Abdul Karim @ Gatu vs The State Of Assam And Anr
2021 Latest Caselaw 1340 Gua

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GAHC010250232018




                                THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                    Case No. : Crl.A./5/2019

               ABDUL KARIM @ GATU
               S/O LATE SUMUDDIN SHEIKH, VILL. ANANDA NAGAR, P.O. AND P.S.
               BILASIPARA, DIST. DHUBRI, ASSAM, PIN 783348

               VERSUS

               THE STATE OF ASSAM AND ANR
               REPRESENTED BY PP, ASSAM.

               2:DILIP CHOUDHURY
                S/O LATE BAIDY NATH CHOUDHURY
                R/O VILL. BILASIPARA WARD NO. 3
                P.O. AND P.S. BILASIPARA
                DIST. DHUBRI ASSAM
                PIN 78334

Advocate for the Petitioner     : MR H R A CHOUDHURY

Advocate for the Respondent : PP, ASSAM


                                      BEFORE
                         HONOURABLE MR. JUSTICE SUMAN SHYAM
                         HONOURABLE MR. JUSTICE MIR ALFAZ ALI

                                            JUDGMENT

Date : 07-04-2021

M.A. Ali, J.

Heard Mr. H.R.A. Choudhury, learned Sr. Counsel assisted by Mr. Azad Ahmed appearing for the appellant and the learned Additional P.P., Mr. M. Phukan for the respondent State.

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2. This appeal is directed against the judgment and order dated 09.10.2018 rendered by the learned Additional Sessions Judge, Bilasipara in Sessions Case No. 46/2016, whereby, the appellant was convicted under Section 376 (2)(1) IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 25000/- with default stipulation.

3. The prosecution case as unfolded at the trial, may, briefly, be stated thus - The victim in the instant case is a deaf and dumb girl of 22 years of age and she is the daughter of the informant. On 16.07.2013, at about 10.30 AM, the accused took the daughter of the informant to an isolated place on the back side of Moinamati building and committed rape on her. The incident was witnessed by Hemen Singha (PW-8) and Liton Das (PW-6). The father of the victim lodged an FIR on the same day at the Bilasipara Police Station, on the basis of which, police registered Bilasipara P.S. Case No. 650/2013 under Section 376 IPC and upon completion of the investigation submitted charge sheet against the appellant under Section 376 IPC.

4. During the course of trial, learned Addl. Sessions Judge framed charge against the appellant under Section 376 IPC, which was abjured by him. Prosecution examined 10 witnesses in order to bring home the charge. Upon completion of the prosecution evidence, the appellant was examined under Section 313 CrPC, wherein, the appellant took the plea of innocence. The appellant, however, did not adduce any defence evidence.

5. The victim was examined as PW-1 with the aid of a trained interpreter, who was also administered oath by the learned trial court. The PW-1 stated in her evidence that the appellant undressed her. When she was asked as to what had the appellant done, the victim had shown her abdomen and stated by sign that her clothes was removed. Evidence of the victim could not be completed on that day as she was not responding to the interpreter and as such, further examination-in- chief was deferred. Thereafter, again the victim was examined with the aid of her mother. On that day, the victim stated that after removing her dress, the accused committed rape on her in the temple campus. The victim had also showed by sign that the accused ran away after committing rape. During cross examination it was elicited that the interpreter was her mother. A suggestion was also put to her to the effect that she was not telling the truth, which was denied by her.

6. The PW-2 is the first informant and father of the victim. He stated that hearing cry, he went to the place of occurrence and found his daughter in naked position. He also stated to have seen the accused in naked condition. He further stated that having seen him, the accused put on his 'lungi' and had fled the scene. According to him, his wife (PW-3) came later and had taken the victim home. During cross Page No.# 3/9

examination it was elicited that the place of occurrence was about 200 cubit away from the house of the victim. He also stated that at the time of occurrence, he was present in his house. He also stated in his cross examination that initially he went to the place of occurrence and his wife (PW-3) followed him. It was also elicited in his cross examination that there was a tea stall at a distance of about 10/20 cubits from the temple and the victim on the day of occurrence came to the said tea stall for taking tea. When she was coming back from the tea stall, the occurrence took place. He, however, pleaded ignorance as to who had taken the victim to the place of occurrence from the tea stall.

7. The PW-3, mother of the victim stated that at the time of occurrence she was at her home and having heard hue and cry, she rushed to the place of occurrence and had found the victim in naked condition. She also stated to have found the accused at the place of occurrence in naked position. According to her, as soon as she arrived the place of occurrence, the accused put on his 'gamocha' and had fled the scene. She brought the victim home and police was informed. During cross examination, she stated that she had received the information about the incidence after half an hour of the occurrence. She also stated that having arrived at the place of occurrence, she had found many people assembled there. She also stated during cross examination that at the time of the occurrence, her husband was at the market and he came home at about 11 AM. She also stated that her husband found the victim at home after she was brought back home by her.

8. The PW-4 Padum Singha deposed that when she was going to graze cattle in the field, one cowboy, by name Liton told her, pointing to the incident that "see aunty what the old man is doing with the poor deaf and dumb girl". She also stated that the accused committed rape on her. She further stated that having seen them, the appellant had fled the scene. She also stated to have seen the victim in naked condition. During cross examination she stated that she had not seen the exact incident of rape, but had seen the accused running away from the place of occurrence.

9. Liton Das has been examined as PW-6. He deposed that when he was in his shop, he had noticed the accused running away from the side of the Moinamati Sangha. He also stated to have seen the victim at the place i.e. Moinamati Sangha. This witness again stated that he heard that a lady had noticed the accused with the victim and thereafter the accused had left the place. During cross examination, he stated that he did not go to the place of occurrence or inside the Moinamati Sangha and as such he did not see exactly what had happened. He also admitted that he did not go near the victim nor did he meet the parents of the victim. According to him, the wife of one Krishna had seen the victim with the accused and he had only seen the accused from the back side when he was running Page No.# 4/9

away. Wife of Krishna has not been examined either by the police or by the court.

10. The PW-7 stated to have heard that some incident had taken place with the victim. This witness was, however, declared hostile by the prosecution. From the cross examination of this witness including the previous statement proved through the Investigating officer, we find that this witness, in fact, was not an eye witness to the occurrence. The PW-8 pleaded ignorance about the incident. The PW-5 was one of the Investigating Officer, through whom the accused proved certain previous statement of the witnesses. According to him, the PW-3 did not state before him that she had found the victim in naked condition nor had she stated to have seen the accused running from the place of the occurrence. The PW-2 also did not state before police that hearing hue and cry, he went to the place of occurrence and had seen the victim as well as the accused in naked condition. The PW-4 also did not state before him that she had seen the victim in naked condition. Rather, she had stated before police that she tried to understand from the victim as to what had happened, but she could not follow her. The PW-9 was also another Investigating Officer. The testimony of the PW-9 was more or less formal as he only narrated the various steps taken by him during investigation.

11. The PW-10 is Dr. Muskura Ahmed, who examined the victim. The doctor in his evidence stated that during examination he did not find any sign of rape. According to the doctor, no spermatozoa was detected in vaginal swab of the victim. PW-10 however, deposed that hymen was found torn.

12. Appreciating the evidence adduced by the prosecution, learned trial court convicted the appellant under Section 376(2)(1) IPC and awarded sentence as indicated above.

13. Assailing the impugned judgment, learned counsel for the appellant, Mr. Choudhury contends that the prime witnesses of the prosecution were the PW-1, PW-2, PW-4 & PW-6 and all of them stood contradicted on material facts and as such testimony of all these four witnesses was totally unreliable. Though, they projected themselves to be eye witnesses, in fact, none of them were eye witness of the occurrence and as such, no reliance could have been placed on the testimony of these four witnesses, submits Mr. Choudhury. Learned counsel for the appellant further submits that the evidence of the victim was also not reliable, inasmuch as, her statement was recorded with the aid of her mother, who was an interested witness. Mr. Choudhury has placed reliance on a decision of the Apex Court in State of Rajasthan Vs. Darshan reported in 2012(4) Supreme 72 to argue, that the testimony of the victim in the instant case recorded with the aid of her mother being an interested witness cannot be given any credence.

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14. Par contra, learned Additional P.P. Mr. Phukan contends that in a case of sexual assault, the testimony of the victim is sufficient to record conviction without any corroboration, inasmuch as, the victim of the sexual offence cannot be disbelieved unless her testimony is found to have suffered from inherent improbabilities.

15. We have considered the submission made by the learned counsels and also meticulously scrutinized the evidence and materials brought on record.

16. On our assessment of the evidence, we find that the PW-2 & PW-3, who are parents of the victim stated in their testimony that they went to the place of occurrence having heard hue and cry and had seen the victim as well as the accused in naked condition. But none of them had stated in their previous statement recorded under Section 161 CrPC, that they had seen the appellant and the victim in naked condition at the place of occurrence. According to PW-2, he was in his home at the time of the occurrence and having heard hue and cry, he rushed to the place of occurrence and had found the victim and the accused in naked condition. He further stated that having seen him, the accused put on his lungi and had fled the scene. He further stated that his wife came later following him; whereas, PW- 3, the wife of PW-2 deposed that at the time of occurrence, the PW-2 was not available in his home, rather he was at the market. According to her, having heard hue and cry, she went to the place of occurrence first in point of time, and had seen the victim and the accused both, in naked condition. She further stated that having seen her, the accused put on his 'gamocha' and had fled the scene. Again during cross examination, she stated that she got the information about the occurrence after half an hour. Therefore, if the evidence of PW-2 & PW-3 are read in juxta-position, it appears that the testimony of these two witnesses, who projected themselves as eye witness to the occurrence stood contradicted against each other on material facts. Though both of them stated in court that upon arrival at the place of occurrence, they have found the accused and the victim in naked condition, in their previous statement, none of them stated to have found the victim and accused in naked condition at the place of occurrence. Thus, the PW-2 and PW-3 not only stood contradicted with their previous statement on material facts, they also contradicted each other by making mutually destructive statement and thereby the PW-2 and PW-3 have belied each other's claim of being a witness to the occurrence. In view of the above, we are of the considered view that no credibility can be attached to the oral testimony of PW-2 and PW-3.

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17. In the FIR lodged by the PW-2, it was clearly mentioned that the occurrence was witnessed by PW-6, Liton Das and PW-8 Hemen Singha. However, the PW-8 in his evidence stated that he did not know anything about the occurrence. The PW-4, Padum Singha, stated in his evidence-in-chief that the occurrence was initially witnessed by PW-6, Liton Das, who had told him pointing to the incidence, that the appellant was doing some immoral act with the victim. She also stated to have seen the appellant committing rape on the victim. However, during cross examination she stated that she did not see the occurrence of rape, but she had only seen the accused running away from the place of occurrence. The PW-4 though, stated in court that she had seen the victim and the accused in naked condition, in her previous statement she did not state that she had seen the victim in naked condition, rather her statement before police was to the effect, that she tried to understand as to what has happened, but could not know anything as the victim did not respond to her queries.

18. The PW-6 Liton Das, stated in his evidence-in-chief that he had seen the accused running away from the side of Moinamati Sangha. He also stated to have heard that one lady had noticed the victim with the accused, who ran away from the place of occurrence. During cross examination, this witness also stated that he did not see the exact incident nor did he go to the place of occurrence or inside the Moinamati Sangha. He also admitted that he did not go near to the victim, nor did he meet the parents of the victim. According to PW-6, he only heard that one lady had seen the victim with the accused. Thus, the testimony of the PW-6 also appears to be hearsay. In view of the above facts and circumstances, the oral testimony of PW-4 & PW-6 also does not inspire confidence. A dispassionate scrutiny of the oral testimony of the PW-2, PW-3, PW-4 and PW-6 shows that none of them witnessed the occurrence, except having seen the accused running away by the PW-4 and PW-6. Once the oral testimonies of PW-2, PW-3, PW-4 & PW-6 are discarded, the prosecution is left with only the testimony of the victim.

19. On careful scrutiny of the oral testimony of the victim, we find that when at the first instance, she was examined in chief with the aid of the independent interpreter, she only stated by giving signs and gesture that the accused removed her clothes and touched her abdomen. However, learned trial court could not record her statement completely as she was not responding to the interpreter. But, when she was examined for the second time with the aid of her mother (PW-3), she had stated that the accused Page No.# 7/9

committed rape on her and after committing rape, he had run away. What we notice is that the victim could not communicate specifically the acts done by the appellant, inasmuch as, 'rape' is a legal or technical term which is defined in Section 375 IPC and the court has to decide whether particular sexual act or assault constitute rape or not. Evidently, the victim is deaf and dumb and as such there is no difficulty in understanding that commission of rape as recorded by the learned trial court with the aid of the mother, certainly did not fall from the mouth of the victim as she was not able to speak. The evidence was also not given in writing. Therefore, the statement attributed to the victim was certainly articulated by the mother from the signs and gesture made by the victim. However the signs made by the victim were not mentioned in the deposition. Section 119 of the Evidence Act provides the procedure, for recording evidence of a deaf and dumb witness. Section 119 of the Evidence Act reads as follows:

"119. Dumb witnesses.--A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence."

20. Section 119 of the Evidence Act requires that when a witness is unable to speak or communicate verbally may give his/her evidence in any other manner, in which he/she can make it intelligible, such as, in "writing" or by 'sign'. The proviso further lays down that when a witness is unable to communicate verbally, his/her statement can be recorded with the assistance of the interpreter or a special educator and when the statement is recorded with the assistance of interpreter or special educator, such recording of the statement shall be video-graphed. The proviso to Section 119 of the Evidence Act was incorporated by criminal law (amendment) Act, 2013. In the instant case the evidence was recorded in the year 2017. Therefore the court was under obligation to video-graph the recording of statement, when the victim adduced evidence by signs and the court recorded the statement with the assistance of the interpreter (mother). The purpose of video-graphing the recording of the statement is to enable the appellate or revisional court to assess the evidence properly. What is evident is that learned trial court did not record the evidence of the victim as per requirement of law. This apart 'rape' so far as the witness is concerned is a vague expression, unless the actual act done is brought on record it would be difficult for the court to decide as to what offence had been committed.

21. We have already noticed that the mother of the victim is not a witness worthy of placing reliance, Page No.# 8/9

inasmuch as, her own testimony is found to be unreliable. Apparently, the victim did not state anything beyond the removal of clothes and touching her abdomen while deposing for the first time with the help of independent interpreter. We also notice that the trial court while recording statement at the first instance noted down the signs made by the victim. The statement of the victim recorded for the second time with the aid of her mother to the effect that the accused committed rape, in our considered view does not inspire confidence, inasmuch as, no specific act done by the accused has been mention except the 'vague' term rape which also did not fall from the mouth of the victim. Evidently, the victim was subjected to medical examination on the same day, but the doctor did not find any sign of sexual intercourse. No doubt, medical report is not very satisfactory, inasmuch as, according to the doctor there was no sign of rape. Though it is none of the business of the doctor to ascertain whether victim was subjected to rape or not, rather the doctor being an expert is supposed to record his finding on the basis of his clinical or physical examination as to what he notice physically. Be that as it may, even if, the word 'rape' referred by the doctor is substituted by sexual intercourse, the medical evidence shows that there was no sign of sexual intercourse. Even there was no mention in the medical report (Ext.5), whether the hymen of the victim was torn or not. Though the doctor in his deposition stated that hymen was found torn, we found that such statement was given by the doctor from his memory, inasmuch as, the medical report was silent in this regard. Therefore, the testimony of the doctor that hymen was torn, which was not even mention in the medical report also hardly carries any weight. Therefore, in our considered view, though in the second part of the evidence of the victim recorded by the learned trial court with the aid of the mother, who tried to project that a rape was committed, is not believable, her evidence recorded at the first instance, through the independent interpreter to the effect that the appellant removed her cloth and touched her abdomen cannot be doubted, reason being that the trial court had also recorded the signs made by the victim from which it can be easily understood, that the appellant by removing the upper garment touched the abdomen of the victim. Therefore, we find no reason to disbelieve the testimony of the victim to the extent, that the accused touched the abdomen of the victim by removing cloth in a public place, which certainly amounted to outraging the modesty. Thus, having considered the evidence and materials in its entirety, we are of the considered opinion, that the prosecution evidence falls sort of proving the charge of rape under Section 376 (1)(2) IPC. However, on the facts and circumstances, more particularly, the testimony of the victim clearly establishes a charge of outraging modesty punishable under Section 354 IPC beyond reasonable doubt. Accordingly, we set aside the conviction of the appellant under Section 376 (1)(2) IPC, instead, we convict him under Section 354 IPC.

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22. Having regard to the fact that the victim, a deaf and dumb girl was subjected to sexual assault by way of outraging her modesty by the accused taking advantage of her disability, we are not inclined to show any leniency in awarding punishment to the accused. Accordingly, we are of the considered opinion, that the maximum punishment of imprisonment for 5 years would commensurate with the gravity of the offence in the present case. Accordingly, we sentence the accused to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 1000/-, in default, to undergo further simple imprisonment for 15 days. The period undergone during investigation and trial shall stand set off.

23. The appeal stands partly allowed to the extent indicated above.

24. Send back the LCR.

                                                                JUDGE                           JUDGE


Comparing Assistant