Gauhati High Court
Md Liakat Ali vs The State Of Assam on 8 August, 2013
Author: Anima Hazarika
Bench: Anima Hazarika
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND
ARUNACHAL PRADESH)
CRIMINAL APPEAL NO. 40(J)/2008
MD. LIYAKAT ALI
S/O MD. JALAL MIYA
VILL:NO. 1, OJAGORHBASTI (SALMARI)
PS MAZBAT, UDALGURI,
DARRANG.
....Appellant
-Versus-
THE STATE OF ASSAM ....Respondent
BEFORE
HON'BLE MRS JUSTICE ANIMA HAZARIKA
Advocate for the appellant : MR D. NATH,
Amicus Curiae.
Advocate for the respondent : Ms B. Bhuyan
Addl. Public Prosecutor,
Assam.
Date of hearing : 08.08.2013
Date of judgment : 08.08.2013
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JUDGMENT AND ORDER (ORAL)
Heard Mr D. Nath, learned Amicus Curiae appearing for the accused appellant. Also heard Ms B. Bhuyan, learned Additional Public Prosecutor, Assam for the respondent State.
2. This appeal is directed against the Judgment and Order dated 05.02.2008 passed by the learned Sessions Judge, Darrang, Mangaldoi, in Sessions Case No. 33(DM-3)/97 whereby and whereunder the accused appellant was convicted under Section 366/376 IPC and sentenced to suffer Rigorous Imprisonment (RI) for five (5) years and to pay a fine of Rs. 5,000/-( Rupees five thousand), in default, further RI for six (6) months with direction to pay the fine amount, if realized, to the victim as compensation.
3. The prosecution case in brief is that on 04.06.1994 an FIR was lodged before the Officer-Incharge, Mazbat Police Station by one Smti Punamai Saikia, the mother of the victim girl contending inter alia that on 02.06.1994, the accused Md. Liyakat Ali kidnapped her daughter (victim girl's name not mentioned), who was about 14 years old, while she was returning home from school during evening time. 3
3. On receipt of the FIR, police registered a case being Mazbat Police Station Case No. 54/94 under section 366(A) IPC and started investigation. During investigation, the Investigating Officer (I.O. for short) visited the place of occurrence, recorded the statement of the witnesses, rescued the victim girl and sent her to the Court for recording her statement under section 164 CrPC. Thereafter, she was sent to the Gauhati Medical College and Hospital for examination. After collecting the medical report, arrested the accused and sent him to custody. On completion of the investigation, the police submitted charge-sheet against the accused person under section 366(A) IPC. Ext. 4 is the charge sheet. Ext. 4(1) is the signature of the I.O.
4. The offence being exclusively triable by the court of Sessions, the learned Judicial Magistrate 1st Class, Udalguri has committed the same to the court of learned Sessions Judge, Darrang, Mangaldoi wherein having found the prima-facie case made out against the accused person under section 366/376 of the IPC, the charge was framed accordingly. The charges so framed being read over and explained to the accused, he pleaded not guilty and claimed to be tried.
5. During the trial, prosecution examined as many as four (4) witnesses including the Investigating Officer and the Informant. After closure of the prosecution witnesses, the learned trial court recorded 4 the statement of the accused under section 313 CrPC. The accused took the plea of complete denial and declined to adduce any evidence.
6. The learned trial court on the basis of the evidence adduced by the prosecution witnesses as well as considering the medical report, passed the judgment of conviction as indicated hereinabove. Hence, the present appeal by the accused from jail.
7. In the present case in hand, PW 1 is the informant Smti Punamai Saikia, who has deposed that the victim girl is her daughter and at the time of incident she was studying in Class VII. On the day of occurrence when she was returning from her school, the accused forcibly took her away.At that time she was about 12 years old. The occurrence took place on 02.06.1994 but she lodged the FIR on 04.06.1994 as the family members were searching for the victim girl. When they could not search her out, she lodged the FIR. After recovery of her daughter, the victim girl, on being asked, she informed her mother that the accused had kidnapped her.
During cross-examination, suggestions put to PW 1 have been denied.
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8. PW 2 is the victim girl. She had stated that she knew the accused. On 02.06.1994 the occurrence took place and at that time, she was a student of Class VII. On that day at about 3-00 P.M., when she was returning from her school, the accused induced her to go along with him. Initially she refused to go with him but subsequently when the accused showed his dagger and told her that, if she refused to go, he would kill her. Then, out of fear she accompanied him. At that time there was none and so she had to follow the accused through the jungle. The accused took her to his maternal grand father's house situated at Lalpool. He kept her there for two nights. During that period the accused committed sexual intercourse with her forcibly against her will. Thereafter, the accused took her to the house of his brother-in-law Intaz Ali. Police caught both of them from the house of Intaz Ali and produced them before the Udalguri court. Her statement was recorded by the court. Ext. 2 is the statement and Ext. 2(1) is her signature. She was also medically examined at GMCH, Guwahati.
In the cross examination, she stated that the accused used to visit their house sometimes on his own and on the day of occurrence the accused met her while coming from school and asked her to go along with him but when she refused, the accused showed her dagger. She could not raise alarm as there was none. The accused took her to the house of his maternal grand father situated at Lalpool and there also the accused 6 did not allow her to come out from the house. The accused committed sexual intercourse with her forcibly and both of them were caught by police from the house of Intaz Ali, brother-in-law of the accused.
9. PW 3 is the co-villager Ibrahim Ali who has deposed that when the accused took the victim girl to the house of his brother-in-law i.e. Intaz Ali then Intaz Ali called him. On being asked victim girl informed that she had an affair with the accused and she wants to marry the accused. But PW 3 told them that, both of them belong to different caste. By saying so, PW 3 took both the accused and the victim girl and produced them before the police at the police station.
However, during cross examination, PW 3 has stated that few years back Intaz Ali died in a bomb blast. He also stated that after few months of the incident the victim girl was married to another boy.
10. PW 4 is the Investigating Officer. He has stated that he investigated the case, recorded the statement of the witnesses and also visited the place of occurrence. When the victim girl was recovered, she was medically examined and her statement was also recorded by the court. After conclusion of his investigation he collected the medical report and submitted charge sheet against the accused and the accused was also arrested by him.
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During cross examination, he has stated that the victim girl was recovered from the house of Intaz Ali with the accused.
11. In the statement recorded by the Court under section 313 CrPC, the accused stated that the victim girl fled away with him as there was love affair between them.
12. On perusal of the evidence on record, it would reveal that though the accused had stated in his statement recorded under section 313 CrPC that both of them had love affair and the victim girl came with him on her own will, but in her statement made before the court by the victim girl under section 164 CrPC, she has very specifically stated that the accused took away her forcibly by showing dagger when she refused to go along with him and at that time there was nobody found available in the area. She had further stated that she was forcibly raped by the accused. It is also evident from the evidence on record that the victim was aged about 13/14 years of age and she was studying at Class VII at the time of occurrence. She was recovered by the police from the house of the brother-in-law of the accused, Intaz Ali.
13. Though in the case in hand victim girl was examined medically but the doctor has not been examined by the prosecution. However, on perusal of the certificate issued by the doctor and the 8 opinion given on 06.06.1994 on the basis of physical examination, radiological findings and laboratory examination of the victim girl, the age was found to be about 14 years and below 16 years which shows that the victim girl was minor at the time of commission of the offence. The defence also failed to produce any documentary evidence that the victim girl was a major on the date of occurrence. Therefore, upon perusal of the certificate issued by the doctor, I am of the opinion that the victim girl was minor aged about 14 years and below 16 years on the date of occurrence.
14. The entire description of the incident had been coherently described by the victim girl in her statement made under section 161 CrPC, 164 CrPC, as well as while deposing in the court the evidence of the victim girl remained wholly unshaken all along. This apart, the evidence is simple in nature and being coherent and consistent, her evidence is convincing and inspires immense confidence. The learned trial court has believed the evidence of victim girl and this Court see no reason to disbelieve her evidence, which is supported by the prosecution witnesses as well as the evidence of Doctor (PW 7). That apart, she has no reason to falsely rope in accused appellant in the alleged rape.
15. In the case of Sri Narayan Saha and Another Vs. State of Tripura, reported in (2004) 7 SCC 775, the Apex Court has held that if 9 the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.
16. In that view of the matter, this Court does not find any infirmity in the conclusion arrived at by the trial Court, warranting any interference.
17. The appeal fails and is dismissed,.
18. Send down the lower court records.
19. Before parting with the case, I would like to put on record my appreciation to Mr D. Nath, learned Amicus Curiae for his valuable assistance rendered in arriving at a decision as aforesaid. Accordingly, he is entitled to a professional fee which is quantified at Rs. 5,000/- (Rupees four thousand) only.
JUDGE Mdb 10 After completion of the prosecution witnesses the statement of the accused was recorded under section 313 CrPC wherein he simply denied to have committed the offence.