Gauhati High Court
The State Of Assam vs Md. Attabar Ali on 25 February, 2013
Author: Anima Hazarika
Bench: Anima Hazarika
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA:
MANIPUR: TRIPURA: MIZORAM AND ARUNACHAL PRADESH)
CRIMINAL APPEAL NO. 35/2007
THE STATE OF ASSAM
....Appellant
-Versus-
MD. ATTABAR ALI
...Respondent
BEFORE
HON'BLE MRS. JUSTICE ANIMA HAZARIKA
Advocate for the appellant : Ms A. Begum
Addl. Public Prosecutor, Assam.
Advocate for the respondent : Mr. TJ Mahanta,
Ms. P Bhattacharjee,
Mr. SM Rahman
Advocates.
Date of hearing : 25.02.2013
Date of judgment : 25.02.2013
2
JUDGMENT AND ORDER (ORAL)
Heard Ms A. Begum, learned Additional Public Prosecutor, Assam appearing for the appellant. Also heard Mr TJ Mahanta, learned counsel appearing for the accused respondent.
2. This appeal is directed against the judgment and order dated 18.07.2005 passed by the learned Assistant Sessions Judge, Dhubri in Sessions Case No.137/2004, thereby acquitting the accused respondent from the charge framed against him under Section 376 IPC.
3. The prosecution case in brief is that the complainant had lodged a complaint before the learned Chief Judicial Magistrate, (CJM for short) Dhubri on 17.03.2003 stating inter alia that she lived with her husband at village South Tiamari. The accused person had entered into her house at about 3-00 A.M. on 10.03.2003 by breaking open bamboo wall and thereafter gagged her mouth and committed rape upon her forcibly against her will in absence of her husband. It was further stated that the 3 complainant could not raise alarm fearing death and injury to herself and her children. However, she raised alarm when the accused was about to leave and on hearing her shouting some village people gathered at the place of occurrence but could not apprehend the accused as he had ran away by then. In the meantime, another complaint was lodged by the father of the complainant before the Secretary, South Tiamari Majid as the accused was a neighbour and also relative of the complainant.
4. After receipt of the complaint, the same was transferred by the learned CJM to the Court of learned Judicial Magistrate, 1st Class, Dhubri, who forwarded the same to the Officer-in-Charge, Gauripur Police Station, for investigation wherein a case was registered being Gauripur P.S. Case No.52/2003 and after completion of investigation, the Investigating Officer submitted charge sheet under sections 448/376/506 IPC.
5. The case being triable by the Court of Sessions, the same was committed to the Court of Sessions Judge, Dhubri by the 4 learned S.D.J.M., Dhubri wherein it was registered as Sessions Case No. 137 of 2004 and the same was transferred to the Court of Assistant Sessions Judge, Dhubri for trial. The learned trial court after hearing the parties and on perusal of the materials on record framed charges under sections 448/376/506 IPC against the accused person. The charges so framed being read over and explained to the accused, he pleaded not guilty and claimed to be tried.
6. During the course of trial, the prosecution examined as many as eight (8) witnesses including the victim woman and one court witness, namely, Md. Dur Ali, while the defence examined none. Defence case was of complete denial.
7. The accused Atabar Ali was examined under section 313 Cr.PC wherein he denied his involvement in this case and stated that as he had campaigned in the Panchayat election against the brother of the victim woman, so, out of grudge, the case was lodged against him.
5
8. The learned trial court after hearing the learned counsel appearing for the parties and upon perusal of the materials on record including the evidence adduced by the prosecution witnesses as well as the court witness acquitted the accused from the charges leveled against him and hence the instant appeal.
9. Ms Begum, learned Additional Public prosecutor has submitted that while passing the impugned judgment and order, the learned trial court had failed to appreciate the evidence on record and wrongly acquitted the accused on benefit of doubt inasmuch as, learned trial Court had failed to consider the evidences of PW 4 (victim woman), PW 2 and CW whose evidences are corroborated to prove the offence under section 448/376/506 IPC. The learned counsel has further urged that the learned trial court could not have drawn the inference to the effect that the victim woman was a consenting party, rather the learned trial court ought to have appreciated the fact that the victim woman could not resist the person with three minor children 6 who were sleeping in the same bed with her in the fateful night. Ms. Begum has vehemently urged that the appellant had successfully proved the case against the respondent by adducing evidence, but the learned trial Court totally on a wrong approach and perverse finding passed the impugned judgment of acquittal which is liable to be interfered with in the facts and circumstances of the case.
10. Per contra, Mr Mahanta, learned counsel appearing on behalf of the respondent accused in support of the judgment under challenged has submitted the following:
(i) There is no material to prove the case against the accused beyond reasonable doubt.
(ii) Md. Insan Ali, the material witness was not examined.
(iii) There was delay of 7 days in lodging the complaint without any explanation for such delay.
(iv) Father of the victim was not examined before whom the victim first narrated the alleged incident. 7
(v) The children aged about 10, 5 and 3 years who were sleeping with the victim were not examined whose evidence would have been of great value.
(vi) Medical evidence does not support the prosecution case.
vii) The court witness CW Md. Dur Ali who is the brother of the victim woman was neither examined by the prosecution nor examined by the I.O. Though he has stated in his evidence that at the time of occurrence, he was present in the place of occurrence, however, the other witnesses have not deposed about his presence.
(viii) During the cross examination, PW 2, Md Insan Ali who is the maternal uncle of the victim has stated that he had contested in the Panchayat Election for the Member of Panchayat but he was defeated and at the time of election the accused person was campaigning against him and, therefore, the statement made by the accused under Section 313 Cr. PC that as he was taking part in the campaign against the relative of the accused so a false case has been instituted against him is a fact.
In support of his submission, Mr Mahanta has placed reliance on the following cases:-
8
i) (2007) 4 SSC 415 Chandrappa and Others -vs-State of Karnataka.
ii) (2008) 11 SCC 394 Syed Peda Aowlia -vs-Public Prosecutor, High Court of Andhra Pradesh, Hyderabad.
11. In view of the rival submission made by the learned counsel appearing for the parties, let us scan the evidence adduced by the prosecution we well as the court witness.
12. The complainant i.e. the victim has been examined as PW 4. She has deposed that the incident took place on 10.03.2003 at about 3-00 A.M, while she along with her three children were sleeping in one of the room at her house. On that day her husband was at Guwahati. The accused forcefully entered into her room by cutting rope of the door of her house, gagged her mouth with a piece of cloth and raped her. While she shouted, Manser Ali, Dur Ali and Insan Ali arrived at the place of occurrence. However they could not catch the accused as he ran away by pushing them. Thereafter, she narrated the whole story to the village Headman and accordingly, a meeting was held but as the accused did not 9 appear in the meeting, no decision could be taken. PW 4 has further stated that after the incident she reported the matter to her father, Md. Dur Ali and uncle Insan Ali. As the matter could not be decided in the meeting, she instituted this case against the accused before the Court.
13. During cross examination, PW 4 admitted that in her house there are two rooms and one kitchen. She has further admitted that at the time of breaking the door of her room there occurred a huge sound. She has also stated that her marriage was performed 10/15 years back and she instituted the case after 7 days of the incident. She has further admitted that though the incident occurred in the month of 'Ramjan' but on that they she has not performed 'Roja'. She has further admitted that after discussion with her husband about the matter she has instituted the case.
14. PW 2 Insan Ali deposed on oath that the incident took place at about 3 -00 A.M. On hearing hue and cry, he came to the house 10 of the victim and saw the accused gheroued by Dur Ali the victim and mother of the victim. He also caught the accused when the accused told him that at the time of incident he has been to urinal. He further stated that the victim woman stated before him that the accused had committed intercourse with her.
During cross examination, PW 2 stated that he is the maternal uncle of the victim. His house is situated near the victim's house. He has further admitted that there were 4/5 persons present before his arrival at the place of occurrence. He also met Manser i.e. father of the victim at the place of occurrence. PWs 3, 5 and 6 are hearsay evidence, hence, their depositions are not relevant.
15. Other most material witness is Md. Dur Ali, brother of the victim whom the prosecution failed to examine as Prosecution witness but he was examined as court witness. CW has deposed that the incident took place at about 3-00 A.M. At the time of occurrence, the victim was sleeping with her three minor children. The accused entered into the room by tearing the rope fastened 11 at the door and raped the victim. His house is situated at a distance of 20-25 of hands. On hearing shouting of the victim, he rushed to the place of occurrence and has seen the accused doing illicit work by peeping through the door. He further stated that the victim woman has reported him that the accused had raped her.
During the cross examination, CW admitted that he arrived at the place of occurrence first at the point of time, thereafter only his father and other people arrived at the place of occurrence. On that day, 20/22 people gathered at the place of occurrence and he narrated about the incident to all the people. He further stated that the victim woman is his own sister and he has taken about only one minute to arrive at the place of occurrence after hearing her shout.
16. PW 1 is the Doctor, who examined the victim, found no mark of violence. PW 1 found the age of the victim above 18 years. The Doctor further opined that rape could not be ascertained. 12
17. From the evidence adduced by the witnesses, it would reveal that the version of the prosecution witnesses and the Court witness are different. It would further reveal that Manser Ali, the most material witness, being the father of the victim, to whom the victim first narrated the alleged incident was not examined. Neither the father of the victim nor her mother was examined, though allegedly they were present at the place of occurrence immediately after the occurence. It is also very surprising that three children of the victim who were aged about 10, 5 and 3 years respectively, who were sleeping with the victim in the same bed, when the incident occurred, none of them got up after hearing the shouting of their mother.
18. Mr. Mahanta, learned counsel appearing for the respondent has submitted that there is no material to prove the case against the accused beyond reasonable doubt. Moreover, the learned counsel has further submitted that the alleged rape of the victim has also not been supported by the Doctor i.e. PW 1 who has opined that the victim woman was major above 18 years of age and there 13 appeared no mark of violence in the body of victim. The Doctor also could not ascertain as to whether there was rape.
19. In the case of Chandrappa (supra) at paragraph 42 Hon'ble Apex Court has held as thus:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1). An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2). The Code of Criminal Procedure, 1973 puts no limitation restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3). Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc., are not intended to curtail extensive powers of an appellate court in an appeal against 14 acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to crucial the power of the court to review the evidence and to come to its own conclusion.
(4). An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
(5). If two reasonable conclusions are possible on the basis of the evidence on record, the appellant court should not disturb the finding of acquittal recorded by the trial court."
20. In the case of Syed Peda Aowlia (supra) at paragraph 6 Hon'ble Apex Court has held as thus:-
15
(6) "5............... There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented.
A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and 16 relevant and convicting materials have been unjustifiably eliminated in the process, it is a compelling reason for interference."
21. In the case of State of Karnataka Vs. K Gopalakrishna reported in (2005) 9 SCC 291, the Apex Court has held that in an appeal against acquittal, if two views are reasonably possible, and the view favouring the accused is accepted by the court below, that is sufficient for upholding the order of acquittal. In the said case, Hon'ble Apex Court further held that where the findings of the court below are wholly unreasonable or perverse and not based on the evidence on record, or suffer from serious illegality including ignorance or misreading of evidence on record, the appellate court will be justified in setting aside such an order of acquittal.
22. In the present case, we find that the trial court after proper appreciation of evidence and after proper application of mind has passed the impugned judgment of acquittal. The learned trial court 17 has rightly held that there is no material to prove the case against the accused beyond reasonable doubt.
23. Considering the circumstances as mentioned above and the fact that the matter is being dealt with by the trial court extensively and also in view of the decisions rendered by the Hon'ble Apex Court in Chandrappa (supra), Syed Peda Aowlia (supra) and State of Karnataka (supra) it would not be desirable to interfere with the judgment of acquittal.
24. While parting with the case record, I came across a serious lapse on the part of the learned trial court regarding the charges framed against the accused respondent under Sections 448/506 IPC. The learned Sessions Judge acquitted the accused from the charge under Section 376 IPC. However, there is no whisper regarding the above two charges in the judgment. It is the duty of the trial court to give a finding on all the charges framed against the accused. In this context, it may also be mentioned that the learned Additional Public Prosecutor has also not argued regarding 18 the above infirmity at the time of hearing the appeal. So I am compelled to give a finding about the two charges namely Sections 448/506 IPC leveled against the accused with the help of the available materials on record.
25. In the instant case, the learned trial court disbelieved the testimony of the victim woman. The surrounding circumstances also do not rope the accused for the offence under Sections 448/506 IPC. Following the decision in Sibaram Barua Vs. State of Assam reported in 2006(2) GLT 614 wherein it was held that when the principal offence of rape under Section 376 IPC having been dis- proved, there is no material to warrant the conviction under Sections 448/506 IPC, I am not inclined to convict the accused respondent under Sections 448/506 IPC. I, therefore, acquit the accused from the charges of these two Sections as well.
19
26. With the above discussion and observations, the appeal stands dismissed.
27. Send down the lower court record.
JUDGE Mdb /Shivani