MD MUZAFFAR ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE appellant, on being convicted under Section 376(2)(g), IPC and sentenced to under to R.I. for a period of 10 years with a fine of Rs. 10,000/ -in default, further to undergo R.I. for one year vide impugned judgment and order dated 8.12.2009 rendered by the learned Addl. Sessions Judge (FTC), Kamrup Guwahati has preferred this appeal. The facts of the case leading to such conviction and sentence are that the prosecutrix was working in a PCO at Adabari, Guwahati. As usual she was returning from her work place on 30.09.2001 in a passenger bus from Adavari to her house at Dadara and while it arrived at Agiathuri the driver of the vehicle stopped the bus and asked the passengers to board another vehicle as it would not go further. It was at about 6 p.m., she got down from the bus at Agiathuri Gaonburah Chowk and when the prosecutrix stopped Auto Rickshaw, 5/6 unknown boys did not allow her to board the Auto rickshaw, instead they forcibly took her away by gagging her mouth by a piece of cloth to a nearby field and all of them raped her one after another due to which she fell unconscious and after some time, when she regained sense, one person of that area took her home. On the following day she lodged an FIR with Hajo P.S. which was registered as Hajo P.S. Case No. 216/2001 under Section 376, IPC. During investigation it came to light that the accused Jon Ali, Moinul Ali, Mojaffor Ali, Tayab Ali, Baitullah and Bhaity Ali were involved in the crime. All the said accused persons, except Bhaity Ali, were arrested and forwarded to judicial custody. A test identification parade was held for identification of the accused person by the victim/ prosecutrix. On completion of investigation charge -sheet was submitted against the aforesaid accused persons showing accused Bhaity Ali as absconder. The case being committed, charges were framed under Section 376(2)(g), IPC to which, on being read over and explained, pleaded not guilty and claimed to be tried. The prosecution examined as many as 10 witnesses. The statement of the accused person were recorded under Section 313, Cr.P.C., who denied all the allegations made against them but they examined no witnesses in their defence. On the basis of the evidence and documents on record, the learned Trial Court convicted and sentenced the present appellant as stated earlier.

(2.) MR . S.K. Talukdar, learned counsel for the appellant submits that the learned Trial Court failed to properly appreciate the evidence on record and without correctly applying the law in accepting the evidence of the victim/prosecutrix convicted and sentenced the appellant solely on the basis of the evidence of the victim woman. According to him the evidence of the victim woman is inconsistent and full of contradictions which cannot be treated a reliable, acceptable and of sterling nature for conviction of an accused. Conviction and sentence based on such evidence, as submitted by the learned counsel for the appellant is unsustainable under the law and the appellant should be acquitted.

(3.) MR . K. Munir, learned Addl. P.P. submits that there is neither inconsistency nor any serious contradictions in the evidence of the prosecutrix to render her evidence as unworthy of being accepted as reliable and truthful. According to him the learned Trial Court committed no lapse or wrong in appreciating the evidence on record and convicting and sentencing the accused.