I.A.ANSARI,J. - (1.) BY judgment and order, dated 14. 03. 2007, passed, in Sessions Case No. 02/2000, the learned Sessions Judge (Fast Track Court), Eastern Zone Namsai, has convicted the two accused persons, namely, Baiju Baby and Raju Chetri under Section 376 IPC and sentenced each one of them to undergo rigorous imprisonment for seven years with fine of Rs. 3,000/- and, in default of payment of fine, to undergo simple imprisonment for a further period of three years. A reference has accordingly been registered by the High Court in terms of the provisions of Section 30 (1) of the Assam Frontier (Administration of Justice) Regulations, 1945. Aggrieved by his conviction and the sentence passed against him, one of the convicted persons, namely, Baiju Baby, has preferred an appeal, which has given rise to Criminal Appeal No. 03 (AP)/2007. No appeal has, however, been preferred by the other convicted person. As both?the reference as well as the appeal?have arisen out of the judgment and order, dated 14. 03. 2007, aforementioned, we propose to dispose of the reference as well as the appeal by this common judgment and order.
(2.) WE have heard Mr. PK Tiwari, learned counsel for the appellant, and Mr. K. Jini, learned counsel, appearing for the accused, who has not preferred any appeal. We have also heard Mr. RH Nabam, learned Public Prosecutor, for the State. As the entire case against the two persons, who stand convicted, revolves around, broadly speaking, the testimony of the prosecutrix, her description of the alleged occurrence has become the foundation of the prosecution's case. It is, in the peculiar facts and circumstances of the present case, appropriate to consider her evidence to appreciate as to what really is the case of the prosecution.
(3.) THE alleged occurrence, as unfolded by the evidence of the prosecutrix, namely, BK (PW1), who is wife of LK (PW2), may, in brief, be described thus: (i) PW1 lives with her husband, who remains, generally, idle at his home. At some distance from their house, PW1 has taken, on rent, a house, which consists of two rooms. While one part of the room is occupied by PW1, the other part is occupied by another female person, namely, SM. PW1, admittedly, sells locally made liquor from her said rented room. In fact, in most of the houses in the area, where PW1 carries on the business of sale of Apong (i. e. , local beer), selling of liquor is the prime source of livelihood. Most of these houses do not enjoy supply of electricity and, therefore, use candles, etc, for lighting the rooms. (ii) Describing the occurrence, PW1 has deposed that on 20. 10. 99, at about 2100 Hrs, while she was in her said rented room at Kicher Line, Tezu, two persons entered into her room, dragged her, by holding a flock of her hair from the back side, to the bushes at a distance of about 80-90 meters from her room and though she tried to shout, she had almost lost her senses and when she regained her senses, she found herself lying in the bush. One of the accused, according to PW1, held her throat and the other one was holding a dao, which she has identified as M. Ext. 1. What is, however, important to note, in the evidence of PW1, is that the dao, held by one of the accused, was shining and, hence, out of fear of her life, she had to remain silent. (iii) Proceeding with the description of the occurrence, PW1 has also deposed that the two accused, thereafter, threw away her wearing apparels, namely, M. Ext. 2 (Bra), M. Ext. 3 (Salwar) and M. Ext. 4 (Torn Bra), and the Nepali Boy committed rape on her twice while the other accused committed rape on her only once. PW1 has also deposed that she heard the Nepali Boy (accused Raju Chetri) saying, while the other accused was standing far away, "this woman should have been finished" and, then, both the accused left the place of occurrence. (iv) PW1 has further deposed that she came back from the place of occurrence to her rented house and, thereafter, she straightaway went to her own residence. It is in the evidence of PW1 that while her husband used to stay in their residential house, she used to be in the said rented house, where she used to sell local liquor, and, on the night of the occurrence, since customers had been continuously drinking Apong, she had to stay there until the time the incident took place. ;