Point of Law: Credence cannot be given to evidence of prosecutrix whose evidence is not even substantiated by evidence of her mother-in-law and husband.

JUDGMENT :

1. Heard Mr. A.K. Purkayastha, learned counsel for the appellant. Also heard Mr. D. Das, learned Addl. P.P. for the respondent.

2. This appeal is directed against the judgment and order of conviction and sentence dated 30.11.2010 passed by the learned Sessions Judge, Karimganj, in Sessions Case No. 80/2009, convicting the appellant under Section 354/34 IPC and sentencing him to undergo rigorous imprisonment for two years and under Section 457/34 IPC and sentencing him to undergo rigorous imprisonment for 3 (three) years and to pay a fine of Rs. 1,000/-with default stipulation.

3. The genesis of the case was that on the midnight of 11.09.2007, two persons, Md. Nurul Haque and a child in conflict with law (CICL for short) knocked the informant’s door and called out her husband’s name. When the informant heard them, she could recognise them and sensing trouble, she answered that her husband was not at home and she also questioned about their intention for visiting her late at night as the visitors were well aware that her husband was not at home. Both the accused named in the FIR then broke into her house by smashing the window panes on the northern side of the informant’s house and attempted to commit rape on her. When the informant screamed, the neighbouring people arrived and the accused persons fled the scene. The informant then could recognize the accused persons through the flash of her torchlight. After a telephonic conversion with her husband and on his approval, she went to the police station and lodged the FIR, which was registered as Patharkandi P.S. Case No. 144/2007, under Sections 457/376 read with Sections 511/34 of the Indian Penal Code (IPC for short). The Investigating Officer (I.O. in short) embarked upon the investigation. He recorded the statements of the witnesses and forwarded the victim for medical examination and for recording her statement under Section 164 of the Code of Criminal Procedure (Cr.P.C for short).

4. On completion of investigation, charge-sheet was laid against Md. Nurul Haque (hereinafter referred to as the appellant) and the CICL under Sections 457/376/34 IPC. The case of the CICL was taken up by the Juvenile Justice Board, Karimganj and this case against Md. Nurul Haque was committed for trial. At the commencement of trial charges under Sections 457/376/511/34 were framed and read over and explained to the appellant, who abjured his guilt and claimed innocence. Who substantiate its stance, the prosecution adduced the evidence of 5 (five) witnesses and the defence cross-examined the witnesses to refute the charges. On the incriminating circumstances arising against him, several questions were asked to the appellant and his responses were recorded.

5. The trial Court decided this case on the following points :-

“(1) Whether accused along with CICL committed house breaking by night on 11.09.2007 at or about mid night and criminally trespassed into the dwelling house of the complainant namely ‘X’ at Narayanpur for committing robbery and rape upon ‘X’,

(2) Whether the accused at or about the same time, same date and same place made attempt to commit rape upon ‘X’, and

(3) Whether the accused did as above in furtherance of common intention of the accused and another (name withheld).”

6. After scrutinising the evidence, it was held by the learned trial Court that the informant, PW-1, was the sole witness to the occurrence and the other witnesses PW-2 and PW-4 arrived at the place of occurrence on the following day, as the occurrence took place at midnight. The PW-2 and PW-4 noticed that the window was broken, supporting the contention of PW-1 that the culprits broke into the house of the victim by smashing the window. The victim’s evidence substantiates the contents of the FIR. The victim also could recognize her assailants, by the flash of her torch light. She also could recognise them through their voice. She flashed the torch light and noticed the appellant and the CICL escaping. She stated