MAZID ALI ABDUL Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 4.7.1987 passed by the Sessions Judge, Darrang, Mangaldoi in Sessions Case No. 87 (D)-N of 1985.

(2.) An F.I.R. was lodged on 25.8.1980 by one Mustt. Rose Bahar Begam before Sipajhar Police Out Post stating inter alia, that on 22/23rd August, 1980 at mid night the accused appellant entered her house by cutting wall of the house and committed rape on her under threat. While committing the offence she was threatened that she would face dire consequences if she raised any hue and cry. She also stated that meanwhile one Naram Ali entered the house and attempted to catch hold of the accused appellant. However, the accused escaped. An attempt was made by the public of the locality to compromise the case where the accused-appellant denied the allegation and the compromise failed. Hence the prosecutrix lodged the F.I.R. On the basis of the F.I.R. police registered a case and commenced investigation. During investigation police seized a dagger that was produced by the prosecutrix which was stated to be shown to the prosecutrix at the time of alleged commission of offence. However, police did not seize clothes since according to the prosecutrix all the wearing clothes were washed and, therefore, no useful purpose would be served by seizing the clothes. P.W. 5 Dr. (Mrs.) Deepali Das who examined the prosecutrix found the following: Hymen absent. The girl was menstruating. According to the Doctor (P.W. 5) the girl was habituated to sexual intercourse and there was no sign of violence. The age of the girl, according to the doctor was between 14-16 years. However, no ossification test was done. After conclusion of the investigation police submitted charge sheet under Sections 457/376 I.P.C. 6 (six) witnesses including the doctor and the Investigating Officer were examined.

(3.) P.W.I - prosecutrix stated that it was a dark night and inside the room it was not visible. She also did not refer to any light burning inside the house. Her statement only indicates that she could recognise the accused from his voice as well as stature. P.W. 2 - Ayezuddin Ahmed, a neighbour stated that he was informed about the occurrence. However, he did not say when actually he was informed. P.W. 3 Hasmat Ali stated that on the morning of the date of occurrence he went to the house of the prosecutrix (P.W. I) and found that a portion of the wall was cut: This witness was declared hostile. P.W. 4 Naram Sheikh stated that on hearing the cries he went running to the house of the prosecutrix and saw accused running from the house of the prosecutrix. From moon light he could see the accused. P.W. 6 is the Investigating Officer. He only seized the dagger. However, he did not say anything about cutting of the portion of the house. In examination under Section 313 Cr. P.C. the accused-appellant denied all the allegations.