Gauhati High Court
Crl.Rev.P./244/2012 on 3 September, 2025
GAHC010182432012
2025:GAU-AS:11932
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL.REV.PET.NO. 244 OF 2012
1. Md. Jiaur Rahman @ Kala
Son of Md. Akbar Ali
R/o Dorongi Gaon, P.S. Bhuragaon
Dist- Morigaon, Assam.
2. Md. Taijuddin @ Saru
Son of Md. Jalauddin (Kala)
R/o Dorongi Gaon, Bhuragaon
Dist- Morigaon, Assam.
........Petitioners
-Versus-
The State of Assam,
Represented by the Addl. P.P, Assam.
........Respondent
Page 1 of 21
-BEFORE-
HON'BLE MRS. JUSTICE SHAMIMA JAHAN
For the Petitioners : Mr. M.K. Hussain, Advocate
For the Respondent : Mr. R.J. Baruah,
Addl. Public Prosecutor, Assam.
Date of Hearing : 28.08.2025.
Date of Judgment : 03.09.2025.
JUDGMENT & ORDER (CAV)
Heard Mr. M.K. Hussain, learned counsel for the
petitioners. Also heard Mr. R.J. Baruah, learned Addl. Public
Prosecutor for the State respondent.
2. This is a Criminal Revision Petition filed against the
Judgment & Order of conviction by both the Courts of Assistant
Sessions Judge, Morigaon as well as Sessions Judge, Morigaon. By
Judgment & Order dated 12.08.2011, the learned Assistant
Sessions Judge, Morigaon convicted the petitioners under Section
376 IPC read with Section 511 IPC and sentenced the accused
persons for Rigorous Imprisonment for 4 (four) years each with a
fine of Rs. 2,000/- and in default of the payment of fine Simple
Imprisonment for 2 (two) months each. The said conviction and
sentence of the petitioners was challenged before the learned
Sessions Judge, Morigaon by filing a Criminal Appeal being
Page 2 of 21
Crl.A.No. 25/2011, who after hearing the learned parties upheld
the conviction order passed by the Assistant Sessions Judge,
Morigaon and also the sentence imposed upon them vide Order
dated 28.4.2012. Against the said conviction and sentence, the
instant Criminal Revision Petition is preferred by the petitioners
for setting aside of the same, under Section 401 of Cr.PC.
FACTS
3. The FIR dated 06.07.2009 lodged by the victim reveals
that on the same day at around 1:30 p.m, the accused persons
restricted her on the public road while she was on her way back
from College, gave bad signal and pulled her on the said road,
due to which the victim alleged that her modesty was lost. She
also stated in the FIR that the petitioners ran away when she
raised hue and cry and that she has witness to the incident. On
receipt of the said ejahar, the Police registered the same under
Section 341/354/34 IPC. The Police thereafter conducted the
investigation, got the statement of the victim recorded under
Section 164 Cr.PC, got the victim examined by the Doctor and on
a prayer to add Section 376 of the IPC, which was allowed by the
Trial Court, the Police submitted the Charge-sheet against the
petitioners under Section 341/376/34 IPC. Thereafter, on
completion of the necessary requirements, the learned Trial Court
framed the charge against the petitioners under Section 376 of
the IPC read with Section 511 of the IPC and conducted the trial.
4. The prosecution examined 11 witnesses and the
petitioners thereafter were examined under Section 313 of the
Cr.PC and on conclusion of the trial, the learned Assistant
Sessions Judge, Morigaon convicted and sentenced the petitioners
as mentioned above and the Appellate Court, i.e., the learned
Sessions Judge, Morigaon on an appeal being filed up-held the
order of theAssistant Sessions Judge, Morigaon as stated above.
EVIDENCE:
5. The victim was examined as PW-1 and she stated before
the Trial Court that on 06.07.2009 at around 1:30 p.m, while she
was returning from her College towards her house, the petitioners
caught her from the backside and took her to a nearby jungle.
She thereafter stated that the petitioners made her naked and
that both of them committed sexual intercourse with her one after
the other and that she was also threatened by them that if she
makes any alarm, they will kill her. She also stated that the
petitioners had gagged her mouth and as such, she could not
shout and that one of the petitioner namely Taijuddin bit her
breast. She thereafter stated that at that juncture, one tribal
person hearing her scream came near her and seeing him, the
petitioners escaped by snatching her golden chain and golden ring
and fled from the place. She thereafter stated that the villagers
reached the place of occurrence and she was taken for treatment
to a nearby house from where she was taken to her own house.
6. The victim was cross-examined and during the same,
she stated that she was not aware what was written in the ejahar
and also that she does not remember what she told to write in
the same and as such, she cannot tell whether the writings in the
ejahar were true or false.
7. The victim was examined by the Magistrate and her
statement was recorded under Section 164 of the Cr.PC. In the
said statement, she stated that on the day of occurrence, while
she was coming back from her College and was going towards her
home, the petitioners came near her and caught her from the
backside and took her inside the jungle and after taking her, the
petitioners had raped her there. She also stated that with her
clothes they gagged her mouth so that she cannot shout and she
was threatened with weapon and that one of the petitioner
namely Taijuddin bit her breast. She also stated that she
somehow shouted and that one tribal person came and rescued
her and that the petitioners snatched her chain and ring while
fleeing.
8. During the statement of the victim before the Police, the
victim stated that on the day of occurrence, while she was coming
from the College and was going towards home, two boys came
near her and caught her from the backside and took her to the
nearby jungle. She thereafter stated that she raised hue and cry
and on hearing the same, two persons came and seeing them,
the petitioners fled from the scene and she also stated that when
the petitioners were pulling her, she got injured on her backside
and that the name of the two boys were the petitioners. It is as
such seen that there is discrepancy in the statement of the victim
before the authorities concerned. Her statement before the Trial
Court and the Magistrate seems to be consistent but her
statement before the Police was not in terms of her statement
before the other two authorities.
9. In view of the said inconsistency, it is a settled position
of law that the corroborations from other evidence on record
should be sought for and as such, the statement of other
witnesses may be reproduced in brief below.
10. PW-2 was a villager and he stated before the Trial Court
that at 1:30 p.m. on the said day of occurrence, one fisherman
told him that two persons had taken a girl to a nearby jungle, for
which there was an uproar and on hearing the same, this witness
went to the place of occurrence and found the victim girl in the
house of one of the villagers and on being asked, the victim said
that two boys took her to a nearby jungle and committed bad act
on her.
In his cross-examination, he however stated that the
victim could not name the accused person but one Babul told
their names.
11. PW-3 is the brother of the victim and he stated that on
being informed, he reached the place of occurrence and found his
sister lying in the house of one Nosor Ali in an ailing condition and
took her to his own house. This witness also stated that one Bulu
Barman and one Kushal Boro had rescued his sister.
12. PW-4 stated that while he was in his house, he saw the
petitioners passing through the road and also saw some persons
running towards the jungle and when he went out and found the
victim on the road, he asked her and the victim told him that two
persons caught her hands.
13. The person who was stated to have rescued the victim is
examined as PW-5 and he stated that while he was returning
from the market, he heard noise from the jungle and he saw the
girl coming out of the said jungle and on asking her, she said that
two boys took her into the said jungle.
14. PW-6 is the scribe and he stated that he wrote in the
ejahar whatever was stated by the victim.
15. PW-7 is a hearsay witness.
16. One another important witness is PW-8, who is stated to
be the eye witness in the instant case. This witness stated that on
the day of occurrence, he saw the girl, i.e., the victim in a nearby
jungle raising hue and cry and he saw two persons forcibly
holding the victim in the said jungle and that he could identify one
of the accused. He thereafter stated that the accused persons ran
away from the said place of occurrence. This witness also stated
that the victim told him that had he not come, the petitioners
would have killed her.
17. The Doctor who examined the victim deposed as PW-9
and she stated that she examined the victim on 10.07.2009 and
on examination, she found the hymen absent, however, she did
not find any external mark of violence on the victim's body and
that no evidence of recent sexual intercourse was found.
18. PW-10 is the Investigating Officer and that he in the
usual manner conducted the investigation by sending the victim
for medical examination, by sending the victim for recording her
statement before the Magistrate etc.
19. PW-11 is another Investigating Officer, who however on
finding that the investigation is complete submitted the Charge-
sheet against the petitioners.
20. After completion of the examination of the prosecution
witnesses, the petitioners were examined under Section 313 of
the Cr.PC and that all the incriminating circumstances were put to
both the petitioners and in reply to the same, the petitioners
simply denied all the said circumstances. Thereafter, on
completion of the trial, the learned Trial Court on careful
appreciation of the evidences on record, reached to a finding that
the oral evidence of the victim that on the day of occurrence, the
petitioners caught her and took her to a nearby jungle and that
they undressed her and attempted to commit forceful sexual
intercourse with her stands proved. However, the fact of sexual
intercourse and penetration was not stated to have been proved
by examining the evidences. The learned Trial Court concluded
that attempt to rape has been proved and as such, on the said
basis, both the petitioners were convicted and sentenced under
Section 376 read with Section 511 IPC and was incarcerated as
mentioned above.
21. The petitioners have preferred an appeal before the
learned Sessions Judge, Morigaon by filing a Criminal Appeal
being Crl.A. No. 25/2011. The learned Appellate Court had
examined the statement of the victim before the Magistrate where
she had stated that the petitioners took her to a nearby jungle
while she was coming back from the College and that by gagging
her mouth, they committed raped on her one after the other and
one of the petitioners had also bit her breast and that one tribal
person came and rescued her. The Appellate Court had also
observed that during cross-examination of the victim, she said
that she was confused at the time of incident and that she was
not aware as to what she had stated during lodging of the FIR, to
which the learned Appellate Court further observed that rape
being a question of embarrassment for a women, she did not
disclosed the same while lodging the FIR.
22. The learned Appellate Court had also relied on the
deposition of PW-5, who stated that on hearing the noise from
the jungle, when he went inside, the petitioners ran away
therefrom and that he saved the girl from further damage. The
learned Appellate Court also placed reliance on PW-4, who stated
that he saw the boys running away from the place of occurrence
while he was in his house. The learned Appellate Court, as such
considered that this evidence corroborated the evidence of the
victim and as such, the incident inspired confidence in the Court.
The learned Appellate Court also placed reliance on the evidence
of PW-8, who stated that on hearing hue and cry, when he went
inside the jungle, he saw the petitioners holding the victim and on
seeing him, the petitioners fled away from the scene and that on
meeting the victim, she immediately reported him the incident
and further said that had he not come to the place of occurrence,
they would have killed her.
23. The learned Sessions Court finding the evidence of PW-8
as a chance evidence observed the same reliable and acceptable.
However, the learned Court had observed that the medical
evidence in the instant case does not support the commission of
rape. The learned Court on further appreciation of the evidence at
the appellate stage, held that as there is nothing in the medical
evidence on penetration as well as on violence upon the victim,
the attempt for commission of rape however cannot be ruled out
and as such, the Appellate Court had concluded that the Trial
Court had rightly passed the Judgment & Order convicting the
accused. The learned Appellate Court had also observed that
although it is stated by the defence counsel that the victim did not
narrate the complicity of the accused properly and that she had
given a false and a concocted story but the evidence of PW-5 and
PW-8 showed that the accused persons were seen from the
backside and they were also seen running away from the place of
occurrence and as such, the Appellate Court reached the
conclusion that it had no other option but to dismiss the appeal
and accordingly, the appeal was dismissed and the conviction and
sentence of the petitioners was upheld. It is this Judgment &
Order by the Sessions Judge as well as the Judgment & Order
passed by the Trial Court that is challenged before this Court by
filing the instant Criminal Revision Petition.
SUBMISSIONS
24. Mr. M.K. Hussain, learned counsel appearing for the
petitioners submits that the statement of the victim is inconsistent
not only with her own statement before the Magistrate and the
Police but also in respect of the statement made by the other
witnesses. He submits that the informant, who lodged the ejahar
on the version of victim, had only stated that the petitioners
restricted her on the road and gave her bad signal and pulled her
on the road, due to which her modesty was lost and that when
she raised hue and cry, the petitioners deserted her. However, in
her statement before the Trial Court and the Magistrate, she
stated that the petitioners taking her inside the jungle committed
raped upon her and that her mouth was gagged by the petitioners
and that she could not shout and also that one tribal person came
and rescued her.
25. The learned counsel also stated that PW-4, who was
stated to have seen the petitioners fleeing from the scene had
infact stated that he saw the accused persons passing through
the road. He also stated that PW-5, whose statement was relied
on by the Courts had simply stated that on hearing the hue and
cry from inside the jungle, he saw a girl coming out of the same,
who told him that the petitioners took her into the jungle. The
learned counsel also submitted that although PW-8, who stated
that he saw the petitioners holding the victim from the backside
and that said witness was able to identify one of the accused
person cannot be a vital witness to the said occurrence, inasmuch
as, the said witness had seen the accused persons from the
backside and it is not possible for him to identify the accused
persons as the petitioners. He also stated that the medical
evidence is not favourable to the prosecution, where it is opined
that neither any violence was seen on the victim nor any recent
sexual intercourse could be evident from the victim.
26. The learned counsel also submitted that in the FIR, the
victim simply stated that the petitioners had pulled her on the
road and that they gave bad signal which also does not prove the
offence of attempt to rape. As such, he submits that the
Judgment & Order of both the Courts below requires interference
and the same may be set aside and quashed.
27. Mr. R.J. Baruah, learned Addl. Public Prosecutor had
submitted that the evidence of PW-1, i.e., the victim, PW-4, who
saw the accused persons running away from the place of
occurrence, PW-5, who saw the victim coming out of the jungle
and PW-8, who saw the accused persons holding the victim from
behind are evidence which proves the prosecution case. He also
relied on the statement of the victim under Section 164 of the
Cr.PC, wherein the victim had stated that she was pulled inside
the jungle and was raped by showing a dagger and that her
breast was injured by one of the petitioners. The learned Addl.
Public Prosecutor as such submits that the statement of the victim
was consistent before the Police, the Magistrate , the Trial Court
to the effect that when she was coming back from her College
and was on her way to her home, the accused persons, i.e., the
petitioners came and pulled her towards the jungle and tried to
commit rape on her but on timely intervention of the said tribal
person, the victim could be rescued and as such, he submits that
the attempt to rape has been substantially proved. As such, he
submits that the impugned Judgment & Order is not liable to be
interfered more so in its revisional jurisdiction. These are the
submissions of the learned counsels.
ANALYSIS
28. This application is a Criminal Revision Petition preferred
under Section 401 of the Cr.PC, 1973. Under Section 401 of the
Cr.PC, the High Court's powers of revision is provided for and it is
reflected in the said Section that in the case of any proceedings,
the record of which has been called for by itself or which
otherwise come to its knowledge, the High Court may in its
discretion, exercise any of the powers conferred on the Court of
appeal by Section 386 Cr.PC, which provides for powers of the
Appellate Court or other Sections of law. The High Court under
the said provision can up-hold, alter or set aside the conviction
based on the merits of the case but the High Court cannot
normally re-appreciate evidence. The High Court should interfere
only if the Lower Court's decision is perverse, illegal or based on
incorrect application of law and that in cases where the Lower
Court findings are wholly unreasonable and unsupported by the
evidence.
29. In the case at hand, it is noticed that the evidences as
far as the attempt to rape is concerned, are there on record and
the learned Trial Court had adequately appreciated the same,
which was again up-held by the Appellate Court.
30. In the FIR lodged by the victim, the victim stated that
the petitioners had pulled her on the road after giving bad signal
and the same would imply that the petitioners had ill motive
towards the victim. In her statement before the Police, she stated
that the petitioners after gagging her mouth and catching her
from behind, took her inside the jungle and when she raised hue
and cry, she was rescued. Before the Magistrate also, the victim
stated that the petitioners restrained her on road and forcibly by
catching her from behind, took her inside the jungle and in her
statement before the Trial Court, she stated the same facts to the
effect that she was caught from behind and was taken inside the
jungle.
31. Although the victim had made inconsistent statements
before the different authorities as far as the offence of rape is
concerned, the same would not be fatal in the instant case,
inasmuch as, the other witnesses who had deposed had stated
that the victim was seen coming out of the jungle and one of the
witness had also seen the two accused persons holding the victim
from behind. This evidences show that the victim was in fact
taken inside the jungle by the petitioners. In her statement before
the Police, the victim did not say that the accused persons, i.e.,
the petitioners had raped her but before the Trial Court and the
Magistrate, she said that the accused persons had, after
undressing her, raped her. Although, in these facts, it is a settled
position of law that the victim's version of her story could not
inspire confidence but in view of the statement of the other
witnesses, who had seen the accused persons with the victim
trying to do some bad act cannot make the victim's statement
unreliable and untrustworthy.
32. Contradictions under Section 145 of the Evidence Act is
also proved in the instant case when the contradictions were first
put to the victim during her cross-examination and was
subsequently proved by placing the same before the Investigating
Officer. However, with regard to PW-8, although identification of
petitioners was an issue wherein he stated before I.O. that he
does not know the petitioners but there is no contradiction as far
as seeing the petitioners holding the victim inside the jungle is
concerned. Further, there is also no contradiction as far as the
statement of PW-5 is concerned, who had seen the victim coming
out of the jungle. It is also noticed that the identification of the
accused persons is nowhere challenged during the cross-
examination of the witnesses and neither the petitioners have
taken the said ground, who on examination under Section 131 of
the Cr.PC had simply denied the allegations.
33. In view of the same, the allegations of attempt to rape is
proved by the evidence on record. The Supreme Court has
emphasized in the catena of decision that the High Court should
interfere only when the Lower Court's findings are grossly
erroneous or has resulted in miscarriage of justice. Revisional
power are not meant to correct minor errors or reweigh evidence.
34. In State of Maharashtra, Vs. Jag Mohan Singh,
reported in (2004) 7 SCC 659, the Apex Court had held at
paragraph No. 22 as follows:-
"22. The Revisional Court is empowered to exercise all the powers
conferred on the Appellate Court by virtue of the provisions
contained in Section 410 CrPC. Section 401 CrPC is provision
enabling the High Court to exercise all powers of Appellate Court, if
necessary, in aid of power of superintendence or supervision as a
part of power of revision conferred on the High Court or the Session
Court. Section 397 CrPC confers power on the High Court or
Sessions Court, as the case may be, "for the purpose of satisfying
itself or himself as to the correctness, legality or propriety of any
finding, sentence or order, recorded or passed and as to regularity
of any proceeding of such inferior court." It is for the above
purpose, if necessary, the High Court or Sessions Court can
exercise all appellate powers. Section 401 CrPC conferring powers
of Appellate Court on the Revisional Court is with the above limited
purpose. The provisions contained in Section 395 to Section 401
CrPC, read together, do not indicate that the revisional power of
the High Court can be exercised as a second appellate power. 23.
On this aspect, it is sufficient to refer to and rely on the decision of
this court in Dulichand v. Delhi
Administration MANU/SC/0113/1975 : 1975CriLJ1732 in
which it is observed thus:- "The High Court in revision was
exercising, supervisory jurisdiction of a restricted nature and,
therefore, it would have been justified in refusing to re-appreciate
the evidence for the purpose of determining whether the concurrent
finding of fact reached by the learned Magistrate and the learned
additional Sessions Judge was correct. But even so the High Court
reviewed the evidence presumably for the purpose of satisfying
itself that there was evidence in support of the finding of fact
reached by the two subordinate courts and that the finding of fact
was not unreasonable or perverse."
35. It is as such seen from above, that Section 401 Cr.PC
confers limited power on the Revisional Court but yet the High
Court can review the evidence presumably for the purpose of
satisfying itself that there is enough evidence.
36. In the instant case, the Trial Court had reached the
finding that the fact of sexual intercourse and penetration has not
been proved but the attempt for the same was writ large in the
evidence thereof and in the Appellate Court, a conclusion is also
reached that there is nothing to hold that penetration or violence
was inflicted upon the victim but the attempt was very much
present in the same and as such, the offence under Section 376
IPC read with Section 511 IPC is very much proved by the
evidence on record.
37. Further, under Section 401 of the Cr.PC, as it is provided
that the High Court in its power of revision can exercise any
powers conferred by Section 386 of the Cr.PC and Section 386 of
the Cr.PC provides that the sentence can be altered. This Court is
of the opinion that looking at the gravity of the offence and the
inconsistent statement of the victim, the sentence may be altered.
38. Section 401 of Cr.PC and Section 386 of Cr.PC may be
reproduced below:-
401. High Court's powers of revision.
(1) In the case of any proceeding the record of which has been
called for by itself or which otherwise comes to its knowledge, the
High Court may, in its discretion, exercise any of the powers
conferred on a Court of Appeal by Sections 386, 389, 390 and
391 or on a Court of Session by Section 307 and, when the
Judges composing the Court of revision are equally divided in
opinion, the case shall be disposed of in the manner provided by
Section 392.
(2) No order under this section shall be made to the prejudice of
the accused or other person unless he has had an opportunity of
being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High
Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is
brought, no proceeding by way of revision shall be entertained at
the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for
revision has been made to the High Court by any person and the
High Court is satisfied that such application was made under the
erroneous belief that no appeal lies thereto and that it is
necessary in the interests of justice so to do, the High Court may
treat the application for revision as a petition of appeal and deal
with the same accordingly.
386. Powers of the Appellate Court.-After perusing such record
and hearing the appellant or his pleader, if he appears, and the
Public Prosecutor, if he appears, and in case of an appeal under
section 377 or section 378, the accused, if he appears, the
Appellate Court may, if it considers that there is no sufficient
ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order of acquittal, reverse such order
and direct that further inquiry be made, or that the accused be
re-tried or committed for trial, as the case may be, or find him
guilty and pass sentence on him according to law;
(b) in an appeal from a conviction
(i) reverse the finding and sentence and acquit or discharge
the accused, or order him to be re-tried by a Court of
competent jurisdiction subordinate to such Appellate Court or
committed for trial, or alter the finding, maintaining the
sentence, or
(ii) with or without altering the finding, alter the nature or the
extent, or the nature and extent, of the sentence, but not so as
to enhance the same;
(c) in an appeal for enhancement of sentence
(i) reverse the finding and sentence and acquit or discharge
the accused or order him to be re-tried by a Court competent
to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the
extent, or the nature and extent, of the sentence, so as to
enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such
order;
(e) make any amendment or any consequential or incidental
order that may be just or proper;
Provided that the sentence shall not be enhanced unless the
accused has had an opportunity of showing cause against such
enhancement;
Provided further that the Appellate Court shall not inflict
greater punishment for the offence which in its opinion the
accused has committed, than might have been inflicted for that
offence by the Court passing the order or sentence under appeal."
39. Further, in the instant case, the conviction and
punishment has been awarded for attempt to rape by taking
recourse to Section 376 read with Section 511 of the IPC and
Section 511 of the IPC provides that fine can be an alternative
punishment provided for the substantive offence. Section 511 of
the IPC may be reproduced below:-
"511. Punishment for attempting to commit offences
punishable with imprisonment for life or other
imprisonment.-Whoever attempts to commit an offence
punishable by this Code with imprisonment for life or
imprisonment, or to cause such an offence to be committed, and in
such attempt does any act towards the commission of the offence,
shall, where no express provision is made by this Code for the
punishment of such attempt, be punished with imprisonment of
any description provided for the offence, for a term which may
extend to one-half of the imprisonment for life or, as the case may
be, one-half of the longest term of imprisonment provided for that
offence, or with such fine as is provided for the offence, or with
both."
40. As such, in view of the above discussion, the conviction
and sentence of the petitioners has been interfered with and is
altered to a punishment with a fine of Rs. 30,000/- under Section
376 read with Section 511 of the Indian Penal Code and in default
of payment of fine, the petitioner has to undergo Simple
Imprisonment for 1 (one) month. The said amount may be
deposited in the State Legal Services Authority.
41. The Criminal Revision Petition accordingly stands
disposed of.
42. Send back the Trial Court Record.
JUDGE
Comparing Assistant
