OPIAL HAQUE Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal is directed against the judgment dated 1/10/11 passed by the learned Assistant Sessions Judge, Dhubri in Sessions case No. 75/09 convicting the appellant under Sec. 376 Penal Code and sentencing him to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000.00 in default, to suffer rigorous imprisonment for 3 months.

(2.) I have heard Mr. S.C. Biswas, learned counsel for the appellant and Mr. B.J. Dutta, learned Addl. P.P. Assam.

(3.) The prosecution case, in brief, is that on 24/5/07, an ejahar was lodged by one Opial Haque, son of Soban Ali, before the Bondihana Out Post stating that his sister, hereinafter referred to as 'X', is a physically challenged person, being a lame person and she cannot go out of the house. On 14/4/07, while the informant and the mother of the informant had gone out of the house for their work by leaving X in the house, the accused No. 1, namely, Opial Haque, son of Amira Shiekh, taking advantage of the absence of the informant and the mother of the informant, trespassed into the house at around 11.AM and against the will of 'X', forcefully started having intercourse with her. 'X' started shouting and witnesses No. 2 and 3, namely, Ahiman Bewa, mother of the informant as well as 'X' and one Syeeda Bewa reached the place of occurrence and witnessed the incident. Seeing the witnesses, the accused fled away by a separate door. A village 'Vichar' was called in which accused No. 1 admitted to having intercourse with 'X' but later on, at the ill advice of the other accused persons, namely, Amira Shiekh and Mohidur Rahman, he fled away. The 'Vichar' of the villagers was not accepted by the accused. Delay was caused in filing ejahar because of the aforesaid.