2009 (7) TMI 1352 - SC - Indian Laws

Abducting minor girl and commiting rape on her - Offence punishable u/s 376 of IPC - Statement of the prosecutrix recorded u/s 164 Cr.P.C. - whether a case of no consent? - trial court found appellant guilty of the offence punishable u/s 376 IPC and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of ₹ 2,000/- in default to undergo imprisonment for another six months - On appeal, The High Court upheld the conviction u/s 376 IPC but reduced the sentence to a period of four years and to pay a fine of ₹ 1000/- in default to further imprisonment for one month. Hence this appeal. HELD THAT - The Trial Court and the High Court proceeded with altogether different set of facts. Before the trial Court the prosecution case had been that the prosecutrix went to zoo along with Suleman and on her return from zoo the appellant had seen both of them together and slapped Suleman who ran away and thereafter the appellant took the prosecutrix on the pretext of taking her to movie and roamed; took her on a rickshaw to the hotel where she was kept and raped. However, before the High Court the case has been entirely different as in paragraph 5 of the High Court judgment it has been stated that when the prosecutrix came out from the house of informant PW.2 Abdul Hai Laskar the appellant met her and proposed to take her to witness a movie and she went along with him. The High Court has mentioned the facts that as per the FIR lodged by PW.2 Abdul Hai Laskar, to the effect that on the previous evening, the accused appellant Musauddin Ahmed @ Musa entered into the house and forcibly abducted his maid servant. There had been material contradictions regarding the factual aspects of the incident itself. There is nothing on record to show or furnishing any explanation as to why the IO did not seize any material objects like, clothes, blood samples etc. from the prosecutrix and the place of occurrence. PW.4 Mira Begum, prosecutrix has stated in her examination in chief as under He took me to a room at Paltan Bazar. There the accused forcibly tears open my clothes. The torn clothes were not recovered by the IO. The I.O. did not make any effort to take the semen, blood samples etc. from the appellant which could have given the prosecution an opportunity to obtain medical reports of the appellant as it was necessary to establish the guilt of the appellant. No person has been examined from the hotel to identify the appellant or the prosecutrix as the I.O. has only seized the register of the hotel to establish that room No.102 was booked in the name of appellant Mussauddin Ahmed and Marzina Begum as husband and wife. Admittedly, the name of the prosecutrix was not Marzina Begum. Therefore, some person from the hotel should have been examined to identify her as well as the appellant. The prosecutrix appears to be a lady used to sexual intercourse and a dissolute lady. She had no objection in mixing up and having free movement with any of her known person, for enjoyment. Thus, she appeared to be a woman of easy virtues. We are of the considered opinion that the prosecution failed to prove its case against the appellant beyond reasonable doubt. The appeal is allowed. The impugned judgment of the High Court and the trial court are set aside. Appellant is acquitted of the charge u/s 376 IPC. The appellant is on bail. His bail bonds are discharged.

Summary

Issues involved:
Appeal against conviction under Section 376 IPC, age of the prosecutrix, contradictions in testimonies, failure of prosecution to prove case beyond reasonable doubt.

Analysis:
1. The appeal was filed against the judgment of the Gauhati High Court which upheld the conviction of the appellant under Section 376 IPC but reduced the sentence. The appellant was initially sentenced to ten years of rigorous imprisonment and a fine of &8377; 2,000, which was reduced to four years and a fine of &8377; 1000 by the High Court.

2. The case revolved around the abduction and rape of a minor girl by the appellant. The victim, a maid servant, was allegedly abducted by the appellant and taken to a hotel where she was raped. The prosecution presented evidence of the victim's ordeal, including medical examination and witness testimonies.

3. The defense argued that the victim, despite being a minor, had consented to accompany the appellant and had multiple opportunities to seek help or escape during the incident. The defense highlighted contradictions in the victim's statements and behavior during the alleged crime.

4. The issue of the victim's age was crucial in the case. While the victim claimed to be 13 years old at the time of the incident, the medical examination conducted by Dr. Pratap Ch. Sarma indicated she was 18 years old. Discrepancies in witness testimonies regarding the victim's age raised doubts about the prosecution's case.

5. The courts noted serious contradictions in the victim's statements recorded under Section 164 Cr.P.C. and her deposition in court. The lack of concrete evidence, such as recovered torn clothes or forensic samples, further weakened the prosecution's case against the appellant.

6. The High Court and the trial court presented different versions of the incident, highlighting inconsistencies in the prosecution's narrative. The failure to examine key witnesses, such as hotel staff or independent witnesses, and the absence of efforts to establish crucial evidence like DNA samples, raised questions about the prosecution's diligence.

7. Ultimately, the Supreme Court acquitted the appellant of the charge under Section 376 IPC, citing the prosecution's failure to prove the case beyond reasonable doubt. The court emphasized the importance of leading the best evidence available and highlighted the lack of conclusive proof in the case.

This detailed analysis of the judgment provides a comprehensive overview of the legal issues involved and the reasoning behind the Supreme Court's decision to acquit the appellant.