ABDUL AZIZ Vs. STATE OF ASSAM

JUDGEMENT

(1.) HEARD Mr. HRA Choudhury, learned senior counsel along with Mr. S Huda, learned counsel for the appellant and Mr. B B Gogoi, learned Addl. Public Prosecutor, Assam.

(2.) THE appellant was convicted under Section 376/448/506 IPC and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.5000/- only, in default simple imprisonment for another six months for the offence under Section 376 IPC and further convicted and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.500/- only, in default simple imprisonment for another one month for the offence under Section 448 IPC and also sentenced to R.I. for one year and to pay fine of Rs.500/- and in default simple imprisonment for another one month for his conviction under Section 506 IPC and all the above sentences have been directed to run concurrently vide judgment and order dated 8.11.2010 rendered by the learned Addl. District and Sessions Judge (FTC) Sankardev Nagar, Nagaon, Hojai in sessions case No.10(N)2009.

(3.) THE whole case depends upon the evidence of the victim who was examined as P.W.1. THE varacity and truthfulness of the victim in adducing the evidence is to be examined for upholding the conviction and sentence awarded by the learned trial court inasmuch as there is no eye witness to the incident of rape. In the night of incident, as per her statement under Section 164 Cr.P.C., the victim was sleeping in her room and her younger brother Abu Taleb was sleeping on the next bed. At the time of incident her father was not present at home. But her brothers namely Abdul Kalam (P.W.3), Abu Noser (P.W.2) and Abu Helal (P.W.4) were present who came out after hearing her shouting. All her brothers searched for the accused but they could not find him. She has stated in her cross-examination that her brother Abu Taleb was sleeping in one room and she was sleeping in another room. It means that the victim and her brother Abu Taleb were sleeping in separate rooms. THEre is a contradiction in her statement as regards the sleeping of Abu Taleb who was not examined. As per the evidence of Abu Noser, P.W.2, Abu Taleb a minor boy of 5/6 years.