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2019 DIGILAW 335 (GAU)

Raju Das v. State of Assam

2019-03-12

MIR ALFAZ ALI

body2019
JUDGMENT : MIR ALFAZ ALI, J. 1. Heard learned counsel, Mr. A. Choudhury for the appellant and Mr. B.B. Gogoi, learned Addl. P.P. for the State/respondent. 2. This appeal is directed against the judgment and order passed by learned Asstt. Sessions Judge, Hailakandi, in Sessions Case No. 80/2016. By the said judgment, learned Asstt. Sessions Judge convicted the appellant u/s. 376/506 IPC and sentenced him to rigorous imprisonment for seven years and fine of Rs. 10,000/- with default stipulation. The appellant was further sentenced to imprisonment for one year u/s. 506 IPC. 3. As per prosecution case, on 4.10.2014, at about 8 O'clock at night, the victim went to witness the immersion of idol "Durga" with some of her friends. As she went towards Narayanpur Bazar in order to attend the call of nature, the appellant dragged her to the Senior Basic School by gagging her mouth and committed rape on her inside the school. After the occurrence, she narrated the incident to her brother Ranu Das. On the next day, the victim herself lodged the FIR (Exhibit-1), on the basis of which, police registered the Algapur P.S. Case No. 253/2014 under sections 341/376/506 IPC. During the course of investigation, police recorded statement of the witnesses and sent the victim for medical examination. The statement of the victim was also recorded u/s. 164 Cr.P.C. On conclusion of investigation, charge-sheet was laid against the present appellant u/s. 341/376/506 IPC and eventually he stood trial. 4. In course of trial, prosecution examined five witnesses including the doctor and the investigating officer. The appellant did not adduce any evidence in his defence. On appreciation of evidence, learned trial court convicted the appellant u/s. 376/506 IPC and awarded sentence as indicated above. 5. Aggrieved the appellant preferred the instant appeal. 6. Learned counsel for the appellant submits that there was no other eye witness except the victim and the oral testimony of the victim was not at all reliable, as there were material contradictions between her previous statement and oral testimony before the court. The medical evidence also did not support the oral testimony of the PW 1 (victim) and therefore, no conviction could be recorded on the basis of unreliable solitary evidence of the victim, submits Mr. Choudhury. Learned Addl. P.P., Mr. The medical evidence also did not support the oral testimony of the PW 1 (victim) and therefore, no conviction could be recorded on the basis of unreliable solitary evidence of the victim, submits Mr. Choudhury. Learned Addl. P.P., Mr. BB Gogoi supporting the impugned judgment contended, that in a case of sexual assault, there is no bar in recording conviction relying on the sole testimony of the victim, inasmuch as, such offence having taken place in private, there may not be any other direct witness. 7. Apparently, except the oral testimony of the victim, who has been examined as PW 1, there is no other direct evidence, and as such, learned trial court basically relying on the sole testimony of the victim, recorded the conviction of the appellant. Since the offence of sexual assault of present nature usually takes place in private, independent witness is seldom available. Therefore, it is the settled position, that if the oral testimony of the victim is found to be reliable and trustworthy, there is no impediment in basing conviction on the sole testimony of the victim. What is therefore, important is, while convicting an accused on the basis of the solitary testimony of the victim, it is necessary on the part of the court to scrutinize the evidence cautiously and if on such scrutiny, the testimony of the prosecutrix is found to be fully reliable and inspiring confidence, there is no bar in basing conviction on the sole testimony of the prosecutrix. 8. The victim, who has been examined as PW 1, deposed in her evidence, that she went to see Durga Puga at Durgabari at about 8 pm with her friends. At that time, when she went to the southern side of the shop of one Sayar Ali to attend the call of nature, the accused/appellant arrived there and dragged her to the Senior Basic School by gagging her mouth. Though, she tried to raise alarm, the accused threatened her and did not allow her to raise alarm. Having taken her to the school, the appellant removed her wearing apparel and committed rape on her by laying her down on the ground, against her will. She also stated that the accused had bitten on her chest, cheek and other parts of the body causing injuries. Having taken her to the school, the appellant removed her wearing apparel and committed rape on her by laying her down on the ground, against her will. She also stated that the accused had bitten on her chest, cheek and other parts of the body causing injuries. She further stated that because of forcible sexual assault, there was bleeding from her private part and therefore, she raised hue and cry. When she raised hue and cry, the accused left the place. Hearing alarm, her brother Ranu Das arrived there, and she narrated the incident to his brother. During cross-examination, she stated her age to be 18 years. It was also elicited during her cross-examination, that she went to witness the Puja along with her friends, namely, Pompi Das, Pinki Das and Sumi Das. It was also elicited, that there was provisions for latrine, toilet, etc. in the Durga Mandir. She also stated that the accused/appellant took her inside the teacher's room of the building, where he committed rape on her. She further stated that the school was closed and the gate and doors were locked. It appears from her cross-examination and the oral testimony of PW 5, the investigating officer, that she stated before the investigating officer that she was in love with the appellant for last one year. The victim did not state in her previous statement, that the accused bit on her chest, cheek and other parts of the body or there was bleeding from her private part. 9. PW 3 was the doctor, who examined the victim, found as follows:- 1. Age above 18 years and below 20 years. 2. There is no sign of rape at the time of examination. 3. Also HCG test done at laboratory of SK Roy Civil Hospital and found negative and vaginal swab test done and no spermatozoa seen. 10. The injury report, Ex-1 shows that hymen was intact and there was no injury on any part of the body including the private part. During cross-examination, PW 3, the doctor stated that neither any injury mark on the chest, cheek or other parts of the body of the victim, nor bleeding from private part was noticed. 10. The injury report, Ex-1 shows that hymen was intact and there was no injury on any part of the body including the private part. During cross-examination, PW 3, the doctor stated that neither any injury mark on the chest, cheek or other parts of the body of the victim, nor bleeding from private part was noticed. Therefore, omission of the material facts, that the accused bit on the chest, cheek and other parts of the body and bleeding from the private part due to sexual intercourse in her previous statement as well as the medical evidence demonstrates that the victim had given an exaggerated and embellished statement before the court. The contradiction between the oral testimony of the victim and her previous statement together with the medical evidence clearly shows, that her testimony with regard to sexual intercourse was hardly convincing. 11. Admittedly the occurrence took place at the time of festival, near a public gathering, where lots of people were present. In the FIR lodged by the victim herself, she stated that accused gagged her mouth and after committing rape, the accused threatened her not to disclose the incident to any one and left the place and later on he narrated the incident to his brother, whereas, while deposing in court she stated that she raised hue and cry, whereupon the victim had fled away and his brother PW 3 arrived at the place of occurrence hearing alarm raised by him. Though, the victim stated to have raised hue and cry no one went to the place of occurrence, except her brother, inasmuch as, no independent witness was examined. Even the friends of the victim, who accompanied her were not examined. Admittedly the Durgabari, where the victim was witnessing the immersion of idol, had all the facilities of toilet latrine etc. When admittedly the victim was witnessing the immersion of Durga idol at a place, having all facilities including toilet, latrine, etc, question necessarily arises, as to why the victim had to go out in the open for attending the call of nature, that too at night at about 8 O'clock. Admittedly when the school was closed and the doors were locked, how the accused dragged her into the teacher's room and committed rape that is also a question remained in mystery. Admittedly when the school was closed and the doors were locked, how the accused dragged her into the teacher's room and committed rape that is also a question remained in mystery. As already indicated above, the medical evidence ruled out the sexual intercourse resulting in bleeding from private part, as the hymen was intact and no injury was detected by doctor. As already mentioned above, the victim stated in her previous statement that she was in love with the appellant. Evidently the victim was a major of more than 18 years of age. All these circumstances clearly suggest, that the story as deposed by the PW 1, the victim was absurd and unworthy of inspiring confidence. In view of the above facts and circumstances. it is difficult to rely on the oral testimony of the victim or at least the victim cannot be considered to be a witness falling in the category of fully reliable witness. 12. Apparently, besides the solitary oral testimony of the victim, there was no other evidence to support the prosecution version. When the sole testimony of the victim was not reliable and there was also no other evidence to support the oral testimony of the victim, and the medical evidence goes against the oral testimony of the victim, prosecution can by no stretch of imagination be held to have proved the guilt of the accused beyond all reasonable doubt. Therefore, this Court is of the considered opinion, that prosecution evidence was grossly inadequate to bring home the guilt of the accused u/s. 376 IPC or 506 IPC, and as such, the accused is at least entitled to the benefit of doubt. Accordingly, conviction and sentence of the accused/appellant is set aside and the appeal stands allowed. 13. The appellant be set at liberty forthwith if not required in any other case. 14. Send down the LCR along with a copy of this judgment.