Md. Royal Ali vs The State of Assam

N.G. Das, J.—This Criminal Revision petition is filed u/s 397 read with Section 401 of Code of Criminal Procedure to set aside the judgment and order dated 2-9-1987 passed by the learned Sessions Judge, Sibsagar in Criminal Appeal No. 77(3) of 1985 affirming the judgment and order of conviction passed by the learned Judicial Magistrate, 1st Class, Sibsagar in case No. G.R. 1879 of 1981 convicting the Petitioner under Sections 448 and 354 of IPC and sentencing him thereunder to imprisonment for six months under each count and to run the punishment concurrently.

I have heard Mr. G.N. Sahewalla, the learned Counsel for the Petitioner and Mr. B.B. Narzary, the learned Public Prosecutor fully and perused the records of the case.

The facts of the case leading to this revision petition are as follows:

On 12.9.1985 complainant Abdul Rahman lodged an F.I.R. with O/C, Nazira Police Station alleging, inter alia, that on 10.9.1985 A.D. at about 11 A.M. when he was away from his house, the Petitioner under the pretext of having a glass of water from his wife who was alone in the house at that time entered into his house and no sooner had his wife Must Rukumani brought a glass of water for the Petitioner then the latter caught hold of her, dragged her towards the bed and tried to seduce her chastity. But the attempt of the Petitioner was frustrated as Must. Rukumani raised alarm and also gave resistance by means of a knife which she picked up from the bed.

On the basis of this ''ejahar'' O/C, Nazira P.S. registered a case under Sections 448/354 of IPC and after investigation of the case charge sheeted the Petitioner for his prosecution under the aforesaid sections and also sent him up for trial.

Learned Judicial Magistrate explained substance of the accusation to the Petitioner who however, pleaded not guilty and claimed to be tried. The prosecution examined 5 witnesses in all to prove the guilt of the accused. The accused led no evidence in support of his evidence. However, his defence was a total denial of the prosecution case.

The learned Counsel for the Petitioner has at the very out-set submitted that learned Sessions Judge affirmed the judgment of the trial court without hearing the learned Counsel for the Petitioner and as such a perusal of the two judgments will make it abundantly clear that both the courts below committed gross error not only on points of law but also in appreciating the evidence.

To begin with, the first information report was lodged after two days of the occurrence and no explanation was given for the delay. The story unfolded in the FIR is materially contradicted by Must. Rukumani. Admittedly Rukumani is the sole eye-witness. But according to her statement the Petitioner accompanied by one Muzamil went to her house and she served them with tea and after having tea Muzamil left. So, as per her version the first entry of Petitioner is lawful. Now the second part of the prosecution case is that after departure of Muzamil, Petitioner caught hold of Rukumani and dragged her towards the bed to satiate his lust. ''Rukumani'' in her evidence stated that Petitioner seduced her chastity. But there is no iota of evidence in support of his evidence. No explanation has been given why she was not examined by medical officer. As per the version of Rukumani there was scuffle. So, medical evidence could show if there was any mark of violence on her person. Prosecution also did not assign any reason whatsoever why Muzamil was not examined.

It is true that in a case of such offence the best witness is woman herself against whom the offence is said to be committed. But where the story unfolded in the F.I.R. is materially contradicted by the woman herself by exaggeration, it is not safe to place reliance upon such uncorroborated evidence. The offence alleged to have taken place around 11 A.M. But there is no evidence from any of the neighbours that either Rukumani or her husband informed anyone of this incident. It is not understandable to me how in face of the infirmities pointed out above learned Sessions Judge made the finding that there is ample evidence against the Petitioner.

In course of their arguments both the learned Counsel made submissions in respect of the scope of Section 360 of Code of Criminal Procedure. But in view of the infirmities pointed out above. I am of opinion that benefit of doubt must go to the Petitioner. I, therefore, allow the revision, set aside the judgment of learned Sessions Judge as well as the conviction and sentence imposed on the Petitioner and acquit him of the offence in the benefit of doubt.