IN THE COURT OF ADDITIONAL SESSIONS JUDGE, KAMRUP,

GUWAHATI.

Present

Smti. Minakshi Rongpi

Additional Sessions Judge,
Kamrup, Guwahati

Sessions No. 337(K)/07

U/S 366/376/417/313 IPC

State of Assam
-- Vs --

DR. ABUL HUSSAIN

------ Accused
APPEARANCE
For the State

Mr. G. Das, Addl. P.P.

For the Accused

Mr. D.K. Mahanta, Advocate

Date of Evidence

02-01-08,01-02-08, 04-0608, 30-07-08,27-08-08,

06-11-08, 21-12-09, 28-0110 and 12-03-10,

Date of Argument

04-12-10 & 18-12-10

Date of Judgment

23-12-2010

JUDGMENT
In the instant case accused Dr. Abul Hussain is
prosecuted U/S 376/417/313 of CrPC for committing rap and
for deceiving fraudulently victim Sajina Begum to deliver her
chastity and to do miscarriage without her consent.

The prosecution version of the case may be briefly

summarized as follows:-

Complainant Smti Sajina Begum lodged an ejahar on

21-05-2003 to O/C, Jalukbari PS stating that she has been
working at Nemcare Hospital, Guwahati and residing at the
residence of A. Mazid at Nayanpur, Ganeshguri. Complainant
stated that Dr. Abul Hussain working in Barnibari PHC
forcibly committed rape on her by seducing and also forced
her to abort in a pharmacy. The said doctor after abortion
dropped her at the point of Maligaon and when she refused
to

take

money

from

him,

then

he

assaulted

her.

Complainant further disclosed in her ejahar (Ext-1) that now

the doctors is going to marry with another girl from Mirza
after illegally making her pregnant and forced her for
abortion. On receipt of Ejahar (Ext-1), O/C, Jalukbari PS
registered the case as Jalukbari PS Case No. 193/03 U/S
366/376/493/ 313 of IPC. On the same day police examined
the witnesses, arrested the accused person sent the victim
for medical examination and also recorded the statement of
victim by Magistrate. After completion of investigation police
submitted the charge sheet U/S 366/376/493/313 of IPC
against accused person.

The case being exclusively triable by the Court of

Sessions, so learned Sub-Divisional Judicial Magistrate,
Kamrup, Guwahati committed the case to the Court of
Sessions of Kamrup. Hence the instant case is being taken
up by this court for trial on transfer made by Honble

Sessions Judge, Kamrup, Guwahati. On hearing of both sides

Learned counsels as well as finding a prima facie case U/S
376/417/313/323 of IPC, the charge framed under the said
senctions of Law by my Learned predecessor. When contents
of charge interpreted and explained to accused person he
pleaded not guilty and claimed to be tried.

In support of prosecution case there 12 (twelve)

number of witnesses were examined. On closing the
prosecution case, the statement of accused person was
recorded U/S 313 CrPC. The plea of defence was of total
denial. Defence declined to adduce witness. I have carefully
perused the evidence on record and also heard argument at
length advanced by Learned counsels appearing for both the
sides.

: Points for determination in this Case :

1.

Whether on or before 20-05-2003 accused person

committed rape on victim Sajina Begum forcefully
without her consent?

2.

Whether accused person fraudulently cheated the

victim girl to deliver her chastity which caused
damage to her in body, mind and in reputation?

3.

Whether

accused

person committed offence by

causing miscarriage to victim Sagina Begum without

her consent or not ?
4.

Whether accused voluntarily caused injury to victim

girl or not ?

: Discussion, Decision & Reasons thereof :

In this instant case victim Sagina Begum deposed as

PW1 that on 21-04-2003 she lodged ejahar against accused
Dr. Abul Hussain on the day of occurrence of same day at
about 12.30 AM. The occurrence took place at nearby the 3
No. Gate of Maligaon. Ext-1 is the ejahar filed by PW1 and
Ext-1(1) is her signature. She said that since 1999 there
was affairs between PW1 and accused. After completion her
nurshing training, PW1 joined at Dewan Clinic in the year
2002, and accused person also joined at Barnibari PHC. It is
further stated by PW1 that accused person at the same time
was attending another Nursing Home known as Phuleswari
Nursing Home. During that period accused person took
her(PW1) to the Phuleswari Nursing Home and she was
spending about a month or some time 2/3 days along with
accused person. During that period due to cohabitation PW1
became pregnant. It is further stated by PW1 that she was
aborted three times by accused person; meanwhile PW1
joined

Sacred

Home

Nursing

Home

at

Kacharibasti,

Guwahati. According to her the accused person promised to

marry her, so PW1 accompanied him to his quarter. But
accused had sexual intercourse with PW1 by giving her
assurance but he postponed the matter on several time by
showing different grounds. After that she has been working
at Namcare Hospital as Nurse at Bhangagarh. During that
period she was residing at residence of Abdul Mazid at
Ganeshguri. During that period also PW1 admitted she has
good relationship with accused person and he is used to stay

with her at the rented house of Abdul Mazid. After that on

20-05-03 accused took her to Nalbari to get her marry, at
that time she was three months pregnant by accused person
on that day accused kept her(PW1) in the residence of her
friends. Next day on 21-05-03 at about 9.00 AM accused
along with PW1 they went to the Barman Clinic against her
wish and accused himself had done abortion to her. At that
time there was no doctor at the Barman Clinic except one
boy was present there. Then accused person took her (PW1)
to Guwahati by his motor cycle in spite of her bleeding and
he did not take proper care to her. When they reached at
Maligaon Gate No.3 accused asked her to get down from
motor cycle and gave her Rs. 20/- and asked her to go by
Mini bus. When PW1 refused to do as directed by accused,
then accused hurt her on her eyes with key ring of motor
cycle. When blood oozing from her eyes then accused took
her to nearby pharmacy. But the Traffic Police caught them
and brought them to jalukbari Police Station.

During the investigation, police sent the victim for

medical examination and recorded her statement U/S 164
CrPC statement by the Magistrate. Ext-2 is the statement
and Ext-2(1) and Ext-2(2) 9 is her signatures. PW1 said that
after one year of the occurrence she got marriage with
another boy. According to her accused also already got
married.

In her cross examination PW1 said that when Traffic

Police brought them to Police Station she lodged ejahar

(Ext-1) against accused person because she was aborted for

fourth time. It is disclosed by PW1 in her cross examination
that she filed this case because accused caused assault to
her in her eyes and accused made preparation to get marry
to another girl. She was suffering from bleeding due to
abortion and all these things she told before the police as
well as Magistrate when her statement was recorded. On
asking question by defence counsel she replied that on 2106-04 she got married with another boy. She does not know
when accused person has got married. It has admitted by
PW1 that in her ejahar she did not mention about the fact
that accused brought her to Nalbari for getting marriage
with her and she aborted three times earlier, before the
recent abortion. She denied the fact that accused person
was ready to marry another girl so she has filed this case
against him. PW1 expressed in her deposition that she has
now children and as accused tortured her physically and
mentally she desired that accused should go to the jail.
From the evidence of victim (PW1) it seems that accused
had sexual reolationship with her at her Ganeshguri Abdul
Mazid rented house as well as in the quarter of Phuleshwari
Nursing Home. Accused gave her assurance to marry her so
she at her own wish went to the Phuleswari Nursing Home
and quarter of the accused person.

PW2 Sri Ritukon Dewan stated in his deposition that

victim is his cousin sister and he knows the accused person
very well. According to PW2 the occurrence took place in the
year 2003 and during that period the victim (PW1) was

working as a Nurse. So far his knowledge goes since very

long time she had love affairs with accused person. PW2
heard about the incident that there was some quarrel and
assaultation between the parties then he went to the
Maligaon PS with the mother of the victim. There he (PW2)
came to know about the incident that on that day accused
person refused to drop the victim (PW1) to her Nursing
Home. Due to this issue there was marpeet between the
parties. The mother of the victim (PW1) told PW2 that
accused aborted Sajina at Nalbari and left her at Maligaon.
In his cross examination PW2 said that he had not seen any
quarrel and assaultation between the parties, but it was his
knowledge that on that day it was Assam Bandh. Next day
he went the police station; police interrogated him and
asked him about the relationship between victim and
accused person. During the time of occurrence PW2 working
as a Technician. But when police asked him he told him that
he was studying in the college. He denied the fact that he
told before the police that accused person had done abortion
to Sajina on 21-05-03. It is not fact that Sajina is his cousin
sister so PW2 gave false evidence in court.

PW3 Sri Sabindra Saloi deposed that he was working in

the Barman Pharmacy at Nalbari since 14 months prior to
the occurrence. Gynecologist doctor Nripen Goswami was
the doctor of the said pharmacy. PW3 further stated that he
knows the accused person very well because there was good
relationship between Dr. Nripen Goswami and the accused
person. On the day of occurrence about 9/10 AM the

accused person along with a girl came to his pharmacy in

absence of Dr. Nripen Goswami. Both of them entered into
the chamber of Dr. Nripen Goswami, but came out after 10
minutes so he does not know what they did inside the
chamber. Before their departure accused gave him Rs. 30/as electricity bills, later he came to know that accused used
a machine for which he gave him at Rs. 30/-. Police
interrogated PW3 and his statement was recorded by
Magistrate as Ext-3. In his cross examination PW3 denied all
these matters what asked him by the defence lawyer.

He

said in cross examination that he knows accused person

prior to six months of the occurrence. He denied the fact
that there was quarrel between accused person and him
(PW3).

PW4 Sri Digit Barman said that he knows accused

person very well. He heard that on 22-05-03 police took
PW3 Sabindra Saloi from the pharmacy. PW3 told him that
in the chamber of Dr. Nripen Goswami accused Abdul
Hussain had done abortion of one girl. In that connection
police interrogated PW3. It has also further stated by PW4
that in absence of Dr. Goswami the incident took place. In
her cross examination PW4 stated that police interrogated
him also. It is also stated by PW4 that he has no knowledge
that in the chamber of the pharmacy if there is any earlier
abortion case prior to this incident. PW5 Sri Apurba Kumar
Roy stated that at that time of occurrence he was a
constable as well as a Traffic Police. According to PW5 on
21-05-03 at about 9.30 PM he saw some people gathered at

Maligaon Gate No.3. On reaching there he saw that there

was quarrel between a girl and boy and blood was oozing
from the head of the girl. Then he took the girl to nearby
pharmacy and after that he sent the accused and victim with
a police to the Jalukbari police station. He could not
recognize when he saw the accused person in the dock. In
his cross examination PW5 denied the fact that on that day
he was not present at the traffic point at Traffic Police and
on 21-05-03 at Maligaon Gate No.3 there was no incident
happened between the parties.

Evidence of PW6 is that on 21-05-03 he was also in

duty in traffic branch at Jalukbari. On that day at about 9.00
AM to 10.00 AM he saw some people gathered at the point.
On receiving he found that there was a hot exchange
between the boy and girl and found blood was oozing from
the head of the girl then they took the girl nearby pharmacy,
after that he took accused and the victim to nearby police
station. PW6 could not identify the accused person who was
standing in the dock.

In his cross examination he said that on the day of

occurrence when he asked the accused person about the
incident, accused told him that it was their personal business
and denied to disclose anything to him.

But he saw that

there was blood on the forehead of the victim girl.

PW7/ Medical Officer Dr. Amarjyoti Patowary deposed

that on 21-05-03 he was the Medical Officer on duty in the

10

Department of Forensic Medicine, GMCH and on that day he

examined one Sajina Begum, D/O Sahdulla Ahmed, Vill No.2
Nakul, PS Rangia vide Jalukbari PS Case No. 193/03 U/S
366/376/493/313 IPC and found as follows:

Evidence of Injury:

1.

Contusion of size 3cm X 3cm over right cheek, with

black eye in right side along with laceration of size
0.7 cm X 0.5 cm X 0.3 cm in right cheek, 1.5 cm to
right of outer canthus of right eye.

2.

Abrasion of size 1cm X 0.5 cm in dorsum of right

wrist joint.

3.

Abrasions of size 1.5 cm X 0.5 cm and 1cm X 0.2 cm

in dorsum of right forearm 15 cm below the tip of
olicranon process covered by seddish scab.

Veginal smears taken on glass slides for laboratory

investigation from around the cervix and posterior fornix of
vagina does not reveal any spermatozoa or gonococci under
microscope.
Evidence of stain: Blood stained pad present in perineum.
Mental condition : Nothing abnormality detected.
Co-operation and behaviour: good.
Intelligence and memory: average.
Gait: normal
Skyagram No. 7963 dated 23-05-03.
Wrist joint, Elbow joint, Soulder joint: Epiphyseal joint of
bones around the joint are completed.

11

Pelvic Joint: Epiphyseal union of bones around the iliac

crest are completed.
The radiological report was prepared by Dr. BJ Sarma,
Professor of Radiology Department, GMCH.
Opinion:
1.

Evidence

of

recent

sexual

intercourse

is

not

detected, however she is used to sexual act. Injuries

present and are as described above which were
caused by blunt force impact, seddish in colour.
2.

Evidence of recent expulsion of product of conception

detected (recent abortion).

3.

Her age is above 20 (twenty) years.

Ext-4 is the Medical Examination Report and Ext-4(1) is

his signature. Ext-4(2) & 4(3) are his signatures. Ext4(4), 4(5), 4(6) and 4(7) are the signatures of Dr. KC
Das. Ext-4(8) is the signature of Dr. BD Roy Medhi
Professor and Head of the Department of Forensic
Medicine, GMCH who was his concurring authority. Ext-5
is the Police forwarding for medical examination of the
victim girl and Ext-5(1) is his signature.

PW8

Sri

Utpal

Rajkhowa

the

then

Judicial

Magistrate, 1st Class, Guwahati deposed that on 23-05-03 he

directed by learned Chief Judicial Magistrate to record the
statement of witness Sri Sabindra Saloi U/S 164 of CrPC.
After recording statement (Ext-3) he sent back the record to
the learned Chief Judicial Magistrate. According to PW8
witness Sabindra Saloi told him that on that day it was
Assam Bandh and accused person came to his pharmacy

12

and asked about Dr. Nripen Goswami. The evidence of PW9

Sri Mukul Das said that on the day of occurrence at about
10.30 AM he was in the pharmacy at Maligaon he saw that
some people gathered nearby his pharmacy and police came
and took one person along with a girl in an auto rickshaw,
later police took his signature. In his cross examination he
has stated that on that day it was due to Bandh there was
no city bus. The evidence of PW10 Md. Rasul Ali who is
working at one PCO at Maligaon saw that there was
marpeet between a girl and the boy nearby his PCO,
people gathered there. Later he saw bandage some part of
the body of the girl. But PW10 could not say which part of
the body of the victim. Police came to his PCO and prepared
same paper in his P.C.O. The then First Class Magistrate
Smti Moushumi Dey deposed as PW11 that she recorded the
statement of the victim girl Sajina Begum U/S 164 CrPC.
PW11 identified the statement as Ext-2. PW11 recorded the
whole statement of the victim girl as stated by her. In her
cross examination PW11 said that she read over the whole
statement to victim before she put her signature in Ext-7.
The Investigating Officer Mina Kanta Dutta deposed as PW12
that on that day he was Attached Officer of Jalukbari PS on
21-05-03. According to PW12 on that day Police Constable
of Traffic Branch told him that while he was in duty one pair
of boy and girl were quarreling at the Police point and they
started

marpeet

between

them.

Then

the

Constable

interfered the matter and took both of them a rickshaw and

handed over them to Jalukbari PS. The girl then filed one
written ejahar before Jalukbari PS against accused person.

13

PW12 took up the matter for investigation and recorded the

statement of both victim and accused, sent the victim to
GMCH for her medical examination, inspected the place of
occurrence

took

the

statement

of the

witnesses

and

prepared a sketch map at the place of occurrence. After

medical examination sent the victim before the Magistrate to
record her statement U/S 164 CrPC. On the same day i.e. on
21-05-03 Investigating Officer (PW12) has arrested accused
Dr.

Abul

Hussain

and

sent

Investigating Officer identified

his

signature

as

Ext-6(1).

him

to

the

Court.

The

the seizure list as Ext-6 and

Next

day

on

22-05-03

Investigating Officer went to Nalbari for his purpose of

investigation. Meanwhile PW12 has transferred from there to
some other places and he handed over the case diary to the
O/C. Then O/C who is submitted charge sheet against
accused Abul Hussain U/Ss 366/376/493/313 of IPC. Ext-8
is

the

charge

sheet.

In

cross

examination

PW12

(Investigating Officer) did not mention that from where he

has seized motor cycle. Investigating Officer wanted to
examine one witness Ahab Ali, but he could not able to find
him out. It is further stated by Investigating Officer that on
that day the complainant was unable to depose her
statement, so on 24-05-03 he recorded the statement of
complainant. It is further stated that on 22-05-03 he came
from Nalbari at 8.00 PM and then so he sent the victim on
23-05-03 to the Court to record her U/S 164, CrPC
statement.
While weighting the evidence of prosecution side, I
have taken in to consideration of the explanation given by

14

the accused to the questions on incriminating evidence

against him recorded U/S 313 CrPC, because the accused is
a competent witness U/S 315 CrPC. In his U/S 313 CrPC
statement accused denied most all the questions asked by
the Court. Accused stated that false allegation lodged
against him. Accused further stated that he had good
relationship with victim (complainant), but there was no love
affairs with her.

From the evidence of witnesses including the victim girl

and her U/S 164 CrPC statement there is no doubt that
Complainant (PW1) has aborted several times due to her
pregnancy. Though accused denied in his U/S 313 CrPC
statement he had no affair with complainant but from the
evidence of witnesses it transpires that both the parties
were in love for many years. On the day of occurrence PW1
(Complainant) lodged complain petition because on that day
there was some quarrel and marpeet had arisen between
them. When traffic police brought them to the police station,
police saw some main injury due to their marpeet, under
such circumstances she disclosed that she had affair with
accused person since many years; she also aborted on
previous day and at present accused intended to get marry
with another girl so she filed a complain petition in the police
station. Medical report reveals about recent abortion of
victim girl. It is also evident that though there is no recent
sexual intercourse but in doctor opinion she is used to
sexual act. In her ejahar (Ext-1) dated 21-05-03 she
mentioned that accused forcefully had sexual intercourse

15

with her and forced her to abort in a Nursing Home at

Nalbari. On the same day they were coming from Nalbari
towards Guwahati and at Maligaon they had quarrel because
according to PW1 as because accused decided to marry
another girl. But it appears from the record that she has
done miscarriage for fourth time why she remained silent
during the period of earlier miscarriage in spite of having
forceful sexual relationship by accused as alleged. It seems
that only because of accused was going to marry another
girl and assaulted her when she refused to go on the bus at
Maligaon Police Point for that reason complainant lodged
ejahar to police. Compelling all the earlier allegation
occurred to her when she got relationship with accused
person. From the attitude and statement of the victim (PW1)
it transpires that victim is a consenting party besides she is
a major working lady and has sufficient knowledge about
consequence sexual intercourse.

In view of above facts and circumstances naturally

doubt arises in my mind whether consent given by the
victim to sexual intercourse is voluntarily or whether it is
given under a misconception of fact. The statement and
evidence of victim creates a doubt about whether the
promise to marry induced her to consent to having sexual
intercourse with the accused person. Why victim did not
lodge

complaint

when

accused

person

forced

her

to

miscarriage for first time? When there was no possibility to

get marry with accused person at that time it appears that
there was a possibility of which victim was conscious that

16

the marriage may not be taken place between them despite

of promise made by accused person. There is strong doubt
whether accused had reason to believe that the victim had
consented to having sexual intercourse with accused only as
a consequence of her belief based on assurance of accused
that he will marry the victim in due course of time. There is
no such evidence found in the record also. In this connection
I would like to cited one decision from Honble Gauhati High
Court 2008 Crl. L.J. 1303-

Penal Code (45 of 1860),S. 376-Rape ProofProsecution case that accused forcibly committed rape
on victim who came to his house and thereafter
threatened her by showing a dagger that if she
discloses occurrence to anyone or if any case was filed
against him, she and her father would be killed- Delay
of more then seven months in not only lodging the
complaint,

but

even

in

disclosing

the

alleged

occurrence of rape-No evidence showing that such

intimidation,

prevented

her

from

making

any

disclosure of occurrence for more than seven monthsPossibility of accused having sexual intercourse with
victim

with

her

consent

cannot

be

ruled

out-

Conviction of accused, not proper.

In

facts

and

circumstances

appearing

from

the

evidence and from the above discussion of law it appears

that the delay in disclosure of commission of an offence is
relevant in criminal trial, but in case of rape the delay is not

17

an aspect. However in the instant case the evidence as

analysed above, clearly reflects that most of the witnesses
including victim (PW1) are not found reliable witness in as
much as their evidences closely analysed leaves no room for
doubt. The testimony of their witnesses cannot be made
basis for conviction of the accused since this Court has
disbelieved the evidence of victim that accused forcibly
raped her and aborted her without her consent.

:ORDER:

Considering the above facts and circumstances and all

those aspects of prosecution evidence, I am of the opinion
that no offence U/Ss 376/417/313/323 of IPC has been
committed by the accused person. In the premises, I am
constrained to hold that the prosecution has miserably failed
to prove the charges levelled against the accused person.

Therefore, the accused person is acquitted of charges

U/Ss 376/417/313/ 323 of IPC on benefit of doubt and set at
liberty forthwith.

The judgment and order as above pronounced in the

open court, in presence of both the parties on this the 23rd
day of December, 2010 under the hand seal of this Court.
Dictated & Corrected by me.

( M Rongpi)
Addl. Sessions Judge
Kamrup: Guwahati

(M Rongpi)
Addl. Sessions Judge
Kamrup: Guwahati