Mazid Ali alias Abdul vs The State of Assam

D.N. Baruah, J.—This appeal is directed against the Judgment and order dated 4.7.87 passed by the Sessions Judge Darrang, Mangaldai in Sessions Case No. 87 (D) - N of 1985.

An F.I.R. was lodged on 25.8.80 by one Mustt. Rose Bahar Begam before Sipajhar Police Out Post stating inter alia, that on 22/23rd August, 1980 at mid night the accused Appellant entered her house by cutting wall of the house and committed rape on her under threat. While committing the offence she was threatened that she would face dire consequences if she raised any hue and cry. She also staled that meanwhile one Naram Ali entered the house and attempted to catch hold of the accused Appellant, However, the accused escaped. An attempt was made by the public of the locality to compromise the case where the accused-Appellant denied the allegation and the compromise failed. Hence the prosecutrix lodged the F.I.R.

On the basis of the F.I.R. police registered a case and commenced investigation. During investigation police seized a dagger that was produced by the prosecutrix which was stated to be shown to the prosecutrix at the time of alleged commission of offence. However, police did not seize clothes since according to the prosecutrix all the wearing clothes were washed and, therefore, no useful purpose would be served by seizing the clothes, P.W. 5 Dr. (Mrs. Deepali Das who examined the prosecutrix found the following:

Hymen absent.

The girl was menstruating.

According to the Doctor (P.W. 5) the girl was habituated to sexual intercourse and there was no sign of violence. The age of the girl, according to the doctor was between 14-16 years. However, no oscification test was done.

After conclusion of the investigation police submitted charge sheet under Sections 457/376 I.P.C. 6 (six) witnesses including the doctor and the Investigating Officer were examined.

P.W. 1- prosecutrix stated that it was a dark night and inside the room it was not visible. She also did not refer to any light burning inside the house. Her statement only indicates that she could recognise the accused from his voice as well as stature. P.W. 2- Ayezuddin Ahmed a neighbour stated that he was informed about the occurrence. However, he did not say when actually he was informed. P.W. 3 Hasmat Ali slated that on the following morning pf the date of occurrence he went to the house of the prosecutrix (P.W. 1) and found that a portion of the wall was cut. This witness was declared hostile. P.W. 4 Naram Sheikh staled that on hearing the cries he went running to the house of the prosecutrix and saw accused running from the house of the prosecutrix. From moon light he could see the accused. P.W. 6 is the Investigating Officer. He only seized the dagger. However, he did not say anything about cutting of the portion of the house. In examination u/s 313 Code of Criminal procedure the accused-Appellant denied all the allegations.

After considering the evidence on record the learned Sessions Judge found the accused-Appellant guilty and convicted him u/s 457 of the I.P.C and sentenced him to undergo rigorous imprisonment for 3 (three) years and to pay a fine of Rs. 1 ,000/-, in default to undergo rigorous imprisonment for 3 (three) months more. He also convicted the accused-Appellant u/s 376 I.P.C. and sentenced him to undergo rigorous imprisonment, for 7 (seven) years and also to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for 3 months more.

Heard Mr. K.P. Pathak, learned Counsel for the Appellant and Mr. B. Choudhury, learned public Prosecutor for the State.

Mr. pathak submits that the evidence of the (sic) witness has not established the prosecution case. The prosecution (sic) failed to prove that the Appellant actually entered the house of the prosecutrix by committing (sic) house-trespass and committed rape. The evidence, of the prosecution witness is not at all reliable and on the basis of the said evidence the accused cannot be convicted.

Mr. Choudhury, on the other hand, submits that the prosecution has been able to prove the case of the prosecution. Mr. Choudhury further submits that even assuming that there was no lurking house-trespass and that the prosecutrix was a consenting party, then also the accused cannot escape in view of the fact that the prosecutrix was a minor girl and having sexual intercourse with a minor girl even with her consent is an offence amounting to rape.

On the rival contention of the parties it is to be seen whether the prosecution has been able to prove its case. The Appellant was charged under two sections, namely, Sections 457 and 376 I.P.C. There is no evidence whatsoever except the solitary statement of the prosecutrix. The prosecution miserably failed to establish the story relating to cutting of the wall of the house, Mr. Pathak suggests that if the story of lurking house-trespass fails the charge against the Appellant u/s 376 IPC must also fair. It is true that normally in a case of this nature if the charge u/s 457 IPC fails the accused may yet be guilty of offence u/s 376 IPC when the girl is a miner, may be she is a consenting party. But to convict the accused the prime consideration is to recognise him. The story of the prosecutrix is that it was dark midnight and there was no light. She stated that she could recognise the accused from his voice, stature and features. Recognition from voice is a very feeble type of evidence it is very much misleading two persons may have similar voice. Besides, instances are not few where persons imitate others voice. Therefore, it is unsafe to convict a person solely on the basis of the voice. Regarding recognition of the Appellant from the stature and feature is also very unsafe and on the basis of such recognition conviction will also be unsafe. The only evidence left is of P.W. 4 who allegedly saw the accused running immediately after the occurrence and he could see the accused with the help of moon light. It was ''Nabami'' day. The prosecution also did not mention from what distance P.W. 4 could see the accused. Under these circumstances it would be unsafe to accept the evidence of this witness.

For the foregoing reasons I am of the opinion that the prosecution could not prove the case beyond reasonable doubt. The accused is entitled to benefit of doubt. Accordingly I set aside the Judgment passed by the learned Sessions Judge and acquit the Appellant The petition is allowed.

I am told that the accused is on bail. He is discharged from the bail bond.