SOMNATH DEKA Vs. STATE OF ASSAM

JUDGEMENT

(1.) BY this common judgment and order, I propose to dispose of the two appeals, namely, Crl. Appeal Nos. 114/2005 and 116/2005, for, both the appeals have arisen out of the judgment and order, dated 20. 5. 2005, passed, in Sessions Case No. 6 (BGN)2002, by the learned Additional Sessions Judge (Ad-hoc), Bongaigaon. While the accused-appellant, Somnath Deka, stands convicted under Section 376 IPC, the accused-appellant, Rajib Dasgupta, stands convicted under Section 376 read with Section 109 IPC; but both of them stand sentenced to rigorous imprisonment for 10 years with fine of Rs. 5,000/- each and to suffer, in default of payment of fine, rigorous imprisonment for two months.

(2.) THE case against the accused-appellants, as unfolded at the trial, may, in brief, be stated as follows : on 6. 3. 2001, at about 5. 30 p. m. , Smti SS, mother of the alleged victim P, went along with her son, NS, to their local market. Her husband, BS, had not come back home from work till then. While so leaving her home, Smti SS left behind her 13 years old daughter, P, who was a student of Class-VI, and her younger son PS, aged about 5 years. Taking advantage of the absence of P's mother and other elder male members of her family, accused Somnath, accompanied by accused Rajib, came, to the house of SS on a motorcycle, bearing registration No. AMP 1155, which had been borrowed by them from the elder brother of Zakir Hussain, owner of the said motor cycle. Parking the motorcycle in front of the house of Smti. SS, both the accused entered the compound of the said house, went near P and asked her about someone's address. Though P told them that she was not aware of the address of the person, whose address the accused had been enquiring about, accused Somnath caught hold of P, dragged her inside the house, threw her on a bed, closed her mouth with his hands making her unable to raise cry for help, got up on her and forcibly had sexual intercourse with her. During the time, when accused Somnath was forcibly having sexual intercourse with P, accused Rajib was not present there; but he kept guard and when accused Rajib noticed Smti. SS and her son, NS, coming home, he came to the room, where accused Somnath was present, and told him that 'bhaiti' (i. e. brother of P) was coming. On hearing that P's brother was coming, Somnath went out of the room with Rajib; but before leaving the room, he threatened P and, then, both the accused went running to the said motorcycle and fled away. However, while the said motorcycle was lying parked in front of the house of Smti. SS, the same had been noticed by MT, a young boy of class-VII and a nephew of Smti S. S. In the light of the lamp, which was kept lit at the varanda of Smti SS, Smti SS too and her son, NS, saw the said motor cycle and also noticed that its number was AMP 1155. When the two accused were running away with the said motorcycle, they were noticed by Smti SS and her elder son, NS, there being sufficient light outside the house of SS. When Smti SS arrived home, she was reported about the occurrence by her daughter, P. Shortly thereafter, when SS's husband, BS, reached home, he was reported about the occurrence by his wife and also by the victim. Smti SS, then, accompanied by her husband and also the victim, went to Bongaigaon Police Station and lodged their FIR. Police got the victim medically examined on that very day and when Smti SS returned to the police station, they found that the police had already picked up the two accused. The doctor opined to the effect that the victim was below 16 years of age and she had been sexually abused. On the very day of the occurrence, at about 9 p. m. , police came to the house of Zakir and seized the said motor cycle and Zakir's elder brother, Dul Ahmed, confirmed that the said motor cycle had been borrowed and taken away by accused Rajib at about 4 'o' clock in the afternoon on that very day and that accused Rajib had returned the said motor cycle at about 7 p. m. Based on the FIR, which Smti SS had lodged, Bongaigaon Police Station Case No. 44 of 2001, under Section 376/34 IPC, was registered against both the accused. On completion of investigation, police laid charge against accused Somanath under Section 376 IPC and against accused Rajib under Section 376 read with Section 109 IPC. To the charges framed accordingly at the trial, the two accused pleaded not guilty to the respective charges framed against them.

(3.) IN support of their case, prosecution examined altogether 9 witnesses. The accused were, then, examined under Section 313 Cr. P. C. and in their examination aforementioned, both of them denied that they had committed the offences alleged to have been committed by them, the case of the defence being that of denial. No evidence was adduced by the defence. Having, however, found the accused persons guilty of the offences charged with, the learned trial Court convicted them accordingly and passed sentence against them as indicated hereinabove. Aggrieved by their conviction and the sentence passed against them, the two accused have preferred the present appeal.