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Judgments of Supreme Court of India and High Courts

Crl.A./39/2013 on 11 March, 2020

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GAHC010004052013

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

Criminal Appeal 39/2013

Md. Mehbub Hussain Laskar @ Lilu
S/o Lt. Abdur Rashid Laskar
R/o Buribail Part-II, PS. Barkhola,
Dist. Cachar, Assam
……………… Appellant
Vs
The State of Assam
……………….Respondent

BEFORE
HON’BLE MR. JUSTICE HITESH KUMAR SARMA

Advocate for the Appellant
Mr. B. Sarma, Amicus curiae

Advocate for the State Respondent
Mr. B.B. Gogoi, Additional Public Prosecutor

Date of hearing and Judgment
11th March, 2020.

JUDGMENT AND ORDER (ORAL)

This is an appeal under Section 374(2) Cr.PC against the judgment and order, dated
30.11.2012, passed by the learned Sessions Judge, Cachar, Silchar, in Sessions Case No.
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61/2009, convicting the appellant and sentencing him to suffer rigorous imprisonment for 7
years and to pay a fine of Rs. 1,000/- with a default clause for offence punishable under
Section 376(1) of the IPC.

2) The fact of the case, as unfolded during the trial, is that the appellant is the cousin
brother of the victim and the families of the victim and the appellant resided together earlier.
The family of the victim was in good relation with the family of the appellant. The appellant
used to visit her house for the last 3 years regularly prior to the alleged commission of rape
on her person by him. The family of the victim shifted the residence to Raipur 5 months prior
to the date of occurrence. On 28.4.2009, while the members of the family of the victim were
not available in home, the appellant had come to her house and committed rape on her.
While committing rape, the mother of the victim (PW1) had seen both of them in a
compromising state. Then, she (PW1) informed about the incident to her father and brother
including other neighbours. They detained the appellant inside their house and informed the
police. Accordingly, the police came and had taken away the appellant.

3) On receipt of the FIR through the Arunachal Police Outpost, the Silchar Police Station
registered a case being No. 813/2009, under Sections 448/376 IPC and after completion of
investigation of the case, laid charge-sheet under the said sections of law.

4) The learned trial court, after exhausting all the required legal formalities, framed a
formal charge against the appellant under Section 376 IPC. The appellant pleaded innocence
to the charge, and therefore, the trial commenced.

5) During the course of trial, the prosecution examined as many as 8 (eight) witnesses
including the victim, medical officer and the investigating officer.

6) I have perused the evidence on record and the impugned judgment.

7) I have also heard Ms. B. Sarma, learned Amicus curiae for the appellant and Mr. B.B.
Gogoi, learned Additional Public Prosecutor for the state respondent.

8) On examination of the evidence on record, it is found that PW1 is the informant who is
the eyewitness to the occurrence and PW2 is the victim, therefore, they are the most
important witnesses in this case. PW7 being the medical officer, who had examined the
victim, is also a very relevant witness in the case.

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9) From the evidence of PW7, medical officer, it is found that he had examined the victim
on 29.4.2009 in the Forensic Medicine Department of the Silchar Medical College and
Hospital. On examination of the victim, the opinion of the doctor is as follows.

“On the basis of physical examination, laboratory and radiological investigation done on
Parveen Sultana Laskar, I am of the opinion that-

(1) Evidence of recent sexual intercourse not seen on her person. However,
the genital examination findings suggests that she was used to sex acts.
(2) She was not pregnant on the date of examination.
(3) Her age was above 19 years on the date of examination.”

It appears from the evidence of the medical officer that the victim was about 19 years of age
on the date of occurrence and she is used to sex. The medical officer also did not find sign of
recent sexual intercourse.

10) The evidence of PW1/informant is to the effect that she came home back from her
parental house at about 9:30 pm on the date of occurrence and had seen the appellant
committing rape on her daughter (victim) and then she had called her father and brother. It
has also come out from her evidence that her father, brother and uncle came to their house
and had detained the appellant inside their house. From her such evidence, it clearly appears
that the appellant was having sexual intercourse with the victim at the relevant time of
occurrence.

11) Now, let us consider the evidence of the victim herself. The learned trial court does
not appear to have discussed the evidence of the victim (PW2). But this court has gone
through the evidence of PW2 (victim). She deposed that the appellant had forcefully raped
her while she was alone at her house on the date of occurrence and her mother (PW1) had
seen the appellant committing sexual intercourse with her. But, in her cross-examination, the
evidence of the victim (PW2) is that the appellant is her cousin brother being the son of her
paternal uncle. Prior to shifting to the present location at Raipur, the victim along with her
family was living in their house at Huribail. After they had shifted to Raipur from Huribail, the
appellant once or twice visted her house. She has categorically admitted in her evidence that
before 28.4.2009, i.e. the date of occurrence, the appellant had sometimes sexual intercourse
with her forcefully, but she did not file any case against the appellant. Such evidence of the
victim (PW2) clearly shows that she is used to sex with the appellant and she had no
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complain to have such sex with him earlier. On an overall evaluation of the evidence on
record makes it appear to this court that had the mother of the victim (PW1) did not see the
appellant and the victim in a compromising state there would not have been a complaint this
time also. That apart, the medical evidence also speaks about the fact that the victim is used
to sex. She is also a major of 19 years of age.

12) Such being the evidence on record, in the considered view of this court, the victim is a
major and consenting party to the sex with the appellant, and therefore, the appellant cannot
be held guilty of commission of rape on her person forcefully and without her consent.

13) That being the evidence, in the considered view of this court, the judgment of the
learned trial court is not based on evidence on record. Accordingly, the judgment of the
learned trial court, impugned in this appeal, is set aside.

14) Accordingly, the appeal is allowed.

15) This court records its appreciation for the assistance rendered by learned Amicus

Curiae. The learned Amicus-curiae be paid an amount of Rs. 7,500/- as remuneration.

16) Send down the LCR along with a copy of this judgment.

JUDGE

Comparing Assistant

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