Rokibuddin Ahmed vs State of Assam

T.C. Das, J.—The Appellant Rokibuddin Ahmed has been convicted by the learned Sessions Judge, Jorhat u/s 366 and u/s 376 of the Indian Penal Code on being satisfied that the prosecution could prove the guilt of the accused for the commission of offence under aforesaid provisions of law. Accordingly, the Appellant has been sentenced to undergo rigorous imprisonment for 10 years for commission of offence of rape and to suffer rigorous imprisonment for a period of three years for the offence u/s 366 of IPC. The first information was lodged at the Golaghat Police Station on 24.12.73 by P.W. 1 Kanayalal Agarwalla to the effect that he along with his servant one Kanayalal Gour while accompanying Smt. Romia Tirki, a Christian maid-servant of their house to the church to put here there at about 9.30 P.M. on the eve of Christmas, the Appellant Rokibuddin Ahmed along with four others assaulted the informant Kanayalal Agarwalla and dragged Smt. Romia with bad intention by the side of Railway line near the Rly. level crossing. This happened as soon as they crossed the Rly. level crossing at Kumarpatty and when they were leading to the church on foot. The complainant requested the police authority in the F.I.R. to rescue the girl as soon as possible and to take steps to punish the accused persons. On lodgment of the F.I.R. with the Officer-in-charge of Golaghat Police Station, police took up investigation. The investigation that followed, resulted in a charge-sheet, a trial and eventually in a conviction of the Appellant based subsequently on the testimony of witnesses. The Appellant has challenged the convictions and sentences in this, appeal.

The First Information Report, however, narrated the story how the girl was forcibly taken away by the appellate and four others. It would be now necessary to narrate the prosecution case as found by the learned trial court. The prosecution story as revealed after investigation may now be broadly stated.

The occurrence took place in the Christmas night of 84th December, 1973 at about 9.30 p.m. near Kumarpatty railway line level crossing of Gate No. 2 of Golaghat Town. During the relevant period, Romia Tirki, a christian girl who was serving as a maidservant in the house of the complainant of Golaghat town accompanied by P.W. 1 (informant) and his servant Kanahayalal Gour were proceeding to the church to attend the Christmas prayer. When they crossed the railway line at Kumarpatty, suddenly 5 persons including the Appellant attacked them from behind and started assaulting both P.W. 1 and his servant Kanahayalal Gour and forcibly took away Romia Tirki from them. She was taken by the side of railway line and all of them including the Appellant forcibly committed rape on her. Thereafter they took her to the bouse of P.W. promode Kumar Baruah where she was stated to be kept confined with the intention of having further sexual intercourse with her. P.W. 1 and his servant Kanahayalal Gour returned home and reported the matter to Satya Narayan Agarwalla, father of P.W. 1 and also to P.W. Hanuman Box. Thereafter all of them came to Police Station and lodged the First Information Report by P.w. 1 Police party accompanied by Satya Narayan Agarwalla and others rushed to the house near the place of occurrence as narrated by P.W. 1 and the girl Romia Tirki was rescued and recovered from a house where P.W. promoda Kumar Baruah resided. The Appellant was found with the girl inside the house, the police arrested the Appellant and the girl. It was further stated by the prosecution that the other persons who committed rape on the girl covered their faces with white bed chaddar. The other persons also entered the ''house of P.W. Promode but seeing the police party they fled away. They were one Dadul, Amerdu, Salimuddin and Bapujan. Next day, i.e. on 25th December, the girl Romia was medically examined and her statement was also recorded by the Magistrate" u/s 164 Code of Criminal Procedure along with the statement of witness Promode Baruah from whose house the girl was recovered. The case as registered by the police, was committed to the court of Sessions by the Judicial Magistrate. In the court of Sessions Judge, charges u/s 366 I.P.C. and u/s 376 I.P.C were framed against accused Rokibuddin Ahmed who pleaded not guilty to the charges.

The learned trial court found the Appellant guilty under both the provisions of law and that finding has been challenged in this appeal.

It is established principle of law that in cases under Sections 366 and 376 of I.P.C., the age of prosecutrix is always of importance, particularity so where according to medical evidence, she was found to have been used to sexual intercourse and there was old rapture of hymen.

(See Ram Murti Vs. State of Haryana,

Mr. P.C. Kataki, learned Counsel for the Appellant has raised the following contentions:

(1) That the prosecution has totally failed to prove the, offence against the, Appellant and in absence of any medical examination on the person of the accused, the accused cannot be held guilty of the offence of sexual intercourse.

(2) That the learned trial court wrongly considered the inadmissible evidence on record, namely, the statement of the girl about the incident as narrated to the investigating officer.

(3) That the prosecution failed to examine the material and vital witnesses and no explanation was given by the prosecution for non-examination of those material witnesses. It is prosecution case that several persons committed rape on Romia including one Dadul against when admittedly no prosecution was launched.

(4) That it, is in evidence on record that the girl Romia was not below 18 years and the medical report of the doctor clearly speaks about the fact that she was used to sexual intercourse from before and that there was old rapture of hymen. The girl being not below 18 years of age, no charge could be framed u/s 366 of I.P.C. and the conviction under the said provision of law is not only unwarranted but legally untenable.

(5) That the Appellant was not examined by a doctor nor any chemical report of his apparels including that of girl which according to prosecution were sent for chemical examination did reached the court for consideration in course of the trial.

(6) That no injury or scratch mark was found by the doctor on the person of the girl Romia which clearly shows that there was no resistance from the side of the girl and the girl being more than 18 years of age, though she may not be treated as accomplice, she was undoubtedly a consenting party and the alleged offence was not committed against the will of the girl.

(7) That there is no corroborating evidence of the prosecution witnesses to prove the guilt of the Appellant u/s 376 of I.P.C.

(8) That the story narrated by the prosecution was highly imprebable and full of concoction of facts. The prosecution has intentionally suppressed the true facts before the court.

(9) That the Appellant has been implicated by the informant falsely and out of old enmities.

In support of contentions, Mr. Kataki has drawn my attention to the charge framed against the accused. The first part of the charge is u/s 366 of the Indian Penal Code. The relevant portion of the said charge runs as follows:

That you on or about the 24th day of December, 1973 at Golaghat'' Town near Rly. gate abducted Msst. Romia Tirki, along with other, with intention to have illicit sexual intercourse, against her will....

The second part of the charge is u/s 376 I.P.C. on the allegation that the accused committed rape on Smt. Romia Tirki against her consent.

Before dealing with the evidence, let me first take up for scrutiny both the charges as referred to me by the learned Counsel for the Appellant. Section 366 I.P.C. is aggravated form of Section 361 which has got the following ingredients:

(i) Taking or enticing away a minor or a person of unsound mind.

(ii) Such minor must be under 16 years of age, if a male or under 18 years of age, if female.

(iii) The taking or enticing must be out of the keeping of the lawful guardian of such minor person or person of unsound mind.

(iv) Such taking or enticing must be without the consent of such guardian.

In order to bring home a charge to an accused u/s 366 I.P.C, the prosecution has to show that the woman was kidnapped or abducted in order that she might be forced or seduced to illicit intercourse or knowing it, to be likely that she would be so forced or seduced. In other words, the prosecution must show that there was either kidnapping or abduction. All that the Section requires is that the minor girl or woman should be kidnapped or abducted, as the case may be, for the purpose of being compelled to marry against her will, and whether the marriage would be valid or not has nothing to do with the commission of the offence. Another requirement is that it must be shown that the girl or woman, had been kidnapped or abducted from lawful guardianship. However, the question of age of the prosecutrix in cases u/s 366 is always a matter of importance. Where the prosecution failed to prove the age of the girl to be below 18 years on the date of offence it can safely be held that the charge u/s 366 I.P.C, could not be brought home to the accused. Therefore, the question of age in cases under Sections 366 and 376 I.P.C. is one of the most important features to be considered. It is particularly so in a case where according to the medical evidence, the prosecutrix is found to have been used to sexual intercourse and the rapture of the hymen is old. In a prosecution under this Section, in view of the fundamental importance of the question of age, it is the duty of the trial Judge to obtain the evidence of the witness with the utmost precision and to have it brought out clearly whether the witness could say that the girl was below 18 years.

In respect to the above charge u/s 366 I.P.C, let me turn to the evidence of the most relevant witness P.W. 2 Dr. Kandarpa Chaliha. His evidence is most relevant on the score that the prosecution failed to examine the mother of the girl or any other available witness to prove the actual age of the girl, Therefore, except P.W. 2 there is none to prove the age of the girl in order to bring home the charge of the offence u/s 366 I.P.C. to the accused. Dr. Kandarpa Chaliha, P.W. 2 has stated in his evidence that at that relevant time on 25.12.73 he was working at S.D.M. and H.O. of Sibsagar Civil Hospital. He examined the girl Romia Tirki and he found that the hymen of the girl was already ruptured and represented a granular tag of tissue. An ossification test was taken through X-Ray. He also did not find any injury on her person. According to him, tie Labia was loose and no injury could be detected. P.W. 2 has opined that the girl Romia Tirki was aged about 17 to 18 years and she had sexual intercourse within 24 hours. In cross-examination he has stated that the looseness of Labia indicated that she was used to sexual intercourse and there was old rapture of her hymen. He has further stated that injury on her Labia or any part of vegina could not be expected by sexual intercourse with her. His further evidence is that the age of the girl might have slightly above 18 also. This is the only piece of evidence as regards the age of the girl and report of examination as to the sexual intercourse on her. There is nothing on record to discard the evidence of doctor as the said opinion is the opinion of an expert. As no other evidence has been produced by the prosecution to prove the actual age of the girl, the opinion of the doctor as to her age must be accepted to be true and correct. If that be the position the charge framed against the accused u/s 366 I.P.C. cannot stand as because her age might be slightly above 18 years on the date of occurrence. Therefore, on the basis of the evidence of P.W. 2, the conviction of the accused u/s 366 of I.P.C for the offence of abduction must be set aside as the prosecution has failed to prove the charge against the Appellant (accused).

Now the next surviving point remains to consider as to whether the Appellant could be convicted u/s 376 of the I.P.C. It has to be borne in mind that the onus is always on the prosecution to prove affirmatively each ingredient of the offence the prosecution desires to establish and such onus never shifts. Therefore, it is incumbent on the part of the prosecution to show that the ingredients of Section 375 of the Indian Penal Code were present in case of the sexual intercourse attributed to the accused. In practice, a conviction for rape almost entirely depends on the credibility of a woman so far as the essential ingredients are concerned the other evidence being merely of corroborative value. The question of age of the prosecutrix in a case u/s 376 IPC has got an important bearing. In this regard the only conclusive piece of evidence is the evidence of P.W. 2. The Court, therefore, has to base its conclusion upon all the facts and circumstances disclosed on examining the physical features of the girl and the same can be revealed from the evidence of P.W. 2. According to P.W. 2, the girl is slightly above 18 years of age on the date of occurrence which took place as far back in the year 1973.

Section 375 IPC defines rape. According to that provision, a man is said to commit rape who has sexual intercourse with the woman under the circumstances falling under any of the 5 categories, the Section itself states under clause fifthly-"with or without her consent, when she is under 16 years of age". Therefore, in order to decide as to whether the Appellant is guilty of an offence punishable u/s 376 I.P.C., the first issue that arises for decision it about the age of the girl. I have already observed earlier that medical evidence clearly shows that she is not 16 years of age. It is in evidence that the mother of ''the'' girl is still alive. The defence, however, could be able to bring out in cross-examination of P.W. 3 that the mother of the girl was alive and at the relevant time she was in the Bakial garden. The first part of the cross-examination of P.W. 3 is quoted herein below:

I worked in the house of Kanailal from 2/3 years. I have heard that my father is alive in my native place (at Rajgarh). My mother is also alive. She is in the Bakial garden. At the time of occurrence my mother was in Bakial garden. I did not tell my mother about the occurrence. I did not inform my father also.

(Emphasis Laid)

From the testimony of this witness it is clear that the prosecution has withhold the best person, namely, the mother of the girl to produce as a witness to prove her actual age. There is no explanation from the side of the prosecution as to why the best piece of evidence was withheld. Therefore, the evidence of the doctor must be accepted as to the age of the girl. As regards the offence of rape alleged to have been committed by the Appellant, let me now turn to the individual evidence of each of two witnesses. I have already stated that P.W. 3 Romia Tirki is the sole witness to narrate the entire episode of rape. In her evidence, she has stated that she was dragged by 4 persons towards the jungle by the railway line. Her further evidence is that the Appellant and three others committed rape on her forcibly. She was put on a grassy place in that jungle and then the accused along with others laid her down and committed rape on her. The accused first committed rape on her and thereafter the rest of the three committed rape one after another. After commission of rape, she was taken to a nearby small thatched house where there was a boy in the house. He is the P.W. 4 Promode Kumar Baruah. According to her evidence, the accused entered that house with her and told her that he would again commit rape on her and the rest of the persons also told her in the same manner. She requested them not to commit further rape on her. Meanwhile, she heard the voice of her house owner outside the house. The police Daroga, her house owners and P.W. Hanuman babu entered the house. The accused was caught by the police personnel inside the room where she was kept confined. She immediately told the police and the house owners (who were present along with the police) about the commission of offence by the accused and his partners. According to her evidence, at that time P.W. Promode Baruah was also in the house. She was produced before the Magistrate along with the accused and her statement was recorded by the Magistrate. However, she stated that the rape was committed by all against her will. In cross-examination she has stated that while they were taking her through jungle like place, she suffered scratch in her leg but they did not show those scratch marks to doctor. The defence suggested that she was a girl of easy virtue and inhabituated in sexual intercourse from before. The evidence of this prosecutrix remained uncorroborated as there is no eye witness except the medical evidence. However, the medical evidence corroborated the prosecution story so far as the factum of sexual intercourse is concerned. P.W. 4 Promod Kumar Baruah has stated in his evidence that he used to live in that thatched house where the girl was taken by the Appellant. This was a rented house and one Sadar was the owner of that rented house. The prosecution did not examine the house owner and there is no explanation for non-examination of the said important witness Sadar. This P.W. 4 has categorically stated that Dadul was one of the boys whom he could recognise to have entered into his house at that time. He could not recognise the others except Dadul as they covered their faces with ''chaddar'' and entered into his room. He has further stated that all of them entered into his house with bad intention. According to his witness, when police came Dadul ran away from his house. In cross-examination he had to admit that he did not hear anybody''s cries till the time of entrance of police into his house. This witness was also taken to thane by police. P.W. 5 is Hanuman Box Agarwalla who appears to be over interested with the prosecution case. He has stated in evidence that he along with Kanayalal and his elder brother Sri Chand went to thana. P.W. Kanayalal lodged the ejahar. He has further stated that from Police Station he informed the matter over phone to S.D.O. He contradicts the evidence adduced by P.W. 4 an he has stated in his evidence that he heard Romia''s cries from inside the house. In cross-examination, he has stated-

I do not remember if I told the Daroga that we had heard the cries of the girl. The Daroga babu came along with us. The Daroga also heard the crying and shouting of the girl.

According to P.W. 4, all persons namely Romia, the Appellant and two other persons who entered into the house where P.W. 4 resided, observed complete silence. There was no cry nor shouting on the part of the girl. But this P.W. 5 has stated otherwise, P.W. 6 is the investigating officer. In his evidence he has stated that on the very night of occurence he recorded the statement of the witness. He sent both Kanayalal Agarwalla P.W. 1 and Kanahayalal Gour for medical examination on their report that they felt pain as a result of the blows sustained by them. He sent the cloths of P.W. 3 Romia and accused for chemical examination, but he did not receive the report back, from chemical examiner. P.W. 7 Shri Mukabbir Barlaskar is mother Police Officer, in-charge of Ladoigor Police Out Post. He submitted charge-sheet in the case. In cross-examination he has stated that he mentioned the names of dadul, Arnendu, Solibuddin and Bapujan under column 2 of the charge-sheet is "not charge sheet" accused. It is not conceivable as to why that inspite of the evidence of P.W. 4, Dadul and the three others as named by P.W. 7 were not charge-sheeted as accused. The own case of the prosecutrix was that she was raped by several persons including the Appellant. Another important feature which must be looked into is that why the prosecution failed to examine the most material witness Kanahayalal Gour who admittedly on the day of occurrence accompanied the girl as an escort along with P.W. 1 to the church. No reasonable explanation is forthcoming from the prosecution in this regard for non-Examination of the said material witness.

However, if we take the evidence of P.W. 3 the prosecutrix along with the medical evidence, we find that P.W. 3 was the victim of sexual intercourse on 24th day of December, 1973 which took place at about 9.30 P.M However, the pertinent question which arises in this case is as to whether the Appellant can be held guilty of the offence punishable u/s 376. I.P.C.? In deciding that, the next question that arises is whether the sexual intercourse was committed with or without her consent. It is in evidence of the doctor that there was no external injury of any kind whatsoever on the body of the girl. It is inconceivable that a grown up girl of 18 years would submit to forcible intercourse without struggle. Had she struggled, there would have been some scratches on her own body. She was subjected to intercourse in a jungle place and uneven and rough ground. According to her own evidence, she was laid down at her back and if it was by applying force that was bound to cause some scratches or at least some bruises on her back through friction. The complete absence of any injury or scratches on the person of the Appellant and the victim suggests that the intercourse was not forcible and the girl must have been a consenting party.

Placing the evidence pros and cons and taking into, consideration all the circumstances surrounding as to the commission of offence, one can safely reach the conclusion that the girl was 18 years of age at the time of occurrence as per medical evidence and in absence of any mark of violence on her person and keeping in view her subsequent conduct inside the house where they entered, it can be inferred that the sexual intercourse, if at all took place, did take place with her consent. The prosecution failed to prove that the rape was committed on the prosecutrix by force and that she was below 16 years of age, No such evidence is forthcoming in this case to that effect. Rather it is found from the evidence that the girl was slightly above 18 years of age and the prosecution has failed to bring home the use of force to overcome the prosecutrix''s will to resist and the resistance to the utmost by her.

Mr. A. Ahmed, learned Public Prosecutor has fairly submitted that he cannot move an inch in his submission beyond the evidence on record. He could not criticise the evidence of doctor because it was the witness of the prosecution who spoke about the age of the girl. The learned Public Prosecutor had to admit and very fairly, that there is no explanation from the prosecution for non-examination of certain material witnesses, namely Kanayalal Gour who accompanied the girl on the night of occurrence, mother of the girl to prove the age and the non-examination of the material witness, namely the house owner Sadar and the father of P.W. 1 Satyanarayan Agarwalla. The learned Public Prosecutor has not denied that the statement made by Romia before the police when she was rescued was not admissible in evidence.

The preposition of law as discussed above and the facts of the case as narrated by the prosecution and upon consideration of the evidence on record there can be no manner of doubt that the accused cannot be convicted u/s 376 IPC as it cannot be brought within the definition of rape in view of the fact that the intercourse being with the consent of the girl and that she being not under 16 years of age. Therefore, the accused Appellant must be acquitted of the charge u/s 376 IPC.

In the result the appeal is allowed. The Appellant''s conviction u/s 376 IPC and the sentence of 10 years R.I. awarded to him by the learned Sessions Judge are set aside. The Appellant is also acquitted from the charge u/s 366 IPC and the conviction and sentence u/s 366 IPC are also set aside. The Appellant is on bail. He is discharged from the bail bond.