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2010 DIGILAW 347 (GAU)

State of Arunachal Pradesh v. Samail Baiju

2010-05-18

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. I. Basar, learned Additional Public Prosecutor, for the State of Arunachal Pradesh. Also heard Mr. K. Ete, learned Amicus Curiae for the convict. 2. This is a criminal reference under Section 30 of Assam Frontier (Administration of Justice) Regulation, 1945, for confirmation of conviction and sentence dated 31.08.2007 rendered by the court of learned Additional District & Sessions Judge, Fast Track Court, Eastern Zone, Namsai, in Sessions Case No. 08/05, whereby, the convict Samial Barju was convicted under Section 376I.P.C. and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 1000/- only, in default, of which the convict shall undergo a further term of 1 month simple imprisonment. The prosecution story is founded on an FIR dated 29.07.2004 lodged by one Smt. Ganga(real name of victim woman withheld) with the in-charge, Changkham Police Out Post, which was forwarded to Namsai Police Station and registered as Namsai P.S. Case No. 53/2004 under Sections 376/34 I.P.C. against the present convict and co-accused Sri Jakrias Soley wherein it has been alleged that on 27.07.2004, at about 6 PM, while she was returning home from the Zero Point near Kamlang Bridge, the aforesaid accused persons snatched away her 'dao' and the convict committed rape on her by force. The I.O. of the case visited the place of occurrence, prepared a sketch map and collected and seized the torn garments of the victim woman and sent the same for FSL testing at Guwahati. Both the victim and the convict Samial Barju were medically examined by the Doctor concerned in Chowkham CMC. The accused persons were arrested and forwarded to the court of Judicial Magistrate, First Class, Namsai. The I.O. collected the medical and F.S.L. reports and after completion of the investigation and submitted the charge sheet against the convict aforementioned under Section 376 I.P.C. only and the other co-accused was discharged as sufficient evidence was not found against him. The case was committed to the court of learned Additional District "& Sessions Judge, Fast Track Court, Eastern Zone, Namsai, for trial. The convict was provided with defence Counsel according him legal aid at the expense of the State exchequer. The convict pleaded not guilty of the charge and demanded to stand the trial. 3. The case was committed to the court of learned Additional District "& Sessions Judge, Fast Track Court, Eastern Zone, Namsai, for trial. The convict was provided with defence Counsel according him legal aid at the expense of the State exchequer. The convict pleaded not guilty of the charge and demanded to stand the trial. 3. The prosecution examined as many as 4(four) witnesses including the prosecutrix and the medical officer while the defence examined none. 4. The victim woman was examined as PW-1. She deposed that the incident took place at around 6.30PM to 7PM and it was quite dark. She was followed by the accused persons who asked for the 'dao' she was carrying. She knew both the accused persons by face but she did not know their names. Both the accused persons according to her, used to stay in a camp and she used to see them usually. Both the accused persons attempted to snatch the 'dao' twice and ultimately, they succeeded. It was Samial Barju, who torn her clothes and raped by force. The convict tried to drag the victim woman to the jungle to rape her for the second time but somehow, she ran away naked. In her examination-in-chief, she stated like this - ...out of fear, I stayed in the jungle for the whole night in the next morning I left to my house. I was raped twice in the third time I ran away. I had resisted the even cried and shouting hut he did not scar me." In her cross-examination, the victim woman, however, deposed like this - "...it would he more than 1 hour from the time of struggling attempting and actual raped on me. He only took out his long pen and at the time of raping he took up his underpants. The accused was holding )ne with his hand and other hand of the accused was took up his clothes. The co-accused took up the dao to the village.../ was screening, crying and pleading for spearing while committing sexual assault me by Samial Barju. I do not remember I physically resist hint.../ had some injury on my back. My writch was little bit swollen and have pain for many days. As I was shock I forgot the injury sustained. The doctor check all part of my body. I do not remember I physically resist hint.../ had some injury on my back. My writch was little bit swollen and have pain for many days. As I was shock I forgot the injury sustained. The doctor check all part of my body. J sustained injury on my private parts and the Doctor clean it and give some medical application. I was kissed on my face, there was on sign was took. I was raped twice. At the first attempt there was premature ejaculation by the accused as such he assaulted for the second time... during straggling, attempting and committing actual sexual assault, there was no passer by. 5. The Medical Officer who examined the prosecutrix and the convict medically, was examined as PW-3. According to him, no mark of violence was found on the victim. There was no injury in and around the private parts. As no sign of violence was found on the body of the victim, clinically there was no sign of rape. However, he stated that although clinically, there was no evidence of rape, it cannot be ruled out. 6. PW-4 is the 1.0. of the case. According to him, he seized one mekhela, pyjama, half sporting under torn condition belonging to the victim lady. He also seized one bottle spenal swab and another containing vaginal swab from the Doctor to the Chongkham CMC which he sent for FSL testing. He collected the medical and FSL reports. He also stated that he sent the accused person for recording his confessional statement. 7. The prosecutrix was aged about 50 years and the convict was of 24 years at the time of the incident as per the medical report, Ext.-P/2 and Ext.-P/3 respectively. The prosecutrix was naturally quite an elderly woman while the convict was in the prime of his youth. It may be noted that she was moving alone on a lonely hilly road at around 6 PM to 7 PM with a 'dao' in her hand. The other accused person who was discharged was also a young man, comparatively elder to the convict. It was naturally quite easy for the accused persons to overpower a lady of 50 years of age but the co-accused left the scene without participating in the criminal act. The other accused person who was discharged was also a young man, comparatively elder to the convict. It was naturally quite easy for the accused persons to overpower a lady of 50 years of age but the co-accused left the scene without participating in the criminal act. There is nothing in the medical report about the physical state of the prosecutrix whether she is capable of having sex at her such age. It is quite natural to hold that at the age of 50 years, the prosecutrix would have no sexual urge to take initiative from her end inviting the convict or to voluntarily offering him sex. Therefore, no view can be taken that the prosecutrix was a consenting party. The invariable view would be that she was forcibly raped. The prosecutrix categorically stated before the court that she resisted the convict with all her force but she failed. In the resistance, she sustained injury on her person including the private parts. 8. Mr. Basar, learned Addl. Public Prosecutor, supporting the conviction and sentence submits that presence of injury on the person of the victim is not necessary for convicting the accused in a rape case. In this regard, he places reliance on Om Prakaslt v. State of U.P. reported inwherein it has been held that victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration of any evidence including the evidence of a doctor and in a given case, even if the doctor who examined the victim does not find sign of rape, it is not a ground for disbelieving the sole testimony of the prosecutrix. The learned Public Prosecutor also relies on Dastagir Sab and Anr. v. State of Karnataka reported in wherein it has been held that presence of injury on the body of the victim is not a sine qnanone to prove the charge of rape. He further argues that since the prosecutrix in this case is a married woman, she may not receive any injury on her private parts out of such sexual intercourse as she may be habituated for long in sexual acts. 9. There is no dispute on the aforesaid principle of law laid down by the Apex Court but the applicability of the said law depends upon the facts and circumstances of a given case. 9. There is no dispute on the aforesaid principle of law laid down by the Apex Court but the applicability of the said law depends upon the facts and circumstances of a given case. It is the settled law that an accused charged with crime of rape can be convicted solely on the basis of evidence of the prosecutrix without looking for corroboration either medical or ocular, provided the evidence of the prosecutrix is cogent, reliable and trustworthy gaining the confidence of the court. 10. The court is bound to appreciate the evidence of the prosecutrix and find out as to whether her evidence is of the aforesaid standard. Here, in this case, there is no eye-witness except the co-accused who was present at the time of occurrence but did not participate in committing the crime of rape. The prosecution could have cited the said co-accused person as an accomplice and examine him as a witness to gain support of its case. Why the prosecution failed to do so has not been explained. Therefore, the prosecution as well as the learned trial court had to depend on the evidence of the victim woman and the medical evidence. 11. First of all, the evidence of the prosecutrix may be appreciated. In her examination-in-chief, she stated that she was raped twice and during third attempt, she ran away. She further stated that after being raped, she remained in the jungle for the whole night and she came to her home in the next morning but in her cross-examination, she stated that at the first time, there was premature ejaculation by the accused and he made the second attempt. However, there was no mention of the third attempt. Although she stated in her examination-in-chief that she resisted and even cried but in her cross-examination, she stated that she did not remember whether she physically resisted the accused. She also stated in her cross-examination that her resistance from the time of attempt to the actual act of rape continued for more than one hour. As she resisted for such a long time, she sustained injury on her person including her private parts. Her claim of resistance and receiving injury on her person is not at all supported by the medical evidence as well as the evidence of the medical officer who examined her medically. As she resisted for such a long time, she sustained injury on her person including her private parts. Her claim of resistance and receiving injury on her person is not at all supported by the medical evidence as well as the evidence of the medical officer who examined her medically. Such evidence of the prosecutrix, in my considered view, cannot be accepted as cogent, reliable and trustworthy and it leaves a scope for taking a view that if there was any sexual act between the prosecutrix and the convict, it happened with the mutual consent or the prosecutrix brought a false allegation against the convict. 12. As per the evidence of the prosecutrix herself, the place of occurrence lies at a distance of less than a kilometre from her house. The occurrence took place at around 6.30 PM to 7 PM. If it is so, it was not impossible on her part to return to her home after the occurrence but she spent the whole night in the jungle without making any attempt to return home. She has not stated in her evidence that after the incident, the accused persons chased her again and there was any threat from them. In absence of such further threat, it was expected that the prosecutrix would make an attempt to proceed to her home which was barely less than a kilometre instead of taking a further risk of being searched and ravished by the accused persons or any other miscreants or falling prey to wild animals in the jungle. The possible explanation may be that she did not like to return home as she could not find her wearing apparels in the darkness or she could not return home because of her torn wearing apparels. In her deposition, it has been rather stated that she returned i i home in the next morning with the aforesaid torn wearing apparels exposing herself to the passersby, if any. As per her statement, on reaching home, she reported the matter to her husband Sri Sokun Khamrai, one villager Sri Tote Khamrai, her son and daughter-in-law but did not report the aforesaid matter to the police immediately. According to her, she reported the matter to them only when she could not find out the accused persons after making a search by herself. According to her, she reported the matter to them only when she could not find out the accused persons after making a search by herself. She lodged the First Information Report(FIR) only on 29.07.2004 i.e. after lapse of one whole day of the occurrence of the incident. This cannot be a reasonable and acceptable explanation for delayed lodging of the said First Information Report(FIR). 13. Taking into consideration the evidence of the victim woman that since she resisted the accused person for quite sometime and she received some injuries on her person, it was but natural that the mark of injuries could be found on her person even after 2 days from the date of occurrence. It may be accepted that there may not be a sign of rape on her private parts as she was an elderly woman habituated to sex but her bare statement of receiving injury on other parts of her person would not be acceptable unless it is supported by medical evidence i.e. medical report. In such cases of forceful sexual acts and resistance put up from the partner, there must be some mark of injury(ies) on the persons of both the partners or at least, on the person of the ravished woman. As per the medical report, there is no such injury on the person of the prosecutrix and whatever injuries were found on the person of the accused person, are due to the assault committed by the local people after he "was apprehended. It is seen that there is absolutely no corroboration from the medical evidence to prove the charge of forceful rape on the prosecutrix. 14. Now, coming to the decision relied by Mr. I. Basar, learned Addl. Public Prosecutor, it may be noted that in Om Prakash (supia), the accused overpowered the victim and started raping her in the verandah of Zilla Parishad complex near the court at about 3 PM, whereupon, she raised an alarm and on hearing such alarm, at least some persons came to the spot and assaulted the accused rapist who was apprehended and taken to police station. In Dastagir's case(supra), the victim girl was forcibly taken into the cotton field by the accused and she was forcibly raped. The victim girl was unable to cry as she was gagged and she could cry only when she could remove the clothes which were put in her mouth. In Dastagir's case(supra), the victim girl was forcibly taken into the cotton field by the accused and she was forcibly raped. The victim girl was unable to cry as she was gagged and she could cry only when she could remove the clothes which were put in her mouth. Hearing her cries, her father and brother came running to the spot and found the accused person running away at a distance. In both those cases, at least, some witnesses could see the accused persons during or immediately after the incident. Those witnesses testified and supported the case of the prosecution. In such cases, the medical evidence or corroboration would not be required and the court can record conviction solely on the basis of the evidence of the prosecutrix without looking for any corroborative medical or any other evidence of the witness. 15. A marked difference could be found in the present case. The claim of the prosecutrix of being raped must be supported at least by medical evidence inasmuch as there is no ocular evidence. It is not safe to convict an accused solely on the basis of oral evidence of the prosecutrix, uncorroborated and unsupported by any other evidence, namely, some eye-witnesses and/or medical report/evidence. In this regard, it may be relevant to refer to 'Lalliram and Anr. v. State of M.P. reported in wherein it has been held that the injury is not a sine qua none for deciding whether rape has been committed but it is to be decided on the factual matrix of each case. In the said case, it is further held that where an allegation of rape by many persons and several times, have been made but no injury is noticed it is certainly an important factor and if the prosecutrix's version is credible then no corroboration is necessary but "if her version is not credible then there should be need for corroboration". That was a case where accused Lalliram dragged the victim by catching her bunch of hairs for a considerable distance and the trial court noticed that if that was so, there would have been injuries and interestingly, she did not state about the same in the FIR. Similar thing happened in the present case where the victim was subjected to rape, at least twice and before being raped she was dragged and inspite of resistance, she could not save herself. Similar thing happened in the present case where the victim was subjected to rape, at least twice and before being raped she was dragged and inspite of resistance, she could not save herself. In the First Information Report (FIR), the victim, in the present case, did not mention about the same. Moreover, Sri Tote Khamrai and Sri Sokun Khamrai, her husband, before whom she first reported the matter were not cited as witnesses, not to speak of producing them as witnesses before the learned trial court to prove the case by the prosecution. Further in Ramdas v. State of Maharashtra reported in the Apex Court held that the conviction on the sole basis of testimony of the prosecutrix would be sustainable only where the court is convinced about the truthfulness of the prosecutrix and there exists no circumstances which cast a shadow of doubt about her veracity. Here, in the present case, the evidence of the prosecutrix so far as it relates to receiving injuries on her person including private parts have been belied by the medical report/evidence inasmuch as no such injury was found on the person of the prosecutrix as alleged by her. Besides, there are several contradictions in her statements which have already been noted in the foregoing discussions. In the FIR, the prosecutrix has not mentioned how many times she was raped by the convict. Even in the deposition, she had contradicted her statements made in the examination-in-chief while being cross-examined by the defence Counsel as regards the number' of times she was raped by the convict. What is to be noted from the aforesaid judgment is that the testimony of the prosecutrix must be of 'sterling quality' for conviction of an accused on her sole testimony. 16. The evidence of the prosecutrix, as discussed above, are not found to be so cogent, reliable and trustworthy, not to speak of a sterling quality, as to treat them as of such standard gaining the confidence of the court and to base the conviction and sentence on such evidence. The prosecution, as such, failed to prove the charge against the convict beyond reasonable doubt. The prosecution though claimed that the convict made confessional statement before a Magistrate, it, however, made no effort to produce and examine the Magistrate concerned to prove the same. The prosecution, as such, failed to prove the charge against the convict beyond reasonable doubt. The prosecution though claimed that the convict made confessional statement before a Magistrate, it, however, made no effort to produce and examine the Magistrate concerned to prove the same. It is seen that the prosecution even failed to produce the statement of the prosecutrix/victim woman recorded under Section 164 of Code of Criminal Procedure, 1973 and the same is also not available in the case records. All these lapses on the part of the prosecution has led this Court to come to a conclusion that the prosecution miserably failed to remove all doubts and as such, the benefit of doubt should be given to the convict thereby acquitting him on benefit of doubt. 17. The appreciation of evidence and discussions, as made above, are enough to disagree with the views taken by the learned trial court on the conviction and sentence handed down on the convict. The aforesaid conviction and sentence cannot be confirmed and accordingly, the reference is answered in the negative. The conviction and sentence as awarded by the learned trial court in Sessions Case No. 08/2005 dated 31.08.2007 is liable to be set aside and quashed and accordingly, it is set aside and quashed. 18. In the result, the convict Samial Barju is acquitted on benefit of doubt and he shall be set at liberty forthwith if his further detention is not required in any other case. 19. Before palling with the records, this Court takes note of the able assistance of Mr. K. Ete, learned amicus curiae, and directs the State of Arunachal Pradesh to pay him a legal fee of Rs. 5,000/-(Rupees Five Thousand) only. 20. Send down the records to the concerned court below.