Naimul Hoque vs State

In re : CRAN 2637 of 2019

This is an application seeking suspension of sentence pending appeal. The applicant is one amongst five persons who have been convicted and sentenced to undergo different counts of imprisonment including life imprisonment for the offence punishable under Section 376 (2)(g) and other counts of IPC.

We have heard learned counsel for the applicant and the learned Public Prosecutor.

Learned counsel for the applicant argued that the evidence on record unequivocally points out that there is no activity of rape as could be recognized in law that could be sustained more particularly with reference to the medical evidence tendered by P.Ws 21 and 22, Doctors, who examined the victim and had issued certificates. The thrust of the submissions centered around the fact that the Doctors who had opined that there was no fresh injury found to the Hymen; only hymenal tag found and that there was no bleeding or foreign body found on genital examination. The testimony of the victim that she was assaulted with no specific description of the allegation of rape is also relied on by the learned counsel for the applicant. He further argued that the applicant has by now served more than 7 years and 8 months, taking the full period of custody including the custody during trial.

Learned Public Prosecutor opposed the application pointing out that this is a case of gang rape coupled with assault and other offences which are proved through legal evidence which are on record. He pointed out that the medical evidence does not rule out rape particularly when the victim had stated about the fact that she was subjected to sexual intercourse after she was beaten up completely.

We have looked into the material evidence for the purpose of considering whether the applicant has shown a strong prima facie case for suspension of sentence pending appeal.

The Court below has held on the basis of the evidence that the victim, who as per the Doctor's report is recorded as 16 years old and is stated elsewhere as 17 years old, was proceeding to her school in a cycle rickshaw when that was intercepted by persons coming in a Maruti car. They dragged her into the Maruti car after beating her up. She was, thereafter, taken up in high speed and later thrown out from the car, beaten up and put into a drain. The evidence tends to indicate that the victim had become totally incapacitated that she could not withstand any further assault and the nature of sexual assault on her has been of such a nature as it could be committed on a person who has been completely immobilized or in a near unconscious state. This is what the statement of the victim also shows.

Coming to the medical evidence, the victim had different injuries on her bodies. There were nail marks, bite marks on the chin as well as on her breast. There were marks including scratches on her buttock and other parts. There was also sufficient pressure applied to her neck and the centre part of the chest. This is what emanates out of a comprehensive consideration of the Doctors' evidence. The evidence of the two Doctors taken together may not at the first blush rule out rape which shows definite evidence of secondary sexual activity including fondling and applying force resulting in injury to the breast, buttock, neck, chin and other parts of the victim. The mere fact that there was no injury to the vagina or the genital parts does not by itself rule out the possibility of rape. The version of the Doctors is also eloquent in this regard inasmuch as P.W. 22 said that since on genital examination it was found that her vagina admits two fingers, there would not be any possibility of receiving any injury if she was raped by eight or more persons forcibly. This does not rule out the possibility of rape of the victim. It only amounts to testimony that in such cases rape by even eight or more persons would not necessarily cause injury to the genitals of the victim. He has further explained this situation by saying that in the reverse case, that is if the victim girl had received sexual intercourse for the first time, she may receive injury on her vagina. Such medical evidence may only tantamount to showing that the victim could have had earlier sexual experience and this might not have been her first sexual intercourse. That does not mean that she could not sustain her complaint of having been raped by persons whom she had identified in Court. We also see that her testimony regarding such complaint is also accompanied by the evidence of her sister and brother to whom obviously her initial complaints were made. Such material lends credibility to the testimony and corroboration of the victim.

On the facts and circumstances of the case in hand, we cannot hold at this stage that there is a strong prima facie case that the applicant had not committed the offence of rape for which the punishment has been handed down. Taking the gravity and the comprehensive nature of jointness of the different accused persons in the commission of the offence, we are inclined to think that this is not a case fit for grant of an order of suspension of sentence pending appeal.

In the result, the application, being CRAN 2637 of 2019, is dismissed.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon usual undertakings.