Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 879 OF 2004

Musauddin Ahmed …. Appellant

Versus

The State of Assam …. Respondent

J U D G M E N T

Dr.  B.S.  

Chauhan, J.  

1. This  

appeal  has  

been  

preferred  

against  the  

judgment and order of the Gauhati High Court dated 20.2.2004 passed in Criminal Appeal  

No.188/2003  by  which  appeal  against  the  judgment  and  order  of  the  Sessions  Court  

Kamrup,  Guwahati  in  Sessions  Case  No.87(K)/97  (GR.  Case  No.47/95)  has  been  

dismissed wherein the appellant was convicted under Section 376  Indian Penal Code (in  

short “IPC”) and sentenced to undergo rigorous imprisonment for ten years and to pay a  

fine of Rs.2,000/-, in default to undergo imprisonment for another six months. However,

the High Court reduced the sentence to four years and fine to Rs.1000/-.

2. The  facts  and  circumstances  giving  rise  to  this  case  are  that  the  appellant  

Mussauddin Ahmed alias Musa allegedly abducted a minor girl namely Mira Begum on  

7.1.1995 took her to a hotel and committed rape on her.   

3. The victim PW.4 Mira Begum was working as a maid servant in the house of  

PW.2  

Abdul  Hai  

Laskar  and  

his  wife  

PW.3  

Hasmat  Ara  

Begum  at  

Gandhibasti, under Paltanbazar Police Station, Guwahati.  Appellant  was a security guard  

in the house of one Imran Shah of that locality.  The appellant and prosecutrix knew each  

other from before.  

4. According  to  the  prosecution,  on  7.1.1995,  PW.4  Mira  Begum,  without  

informing her employer PW.2 Abdul Hai Laskar and PW.3 Hasmat Ara Begum went to  

see the zoo with one Suleman who was known to her. While they were coming back from

the zoo they met the appellant near Ulubari Chowk.  On seeing them together the appellant  

got annoyed and he slapped Suleman and threatened that  he would hand them over to  

police.   Out  of  fear  Suleman  ran  away.   The  appellant  on  the  pretext  of  taking  the  

prosecutrix PW.4 Mira Begum, to the police station took her to Sodhi Hotel situated at  

Paltanbazar.  In the hotel he hired a room in fictitious names and kept her in the room for  

the whole night and committed rape on her three times.  On the next morning he sent her  

in a rickshaw.  PW.4 Mira Begum came to the house of a person near Hazi Musafir Khana  

and  

telephonically  informed  her  employers  about  the  incident.   PW.2  Abdul  Hai  Laskar  

brought her to his house and she narrated the whole incident before him.  The written FIR  

relating to the incident was lodged by PW.2 Abdul Hai Laskar in the morning of 8.1.1995.  

Police registered the FIR and investigation was conducted by PW.7 Kanak Ch. Das, Sub-

Inspector of Police.  During investigation he got prosecutrix medically examined in the  

G.M.C.H. by PW.1 Dr. Pratap Ch. Sarma.  The statement of the prosecutrix was recorded  

by PW.5 Parthiv Jyoti Saikia Judicial Magistrate Ist Class, Guwahati under Section 164

Criminal Procedure code (in short “Cr.P.C.”).  

5. After completion of the investigation, PW.7 Kanak Ch. Das submitted charge-

sheet against the accused under Section 366/342/376 IPC.  

6. On  committal  of  the  case  to  the  court  of  Sessions,  charges  under  Sections  

366/376 IPC were framed against the appellant.  The appellant pleaded not guilty to the  

charge  and  

hence  trial  

commenced.  

7. During  the  trial  the  prosecution  examined  seven  witnesses  including  the  

Investigating  Officer.  The Trial  court  found appellant  guilty  of  the offence  punishable  

under Section 376 IPC and sentenced him to undergo rigorous imprisonment for ten years  

and to pay a fine of Rs.2,000/- in default to undergo imprisonment for another six months.

8. Being aggrieved the appellant preferred the appeal before the High Court.  The  

High Court upheld the conviction under Section 376 IPC but reduced the sentence to a  

period of four years and to pay a fine of Rs.1000/- in default to further imprisonment for  

one month.  Hence this appeal.  

9. Shri  Vishal  Arun,  learned  counsel  for  the  appellant  has  submitted  that  the  

prosecutrix was eighteen years of age.  Even if the prosecution case is believed, charge of  

rape  cannot  

be  held  

proved.  

The  

appellant  as  

well  as  

PW.4  Mira  

Begum  

prosecutrix  

were neighbours and knew each other.  On 7.1.1995 she had gone along with Suleman to  

the zoo.  When she was coming along with Suleman, they met the appellant who scolded  

both  of  them.   Suleman  ran  away  out  of  fear.   Appellant  asked  the  prosecutrix  to  

accompany him and took her in a rickshaw.  Both of them kept roaming in the city in  

rickshaw and city -  buses  and at  about  9 O’clock in  the  night,  the appellant  took the  

prosecutrix to Hotel Choudhury at Paltan Bazar, wherein he took the room on rent.  The

prosecutrix  accompanied  the  appellant  to  that  room.   Appellant  closed  the  door  and  

windows and committed rape on her.  Both of them remained there throughout the night  

and next day left the Hotel.  The appellant left the prosecutrix near Musafirkhana and went  

away.  

10. Learned counsel for the appellant has submitted that during this period, had it  

been a case of no consent, the prosecutrix had enough time and opportunities to inform the  

police  or  

any  other  

person  in  

the  hotel  or  

on  the  road  

about  the  

incident.  

Statement  

of  the  

prosecutrix recorded under Section 164 Cr.P.C. revealed that she remained along with the  

appellant for a very long time and had been roaming in the city by rickshaw and buses.  

She went to the Hotel without any protest and accompanied the appellant to the room,  

spent  the whole night  with him, came out in the morning after checking out  the hotel,  

traveled with him in a rickshaw from Hotel to Musafirkhana but did not raise any hue and  

cry or inform anybody that the appellant had misbehaved with her in any manner.  Such

conduct of the prosecutrix makes the prosecution case unbelievable.  PW.1 Dr Pratap Ch.  

Sarma  who  medically  examined  the  prosecutrix  found  that  she  was  used  to  sexual  

intercourse and that there was no injury of any kind on her body or private parts.  The  

prosecutrix was examined as PW.4.  There are serious contradictions in her deposition in  

Court and her statement recorded under Section 164 Cr.P.C.  The prosecutrix deposed in  

the Court that on the date of occurrence at about 10 O’clock she went out through the  

road.  The appellant was there and on the pretext of taking her to the cinema hall,  the  

appellant  

took  her  in  

a  rickshaw  

to  the  

Paltan  

Bazar  area  

where  he  

hired  a  

room in the  

hotel and committed rape on her.  It was a forcible act.  In examination-in-chief she did  

not  disclose  anything  about  her  visit  to  zoo  on  the  same  day  along  with  Suleman.  

However, in the cross-examination on being asked, she stated that Suleman had taken her  

to  zoo by car.   While  returning  back from zoo,  she met with  the  appellant  at  Ulubari  

Chowk.  The appellant wanted to assault Suleman, thus he ran away.  Prosecutrix could  

not furnish any explanation in her cross-examination, on being asked, as to why she could

not inform anybody in the hotel or while coming from the hotel on next day or on the road  

about the incident.  From the conduct of the prosecutrix during these two days, it can be  

inferred that it was a clear cut case of consent.

11. So far as the question of age of the prosecutrix is concerned, PW.1 Dr Pratap Ch.  

Sarma who had examined her,  opined that she was 18 years of age.  According to the  

prosecutrix she was only 13 years of age at the time of incident. PW.2 Abdul Hai Laskar,  

informant, deposed that prosecutrix was 13/14 years of age.  However, PW.3 Mrs. Hasmat  

Ara  Begum  

kept  silence  

on  this  

point.  

There  is  

nothing  on  

record  to  

show  as  on  

basis,  PW.2  

Abdul  Hai  Laskar  had given her  age.  It  appears  very unnatural  as  none  of  the family  

members of the prosecutrix comes to the scene.  Her parents or either of them or any other  

family member could be most reliable and natural witness on the point of her age.  PW.2  

Abdul Hai Laskar, in his examination in chief stated as under:

“Later the girl’s mother came and took her away.  At present she is  staying with her parents.”  

12. Thus, it cannot be assumed that prosecutrix did not have parents or other family  

members.   Prosecution  for  the  reasons  best  known to  it  examined her  employer PW.2  

Abdul Hai Laskar and his wife PW.3 Hasmat Ara Begum but did not examine any of her  

family member on the point of age.  

13. It is the duty of the party to lead the best evidence in its possession which could  

throw  light  

on the issue  

in  

controversy  

and  in  case  

such  a  

material  

evidence  is  

withheld,  

the Court may draw adverse inference under Section 114 illustration (g) of the Evidence  

Act notwithstanding that the onus of proof did not lie on such party and it was not called  

upon to produce the said evidence (vide  Gopal Krishnaji  Ketkar vs.  Mohamed Haji  

Latif  & Ors., AIR 1968 SC 1413).

14. The Trial Court and the High Court proceeded with altogether different set of

facts.  Before the trial Court the prosecution case had been that the prosecutrix went to zoo  

along with  Suleman and on her  return  from zoo the  appellant  had  seen  both  of  them  

together  and  slapped  Suleman  who  ran  away  and  thereafter  the  appellant  took  the  

prosecutrix on the pretext of taking her to movie and roamed; took her on a rickshaw to  

the hotel where she was kept and raped.  However, before the High Court the case has  

been entirely different as in paragraph 5 of the High Court judgment it has been stated that  

when the prosecutrix came out from the house of informant PW.2 Abdul Hai Laskar the  

appellant  

met her and  

proposed  to  

take  her  to  

witness  a  

movie  and  

she  went  

along  with  

him.   In  

para 2, the High Court has mentioned the facts that as per the FIR lodged by PW.2  Abdul  

Hai Laskar, to the effect that “on the previous evening, the accused appellant Musauddin  

Ahmed @ Musa entered into the house and forcibly abducted his maid servant.”  There  

had been material contradictions regarding the factual aspects of the incident itself.  There  

is nothing on record to show or furnishing any explanation as to why the Investigating  

Officer  did  not  seize  any  material  objects  like,  clothes,  blood  samples  etc.  from the

prosecutrix and the place of occurrence. PW.4 Mira Begum, prosecutrix has stated in her  

examination in chief as under:

“He took me to a room at Paltan Bazar.  There the accused forcibly  tears open my clothes.”   

15. The torn clothes were not recovered by the Investigating Officer.  The I.O. did  

not make any effort to take the semen, blood samples etc. from the appellant which could  

have given the prosecution an opportunity to obtain medical reports of the appellant as it  

was  

necessary to  

establish  

the  guilt  of  

the  

appellant.  

No  person  

has  been  

examined  

from the hotel to identify the appellant or the prosecutrix as the I.O. has only seized the  

register of the hotel to establish that room No.102 was booked in the name of appellant  

Mussauddin Ahmed and Marzina Begum as husband and wife.  Admittedly, the name of  

the prosecutrix was not Marzina Begum.  Therefore, some person from the hotel should  

have been examined to identify her as well as the appellant.

16. Learned Standing counsel  for the State, Mr. Jr. Luwang, could not satisfy the  

court as to why in absence of any allegation of threat or coercion, the prosecutrix could  

not have raised the alarm or informed any person on the road. Nor he could explain as to  

why the independent  witness  or  an employee of  the hotel  was not  examined and why  

parents of the prosecutrix were not examined to find out her age.   

17. The prosecutrix appears to be a lady used to sexual intercourse and a dissolute  

lady.   She  

had  no  

objection  in  

mixing  up  

and  having  

free  

movement  

with  any of  

her  known  

person, for enjoyment.  Thus, she appeared to be a woman of easy virtues.   

18. In this view of the above, we are of the considered opinion that the prosecution  

failed to  prove its  case against  the appellant  beyond reasonable  doubt.   The appeal  is  

allowed.  The impugned judgment  of  the High Court  and the  trial  court  are set  aside.  

Appellant is acquitted of the charge under Section 376 IPC.  The appellant is on bail.  His

bail bonds are discharged.   

……………………………….J. (Dr. Mukundakam Sharma)

…….…………………………J. (Dr. B.S. Chauhan)

New Delhi; 6th July, 2009.