An appeal was filed before the Gauhati H.C. against a judgement/order passed by the Addl Sessions Judge dated 12-07-2016. The appellant Nasir Uddin Ali was convicted u/s 376 of I.P.C & was sentenced to pay a fine of Rs 1,000 & R.I. for a period of 9 years.
On the night of 26-11-2009, around 10 PM, the victim was walking towards her home from Digboi Chariali Market. While arriving near Digboi Club, the accused forcefully carried her to the bathroom of nearby swimming pool, thereafter raped her.
The next day, at 11:45 PM Digboi P.S made the G.D. entry on verbal information given by the victim & sent her to the hospital for undergoing a medical examination. The place of offence was visited & the statement of the witnesses were recorded by ASI Sashi Thakuli.
On the same day, accused was brought to the P.S & victim's statement was recorded u/s 164 of CrPC & the chargesheet was filed against him. After the examination of witnesses appearing for the prosecution & defence, recording the statement of the accused u/s 313 of CrPC, the learned court found the accused guilty. Aggrieved by the judgement, the appeal was raised.
Petitioner's Submission :
The learned counsel appearing for the petitioner submitted,
Respondent's Submission :
The learned Addl P.P. appearing for the respondents submitted,
Observations of the Court :
The court stated that the victim who is only 20 years of old & who works on a daily wage in a private hospital has no earlier acquaintance with the accused & so there lies no question of falsely accusing him. She wasn't aware of the residents of the locality & the place of occurrence of the alleged offence is not at her own locality.
After she was raped by the accused, she stayed there till morning & reported the matter to a person staying nearby (PW3). She even reported this matter to the wife of the accused at her house which was shown to her by the chowkidar (PW2) & after that to the authority of the swimming pool & the club (PW4).
Thereafter she filed the F.I.R. She denied the fact that on the day of the incident, she was on a motorcycle with Sanjay Upadhyay, whom she didn't even know.
PW3 who agreed to the fact before the police that the girl remained in his house till morning after the incident & went away at about 5 AM turned hostile. PW2, the chowkidar stated that on the night of the incident, he along with the accused were on duty & saw Sanjay Upadhyay on a motorcycle. However, he denied that he was with a girl.
Also, he stated that the accused at about 1:10 AM asked him to open the door as he wanted to go home which proves his presence there & the next day he heard that a girl lodged a rape complaint against him. PW3 also confirmed the testimony of the prosecutrix.
However, PW5 the medical officer did not find any mark or injury on the private part of the victim's body. PW7, the I.O. stated that he could not seize her clothes as they were washed off. Therefore, the testimony of the victim was an authentic one.
The court pointed out that the prosecution cannot be discarded just because the I.O. didn't examine the witnesses & all the facts & circumstances of the case are in support of the evidence of the prosecutrix. Having no eye-witness at such isolated place of occurrence & at odd hours of night is natural.
Moreover, the court found that there is no suspicion as regard to the statements of the victim, although she once said while giving her statement u/s 164 CrPC, for the interest of the family of the accused, she is not interested to proceed with the case which she denied during the course of trial, because of falsity of allegation. But throughout the trial, she remained consistent & some minor omissions can be overlooked.
The court stated that she has qualified the test for 'sterling witness', as there is no room for doubt in her evidence & also non-finding of injury is not a sine qua non for deciding whether rape has been committed or not.
The court stated that the prosecutrix was able to to prove the charges u/s 376 of I.P.C against the appellant beyond reasonable doubt & her version can be accepted as the true version. The court even stated,
"The courts are sensitised that rape is a violation of victim's fundamental right under Article 21 of the Constitution & rape victim is placed on a higher pedestal than an injured witness".
The court found that the order of appellant's conviction is to be sustained. However, keeping in mind his family comprising of 5 children, the court sentenced him to minimum period of 7 years of conviction & hence the appeal was partly allowed.
Judge : Hon'ble Mrs Justice Rumi Kumari Phukan.
Case Courtesy : Nasir Uddin Ali v State of Assam & Anr.