Gauhati High Court
Md. Golap Hussain vs The State Of Assam on 6 February, 2013
Author: I. A. Ansari
Bench: I. A. Ansari
IN THE GAUHATI HIGH COURT
( THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH )
Criminal Appeal (J) No. 195 of 2007
Md. Golap Hussain
- Appellant.
Versus
The State of Assam.
- Respondent.
BEFORE
THE HON'BLE MR. JUSTICE I. A. ANSARI
Advocates present:
For the Appellant : Mr. B Chakraborty, Amicus Curiae.
For the Respondent : Mr. KA Mazumdar, Additional Public Prosecutor, Assam.
Date of Hearing and Judgment 06.02.2013
JUDGMENT AND ORDER
(ORAL)
This appeal is directed against the judgment and order, dated 11-09-2007, passed, in Sessions Case No. 28 (DM) of 2007, by the learned Sessions Judge, Darrang, Mangaldoi, whereby the accused-appellant stands convicted under Sections 448 and 376 (1) IPC and sentenced to undergo, for his conviction under Section 448 IPC, rigorous imprisonment for three months with fine of Rs. 500/- and, in default of payment of fine, simple imprisonment for 15 days and also to undergo, for his conviction under Section 376 IPC, rigorous imprisonment for a period of 7 years and pay fine of Rs. 5,000/- and, in default of payment of fine, suffer simple imprisonment for three months.
2. The prosecution's case, as unfolded at the trial, may, in brief, be described as follows:
When the parents of the alleged victim (PW2) were at Guwahati, in connection with the treatment of PW2's younger brother and PW2 was at home, the accused, on 20-09-2006, at around midnight, entered into the house of PW2 Page 2 by breaking open its door and forcibly had sexual intercourse with PW2, who was a minor, and, in the process, the accused also bit on her left cheek. On the return of her parents from Guwahati after about 15 days, PW2 reported the occurrence to her parents, whereupon her mother (PW1) lodged a written Ejahar at Dalgaon Police Station. Treating the said Ejahar as First Information Report (in short, 'FIR'), Dalgaon Police Station Case No. 357 of 2007, under Sections 448/323/376 IPC, was registered against the accused. During investigation, police visited the place of occurrence, got the alleged victim (PW2) medically examined and, on completion of investigation, laid charge-
sheet against the accused for his prosecution under Sections 448/232/376 IPC.
3. At the trial, when charges, under Sections 448, 376 and 324 IPC, were framed, the accused-appellant pleaded not guilty thereto.
4. In support of their case, prosecution examined altogether 7 (seven) witnesses. The accused-appellant was, then, examined under Section 313 Cr.PC and, in his examination aforementioned, he denied that he had committed the offences, which were alleged to have been committed by him, the case of the defence being that date of denial and of his having been falsely implicated, because of the fact that he had refused to marry PW2 on the ground that she was his cousin. No evidence was adduced by the defence.
5. Having, however, found the accused guilty of the offences under Sections 448 and 376 IPC, the learned trial Court convicted him accordingly and passed sentences against him as mentioned above. Aggrieved by his conviction and the sentences passed against him, the accused has preferred this appeal.
6. I have heard Mr. B Chakraborty, learned Amicus Curiae, and Mr. K. A. Mazumdar, learned Additional Public Prosecutor, Assam.
7. While considering the present appeal, it needs to be noted that according to the evidence of the doctor (PW9), who had examined PW2 on 04- 06-2006, slight abrasion was found over her left cheek and she was aged about Criminal Appeal No. 195 (J) of 2007 Page 2 of 6 Page 3 16 to 17 years. The medical evidence, as regards the age, is variable and, ordinarily, the difference can be as much as two years.
8. Consequently, in the light of the medical evidence on record, PW2 could have been around 19 years old too. The impression that she was not a minor at the time of the alleged occurrence gets strengthened from the fact that neither PW2 nor any of her parents has deposed that at the time of the alleged occurrence, PW2 was a minor or aged less than 18 years.
9. Bearing in mind what is indicated above, when I turn to the evidence of PW2, around whose evidence revolves the entire case of the prosecution, I notice that according to her evidence, at the time of the occurrence, her parents had gone to Guwahati in connection with treatment of her brother and taking advantage of the absence of her parents, the accused, on the night of the occurrence, broke open the door of their house and entered into her room and forcibly committed rape on her and that he had also bitten on her left cheek causing injury and when her parents returned home, she reported the matter to them and, then, her mother (PW1) lodged the FIR.
10. What is imperative to note is that neither the parents of PW2 nor any of her neighbours including the Investigating Officer claim that the door of the house of PW2 were found broken. The assertion, therefore, of PW2 that the accused- appellant had entered into her house by breaking open the door, is not supported by any other evidence on record and cannot be readily believed.
11. Coupled with the above, PW5, a cousin of PW2, has deposed that PW2's parents are her paternal aunt and the accused is her cousin and that at the time of the alleged occurrence, she was asleep with PW2 in the house of her paternal aunt and that she had not seen anything on the alleged night of the occurrence and she cannot, therefore, say as to what the accused had done.
12. It is of great significance to note that according to PW2, force was applied on her and the accused had sexual intercourse with her against her will Criminal Appeal No. 195 (J) of 2007 Page 3 of 6 Page 4 and that even the doors of their house were broken open. If force was applied as claimed by PW2, if the accused had bitten on her cheek as PW2 has alleged, and if the doors were broken open as PW2 asserts, it is wholly impossible to believe that PW5 would have remained unaware of what had been happening, when she (PW5) was, admittedly, sleeping in the house, where the occurrence had allegedly taken place.
13. Moreover, PW3, who is one of the neighbours of PW2, has deposed that she saw bite mark on one of the cheeks of PW2 and, on a query made on her, PW2 had replied that mosquito had bitten on her cheek. The answer, so given by PW2, could not have been explained away by anyone except PW2. The explanation, in the present case, has, however, been offered by the learned trial Court inasmuch as the learned trial Court has observed that it was out of embarrassment that PW2 did not tell PW3 as to how the bite mark, on her cheek, came to be seen by PW3.
14. The inference, which the learned trial Court has drawn, as indicated hereinbefore, are nothing, but its own surmises and conjecture. In a case of present nature, either the evidence of PW3 ought to have been believed or PW2 ought to have been recalled and her response, in the light of the evidence of PW3, ought to have been elicited. This exercise was not done and a piece of evidence, which, otherwise, went in favour of the accused, has been ignored by attributing to PW2 an explanation, which she never offered. This is a wholly incorrect and illegal approach adopted by the learned trial Court.
15. Though PW1, mother of PW2, and PW4, father of PW2, have supported the evidence of their daughter by deposing to the effect that they had been reported by PW2 that she had been subjected to rape by the accused, the disturbing and disquieting feature of their evidence is that while PWs 1 and 2 claim that PW2 reported the alleged occurrence, when the parents of PW2 returned home from Guwahati, PW4, father of PW2, claim that PW2 went to Criminal Appeal No. 195 (J) of 2007 Page 4 of 6 Page 5 Guwahati and it was at Guwahati that she had reported to them the occurrence. This aspect of the case appears to have gone completely unnoticed by the learned trial Court. This curious feature remained irreconcilable, because the learned trial Court proceeded oblivious of the evidence of PW4 that PW2 had reported to her parents about the alleged occurrence, when her parents were at Guwahati and not when they returned home.
16. Because of what have been discussed and pointed out above, as a whole, it becomes abundantly clear that the evidence, adduced by the prosecution, was a bundle of half-truth and untruth; more particularly, the evidence of PW2 and, therefore, her evidence could not have been considered as evidence of a wholly reliable witness. In these circumstances, depending wholly on the evidence of PW2, the accused-appellant could not have been held guilty of the offences, which he stood charged with. To put it a little differently, the prosecution, in the present case, failed, in the light of the evidence on record, to prove its case against the accused-appellant beyond all reasonable doubt and the accused ought to have been given, in the context of the irreconcilable pieces of evidence, benefit of doubt.
17. In the result and for the reasons discussed above, this appeal succeeds.
18. The impugned conviction and the sentences, passed against the accused-appellant by the judgment and order under appeal, are hereby set aside. The accused-appellant is held not guilty of the offences of which he stands convicted and he is accordingly acquitted of the same under benefit of doubt.
19. Let the accused-appellant be set at liberty forthwith unless he is required to be detained in connection with any other case.
20. Let the Amicus Curiae be paid a sum of Rs.5,000/- for his valuable assistance rendered to this Court.
Criminal Appeal No. 195 (J) of 2007 Page 5 of 6
Page 6
21. Send back the LCR with a copy of this judgment and order.
JUDGE Paul Criminal Appeal No. 195 (J) of 2007 Page 6 of 6