Musauddin Ahmed vs State Of Assam

Musauddin Ahmed .... Appellant

Versus

The State of Assam .... Respondent

JUDGME

Dr.

Chauhan, J.

1. This

appeal has

been

preferred

against the

judgment and order of the Gauhati High Court dated 20.2.2004 passed in Criminal Appeal

No.188/2003 by which appeal against the judgment and order of the Sessions Court

Kamrup, Guwahati in Sessions Case No.87(K)/97 (GR. Case No.47/95) has been

dismissed wherein the appellant was convicted under Section 376 Indian Penal Code (in

short "IPC") and sentenced to undergo rigorous imprisonment for ten years and to pay a

fine of Rs.2,000/-, in default to undergo imprisonment for another six months. However, the High Court reduced the sentence to four years and fine to Rs.1000/-.

2. The facts and circumstances giving rise to this case are that the appellant

Mussauddin Ahmed alias Musa allegedly abducted a minor girl namely Mira Begum on

7.1.1995 took her to a hotel and committed rape on her.

3. The victim PW.4 Mira Begum was working as a maid servant in the house of

PW.2

Abdul Hai

Laskar and

his wife

PW.3

Hasmat Ara

Begum at

Gandhibasti, under Paltanbazar Police Station, Guwahati. Appellant was a security guard

in the house of one Imran Shah of that locality. The appellant and prosecutrix knew each

other from before.

4. According to the prosecution, on 7.1.1995, PW.4 Mira Begum, without

informing her employer PW.2 Abdul Hai Laskar and PW.3 Hasmat Ara Begum went to

see the zoo with one Suleman who was known to her. While they were coming back from the zoo they met the appellant near Ulubari Chowk. On seeing them together the appellant

got annoyed and he slapped Suleman and threatened that he would hand them over to

police. Out of fear Suleman ran away. The appellant on the pretext of taking the

prosecutrix PW.4 Mira Begum, to the police station took her to Sodhi Hotel situated at

Paltanbazar. In the hotel he hired a room in fictitious names and kept her in the room for

the whole night and committed rape on her three times. On the next morning he sent her

in a rickshaw. PW.4 Mira Begum came to the house of a person near Hazi Musafir Khana

and

telephonically informed her employers about the incident. PW.2 Abdul Hai Laskar

brought her to his house and she narrated the whole incident before him. The written FIR

relating to the incident was lodged by PW.2 Abdul Hai Laskar in the morning of 8.1.1995.

Police registered the FIR and investigation was conducted by PW.7 Kanak Ch. Das, Sub-

Inspector of Police. During investigation he got prosecutrix medically examined in the

G.M.C.H. by PW.1 Dr. Pratap Ch. Sarma. The statement of the prosecutrix was recorded

by PW.5 Parthiv Jyoti Saikia Judicial Magistrate Ist Class, Guwahati under Section 164 Criminal Procedure code (in short "Cr.P.C.").

5. After completion of the investigation, PW.7 Kanak Ch. Das submitted charge-

sheet against the accused under Section 366/342/376 IPC.

6. On committal of the case to the court of Sessions, charges under Sections

366/376 IPC were framed against the appellant. The appellant pleaded not guilty to the

charge and

hence trial

commenced.

7. During the trial the prosecution examined seven witnesses including the

Investigating Officer. The Trial court found appellant guilty of the offence punishable

under Section 376 IPC and sentenced him to undergo rigorous imprisonment for ten years

and to pay a fine of Rs.2,000/- in default to undergo imprisonment for another six months.

8. Being aggrieved the appellant preferred the appeal before the High Court. The

High Court upheld the conviction under Section 376 IPC but reduced the sentence to a

period of four years and to pay a fine of Rs.1000/- in default to further imprisonment for

one month. Hence this appeal.

9. Shri Vishal Arun, learned counsel for the appellant has submitted that the

prosecutrix was eighteen years of age. Even if the prosecution case is believed, charge of

rape cannot

be held

proved.

The

appellant as

well as

PW.4 Mira

Begum

prosecutrix

were neighbours and knew each other. On 7.1.1995 she had gone along with Suleman to

the zoo. When she was coming along with Suleman, they met the appellant who scolded

both of them. Suleman ran away out of fear. Appellant asked the prosecutrix to

accompany him and took her in a rickshaw. Both of them kept roaming in the city in

rickshaw and city - buses and at about 9 O'clock in the night, the appellant took the

prosecutrix to Hotel Choudhury at Paltan Bazar, wherein he took the room on rent. The prosecutrix accompanied the appellant to that room. Appellant closed the door and

windows and committed rape on her. Both of them remained there throughout the night

and next day left the Hotel. The appellant left the prosecutrix near Musafirkhana and went

away.

10. Learned counsel for the appellant has submitted that during this period, had it

been a case of no consent, the prosecutrix had enough time and opportunities to inform the

police or

any other

person in

the hotel or

on the road

about the

incident.

Statement

of the

prosecutrix recorded under Section 164 Cr.P.C. revealed that she remained along with the

appellant for a very long time and had been roaming in the city by rickshaw and buses.

She went to the Hotel without any protest and accompanied the appellant to the room,

spent the whole night with him, came out in the morning after checking out the hotel,

traveled with him in a rickshaw from Hotel to Musafirkhana but did not raise any hue and

cry or inform anybody that the appellant had misbehaved with her in any manner. Such conduct of the prosecutrix makes the prosecution case unbelievable. PW.1 Dr Pratap Ch.

Sarma who medically examined the prosecutrix found that she was used to sexual

intercourse and that there was no injury of any kind on her body or private parts. The

prosecutrix was examined as PW.4. There are serious contradictions in her deposition in

Court and her statement recorded under Section 164 Cr.P.C. The prosecutrix deposed in

the Court that on the date of occurrence at about 10 O'clock she went out through the

road. The appellant was there and on the pretext of taking her to the cinema hall, the

appellant

took her in

a rickshaw

to the

Paltan

Bazar area

where he

hired a

room in the

hotel and committed rape on her. It was a forcible act. In examination-in-chief she did

not disclose anything about her visit to zoo on the same day along with Suleman.

However, in the cross-examination on being asked, she stated that Suleman had taken her

to zoo by car. While returning back from zoo, she met with the appellant at Ulubari

Chowk. The appellant wanted to assault Suleman, thus he ran away. Prosecutrix could

not furnish any explanation in her cross-examination, on being asked, as to why she could not inform anybody in the hotel or while coming from the hotel on next day or on the road

about the incident. From the conduct of the prosecutrix during these two days, it can be

inferred that it was a clear cut case of consent.

11. So far as the question of age of the prosecutrix is concerned, PW.1 Dr Pratap Ch.

Sarma who had examined her, opined that she was 18 years of age. According to the

prosecutrix she was only 13 years of age at the time of incident. PW.2 Abdul Hai Laskar,

informant, deposed that prosecutrix was 13/14 years of age. However, PW.3 Mrs. Hasmat

Ara Begum

kept silence

on this

point.

There is

nothing on

record to

show as on

basis, PW.2

Abdul Hai Laskar had given her age. It appears very unnatural as none of the family

members of the prosecutrix comes to the scene. Her parents or either of them or any other

family member could be most reliable and natural witness on the point of her age. PW.2

Abdul Hai Laskar, in his examination in chief stated as under:

"Later the girl's mother came and took her away. At present she is staying with her parents."

12. Thus, it cannot be assumed that prosecutrix did not have parents or other family

members. Prosecution for the reasons best known to it examined her employer PW.2

Abdul Hai Laskar and his wife PW.3 Hasmat Ara Begum but did not examine any of her

family member on the point of age.

13. It is the duty of the party to lead the best evidence in its possession which could

throw light

on the issue

in

controversy

and in case

such a

material

evidence is

withheld,

the Court may draw adverse inference under Section 114 illustration (g) of the Evidence

Act notwithstanding that the onus of proof did not lie on such party and it was not called

upon to produce the said evidence (vide Gopal Krishnaji Ketkar vs. Mohamed Haji

Latif & Ors., AIR 1968 SC 1413).

14. The Trial Court and the High Court proceeded with altogether different set of facts. Before the trial Court the prosecution case had been that the prosecutrix went to zoo

along with Suleman and on her return from zoo the appellant had seen both of them

together and slapped Suleman who ran away and thereafter the appellant took the

prosecutrix on the pretext of taking her to movie and roamed; took her on a rickshaw to

the hotel where she was kept and raped. However, before the High Court the case has

been entirely different as in paragraph 5 of the High Court judgment it has been stated that

when the prosecutrix came out from the house of informant PW.2 Abdul Hai Laskar the

appellant

met her and

proposed to

take her to

witness a

movie and

she went

along with

him. In

para 2, the High Court has mentioned the facts that as per the FIR lodged by PW.2 Abdul

Hai Laskar, to the effect that "on the previous evening, the accused appellant Musauddin

Ahmed @ Musa entered into the house and forcibly abducted his maid servant." There

had been material contradictions regarding the factual aspects of the incident itself. There

is nothing on record to show or furnishing any explanation as to why the Investigating

Officer did not seize any material objects like, clothes, blood samples etc. from the prosecutrix and the place of occurrence. PW.4 Mira Begum, prosecutrix has stated in her

examination in chief as under:

"He took me to a room at Paltan Bazar. There the accused forcibly tears open my clothes."

15. The torn clothes were not recovered by the Investigating Officer. The I.O. did

not make any effort to take the semen, blood samples etc. from the appellant which could

have given the prosecution an opportunity to obtain medical reports of the appellant as it

was

necessary to

establish

the guilt of

the

appellant.

No person

has been

examined

from the hotel to identify the appellant or the prosecutrix as the I.O. has only seized the

register of the hotel to establish that room No.102 was booked in the name of appellant

Mussauddin Ahmed and Marzina Begum as husband and wife. Admittedly, the name of

the prosecutrix was not Marzina Begum. Therefore, some person from the hotel should

have been examined to identify her as well as the appellant.

16. Learned Standing counsel for the State, Mr. Jr. Luwang, could not satisfy the

court as to why in absence of any allegation of threat or coercion, the prosecutrix could

not have raised the alarm or informed any person on the road. Nor he could explain as to

why the independent witness or an employee of the hotel was not examined and why

parents of the prosecutrix were not examined to find out her age.

17. The prosecutrix appears to be a lady used to sexual intercourse and a dissolute

lady. She

had no

objection in

mixing up

and having

free

movement

with any of

her known

person, for enjoyment. Thus, she appeared to be a woman of easy virtues.

18. In this view of the above, we are of the considered opinion that the prosecution

failed to prove its case against the appellant beyond reasonable doubt. The appeal is

allowed. The impugned judgment of the High Court and the trial court are set aside.

Appellant is acquitted of the charge under Section 376 IPC. The appellant is on bail. His bail bonds are discharged.

.....................................J. (Dr. Mukundakam Sharma)

.....................................J. (Dr. B.S. Chauhan) New Delhi;

6th July, 2009.