Shiyab Uddin v. State Of Assam .

Achintya Malla Bujor Barua, J.:— This appeal is directed against the judgment and order dated 07.06.2014 passed by the learned Additional Sessions Judge, (FTC) Karimganj in Sessions Case No. 47/2011, convicting the accused appellant under Sections 367(2)(f)/511 of the IPC and sentencing him to undergo rigorous imprisonment (RI for short) for seven years and a fine of Rs. 35,000/-.

2. Heard Ms. Mona Mallik, learned Amicus Curiae appearing for the appellant. Also heard Mr. N Kalita, learned Additional Public Prosecutor, Assam for the State respondents.

3. The prosecution case in brief is that an ejahar was lodged by one Abdul Hannan on 22.02.2011 stating that on 21.02.2011 at about 5 P.M, in the evening his 11 years old daughter had gone out to bring back the cows from the field. When the cow had returned back but his daughter did not return along with the cow, the informant went out looking for his daughter and started calling her by her name. Then the informant saw the accused person coming out of the jungle and was running away. Thereafter informant had seen his daughter, who was crying. The daughter of the informant told him that the accused person by showing fear upon her with a dao had forced her inside the jungle and raped her by gagging her mouth.

4. In course of the investigation, the statement of the victim was also recorded under Section 164 Cr. P.C, on 24.02.2011 In her statement under Section 164 Cr.PC, the victim had stated that while she was returning in the evening along with the cow, the accused person forcefully took her to the nearby jungle and when she started screaming, the accused had gagged her mouth and had also threatened to hack her. In the statement made under Section 164 Cr. P.C, the victim had also stated that the accused person had opened her clothes and had committed the offence of penetrative sexual assault as provided under Section 375 IPC. It was also stated that the victim, thereafter, heard her father calling her and then the accused ran away from the place of occurrence.

5. The informant was examined as PW-2 in course of the trial. In his evidence, the said PW-2 stated that on the date of the occurrence his 11 years old daughter had gone out to bring back the cow. But when the cow had returned back but his daughter did not, the PW-2 went out to search for his daughter. Then he saw that the accused person coming out of the jungle with a dao in hand and was running away. The PW-2 also stated that his daughter also came out following the accused and she was crying. PW-2 stated that his daughter told him that the accused person had forced her inside the jungle against her will by threatening her and had committed the offence of penetrative sexual assault as provided under Section 375 IPC. PW-2 further states that on the next date, an ejahar was lodged before the Police.

6. PW-1, the victim in her evidence has stated that while she was returning in the evening at about 5 P.M, along with the cow, the accused persons had forcefully taken her inside the jungle and had committed the offence of penetrative sexual assault as provided under Section 375 IPC by opening her clothes and also by threatening her with a dao.

7. During cross examination of PW-1, the defence could not bring out any evidence which would contradict the evidence of the victim, PW-1.

8. PW-4. Dr. Lipi Deb was the Medical Officer, who attended the victim in the Karimganj Civil Hospital, was examined as PW-4. In her evidence, the Medical Officer states that there was no mark of injury or violence in the private parts of the victim. It is also stated that the victim has 22 teeth in total and that she has not attained her puberty. The evidence of PW-4 reveals no such offence as described under Section 375 IPC. According to the medical report, on examination of the private part of the victim girl, it is revealed that no such act had taken place as described under Section 375 of the IPC. But at the same time, certain dead spermatozoa were found in and around the private parts, which indicates that certain sexual activity was done on the victim girl.

9. Ms. Mona Mallik, learned Amicus Curiae submits that the medical report clearly reveals that no such act as described under Section 375 of the IPC was done on the victim girl and, therefore, it cannot be said that the accused person had committed an offence as punishable under Section 375 of the IPC.

10. Mr. N Kalita, learned Additional Public Prosecutor, on the other hand, submits that even though the medical report may indicate that no act as described under Section 375 had taken place, but still the accused person is liable to be convicted under Section 511 of the IPC read with Section 376 IPC.

11. Although the medical report as well as the evidence of the PW-4 gives a clear indication that the requirement of Section 375 of the IPC may not have taken place but the evidences on record, more particularly, the medical report, the evidence of the PW-4, Doctor, as well as the evidence of PW-1, victim and PW-2, the father of the victim clearly reveal that there was at least an attempt by the accused person to commit the offence as described under Section 375 of the IPC.

12. The evidence of the Medical Officer as well as the medical report which says that the dead spermatozoa were found in and around the private parts of the victim is a clear indication that although the act of penetrative sexual assault as required under Section 375 IPC, may not have taken place, but still there was a definite attempt by the accused person to commit the offence as described under Section 375 IPC.

13. The aforesaid medical evidence on being read along with the evidence of the PW-2 which clearly states that he had seen the accused person coming out of the jungle and was followed by his 11 years old daughter, who was crying at that moment and who had told him that the accused person had forcefully dragged her inside the jungle by showing fear with a dao and had committed an offence as described under Section 375 IPC gives a clear indication that it is the accused person alone, who had committed such offence on the victim.

14. Further the evidence of PW-1, being the victim girl, also clearly indicates that the accused person had forcefully dragged her inside the jungle by showing fear with a dao and had removed her clothes and performed the act as described under Section 375 IPC also establishes the fact that it was the accused alone, who had committed the offence as described under Section 375 IPC.

15. On a conjoint reading of the aforesaid evidence, it is conclusively proved that it is the accused person alone who had attempted to commit the offence described under Section 375 IPC on the victim girl. As the medical report gives an indication that the act may not have been done as provided under Section 375 IPC, but, at the same time, the medical evidence as well as the evidence of PW-4 gives a clear indication even though the act as required under Section 375 may not have been done but at the same time a definite attempt was made on the victim girl to commit such offence.

16. In such view of the matter, this Court is of the considered view that even though the offence may not have been committed in the manner as required under Section 375 IPC, but at the same time there was a definite attempt by the accused person to commit such an offence on the victim girl, and, accordingly, the provisions of Section 511 of the IPC would be attracted in the present case.

17. Section 511 of the IPC provides that whoever attempts to commit an offence punishable with imprisonment for life, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall 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 one-half of the longest term of imprisonment that may be provided for the offence…..”

18. Accordingly, this Court is of the view that the accused person having made a definite attempt to commit the offence as described under Section 375 IPC on the victim girl, the accused person is at least guilty of committing an offence described under Section 511 of the IPC.

19. The maximum sentence for committing an offence under Section 375 IPC being imprisonment for life as provided under Section 376 IPC, the accused person is liable to be convicted for an offence of attempting to commit rape and be sentenced to one-half of the sentence of life imprisonment.

20. In such view of the matter, this Court does not find any infirmity in the judgment and order of the learned Additional Sessions Judge, (FTC) Karimganj in Sessions Case No. 47/2011. Accordingly, the appeal of the accused appellant stands dismissed.

21. Before parting with the case, this Court would like to appreciate the services rendered by Ms. Mona Mallik, learned Amicus Curiae in extending her valuable assistance in arriving at a decision as aforesaid. Accordingly, she is entitled to a professional fee of Rs. 7,500/- (Rupees Seven Thousand Five Hundred) only.

22. Send down the lower court record.