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Morigaonjudiciary.gov.in

IN THE COURT OF THE SESSIONS JUDGE, MORIGAON
[Committed by learned Judicial Magistrate, Present : Md. I. Hussain,
Appearance for the Parties
Advocate for the State :- Mr. P.B. Dey, P.P. Advocate for the accused :- Mr. U.C. Roy, Advocate Date of recording Evidence :- 24.01.2012, 05.03.2012, J U D G M E N T
1. Prosecution case in brief is that the informant Miss Romina Begum lodged an ejahar at Mikirbheta P.S. on 10.12.2010, alleging inter alia that on 08.12.2010 at about 4.00 P.M. accused Wahab Ali lifted her 5 years old daughter Yasmin Sultana by gazing her mouth with cloth, while she was playing with Bhonti Begum, on the road, and took her to the backside of the house of Phukan Ali and tried to commit rape on her. Fortunately, Peleni Begum saw and her daughter saved. Her husband was absent in the house so, it was delayed in filing the ejahar. The O/C Mikirbheta P.S. registered the ejahar as Mikirbheta P.S. Case No. 150/2010; under Section 376(f)/511 I.P.C. and started investigation. After completion of the investigation, I.O. submitted charge sheet against the accused Wahab Ali under Section 376(f)/511 I.P.C. showing him absconder. The case was registered as G.R. Case No. 1266/2011. On appearance of the accused before the learned Judicial Magistrate, 1st Class, Morigaon, copies of the materials were furnished and the case was committed under Section 209 Cr.P.C. vide order dated 26.09.2011. 2. After receipt of the case record on committal, it was registered as Sessions Case No. 77/2011. On perusal of the materials and after hearing both sides, charge was farmed by learned Session Judge Sri P.K. Das, under Section 376(f)/511 I.P.C. Contents of the charge on being read over and explained to the accused, he pleaded not guilty and claimed to be tried. 3. Prosecution side examined as many as 9 (nine) witnesses including the I.O. and the M.O. The witnesses are – PW-1 Miss Ramina Begum, PW-2 Miss Yasmin Sultana, alleged victim, PW-3 Miss Morjina begum alias Bhonti, PW-4 Md. Phukan Ali, PW-5 Md. Babul Ali, PW-6 Rumena Begum, PW-7 Peleni Begum, PW-8 Sri Bhaskar Kalita, I.O. and PW-9 Dr. S.M.A. Zakaria M.O. of the case. Defence cross examined the witnesses to rebut the charge. Plea of the accused is total denial and he examined none in support of 4. Now point for determination has been set up as follows: Whether the accused Wahab Ali attempted to commit rape on Yasmin Sultana, aged about 5 years on 08.12.2010 at 4.00 P.M. at the heap of straw on the backside of the house of Phukan Ali ? Discussion, Decision and Reasons thereof
5. The allegation against the accused is attempt to commit rape on a minor. The offence of ‘Rape’ has been defined in Section 375 I.P.C. while the punishment is prescribed in Section 376 IPC. Those Sections have undergone a significant change by Criminal Law Amendment Act and several new sections were added to the offence of rape. Section 376(f) I.P.C. is one such Section added for punishment of ‘Rape’ on minor. So, in the instant case, prosecution must have proved that the victim Yasmin Sultana is a minor and accused did such act which amounts to attempt to commit rape on Yasmin Sultana. In the light of the above, let us examine the evidence of witnesses to see how far the prosecution has been able to bring home the charge against the accused person. The evidence of witnesses are quoted below. 6. (i) PW-1 Ramina Begum stated that the occurrence took place about a year ago at about 4.00 P.M. in the residential campus of Phukan and she heard from Peloni Begum. At that time her daughter Yasmin Sultana was playing with the daughter of Phukan. Accused carried Yasmin to the heap of thatch by asking Bhonti to leave the place and he committed the incident by gazing her mouth. Accused was on her daughter. Yasmin returned home and hide herself under the bed. She saw semen like substance on the abdomen of Yasmin, and was treated at hospital on the next day. She filed ejahar vide Ext. 1 and Ext. 1(1) is her signature. Peleni informed her incident. Her daughter also told about the incident. The place of occurrence is not seen from the road. (ii) PW-2 Yasmin Sultana stated that on the day of occurrence she was playing with Bhonti in her house. At that time no other persons were there. Accused asked Bhonti to leave and told that he had work with Yasmin. Thereafter, accused removed the pant of Yasmin by gazing her mouth. Then Peloni arrived and scolded the accused for doing such act. Peloni informed the incident to her mother. She was examined by doctor and her statement was recorded in the Court. She was not tutored by her mother to depose. She (iii) PW-3 Morjina alias Bhonti told that she read with Yasmin in the school. On the day of occurrence she was playing with Yasmin. Accused came and asked her to leave and kept Yasmin with him. Then she left the place. (iv) PW-4 Phukon Ali stated that Bhonti Begum is her daughter and yasmin was playing with Bhonti before the incident. At that time he was at (v) PW-5 Babul Ali stated that the occurrence took place about a year ago at the residence of Phukan Ali. He heard that accused committed bad (vi) PW-6 Rumena Begum stated that the incident occurred about a year ago. She heard that accused raped Yasmin Sultana in her residence. Babul Ali, Nayab Ali, Tamij Ali, Hussain Ali are residing near her house. She returned home in the evening. She came to know about the incident after two (vii) PW-7 Peloni Begum stated that the occurrence took place about a year ago at about 4.00 P.M. At that time she was taking ‘but’ at the courtyard and saw accused took Yasmin to the campus of Phukan and Bhonti left. She saw that accused touched the chest of Yasmin, took her to a heap of thatch and he was upon her. She saw accused and Yasmin were sitting. (viii) PW-8 Bhaskar Kalita stated that on 10.12.2010 he was at Mikirbheta as attached officer. On that day, the O/C registered Mikirbheta P.S. Case No. 150/10, u/s 376(f) IPC and endorsed him to investigate. He visited the place of occurrence, examined witnesses. Victim was medically examined by own. He prepared the sketch map. Ext. 2 is the sketch map and Ext. 2(1) is his signature. One birth certificate of the victim was seized from the maternal uncle of the victim Taznur Ali by Ext. 3 and Ext. 3(1) is his signature. He collected medical certificate. After completion of investigation he submitted charge sheet against the accused U/S 376(f)/511 I.P.C. He did not seize wearing (ix) PW-9 Dr. S.M.A. Zakaria stated that on 09.12.2010 he was working at Mikirbheta M.P.H. and on that day he examined Yasmin Sultana, aged 5 years and found mild tenderness over front of her chest, interior lower abdomen and on and around the groin. He opined that since no vaginal swab could be examined and on the basis of above finding, it cannot be attributed to a case of confirmed sexual assault or rape, but it might be a case of attempted 7. After going through the above evidence, it is found that PW-2 is alleged victim, PW-1 is the mother, PW-3, PW-4, PW-5 and PW-6 are hearsay witnesses, PW-7 is the eye witness, PW-8 is the I.O. and PW-9 is the M.O. The evidence of the PW-2 disclosed that while she was playing with Bhonti, accused asked Bhonti to leave as he had work with her. Thereafter, accused gazed her mouth and remove her pant, then Peloni arrived and scolded accused. She came to her house. PW-3 Bhonti stated that on the day of occurrence, she was playing with Yasmin at her house. Then accused came and asked her to leave and kept Yasmin there. Then she went to other place for playing. On careful perusal of above evidence, it is found that PW-3 Bhonti Begum extended support to the evidence of PW-2 that she was playing with PW-3 Bhonti, prior to alleged occurrence and arrival of the accused. Both the witnesses were cross examined but defence failed to rebut their evidence that prior to the occurrence, victim Yasmin was playing with PW-3 Bhonti at their house and accused arrived and asked Bhonti to leave, so she went to play at other place. The fact of occurrence after Bhonti left the place, has been disclosed by the evidence of PW-2 and PW-7. The evidence of Peloni Begum (PW-7) disclosed that she saw Yasmin with the accused at the heap of thatch and accused touched the chest of victim Yasmin. On careful perusal of above evidence of PW-2 and PW-7, it is found that the accused embraced her and touched her chest and removed her pant. At that time, Peloni arrived and scolded the accused. Defence failed to rebut their evidence by cross examination, so, fact remains that accused took the victim Yasmin to the heap of thatch, in the house of Phukan Ali (PW-4), while she was playing with Bhonti (PW-3), he touched the chest of PW-2, which in course of growing age, has become breast, a feminine character, which carries modesty of a woman. 8. The above evidence also got support from the evidence of PW-1, mother of the victim. She stated that she was informed by Peloni Begum (PW- 7) about the occurrence. PW-7 extended support to this fact that she informed mother of Yasmin about the occurrence. PW-2 stated that her daughter was examined by doctor on the next day. Prosecution has examined the M.O. as PW-9. His evidence disclosed that on 09.12.2010 he examined Miss Yasmin Sultana, aged about 5 years and found mild tenderness over front of her chest, interior lower abdomen and on and around the groin. He opined that since no vaginal swab could be examined and on the basis of his finding, it cannot be attributed to a case of confirmed sexual assault or rape, but it might be a case of attempted to assault. The evidence of the M.O. is found corroborating with the evidence of PW-1 Ramina Begum and PW-7 Peloni Begum. Because, PW-1 stated that the occurrence took place on 08.12.2010 and she took her to the hospital on the next day morning. Again, PW-7 stated that she saw accused touched on the chest of Yasmin Sultana and the M.O. found mild tenderness over front of her chest. M.O. also found mild tenderness over interior of lower abdomen and around groin of PW-2. Defence though cross examined the above witnesses, but failed to rebut their above evidence, which makes out a sexual assault on PW-2 Yasmin Sultana by the accused Wahab Ali. 9. PW-4, PW-5 and PW-6 though did not see the occurrence but they stated that they heard about the occurrence. The victim girl, PW-2 has stated about the occurrence, which got support from the eye witness PW-7 Peloni Begum and the M.O. PW-9. PW-8 is the I.O. and his evidence disclosed that the occurrence took place on 08.12.2010 at about 4.00 P.M. and the victim was medically examined by their own and he did not send her again for medical examination as the victim is a minor. During investigation, he visited the place of occurrence, examined the witnesses and prepared sketch map. Ext. 2 is the sketch map and 2(1) is his signature. He seized one birth certificate and collected medical certificate. After completion of investigation, he submitted charge sheet under Section 376(f)/511 IPC against the accused showing him absconder, as he could not arrest the accused inspite of several attempts. Ext. 4 is the charge sheet and Ext. 4(1) is his signature. 10. From the above discussion on the evidence on record and on careful scrutiny, it is found that the prosecution evidence could not disclose any act which amounts to attempt to commit rape by the accused to PW-2 Yasmin Sultana. But, the evidence of the victim PW-2 and the eye witness PW-7 have disclosed the offence punishable under Section 354/354B I.P.C. Touching of chest of a growing girl is clearly an offence of outraging her modesty. In the instant case, the prosecution evidence disclosed that accused touched the chest of Yasmin Sultana and the M.O. also found mild tenderness on her chest, which evidence remained intact and cogent and the accused failed to disprove the same by cross examination. PW-2 Yasmin Sultana also stated that the accused removed her pant and then PW-7 arrived. Pant has been used to cover private parts of a human being and removal of said pant amounts to disrobing or compelling the woman to be naked as defined in Section 354B I.P.C. The evidence of PW-2 that the accused removed her pant remained intact and trustworthy, as defence failed to cross examine on the said evidence except by putting a suggestion, which was denied by PW-2. So, the act of accused in removing the pant of Yasmin Sultana amounts to commission of offence as 11. On careful scrutiny of the evidence of the victim Yasmin Sultana to examine credibility of her evidence, it is found that she was a girl of about five years age and deposed innocently. Nothing has been found to disbelieve or discard her evidence. Defence also failed to bring any shadow of doubt on her evidence by cross examination. Evidence of the victim, can be taken to hold the accused guilty, even after without corroboration, if the evidence is found cogent, consistent, truthful, believable and trustworthy. After going through the evidence of PW-2 Yasmin Sultana, it is found that the defence failed to rebut her evidence as regard removal of her pant, by cross examination. So, the evidence of prosecution witnesses in respect of touching her chest and removing of pant remained intact, cogent and consistent, which makes the evidence as believable and trustworthy also. The evidence of PW-2 and PW-7 though failed to disclose about committing the offence of rape, but their un-rebutted evidence clearly constitutes the offence punishable under Section 354/354B IPC. Because, the evidence disclosed that accused touched her chest (breast), embraced and removed the pant compelling her to be naked and all these acts, in my considered opinion, amounts to an offence punishable under Section 354/354B IPC. In Raju Pandurang Mahale Vs State of Maharashtra, AIR 2004 SC 1677, Hon’ble Apex Court held that “act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman”. The essence of a women’s modesty is her sex and with the above act, it can safely be held that accused 12. It is found from the fact and circumstances of the case that except the victim and PW-7, no evidence is available to support the prosecution case. As discussed above, the evidence of the victim Yasmin Sultana and PW-7, Peloni Begum is found consistent, believable and trustworthy. So, relying on the decision of the case law reported in 2010 (4) GLT 615, Subrata Das Vs State of Tripura, accused Wahab Ali can be held guilty punishable under Section 354/453B I.P.C. In paragraph 15 of the aforesaid case law, it was observed as follows : “15. From a careful scrutiny of the evidence of PW-1 in particular, this Court fails to locate basic infirmities in the evidence of PW-1, which may discourage the credence of her evidence. Evidence of PW-1 in the facts and circumstances of the case found truthful, believable and acceptable. She has given consistent evidence in respect of the commission of the rape on her by the appellant. There is no conflict in between the evidence of the prosecutrix deposed during the trial, statement recorded under Section 164 CrPC and her initial statement in the form of an FIR. All the three are found consistent in material particulars. To warrant conviction in case of rape if the evidence of the prosecutrix is found truthful, satisfactory, acceptable and consistent no corroboration is required even from the medical testimony. We have already discussed medical evidence and come to a finding that there cannot be any corroboration in between the medical testimony and the testimony of the prosecutrix in view of examination of the prosecutrix after 8 days of the occurrence.” 13. In the light of the above observation, the evidence of victim Yasmin Sultana and eye witness Peloni Begum is found cogent, intact, believable and trustworthy. So, basing upon their un-impeached evidence, accused Wahab Ali can be held guilty for committing an offence punishable under Section 354/354B I.P.C. It appeared from the record that the accused was not charged under Section 354/354B IPC but under Section 376(f) IPC, which is an aggravated form of the offence. So, I am of the opinion that framing charge of a higher punishment of offence and convicting on an offence with lesser punishment will not cause prejudice to the accused. 14. In view of my above discussion on the evidence on its entirety, I have come to the conclusion that the prosecution has failed to prove the case against the accused Wahab Ali under Section 376(f) I.P.C., but could prove a case punishable under Section 354/354B I.P.C. vide Criminal Law (Amendment) Act, 2013 (No. 13 of 2013). Accordingly, accused Wahab Ali is held guilty under Section 354/354B I.P.C. 15. In view of the above discussion and the decision arrived at, I find and hold that the accused Wahab Ali is guilty of committing an offence punishable under Section 354/354B I.P.C. Heard the accused on the point of sentence and his statement is recorded and kept in separate sheet. I have perused his said statement and also heard the accused personally. Accused stated that he is an old and ailing person so, he prayed to exonerate him. In the instant case, the accused appeared to be a person of 50/55 years of age, but the victim is also found to be a girl of only 5 years of age. So, considering the facts and circumstances of the case, under which it was committed, I do not think it to be a fit case to deal with leniently. So, I convict the accused Wahab Ali under Section 354/354B I.P.C. and sentenced him to suffer R.I. for one year and to pay a fine of Rs. 1000/ under Section 354 I.P.C. in default of payment of fine, accused shall undergo R.I. for another one month and to suffer R.I. for 5 (five) years and to pay a fine of Rs. 5,000/ under Section 354B I.P.C. in default of payment of fine, accused shall undergo R.I. for another period of 3 (three) months. Fine, if realized be paid to the victim girl Yasmin Sultana as compensation under Section 357 Cr.P.C. Accused is acquitted from the charge of Section 376(f) I.P.C. From the facts and circumstances of the case, I am of the opinion that the victim Yasmin Sultana deserves some compensation under Section 357A Cr.P.C. So, a copy of the Judgment be placed before the Dist. Legal Service Authority, Morigaon, to fix a reasonable quantum of compensation to be paid to the victim from the State’s victim compensation Judgment delivered in the open Court on this 26th day of July, Dictated & corrected by me Sessions Judge

Source: http://morigaonjudiciary.gov.in/judgment/dj.sess.77.2011.pdf

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