Sunday, 10 February 2013

Statement of victim recorded u/s 164 of CRPC


This is a peculiar case wherein Court could not record
the evidence of victim, as she (victim) committed suicide at
the stage of investigation. However, her statement U/S 164
Cr.PC was available on record. It is not the law that non
examination of victim perse viciates the whole criminal case.
The requirement of law is that conviction can be maintained
if other evidence successfully proves the ingredients of the
evidence  beyond  reasonable  doubt.  

. Hon'ble  Supreme  Court  in  State  of  Karnataka  V.
Mahabaleswar Gourya Naik reported in AIR 1992 held that -
 “Merely death of victim and her consequent
non availability to be examined can never be
ground to acquit accused if there is evidence
otherwise available proving criminal act of
accused. 
In our case also victim could not be examined as she
committed suicide during the stage of investigation. 


In Narayan Saha and another V. State of Tripura(2004)7
 Contd...10.(10)
SCC 775, in para-8 as regard the delay of lodging FIR ,
Court observed as follows :-
“In  India  if  prosecutix   happened to  be  a
married  person,  she  will  not  do  anything
without  informing  her  husband.  Merely
because the complaint was lodged less then
promptly, does not raise the question that the
complaint was false. The reluctance to go to
the  police  as  because  of  society's  attitude
towards  such  woman.  It  casts  doubt  and
shame  upon  her  rather  than  comfort  and
sympathy with her. Therefore, the delay in
lodging the complaint in such cases does not
necessarily indicate that her version is false”.
In para-24 Court observed as follows :-
“Normally  an  Indian  woman  has  the
tendency to conceal the offence because it
involves her prestige as well as prestige of
her family. Therefore, some short of delay in
lodging complaint relating to offence of rape
is natural”.

4. It is true that statement recorded U/S 164 of Cr.PC is
not substantive evidence and can not made use of except to
coroborate or to contradict the witnesses. In the instant case
defence has also failed to make any contradiction in this
regard.

IN THE COURT OF ASSISTANT  SESIONS JUDGE,
MORIGAON :::::::: ASSAM.
Present : Shri S.N. Sarma, LL.M, AJS,
      Asstt. Sessions Judge, Morigaon.
Sess. Case No.82/2010
  (G.R.No.189/2010)
State of Assam
      -Vs -
    Md. Hasen Ali      ... Accused.
         U/S 376 IPC


Date of Judgement : 05.03.2012
J U D G M E N T
Prosecution Case :
1. The brief of the prosecution case as unfolded at the trial
is as follows :-
Victim  (name  with-held),wife  of  one  Shri  Dutta
Baglary,  resident  of  Jalakiabori  under  Laharighat  police
station,  in  the  District  of  Morigaon  (Assam)   lodged  an
ejahar with the  Laharighat police  station stating inter-alia
that  on  22.2.10  at  about  2.00  PM  after  completion  of
preparation of “mid-day meal”at Jalakiabori M.E. School, as
the victim was the cook of the  mid-day meal of the said
school  and  after  the  mid-day  meal,  head  master  of  said
school, who is the present accused of the case, asked the
victim to wait at the school for some time and while victim
was siting at the school in a place used as kitchen, accused
entered into the said room, closed the door and windows, get
the victim, laid  on the ground and committed forceful sexual
intercourse with the victim. An FIR was lodged before the
O/C Laharighat police station and accordingly a case was
registered  vide  Laharighat  P.S.  Case  No.27/10  U/S  376
IPC and investigation was started.
Contd...2.(2)
Investigation :
2. During investigation , I/O recorded the statement of
witnesses and also examined the complainant. Statement of
the victim was recorded U/S 164 Cr.PC at Court. The victim
was also medically  examined  by  the  doctor.  Accused Md.
Hasen Ali was arrested. I/O after completion of investigation
submitted  charge-sheet  U/S  376  IPC against  the  accused
Md. Hasen Ali. 
3. After receipt of charge-sheet ,learned CJM, Morigaon
was pleased to take cognizance and same was forwarded to
learned  SDJM(S),Morigaon.  After  appearance  of  the
accused, Learned SDJM(S), Morigaon furnished copies  to
the accused and after hearing both sides found Section 376
IPC  is  exclusively  triable  by  the  Court  of  Sessions,
accordingly  case  was  committed  to  the  Hon'ble  Court  of
Sessions  and  after  registration  Hon'ble  Sessions
Judge,Morigaon  transferred  this  case  to  this  Court  for
disposal.
Trial :
4. On appearance of the accused person before this Court
to  face  trial  and  after  hearing  learned  counsel  for  both
sides,my predecessor framed charge U/S 376 IPC against the
accused person and the same was read over and explained to
the accused, to which accused pleaded not guilty and claimed
to be tried.
5. Prosecution  in  order  to  prove  its  case  examined
altogether 9 (Nine) prosecution witnesses including the M/O
and I/O . They are as follows :-
PW – 1 = Shri Kashiram Baglary, teacher.
PW – 2 = Shri Sankar Basumatari.
PW – 3 = Mustt. Mursida Begum.
PW – 4 = Smti. Bharati Baglari.
PW – 5 = Shri Ramen Ch. Basumatari.
PW – 6 = Shri Abin Ch. Hazuary.
PW – 7 = Shri Duttaram Baglary,husband of victim.
PW – 8 = Shri Mohan Ch. Baglary, teacher.
PW – 9 = Dr. Atul Ch. Pator, M/O.
PW – 10 = Shri Ajit Kumar Banik, teacher.
PW – 11 = Shri Rudra Kanta Bora, I/O.
Contd...3.(3)
Prosecution  also  examined  Mrs.  Gitali  Rabha  as  Court
Witness (CW-1). Accused is   examined  U/S 313 Cr.PC.
Accused  pleaded  innocence  and  defence  adduced  no
evidence in support of its case.
6. Heard  argument of learned counsel for  both sides,
perused the entire evidence on record.
POINTS FOR DETERMINATION
i) Whether the accused on 22.2.10 at about 2.00 PM  
    committed rape on victim,a mid-day meal cooker of 
    Jalakia M.E. School against her will and  thereby  
    committed an offence punishable - U/S  376 IPC ?
         DECISION AND REASONS THEREOF:
7. To constitute an offence U/S 376 IPC, prosecution is to
prove the following ingredients of rape as defined U/S 375
IPC which reads -
Rape - A man is said to commit “rape” who except in
the case hereinafter excepted,had sexula intercourse with a
woman  under  circumstances  falling  under  any  of  the  six
following description -
        
 First – Against her will ; 
Secondly – Without her consent ;
Thirdly – With her consent,when her consent has been
obtained  by  putting  her  or  any  person  in  whom  she  is
interested in fear of death or of hurt ; 
Fourthly – With her consent, when the man knows that
he is not her husband, and that her consent is given because
she  believes  that  he  is  another  man  to  whom  she  is  or
believes herself to be lawfully married ;
Fifthly – With  her consent,when, at the time of giving
such  consent  by  reason  of  unsoundness  of  mind  or
intoxication  or  the  administration  by  him  personally  or
through  another  of  any  stupefying  or  unwholesome
substance,she  is  unable  to  understand  the  nature  and
consequences of that to which she gives consent ;
Contd...4.(4)
Sixthly – With or without her consent, when   she  is
under sixteen years of age.
Evidence :
8. Let us discussed the evidence on record as to how far
prosecution is able to prove the above ingredients in case in
hand. 
9. This is a peculiar case wherein Court could not record
the evidence of victim, as she (victim) committed suicide at
the stage of investigation. However, her statement U/S 164
Cr.PC was available on record. It is not the law that non
examination of victim perse viciates the whole criminal case.
The requirement of law is that conviction can be maintained
if other evidence successfully proves the ingredients of the
evidence  beyond  reasonable  doubt.  Inveiw  of  the  above
position  of  law,  let  us  discuss  the  other  evidence  of
prosecution witnesses as to how far they are able to prove the
case. 
10. Learned Addl. P.P. has submitted that all the ingredients
U/S 376 IPC has been proved against the accused and as
such accused is liable to be convicted. He further pointed out
that victim was a Tribal married woman from a backward
community and she being under estimated in their society
after  commission  of  rape,  committed  suicide.  Such
subsequent conducts of victim also prove the fact of alleged
offence of rape. 
11. Controverting the submission made by Addl. P.P. , his
counterpart learned counsel for the defence Shri P.R. Bora
has urged that there was no eye witnesses to the occurrence
and chain of circumstances leading to the commission of
offence of rape has been broken and as such accused is liable
to  be  acquitted.  He  further  argued  that  victim  was  not
examined and her statement U/S 164 Cr.PC can not be the
sole basis of conviction, as the statement U/S 164 Cr.PC is
not a substantive piece of evidence. He further argued that
ejahar was lodged after 10 days of the occurrence and the
delay of filing of ejahar was not properly explained. 
12. PW-1,Shri Kashiram Baglari, who is one of the  teacher
of Jalakiabori M.E.School,in  his  evidence  deposed that on
Contd...5.(5)
22.2.10 after closer of school he left for home. On 2.3.10
when he came to school he found victim at the school, who
was taken to the school by the villagers and victim disclosed
before the gathering that accused committed rape on her. He
further deposed that on that day the villagers gathered in the
school and demanded enquiry of the alleged occurrence of
rape. This PW further deposed that one of the staff of the
school recorded the statement of victim and victim disclosed
that accused committed rape on her at kitchen room.
In his cross-examination he stated that after 22.2.10
victim went to school for cooking of mid-day meal but at
that time victim did not disclose the matter to anybody else.
13. PW-2, Shri Sankar Basumatari deposed that on 2.3.10
victim  reported  one  of  her  village  brother  that  accused
committed rape to her. Thereafter, the said village brother
reported the fact of rape to the family members of victim.
Thereafter, having known by the villagers, the villagers went
to  the  school  accompanied  with  the  victim.  He  further
deposed that while they reached school one of the teacher
namely Md. Mozibur Rahman interrogated the victim and
the victim stated that she was raped by the accused.
In his cross-examinatin he stated that police came to
the school and victim was present while police reached the
school.
14. PW-3, Mustt. Mursida Begum, who was also one of the
cook of Jalakiabori M.E. School stated that she worked with
the victim as cook and one day the villagers went to the
school and she heard that accused committed rape on victim.
15. PW-4,  Smti.  Bharati  Baglari,   is  an  independent
witness. Her evidence is that on the day of occurrence while
victim went to Jalakiabori M.E. School for cooking mid-day
meal about 2.00 PM, the headmaster of thesaid school, who
was present at the school committed rape on victim. Victim
reported the fact of rape to the villagers and after one week
of her reporting the fact of rape, victim committed suicide.
16. PW-5, Shri Ramen Ch. Basumatari also deposed that
while  victim  went  to  Jalakiabori  M.E.school  for  cooking
mid-day meal she was raped by the accused laying her on the
bench. Thereafter, victim informed the matter to them and
subsequently ejahar was filed. This witness  further  deposed
Contd...6.(6)
that victim committed suicide after one month of the alleged
occurrence.
17. PW-6, Shri Abin Ch. Hazuari in his evidence deposed
that on 3.3.10 victim reported to the villagers that on 22.2.10
while she went to Jalakiabori M.E.school to cook mid-day
meal, the accused committed rape to her. This witness also
deposed that victim committed suicide after one and half
months of the alleged occurrence of rape by setting fire into
her body.
18. PW-7 , Shri Duttaram Baglari is the husband of the
victim. His evidence is that his wife, who is the victim in this
case worked as cook  at Jalakiabori M.E. School and accused
was headmaster of of the said school. His evidence is that
accused committed rape on victim and the alleged fact of
rape was initially reported by the victim to his brother and
his  brother  reported  to  the  villagers.  This  witness  further
deposed  that  victim  also  discloses  to  him  that  accused
committed rape on her. His further evidence is that after 2/3
days of occurrence victim affected with shame  took poison.
Again after 15 days ,thereafter the victim committed suicide
by setting fire into her body.
19. PW-8,  Shri  Mohan  Ch.  Baglari,  in  his  evidence
deposed that on 3
rd
 March, 2010 he came to school and knew
that on 22.2.10 accused committed rape on victim. On being
asked to victim, she discloses before him that she was raped
by the accused. This witness also deposed that the victim
took poison and thereafter she committed suicide  by  setting
fire  into her body.
20. PW-9, Dr. Atul Ch. Pator, is the Medical Officer. His
evidence is that on 17.3.10 he was at Laharighat PHC as
Sub-Divisional Medical & Health Officer and on that day he
examined  victim  (name  with-held),  wife  of   Shri  Dutta
Baglari  of  Jalokiabori  under  Laharighat  police  station,  in
connection with Laharighat P.S. Case No. 27/10 escorted by
W.H/G  Jarina  Begum  and  examined  in  presence  of  Smti
Archana Devi, GNM and found as follows:
Brief  history  –  The  victim  woman  stated  that  on
22.2.10 at about 2.00 PM Md. Hasen, teacher of Jolakiabori
M.E. School forcefully performed intercourse with her in the
school's kitchen room in absence of other staff and students. 
Contd...7.(7)
Age – 30 to 33 years as stated by victim. 
Date & time of Examination – On 2.3.10 at about 2.45 
     PM.
Age of incidence – 8 days as per statement of victim 
    woman.
On Examination :
1. No any sign and symptom of recent sexual   
    intercourse.
2. No marks of violence on her private part.
3. No other injury marked.
– It is a case of alleged sexual intercourse as per
statement of victim woman.
21. PW-10,  Shri  Ajit  Kr.  Banik,is  the  Asstt.  Teacher  of
Jolakiabori M.E. School. He also deposed that after 7/8 days
of the occurrence victim discloses before him that accused
committed  rape  on  her.  He  also  deposed  that  victim
committed suicide after one month of the occurrence.
In  his  cross-examination  he  stated  that  after  the
suspension of accused, he worked as Incharge Headmaster of
the said school.
22. PW-11, Shri Rudra Kanta Bora, is the I/O of the case.
His  evidence  is  that   on  2.3.2010  he  was  working  at
Laharighat police station as SI of Police and on that date on
the basis of an ejahar filed by victim (name with-held), the
O/C Laharighat P.S. registered a case vide Laharighat  P.S.
Case No.27/10 U/S 376 IPC and entrusted him to investgate
the case. Accordingly he visited the place of occurrence and
recorded the statement of witnesses  and also examined the
complainant as well as victim. During investigation  accused
Md. Hasen Ali surrendered before the  Court  and enlarged
on bail.  Statement of victim was recorded at Court U/S 164
Cr.PC and also got the victim medically examined and he
collected the medical report of the victim . After completion
of  investigation,  he  submitted  charge-sheet  against  the
accused  Md. Hasen Ali U/S 376 IPC. I/O also stated that
before  submission  of  charge-sheet  the  victim  committed
suicide and he mentioned it in the charge-sheet.
23. CW-1, Mrs. Gitali Rabha, is the Judicial Magistrate,
First Class. Her evidence is that on 3
rd
 March,2010 she was
posted at Morigaon as JMFC. On  that  day  vide  order dated
Contd...8.(8)
3.3.10 by Hon'ble CJM, Morigaon was directed to record the
statement  of  victim  (name  with-held)  in  connection  with
Laharighat  P.S. Case No.27/10, registered U/S 376 IPC,
escorted  and  identified  by  W.H/G  Jerina  Begum.
Accordingly, she recorded the statement of victim U/S 164 of
Cr.PC.
Analysis of Evidence :
24. This is a case of circumstancial evidence as well as
ocular  evidence.  It  is  settled  law  that  a  person  can  be
convicted on circumstancial evidence provided the links in
the chain of circumstances connects the accused with the
crime beyond all reasonable doubt vide Vijoy kumar Arora
V.State (NCT of Delhi MANU SC 0041 2010 (2010)2 SCC
353 (para 16.5), Aftab Ahmed Ansari V. State of Uttaranchal
MANU SC 0036 2010 (2010)2 SCC 583 (vide paragraphs 13
& 14) etc.
25. Hon'ble  Supreme  Court  in  State  of  Karnataka  V.
Mahabaleswar Gourya Naik reported in AIR 1992 held that -
 “Merely death of victim and her consequent
non availability to be examined can never be
ground to acquit accused if there is evidence
otherwise available proving criminal act of
accused. 
In our case also victim could not be examined as she
committed suicide during the stage of investigation. 
26. It  is  also  well  settled  that  when  a  case  raised
circumstancial evidence, such evidence must satisfied three
tests – (i) the circumstances from which an inference of guilt
is sought to be drawn, must be cogent and firmly established;
(ii)  those  circumstances  should  be  of  a  definite  tendency
unerringly pointing towards the guilt of the accused ; (iii) the
circumstances, taken cumilatively, should form a chain so
complete that there is no escape from the conclusion that
within all human probability  the crime was committed by
accused and none else. The circumstancial evidence  should
be like spider's web, leaving no exist for the accused to slip
away. The various links in the chain when taken in isolation
might not connect the accused with the commission of the
crime but when  taken together may unmistakably point out
the guilt of the culprit. The Court has to judge the total com- 
Contd...9.(9)
mulative  effect  of  all  the  proving  circumstances  each  of
which reinforces the conclusion of the guilt of the accused.
27. The  following  circumstancial  evidence  appeared
against the accused that – (i) victim was working as mid-day
meal cook at the school of accused; (ii) that the victim was a
Tribal married woman and backward community; (iii) that
the victim attemted to commit suicide by taking poison after
2/3  days  of  alleged  occurrence;  (iv)  that  the  victim
committed suicide after one month of alleged occurrence  by
setting fire on her body; (v) that the villagers belonged to the
residence of victim went to the school on 2.3.2010 to report
the school authority against the alleged offence of rape; (vi)
that  the  victim  disclosed  the  fact  of  rape  to  her  by  the
accused to the school teacher Kashiram Baglary, Mohan Ch.
Baglari and Ajit Kr. Banik ; (vii) that the victim stated in her
statement U/S 164 of Cr.PC tht on 22.2.10 while she was
cleaning  kitchen  room  at  Jolakiabori  M.E.  School,  the
accused committed rape on her laying her on the ground and
she being afraid of and ashamed did not disclose the alleged
fact.
28. From the scrutiny of the evidence on record it is proved
that victim was a cook at Jolakiabori M.E. School , wherein
accused Hasen Ali worked as Headmaster. It is also proved
that  on  2.2.10  the  villagers  of  victim's  village  went  to
Jolakiabori M.E. School and made an allegation before the
teachers that accused committed rape on victim.
29. Now, the core question before the Court is whether the
facts  of  alleged  rape  to  the  victim  is  believable  or  not.
Learned  counsel  for  the  accused  has  submitted  that  the
occurrence took place on 22.2.10 and ejahar was lodged on
2.3.10 and the delay of filing ejahar has not been explained
and as such the alleged fact is doubtfull. 
30. After gong through the facts and circumstances, I am
not  agree  with  the  argument  advanced  by  the  defence
counsel.  Because  in  the  FIR  cause  of  delay  has  been
explained by the complainant, stating that accused cautioned
the victim not to disclose the matter and as such delay was
caused. 
31. In Narayan Saha and another V. State of Tripura(2004)7
 Contd...10.(10)
SCC 775, in para-8 as regard the delay of lodging FIR ,
Court observed as follows :-
“In  India  if  prosecutix   happened to  be  a
married  person,  she  will  not  do  anything
without  informing  her  husband.  Merely
because the complaint was lodged less then
promptly, does not raise the question that the
complaint was false. The reluctance to go to
the  police  as  because  of  society's  attitude
towards  such  woman.  It  casts  doubt  and
shame  upon  her  rather  than  comfort  and
sympathy with her. Therefore, the delay in
lodging the complaint in such cases does not
necessarily indicate that her version is false”.
In para-24 Court observed as follows :-
“Normally  an  Indian  woman  has  the
tendency to conceal the offence because it
involves her prestige as well as prestige of
her family. Therefore, some short of delay in
lodging complaint relating to offence of rape
is natural”.
32. In view of the above facts and law ,I am of the view
that delay of lodging FIR in the instant case does not give
any benefit to the accused.
33. In  this  case,  except  PW-7,  all  other  witnesses  are
independent  witnesses  and  as  such  there  is  no  any
falsification of adducing evidence against the accused. 
34. It is true that statement recorded U/S 164 of Cr.PC is
not substantive evidence and can not made use of except to
coroborate or to contradict the witnesses. In the instant case
defence has also failed to make any contradiction in this
regard.
35. One  of  vital  circumstances  which  goes  against  the
accused  is  that  victim  committed  suicide  after  the
occurrence, while the fact of alleged rape came into light and
spread  to  the  villagers.  The  victim  is  a  Tribal  married
woman,aged about 30 years and it cannot be denied that she
committed suicide being ashamed with the fact of rape.
Contd...11.(11)
Conclusion :
36. From  the  foregoing  discussions  of  the  evidence
adduced by  different  prosecution  witnesses  and   also  the
circumstances  appeared  against  the  accused,  the  facts
remains that on the date of occurrence at about 2.00 PM
accused Md. Hasen Ali committed rape on victim laying her
on the ground. Therefore, I am of the view that prosecution
has able to prove the ingredients  U/S 376 IPC beyond all
reasonable doubt.
37. Therefore, accused Md. Hasen Ali  is found guilty U/S
376  IPC  and  accordingly  he  is  convicted  under  the  said
section.
38. From  the  record  it  appears  that  accused  was  a
Headmaster, aged about 56 years and he committed rape
with a married woman, taking the advantage of her poverty
and taking the advantage of his official capacity being the
Headmaster and in that circumstances , I am of the view that
accused is not entitled to get any benefit of Provision of
Probation  of  Offenders  Act.  Accoridngly  ,I  proposed  to
sentence the accused.
S E N T E N C E
39. Heard  the  convict  Md.  Hasen  Ali  on  the  point  of
sentence. As regards the point of sentence, his statement is
recorded in a seperate sheet. Accused stated that he is aged
about 56 years, a married man,he has four daughters and one
son and he is sole earning member of his family.  His two
daughters are of marriagable age and as such, he may be
exempted from under going imprisonment.
40. Now, coming to the point of sentence, I find that the
accused  Md. Hasen Ali is facing trial for a long time. He is
aged about 56 years. He  has  no antecedent  of criminal
activity and he is  not previous convict. Besides, he is the
only earning member of  his  family.
41. Weighing all these factors and considering his plea at
the time of hearing on point of sentence, to my considered
opinion  , a  balance  can be  maintained  by  sentencing  the
accused. Therefore, the accused is sentenced to undergo R.I.
For  7 (seven)  years   U/S  376   IPC  and  to  pay  a  fine  of 
Contd...12.(12)
Rs. 2,000/- (Rupees two  thousand)only,  in  default  of
payment  of  fine, to  undergo  S.I. For  2   ( two) months. 
42. The period of detention if the accused is in Jail Hajot be
set  off  as  per  provision  U/S  428  of  CrPC.  A copy  of
judgement be  furnished to the accused person free of cost.
43. Given under my hand and seal of this Court on this 5 th
day of March,2012 at Morigaon.
Dictated & correctted 
by me.





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