- (1.) Heard Mr. M.A. Sheikh, learned Counsel appearing for the convict appellant. Also heard Mr. K. Munir, learned Addl. Public Prosecutor, for the State of Assam'.
(2.) The convict appellant herein challenges the judgment and order dated 12.2.2007 passed by the learned Assistant Sessions Judge, Barpeta, in Sessions Case No. 165/2006 whereby he was convicted under Section 457/376, IPC and sentenced to undergo rigourous imprisonment for a period of 1(one) year under Section 457, IPC and sentenced to undergo rigorous imprisonment for a period of 7 years under Section 376, IPC. Both these sentences were directed to run consecutively. The case of the prosecution, in brief, is that one Azimon Nessa filed a complaint petition before the Court of learned Chief Judicial Magistrate, Barpeta, to the effect that her husband frequently goes from place to place for his business purpose and in absence of her husband she remains at home with her two minor children. In the night of 31.12.2005, at about 11 p.m., while her husband was absent, the convict appellant entered into her house by breaking open the wooden door, caught hold and gagged her mouth and thereafter, outraged her modesty forcibly and at the time of departure, snatched and took away a golden chain from her neck. The complainant informed the incident to her husband after his return who later on informed the same to the villagers. The villagers assured them that a village mel would be convened to settle the matter and as such, there was a delay in filing the complaint. However, as the complainant failed to get justice from the villagers/village mel, she filed a complaint petition on 17.1.2006 before the court of learned Chief Judicial Magistrate, Barpeta, which was registered as Case No. 102C/2006 under Section 376, IPC. The case was made over to the Court of learned SDJM(S), Barpeta, for disposal and the learned Magistrate after examining the complainant and the listed witnesses, took cognizance of the case under Sections 376 and 457, IPC. Thereafter, on production of the appellant in the court, he was remanded to jail hajot on 26.10.2006. The learned SDJM(S) committed the case to the Court of Sessions for trial. The case being made over to the Court of learned Assistant Sessions Judge, Barpeta, framed charges under Sections 457/376, IPC against the appellant to which he pleaded not guilty and claimed to stand the trial. The prosecution examined as many as 8(eight) witnesses to establish its case while the defence examined as many as 4(four) witnesses in his defence.
(3.) It may be noted that the complaint petition was filed on 17.1.2006, i.e., after more than 16 days from the date of occurrence which took place on 31.12.2005. The prosecuyrix, as PW1, deposed that she was sleeping with her 2 minor children in her house in the night of the incident while her husband was away from home for his business. Taking advantage of absence of her husband, the appellant convict, at about 11 p.m. of 31.12.2005, entered into her house by breaking open the wooden door and forcibly raped her by gagging her mouth. While fleeing from the place of occurrence, the appellant convict also snatched away a golden chain from the victim woman's neck. The prosecutrix made a hue and cry after the accused left her house and upon hearing her cries, PW2 Fajila Khatun and her husband Bhumor Ali (PW3), neighbours, immediately came to her house. The prosecutrix told them about the incident. In the next morning also, she informed the said incident, to her neighbours. The village people suggested her to wait till return of her husband. After 3 days of the incident, the husband of the prosecutrix returned home. After hearing the incident, her husband convened village mel twice. In the first village mel, the appellant convict did not appear. In the second village mel which was conducted under the presidentship of Sri Dimbeswar Nath in the house of Hakim, the appellant convict appeared and admitted his guilt before the people present in the village mel. However, the village mel failed to provide justice to the prosecutrix and as such, she filed a complaint petition before the court of learned Chief Judicial Magistrate, Barpeta. In cross-examination, the prosecutrix stated that she did not lodge any FIR with the police station. The prosecutrix also stated that after the arrival of his husband at home, the appellant convict attempted to assault him (her husband) and instituted a case against her husband. According to her, their minor sons aged about 8 and 7 years respectively, who were sleeping with her in that night were not aware anything about the occurrence. The prosecutrix further stated that she did not go to any Doctor for medical examination. She also stated that she had shown the broken wooden door to the villagers.;