mouth. In her cross-examination, she has stated that she was alone in her house and there were some other assailants along with the accused, who were putting clothes in her mouth. Her parents found her in senseless condition on the ground of her house. As the parents were absent at the time of the incident, so hearing her hue and cry, neighbouring people came and she narrated the facts to them. The accused remained in her house for half an hour. However, she has denied about taking money by her father from the father of the accused and dispute arose for non-returning of the said money.
9. Now, let us dissect her evidence, one by one. The fact that she was alone at the time of occurrence in the house, is belied by her own mother/PW-4, who stated that her other six minor children i.e. younger brothers & sisters of the victim, were very much present in the house then why she made no hue and cry if there was any forceful rape. Obviously, it may be a consensual sex between the parties. Again, her evidence-in- chief is totally silent about the presence of other assailants at the time of the occurrence and she has contradicted her own FIR so filed which has raised doubt about the authenticity of the occurrence. Her evidence is also contradicted by the I.O. that she did not mention before him that other assailants put cloth in her mouth at the time of occurrence. Similarly, the PWs-3 and 4 did not mention before the I.O. that they went to Katlisera on the day of occurrence and returned at about 9PM.
10. The immediate reaction of the victim is to be noted. According to the FIR, while she made hue and cry after the 7 incident, then the neighbouring people arrived and she narrated the whole incident to them and in her cross-examination, she has stated that her parents found her senseless on the ground in the house. This aspect of this evidence is again contradicted by the testimony of her parents. The PW-3/father of the victim, has stated that he found his daughter was talking with some other females on reaching his house and PW-4 has stated that the victim was found in normal condition on her return after the incident. So it can be safely assumed that there is suppression of facts by all the witnesses. So how such evidence can be relied by the prosecution is a considerable aspect. To prove the fact that the accused committed rape against her consent for which she made the complaint before the neighbouring people, no any such independent person has been examined by the prosecution in support of the testimony of the victim in tune with the FIR.
11. Equally, the evidence of M.O. also did not support the testimony of the victim about such forceful rape by the accused appellant. Though the victim was examined after four days of occurrence, but had there been forceful sexual assault, there would have been injury or mark of violence upon the victim. It is also not explained if the rape was committed on 01.08.2010 then why they waited for medical examination after so many days.
12. On the top of the matter, prosecution has not totally explained the delay of one week in filing the case. In view of the evidence of the I.O., it is an admitted position that the FIR was lodged on 07.08.2010 whereas the occurrence took place on 01.08.2010. The prosecution is totally silent for filing the 8 case after a long delay. It is settled principle of law that delay in filing FIR is always doubtful unless it is substantially explained.
13. It appears from the perusal of the impugned judgment & order of the learned Court below that without appreciating the evidence of the victim and other facts and circumstances as mentioned above, the testimony of the victim has been accepted as a truthful and trustworthy statement. But, the facts and circumstances has fully contradicted the testimony of the victim, her conduct is very much doubtful. She being a married woman at the time of alleged occurrence, was in a stage to resist the appellant but instead the accused appellant stayed with her half an hour which is not a truthful situation. On the other hand, why she suppressed about the presence of other six children in the house, is another doubtful circumstance. A court of law is always required to be guarded by the test of reasonableness of a situation so as to gauge the veracity of the witnesses to appreciate evidence in proper perspective of law as well as facts. As has been discussed by the learned Court below, law is pretty clear that the offence of rape will be constituted if such forceful conduct is made against the consent. But behind the allegation, Court should have appreciated the credibility of the witness in the given facts and circumstances.
14. It is also worth mentioning that PW-1 who happens to be the brother-in-law of the PW-3, who has without hesitation has stated that the incident took place only due to transaction of money and in fact the assault took place between the father of the accused appellant and the PW-3. Though this witness was declared hostile by the prosecution but he stood by his statement as earlier. In his cross-examination, he has totally 9 discredited the prosecution case by saying that the PW-3 who is his brother-in-law has criminal background was arrested by the police on several cases and due to such bad character, he was out-casted by the society. He also knows the father of the accused and PW-3 borrowed some money from him and over the payment of same, assault took place between the PW-3 and father of the accused. His evidence being the brother-in-law of the PW-3, bears much importance in this case and it has given the boost to the cause for delay in filing the FIR after a long delay. The criminal background of the father of the victim also brought on evidence that the local people burnt the house of PWs-3 and 4 being annoyed for their criminal activities. PW-3 brought PW-4 without marrying her, who is a wife of other person, which, he admitted in his evidence. In such eventuality, it is not impossible on the part of such a person to lodge false criminal case one after another for his personal gain.
15. In a case reported in 2015 STP L(W eb 153 SC); Rabindra v. State of M adhya P radesh , it has been held that Court should not solely rely on the testimony of the prosecutrix as her statement requires corroboration as it has minor contradictions and is not corroborated by other prosecution witnesses and her own maternal uncle of the prosecutrix did not support her case and was declared hostile. It has also been held that the testimony of a prosecutrix if found reliable, by itself, may be sufficient to convict without corroboration but only by way of abundant caution, that the court may look for some corroboration so as to satisfy its conscience and to rule out any false accusations.
16. In another case law, reported in 2014(STP L W eb 1991); Am arlal V. State of Rajasthan , the conviction u/s. 376 IPC was 10 set aside on the ground of contradictions, doubtful stories, enmity between the parties, contradiction between FIR and evidence in court, omission to mention important facts, forcible rape has been denied by the medical report.
17. In the given background of this case, due to material inconsistencies in the evidence of the prosecution witnesses, and in view of earlier enmity between the parties and coupled with delay in lodging the FIR, the possibility of false accusation cannot be ruled out. As a result, I find and hold that the charge u/ss. 448/376 IPC is not proved beyond all reasonable doubts, hence, I acquit the said accused, from the above mentioned charges, and set at liberty forthwith.
18. Send down the LCRs forthwith.
JUDGE Bikash