Md. Alauddin Ali vs State of Assam

P.K. Musahary, J.—Heard Mr. A.M. Mazumdar, learned senior counsel assisted by Mr. B. Hussain and Mr. P.B. Mazumdar, advocates. Also heard Mr. B.B. Gogoi, learned Addl. P.P., Assam.

This appeal is preferred against the judgment and order dated 30.1.2006 passed by the learned Sessions Judge, Kamrup, Guwahati in Sessions Case No. 225(K)/2002 convicting the Appellant u/s 376, IPC and sentencing him to undergo R.I. for 7(seven) years and to pay a fine of Rs. 5,000 and in default to undergo further R.I. for one year.

The prosecution case is based on the FIR dated 1.3.1998 wherein it has been alleged that on 1.3.1998 at about 5.30 p.m. while the informant''s daughter aged about 10 years was out to Borolia River Bank to attend the call of the nature, the accused came behind and caught hold of her and forcibly committed brutal violence and left her at unconscious state. The Police registered a case u/s 376, IPC and after completion of the investigation submitted charge sheet against him u/s 354, IPC. The case being committed for trial, the learned Sessions Court framed charge u/s 376, IPC to which the Appellant pleaded not guilty and claimed to stand trial.

The prosecution, in order to prove the case against the present Appellant examined as many as 8 witnesses including victim girl, Investigating Officer and the Medical Officer. The defence also adduced 2(two) witnesses.

Mr. Mazumdar, the learned senior counsel submits that if one goes through the evidence on records particularly the evidence of the victim girl PW4, would come to conclusion that the victim girl apart from knowing the Appellant since before being co-villager, had the consent to sexual intercourse that might have taken place. He asserts his submission based on the medical report Ext.1 which was proved by the medical officer PW7 who conducted the medical test on the victim girl. He has drawn the attention of this Court to the opinion of the Doctor recorded in the medical report to the effect that there was no evidence of sexual intercourse on her person. Moreover, as per the opinion of the Doctor she was above 12 years and below 14 years of age. Mr. Mazumdar also submits that it is not a case u/s 376, IPC but clearly a case u/s 354, IPC as was found by the Investigating Agency who submitted the charge sheet against the accused Petitioner u/s 354, IPC on the basis of the materials found after investigation. He further submits that if the accused is found guilty u/s 354, IPC, he would be liable to get punishment of imprisonment of two years. The present Appellant, after being convicted and sentenced, was arrested on 30.1.2006 and since then he is serving the sentence. He has served a total period of almost 4(four) years and under such circumstances, the conviction awarded by the learned Sessions Judge could be modified to Section 354, IPC and accordingly the sentence may also be modified to the period of imprisonment already undergone.

I have carefully read the FIR Ext.3. Nowhere it is mentioned therein that the victim girl was sexually ravished by the accused Appellant. What was stated in it is that the accused Appellant forcibly committed brutal violence on her for which she became unconscious. I have also carefully gone through the statements recorded u/s 164, Code of Criminal Procedure (Ext.5). In her said statement she has stated that the accused committed rape and the medical report was prepared on 28.3.1998. It is found that immediately after the alleged incident the victim girl was medically examined by the CHC, Rangia on 5.7.1998 (Ext.A) wherein the Doctor had recorded his finding that there was no sign of violence on her body. More details were recorded in the medical report conducted by PW7 in the Gauhati Medical College Hospital in which also Doctor recorded his finding, amongst other, that no evidence of recent sexual intercourse seen on her person and no marks of violence, injuries present on her body and genitals.

In a case of offence u/s 376, IPC the statement and evidence of the victim girl attaches maximum evidentiary value and on the basis of sole evidence of the prosecutrix, whether corroborated or not, the accused may be convicted provided her statements are found to be cogent, consistent, reliable and trustworthy inspiring the confidence of the court. In the present case although she has maintained in her statement u/s 164, Code of Criminal Procedure and evidence before the trial court that she was raped by the accused Appellant, the medical reports as aforesaid do not support her evidence. What is striking in this case is that there is no sign of injury on her person although the accused Appellant used force against her will. Had there been any use of force, some sign or mark of injury must have been found on her person. If no sign of injury is found, there is a scope for taking the other view or second view that there was consent on the part of the prosecutrix. Even assuming that the Appellant used force, the medical report and the evidence of medical officer do not support the case of rape, they rather established commission of assault or criminal force to woman with intent to outrage her modesty u/s 354, IPC. The I.O. was sure about it and therefore, he laid the charge sheet against the accused Appellant u/s 354, IPC.

Although there was, according to the prosecutrix, bleeding due to the forcible ravishment, the I.O. did not send the blood stained garment, which he seized from the place of occurrence, to the FSL to confirm the blood stain. The victim girl, as per the medical report is above 12 and below 14 years and it can be accepted that she was minor girl at the time of occurrence. If the prosecutrix is below 16 years, for conviction of an accused, consent is not material in the offence u/s 375, IPC and in such case the accused can not be acquitted.

The court is to examine the other aspects of the matter namely the age of the accused Appellant who was hardly about 18 years of age. A young boy of such age is normally prone to sexual adventure which he might have undertaken because of natural and similar urge from the maiden prosecutrix. The evidence is that the prosecutrix is used to sexual intercourse who was also under the age of 14 years. Once the accused is found guilty u/s 376, IPC, no punishment of imprisonment below 10 years can be awarded. But in certain special circumstances, lesser punishment can be awarded. I have carefully gone through the proviso to Section 376, IPC wherein it is provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. It is stated at the bar that the accused Appellant was studying higher secondary second year at the time of occurrence and 25 years at the time of conviction. He has no criminal antecedents. The above are the special reasons this Court has taken note of. I am of the considered view that end of justice would be met if the conviction u/s 376, IPC is converted to Section 354, IPC modifying the sentence to the period of imprisonment already undergone.

In view of the above discussion and reasoning this appeal is disposed with the aforesaid modification in the conviction and sentence. The accused Appellant Sri Md. Alauddin Ali shall be set at liberty forthwith if his further detention is not required in any other case.

Send down the L.C.R.