Mustafa Hussain vs State Of Assam

[1] This appeal is filed from the jail by the accused-appellant, Mustafa Hussain, challenging the judgment and order, dated 07.07.2017, passed by the

learned Additional Sessions Judge, FTC, Nagaon, Assam in Sessions (T2) Case No. 20(N)/2008 convicting and sentencing him to rigorous

imprisonment for 8 (eight) years and a fine of Rs. 5,000/-, and in default of payment of fine, rigorous imprisonment for another 6 (six) months.

[2] The fact giving rise to the prosecution case is that on 31.05.2007, while the informant/PW3 was away from her house, the accused-appellant went

to her house, caught hold of her minor daughter, aged about 12 years, took her to the nearby paddy field and committed rape on her there. He also

tore her wearing clothes. The nearby people recovered her from the paddy field in a fainted state and took her back to her house.

[3] The informant/PW3 lodged the FIR, on the above facts, with the Rupahihat Police Station. The Rupahihat Police Station registered a case on the

said FIR, investigated into it, collected evidence, and finally, submitted charge-sheet against the accused-appellant under Section 376 of the IPC.

[4] On appearance of the accused-appellant before the learned trial court, after exhausting all required legal formalities, a formal charge was framed

against him under Section 376 of the IPC to which he pleaded not guilty and claimed to be tried. Therefore, the trial commenced.

[5] The prosecution examined as many as 7 (seven) witnesses who were subjected to cross-examination by the defence. After closure of the

prosecution evidence, the statement of the accused-appellant was recorded under Section 313 of the Cr.PC and in his such statement, he denied the

accusation made against him. The accused-appellant adduced evidence of 2 (two) witnesses in his defense. After closure of the trial, the learned trial

court convicted and sentenced the accused-appellant, as indicated above.

[6] I have heard Mr. B Baruah, learned Amicus Curiae, appearing for the accused-appellant as well as Mr. TK Mishra, learned Additional Public

Prosecutor, appearing for the State of Assam.

[7] I have meticulously scanned the evidence on record.

[8] The PW1 is the victim who is evidently a minor, studying in class-V, on the date of occurrence. She has stated in her evidence that the occurrence

took place 3 (three) years prior to date of recording her evidence in the Court, at about 8:00 pm, while she was in her own house and her mother-

informant was out of the house. At that time, the accused-appellant came to their house and asked her about her mother to which she replied that her

mother was not in the house at that time. The accused-appellant extinguished the lamp burning at that time in their house, caught hold of her throat so

as to disable her from raising any alarm and then took her to the bank of a pond backside her house, putting her urna in her mouth, and committed rape

on her person. It has come out from her evidence that she fainted after commission of rape and even she could not speak.

She regained her senses only when Saijuddin, Dulal and her mother poured water on her head. On enquiry made by them, she told them about the

occurrence of commission of rape on her by the accused-appellant. She was examined by the Doctor after the FIR was lodged and her statement

recorded by the learned Magistrate under Section 164 of the Cr.PC, vide Ext-1. She was about 11 years of age at the date of occurrence. In her

cross-examination, it has come out that not only her mother, her two brothers were also not present in the house at the relevant time of occurrence.

While she was dragged by the accused-appellant, it was raining at that time and although she cried, no nearby people came out. The place of

occurrence was at about 50 (fifty) meters away from her house. Her wearing clothes including the panty stained with blood at the time of commission

of rape on her person and she had to be there in the hospital for about 12 (twelve) days. She denied that the accused-appellant did not commit rape on

her. She denied that she has falsely implicated the accused-appellant with the commission of rape on her.

[9] The PW2 deposed in his evidence that he knows the victim and his house is situated about 300 meters away from the house of the accused-

appellant. At about 8:30 pm, about 2 (two) years back, he heard cry of the victim girl and he went to the house of the informant and then to the bank

of the pond situated back side her house. On reaching the place of occurrence, he saw the victim in an undressed state and the accused-appellant was

on her body. The accused-appellant fled away from the place of occurrence seeing him there. Then, he found the victim senseless. He brought the

victim to her house and poured water on her head and dressed her. The victim, after regaining her sense, told them that the accused-appellant

committed rape on her when her mother was not in the house. She told other people also about the occurrence. The defence could not discredit the

evidence of the PW2, in any manner, in his cross-examination except making a suggestion to the effect that the PW2 has falsely implicated the

accused-appellant out of grudge.

[10] PW3 is the mother of the victim as well as the informant. She stated in her evidence that after coming back home, she saw many people

gathered there and PW2 and PW4 were pouring water on the head of her daughter. Thereafter, when she regained sense, her daughter told them that

the accused-appellant committed rape on her. The defence could not elicit any such contradiction in her evidence to make it appear that her evidence

is unreliable on any count.

[11] The evidence of PW4 is that, he went to the place of occurrence at about 9:00 pm and found that the PW2 was pouring water on the head of the

PW1/victim. On being enquired about the occurrence, the victim told him that the accused-appellant committed rape on her person. There is no cross-

examination of this witness on the facts rather some stray suggestions trying to show that this witness had no knowledge at all about the occurrence.

[12] PW5 is a witness who appeared at the place of occurrence immediately after the occurrence and found the victim lying senseless there on the

bank of the pond. The victim was stated to be 11-12 years of age at the time of occurrence. He also saw a piece of cloth tied around her neck. There

is no cross-examination of this witness on the material facts. Cross-examination of this witness by defence centered around what he had stated before

the Investigating Police Officer and what not.

[13] PW6 is the doctor who examined the victim on 01.06.2007 on the basis of police requisition. The doctor exhibited the medical report of

examination of the victim, vide Ext.2. The medical report in respect of examination of the victim is as follows:-

“PW6, M.O. stated in her evidence that on 01.06.2007, while she was working in B.P. Civil Hospital as SDM&HO. She examined PW1 on police

requisition, in connection with Rupahihat P.S. GDE No. 2 dated 01.06.2007, Dist. Nagaon, in presence of ANM Bina Mandal, identified and escorted

by C/140 and she found the following:-

1) Old scar blow the left breast ¼â€​ X ¼â€​.

2) Small tiny mole over right shoulder.

3) One birth mole over left temporal region.

4) Height- 149 cm, Weight-39 kg.

5) Teeth upper lower â€" 14/14.

6) Breast â€" Well developed, multiple abrasion over right breast redish in colour.

7) Auxillary hair â€" present.

8) Hymen- Old tear at 4 O’clock position.

9) Vaginal injury â€" Nil.

10) Marks of violence- absence.

11) Vaginal smear exam (lab No. 83), shows no spermatozoa.

Radiological Examination X-ray Examination of Right wrist + Right elbow + Right iliac Crest (x-ray) no. 3752+51+53) Right wrist joints:- The

epiphysis for lower ends of radius and ulna are not united. Right elbow joints:- All the epiphysis around the right elbow joint are united with their

respective shaft. Right iliac crest:- The epiphysis for right iliac crest is not appeared. Impression:- As per above finding her age is between 15-16

years according to radiologist (Dr. J. Devnath B.P. Civil Hospital). There is no evidence of recent sexual intercourse. There is no marks of violence in

her private parts and but there is multiple abrasion over front of neck, reddish in colour, sub conjunction hemorrhage on both the eyes. Ext.2 is the

Medico Legal Report and Ext.2(1) is her signature. In her cross-examination, M.O. stated that she has not mentioned in her report how the injuries

were caused on the breast and neck of the patient. M.O. further stated that the abrasion mark found on her neck and breast may be caused by

herself.â€​

[14] The PW7 is the Investigating Police Officer who narrated about various stages of investigation from receipt of the FIR till filing of the charge-

sheet. The defense could not elicit any such contradiction from his cross-examination to crumble the prosecution version of the story, rather, he

asserted that the witnesses stated before him about the occurrence as stated by them in the evidence, on oath.

[15] Such being the evidence of the victim examined as PW1, corroborated by the evidence of PWs 2, 4 and 5 on facts, which remained unassailed all

through the trial, cannot be brushed aside as merely a false implication rather the evidence of PW1/victim is inspiring confidence which is further

strengthened by the evidence of PWs 2, 4 and 5, PW2 being the eye-witness and PWs 4 and 5 being witnesses appeared at the place of occurrence

immediately after the occurrence and found the victim lying undressed there. Therefore, in view of such consistent and corroborative evidence, there

is no reason to disbelieve the prosecution version of the case. Even if it is taken, for a moment, that there is no corroboration of the evidence led by

the victim/PW1 yet the evidence of the victim/PW1 alone is sufficient to hold the accused-appellant guilty of commission of the offence of rape, the

same being inspiring confidence of this Court.

[16] Now, let us see whether the defence evidence led by the accused-appellant has been able to put up a case to negate the prosecution version.

[17] The evidence of the DWs 1 and 2 make it appear that the defence is trying to project a case that the victim could not identify the accused-

appellant as the person committing rape on her person. According to them, the victim could not identify the rapist, which was told to them by the

victim herself when they visited her house on the same day after the occurrence. Such evidence of the DWs appears to be a story staged as a shield

to resist the truth coming out from the evidence of the victim/PW1, PW2, PW3, PW4 and PW5. When there are eye-witnesses and the victim herself

deposed that it was the accused-appellant who committed rape on her person, the evidence of the defence witnesses aforesaid lost its ground. That

being so, the defence has not been able to dislodge the prosecution version of the story.

[18] On the other hand, this Court has found, while discussing the prosecution evidence, that the evidence of the victim/PW1 is inspiring confidence

which is further strengthened by PW2, and on account of the facts that as noticed by the PWs3, 4 and 5 immediately after that occurence. That being

so, in the considered view of this Court, the prosecution has been able to prove its case, beyond all reasonable doubts, and therefore, the order

recording conviction by the learned trial court needs no interference. So far the sentence is concerned, the substantive punishment prescribed for this

offence under Section 376(1) of the IPC is either description for a term which shall not be less than seven years but which may extend to

imprisonment for life and shall also be liable to fine.

[19] Considering the nature of the offence committed by the accused-appellant, the substantive sentence imposed upon the accused-appellant is found

to be proportionate, and therefore, no interference in respect of the sentence is also called for. Accordingly, the judgment of the learned trial court is

upheld.

[20] This Court appreciates the legal assistance rendered by Mr. B Baruah, learned Amicus Curiae and directs payment of remuneration of Rs.

7,000/- to him.

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

[22] A copy of the judgment shall also be furnished to the Superintendent, District Jail, Nagaon for furnishing a copy thereof to the accused-appellant.