INTRODUCTION:
In this case appellant Mussauddin Ahmed was convicted under section 376 of the IPC by trial court and High Court. He appealed against the judgment of the Guwahati High Court in the Supreme Court of India. Main issue was related to the consent of the victim. And finally he was acquitted by the SC. BENCH STRENGTH:
2; J. Dr.M.K.Sharma and J. B.S. Chauhan.
POSITION OF CASE: This
case came into appeal before the Supreme Court of India. This
appeal was against the judgment of conviction and order of sentence of the Guahati High Court dated 20-2-2004 given sentence to 4 year and fine to Rs. 1000. A appeal was also filed in the against the judgment and order of the session court, Kamrup, Guwahati but this appeal was dismissed by the High Court and maintain the conviction under section 376 of IPC. But high reduced the punishment given by session court. Session court sentenced to undergo rigorous imprisonment for 10 year and to pay a fine of Rs. 2000 and in default to undergo imprisonment for another 6 months.
STATEMENT OF THE PROBLEM:
Facts of the case are following:
Appellant Mussaudin Ahmed alias Musa abducted a minor girl, namely, Mira Begum on 7-11995 and took her to a hotel and committed rape on her. Mira Begum (victim, PW4) was working as a maid servant in the house of Abdul HaiLaskar (PW2) and his wife HasmatAra Begum (PW3) atGandhibasti under paltan bazar police station.Appellant was a security guard in the house of one Imran Shah of that locality. The appellant and prosecutrix (Mira Begum) knew each other from before. According to the prosecution report, on 7-1-1995, Mira begum went to see zoo with Suleman who was known to her without informing her employers. While they were coming back they met the appellant near Ulubarichowk. On seeing them together, the appellant got annoyed and he slapped suleman and threatened to hand them over to the police. Out of fear suleman ran away. The appellant on the pretext of taking her to the police station took her to Sodhi Hotel situated at Paltan Bazar. In the hotel he hired a room in fake names and kept her in the 1
room for whole night and committed rape on her 3 times. On the next day he sent her in a rickshaw. She telephonically informed her employers about the incident and after that her employer brought her to the house and here she narrated the whole incident before him.FIR was registered by PW2 (Abdul HaiLaskar) on 8-1-1995.
ISSUES INVOLVED:
1. Whether appellant is punishable under section 376 of the IPC? 2. Whether victim consented to the act or not? 3. Age of the prosecutrix was also an issue. Whether she was minor or major? LAW ON THE POINT:
1. Section 376 of the IPC- punishment for rape 2. Section 114A of the Indian evidence act- presumption as to absence of consent in certain prosecution for rape. 3. Section 164 of the Cr. P.C. - recording of confession and statement. 4. Section 53A of IEA- evidence of character or previous sexual experience not relevant in certain cases.
DECISION OF THE COURT:
Appeal was allowed by the Supreme Court against the
judgment of High court. The appellant was acquitted by the supreme court of the charges under section 376 of the IPC. THE RATIO: The
reason given by the SC for acquittal of accused of the charge under
section 376 of the IPC was on the ground of consent. As prosecution is failed to proof, that there was no consent by the victim so charges cannot be maintained under section 376 of the IPC, this case is taken as the case of consenting party and he will not be charged under section 376 IPC for rape. As to the matter of the age of the victim, SC came to the opinion that she was major or 18 years of age. PW1 Dr.Pratap Ch. Sharma who had examined her opined that she was 18 years of age. Though according to prosecution she was only 13 years of age at the time of incident but it was given by PW2 Abdul HariLaskar that she was 13/14 year of age which cannot be relied upon because he didn’t produce any evidence supporting this claim. Also Mrs 2
HasmatAra Begum kept silence on this point. Also no family member of victim turned up which is very unnatural. Had it been given by her family members or relatives it would be more reliable. It cannot be presumed that the prosecutrix did not have parents or other family members because Abdul HaiLaskar mentioned this in examination. Court cited the case GopalKrishanajiKetkar v. Mohd. Haji Latif 1 that in case if there is no evidence given which could throw light on controversy after having evidence in possession, the court may draw adverse inference under secti on 114 of the Evidence act, 1972. Court said that learned standing counsel for the state, Mr. Jr. Luwang, could not satisfy the court that why prosecutrix could not have raised the alarm or informed any person on road even in the absence of any allegation of threat or coercion. Also investigation officer did not examine any independent witness or an employee of the hotel which could be help in determining the consent by the victim. In absence of any proof that she didn’t consent, case would turn in favour of accused. Apex court said that since the prosecution has failed to prove its case beyond reasonable doubt no case is made out against the appellant Musauddin Ahmed for committing rape under section 376 of the IPCof the prosecutrix. So this turn the case in favour of appellant and so accused was acquitted by the SC.
CASE ANALYSIS:
This case has many fallacies which would make this case law as not a good law. There are many grounds to show fallacy in a judgment. These are grounds are: CONSENT: Court relied on the argument of the counsel of the appellant in Para 9 that during this period had it not been a case of 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. He said that she remained with the accused 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 whole night with him and next day checked out with him and didn’t make any hue and cry or inform anybody that the appellant had misbehaved with her in any manner.
1
AIR 1968 SC 1413
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It is mentioned in the section 114 A of the Indian evidence act,1872 that in every rape trial if girl states in her evidence before the court that she did not consent, the court shall presume that she did not consent but this applies only to prosecution for rape under section 376(2) and for other offences prosecution have onus to proof is on prosecution. So according to the SC as prosecution case did not able to proof that she did not consented so the case would give in favour of accused. But it does not give indication that if girl do not report or share the incident with police or any other personshe must have been consenting. There are many circumstances where girls fail to report the incident or they don’t share it with any one because they don’t feel comfortable to share the incident with the society. There can be many reasons. Telegraphy report also shows that most of those who had been raped or sexually assaulted failed to report it to police (83%) and 29% did not even tell friends or family what had happened. Overall about half said that they would be too embarrassed or ashamed of the incident to admit it but 2/3 said they would be hesitating because of low conviction rates. 2 According to a government survey (National Family Health Survey report — 2005-06), 2 out of 3 women who have ever experienced violence have not only never sought help, but also have never told anyone about the violence. Women do not feel like filing report or informing anyone about the report because they have fear of society, sometime family, case don’t get resolved. These are some reason why girls don’t share with any one. Also if she had enough chance to inform anyone but she can’t share it with anyone whom she mates in her way. People won’t believe in her or if they do no action would be taken. Not informing anyone about the incident doesn’t indicate that she consent to rape. AGE: There is no certainty about the age of girl. Leaned counsel for the appellant has submitted that the prosecutrix was 18 years of age. But prosecution opined that she is 13 years old. Court also believed in the contention of appellant because there was no further discussion on the age. PW2 the informant deposed that she was 13/14 years but there is nothing on record to show that on what basis he has given her age. Also no family member of
2
http://www.telegraph.co.uk/news/uknews/crime/9134799/Sexual-assault-survey-80-of-women-dont-reportrape-or-sexual-assault-survey-claims.html
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the victim turned up. Her parents and other family members would be the more reliable source on this point. FACTS: There is no clarity regarding the facts of the case. Facts given by prosection side, appellant side and by victim herself during examination under section 164 and in courts are different. Both trial court and High court also proceeded with different set of facts as given in Para 12. Before the trial case prosecution case had been that the prosecutrix went to the zoo along with suleman and on her return from the 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 had been entirely deffirent as in para 5 of the HC judgemnt it has been stated that when the prosecutrix came out from the house of the informant PW2 Abdul HaiLaskar 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 PW2 to the effect that “on the previous evening, the appellant - accused Mussauddin Ahmed entered into the house and forcibly abducted his maidservant”. There had been contradictions regarding the factual aspects of the incident. EVIDENCE: Investigation officer also did not play his part well as he did not make effort to seize any material objects like clothes, blood samples etc. from prosecutrix and place of occurrence. Victim mentioned in her examination that accused took her to paltan bazar and there he forcibly tears open my clothes. IO also did not make effort to take semen, blood samples etc. from the appellant as these things could be help prosecution 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 IO has only seized the register of the hotel to establish that room no. 102 was booked in the name of appellant Mussaudin Ahmed and Marzina Begum as husband and wife. Name of the prosecutrix was not Marzina Begum so some person from the hotel should have been examined to identify her as well as the appellant. PREVIOUS SEXTUAL INTERCOURSE: PW 1 Dr.Pratap Ch. Sarma who medically examined the prosecutrix found that she was used to sexual intercourse and there was no injury of any kind on her body or private parts. Previous instances of sexual intercourse
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cannot be used as a ground. Not being any injury on his body or private parts does not show that she was not victim of sexual assault or rape. Also Dr.Pratap Ch. Sharma who medically examined her found that she was used to sexual intercourse. According to the section 53A in the Indian Evidence Act, 1872, “in a prosecution for an offence under sections 354, 354A, 354B, 354C, 354D, 354E, 376, 376A-E of IPC or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent..”. So it cannot be any ground to establish that she was consenting party. 3 Hence these are the grounds on which case has wrongly decided and it does not hold a good law.
3
K D Gaur, criminal Law cases &material, 8th edition
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