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2016 DIGILAW 373 (GAU)

Jairam Jaiswal v. State of Assam

2016-05-05

A.K.GOSWAMI

body2016
JUDGMENT : Heard Mr. Y.S. Mannan, learned counsel for the appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. None appears for the respondent No. 2 despite service of notice. 2. This appeal is preferred against the judgment and order dated 5.11.2014 passed by the learned Additional Sessions Judge (FTC) No. 2, Circuit Court Margherita in Sessions Case No. 101(M)/2010 convicting the appellant under Section 376 IPC and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 2000/-, in default, to suffer rigorous imprisonment for two months and also convicting him under Section 448 IPC and sentencing him to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for 15 days. 3. The appellant is a married person with three minor children. 4. At around 3.35 A.M. of 2.5.2010 there was a telephone call to Digboi Police Station based on which a GD entry was recorded indicating that one Pritirupa Das, a resident of Bogapani had informed that a person committed rape on a woman who works in her place as maid servant. Accordingly GD entry No. 32 was registered and a Sub Inspector and Assistant Sub Inspector set out to start investigation. Later on, one ejahar (Ext. 3) was lodged by the victim on 2.5.2010 itself stating that she is a widow and was working in the residence of Raju Dutta, PW 3. It was stated therein that at around 11.30 on previous night when all the members of the family had gone to attend Bihu function at Tingrai, taking advantage of her being alone, Jairam Jaiswal, the appellant herein had entered the house and had committed rape on her. 5. The ejahar (Ext. 3) was written by Renu Das, PW 1, who is the wife of PW 3. The victim was sent for medical examination to Digboi Civil Hospital and her statement was recorded under Section 164 Cr.P.C. On completion of investigation, charge sheet was submitted under Section 448/376 IPC against the appellant. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of the learned Sessions Judge and accordingly, Sessions Case No. 101(M)/2010 was registered in the Court of the learned Additional Sessions Judge (FTC) No. 2. 6. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of the learned Sessions Judge and accordingly, Sessions Case No. 101(M)/2010 was registered in the Court of the learned Additional Sessions Judge (FTC) No. 2. 6. Upon hearing the learned counsel for the parties and on perusal of the evidence on record, charge under Section 448/376 IPC was framed. The charges being read over and explained, the accused pleaded not guilty and claimed to be tried. 7. During trial, prosecution examined seven witnesses including the Medical Officer and the Investigating Officer. The defence did not adduce any evidence. 8. The appellant was examined under Section 313 Cr.P.C. wherein the plea taken was of denial. 9. The victim was examined as PW 2. PW 1, PW 3 and PW 4 are owner of the house, his wife and his daughter, respectively. PW 5 is a neighbor and a person not acquainted with the case. PW 6 is the doctor who conducted the medical examination on PW 2 and PW 7 is the Investigating Officer. 10. Mr. Mannan has submitted that while it is no longer res integra that conviction can be sustained in respect of offence under Section 376 IPC based on the sole evidence of the prosecutrix/victim if the evidence of such witness is reliable and convincing, in the instant case, the evidence of PW 2 is not of believable having regard to the attending facts and circumstances of the case and there being contradictions striking at the very root of the prosecution case demonstrated by the discrepancies in the evidence of PW 1, PW 3 and PW 4. He has submitted that materials on record also demonstrate that there was some sort of dispute between the appellant and PW 1 with regard to setting up a stall at the place where Bihu celebrations were taking place. It is submitted by him that while PW 2 had referred to the appellant as a person who had committed rape upon her, PW 4, who had made the telephonic call to the police station stating that a person had committed rape on their maid, deposed that there were two persons, who fled away when they had reached the house after watching Bihu functions. He has also submitted that there is no evidence that the appellant had forced his entry into the house and the evidence of PW 4 that she found broken bangles in the premises to demonstrate that there was some sort of tussle is negated by the categorical statement of PW 7 that he did not find any such broken pieces of bangles and therefore, there was no question of seizure. He has submitted that when the evidence of PW 2 is not viewed to be entirely trustworthy and reliable, the Court may look for corroboration and if the court makes an endeavour to find corroboration, it will appear that there are many gaping holes in the prosecution story. Thus, he submits that having regard to the evidence on record, it will be highly unsafe to convict the appellant under Section 376 IPC. In support of his submission the learned counsel has placed reliance on the following decisions of the Apex Court: (i) Lilia Alias Ram Swaroop Vs. State of Rajasthan, reported in (2014) 16 SCC 303 , (ii) Yerumalla Latchaiah vs. State of Andhra Pradesh, reported in (2006) 9 SCC 713 , (iii) Narender Kumar vs. State (NCT of DELHI), reported in (2012) 7 SCC 171 , (iv) Hem Raj S/o Moti Ram vs. State of Haryana, reported in (2014) 2 SCC 395 , (v) Tameezuddin Alias Tammu vs. State (NCT of Delhi), reported in (2009) 15 SCC 566 , (vi) Raju & ors. Vs. State of Madhya Pradesh, reported in (2008) 15 SCC 133 and (vii) Radhu vs. State of Madhya Pradesh, reported in (2007) 12 SCC 57 . 11. Mr. D. Das has submitted there is no reason as to why PW 2 would falsely implicate the appellant and the telephonic call was made to the police station immediately after the family had returned back after enjoying Bihu Function and therefore, there is no possibility of concocting a story. He has submitted that medical report, which did not indicate any evidence of rape, is not decisive of rape being not committed. He has submitted that corroboration of the evidence of the victim is not a rule and in a given case, if the Court finds the evidence of the victim inspiring, trustworthy and reliable, any evidence of any other witness which is in divergence with the case projected by the victim, may be ignored. He has submitted that corroboration of the evidence of the victim is not a rule and in a given case, if the Court finds the evidence of the victim inspiring, trustworthy and reliable, any evidence of any other witness which is in divergence with the case projected by the victim, may be ignored. Accordingly, he submits that no case for interference is made out and the appeal deserves to be dismissed. Mr. Das has, however, fairly submitted that the examination of the accused under Section 313 Cr.P.C. left a lot to be desired as a single question was asked clubbing together incriminating circumstances appearing against the accused. 12. I have considered the submissions of the learned counsel for the parties and perused the materials on records. 13. In Lilia (supra), the prosecutrix had deposed that the accused had caught hold of her from behind and pushed her down and thereafter raped her and in the process her bangles had been broken and she had received cut injuries. The incident of rape was also stated to have been witnessed by her brother-in-law who was with one Inder Singh. Inder Singh was an independent person and he was not examined. The medical evidence discounted injury on the prosecutrix. The Apex Court held that story projected by the prosecution is not believable as it was difficult to accept that the brother-in-law would make no attempt whatsoever to rescue his sister-in-law from being raped and accordingly, allowed the appeal. 14. In Yerumalla (supra), the prosecutrix was eight years old and the Apex Court, noticing the medical opinion that there was no injury on the private parts of the minor girl of eight years, acquitted the convict. However, in the instant case, PW 2 being aged about 45 years, there may not be any injury on the private parts. 15. In Narendra Kumar (supra), the Apex Court had laid down in Paragraphs 20 and 21 that once the statements of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration is required unless there is compelling reasons and unless it necessitates the court to look for corroboration of the statements. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but for guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice of the accused. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. Where evidence of prosecutrix is found to suffering from serious infirmities and inconsistency with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. 16. In Hemraj (supra) the Apex Court stated as follows: “The prosectutrix, prior to the occurrence, used to write letters to the accused convicted by the trial court and by the High Court in the offence of rape. The prosecutirx having raised hue and cry, which would have brought her brother immediately to the room in such circumstances, the Apex Court examined the medical evidence to consider whether it suggested rape. But the doctor was not examined which was a serious lapse on the part of the prosecution. The Apex Court noted that lapses on the part of prosecution should not lead to unmerited acquittal. It was observed that it was subject to the rider that the evidence on record must be clinching so that the lapses of the prosecution could be condoned. 17. Tameezuddin (supra), it was observed by the Apex Court as follows: “It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable. We note from the evidence that PW.1 had narrated the sordid story to PW.2 on his return from the market and he had very gracefully told the appellant that everything was forgiven and forgotten but had nevertheless lured him to the police station. If such statement had indeed been made by the PW.2 there would have been no occasion to even go to the police station. Assuming, however, that the appellant was naive and unaware that he was being lead deceitfully to the police station, once having reached there he could not have failed to realize his predicament as the trappings of a police station are familiar and distinctive. Even otherwise, the evidence shows that the appellant had been running a kirana shop in this area, and would, thus, have been aware of the location of the Police Station. In this view of the matter, some supporting evidence was essential for the prosecution's case. As already mentioned above the medical evidence does not support the commission of rape. Moreover, the two or three persons who were present in the factory premises when the rape had been committed were not examined in Court as witnesses though their statements had been recorded during the course of the investigation. In this background, merely because the vaginal swabs and the salwar had semen stains thereon would, at best, be evidence of the commission of sexual intercourse but not of rape. Significantly also, the semen found was not co-related to the appellant as his blood samples had not been taken.” 18. In Raju (supra), the Apex Court stated as follows: “The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence his reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.” 19. In Radhu (supra), the Apex Court stated as follows: “6. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, wrists, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, wrists, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case. 13. We are thus left with the sole testimony of the prosecutrix and the medical evidence that Sumanbai had an abrasion on the left elbow, an abrasion on her arm and a contusion on her leg. But these marks of injuries, by themselves, are not sufficient to establish rape, wrongful confinement or hurt, if the evidence of the prosecutrix is found to be not trustworthy and there is no corroboration.” 20. At the outset, it will be appropriate to have a look at the evidence on record in order to appreciate the contentions raised by the learned counsel for the parties. 21. PW 1 stated that at the material point of time they were at a distance of about 6 K.M. away from their house attending a Bihu function at Tingrai where she and her husband PW 3 were running a temporary tea stall. They left their house leaving behind PW 2 and there was none else in their residence. According to her, they had left for the Bihu function at 6 P.M. and returned back at about 2.30 A.M. and found the gate and the door of the house opened. Her married daughter, Patirupa Das had also come along with them from the Bihu function and after entering the house they found PW 2 weeping and sitting on the floor. PW 2 informed that the accused person had sexual intercourse with her by force and without her consent while she was alone. On the next day, she had taken PW 2 to the police station and had lodged the ejahar. PW 2 informed that the accused person had sexual intercourse with her by force and without her consent while she was alone. On the next day, she had taken PW 2 to the police station and had lodged the ejahar. In her cross-examination she stated that her family consists of three members, namely herself, her husband and the son who is about 20 years old and unmarried. The house consists of one big room without any partition and the house was newly constructed. She stated that they had kept the front door under lock and key and tied the gate with a rope and had asked PW 2 to close the rear door from inside and accordingly she had closed the rear door from inside. She stated that there is tea stall within a distance from their house but the same closes at around 7.00 P.M. She denied a suggestion that there was a tiff with the appellant because the appellant also wanted to open a betel nut stall near her tea stall which was opposed by her. 22. PW 2, the victim, who is stated to be about 35 years on the date of deposition in the year 2012, stated that she knew the accused and that the incident had occurred at about 3.00 A.M. in the night when all the members of the family had gone to attend some festival. She stated that the accused entered the house by pressing the door and committed rape on her and thereafter fled away. She narrated the incident to the family members when they returned and lodged the ejahar on the next day. She stated in her cross-examination that she did not know the contents of the ejahar. She reiterated that she was inside the house by closing the door from inside. She stated that there are two houses near the house of PW 3 belonging to one Bircha Chowkidar and Piyush Gowal. At the time of commission of rape, she raised hue and cry and immediately after the occurrence PW 1, PW 3 and their two daughters arrived and they found the accused at the place of occurrence. She denied the suggestion that she lodged a false case because of personal rivalry of PW 1 with the accused. 23. At the time of commission of rape, she raised hue and cry and immediately after the occurrence PW 1, PW 3 and their two daughters arrived and they found the accused at the place of occurrence. She denied the suggestion that she lodged a false case because of personal rivalry of PW 1 with the accused. 23. PW 3 stated that he along with his wife, son and daughter Patirupa Das had gone to Tingrai bazaar to attend Bihu festival and they returned at around 2.30 A.M. and found PW 2 weeping inside the house. The door of the house and gate of the boundary was also found to be opened. On his query, PW 2 informed that the accused had come there and committed rape on her and then fled away. It is stated by him that immediately they informed the police station by mobile phone and police arrived. The accused was a village defence party member and he had concealed himself in a tea garden and he was finally traced out and brought to the house and then PW 2 identified him. In his cross-examination, he, however, stated that all the family members had left at 10 P.M. for the festival. He stated that he found the bamboo door kept closed by a bamboo stick from inside was broken but despite showing the same to the police official it was not seized by the police. The police also did not seize any wearing apparels of the victim. While arriving at 2.30 A.M., he stated that he did not hear any hue and cry and found PW 2 weeping and sitting on a chair. He also denied a suggestion that a false case was lodged because of dispute regarding opening of a tea stall. 24. PW 4 had made the telephonic call to the police station. She stated that on the date of occurrence while coming back she found the door was opened and PW 2 was crying and on being asked she told that the appellant and another person entered the house and while one person held her, the other person committed rape on her. She, in her cross-examination, stated that when they entered the house, the accused persons fled away. She also stated that PW 3 went to pick them up at 2.00/2.30 A.M. 25. She, in her cross-examination, stated that when they entered the house, the accused persons fled away. She also stated that PW 3 went to pick them up at 2.00/2.30 A.M. 25. PW 5 did not contribute much to the prosecution case and he stated that one day before the arrest of the appellant he had heard that there was a quarrel in between PW 3 and the appellant. 26. The evidence of PW 6 is to the effect that there was no external injury either in the vagina or on the body. Vaginal smear also does not show any spermatozoa. According to her opinion, PW 2 was a lady of about 45 years old. She could not say whether rape was committed or not. 27. PW 7 had stated about the steps taken by him during investigation. In his cross-examination, he stated that he did not seize any broken lock or door as he did not see any broken article in the place of occurrence. He also stated that there was no lock in the gate. The accused was also sent for his medical examination and he proved the report of the accused as Ext. A. Ext. A shows that the accused was examined by a Medical and Health Officer, No.1, Digboi Civil Hospital and no injury was found on his person. 28. Evidence of PW 4 shows that she had informed police over telephone. She stated that two persons had fled away when they had entered home. PW 1 and PW 3 stated that their daughter Patirupa Das had come with them from Bihu festival. PW 4 was specific that she had gone along with her mother Ranu Dutta and her brother and her father had gone to pick them up. PW 4 presented before the court a different picture implicating the accused appellant and another person. PW 1 and PW 3 stated that their daughter Patirupa Das had come with them from Bihu festival. PW 4 was specific that she had gone along with her mother Ranu Dutta and her brother and her father had gone to pick them up. PW 4 presented before the court a different picture implicating the accused appellant and another person. Though PW 1 and PW 3 had initially stated that they had gone to attend Bihu Function at 6.00 P.M., PW 3 in his cross-examination had stated that they had left for the Bihu function at around 10.00 P.M. According to PW 2, PW 1 and PW 3 along with their two daughters had come back and therefore, although PW 1 and PW 3 did not mention about the fact of PW 4 coming along with them, it appears that PW 4 had also accompanied her parents, which is fortified by the fact that she was the one who made the telephone call to the police station regarding the incident in the wee hours of the morning. According to PW 2, they had arrived almost immediately after she had raised hue and cry. PW 3, however, stated that when they had returned back around 2.30 A.M., they did not hear any hue and cry. 29. Evidence of PW 2 goes to show that the appellant pushed the door and thereby entered the premises. It is not her case that the appellant had broken the door to gain entry to the house. Evidence of PW 7 also goes to show that he did not find any broken pieces of bamboo or lock. The story projected by PW 1, PW 3 and PW 4 that PW 2 was crying is not in sync with the deposition of PW 2. It is not in her evidence that she was crying because of the sexual assault made on her and she merely stated that on being asked she narrated the incident. Apparently, evidence of PW 4 is full of embellishments heightened by the fact that she introduced one more person in the commission of rape which was not even deposed by PW 2. The statement of PW 4 is most ambivalent and runs counter to the general scheme of the prosecution case. Apparently, evidence of PW 4 is full of embellishments heightened by the fact that she introduced one more person in the commission of rape which was not even deposed by PW 2. The statement of PW 4 is most ambivalent and runs counter to the general scheme of the prosecution case. From her evidence it appears that PW 3 was at home till 2.00/2.30 P.M. The distance between the place of festival and the house, as noted earlier, is about 6 km. Such evidence will not impact the prosecution case if the Court finds that the evidence of PW 2 is reliable and is accepted by the Court. Whether or not the family left at 6 ‘O’ clock may not be very material but it is established on the evidence on record that PW 2 alleges that the occurrence had taken place at a time when there was no body at home. Except PW 1 no other witness had stated that they had locked the front door of the house. PW 3 had stated that PW 2 was asked to close the door from inside. Though PW 3 had stated that he had found the broken bamboo stick meant for fastening the door, having regard to the evidence of PW 2 and the assertion of PW 7 that he did not find any broken piece of any material, it appears to the Court that there was no forceful entry to the premises. PW 1 and PW 3 had also not stated that the accused was present when they had reached home while their daughter as well as with PW 4 had acknowledged the presence of the appellant. PW 5 had also stated that one day before the alleged occurrence, there was a quarrel between PW 3 and the appellant. Though, admittedly, some information was given to the police over telephone at night, that by itself would not be conclusive of anything and the totality of the circumstances as projected by the prosecution version has to be considered. Medical evidence is also not conclusive of rape being committed. Further, PW 6 did not find any injury on the person of PW 2. Medical evidence is also not conclusive of rape being committed. Further, PW 6 did not find any injury on the person of PW 2. When this Court has held that entry to the premises was not forceful, assuming presence of the appellant at the time when the members of the family had reached home, by itself would not be enough to hold that the appellant had committed the offence of rape. The circumstances of the case does not inspire the court to take a view that conviction can be sustained based on the testimony of PW 2 and when the court looks for corroboration, the court does not find any corroborative material to hold that prosecution had been able to establish the guilt of the accused beyond reasonable doubt. Taking that view, I allow this appeal. The judgment is set aside. The appellant is set at liberty. 30. Registry will send down the records.