Dismissed

Nasir Uddin v. the State of Nagaland and Anr.

Gauhati HC2 Sept 2021CRAPL/6/2019

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed an appeal challenging a conviction and sentence in a rape and abduction case. Upholding the trial court's finding, the bench held that the prosecutrix's testimony, supported by medical reports, was reliable. The court rejected the defense argument that lack of physical injuries indicated consent, concluding the accused was guilty of rape and abduction with attempt

What did the court decide?

The appeal was dismissed, and the instance letters was sent back.

Nasir Uddin Vs the State of Nagaland and Anr. — Criminal Trial and Appeal | Gauhati HC (2021)

¶1

Page No.# 1/14

¶2

GAHC020002162019

¶3

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

¶4

Case No. : CRAPL 6/2019

¶5

1:NASIR UDDIN S/O LT. JALAL UDDIN, V/O HOLDIRATI, P.O/P.S - MARAJAR, NAGAON

¶6

VERSUS

¶7

1:THE STATE OF NAGALAND AND ANR KOHIMA

¶8

2:YANPENCHU S/O CHAIBA CHANG

¶9

R/O H/NO.126 WARD NO.11 CHUMUKEDIMA DIMAPUR N/

¶10

Advocate for the Petitioner : NUKSUNG

¶11

Advocate for the Respondent : GOVT ADV NL

¶12

Page No.# 2/14

¶13

BEFORE HON'BLE MR. JUSTICE SONGKHUPCHUNG SERTO

¶14

Date : 02-09-2021

¶15

JUDGMENT & ORDER (CAV)

¶16

This is an appeal directed against the judgment dated 12.03.2019 and sentence order dated 18.03.2019, passed in Sessions Case No. 73/2015, corresponding to G.R. Case No. 614/2014 by the learned Sessions Judge, Dimapur wherein the accused/appellant was held guilty of having committed the offence punishable under section 376(2)(n) and 366 of IPC, and sentenced to 10 years imprisonment and a fine of Rs.500 for the first offence, and 5 years imprisonment and a fine of Rs.500 for the second offence, but both the period of sentence running concurrently and with 3 more months imprisonment in case of default.

¶17

2. Heard Mr. Nuksung, learned counsel appearing for the appellant and also heard Mr.K.Wotsa, learned P.P appearing for the State of Nagaland. I have also perused the record of the trial court and the relevant laws including the judgments referred to by the learned counsel of the appellant.

¶18

The prosecution story in brief is that, on 20.10.2014, around 6:30 P.M., the victim/prosecutrix was sent by her father to buy pan and sweets from a nearby pan shop in her locality and, while she was standing near the shop, the accused who had become an acquaintance offered her a pan, but when she ate the same she became unconscious and by the time she regained her consciousness she found herself in a place in Assam where she was kept under confinement for 7 days. And during those days she was sexually assaulted repeatedly by the accused and tried to marry her against her will. Therefore, the accused is guilty of having committed the offence punishable under section 366(A) and 376 of IPC.

¶19

Page No.# 3/14

¶20

3. On the other hand, the appellant’s case as submitted by his learned counsel is that, the accused/appellant and the so called victim girl were in love and out of their own free will had gone together to some place in Assam to enjoy themselves, and it was only when the brother of the accused/appellant brought them to the Police station due to the pressure mounted on him that, the FIR was registered to so as to save her face and that of the family in the eye of the society. Therefore, no offence whatsoever was committed by the accused/appellant and the FIR is only a concocted story.

¶21

It appears from the record that to prove the charges, the prosecution produced and examined 5 witnesses who are none other than the complainant, the I.O of the case, the Doctor who examined the prosecturix and the accused, the prosecutrix herself and one police personnel who was the witness when the accused/appellant was arrested. However, from the side of the accused no witness was produced.

¶22

5. In order to substantiate the case of the accused/appellant Mr.Nuksung, learned counsel submitted as follows;

¶23

(i) That the accused appellant and the prosecutrix were in love with each other and in the process they have even had physical relationship. And the fact that they went to Assam together was only to enjoy themselves and that is apparent from the statement of the prosecutrix herself recorded under section 161 of Crpc. Therefore, the charges against the accused/appellant are baseless.

¶24

(ii) That the birth certificate showing the date of birth of the victim as 23.12.1997 was never exhibited. Therefore,

¶25

Page No.# 4/14

¶26

the prosecution’s case that, she was a minor at the time the accused/appellant is alleged to have taken her and committed the offences charged against him is without any basis.

¶27

(iii) That the charge that the accused/appellant had taken the prosecutrix to Assam after offering her a pan which made her unconscious is something not plausible and not proof. Because the pan that was allegedly offered to her was never examined by experts in order to determine as to whether, the same contained some substance which could have put the prosecutrix to sleep or to be in the state of unconsciousness. As such, the charge against the accused/appellant that, he had abducted the prosecutrix and assaulted her sexually, in order to force her to marry him is nothing more than a mere allegation.

¶28

(iv) That if the sexual assault or rape charged against the accused/appellant is to be accepted as true, there should have been some signs of struggle on the body of the prosecutrix . But as per the medical report given by the Doctor who examined both the prosecutrix and the accused/appellant, there was no physical injuries and no sign of struggle or use of force. Therefore, the charge that the accused/appellant committed sexual assault or rape on the prosecutrix is baseless. Rather, the fact that there was no sign of struggle shows that the prosecutrix and the accused/appellant were in love and their physical relationship was consensual.

¶29

(v) That as per the forensic report, vaginal swab, uterus swab and penial swab did not contain blood, human semen and saliva, therefore the charge that the accused/appellant

¶30

Page No.# 5/14

¶31

had committed sexual assault on the prosecutrix has no scientific prove.

¶32

(vi) That the statement of the prosecutrix given in her deposition before the Court that, the accused/appellant and his mother went to the Court for solemnization of their marriage is false statement, because at that relevant time the mother of the accused/appellant was in Dimapur and arrested by police, and this fact was stated by the accused/appellant in his statement given under section 313 of Cr.PC. As such, the charge that the prosecutrix was abducted by the accused/appellant to marry her by force is, nothing but, a false and concocted story.

¶33

(vii) That the prosecutrix had a mobile phone with her at the relevant time is clear from her statement itself, therefore if she had been abducted and assaulted sexually against her will, she would have informed her family members. But the fact that she did not do so shows that she had gone with the accused/appellant out of her own will and no sexual assault was committed against her.

¶34

(viii) Lastly, the learned counsel submitted that the trial Court convicted and sentenced the accused/appellant based solely on the evidence of the prosecutrix but forgetting the settled principle of law that, for doing so the same(the evidence) must be of sterling quality. Therefore, it would amount to miscarriage of justice if the impugned judgment and order are not interfered with.

¶35

In support of his submissions, the learned counsel referred to the judgments of the Hon’ble Supreme Court given here below:-

¶36

( i ). Kuldeep K. Mahato -versus- State of Bihar , reported in (1998) 6 SCC 420 , para-11.

¶37

Page No.# 6/14

¶38

“11. Then coming to the conviction of the appellant under Section 376 IPC, although both the Courts below have held after accepting the evidence of prosecutrix being truthful that the appellant has forcibly committed the rape, we are of the opinion that the said finding is unsustainable. The prosecutrix had sufficient opportunity not only to run away from the house at Ramgarh but she could have also taken the help of neighbours from the said village. The medical evidence of Dr. Maya Shankar Thakur (P.W. 5) also indicates that there were no injuries on the person of the prosecutrix including her private part. Her entire conduct clearly shows that she was a consenting party to the sexual intercourse and if this be so, the conviction of the appellant under Section 376 IPC cannot be sustained. There is one more additional factor which we must mention that it is not the case of the prosecutrix that she was put in physical restraint in the house at Ramgarh, with the result her movements were restricted. This circumstance also goes to negative the case of forcible intercourse with the prosecutrix by the appellant.”

¶39

( ii ). Mohan Lal -versus- State of Rajasthan , reported in (2002) 10 SCC 14 , para-14 & 17.

¶40

“14. We have noticed these omissions end contradictions in her cross-examination only with a view to test the credibility of this witness because the conviction of the appellant is based primarily on her evidence. We find that in the course of investigation, she had not stated that she was forcibly pushed inside the room of the appellant: or that the appellant had stopped her and out of fear she did not raise a hue and cry; or that after the appellant went away, she was not permitted to leave by the wives of the two brothers of the appellant but on the contrary she had hidden herself inside the room after having been seen by PW.5. Moreover her statement in the course of investigation that on earlier occasions she had been paid Rs. 50/-6 by the appellant and that she had tea with them on the day of occurrence as well, creates a serious doubt about the truthfulness of the version of the prosecutrix and we find it unsafe to rely upon her testimony to convict the appellant. Not only this the case of the prosecution even otherwise does not appear to be credible and it appears that the father of the prosecutrix, PW.2 on discovering that the prosecutrix was involved with the appellant after due deliberations, lodged a report implicating the appellant.

¶41

17. All these facts lead us to seriously doubt the truthfulness of the case of the prosecution and we are satisfied that the prosecution has failed to prove its case beyond reasonable doubt.”

¶42

Page No.# 7/14

¶43

( iii ). Amar Bahadur Singh -versus- State of U.P ., reported in

¶44

( 2011) 14 SCC 671 , para-5.

¶45

“5. We find merit in this plea. We find that under the circumstance the possibility that rape could have been committed on her in the presence of so many members in a small house is difficult to believe. On the contrary the findings of the High Court that the prosecutrix was a consenting party appear to be correct and it was perhaps when the accused and the prosecutrix had been caught red- handed that the story of rape had been cooked up, to salvage some of the family honour. This is often the tendency in such matters. The High Court has therefore gone completely wrong in dismissing the appeal even after its categoric observations. We accordingly allow the appeal, set aside the conviction of the appellant and order his acquittal. The appellant is on bail; his bail bonds are discharged.”

¶46

( iv ). Kaini Rajan -versus- State of Kerala , reported in (2013)

¶47

9 SCC 113 , para-12 & 14.

¶48

“12. Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. [See State v. Mango Ram (2000) 7 SCC 224]

¶49

14. This Court examined the scope of Section 375 IPC in a case where the facts have some resemblance with the one in hand. Reference may be made to the judgment of this Court in Deelip Singh alias Dilip Kumar v. State of Bihar (2005) 1 SCC 88.

¶50

Page No.# 8/14 In that case, this Court examined the meaning and content of the expression “without her consent” in Section 375 IPC as well as whether the consent given by woman believing the man’s promise to marry her, is a consent which excludes the offence of rape. This Court endorsed the principle that a misrepresentation as regards the intention of the person seeking consent, i.e. the accused, could give rise to the misconception of fact. While applying this principle to a case arising under Section 375 IPC, this Court held that the consent given pursuant to a false representation that the accused intends to marry, could be regarded as consent given under misconception of fact. But a promise to marry without anything more will not give rise to “misconception of fact” within the meaning of Section 90 IPC. This Court further held that;

¶51

“28…. if, on facts, it is established that at the very inception of the making of promise the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of the second clause of Section 375 IPC.

¶52

In the facts of that case, this Court held, that the predominant reason which weighed with her in agreeing for sexual intimacy with the accused was the hope generated in her of the prospect of marriage with the accused. The Court held that she came to the decision to have a sexual affair only after being convinced that the accused would marry her and it is quite clear from her evidence, which is in tune with her earlier version given in the first information report. The Court noticed that she was fully aware of the moral quality of the act and the inherent risk involved and that she considered the pros and cons of the act.”

¶53

6. Mr. K. Wotsa, learned P.P, State of Nagaland submitted that there is nothing wrong in the judgment and in the sentence order under challenged. The learned P.P., thereafter submitted that, the fact that the accused/appellant had taken the prosecutrix to Assam at the relevant time is not disputed indicates that the charge against him is not a mere allegation. Further, the learned P.P. also submitted that since it is the plea of the accused/appellant that the sexual relationship he had with the prosecutrix was consensual, and not forced upon her, he should have produced evidence to prove the same. But since he failed to do so his plea can not be accepted. Therefore, the appeal deserves to be dismissed.

¶54

Page No.# 9/14

¶55

7. I have considered the submissions of the learned counsels and I have also perused the impugned judgment and sentence order passed by the trial Court including the entire record.

¶56

It is true that the FIR was lodged and registered on 28/10/2014 and not on 22/10/2014 when the prosecutrix went missing, as per the date of receipt and registration of the same shown in the original copy exhibited as Exht P 1. However, that does not make the same a false or concocted document as submitted by the learned counsel of the accused/appellant. The authenticity or the truth of facts given in an FIR has to be tested by the developments which followed thereafter. In this case the FIR stated that the complainant’s daughter (the prosecutrix) who went missing from home on 22/10/2014 has been found in Guwahati along with Mr. Nasir Ali (the accused/appellant) and she has disclosed that she was taken away by the accused/appellant by force with an intention to marry her without her consent and, in the process she had been sexually assaulted several times during those days when they were together.

¶57

During the trial there was no dispute on the fact that the victim/prosecutrix and the accused/appellant had come back together from Assam and appeared in the Police station. In fact, the same was further proved by the complainant in his deposition as PW 1 and it was supported by PW 6 who was the I.O of the case and P/W 5 who was the witness when the accused/appellant was arrested. All these shows that the prosecutrix and the accused/appellant had been to Assam together for a period of 7 days. As such, the only questions left are, whether the accused/appellant had taken the prosecutrix by force or without her consent and committed sexual assault/rape on her with an intention to force marriage with him or not. There are no other witnesses on this, except the prosecutrix herself and the Doctor who examined both the

¶58

Page No.# 10/14

¶59

accused/appellant and the prosecutrix. The evidence of the prosecutrix as given before the trial Court is as follows;

¶60

That on 20/10/2014 at around 7.30 PM she was sent by her father to a shop to buy beetel nuts (pan) for him and sweets for her brother and sister and at that time, the accused/appellant met her and offered a pan saying that it was only a sweet pan and insisted that she took it. But when she ate the same she lost her consciousness and by the time she woke up she found herself in Assam.

¶61

That she was only 17 years of age at that time and she was having her monthly period (menstruation), but the accused/appellant had sex with her by force for more than 3 times. She also stated that she was forced to wear a burkha and was told that he will be marrying her in a court. And in pursuance, he and his mother had gone to Court without her consent but for shortage of money they could not fulfill their intention.

¶62

That during her wrongful confinement in Assam, she was locked up in a room for about 7 days and was repeatedly raped by the accused/appellant. And when she refused, she was abused and assaulted, and the same continued till the brother of the accused came and took both of them to Police Station. She also stated that though she had her mobile phone at that time, she could not contact her mother as the same was snatched from her.

¶63

Nothing was asked in the cross-examination to test the authenticity or veracity of her statement given in her examination- inchief. However, she had stated that she had known the accused/appellant for more than a week before the incident since she use to hire his Auto Rickshaw for going to market and since he also use to drop in to their place while returning from the market. But she had also stated that she had no affection towards him and she was neither willing to have intimate relationship with him. Lastly, she had stated that

¶64

Page No.# 11/14

¶65

she could not remember how many people were involved while moving her to Assam.

¶66

In view of the above facts and circumstances stated by the prosecutrix which are neither denied nor refuted or contradicted I am of the considered opinion that there is no room for doubting the truth of the charges against the accused/appellant. The fact that the prosecutrix mentioned in her evidence that she had come to know the accused/appellant about a week before the incident happen does not or can not cast any shadow of doubt since her evidence was never shaken. 8. Further, the statement of the prosecutrix given in her deposition before the trial court and her statement given under section 161 Cr.PC does not contradict each other, rather they are same in sum and substance and in material facts. Statement of the prosecutrix recorded under section 161 of Cr. P.C is reproduced here below to show this;

¶67

” Statement of the victim recorded u/s 161 Cr.P.C

¶68

Name-Benjungsangla 17 years D/o-Yanpenchu Chang V/O-Longtang P.O/P.S-Noksen Dist-Tuensang P/A-Chumukedima Ward No. II

¶69

On being examined the victim Ms. Benjungsangla she stated that, we know each other since 3-4 weeks, I met him (Nasir) at Auto parking Chumukedima, as he is an Auto Driver and Mr. Nasir Uddin used to invite me to come to one of his friends house at Chumukedima, so I went there for two/three times and he proposed me to marry him but I refused his proposal. During our meeting he had physical relationship with me. He used to contact me and teased me through phone and he told me that he loved me and he want to marry me but when I came to know that he is a married man I told him that I have a boyfriend and I tried to avoid him but he used to contact me. On

¶70

Page No.# 12/14 20/10/14 I went to Pan shop nearby my residence where I met Nasir Uddin and he call e to come near him and there he offer me some sweets after I eat that sweets I loss my sense and when I regain my sense I was in Assam at one of Nair Uddin cousin’s house, from there they put me their cultural dress to wear by force in order to get married but before the marriage ceremony took place, they got an information that his first wife is searching for him so he took me to Guwahati and stayed there at one of his friend’s house. During our stay together he had physical relationship with me. On 27/10/14 when we were about to proceed to Shillong his (Nasir) elder brother took us to Dimapur and later I was handed over to my parents.”

¶71

C areful examination of the above statement of the prosecutrix and her statement given before the trial Court which in substance has also been already stated herein above, it would be seen that, except for some minor variations, the sum and substance of the two statements particularly, on material facts are all the same. Further, on perusal of the record nothing is there in evidence which would show that the evidence given by the prosecutrix is or even likely to be a made up story. Nothing is also found in evidence which indicates or would even suggest that the prosecutrix is likely to or is trying to gain something by accusing the accused/appellant of having committed the offences charged against him. In fact, it is going to bring a social stigma that would remain with her all of her life and, it may even be a reason for losing a chance of any future relationship that she may hope to build. As such, the only conclusion that can be drawn - is, what she had stated in evidence is nothing but the truth and that is the only thing that compelled her to testify as she did. Therefore, one can safely conclude that the evidence given by the prosecutrix is without any embellishment and, it is an account of

¶72

Page No.# 13/14

¶73

a plain truth of what had actually taken place between her and the accused/appellant, and thus, it is safe to rely upon even without any corroborative evidence.

¶74

9. The evidence of the prosecutrix is, moreover supported by the medical examination report which was exhibited as Ext. P2 (C), and the evidence given by the doctor himself who had examined her. The doctor had noted in his report as follows;

¶75

(i) That the victim had mild pain during walking/urination and

¶76

defecation.

¶77

(ii) Tear at perineum area (6’o clock)

¶78

(iii) Hymen torn

¶79

(iv) Vaginal admit one finger lose

¶80

(v) Evidence of recent sexually intercourse -Yes.

¶81

(vi) Accustomed to sexual intercourse -No.

¶82

(vii) Sign of struggle/use of force -No

¶83

And, in his examination-in-chief as PW-4, the doctor had stated that, on his examination of the body of the prosecutrix he had found injury at her perineum area (6’ o clock) below the vagina and the hymn torn, as such, he is of the opinion that the victim was sexually assaulted by the accused/appellant. Furthermore, in his reply to the suggestion of the defense counsel that he did not see any injury on the body of the victim, he had refuted the same. In his further cross examination, the doctor had also revealed that he had been in the same hospital practicing for more than 3^1/2 years and, he was accustomed to examining such cases. On careful consideration of the medical report and all the statements of the doctor, this Court is of the view that they are evidence given by a well experienced and competent person, and both are corroborative to each other and they support the case of the prosecution.

¶84

10. Taking into consideration the evidence given by the prosecutrix, the

¶85

Page No.# 14/14 medical report and the statement of the doctor who examined her and prepared the same, this Court is of the view that the Trial court was right in having held the accused/appellant guilty of having committed the offences punishable under section 366 and 376(2)(n) of IPC in the impugned judgment and of having sentenced him in the manner as given in the impugned sentence order.

¶86

Accordingly, the appeal is dismissed. Send back the LCR.

¶87

Sd/- JUDGE

¶88

Comparing Assistant

Nasir Uddin v. the State of Nagaland and Anr.

Case brief

What is this about?

What did the court decide?

Nasir Uddin v. the State of Nagaland and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smti. Mupulila Imsong Vs the State of Nagaland and 3 Ors.

Shri Tiatemjen Vs the State of Nagaland and 2 Ors.

Mr. Alimong Vs the State of Nagaland and 2 Ors.

Nasir Uddin Vs the State of Nagaland and Anr.

Shri Nvomongo Ngullie and 21 Ors. Vs the State of Nagaland and 15 Ors.

Er. Tesinlo Semy Vs the State of Nagaland and 2 Ors.