Partly allowed

Manzur Rahman Barbhuiya @ Manjur Rahman Barbhuiya v. the State of Assam and Anr.

Gauhati HC6 Sept 2019Crl.A./39/2019

Case brief

AI extract

What is this about?

In an appeal against a rape conviction under Section 376 IPC, the High Court upheld the finding of guilt despite lack of medical evidence of injury. The Court rejected arguments for acquittal based on a victim's affidavit of coercion, holding rape is non-compoundable, and reduced the sentence from ten to seven years.

What did the court decide?

The appeal partly allowed; conviction upheld; sentence reduced to seven years imprisonment and fine of Rs.10,000.

Manzur Rahman Barbhuiya @ Manjur Rahman… — Murder and Culpable Homicide | Gauhati HC (2019)

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GAHC010006502019

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

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Case No. : Crl.A. 39/2019

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1:MANZUR RAHMAN BARBHUIYA @ MANJUR RAHMAN BARBHUIYA S/O HAJI NOOR UDDIN BARBHUIYA, RESIDENT OF HAILAKANDI TOWN, WARD NO. 2 PO, PS AND DIST HAILAKANDI, ASSAM

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VERSUS

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1:THE STATE OF ASSAM AND ANR TO BE REPRESENTED BY PP ASSAM

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2:SMTI. DIPALI MALLIK D/O LATE SANAT MALLIK @ SANAT VILLAGE BILAIPUR MUNSICHERRA PO LALA DIST HAILAKANDI ASSAM 78816

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Advocate for the Petitioner : MR. A M BARBHUIYA

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Advocate for the Respondent : MR. B B GOGOI, ADDL PP, ASSAM

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BEFORE

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HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

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Date of Hearing : 27.08.2019

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Date of Judgment : 06.09.2019

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JUDGEMENT AND ORDER (CAV)

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Heard Mr. A. M. Barbhuiya, learned counsel appearing for the appellant as well as Mr. B. B. Gogoi, learned Additional Public Prosecutor for the State respondent.

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The present appeal has been preferred against the judgment and order dated 03.12.2018 passed by the learned Sessions Judge in Sessions Case No.31/2018 whereby the accused/appellant is convicted under Section 376 IPC and sentenced to RI for 10 years and pay a fine of Rs.10,000/-, in default RI for 3 months with further direction to pay Rs.50,000/as compensation to be paid by the District Legal Services Authority under Section 357 (A) Cr.P.C.

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The prosecution case in brief is that on 26.01.2018, the victim lodged an FIR with the Officer-in-charge, Hailakandi Police Station alleging that in the night of 26.01.2018, at about 6.30 PM while she was returning from Hailakandi Rabindra Mela towards her rented house, the accused persons Manjur Rahman Barbhuiya and another unknown person appeared with an Alto vehicle and forcefully lifted her in the vehicle and took her to an unknown place and committed rape upon her. Thereafter, the accused person assaulted her by means of fists and blows and leaving her alone left the place.

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After receipt of the FIR Hailakandi P.S. Case No.73/2018 was registered under Sections 376(D)/323 IPC. During investigation, police visited the place of occurrence, prepared rough sketch map thereof, recorded the statements of witnesses, got the victim medically examined and after completion of investigation submitted charge sheet against the accused person under Section 376 IPC. The accused entered his appearance before the court and denied the charge framed under Section 376 IPC and claimed to be tried.

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During the course of the trial prosecution examined four witnesses and the defence examined none. Plea of defence is of total denial. The accused was examined under Section 313 Cr.P.C. wherein he has denied all the incriminating materials against him. At the conclusion of the trial, the learned trial court found and hold the accused guilty under the said Section of law and convicted and sentenced as aforesaid. Hence, the appeal.

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I have considered the submission of the learned counsel for the appellant who has primarily attacked the testimony of the victim as well as the other witnesses on the ground that the conduct of the victim is not beyond doubt and she has raised the false allegation at

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the behest of the other witness Asma Begum Barbhuiya who is the stepmother of the accused/appellant with whom the accused has land dispute. It is further contended that there is no other supporting evidence apart from the evidence of PW2. Despite the fact that there are other co-tenants resided in the premises of PW2 and no other person from the locality nearby the place of occurrence has been examined by prosecution as well as the evidence of Medical Officer has also not supported the allegation of the victim, i.e. there was no evidence of recent sexual intercourse nor any mark of injury on the person of the victim. Further, it has been contended that the victim in her FIR has implicated two accused persons but in course of trial, she has stated about the present accused/appellant only. Over and above, the appellant has relied upon the affidavit filed by the victim before this Court to the fact that due to serious land dispute between the accused and his father and stepmother, she filed the above case under the pressure of the stepmother of the accused person and she has no objection if the accused is acquitted from the charge.

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The learned counsel for the respondent has vehemently contended that such a contention raised by the appellant is unfounded as the evidence on record does not reflect that there was any such land dispute or enmity between the stepmother/PW2 and the accused/appellant nor there is anything to show that the victim filed the case under the pressure of PW2. Similarly, it is also contended that for non-finding of mark of injury or mark of recent sexual intercourse by the Medical Officer, the court cannot brush away the evidence of victim which is otherwise found to be cogent and convincing and supportive by the other evidence on record including the I/O.

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Due consideration is given to the verbal submission of both the parties. The learned counsel for the appellant has mush stress upon the affidavit so filed by the victim/respondent No.2 that the case was filed due to misunderstanding and under pressure. Reliance has been placed upon the decision of Narender Kumar vs State of (NCT of Delhi), (2012) 7 SCC 171, Arun Ch. Bora vs State of Assam, 2001(1) GLT 275, Parimal Nath vs State of Assam, 2003 (2) GLT 150 to submit that such a settlement between the parties can be accepted and the accused can be acquitted on the benefit of doubt.

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Pursuant to the submission, this Court has also gone through the evidence on record. The victim/PW1 in her evidence has stated that she knew the accused person who is the son of Noor Uddin Barbhuiya and she resides in the rented premises of the said Noor Uddin. The accused resided in his old house and used to visit the house of his father frequently. On

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26.01.2018, at 6.30 PM while she was returning from Rabindra Mela, Hailakandi on foot, when she reached near the Civil Hospital, the accused Manjur came with an Alto vehicle being driven by its driver and asked her to get into the vehicle but she told him that she was about to reach her house and there was no need for getting into the vehicle. Then the accused pressed her mouth and dragged her inside the vehicle and took her 1/2 mile far from the Civil Hospital. Thereafter, the driver of the vehicle left the place with the vehicle. The accused then took her to the paddy field by gagging her mouth near the railway tract. She could not raise hue and cry as she was gagged.

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She also stated that there was no residence near the place of occurrence and all the sides of it was surrounded by paddy field. The accused also threaten her with a knife that if she would raise hue and cry he would kill her. After committing rape, the accused left the place leaving her alone. Then she saw the light of the vehicle at a distance from which she realized that it was road and accordingly she walked to the road and got up in an E-rickshaw. Thereafter she returned to her rented house and narrated the entire incident to the landlady (who is the stepmother of the accused) namely, Asma Begum (W/O Noor Uddin, where she resides as a tenant) and who advised her to file case against him as he was a man with unamenable nature. Said Asma Begum entrusted her brother-in-law to accompany her to the police station, and she lodged the FIR and police sent her to State Home, namely, WODWICHEE where she was kept for the night and on the next day police got her examined medically.

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In cross-examination she has stated that there was no land dispute between the accused and Asma Begum and he has good term with his stepmother and frequently used to visit her house. She has denied the suggestion of the defence side that there was land dispute between the accused and Asma Begum (PW2). She has also stated that there is no shop and residential house near the place of occurrence and the saree she worn was changed after returning home. There is semen stain in her saree and also mark of earth and paddy straw while she returned. Police took her to the place of occurrence and she shown the place. She also stated that since police did not ask her for the saree she did not produce the same.

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It is stated that Asma Begum resides with her husband Noor Uddin and two children and she did not disclose the incident to other families except Asma. She has clarified that she lodged the FIR against the two accused persons and one of them is the driver not known to her and the occurrence took place near railway track. The place from where she was taken by

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the accused was dark and there was no street light but she could recognize the accused in the light of the vehicle. Police outpost was inside the hospital. It is also stated that the accused took her about half mile from the civil hospital and the driver of the vehicle left the place.

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The PW2 Asma Begum Borbhuiya is the only independent witness examined by the prosecution who is the wife of the landlord of PW1 (where she resided as a tenant). In her statement she has stated that the accused is her step-son. On the day of occurrence on 26.01.2018 at about 8.30 PM, the victim came to her room and showed mud and paddy straw in her saree to her and told that the accused took her in a vehicle forcefully and after some distance, he took her on foot to a paddy field near railway track and committed rape upon her. Then she told the victim to report the same to the father of the accused, viz. her husband. Thereafter she filed the case and she was accompanied by Rahmot Ali and one Maski. Rahmot Ali who is her bother-in-law. On that relevant night, the victim was kept in WODWICHEE. Police recorded her statement. On the next day, the brother-in-law of the accused came to her house and attempted to assault her and her husband. The accused also pushed her husband with his elbow of hand. Thereafter her husband went to the police station and informed the same. The accused resides in a different house. It is also stated by her that the accused did such type of heinous acts with many other women earlier.

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This witness was cross-examined at length and she stated there are other 10/12 families residing in their rented house and none of the tenants is witness in this case. The victim is a day labourer and earlier worked in a PCO. It is stated that there are street lights nearby their house but it often remains inoperative due to load shedding. Her husband has given due share of land to the accused and there is no enmity with the accused regarding the land dispute. She has denied that suggestion of the defence side that in order to deprive the accused from his right to property she and her husband got the case filed by the victim. It is stated that her husband is bedridden since two years. She has specifically stated that she has good relation with the accused.

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She has stated further that her daughter-in-law (wife of her son from earlier husband) has also filed case against the accused which was however, compromised. It is stated that at the time of reporting the matter by the victim to her, no other inmate was present neither she reported the matter to others.

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The Medical Officer/PW3 who examined the victim on 27.01.2018 has given Ext.1, the report that there is no evidence of sexual intercourse, no mark of violence over her body or

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private parts. However, there is a history of kidnapping and alleged rape on 26.01.2018 at 7.00 PM.

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Lastly, PW4 is the Investigating Officer who has stated about receipt of the FIR on 26.01.2018 and after taking up the investigation on the same day at about 10.50 PM. He proceeded to the place of occurrence along with the victim and prepared the rough sketch map of the place of occurrence vide Ext.4. According to Ext.4, the place of occurrence is a paddy field having straw of paddy. There is no homestead near the place of occurrence and the houses which have been shown in the sketch map are far away from the place of occurrence. To the east of the place of occurrence, there is a railway track. It is further stated that on the relevant night itself, he took the victim to the hospital for medical examination but on that night there was no female doctor in the hospital and so advised him to bring the victim to the hospital on the next day. Therefore, PW4 had kept the victim in the State Home at Hailakandi. On 27.01.2018, he brought the victim to the hospital and accordingly, the victim was medically examined.

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In his cross-examination PW4 has stated that the place of occurrence, the railway track is there. There is no place shown in the sketch map to the west of the place of occurrence. to the south, there is a small path. To the far north of the place of occurrence, there is a house. The place of occurrence is within 1 km approximately from the Civil Hospital Out Post, Hailakandi. In between the Civil Hospital and the place of occurrence, there are 20/25 houses and amongst them, the house of learned Defence Counsel, the complainant and others are situated. He has also stated that he did not examine the other tenants of the house as well as Noor Uddin (husband of Asma Begum). The house of the victim is around 500 meters far from the Civil Hospital. He could not say who is the owner of the rented house. It is stated that he did not seize anything in connection with the case. The persons namely Siraj Uddin Laskar, Nurul Islam Barbhuiya and Samsul Huda are the residents near the area of the place of occurrence.

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The learned counsel for the appellant in his argument has urged before this Court that the entire prosecution case is doubtful inasmuch as there is no other supporting witness to the occurrence and the only witness/PW2 is the stepmother of the accused and the case has been projected at the instance of her stepmother out of the grudge to grab the landed property of the accused by his stepmother. It is contended that the evidence of the victim is not convincing who neither made any hue and cry at the time of incident nor any other persons of the locality

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has been examined in support of her case. She only reported the matter to PW2 and none others which is very much doubtful and hence her evidence is not inspiring as regard the truth of the allegation. That apart, the medical evidence also does not support the allegation of the prosecutrix, which is indicating of the fact that victim along with the stepmother of the accused has fabricated the false case against the accused with the evil intention to grab the property of the accused. Lastly, it is contended that the very basis of the FIR is doubtful inasmuch as two persons have been implicated in the FIR but in the course of trial, only one accused has been implicated by the victim.

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Another limb of argument of the learned counsel for the appellant is that as the prosecutrix of the instant case has filed the affidavit stating that at the instance of the stepmother of the accused she filed the FIR and she was compelled to file the case and hence, she has no objection if the accused is acquitted, so considering the same affidavit as a compromise, the accused should be acquitted from the charge.

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In support of the contention that the accused can be given the benefit of acquittal on the ground of compromise, the following decisions have been relied by the learned counsel for the appellant:

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2001 (1) GLT 275, Arun Ch. Bora vs State of Assam.

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2003 (2) GLT 150, Parimal Nath vs State of Assam.

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(2011) 13 SCC 705, Baldev Singh and Others vs State of Punjab.

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(2014) 13 SCC 318, Shimbhu and Another vs State of Haryana.

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(2015) 4 SCC 491, Ravindra vs State of Madhya Pradesh.

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So far as the contention that the accused can be given the benefit of doubt where the evidence of the prosecutrix is not believable, ---, statement is not supported by medical evidence, ---- there is no supporting evidence, ---- no proof that victim made hue and cry and --- the evidence of the victim suffers from serious contradictions, the following decisions have been relied on by the learned counsel for the appellant:

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(2012) 7 SCC 171, Narender Kumar vs State of (NCT of Delhi).

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(2014) 2 SCC 395, Hem Raj S/O Moti Ram vs State of Haryana.

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(2009) 15 SCC 566, Tameezuddin alias Tammu vs State of (NCT of Delhi).

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(2007) 12 SCC 57, Radhu vs State of Madya Pradesh.

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(2006) 9 SCC 713, Yerumallaltchaiah vs State of A.P.

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AIR 1995 SC 2169, Shyam and Another vs State of Maharashtra.

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2004 (3) GLT 110, Hajarat Ali vs State of Assam.

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2006 (3) GLT 418, Amumia vs State of Assam.

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2010 (1) GLT 731, Diganta Mazumdar vs State of Assam.

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Refuting the contention of the learned counsel for the appellant it has been contended that only because one of the witnesses happens to be the stepmother of the accused cannot be a ground to reject the testimony of the prosecutrix which is otherwise clear and convincing there being no omission and contradictions in her evidence. It contends that under the facts and circumstances depicted in the case there can be hardly any eye witness to the occurrence as the offence was committed in a remote place from the locality in the darkness of the night near the railway track and such facts has also been supported by the evidence of the I/O. Finding of injury on the person of the victim is not a sina-qua-non for sustaining a conviction of rape, as the medical evidence is only an opinion and it cannot substitute the oral evidence given by the victim. Further it has been submitted that the offence which is of post amendment of the Criminal Procedure Code where the provision of 376 (2) no more exists, the Court cannot grant any benefit of compromise by reducing the sentence as has been granted prior to amendment. It has been pointed out that the occurrence is on 26.01.2018 and the amendment come with effect from 03.02.2013. The decision referred by the appellant in Baldev Singh (supra) is prior to the amendment and in case of Rabindra, 2015 (supra) special reason that is pendency of the case for 20 years as well as the parties married to different persons (not each other), living a peaceful marital life, which is not the case of the parties in the instant case, it contends. Thus, it has been submitted by the learned Additional Public Prosecutor that the learned trial court has appreciated the entire materials on record with proper perspective and it calls for no interference. The conviction can be rendered on the basis of the sole testimony of the victim if the same is found convincing and does not suffer from any sort of infirmities.

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Due consideration is given to the rival contentions of both the parties and gone through the materials on record and the decisions relied by the appellant.

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In the instant case, apart from PW2, there is no other supporting evidence to the case of the PW1/the victim. Other two witnesses are formal in nature being the Medial Officer and

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the I/O. As has been mentioned above according to the medical opinion there is no evidence of recent intercourse nor mark of violence and the I/O has visited the place of occurrence accompanied by the victim immediately after the occurrence. Now it is to be evaluated carefully whether the accused has been falsely implicated by the victim and the other witness and whether testimony of the victim is convincing and believable in the present case.

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In the background of the case it is noticed that the victim is a day labourer and illiterate one who gave thumb impression in the FIR who resides in the house of the PW2 as a tenant and the accused is the stepson of the PW2. It is to be decided whether the victim had any occasion for false implication of the accused and whether the PW2 being the stepmother of the accused had any grudge towards the accused so as to project the false case against him by compelling the victim to file the false case, as has been contended subsequently by the victim.

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As we found the victim/PW1 in her detail evidence has fully narrated the incident and from her evidence it is discernable that the incident occurred at night time at 7.00 PM and there was none with her and the accused person suddenly appeared and asked her to sit in the vehicle so that she can be dropped in her house. Although the accused was well acquainted with the victim, initially she refused to go with him but he forcefully took her inside the vehicle by pressing her mouth, in the circumstances there is hardly any scope to make hue and cry by the victim. Thereafter she was taken to a lonely place nearby railway track, far from the residential area and the rape was committed forcefully by him by showing threat. In the circumstances, making hue and cry on the part of the victim is of no consequences as there was none near the vicinity to extend help to her. Evidence of the I/O as well as the sketch map indicated that the place of occurrence is a remote area near the railway track and has fully supported the facts and circumstances as narrated by the victim. In the given circumstances, the evidence of the victim cannot be doubted for making no hue and cry.

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As regard the other decisions referred by the learned counsel for the appellant, the ratio of decision is not applicable in the present case, as each of the case is to be decided on the basis of facts situation. The law is settled that finding of injury and other sign of sexual assault in case of the victim, who is a major one, is not a sine-qua-non for accepting the evidence of the victim. Similarly, non-making of hue and cry, is not the sole criteria to disbelieve the testimony of the victim, if the victim is able to describe the reasons and the circumstances for not doing so and unless her evidence suffers from serious infirmities. It is no more res-intrega that in an offence like rape the evidence of prosecutrix can be relied on, even without

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corroboration if the same is inspiring confidence and credible. In Dilip Sing and Another vs State of M.P., (2001) 9 SCC 52, it has been held that law is settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made the basis of conviction, unless corroborated in detail particulars. In State of Punjab vs. Gurmit Singh 1996 SCC (2) 384 it has been held that if the evidence of the prosecutrix inspires confidence it must be relied on without seeking corroboration of her statement and if for some reasons the court find it difficult to place implicit reliance on her testimony, it may look for evidence for lending assurance, short of corroboration in case of an accomplice.

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In the decision referred by the appellant Narender Kumar (supra) it has been held that in appreciation of the evidence of the testimony of the prosecutrix, character of the prosecutrix is not relevant unless it is itself an issue. Such woman has also right to live with dignity and cannot be subjected to rape only for the reason. It is further held that a victim of offence of rape, is not an accomplice after the crime. The court while trying the accused on the charge of rape, must deal with case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are of not a substantial character.

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Turning to the facts in hand it is to be noted that only because the victim is a poor, illiterate one, her evidence cannot be rejected only on the allegation of the defence side that she has projected the case at the behest of the stepmother of the accused/appellant so as to deprive him from the property of his father. Save and except raising such plea, the defence could not shaken the credibility of the evidence of the victim as well as the other witness. The victim has given a clear and convincing evidence as regard the occurrence and there appears no any inconsistency in her evidence, neither it suffers from material contradictions or any other reason, for false implication of the accused. Her reporting the matter to the PW2 is also found to be natural, as she resides in the rented premises of PW2. Facts to be noted that in her evidence PW2 has specifically stated that her relation with the accused is good but he is a person of unamenable behaviour and he is involved with such mischievous conduct not only with the PW1 but also with her daughter-in-law for which she filed the FIR against him but later on it was compromised. The evidence of PW2 also not suffered from any sort of infirmities and the fact that it was a night time about 8.30 PM, the reporting of the matter only to PW2 is not doubtful in the given circumstances. More so, non-reporting the matter to the other tenants of the premises is of least consequences, as it is not a matter of solace on the

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part of the victim that she will go to each and every tenant to report such heinous offence. She has immediately reported the matter to PW2 and the FIR was filed promptly against the accused and the I/O has also supported the facts and circumstances of the case, lending assurance about the occurrence. The evidence of prosecutrix read in totality of the circumstances along with the other evidence on record, without there being any material infirmities and inconsistencies therein there appears no reason to discard the evidence of the victim. Learned trial court has rightly appreciated the entire matters on record, while arriving at the decision.

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So far as regard the contention about non-examination of the other witnesses, it is found from the record that three more persons of the locality where the occurrence took place were examined and their house is situated at a distance from the place of occurrence and they had no knowledge about the occurrence and for the reason finally the prosecution did not examine those witnesses in course of trial. The I/O however did not examine the other tenants of the premises where the victim resides and for such lapse on the part of the I/O, the entire prosecution case cannot be thwarted.

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Coming to the submission for reduction of the sentence in view of the affidavit filed by the informant that she has no objection for acquitting the accused and the case was filed due to misunderstanding, the same cannot be accepted simply because such a serious offence cannot be decided at the option of the parties. It would be relevant to refer the decision cited by the appellant himself in Shimbhu and Another (supra) where the Hon’ble Apex Court dealt with the question, where the appellant/accused has made out a case for imposition of a lesser sentence than 10 years? And after elaborate discussion of the sentencing policy under Section 376 (2) IPC it has been observed that the reasons which are general or common cannot be regarded as a special reason and referring to the pre-amendment and post-amendment of the provision in detail it has been held as follows:

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“20. Further, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a noncompoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a

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compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurize her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) of IPC.”

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The aforesaid decision squarely covered the present case in hand wherein also the victim being a illiterate woman might have been pressurized to go for settlement and only because of such compromise shown at the appellate stage cannot be a ground for the court to entertain the same. The case is also not of such nature that the parties have already been settled their life in its own way rather it can be inferred that the victim has been influenced to opt for compromise taking advantage of her illiteracy.

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Taking note of all above, I find no any substance in the contentions of the learned counsel for the petitioner to reduce the period already undergone by the accused but however, the sentence of 10 years is found to be on higher side. There being no any illegality and infirmity in the impugned judgment and order, while maintaining the conviction, the accused is hereby sentenced to the period of 7 (seven) years and also to pay the fine of Rs.10,000/(Rupees ten thousand), in default, RI for 3 (three) months.

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Appeal is partly allowed as indicated above.

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Return the LCR along with a copy of this judgment.

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JUDGE

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Comparing Assistant

Manzur Rahman Barbhuiya @ Manjur Rahman Barbhuiya v. the State of Assam and Anr.

Case brief

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Manzur Rahman Barbhuiya @ Manjur Rahman Barbhuiya v. the State of Assam and Anr.

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What the court decided

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