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.
No comments:
Post a Comment