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In the Court of Assistant Sessions Judge, Karimganj.

District:-Karimganj.

Sessions Case No-86/2013

U/S-376 IPC.

State of Assam………………………...........……….……………Prosecution.

-VS-

NajimulHoque alias NajmulHoque .............……………..Accused Person.

Present:-Shri A. Rahman, L.L.M., A.J.S.

Asstt. Sessions Judge,

Karimganj.

For the prosecution- Mr. N. Dutta Roy, Ld Additional PP.

For the defence- Mr. AzizurRahman, Ld Advocate.

Charge framed on- 31-7-2013.

Evidence Recorded on- 6/09/13, 20/09/13, 13/11/13, 30/11/13.

Argument heard on- 13/12/2013

Judgment delivered on - 17/12/2013.

J U D G E M N T

1. Prosecution case, unfolded, in the trial in a nutshell may be

stated as follows – On 15/12 /2012 during after noon at about 4 PM, taking

advantage of the absence of complainant MayarunBibi (PW-2) and her son,

accused Najmul Hoque son of Mufiqur Rahman , of the same village

visited her house and forcibly committed sexual intercourse with her minor

daughter (Monorama) actual name withheld. Thereafter, accused person

asked Monorama not to disclose this fact to other and he promised that he

would marry her. Thereafter also, on several occasions the accused person,

in the absence of the complainant went to her house and committed sexual

intercourse with her minor daughter (Monoroma), as aresult, she became

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pregnant. Having noticed the physical change of her minor daughter (when

she attained her pregnancy of three/four months) due to pregnancy, PW-2

asked her daughter as to what had happened to her, she disclosed her about

the occurrence resulting herpregnancy of three/four months.

2. As soon as PW-2 could know the occurrence, she immediately

rushed to the house of accused person and informed his parents who

initially assured her that they would arrange marriage of their son(accused

person) with her daughter and asked her not to disclose it to others. But

thereafter, PW-2 approached the father of the accused person to arrange the

marriage of his son with her victim daughter, then he procrastinated the

matter on one or other pretext. Thereafter, he declined to arrange marriage

of his accused son with the victim daughter of PW-2. Village sittings were

also arranged by PW-2 for amicable settlement of marriage of her daughter

with the accused person but nothing fruitful came out. In the meantime, at

the tenth month of pregnancy, Monorama gave birth of a baby girl fathered

by the accused person and the baby expired after twenty eight days.

INVESTIGATION:

3. The criminal investigation was put into motion soon after the

officer in charge of Bazaricherra, police station had registered the case

being No. 44/13 u/s. 376 IPC upon receiving the Ext - 4 complaint

forwarded by ld. CJM u/s. 156(3) Cr.P.C. with a direction to investigate the

case treating the same as FIR and for submitting the report. During the

investigation, the I/O (ASI Jatirmoy Deb, PW 8) visited the place of

occurrence, drew sketch map thereof, recorded the statements of the

witnesses including the victim girl. He also sent the victim girl to

Karimganj Civil Hospital for her medical examination and produced her

before the ld. CJM, Karimganj for recording her statement u/s. 164 Cr.P.C.

The I/O also arrested the accused person and forwarded him to ld. CJM,

Karimganj for sending him to judicial custody. At the end of the

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investigation, the I/O submitted charge-sheet against the accused person

u/s. 376 IPC.

COMMITMENT:

4. Ld. Addl. CJM, Karimganj having complied with the

provision of section 209 Cr.P.C., committed the records of GR Case No.

646/13 before the court of Hon’ble Sessions Judge, Karimganj for trial.

Again as per order dated 25/07/13, the Hon’ble Sessions Judge made over

the records of the said case to this court for trial.

TRIAL:

5. After production of the accused person before this court, ld.

Addl. PP and ld. advocate for the accused person were heard and materials

on CD including the statement of the victim girl recorded u/s. 164 Cr.P.C.

were also considered. And accordingly charge u/s. 376 (1) IPC was

framed, read-over and explained to the accused person to which he pleaded

not guilty and claimed to be tried.

6. To substantiate the charge against the accused person,

prosecution examined altogether 8 (eight) witnesses including the M/O and

I/O. Besides, the ejahar (complaint Ext.4), the statement of the victim girl

recorded u/s. 164 Cr.P.C.( Ext.1), the sketch map of the PO (Ext.5), the

medical examination report of the victim girl (Ext.3), Xerox copy of birth

certificate of the victim girl (Ext.2) and the charge-sheet (Ext.6) were

exhibited. Thereafter, the accused person was examined u/s. 313 Cr.P.C.

In his examination u/s. 313 Cr.P.C., he denied all the prosecution

allegations and stated that the case was falsely lodged against him by

complainant Mayarun Bibi out of grudge against his father who had written

a batowaranama (partition deed) in respect of the properties left by her

husband. The accused person also raised the plea of alibi in his statement

u/s. 313 Cr.P.C. The defence side also examined two witnesses to prove

innocence of the accused person.

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7. I have heard Mr. N.Dutta Roy, ld. Addl. PP and Mr. Azizur

Rahman &Mr. D. Chakrabarty ld. counsel for the defence. I have also

discretely gone through the evidence adduced during the trial.

8. Now, the point for determination whether the accused person

forcibly committed sexual intercourse upon the victim girl, PW 1 and

caused her pregnancy leading to delivery of a baby girl and thereby

committed offence u/s. 376 (1) IPC?

DISCUSSION, DECISIONS & REASONS THEREOF:

9. During the course of argument hearing ld. Addl. PP submitted

that the evidence of prosecutrix PW 1 and her mother PW 2 sufficiently

proves that the accused person in the absence of PW 2 visited her house at

the relevant time of occurrence and forcibly committed sexual intercourse

with her daughter. Since, PW 1 was a minor girl at the relevant time of

occurrence as such, did not immediately report the occurrence to her

mother PW 2. Moreover, the accused person also promised her that he

would marry her. And on the promise of marrying PW 1, the accused

person visited their house in absence of her mother(PW-2) and committed

sexual intercourse with her, as a result of which she developed pregnancy

and ultimately gave birth a female child. It is also submitted by ld. Addl.

PP that the delay in lodging Ext.4 complaint is not fatal to discard the

evidence of the prosecutrix. And the evidence on record sufficiently

demonstrates that the delay has been explained properly. And accordingly

it is submitted by ld. Addl. PP that the prosecution has proved the guilt of

the accused person u/s. 376 (1) of IPC beyond all reasonable doubt.

10. On the other hand refuting the above submissions of the ld.

Addl. PP, Mr. Azizur Rahman, ld. counsel appearing for the defence

stridently argued that except PW 4 Mobarak Ali who is an interested

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witness, other PWs namely PW 3, PW 5 and PW 6 have clearly stated that

they being the neighbour of PW 2 never saw the accused person visiting

the house of PW 2. It is also submitted by ld. counsel for the defence that

since after appearing HSLC examination in the year 2011, accused person

had been staying at Bangaluru and had returned just after filing the

complaint in the year 2013 and this proves that the accused person is

innocent and is no way involved in the alleged coitus with the prosecutrix.

It is also further submitted by ld. counsel for the defence that PW 3, 5 & 6

support the defence case that PW 1 had love affairs with her cousin brother

Iraj Ali and while eloping, they were apprehended by the villagers and

handed to the VDP Secretary and the alleged illegitimate child born out of

the womb of PW 1 was fathered by Iraj Ali. Further submission made by

ld. counsel for the defence is that PW- 1 & PW- 2 in their evidence have

stated that birth certificate of the child of PW 1 was not applied for, and

this clearly proves that accused person is innocent otherwise they would

have applied birth certificate of the child of PW 1 to record the name of the

accused person for proof of his paternity. Further submission made by ld.

counsel for the defence is that the fractured statement of PW 1 & 2

regarding the alleged involvement of the accused in the commission of the

offence against PW1 is very doubtful and should be discarded. In view of

the above, Mr. Azizur Rahman, ld. counsel for the defence has submitted

that the accused person being innocent and in no way involved in the

alleged occurrence should be acquitted at least on benefit of doubt.

11. Now, in order to appreciate the above arguments advanced by

ld. counsel for the parties, it is essential to scrutinize the evidence of the

witnesses adduced during the trial.

12. In the instant case victim girl Monorama deposed as PW 1. It

is pertinent to mention here that victim girl was examined at Karimgnaj

Civil Hospital by Dr. Mrs. Nazma Begum, SDMO on 24/05/2013 as per

police requisition no. 3381 in connection with aforesaid Bazaricherra PS

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Case No. 44/2013. Since Dr. Nazma Begum has gone on long earned leave

as such, prosecution examined PW 7 Dr. Abul Hussain, who is the Sr. M &

HO of the same hospital to prove the medical examination report of the

victim girl prepared by Dr. Nazma Begum. PW 7 has stated that on being

deputed by Joint Director of Health Services, Karimganj, he has appeared

with summons to depose before this court. PW 7 on going through Ext.3

Medical examination report has testified that Dr. Nazma Begum whom he

knows well, examined the victim girl (PW 1) being escorted and identified

by her mother Mayarun Bibi (PW 2) and W.C. Lakkhi Das of Bazaricherra

Police Station. PW 7 has made it clear that before examination of PW 1,

Dr. Nazma Begum recorded the brief description of the history from the

statement of the victim girl which is as follows. As per her (PW1)

statement she had been raped by one Najmul Hoque of same village about

14 months back while she was alone at her house. She did not disclose this

fact to her guardian as he threatened her. And eventually she became

pregnant and delivered a female child on 5th

of ‘Poush’ Month at her home.

The baby died about 28 days.

13. On general examination of PW 1, the followings were found.

There was no injury seen on her body externally. Her breast are well

developed, nipple and areola pigmented black. No milk secretion. Local

examination of genital part – pubic hair present. Labia majora – no injury

seen. Labia minora – no injury seen. Forchette – no injury. Pulva – no

injury. Perineum – old – heeled central perennial tear. Hymen – torn,

vagina and cervix – vagina admits two fingers – no tenderness. External

OS of the cervix tinier (with healed tear) on it left lateral aspect. Number

of teeth = 28 nos.

14. X-ray examination on wrist joint, ossification of lower end of

radius and ulna – not completed. Age – below17 years. Elbow joint –

ossification of both epicondyles of humorous and head of radius and tip

poly-crenon process completed. Age – above14 years. Knee joint –

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ossification of lower end of femur and upper end of tibia and fibula – not

completed. Age – below17 years. Iliac crest – ossification centre appeared

but not completed. Age – above 14 years. Number of teeth = 28. Age –

above 14 years and below 17 years. On the basis of above ossification test,

the doctor opined that the girl had been pregnant and her age is above 14

years and below 17 years. PW 7 has confirmed that after examination of

the victim girl and also the x-ray report with plate, Ext.3 report was

prepared by Dr. Nazma Begum. He has affirmed that Ext. 3 (1) is the

signature of Dr. Nazma Begum. In cross examination he has made it clear

that he was not present at the time of examination of the victim girl by Dr.

Nazma Begum. It appears that the defence side did not challenge that

Ext.3 report is in respect of the victim girl and Ext. 3(1) signature of Dr.

Nazma Begum.

15. PW 1, the victim girl deposed before this court on 06/09/2013.

According to her the occurrence took place about 1 / 1 ½ year back from

the date of her deposition before this court on a certain day at about 4-00

p.m. while she was alone at her house. At the relevant time her mother was

not at home, accused Najmul Hoque came to their house and forcibly made

sexual intercourse with her. She could not raise alarm as he gagged her

mouth. She has also testified that the accused person asked her not to

disclose the occurrence to others and he promised her to marry. Thereafter

also, the accused person came to their house in absence of her mother and

used to do bad work (sexual intercourse) with her on promise that he would

marry her. As a result she became pregnant. And when she attained 3/4

months pregnancy, her mother PW 2 having noticed her physical changes

asked about the details and accordingly she stated that the accused made

her pregnant with promise that he would marry her. PW 1 has further

testified that, as soon as her mother could know from her about the said

occurrence leading to her pregnancy, she (PW 2) immediately approached

the parents of accused Najmul and narrated the occurrence to them. His

parents assured that they would arrange the marriage of their son (accused

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Najmul) with her but lateron they declined. Accordingly, village bichar

was also held. PW 1 has very clearly stated that after 10 months of her

sexual intercourse by the accused person, she gave birth a female baby at

her home which died after 28 days. And accordingly her mother lodged

the case after giving birth of the child. She has deposed that on the next

day of giving birth of the child one Bablu Bhattacharjee and Kabir Ahmed

asked her mother (PW2) not to lodge the case and they assured that the

case would be solved. In the bichar (village sitting) arranged by them,

father of accused disclosed that he would pay Rs. 30,000/- to her mother

but she declined. She has affirmed that during the period of investigation

her statement was recorded by the Magistrate and she was also examined at

Karimganj Civil Hospital. PW 1 has affirmed that Ext. 1(1) and 1(2) are

her signatures. In cross examination, she has made it clear that her mother

used to collect bamboos and canes for preparing products to sale at the

market. She has also stated that the accused person used to supply bamboo

and cane to their house and they made payment of price to him. PW 1 has

also stated that apart from collecting bamboos for works at their house, she

also works as maid servant in the house of other persons. PW 1 has further

stated that after the occurrence accused Najmul went to Bangaluru. And

she cannot remember the exact date when the accused person had for the

first time committed sexual intercourse with her. She stood affirmed that

the accused person made promise to marry her after committing sexual

intercourse with her. She also replied that during her pregnancy she did

not attend any doctor. And her mother lodged the complaint before death

of her child. It is clear from her reply during the cross examination that

Bazaricherra Police Station is about 1(one) hour walking distance from

their house. The defence side while putting question to PW 1 she replied

that she does not know any person named Iraj Ali of Dharmanagar. She

had denied the suggestion that Iraj Ali used to stay at their house. It is

pertinent to mention here that soon after the defence gave suggestion to

PW 1 that she tried to eloped with Iraj Ali in the month of April 2012 and

the villagers detained them and handed over to VDP Secretary Shyamal

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Das, she burst into tears and stated that for ‘God sake’ she is telling the

only truth. She of course, flatly denied the said suggestion of the defence.

PW 1 has also made it clear that Mobarak Ali (PW-4) witnessed the visit of

accused person at their house sometimes and warned him (accused) against

such visit. She denied all the suggestions put by defence that the accused

person never visited her house nor committed sexual intercourse with her

and he is not the father of her child already expired. Thus, from the above

suggestion, it appears that the defence side has admitted the fact that PW 1

became pregnant and delivered a child.

16. PW 2 Mayarun Bibi is the mother of victim girl, PW 1. She

also deposed before this court on 06/09/2013. According to her, about 15

months back from the date of her deposition, on the relevant day of

occurrence while she was outside her house along with her son for the

purpose of collecting bamboo etc., the accused Nijam Uddin came to her

house and finding her daughter (PW1) alone forcibly committed sexual

intercourse with her. The accused also promised her daughter to marry.

PW 2 has further testified that when she noticed pregnancy of her daughter

PW 1, on being asked to her, her daughter, PW 1 disclosed her about the

said occurrence of sexual intercourse committed by the accused person

upon her. And she immediately rushed to the parents of the accused person

and reported them about the occurrence. And they (parents of the accused)

assured her that they would arrange marriage of their son (accused) with

her daughter PW 1 and as such she should not disclose the occurrence to

any person. After laps of 2/3 months, the parents of the accused person did

not arrange marriage of PW 1 with their son. As such, during 9(nine)

months pregnancy of PW 1, she (PW2) along with her daughter (PW1)

went to the house of the accused person and insisted his parents to arrange

marriage. Then father of the accused persons abused them and declined to

arrange marriage of their son with PW 1. Under the circumstances, PW 2

informed the matter to the villagers Abdul Rob (PW5), Abdul Rashid

(PW6) and others. And accordingly, they had come to her house and asked

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her daughter (PW1) the circumstances leading to her pregnancy. Then her

daughter (PW-1) disclosed the entire facts that she had been made pregnant

by accused Najmul Islam. Although in the bichar arranged by the said

persons, father of accused also attended but he postponed the same and

wanted persons from Bazaricherra for the ‘village sitting’ and accordingly

after one week, PW 1 gave birth a female child and it was ‘Poush Month’.

Although at Bazaricherra a ‘village sitting’ (bichar) was held but father of

the accused person did not obey the village bichar/panchayat for which she

lodged the complaint after birth of her child. PW 2 has further made it

clear that initially she filed a case at the police station but one Bablu

Goswami and Kabir Ahmed pressurised her to withdraw the police case on

the plea of amicable settlement through bicharfor which subsequently she

lodged the complaint before the Magistrate. She has also stated that at the

time of lodging the complaint, she also submitted Ext.2 xerox copy being

the birth certificate of her daughter. But police did not ask her to produce

the original birth certificate of her daughter for which she did not submit

the original of Ext. 2 to the police. She has also very clearly stated with

tears on her eyes that after the occurrence of giving birth of child by her

minor daughter (PW1) all the villagers started to hat them.

17. In the cross examination, PW 2 has replied that soon after

death of her husband, there was amicable partition of his properties in

between her and first wife of her husband. And the batoaranama (partition

deed) was written long back by the father of accused who is a scribe.

During the cross examination PW 2 has explained that Mobarak Ali is the

son of her brother in law but accused person is also the brother in law of

Mobarak Ali (son of his uncle in law). Therefore, it appears that Mobarak

Ali (PW4) is the relative of PW 2 as well as relative of the accused person.

And she sold 1 kedar of land in favour of Mobarak Ali. She has clearly

replied that she does not know who is Idris Ali of Dharmanagar. She has

stoutly denied the suggestion that Idris Ali is the cousin brother of her

husband. PW 2 has also stated that the accused person used to supply

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bamboo/cane at their house. She has replied that being an illiterate village

lady she cannot say the date of occurrence and as such cannot say whether

the date of occurrence is mentioned in Bengali/English in the complaint

petition. But she has made it clear that the date of occurrence which she

had mentioned in the petition lodged at the police station previously is also

mentioned in the complaint petition. PW 2 also denied the suggestion that

she never approached the father of accused person for arranging marriage

of his son (accused) with her daughter and there was no ‘village sitting’.

The defence has given suggestion to PW 2 that the child delivered by her

daughter was not fathered by accused person. Therefore, by this

suggestion also the defence side has admitted the fact that PW 1 became

pregnant and gave birth of a child.

18. PW 3 Rahmat Ali who deposed on 06/09/2013 has testified

that he knows complainant PW 2 as well the accused person being his

villagers. According to him, on a certain Friday about 7/8 months back

from the date of his deposition, Mayarun Bibi (PW2) went to the village

Mosque and informed the villagers gathered at the Mosque and requested

them to visit her house. On being asked by the villagers, PW 2 replied that

her daughter (PW1) had given birth of a female child. And accordingly,

after Namaj (prayer), himself (PW3) and other elderly persons visited the

house of PW 2 and witnessed the new born female baby of PW 1. And on

being asked by them PW 1 disclosed that she was made pregnant by

accused person and gave birth of a child. He has also testified that on

being asked as to why the matter had not been reported earlier, PW 2

replied that due to shame the occurrence was not disclosed to others.

Subsequently, elderly people gathered and a ‘village sitting’ was held. In

cross examination PW 3 stood affirmed that Abdul Rashid (PW6), Abdul

Sukkur, Rajab Ali, Manik Riang were present in the bichar (village sitting),

but they astonished that son of Mufiqur Rahman (accused) was not

available after he had appeared HSLC examination 2011 and he went to

Bangaluru. In cross examination PW 3 denied the suggestion that PW 2

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did not visit the Mosque nor informed the villagers that her daughter had

given birth of a child at the instance of accused Najmul. It is pertinent to

mention here that the defence side did not challenge the part of the

evidence of PW 3 regarding his visit along with other villagers who had

attended Mosque on the Friday at the house of PW 2 and that PW 1 had

disclosed to them that she had given birth the female child as a result of

committing sexual intercourse upon her by the accused person. Moreover,

the defence side also did not challenge the statement of PW3 that there was

‘village sitting’. As such the part of evidence of PW 3 remains unshaken

and unchallenged.

19. PW 5 Abdul Rob aged 71 years and a village headman

deposed before the court on 20/09/2013. According to him, in the last

Falgun/Choitra, on being requested by one Cherag Ali and Boitul Hoque at

his house, he went to the house of PW 2 and witnessed that her daughter

PW 1 was in the advanced stage of pregnancy. Then he asked PW1 with

repeated warning that she should tell only truth of the facts leading to her

pregnancy. And PW 1 replied that accused Najmul Hoque caused her

pregnancy. On the next morning, PW 2 had visited his house and disclosed

that her daughter PW1 had given birth of a female child. And accordingly

he suggested PW 2 to communicate the elderly villagers for holding a

‘bichar’(panchayat). After 3/4 days on a certain Friday PW 2 visited the

Mosque and informed the people that her daughter PW 1 had given birth of

a child at the instance of accused Najmul. He has also stated that he

requested the elderly persons of the village to contact the father of the

accused person about the occurrence. A bichar was also held at the house

of Mayarun Bibi (PW-2) where he was present. Kabir Uddin, Kayum

Uddin and Dhiren Singh were also present in the bichar. He has also stated

that Kuti Mia and other head of the village panchayat also attended the

bichar at the house of Mayarun Bibi. In front of the village sitting also,

PW 1 on being asked as to how she had become pregnant and gave birth of

a child, she clearly stated that she had been made pregnant by the accused

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person for which she gave birth the child. He has also stated that no

decision could be held in the bichar as talks/discussions were going

divergent direction. He has denied the suggestion that he neither visited

the house of PW 2 nor she and her daughter PW 1 had disclosed him that

she (PW1) had been made pregnant by the accused person. He has denied

the suggestion that he has deposed falsely having enmity with the father of

the accused.

20. PW 6 Abdul Rashid aged 65 years also deposed almost in the

same tune of PW 5. According to him in the month of ‘Poush’ on being

requested by Cherag Ali, Boitul Hoque at his house, he went to the house

of PW 2. She told him in presence of Abdul Rob (PW5) that her daughter

PW 1 had become pregnant. And PW 1 disclosed to them that she had

been made pregnant by accused Najmul. When they questioned PW 1 as to

why she had not disclosed it to her mother previously, she replied that out

of shame she did not disclose it to her mother. And on the night of his visit

PW 1 had given birth of a female child. After few days, PW 2 on a Friday

went to village Mosque and informed that her daughter had given birth of a

female child and requested the persons gathered at the Mosque for holding

a bichar. And accordingly elderly persons of the village arranged a bichar

and approached father of accused to attend the bichar. Although initially

the bichar was fixed on Wednesday but due to expiry of a village lady

bichar could not be held and thereafter about one week the bichar was held

at the house of PW 2; wherein Dhiren Singh, Kabir Ahmed, Kayum Uddin,

PW5, himself and other elderly villagers were present. During cross

examination PW 6 has made it clear that Dhiren Singh was the previously

President of Bazaricherra GP and on the day of bichar Mobarak Ali (PW 4)

was also present. During cross examination of PW 6, the defence side did

not challenge his above evidence that there was bichar held at the house of

PW 2 in his presence and that during his visit at the house of PW 2, PW 1

had disclosed him that she had been made pregnant by accused Najmul.

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21. PW 4 Mobarak Ali had deposed that PW 2 is her aunt (uncle’s

wife) and the accused person is his brother in law through his cousin

brother. According to him, about 1 ½ years back (from the date of his

deposition before this court), in the month of ‘Choitra’ he witnessed

visiting of the accused person at the house of PW 2 in her absence several

times. And accordingly he asked the accused person not to visit the house

of PW 2 in her absence. He has further testified that on 5th

‘Poush’ of last

year, PW 1 had given birth of a female child. PW 2 had informed him that

her daughter (PW 1) had been made pregnant by the accused person for

which she gave birth of a female child. When he asked PW 1 as to how

she became pregnant, she disclosed to him that the accused made her

pregnant. He has also testified that after delivery of the child by PW 1, a

village bichar was held at the house of PW 2 and he was also present in the

bichar along with PW 5 Abdul Rob and PW 6 Abdul Rashid. Before the

bichar also, on being asked by PW 6 as to how she had become pregnant,

PW 1 replied that she had been made pregnant by the accused person for

which she gave birth a female child. He has also testified that the accused

person just before giving birth of the child by PW 1 had gone to Bangaluru

where his two brothers are staying. He has also stated that no decision

could be arrived at the bichar as the persons whom the father of accused

had brought from Bazaricherra did not obey the bichar. And accordingly

they advised Mayarun Bibi to lodge a police case. Furthermore, PW4 also

stated that although Mayarun Bibi filed a case at Bazaricherra Police

Station, but one Babla Bhattacharjee and Kabir Ahmed obtained signatures

of the father of accused person and thumb impression of PW 2 in a blank

stamp paper telling her that a bichar would be held. But no bichar could be

held. In cross examination, PW 4 has replied that his house is situated

towards south of the house of PW 2 and no other house is existence in

between their house. Therefore, it is quite possible on the part of PW 4 to

witness the accused person visiting the house of PW 2 at the relevant time.

He has also made it clear that PW 2 and PW 1 make the bamboo stick for

‘Agarbati’ (scented stick) which are sold in the marked. And accused

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person used to supply split bamboos to the house PW2. He had denied the

suggestion that he did not see the accused person visiting the house of PW

2 in her absence. He has also denied the suggestion that no bichar was held

at the house of PW 2 in the month of ‘Poush’ in presence of PW 5 Abdul

Rob. He has admitted that about 3/4 years back he purchased the land of

Mayarun Bibi which was her share against the ‘Moharana’ of her husband.

He has denied the suggestion that he has falsely deposing being in good

relation with PW 2.

22. PW 8 Jatirmoy Das made investigation of the case after the

Officer-in-charge of Bazaricherra Police Station had registered the case

No. 44/2013 upon Ext.1 ejahar lodged by PW 2, Mayarun Bibi w/o late

Irfan Ali of village Chagolmoa. He has deposed that although on 25/04/13,

he was entrusted to investigate the case but he started investigation only on

26/04/13 with the opening of case diary. He has also deposed that during

investigation he visited the house of PW 2 which is the place of occurrence

situated at village Chagolmoa, at a distance of 8 k.m. towards south-west

from Bazaricherra Police Station. He has also stated that he got examined

the victim girl by doctor at Karimganj Civil Hospital and also got recorded

her statement after she had been produced before ld. CJM, Karimganj. He

has affirmed that Ext. 5 is the sketch map of the PO and Ext.5(1) is his

signature. On completion of investigation, he submitted Ext.6 charge-sheet

u/s. 376 IPC against the accused person. He has affirmed that Ext.6(1) is

his signature.

23. DW1 Rajjak Mia is a co-villager of PW 2 and the accused

person and he is a vegetable vendor by profession. DW2 Shyamal Kr. Das

was previously the VDP Secretary of village Chagolmua under

Bazaricherra Police Station. They have deposed that they know

complainant Mayarun Bibi (PW2), her daughter (PW 1) and the accused

person. According to DW1 accused person had gone to Bangaluru about 2

years and 9 months after appearing his HSLC examination and thereafter

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he returned home. He has deposed that one Iraj Ali came to the house of

Mobarak Ali (PW4) and Mayarun Bibi (PW2) in the month of previous

‘Baishak’ (i.e. he meant ‘Baishak’ of 2012). While he was going to collect

vegetables from the house of Mayarun he heard about marriage talk of Iraj

Ali with PW 1. He has also deposed that PW 2 told Iraj Ali to bring

guardian for final discussion of marriage. He has also testified that PW 4

went to Dharmanagar to bring the guardian of Iraj Ali from village Sakoi

Bari. But none from the family of Iraj Ali came to the house of PW2 as he

had already married having his family. And on 7th

Baishak (Friday) at

about 7-00 p.m. Kala, Cherag Ali and others apprehended Iraj Ali while he

was taking away PW 1. And thereafter they take Iraj Ali and PW1 to

police thana and on the way arrived at the house of DW2 at about 12-00

O’clock (midnight). Then DW 2 asked PW 2 about the details of the

occurrence. And he (DW2) asked Iraj Ali to stay at his house stating that

he (Iraj Ali) should go in the morning. But, lateron on the pretext of

passing urine, Iraj Ali fled away leaving PW1 & PW 2 at the house of DW

2. He has also deposed that PW 2 never lodged any complaint either at

mosque or any village. And he could know about the occurrence only after

police had visited the house of PW 2.

24. In the cross examination, DW1 has replied that his house is at

a distance of about 200/250 meter away from the house of complainant

Mayarun Bibi (PW2). And he is the next door neighbour of the accused.

On a question put to him by this court u/s. 165 of the Evidence Act, he

replied that PW 1 gave birth of a child in the month of ‘Poush’. He has

also stated during the cross examination by the prosecution side that

whenever illegitimate child is born from the womb of an unmarried girl,

village bichar is held at their village. Elderly villagers hold bichar but he

does not hold bichar.

25. DW 2 has testified that on the intervening night of 20/04/12

and 21/04/12 at around 12-30 a.m. (midnight), while he was sleeping at his

17

house, Mayarun Bibi (PW2), Mobarak Ali (PW4), Cherag Ali, Rajak Mia

(DW1), Abdul Sukkur and one person named Iraj Ali arrived at his house.

He has deposed that the hands of Iraj Ali were tied with a napkin and

Mayarun Bibi was holding him. On being asked as to what had happened,

PW 2 replied that Iraj Ali being her relative had been staying at her house

for quite sometimes and he had given marriage proposal with his daughter

(PW1). And she told that he had been already married having children at

Sakai Bari, Tripura. He (DW2) has also further deposed that on the

relevant evening Iraj Ali and PW 1 were eloping and they were

apprehended on the road and accordingly they had been brought to his

house being VDP Secretary at the relevant time. DW 2 has further testified

that on being asked, Iraj Ali disclosed to him that he made physical relation

with the daughter of PW 2 (i.e. PW 1). He has also said, “After

sometimes, Iraj Ali fled away from my house. All persons were running

behind him and he entered into the jungle and we were laughing for

whole night.”

26. From the said evidence of DW 2, a man of ordinary prudence

would easily assess that he deposed falsely depicting an imaginary story of

apprehension of Iraj Ali with PW 1 and that Iraj Ali had fled away by

entering into the jungle and all the persons were running after him.

Because, if Iraj Ali had been tied with napkin and being caught hold by

PW 2, it was not possible on his part to flee away, more so, when there

were 4/5 persons present at the house of DW 2 at the relevant time. On the

other hand, the statement of DW1 regarding fleeing away of Iraj Ali from

the house of DW 2 is totally different from what DW 2 himself has stated.

Because, according to DW 1, Iraj Ali fled away from the house of DW 2

on the pretext of passing urine. And DW 1 has also stated that DW 2 asked

Iraj Ali to stay at his house and he should go in the morning. In his chief

DW 2 has clearly stated that accused person is the class friend of his son

and they appeared HSLC examination in 2011. During cross examination,

DW 2 has clearly replied that village bichars (sittings) are generally

18

conducted/held by elderly person of the village and he does not attend any

bichar.

27. Again from the evidence of DW 1, it appears that he is merely

a vegetable vendor and claims to hear the marriage talk of PW 1 and Iraj

Ali on the day he visited the house of PW 2 for collecting vegetables. And

at the same time he has stated that Mobarak Ali (PW4) went to bring the

guardian of Iraj Ali from village Chakai Bari, Tripura. This part of

evidence of DW 1 is not believable, because, DW 1 is not a relative of PW

2, so as to involve him in the so called marriage talk of her daughter (PW1)

with Iraj Ali. Admittedly, PW 1 at the relevant time was an unmarried girl.

And according to DW 1 and DW 2, Iraj Ali was already a married man

having children and he is the relative of PW 2. Therefore, PW 2 being the

mother naturally cannot be expected to arrange the marriage of her minor

unmarried daughter (PW1) with a man already married and having

children. Surprisingly enough, the defence side during the cross

examination of PW 1,PW 2 and PW 4 did not give any suggestion that on

12/04/12 they went to the house of DW 2 along with Iraj Ali during

midnight. Therefore, the said evidence of DW 1 & DW 2 that PW 1 and

Iraj Ali were apprehended and brought to the house of DW 2 and that Iraj

Ali had fled away appears to be false and afterthought story of the defence.

However, it is seen that both DW 1 & DW 2 know about the fact of giving

birth of the child by PW1. And they also know the fact that PW 2 lodged

the case against the accused person after her daughter PW 1 had given birth

a child.

APPRECIATION OF EVIDENCE:

28. Before entering into the details of the discussion of evidence

of the witnesses, it is considered essential to ascertain what was the age of

the prosecutrix (PW1) at the relevant time of occurrence?

19

29. PW 1 being the victim girl in her deposition before the court

as well as in her statement on oath recorded by ld. Addl. CJM, Karimganj

(Ext.1) clearly stated that the accused person forcibly committed rape on

her while she was alone at her house as a result she became pregnant and

ultimately gave birth of her daughter. Ext. 1 statement was recorded by the

ld. Addl. CJM on 26/04/13 where she has stated that the occurrence took

place about 1 year 2 months back. Again it is already observed that PW 1

has deposed before this court on 06/09/13 and she stated that the

occurrence took place about 1 ½ years back from the date of her

deposition. Thus, from the above evidence of PW 1 and her statement

made in Ext.1, it is clear that the occurrence took place during February or

1st week of March 2012. And she has also stated that after the 1

st

occurrence also the accused person used to visit their house in absence of

her mother and committed sexual intercourse with her on promise that he

would marry her. In Ext.4 complaint, the date of occurrence is mentioned

as 15/02/2012. Therefore, the age of PW 1 in February or 1st week of

March 2012 is relevant to decide in this case. Ext.3 being the Medical

examination report of the victim girl reflects that she was examined on

26/04/13 at Karimganj Civil Hospital. And the doctor on the basis of

ossification test opined that she was above 14 years and below 17 years on

the date of her examination. The doctor as it reveals from Ext. 3 came to

the conclusion that PW 1 was below 17 years in view of the fact that

ossification of her wrist joint and knee joint was not completed. From the

above, it is clear that on 26/04/13, PW 1 was below 17 years which means

that she might be below 16 years also. Therefore, presuming but not

admitting if the age of PW 1 as on 26/04/13 is accepted to be 16 years and

11 months, in that case also as per above Medical evidence, it can be safely

concluded that in February/March 2012, PW 1 was certainly below 16

years of age. From the above Medical evidence, it can be held that PW 1

was below 16 years and a minor girl at the relevant time of occurrence.

20

30. PW 1 and PW 2 have deposed before the court on 06/09/13.

And they have stated the age of PW 1 to be 15 years. During the cross

examination of PW 2, the defence side merely gave suggestion to her that

PW 1 was not 15 years as on 06/09/13. Of course, she has denied the

suggestion. There is nothing in the cross examination of PW 2 that she has

stated the age of her daughter PW1 to be 15 years on 06/09/13 tentatively

or without any basis. It is important to note that PW 2 has submitted Ext.2

xerox copy of birth certificate of PW 1. She has categorically stated that at

the time of filing the complaint, she furnished Ext.2 xerox copy of birth

certificate of her daughter PW 1 and police did not ask her to produce the

original of Ext.2. Apparently PW 2 is an illiterate and rustic widow. It

was the duty of the I/O to collect the original of Ext.2 from her during the

period of investigation. Defence side also did not give any suggestion to

PW 2 that she did not submit Xerox copy of Ext.2 to the I/O at the time of

filing the complaint. In Ext.2, the date of birth of PW 1 is recorded as

14/05/1998. Therefore, from Ext.2 also, it can be easily assessed that PW

1 was below 14 years at the time of occurrence.

31. In the light of above discussion and observation, the inevitable

conclusion is that PW 1 was a minor girl below 16 years at the relevant

time of occurrence.

32. Needless to say, in a case u/s. 376 IPC, basically the merit of

the prosecution case hinges on the testimony of the prosecutrix. PW 1

being the prosecutrix in her evidence has categorically stated that the

accused person came to their house on the relevant day of occurrence at

about 4-30 p.m. in absence of her mother PW 2 and he having gagged her

mouth committed sexual intercourse with her and he asked her not to

disclose this fact to others and he promised to marry her. Thereafter also,

the accused person came to their house in absence of her mother and

committed sexual intercourse with her on promise that he would marry her

and as a result of which she became pregnant. After 10 months from the

21

first sexual intercourse with her by the accused person, she gave birth a

female child at their house and the child died after 28 days of birth. It has

been already held that the defence side did not challenge the pregnancy and

giving birth of girl child by PW 1 at her house. She has also stated that

when she had attained her 3/4 months of pregnancy as a result of sexual

intercourse by the accused person, her mother (PW2) having noticed her

physical sense asked her as to how she became pregnant. And then she

disclosed to her mother about the occurrence of committing sexual

intercourse with her by the accused person. The said evidence of PW 1 is

also corroborated by PW 2. It is seen from the evidence of PW 1 & PW 2

that their family consist of themselves and the younger brother of PW1.

And Irfan Ali, who was the father and husband of PW 1 & PW 2

respectively died long back when PW 1 was hardly 5/6 years old. Since

PW 1 being a minor girl at the relevant time of occurrence and in view of

the promise of marriage made by the accused person, she immediately did

not disclose the occurrence to her mother, PW 2. But when her mother

(PW2) noticed her physical change at 3/4 months of her pregnancy, PW 1

disclosed the true fact to her mother that the accused person made her

pregnant. PW 1 has also stated that soon after she had disclosed the

occurrence to her mother (PW2), she (PW2) immediately approached the

parents of accused Najmul and disclosed them about the occurrence. And

his parents assured her (PW2) that they would arrange his marriage with

her daughter. But lateron they declined to marry her (PW1). PW 2 has

corroborated the said evidence of PW1 stating that as soon as she could

know about the occurrence from her daughter after her inquiry, she (PW2)

immediately rushed to the parents of the accused person and narrated them

the details of the occurrence. And his parents assured her not to disclose

the occurrence to others and assured that they would arrange the marriage

of their son with her daughter PW 1.

33. A man of ordinary prudence would easily comprehend that

PW 2 being an illiterate, rustic and poor widow, in a state of distressed and

22

shocked on account of 3/4 months pregnancy of her minor daughter due to

sexual intercourse by the accused person, naturally approached his parents

so that, her daughter at such stage might be given marriage with the

accused person, so that herself and her daughter are not left with social

stigma in future. Naturally a mother under such a situation of 3/4 months

pregnancy of her minor unmarried girl in all circumstances would try to

resolve the matter with the parents of the accused at whose instance her

daughter had been made pregnant by arranging their marriage. On through

scrutiny of the evidence of PW 1 & PW 2 and cross examination of PW 8

(I/O), it appears that the defence side failed to bring any material

contradiction/inconsistency to shake their credence so as to render their

credence doubtful and unreliable.

34. It appears that PW 1 read up to class IV only and thereafter

became school dropout. In the cross examination, PW 1 has replied that

she cannot remember the exact date when the accused person for the first

time committed sexual intercourse with her. This is quite natural, because,

she has deposed before this court after 1 ½ years of the occurrence and

being a minor girl stigmatized of being a mother of an illegitimate child

may not be able to give the date of the first occurrence. However, she

could say the time of the first day of occurrence of the crime committed by

the accused person and also the month (Bengali) when she gave birth of

her girl child fathered by the accused person. Again in her cross

examination, she has stated that her mother PW 2 lodged the complaint

before death of her child. But Ext. 4 was lodged subsequent death of her

child. Apparently, Ext.4 was lodged by her mother PW 2. Therefore, the

said statement of PW1 appears to be minor contradiction and in no way

affects her credence. Although, from the evidence (cross examination) of

PW 8, it is seen that PW 1 did not state before him during the investigation

that the accused person used to supply bamboo etc. at their house and there

was village sitting. But, the said omission on the part of PW 1 cannot be

treated as material contradiction so as to disbelieve the veracity of her

23

statement. Because, PW 1 being a minor girl and having been affected by

the trauma of being the mother of illegitimate girl child cannot be expected

to state each and every aspect of the occurrence. Be it mentioned here that

the aforesaid statement of PW 1 and PW 2 that she (PW2) immediately

visited the parents of the accused person and narrated them about the

occurrence soon after her daughter (PW1) had disclosed her at her 3/4

months pregnancy remains unshaken which is clear from the evidence of

PW 8. Although, PW 2 in her previous statement (under 161 Cr.P.C.)

before PW 8 did not state that at 9 (nine) months pregnancy of PW1, she

(PW2) took her daughter to the house of the accused person, but this

omission also under the fact and circumstances of the case and in view of

her illiteracy and being in distressed and traumatic condition may occur as

a normal course. But such omission being minor does not amount to

material contradiction to discard her credence as not believable. The Apex

Court in the case of State of Andra Pradesh Vs. Gangula Satya Murthy

reported in AIR 1997 SC 1588 has held that “in case of rape the court

should examine the broader probabilities of a case and not get swayed by

minor contradiction or insignificant discrepancies in the statement of the

witnesses, which are of not fatal nature to throw out the allegation of

rape.”

35. On meticulous scrutiny of the evidence of PW 1, it appears

that her testimony is cogent, reliable and believable and also consistent. In

the case of Dilip Kr. Das Vs. State of Tripura (2013) 2 GLR 40 the

Hon’ble Gauhati High Court in para 9 of the judgment has observed as

follows, “In a case of rape the evidence of victim, if inspire confidence in

all respect, is enough to record a conviction. A victim of rape is not an

accomplish and asking for corroboration in a case of rape is an insult to

the womanhood. In the Indian setting, refusal to act on the testimony of

a victim of sexual assault in the absence of corroboration as a rule, is

adding insult to the injury, unless her evidence suffers from any basic

infirmity or improbability.”

24

36. PW1 during her entire evidence stood affirm that it was only

the accused person who made her pregnant by forcible intercourse and on

promise of marrying her. The defence side raised plea of alibi only during

the cross examination of PW 3 and thereafter in the statement of the

accused recorded u/s. 313 Cr.P.C. Surprisingly enough, during the cross

examination of PW 1 who is the most vital witness was not given any

suggestion that since before the time of occurrence leading to her

pregnancy, the accused person had already gone to Bangaluru and staying

there till the complaint was filed. On the other hand, PW 1 in her cross

examination had made it distinctly clear that the accused person went to

Bangaluru only after the occurrence. Thus the plea of alibi raised by the

defence appears to be false and after thought story. This is further proved

from the evidence of DW 2 Shyamal Kr. Das who has stated that he does

not know whether the accused appeared HSLC examination in 2012 but

now he is the classmate of his son. This evidence of DW2 proves that the

accused person appeared HSLC examination in 2012 and he is continuing

study.

37. It is pertinent to mention here that the admitted fact of this

case is that PW 2 and the accused person are neighbours. Surprisingly

enough, the accused person in his statement u/s. 313 Cr.P.C. has given

false explanation stating that he does not know the house of PW2. This

false explanation on the part of the accused is a conduct u/s. 8 of the

Evidence Act which impliedly points finger towards his guilt.

38. The defence side during the cross examination of PW 2 tried

to project a theory of her enmity with the father of the accused person for

writing a batoaranama (deed of partition) in respect of the property left by

her husband. However, the defence side has failed to establish such theory

of enmity. PW 2 although in her cross examination admitted that father of

the accused person had written the batoara in respect of the property left by

25

her husband but she has clearly stated that in fact the partition was effected

during the lifetime of her husband and batoara was written subsequently.

Nothing in the cross examination of PW 2 has been brought by the defence

that on account of writing of the batoara by the father of the accused, she

has been prejudiced in respect of her share of property which she was

otherwise entitled to from her husband. Therefore, mere suggestion of the

defence to PW 2 that she has enmity with the father of the accused does not

hold water. Considering the entire evidence of PW 1 & PW 2, there

appears nothing to probabilize even remotedly to falsely implicate the

accused person in the crime. Moreover, a mother is not expected to project

her young unmarried girl as victim of rape against the accused person in

the factual scenery of rural setting. In this context we may profitably quote

the observation of the Hon’ble Supreme Court in the case of Kundula

Bala Subrahmanyam and another Vs. State of Andhra Pradesh, (1993) 2

SCC 684 as follows “The role of courts under the circumstances assumes

great importance and it is expected that the court would deal with such

cases in a more realistic manner and not allow the criminals to escape on

account of procedural technicalities or insignificant lacunas as otherwise

the criminals would receive encouragement and the victims of crime

would be totally discouraged by the crime going unpunished. The courts

are expected to be sensitive in cases involving crime against woman.”

39. In the instant case, PW 2 being an illiterate rustic widow got

written Ext.4 complaint through a scribe of Bazaricherra. In Ext.4, there is

no mention regarding holding of village bichar (sitting) before lodging the

case. It is well settled that the FIR is not an encyclopaedia and last word of

the prosecution case.

40. PW 1 in her examination in chief and in her statement (Ext.1)

u/s. 164 Cr.P.C. has stated about holding of village bichar before lodging

of the case. It is proved from the evidence of PW 1 and PW 2 that soon

after she (PW1) disclosed the occurrence at 3/4 months of her pregnancy to

26

PW 2 she immediately visited the house of the accused person and

informed his parents narrating the occurrence. And they assured that

marriage of her daughter with their son (accused) would be arranged and

she should not disclose the occurrence to others. Naturally, PW 2 being a

rustic widow under such stage of pregnancy of her daughter PW 1 believed

the said assurance of the father of the accused to be true and as such a man

of ordinary prudence would not see any cause on her part to promptly

lodge the FIR at the risk of prospective marriage of her daughter with the

accused. And the said fact of communication to the parents of the accused

by PW 2 and about their assurance is mentioned in Ext.4. PW 2 has stated

that after the laps of 2/3 months from the said communication of the

occurrence to the parents of the accused, they did not arrange marriage of

PW 1 with the accused person. As such at the 9 months of pregnancy of

PW 1, she again approached father of accused but he abused them and

declined to arrange marriage. PW 2 has also very clearly stated that she

immediately informed the elderly villagers namely Abdul Rob (PW5),

Abdul Rashid (PW6) and others and disclosed them about the occurrence.

Then the said persons visited her house and on being asked by them, PW 1

replied that she became pregnant as a result of sexual intercourse by the

accused person. PW 2 has also stated that thereafter bichar was held. And

PW 1 gave birth a female child in the month of ‘Poush’ after one week of

the first bichar.

41. PW 3, PW 4, PW 5 & PW 6 have deposed that after delivery

of the child of PW 1, bichar was held at the house of PW 2. During the

cross examination of PW 3 & PW 6, the defence side has confirmed that

village bichar was held. In cross examination PW 3 has very categorically

stated that in the bichar Abdul Rashid (PW6), Abdul Sukkur, DW1 (Rajjak

Ali), Siddhi Riang and Manik Riang were present. Similarly, during the

cross examination PW 6 has also made it clear that Dhiren Singh (previous

President of Bazaricherr GP), Mobarak Ali (PW4) and others were present

at the bichar. In their examination in chief, PW 3 & PW 6 have

27

categorically stated that after delivery of the child of PW 1, PW 2 visited

the mosque on a certain Friday and informed the occurrence to the people

gathered at the mosque for prayer (Namaj). And after Namaj they along

with other people went to the house of PW 2 and witnessed giving birth of

female child of PW 1. And on being asked by them, PW 1 replied that she

became pregnant and gave birth of a child due to physical intercourse with

her by the accused person. It is proved from the evidence of DW1 that

generally village bichar is held when an unmarried girl gives birth of an

illegitimate child. Although, PW 4 Mobarak Ali in his cross examination

has admitted that she purchased the land of PW 2, but there is nothing in

his evidence to hold that he is an interested witness. Moreover, Ext.5 being

the sketch map of the PO proves that house of PW 4 is very nearby and

towards south from the house of PW 2. Therefore, it is quite natural and

possible that he saw the accused person visiting house of PW 2 at the

relevant time of occurrence and as such he also warned the accused person

not to visit the house of PW 2 in her absence. It is pertinent to mention

here that during the cross examination of PW 3, the defence side has

brought a statement through his mouth that just about one month/one and

half month ahead of delivery of the child by PW 1, she along with Iraj Ali

were apprehended when they were eloping. And as such about 25/30

people gathered at the house of Mayarun Bibi. Of course, a man of

ordinary prudence would easily assess that this part of evidence of PW 3 is

false. Because, if PW 1 had been made pregnant by Iraj Ali and she would

have eloped, naturally PW 2 being her mother and other villagers would

have helped in their marriage and question of elopement and apprehension

would not arise.

42. The statement of DW 1 that no bichar was held at the house of

PW 2 is proved to be false from the evidence of PW 3, 4, 5 & 6. The

evidence of DW2 makes it clear that he does not hold bichar. Moreover,

while quoting his evidence in the aforesaid paragraph, it has been held that

he is deposing falsely. Therefore, the evidence of DW 1 & DW2 that no

28

bichar was held is discarded being found false. In the light of the above

discussion of evidence, observation and reasons, it is proved that village

bichar was held after delivery of the child of PW 1. Therefore, from the

above discussion of evidence, it is proved that the delay in lodging Ext.4

complaint (ejahar) stands explained and as such the delay does not create

any doubt either on the prosecution case or on the credence of PW 1 &

PW2. In this regard we may profitably cite the decision of the Hon’ble

Supreme Court rendered in the case of Ramdas and others Vs. State of

Maharastra (2007) 2 SCC 170 wherein it has been observed as“In the

light of the totality of the evidence, the court of fact is to consider

whether the delay in lodging the report adversely affects the case of the

prosecution. That is the matter of appreciation of evidence; there may be

cases where there is direct evidence to explain the delay. Even in the

absence of direct explanation, there may be circumstances appearing on

record which provide reasonable explanation in the delay.”

43. From the foregoing discussion, observation and reasons, it is

proved beyond all reasonable doubt that it was only the accused person

whocaused pregnancy of PW 1 as a result of forcible intercourse with her

at first instance and thereafter on promise to marry her and she ultimately

became pregnant and gave birth a female child. It is already proved that at

the relevant time of occurrence PW 1 was a minor girl below 16 years. As

such it is proved that the accused person having committed sexual

intercourse with PW 1 made her pregnant and as such committed offence

u/s. 375(6) IPC. Accordingly, the accused person stands convicted u/s.

376(1) IPC.

44. The accused person is heard on the point of sentence u/s.

235(2) of Cr.P.C. It has been already proved that PW 1 being a minor girl

at the relevant time of occurrence became pregnant as a result of rape

committed upon her by the accused person and she ultimately gave birth of

a female child. Therefore, it can be easily comprehend that PW 1 for her

29

no fault has earned the reputation of being mother of illegitimate child

during her minority. Thus, PW 1 on account of the crime committed by the

accused person has earned a social stigma which has wider ramification in

her present as well as future life. Of late, crime against woman,

particularly rape is rising. Such an offence although immediately affects

the victim but also destabilizes the societybecause rape is a crime against

the society. Punishment is a given case must commensurate to the gravity

of the offence. The Hon’ble Apex Court in the case of Sevaka Perumal

Vs. State of T.N. reported in 1991 3 SCC 471 and Dhananjoy Chatterjee

Vs. State of W.B. (1994) 2 SCC 220 has observed that punishment

commensurate to the gravity of the offence should be imposed as

otherwise society will loss its confidence in the criminal justice system.

The Hon’ble Apex Court has also observed that social impact of the

crime, i.e. where it relates to the offences against women, dacoity,

kidnapping, misappropriation of public money, treason and other

offences involving moral turpitude or moral delinquency which have

great impact on social order, and public interest, cannot be loss sight of

and per se required exemplary treatment.

45. Having regard to the said ruling of the Hon’ble Supreme

Court and also considering that as a result of the crime, PW 1 has suffered

both physically, mentally and her future marriage prospect has also been

damaged, the accused person is sentenced to 8 (eight) years R.I. and fine of

Rs. 5,000/- (Rupees five thousand) i/d to undergo further R.I for 6 (six)

months for committing the offence u/s. 376(1) of IPC. In deciding the said

quantum of sentence imposed upon the accused, a slight leniency is shown

to him considering the fact that he was a young boy of 18 (eighteen) years

and odd at the relevant time of occurrence. Fine, if realized, shall be

deposited in the account of District Legal Service Authority, Karimganj.

Period which the accused person has already undergone in jail custody in

connection with this case shall be set of from the quantum of substantive

sentence.

30

46. The bail bonds shall stand cancelled and bailors are

discharged. Send the accused person to jail custody for serving sentence

and issue necessary warrant accordingly.

VICTIM’S COMPENSATION u/s. 357(A) Cr.P.C.

47. During the recording of evidence of PW 1 who is the victim

girl, she has stated that they are very poor and her mother works as maid

servant. She has also stated that she does domestic and bamboo works at

her house. And due to poor economic condition and death of her father

when she was 5/6 years old, she could not study further. She has also

stated that she needs compensation to overcome her mental agony and for

her rehabilitation so that she may run a smooth life. Certainly, as a result

of crime PW 1 has suffered loss both mentally, physically and also

financially. It is clear from her above statement that she needs to be

compensated for her rehabilitation. Accordingly, the Secretary District

Legal Service Authority, Karimganj shall pay an amount of Rs. 50,000/- as

interim compensation initially to PW 1 from the Victim Compensation’s

fund of the State Government. Thereafter, the Secretary District Legal

Service Authority, Karimganj shall hold further inquiry to ascertain the

further compensation if any for adequate compensation to the victim girl in

the light of the Victim’s Compensation Scheme prepared by the

Government of Assam, published in the Assam Gazette dated 20th

October

2012. It is made clear that the compensation shall be paid to the victim

through Bank Cheque payable against the account of victim in any

Nationalized Bank.

48. Furnish a copy of the judgment free of cost to the accused

forthwith.

31

49. Send a copy of this judgment each to the District Magistrate,

Karimganj and District Legal Service Authority, Karimganj for

information and necessary action.

Judgment is delivered in the open court under my hand and

seal on this 17th

day of December 2013.

Dictated and corrected by me---

(Shri A. Rahman, AJS). (Shri A. Rahman, AJS).

Asstt. Sessions Judge,Asstt. Sessions Judge,

Karimganj. Karimganj.

Dictated taken and transcribed by

Debabrata Das,

(Stenographer).

*****

32

IN THE COURT OF ASSTT. SESSIONS JUDGE, KARIMGANJ

SESSIONS CASE NO. 86/2013

APPENDIX

Prosecution witness:

PW 1 –The victim girl,

PW 2 – Mayarun Bibi,

PW 3 – Rahmat Ali,

PW 4 – Mobarak Ali,

PW 5 – Abdul Rob,

PW 6 – Abdul Rashid,

PW 7 – Dr. Abul Hussain &

PW 8 – Jyotirmay Das.

Defence witness:

DW 1 – Rajjak Mia,

DW 2 – Shyamal Kumar Das.

Court witness: NIL.

Prosecution exhibits:

Ext.1 – Statement of the victim girl u/s. 164 Cr.P.C.,

Ext.2 – Birth certificate,

Ext.3 – Medical examination report,

Ext.4 – complaint,

Ext.5 – sketch map of the PO,

Ext.6 – Charge-sheet,

Defence exhibits: NIL.

Court exhibits: NIL.

(Shri A. Rahman, AJS)

Asstt. Sessions Judge,

Karimganj.