KANDARPA THAKURIA Vs. STATE OF ASSAM

JUDGEMENT

(1.) This criminal appeal has arisen against the judgment dated 9-8-85 passed by the Sessions Judge, Cachar at Silchar in Sessions case No. 9/85 convicting the accused appellant u/S.376/511 of the I.P.C. sentencing him to suffer simple imprisonment for one year and to pay a fine of Rs.1000.00 in default further simple imprisonment for another 6 months. The prosecution case in brief is that one Md Kasem Ali, constable No. 885 was attached to Sonai Police Station. He was away from home on duty on the date of occurrence i.e. 24-9-83 leaving his wife Newaroon Nessa and his minor daughter in the barrack inside the police compound. The accused K. Thakuria is the Asstt. Sub-Inspector of Police attached to the said police station. He also got a quarter in the same police compound. On the date of occurrence at 11 p.m. while Newaroon Nessa (PW 4) was sleeping alone inside the room bolting the doors the accused somehow managed to open the door of the house and trespassing into the house tried to commit rape on Newaroon Nessa. She was woken up at the touch on her cheek by the accused. Finding the accused she persuaded him to leave her quarter but when she realised that the accused was bent upon criminally assaulting her she picked up a dao and gave 2/3 blows on the accused who ran away. Upon the shoutings people nearby gathered and she narrated the story to them and an ejahar was lodged immediately after the occurrence and a case was registered u/ Ss. 457/ 345/376/511 of the I.P.C. The Sessions Judge in his judgment held that the appellant is guilty u/S. 457/376 and 511 of the I.P.C. and no separate sentence was passed u/S. 457 of the I.P.C.

(2.) Heard Mr. S. Medhi, learned counsel for the appellant and Mr. A. Ahmed, learned PP. The main point raised by the appellant was that in the evidence of PW. 4, (the complainant) or in the ejahar or in her statement before the Court there was no material for conviction of the accused u/S. 376/511 of the I.P.C. and the conviction u/S. 457 also cannot be established as there was no material in the entire evidence on record. From the evidence on record of PW. 4 it is transpired that she woke up at the touch of the accused on her cheek and on her queries he said his name. She asked him how he could manage to enter the house as she bolted all the doors from inside. She also stated that he wanted to sleep with her on the bed but when she said that there is no space, he suggested to stretch the bedsheet on the floor. After that she told him that she would see whether the people in the neighbouring quarters are awake or asleep and she picked up the dao from under her bed and concealed it in the fold of her sari and proceeded to the adjacent room and looked out whether anybody was seen or not. The accused followed her and stood behind her. She categorically, stated that till then the accused did not touch her but she realised that there was no escape from the accused and that she might be molested. Then she made use of the opportunity to her advantage and gave two dao blows on the neck of the accused. Then the accused ran away by opening the door through the veranda.

(3.) There were no eye-witnesses and this whole prosecution story was based on the testimony of the prosecutrix to bring home the conviction u/S. 376/511. This section requires that to constitute rape under the law a single act of sexual intercourse must be committed under the circumstances-falling under any of the five clauses in Section 375.