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IN THE COURT OF SESSIONS JUDGE ……….KARIMGANJ.
Special SESSIONS CASE NO 06 of 2014
(U/S. 458/34, 376(D) IPC read with section 4 of the POCSO Act IPC)
Present:- Smti S.P. Khaund, LL.M.,
Sessions Judge,
Karimganj.
State of Assam ………........……………………………..…..……..……….………Complainant.
-Versus1) Md. Intaj Ali,
Son of Md. Saiyab Ali,
Village – Bakarshal,
P.S. – Karimganj,
2) Md. Abdul Basit,
Son of late Abdul Gofur,
Village – Bakarshal,
P.S. – Karimganj ……………………….........……….…...…………...…..……. Accuseds.
Charge framed on:- ………………………………………….……........……..……09/03/2015,
P.W.’s examined on:-…………………………………………………………………..11/08/2015,
Statement of accused recorded under section 313 Cr.P.C :- ………… 11/08/2015,
Argument heard on: …………………………………………….………………..……11/08/2015,
Judgment pronounced and delivered on:-………….…..……..……….....… 11/08/2015.
Counsel Appeared:
Advocate for the prosecution:- …….……………………………........ Mr. R.K.Dev, ld.P.P.,
Advocate for the accused: - ………….……..………………………..…….. Mr. A.R.Tapadar,
Momtaj Begum.
JUDGMENT
1.
The prosecution case in a nutshell is that on 28/01/2013 at about
2 a.m. midnight while the victim ‘X’’s mother was in a relative’s house at Tripura
and her father was plying his taxi cab, the accused persons namely Imtaj Ali,
Abdul Basit and Abdul Noor entered into the victim’s house while she was alone
and committed gang rape on the victim. An ejahar to this effect was lodged by
the victim’s mother Hazira Begum. The police registered a case vide Karimganj
PS Case No. 45/2013 u/s 458/376(g) of the IPC and embarked upon the
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investigation. The victim was forwarded for medical examination and for
recording her statement u/s 164 Cr.P.C. The victim’s aunt Imrana Begum was
also forwarded to the Magistrate for recording her statement u/s 164 Cr.P.C. The
I/O recorded the statements of the witnesses and on finding prima-facie
materials submitted charge sheet against the above named accused persons u/s
458/376(g) of the IPC read with section 4 of the POCSO Act. On appearance of
the accused Imtaj Ali and Abdul Basit, copies were furnished and as this case is
triable by the Sessions Judge, this case was committed to this court vide order
dated 15/09/2014 passed by the ld. CMJ, Karimganj in GR Case No. 128/2013.
After hearing both the sides a formal charge u/s 458/34, 376(D) IPC read with
section 4 of the POCSO Act was framed and readover and explained to the
accused persons Intaj Ali and Abdul Basit to which they pleaded not guilty and
claimed to be tried. It needs to be mentioned here that the case against accused
Abdul Noor was split up and separated as he was absconding and evading arrest.
2.
The prosecution adduced the evidence of 3 witnesses and the
defence cross examined only one witness.
After closure of the prosecution
witnesses the statements of accused persons were recorded u/s 313 Cr.P.C. I
have heard the arguments forwarded by the ld. counsel for both the sides and
perused the evidence available on record.
3.
POINTS FOR DETERMINATION:
(i) Whether on 28/01/2013 at about 2 a.m. midnight the accused persons in
furtherance of their common intention committed lurking house trespass by night
by entering into the victim’s house in order to commit the offence of rape?
(ii) Whether the accused persons committed gang rape on the victim ‘X’?
(iii) Whether the accused persons committed gang sexual assault on the victim
‘X’?
DECISIONS THEREON AND REASONS FOR THE DECISIONS:
4.
The victim ‘X’ testified as PW 2 that about 2 years ago while they
used to stay in a rented house at Jobainpur, some miscreants entered into her
house while she was alone. At that time it was 2 a.m. midnight and her father
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went out as a cab driver for a marriage trip and her mother along with her
younger sister was in Tripura in a relative’s house.
The miscreants tried to
misbehave with her but she escaped from their clutches and went to the taxi
stand and informed her father about the incident. Her mother was informed
about the incident and subsequently her mother lodged the ejahar. She could
not recognize the miscreants. She failed to identify the accused persons present.
5.
Thus there is no evidence against the accused persons appearing
in this case as the victim herself failed to identify the miscreants who entered
into her house when she was alone. In sync with the victim’s evidence, the
victim’s mother Hazira Begum and father Md. Nurul Hussain testified as PW 1 &
PW3 respectively that while Hazira Begum was in Tripura along with her younger
daughter and while Nurul Hussain was out of station on being hired as a cab
driver for a marriage trip, some miscreants went into their rented house at
Jobainpur on the night of the incident. The miscreants tried to misbehave with
their daughter ‘X’. The incident took place about 2 years ago. Hazira Begum
was informed about the incident and she lodged the ejahar.
Hazira Begum
further testified that she did not know what was drafted in the ejahar as she was
illiterate. The accused person’s names were inserted in the FIR on information
by some villagers.
6.
Thus it is clear from the evidence of PW 1 & PW 3 that there is not
even an iota of evidence against the accused persons.
It is true that some
miscreants barged into the victim’s house at night and committed lurking house
trespass in furtherance of their common intention. It is also true that some
miscreants misbehaved with the victim, but there is no evidence that the accused
persons were the miscreants. The content of the FIR although similar to the
testimony of the witnesses, does not fasten the guilt on the accused persons,
because there is no evidence that the accused persons are those miscreants.
The complainant, the victim and Nurul Hussain failed to identify the accused
persons appearing in this case. Thereby, the accused persons ought to get the
benefit of doubt.
7.
Thus, it is held that the prosecution failed to prove beyond
reasonable doubt that the accused persons are the miscreants who committed
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lurking house trespass at night in furtherance of their common intention. The
prosecution failed to prove that the accused persons committed gang rape on the
victim. There is no evidence that anybody committed gang rape on the victim.
There is no evidence that the victim was sexually assaulted inside her house.
Thereby, there is no evidence that the accused persons are guilty of offence u/s
458/34, 376(D) IPC read with section 4 of the POCSO Act. The accused persons
are thereby acquitted from the charges on the aforesaid sections of law on
benefit of doubt and set at liberty forthwith.
Judgment is signed, sealed and delivered in the open court on the
11th day of August 2015.
Dictated and corrected by
(Smti S.P. Khaund)
Sessions Judge,
Karimganj.
(Smti S.P. Khaund)
Sessions Judge,
Karimganj.
Dictation taken & transcribed by
Debabrata Das,
(Stenographer).
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