MD DILWAR HUSSAIN vs STATE OF ASSAM and ANR

This appeal is directed against the judgment and order dated 31/07/2015 passed by learned Addl. Sessions Judge, No. IV (FTC), Kamrup(M)

in Sessions Case No. 92/2014. By the said judgment, learned Addl. Sessions Judge convicted the accused/appellant u/s 376 (2) (f) IPC and

sentenced him to imprisonment for seven years and fine or Rs. 3,000/- with default stipulation.

As per prosecution case, on 14/02/2011, the accused Dilwar Hussain committed rape on the victim, who was a minor girl of 3 1/2 years. The

accused kept the victim in his room closing the door and when she came out, she was weeping. On being asked by the mother, she narrated the

incident to her mother. Accordingly, mother of the victim lodged the FIR (EX- 2), on the basis of which, police registered a case and after ussaul

investigation, submitted charge sheet against the accused/appellant u/s 376 (f) IPC.

The offence being exclusively triable by the court of Sessions, learned Magistrate committed the case to the Court of Sessions.

In course of trial, charge u/s 376 (2) (f) was framed, to which the accused/appellant pleaded not guilty. Eight witnesses were examined by the

prosecution to establish the charge. On conclusion of the prosecution evidence, the accused was examined u/s 313 CrPC and all incriminating

materials were put to him. The accused/appellant pleaded innocence during his statement u/s 313 CrPC and also examined four witnesses in

support of his defence. On appreciation of evidence, learned trail court convicted the accused/appellant u/s 376 IPC and awarded sentence as

indicated above.

Being aggrieved, the accused/appellant preferred the instant appeal.

Mr. S.K. Agarwal, learned counsel for the appellant and Mr. BB Gogoi, learned Addl. Public Prosecutor for the State were heard. I have

considered the submission made by the learned counsel and also the evidence and materials brought on record.

From perusal of the record it appears that learned trial court essentially relying on the testimony of the victim (PW 4), her parents (PW 5 & PW

6) and the doctor (PW 3), recorded conviction of the accused/appellant.

PW 1 and PW 2 pleaded ignorance about the incident and therefore, the testimony of the Pw 1 and PW 2 does not appear to be of any

significance. PW 8 was the Bench Assistant of the learned Magistrate, who recorded the statement of the victim u/s 164 CrPC and the testimony

of this witness also appears to be formal in nature.

PW 4, the victim stated that, while her mother was taking bath, she was standing in the front of their house, the accused, who was also a

resident of the same campus, showed her a video in his mobile and took her to his house. He also tried to penetrate his male organ into her private

part and she felt pain. During cross-examination, she stated, that she was not tutored by anybody. The Ex-5, statement of the PW4 recorded u/s

164 CrpC also transpires that she had been consistent in narrating the incident, though she did not state elaborately in her statement u/s 164 CrPC.

The testimony of PW 4 with regard to accused trying to penetrate his male organ into her private part appears to be supported by her statement

recorded u/s 164 CrPC.

Close on the heels of the evidence of PW 4; PW 5, mother of the victim stated, that while she was taking bath, the accused took the victim to

his room and showed her video in his mobile. After coming out from the bath room, she did not find the victim and therefore, she went to bring the

victim from the house of the accused and found the door closed. As PW 5 called the victim, the accused opened the door and she brought the

victim. The victim told her that she was feeling pain on her private part. She removed the clothes of the victim and found reddishness on the private

part of the victim. On being asked by her mother, the victim told that uncle (accused) urinated in her frock. Immediately she went to police station

and informed the matter. During cross-examination, nothing material could be elicited, except putting a suggestion, that as the accused refused to

provide loan of Rs. 500/- and a table, a false case had been filed, which was denied by the PW 5.

PW 6, the husband of the PW 5 was not present in the house and he came to know about the occurrence from his wife (PW 5). PW 3, the

doctor, who examined the victim immediately on the next day, found redness present on the surrounding area of libea majora of the victim. The

medical evidence is also found to have lent support to the oral testimony of the victim. Thus, the oral testimony of the victim (PW 4) and her

mother (PW 5) is found reinforced by the medical evidence, and thereby clearly establishing that the accused tried to penetrate his male organ into

the private part of the victim, being a minor of about 31/2 years of age.

The accused examined himself as DW 1 and stated that he was not available in his house at the time of occurrence, as he left his house at 2

Clock and came back at about 8.30 pm. In order to prove his plea of alibi, he also examined one Ziabur Rahman (DW 3), who stated that he had

seen the accused in the pharmacy near the MES at about 3 O''clock. But during cross-examination, he admitted that he had seen the accused in

the pharmacy two days prior to the occurrence. Thus, the admission of the DW 3 that he had seen the accused in the pharmacy at about 3 O''

Clock two days prior to the occurrence belies the plea of alibi, sought to be taken by the accused.

Though the DW 2 stated, that on being asked by her after the occurrence, the informant told that she lodged the false case, during cross-

examination, he stated that he met the informant eight months prior to the date of deposition. Evidently the deposition of this witness was recorded

on 04/03/2015 and the occurrence took place on 14/02/2011. Evidently he was not examined by police during investigation. The testimony of this

witness that informant admitted before him, that the case was instituted falsely, appears to be highly improbable and therefore, not worthy of

placing reliance for the simple reason, that when the occurrence took place four years back and the FIR was lodged immediately leading to arrest

of the accused, what prompted him to go to the informant to ask about the case after about three years. That apart, no material had been brought

on record to support the version of the DW 2.

PW 4, wife of the accused stated that on the date of occurrence, he was not with her husband, but she stated that the informant wanted to

compromise the matter and also executed a written agreement by taking Rs. 10,000/- and subsequently lodged the FIR. No such written

agreement was either seized by police or produced in the court. Admittedly PW 4 was not available with her husband on the day of occurrence

and FIR was lodged immediately after the occurrence, therefore, question necessarily arises, when such compromise took place. The unsuccessful

endeavour of the accused to put forward a plea of alibi and the admission of the PW 4, that she was not present in the rented house of her

husband at the time of occurrence and attempt to put forward an improbable story of settlement and payment of money, rather, strengthened the

prosecution case.

It was also stated by PW 4 and PW 2 that accused had enmity with the informant as the accused did not lend money and the brother of

informant assaulted the accused, for which the accused lodged FIR against them. Evidently occurrence took place in the year 2011, i.e., after

about three years of the occurrence, the incident of assault and filing case by the accused took place in 2014 and therefore, it cannot be said that

the case was lodged falsely because of the enmity. In any view of the matter, both the defence plea sought to be put forward by the accused, i.e,

the plea of alibi and that false implication because of enmity does not appear to be reliable, because of the improbability of the plea. In fact, plea of

alibi has fallen through, inasmuch as, DW 3 did not support the testimony of DW 2 regarding his plea of alibi. Thus, the evidence adduced by the

prosecution and the defence speaks loud and clear that prosecution has been able to establish the guilt of the accused beyond reasonable doubt

and therefore, the impugned judgment of conviction of the accused/appellant requires no interference.

At this juncture, learned counsel for the appellant submits, that the accused is a physically handicapped person and there is no other member to

support his family and he has already been in jail for about three years and urged for showing leniency with regard to quantum of sentence,

considering the physical disability of the accused. Apparently, the learned trial court had imposed minimum sentence of seven years. Since the

occurrence took place in the year 2011 and imposition of sentence less than minimum was permissible subject to recording adequate reason in the

judgment as per proviso to section 376 IPC (as it was prior to amendment of 2013), in my considered view, submissions made by learned

counsels deserve to be considered.

Thus, having considered the facts and circumstances of the case and the physical disability of the accused, I am of the view that the accused

deserves little leniency so far the quantum of sentence is concerned. Accordingly, having considered his physical condition, the quantum of

sentence is reduced to four years. No interference is required so far payment of fine or the sentence in default awarded by the learned trial court is

concerned. The accused/appellant is sentenced to rigorous imprisonment for four years. Quantum of fine and default sentence shall stand.

With the above modification, the appeal is partly allowed.

Send back the LCR.