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TMI Blog2009 (7) TMI 1352X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asmat Ara Begum at Gandhibasti, under Paltanbazar Police Station, Guwahati. Appellant was a security guard in the house of one Imran Shah of that locality. The appellant and prosecutrix knew each other from before. 4. According to the prosecution, on 7.1.1995, PW.4 Mira Begum, without informing her employer PW.2 Abdul Hai Laskar and PW.3 Hasmat Ara Begum went to see the zoo with one Suleman who was known to her. While they were coming back from the zoo they met the appellant near Ulubari Chowk. On seeing them together the appellant got annoyed and he slapped Suleman and threatened that he would hand them over to police. Out of fear Suleman ran away. The appellant on the pretext of taking the prosecutrix PW.4 Mira Begum, to the police station took her to Sodhi Hotel situated at Paltanbazar. In the hotel he hired a room in fictitious names and kept her in the room for the whole night and committed rape on her three times. On the next morning he sent her in a rickshaw. PW.4 Mira Begum came to the house of a person near Hazi Musafir Khana and telephonically informed her employers about the incident. PW.2 Abdul Hai Laskar brought her to his house and she narrated the whole inci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rape on her. Both of them remained there throughout the night and next day left the Hotel. The appellant left the prosecutrix near Musafirkhana and went away. 10. Learned counsel for the appellant has submitted that during this period, had it been a case of no consent, the prosecutrix had enough time and opportunities to inform the police or any other person in the hotel or on the road about the incident. Statement of the prosecutrix recorded under Section 164 Cr.P.C. revealed that she remained along with the appellant for a very long time and had been roaming in the city by rickshaw and buses. She went to the Hotel without any protest and accompanied the appellant to the room, spent the whole night with him, came out in the morning after checking out the hotel, traveled with him in a rickshaw from Hotel to Musafirkhana but did not raise any hue and cry or inform anybody that the appellant had misbehaved with her in any manner. Such conduct of the prosecutrix makes the prosecution case unbelievable. PW.1 Dr Pratap Ch. Sarma who medically examined the prosecutrix found that she was used to sexual intercourse and that there was no injury of any kind on her body or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar vs. Mohamed Haji Latif Ors., AIR 1968 SC 1413). 14. 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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