CRL.A(J) 72/2016. Gauhati High Court

Case NumberCRL.A(J) 72/2016
Judgement DateJune 15, 2018
CourtGauhati High Court

IN THE G AUHATI HIG H C O URT

(The Hig h Co urt o f Assa m , Na g a la nd, Mizo ra m a nd Aruna c ha l Pra de sh)

C rim ina l Appe a l (J) No .72 o f 2016

……. Appellant

….. Respondents.

P R E S E N T

HO N’BLE MR. JUSTIC E HITESH KUMAR SARMA

For the petitioner : Ms. M. Choudhury,

Amicus Curiae.

For the Respondent : Mr. P.S. Lahkar,

Additional Public Prosecutor, Assam

Date of hearing and

Judgment : 15.06.2017

JUDGMENT AND ORDER ( Oral)

This is a jail appeal, preferred by the accused-appellant from Central Jail, Nagaon, vide his application dated 22.7.2016, against the judgment and order, dated 15.7.2015, passed in Sessions Case No.354(N)/ 2011, convicting the accused appellant under Section 376 of the I ndian Penal Code, and sentencing him to rigorous imprisonment for 7(seven) years and to pay a fine of Rs.2,000/ -, in default, to undergo rigorous imprisonment for another two months.

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Nur Mohammad

-Versus –

The State of Assam.

  1. The victim, Ms. X, is the daughter of P.W. 1, aged about 13 years, was raped by the appellant Md. Nur Mohammad, aged about 58 years. On commission of repeated rape, the victim got pregnant and, ultimately, gave birth to a female child. While she was pregnant for about 25/ 26 weeks, she informed her mother about the commission of rape by the accused/ appellant and, her mother, in turn, informed her father, the P.W.1. The accused is a relation of the victim and used to frequent to their house. The house of the accused is near to that of the victim.

  2. On the basis of such facts, P.W. 1 lodged the FIR with the Mowamari Police Outpost on 22.4.2011. The FI R was forwarded to the Samuguri Police Station for registration of a case by the in-charge of the aforesaid police outpost. Accordingly, Samuguri Police Station registered a case, being No.253 of 2011, under Section 376/ 493 of the I ndian Penal Code, and entrusted the investigation of the case to S.I . of Police, Shri Jagat Chandra Das. On completion of the investigation, the police filed charge-sheet against the accused under Section 376 of the I ndian Penal Code.

  3. The accused appellant was charged for commission of an offence under Section 376 of the I ndian Penal Code by the learned Sessions Judge, Nagaon in Sessions Case No.354(N)/ 2011. The accused appellant pleaded innocence to the charge.

  4. The prosecution, to bring home the charge against the accused appellant, examined as many as 7 witnesses, who were subjected to crossexamination by the defence.

  5. I t deserves mention here that, vide Petition dated 10.1.2012, the accused appellant prayed to the learned Sessions Judge to cause DNA test of himself, the victim and the child of the victim. However, the learned Sessions

    Page 2 of 15

    Judge, Nagaon, rejected such prayer of the accused appellant, vide order dated

    22.8.2012, following which, he preferred a Criminal Revision Petition before the High Court, being Criminal Revision Petition No.458/ 2012, against the aforesaid order dated 22.8.2012. The High Court disposed of the revision petition allowing DNA test to be conducted of the accused appellant, the victim and the child, stated to have been born out of the crime committed by the appellant.

  6. DNA tests, in accordance with the above order of this Court, was conducted on 29.11.2012.

  7. I n his statement recorded under Section 313 of the Code of Criminal Procedure, on 18.3.2012 and 19.3.2015, accused appellant denied the accusation levelled against him as well as the fact that his blood sample and that of the child of the victim matched as per the report of the DNA examination.

  8. During the cross-exanimation of the witnesses also, the accused appellant tried to make out a case that the victim had sexual relationship with three(3) other persons, namely Gafur, Kalia and Faizul. But, the accused appellant did not adduce any defence evidence to substantiate his such plea, which was required in view of his denial by the victim.

  9. Now, the question for determination is whether the accused appellant committed rape on the victim, as alleged.

  10. For determination of the above point, it would be apposite to evaluate the evidence of the prosecution witnesses.

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    EVI DENCE

  11. P.W. 1, Ahmed Ali, is the father of the victim-X, examined as witness by the Court on 13.12.2011, deposed that his daughter (the victim), was 14 years of age and that the occurrence took place about a year back. The accused used to visit his house for several months and had love affairs with his said daughter. According to him, the victim informed her mother that the accused is responsible for her pregnancy. The mother of the victim then informed this fact to P.W.1. There held a meeting of the villagers (village mel), where the accused admitted his guilt, although, subsequently, he retracted. This witness lodged the FI R (marked as Ext.1). There was medical examination of the victim and that her statement was also recorded under Section 164 of the Code of Criminal Procedure. Twenty-seven days before the date of recording of her evidence, the victim delivered a female baby.

    I n his cross examination, he is found to have stated that the occurrence took place about 11 months back and he came to know after about 8 months of the pregnancy of his daughter, the victim. A panchayat was held to settle the matter. Abdul Hye, Sattar and other respectable persons of the locality were present in the panchayat. P.W. 1 denied that due to political differences, he lodged the FI R against the accused. He further deposed in his cross-examination that the other villagers also used to visit his house. He expressed his ignorance whether the villagers suspected one Gafur, Kalia and Faijul as the persons having illicit relationship with his daughter/ victim.

  12. P.W. 2, the victim, was examined on 13.12.2011 by the Court. She is found to have stated in her evidence that the accused appellant frequently visited their house for about last one year and that the accused is her relative. She is also found to have stated that the accused had intercourse with her on several occasions and even threatened her when she refused to have...

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