ABBAS AHMAD CHOUDHARY v.

STATE OF ASSAM (Criminal Appeal No. 951 of 2004)

NOVEMBER 25, 2009 [Harjit Singh Bedi and J.M. Panchal, JJ.]

2010 (1) SCR 869

The following Order of the Court was delivered  

ORDER

1. These two appeals by way of special leave arise out of the judgment of  

the  High  Court  of  Gauhati  dated  26th  March,  2004  whereby  the  two  

appellants  have  been  convicted  and  sentenced  to  various  terms  of  

imprisonment and fine for offences punishable under Sections 376/34 and  

336/34 of the Indian Penal Code.

2. The facts of the case are as under:-

2.1.  At  about  8:00p.m.,  on  the  15th  September,  1997,  the  accused-

appellants Md. Mizazul Haq and Abbas Ahmad Choudhury and one Ranju  

Das (absconder) took up the prosecutrix and drove her in a Maruti vehicle to  

the Jalalpur Tea Estate after gagging her mouth. She was also raped by the  

three of them whereas the absconder also removed a sum of Rs. 40/- from  

her. An FIR was lodged at 10:30a.m. on 16th September, 1997, by P.W. 7  

Safaruddin, the maternal uncle of the victim and a case was duly registered.  

On the completion of the investigation the appellants were charged fro the  

aforementioned offences and as they denied the charges, they were brought  

to trial. The trial court relying on the evidence of P.W. 6 prosecutrix as also  

the medical evidence of P.W. 8 and the statements of P.W. 5 - Constable  

Ranjit Dutta who had apprehended the appellants and the prosecutrix on the  

evening of 15th September, 1997 and taken them to the police station as also  

the  Investigating  Officer  Dhiresh  Chadnra  Nath  -  P.W.  9  convicted  the  

appellants as already indicated above. The argument raised on behalf of the

appellants that the prosecutrix was about 16 years of age was repelled on the  

basis of the statement of P.W. 8 - Dr. Homeshwar Sharma who deposed that  

she  was  between  13  and  15  years  of  age  on  the  date  of  her  medical  

examination i.e. 17th September, 1997. The additional fact urged on behalf of  

the appellants that the medical examination had not revealed any trace of  

recent  sexual  inter  course  to  corroborate  the  allegation  of  rape  was  also  

repelled by observing that the said medical examination had been carried out  

after  48  hours  or  so  of  the  rape  and  the  signs  thereof  would  have  

disappeared  by the  passage  of  time.  The matter  was  thereafter  taken  in  

appeal  before the High Court  by the two appellants.  The appeal  too was  

dismissed as indicated above. It is in this situation that the matter is before  

us.

3. We have heard Mr. Shakeel Ahmed for the appellant - Abbas Ahmad  

Choudhary  and  Mr.  Surya  Kant,  the  learned  Amicus  Curiae  for  the  co-

accused Md. Mizazul Haq. We are of the opinion that the statements of the  

prosecutrix  P.W. 6, the constable  P.W. 5 and the Investigating Officer  P.W.  

9 are categoric insofar as the presence of Md. Mizazul Haq is concerned.  

Even in  her  statement  recorded under  Section 164 of  the Cr.P.C.  by the  

Magistrate on 17th September, 1997, the prosecutrix had clearly stated that  

she  had  been  kidnapped  and  then  raped  by  Md.  Mizazul  Haq  and  the  

absconding accused Ranju Das, and it was while they were returning to the  

village from Jalalpur Tea Estate that they had been joined by Abbas Ahmad  

Choudhary and he had merely held her hand while she was raped second  

time as well by the other two.

4.  Mr.  Surya Kant’s argument is that  the prosecutrix  had changed her  

story  time  and  again  and  had  substantially  made  her  statement  in  Court  

which belied her truthfulness is not acceptable for the reason that as far as  

Mizazul  Haq,  appellant,  is  concerned  she  had  been  consistent  in  her  

statements that he along with Ranju Das had raped her. Equally, we are of  

the opinion that in the light of the fact that the prosecutrix was 13-15 years of

age at the time of the incident, the consent, if any, can be inferred from the  

circumstances, would become meaningless.

5. We are however, of the opinion that the involvement of Abbas Ahmad  

Choudhary seems to be uncertain. It must first be borne in mind that in hery  

statement  recorded  on  17th  September,  1997,  the  prosecutrix  had  not  

attributed any rape to Abbas Ahmad Choudhary.  Likewise, she had stated  

that he was not one of those who kidnapped her and taken to Jalalpur Tea  

Estate and on the other hand she categorically stated that while she along  

with Mizazul Haq and Ranju Das were returning to the village that he had  

joined them somewhere along the way but had still not committed rape on  

her. It is true that in her statement in court she has attributed rape to Abbas  

Ahmad Choudhary as well,  but  in the light  of  the aforesaid contradictions  

some doubt is created with regard to his involvement. Some corraboration of  

rape  could  have  been  found  if  Abbas  Ahmad  Choudhary  too  had  been  

apprehended and taken to  the  police  station  by  P.W.  5  -Ranjit  Dutta  the  

Constable.  The  Constable,  however,  made  a  statement  which  was  

corraborated by the Investigating Officer that only two of the appellants Ranju  

Das and Md. Mizalul Haq along with the prosecutrix had been brought to the  

police station as Abbas Ahmad Choudhary had run away while en route to  

the police station. Resultantly, an inference can be rightly drawn that Abbas  

Ahmad Choudhary was perhaps not in the car when the complainant and two  

of the appellants had been apprehended by Constable Ranjit Dutta. We are,  

therefore, of the opinion that the involvement of Abbas Ahmad Choudhary is  

doubtful. We are conscious of the fact that in a matter of rape, the statement  

of the prosecutrix must be given primary consideration, but, at the same time,  

the  broad  principle  that  the  prosecution  has  to  prove  its  case  beyond  

reasonable doubt  applies  equally  to  a  case of  rape and there can be no  

presumption that a prosecutrix would always tell the entire story truthfully.

6. The appeal filed by Abbas Ahmad Choudhary is allowed. We order his  

acquittal. The appeal filed by Mizazul Haq is dismissed.