MD. MAZID ALI vs STATE OF ASSAM

This is an appeal filed under Section 374(2) of the Cr.PC challenging the judgment and order, dated 17.09.2011, passed by the learned

Additional Sessions Judge, Kamrup (FTC No. 1) in Sessions Case No. 397(K)/2009 convicting and sentencing the accusedappellant under

Section 376(1) of the IPC and sentencing him to rigorous imprisonment for 7 (seven) years with a fine of Rs. 2,000/-, and in default of payment of

fine, simple imprisonment for 5 (five) months.

I have heard Mr. J Ahmed, learned counsel for the accused-appellant as well as Mr. PS Lahkar, learned Additional Public Prosecutor,

appearing for the State respondent.

I have also perused the record of the learned trial court including the evidence of the witnesses.

The fact leading to the case is that, on 14.07.2009, at about 4:00 pm, while the younger sister of the informant, i.e., the victim girl, was alone in

the house and other family members were absent, the accused-appellant, hailing from the same village, came to their house and dragged the victim

inside the house while the victim was sitting in the verandah and committed rape on her person forcefully and at that moment, the younger brother

of the informant arrived home and saw the accused committing rape on the victim. The younger brother of the victim, Khaibar Ali, tried to nab the

accused-appellant but he managed to escape.

On the basis of the above facts, the FIR was lodged by Nur Box Ali, the father of the victim girl.

On receipt of the FIR, on the above facts, the Chaygaon Police Station registered a case, being No. 115/2009 under Section 376 of the IPC,

investigated into it and after completion of investigation laid the Charge-Sheet against the accused-appellant under Section 376 of the IPC.

After exhausting all the required legal formalities, the learned trial court of the Additional Sessions Judge, FTC No. 1, Kamrup framed a formal

charge against the accusedappellant under Section 376 of the IPC to which he pleaded innocence, and therefore, the trial commenced.

The prosecution examined as many as 8 (eight) witnesses who were subjected to cross-examination by the defence. The defence appears to

have taken the plea of denial during the cross-examination of the prosecution witnesses. After closure of the prosecution witnesses, statement of

the accused-appellant under Section 313 of the Cr.PC was recorded and in his such statement also he is heard denying the accusations levelled

against him. The defence did not examine any witnesses.

Now, to determine whether the accused-appellant committed rape on the victim on 14.07.2009, as alleged, let us scan the evidence on record.

The victim being the prime witness in a case under Section 376 of the IPC, this Court proposes to examine her evidence first. The victim in this

case is examined as PW1.

The evidence of PW1/victim is that while she was alone in her house on the date and time of occurrence, the accused-appellant came and

grabbed her and then dragged her inside the house, undressed her and committed sexual intercourse. She told the accusedappellant that if she

indulges in such acts of sexual intercourse, then she would be assaulted by her younger brother and asked him not to repeat such acts. But, the

accused-appellant refused to pay heed to such words of the victim and committed sexual intercourse. Then, her brother appeared and saw both of

them in a compromising state and intervened. Then, the accused-appellant left the place of occurrence. She, of course, admitted in the

crossexamination that she did not raise any alarm at the time of committing of rape on her person.

The PW2 is the younger brother of the victim whom she referred in her evidence to have appeared at the place of occurrence and intervened.

In his evidence, he is heard saying that he came home from outside at the time of occurrence and when he entered into his house; he found that the

accused-appellant was committing rape on his sister/victim and then he caught hold of him but the accused-appellant could manage to escape. In

his cross-examination, he deposed that he was on the road at the time of occurrence. It has also come out from his evidence that the victim is

mentally retarded as well as a differently abled person.

The PW4 is the informant. He is a driver by profession. After coming home on the next day of the date of occurrence, he came to know from

the members of his family about the commission of rape of the victim/daughter by the accused-appellant.

The evidence of PW5 is of no relevance as he has not implicated the accusedappellant with the commission of rape except saying that the

accused-appellant pushed the victim on the ground.

The PW6 is the Professor and Head of the Department of the Forensic Department of Gauhati Medical College and Hospital, Guwahati. On

his examination of the victim, on 15.07.2009, he found, inter alia, as follows:-

i. A swelling above the right ear measuring 7 X 6.5 cm bruish, black in colour and tender to touch.

ii. Three parallel bruises present obliquely over the right side of the back, below the acromile, measuring as indicated in his evidence.

iii. Three parallel bruises present over the left side of the back obliquely and the measurement thereof are as specified in his evidence.

iv. Multiple bruises present over the outer aspect of the right arena covering an area of 17 X 10 cm, the area was radish blue in colour and tender

in touching.

Also, the PW6/Doctor found two vaginal smear, one from the laterial carnix and one from posterior carnix. On radiological examination, the victim

was found to be above 18 years and below 20 years of age. He also opined that there was no sign of recent sexual intercourse and no mark of

violence could be noticed in the private parts of the victim.

The PW7 is the Investigating Police Officer. His evidence is of routine nature. He deposed about various stages of the investigation since

receipt of the FIR till completion of the investigation including recording of statement of the witnesses under Section 161 of the Cr.PC and the

statement of the victim under Section 164 of the Cr.PC.

The evidence on record, as indicated above, makes it clearly appear that the victim has specifically alleged commission of rape on her person

inspite of the fact that she was not willing to participate in the sexual act with the accused-appellant. The fact that she told the accused-appellant

that her younger brother would assault her if she indulges in such activities amply establish that at the relevant time of the occurrence, her younger

brother was not available in the house. Coming to the evidence of PW2, Khaibar Ali, it appears that at the relevant time of occurrence, he was on

the road which substantiates the statement of the victim saying in her evidence that she was alone in the house at the time of occurrence.

The evidence of PW1/victim is also corroborated by the evidence of PW2/younger brother as regard the fact that while both the accused-

appellant and the victim was indulging in the sexual intercourse, the PW2/younger brother came and intervened. PW2 also subscribed to her such

evidence while he deposed that he was on the road at the time of occurrence and after coming back home, saw the accused-appellant indulged in

sexual intercourse with his sister/victim leaving no manner of doubt in respect of consistencies of evidence between the PW1/victim and her

younger brother/PW2.

The other witnesses, as indicated above, are not eyewitnesses to the occurrence.

The learned counsel for the accused-appellant, referring to the evidence of the Doctor, examined as PW6, pointed to this Court that the

Doctor did not find sign of recent sexual intercourse and any mark of violence in her private parts but some bruises and tenderness were found on

her person.

The learned counsel for the accused-appellant has referred to the decision of this Court in the case of Sukur Ali & Anr. -vs- State of Assam &

Ors. , reported in 2008 (3) GLT 51. In this decision, this Court held that there was no mark of violence noticed by the Doctor in the genital part of

the victim/woman and that the evidence of the victim that she was raped in the midnight and was tied with plastic ropes but even then no mark of

injury was noticed on her person. She was a married lady. In such background of the facts, this Court had found the accused-appellant not guilty

of offence under Section 376 of the IPC.

In the considered view of this Court, in the facts of the present case, this decision is not applicable as no such resistance offered by the victim

in the instant case to suggest that she might have sustained some injuries. If no sign of rape could be detected by the Doctor it does not necessarily

mean that there was no rape. Because the victim, in the instant case, is admittedly above 18 years of age and below 20 years and as there was no

stout resistance there may not be injury.

The learned counsel for the accused-appellant has also referred to a decision of this Court in the case of Ainul Hoque Alias Inul Hoque -vs-

State of Assam, reported in 2008 (2) GLT 235. This decision relates to a case of commission of rape on a 31/2 year old minor girl. In that case,

penetration was not strictly proved. This Court in the said decision also referred to the ingredients of intention, preparation and attempt to commit

the offence. If the attempt is successful then the crime is complete and if the attempt fails, crime is not complete. In the instant case, the commission

of offence is complete and the victim said that there was penetratrative sexual intercourse, and therefore, on facts both the cases are different.

Therefore, this decision is also not applicable.

The learned counsel for the accused-appellant has referred to another decision of this Court in Pulin Bihari Roy -vs- State of Tripura, reported

in 2012 (5) GLT 58. This decision is also not applicable in the facts of the case because in the case involved in the said decision, the offence under

Section 376 of the IPC was converted to Section 354 of the IPC by the learned trial court without assigning any reason. Therefore, this decision

does not apply with the facts of the instant case.

The learned counsel for the accused-appellant has also referred to a decision of the Hon''ble Supreme Court in the case of Tarkeshwar Sahu -

vs- State of Bihar (Now Jharkhand) reported in (2006) 8 SCC 560. This decision, on facts, is also not applicable in the instant case in view of the

fact that in the case decided by the Hon''ble Supreme Court, referred to above, no penetration was established. But, in the instant case, the

evidence of the victim is that penetrating sexual intercourse committed on her person by the accusedappellant.

The evidence of the victim, examined as PW1, is consistent even during her cross-examination so far the fact of commission of penetrating

sexual intercourse with her by the accused-appellant is concerned and her evidence is subscribed by the evidence of the PW2, who has seen the

accused-appellant committing the offence. Taking together such evidence, the prosecution evidence is found reliable. That apart, the position of

law is that if the evidence of the victim inspires confidence, the Court can rely on it. In the instant case, as referred to above, the evidence of the

victim is found reliable and credit worthy by this Court.

In this connection, the decision of the Hon''ble Supreme Court, in the case of State of Himachal Pradesh -vs- Sanjay Kumar alias Sunny,

reported in (2017) 2 SCC 51, in paragraph 31, can be usefully referred to. Paragraph-31 of this judgment of the Hon''ble Supreme Court reads as

follows:

After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has

cleared the respondents, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there

are compelling reasons, which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the

victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement

before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus,

to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without

corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek

corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate

one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a

woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why

should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses

tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance (See Bhupinder Sharma v. State of H.P).

Notwithstanding this legal position, in the instance case, we even find enough corroborative material as well, which is discussed hereinabove.

As this Court has already indicated that the evidence of the PW1/victim is trustworthy and there is no reason to disbelieve her evidence who

also received support from the evidence of the PW2, this Court unhesitatingly holds that the order of conviction recorded by the learned trial court

is based on evidence on record requiring no interference. So far, the sentence is concerned, the learned trial court has imposed the statutory

prescribed minimum sentence, and therefore, this Court cannot interfere with the sentence also.

Accordingly, the appeal is dismissed.

The accused-appellant is directed to surrender before the learned trial court to serve out the sentence within a period of 45 (forty-five) days

from today.

Send down the LCR along with a copy of this judgment.