ABBAS AHMAD CHOUDHARY Vs. STATE OF ASSAM

JUDGEMENT

(1.) These two appeals by way of special leave arise out of the judgment of the High Court of Gauhati dated 26th March, 2004 whereby the two appellants have been convicted and sentenced to various terms of imprisonment and fine for offences punishable under Sections 376/34 and 336/34 of the Indian Penal Code.

(2.) The facts of the case are as under :-

(3.) We have heard Mr. Shakeel Ahmed for the appellant - Abbas Ahmad Choudhary and Mr. Surya Kant, the learned Amicus Curiae for the co-accused Md. Mizazul Haq. We are of the opinion that the statements of the prosecutrix - P.W.6, the constable P.W.5 and the Investigating Officer P.W.9 are categoric insofar as the presence of Md. Mizazul Haq is concerned. Even in her statement recorded under Section 164 of the Cr.P.C. by the Magistrate on 17th September, 1997, the prosecutrix had clearly stated that she had been kidnapped and then raped by Md. Mizazul Haq and the absconding accused Ranju Das, and it was while they were returning to the village from Jalalpur Tea Estate that they had been joined by Abbas Ahmad Choudhary and he had merely held her hand while she was raped second time as well by the other two.