JUDGMENT
Aftab Hussain Saikia, J.
1. Heard Mr. J. Abedin, learned Counsel appearing for the appellant and Mr. P.C. Gayan, learned P.P. Assam
2. This Criminal appeal has been directed against the judgment and order dated 21.2.2006 passed by the learned Sessions Judge, Darrang, Mangaldai in Sessions Case No. 81 (DM)/05 where by the appellant was found to be guilty of abetment and accordingly she was convicted under Sessions 342/109/376 IPC and sentenced to undergo Rigorous Imprisonment (for short R.I) 3 (three) years 6 (six) months with a fine of Rs. 1000.00, in default R.I. for one month under Section 109/376 IPC. She was also convicted under Section 342 IPC and sentenced to R.I. for 6 months. Both the sentences were ordered to run concurrently.
3. The prosecution case in brief is that an FIR was lodged on 16.7.2004 with Dalgaon Police Station by one Rahima Khatun, wife of Miyar Ali P.W.4 alleging inter-alia that on 11.7.2004 at about 12.00 noon while she was away from home, the accused Samiran took her ten year old daughter, P.W. 1, the victim girl, to her house and detained her in a room by locking the door from outside. It was reported by her daughter that the accused Jahir Ali who was inside the room caught her and by showing a dagger committed rape upon her.
4. On receipt of the FIR, Dalgaon Police Station registered a case as Dalgaon Police Station Case No. 152/2004 under Sections 342/376/506/34 IPC. The case was investigated and charge-sheet was submitted on 28.2.2005 against Samiran Begum for trial.
5. The main accused Jahir Ali committed suicide on 5.9.2004 and therefore charges against him was dropped. The trial commenced against the accused Samiran Begum.
6. During the trial the prosecution examined the following witnesses:
1. P.W.1, Victim Girl.
2. P.W.2, Mrs. Sonabhan Nessa
3. P.W.3, Dr. Gopinath Bora, (Medical Officer)
4. P.W.4, Mustt. Rahima Khatun (Informant mother)
5. P.W.5, Mustt. Manjura Begum (Sister of the victim)
6. P.W.6, Mustt. Chandravan
7. P.W.7, Md. Rahim Uddin Ahmed (I.O.)
7. The learned Sessions Judge on appreciation of the material evidence on record both oral and documentary and also going through the documents so exhibited, found the appellant guilty of the offence above mentioned and accordingly sentenced has been imposed on the appellant as already indicated above.
8. On meticulous inspection of the evidence of all the witnesses so adduced as well as upon hearing the learned Counsel for the parties, it is seen that the P.W. 1, the victim, in her statement in chief deposed that on the date of occurrence i.e. 11.7.2004 while she was coming from the school and after taking her meal when she went out she met the accused/appellant on the road and when she enquired about the betelnut then the appellant told her that in her house some betelnuts were there under the table. Accordingly she went to the house of the accused Samiran Begum and searched for the betelnut. At that time accused Jahir Ali who was already there under the bed inside the room came out and caught her from behind and closed the door and on being asked the reason for closing the door, the accused Jahir Ali pushed her on the ground and showing one dagger and having bolted the door putting on “Dung”, he criminally assaulted on her. At that moment P.W. 1 also heard someone locked the door out side the room. She categorically stated that she could not know who locked the door. After the occurrence the accused Jahir Ali left the place. Fortunately grandmother of the victim had come there and took the victim to her house and thereafter she reported the matter to her family persons. Victim’s mother thereafter lodged the FIR. The police came and she was produced before the Magistrate and her statement was recorded. She was sent for examination to the doctor.
9. On cross she testified that it was Sunday and after the incident she lost her conscience and she could only see slightly that accused jahir Ali was going out of the place (room). Samiran, the accused/appellant had a shop of betelnut at her house. She used to go her house. On that day also she went to her place in search of betelnut and the appellant instructed to go her house for betelnut that was available under the table. Accordingly the victim went the house for betelnut where unfortunately the occurrence took place on that day. This witness did not know whether there was a lock on the door and even she did not notice whether there was lock or not.
10. P.W.2 who was the mother-in-law of the appellant was declared hostile.
11. P.W.4 the mother of the victim, P.W. 1, in her deposition stated that on the day of occurrence on coming back home after doing her home-work in the evening she was informed by P.W. 1 that the accused Jahir Ali committed rape on her in the house of the appellant. On being asked, her daughter told her that she went Samiran’s house for search of betelnut as per instruction of Samiran where she was forcefully and criminally assaulted by accused Jahir Ali. According to the witness she did not tell Samiran and she took the victim from Samiran’s house and lodged FIR.
12. P.W.5, the sister of P.W. 1, aged about 8 years told in her deposition that in the evening on hearing the scream of the victim from the house of Samiran, she came and found the door of the house was closed from inside by putting bolt. She could not enter the house. Victim was shouting from inside and she was standing outside the room. Through the broken wall of the house she saw Jahir Ali was on the victim holding with a dagger. Thereafter she came back and narrated the incident to the family members P.W. 1 came home lateron. On cross she told that when she reached the place of occurrence she did not find the appellant there and she went to some other place.
13. P.W.6 was declared hostile.
14. P.W. 7 was I.O. in this case. In his deposition, it was stated that on receipt of the FIR he was entrusted with the investigation and accordingly he inspected the place of occurrence on 17.7.2004. The victim accordingly was sent to the Court for recording her statement under Section 164 Cr.P.C. and she was also sent for medical examination.
15. Now coming to the medical evidence of P.W.-3 who examined victim girl, it appears that the doctor found the following injuries on her person.
Time of examination 1.45 P.M. at Labour Room Mangaldoi Civil Hospital. Examined with full consent of the victim and in presence of Smti. Dipali Gogoi, Staff Nurse, MCH. Identification Mark–A medium size black mole over upper part of left side of forehead.
Height–135 cm.
Weight–33 kg.
Teeth–14 number in each jaw.
Secondary sex organs–Partially developed breast.
Pubic hair–Scanty.
Par abdominal–NAD. Uterus normal size.
Mobile.
Per vaginal–Hymen absent. O.S. closed. No any injury detected in her private parts. Vaginal smear fails to show spermatozoa.
16. The doctor in his opinion was categorical in saying that no injury was detected on her person at the time of examination and as such no comment could be given regarding rape.
17. Further going through the evidence carefully, it appears that P.W.-1 in her deposition mentioned about the appellant only to the extent that when she asked her about betelnut, the appellant told her that the betelnut was there under the table in her house and then she went to the house of the appellant and at that time when she was inside the house in search of betelnut, one Jahir Ali came out from the below of the bed and got her from backside and she was criminally assaulted. Her statement to the effect that door was put under lock and key outside could not be proved by any other evidence except the child witness P.W.5. However, after going through the evidence of P.W.5 it transpires that she was not earlier examined as regards her capability to testify as competent evidence in the instant case in terms of Section 118 of the EvidenceAct.
18. Be that as it may, in her evidence the child witness said that the door was closed from inside having put on bolt. This piece of evidence completely negated the evidence of P.W. 1 to the effect that some body put the door under lock and key.
19. That apart, in her cross-examination, P.W. 1 testified that she did not notice whether there was any lock or not on the door.
20. In view of the above testimony, now let us examine the provision of Section 107 IPC which provides the abetment. Section 107 IPC provides as under:
107. Abetment of thing: A person abets the doing of a thing,
First–Instigates any person to do that thing; or Secondly–Engages with one or more other person or persons in any conspiracy for the doing thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly–Intentionally aids, by any act or ‘illegal omission, the doing of that thing.
Explanation 1–A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclosed, voluntarily causes or procures, or attempts to cause or procedure, a thing to be done is said to instigate the doing of that thing.
21. A bare perusal of the above section would go to show that to abet in doing of a thing initially there must be an instigation by the person to any person; in other words by the act of the person must be of the nature to instigate any other person to do that thing. In the instant case, it is clear on evidence that there was no evidence on record to indicate that the appellant ever instigated the victim, P.W. 1 to go to her house. It is clear from the testimony of P.W. 1 that she only enquired about the betelnut from the appellant who was having a shop of betelnut outside the house and on such enquiry the appellant only told that there was betelnut on the table inside the room and that too without any instigation she entered into the house where she was allegedly raped by the accused Jahir Ali who was already reported to be dead. Evidence did not disclose that the appellant was well aware of coming of the victim, P.W. 1 to her shop at that point of time and there was a conspiracy between the appellant and the accused Jahir Ali.
22. In the premises of the facts and circumstances as revealed from the evidence of the witnesses particularly P.W. 1, there is no hesitation of this Court to arrive at a decision to hold that ingredients for abetment as defined under Section 107 IPC to punish a person under Section 109 IPC are absolutely not available in the instant case.
23. It is also noticed from the evidence on record basically from P.W. 1 that the day of occurrence was a Sunday and as such the story of coming home from School and then going to the school of the appellant is not believable.
24. In view of what has been stated, discussed above, this Court is of the considered view that the prosecution failed to establish the offence under Section 109 against the appellant for abetting the commission of offence of rape under Section 376 by the accused late Jahir Ali on the victim, P.W. 1 and accordingly conviction and sentence so imposed upon her are hereby quashed and set aside.
25. Appellant be set at liberty forthwith if she is not connected in any other case.
26. In the result, this appeal succeeds and stands allowed.
LCR be send down immediately.