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2022 DIGILAW 1290 (GAU)

Jiten Sona v. State Of Assam

2022-11-24

SUSMITA PHUKAN KHAUND

body2022
JUDGMENT : SUSMITA PHUKAN KHAUND, J. This appeal is directed against the Judgment and Order dtd. 20/9/2011 passed by the learned Additional Sessions Judge (Fast Track Court), Biswanath Chariali convicting the accused, namely, Jiten Sona (Hereinafter referred to as the appellant) under Sec. 448 of the Indian Penal Code (IPC in short) to undergo simple imprisonment for 4 (four) months and pay a fine of Rs.500.00 (Rupees Five Hundred) only with default clause, and under Sec. 354 of IPC to undergo rigorous imprisonment for 1 (one) year and pay a fine of Rs.5000.00 (Rupees Five Thousand) only with default stipulation. 2. The FIR lodged by Smti. 'X' (name withheld) unfolds that on 13/3/2010 at about 6.00 p.m the appellant barged into her house and forcefully committed rape on her. The appellant ripped off her blouse and attempted to stab her with a 'khukuri' (machete type of weapon) which was strapped to his back. The terrified informant ('X') was unable to prevent the appellant from assaulting her and when the appellant left she screamed and her in-laws reached home from the market. The complaint was registered as Biswanath Chariali Police Station Case No. 42/2010 under Ss. 447/376/506 of IPC, and the Investigating Officer (I/O in short) was endorsed with the investigation. 3. The Investigating Officer embarked upon the investigation. He forwarded the victim/informant to the Magistrate, who recorded her statement under Sec. 164 of the Code of Criminal Procedure (Cr. P.C for short). The victim 'X' was also forwarded for medical examination. The statements of the witnesses were recorded. On finding sufficient materials, charge-sheet was laid against the appellant under Ss. 448/376 of IPC. This case i.e. the GR Case No. 133/2010 and corresponding Biswanath Chariali Police Station Case No. 42/2010 was committed to the Court of the Sessions Judge. At the commencement of Trial, a formal charge under Sec. 448/376 of IPC was framed and read over and explained to the appellant, who abjured his guilt and claimed innocence. 4. To substantiate its stance, the prosecution adduced the evidence of 11 (eleven) witnesses including the Medical Officer (M.O in short) and the I/O. The statement of the appellant was recorded under Sec. 313 Cr PC, to enable him to explain the evidence against him and his responses were recorded. 5. It is submitted by Mr. K. Sarma, learned counsel for the appellant that the appellant was erroneously convicted. 5. It is submitted by Mr. K. Sarma, learned counsel for the appellant that the appellant was erroneously convicted. It is submitted that this case is sans eye witnesses. No case under Sec. 354 of IPC was made out against the appellant. Corroborative evidence is lacking. The victim has not informed about the incident to her family members, immediately after the alleged occurrence. There are no circumstances warranting conviction and the appellant deserves acquittal. It is submitted that the informant's evidence is a diametrically opposite version to her statement u/s 164 Cr.P.C. as well as her FIR. 6. Per contra Mr. B. Sarma, learned Additional Public Prosecutor has laid stress in his argument that the decision of the trial Court was in order. The evidence of the prosecutrix will suffice. Eye witnesses are not necessary when the evidence of the prosecutrix is found to be credible. He termed the victim as a sterling witness. 7. I have considered the arguments, strenuously submitted by both the sides. 8. The appellant was charged under Sec. 376/448 IPC, but he was held guilty of offence under Sec. 354 IPC. 9. The only question that falls for consideration before this Court is whether the learned Trial Court erred in convicting the appellant under Ss. 354/448 IPC. 10. The evidence of P.W.1, P.W.2, P.W.3, P.W.5, P.W.6, P.W.8, P.W.10 and P.W.11 depicts that the incident occurred on 15/3/2010. 11. The victim 'X' testified as P.W.3 that on the day of the incident, the appellant, who was inebriated, went to her house and attempted to commit rape on her. He groped her and squeezed her hand and pressed her body. She raised alarm and her father-in-law reached the place of occurrence and then the appellant fled. The appellant groped her and panic-stricken she lodged this case against the appellant. She again repeated that the appellant attempted to commit rape on her but he failed in his attempt. In her cross-examination, she admitted that the appellant tore her dress. 12. A closer look at the FIR depicts that the informant (PW-3) initially lodged a complaint, which was forwarded by the S.D.J.M to the Police for investigation. The complaint was treated as an FIR. P.W.3's ('X's) testimony is not similar to the contents of the FIR. In her cross-examination, she admitted that the appellant tore her dress. 12. A closer look at the FIR depicts that the informant (PW-3) initially lodged a complaint, which was forwarded by the S.D.J.M to the Police for investigation. The complaint was treated as an FIR. P.W.3's ('X's) testimony is not similar to the contents of the FIR. The FIR lodged by the P.W.3 is that on 15/3/2010, at about 6.00 p.m, the appellant, taking advantage of the situation that the informant was alone at home, went to her house and committed rape on her. Her testimony is not consistent to her statement under Sec. 164 Cr.P.C. She has stated in her statement recorded under Sec. 164 Cr.P.C and marked as Ext.-6, that the appellant gagged her by her mouth and threatened her with a 'dao' and sexually assaulted her for about 20 minutes. However, she has mentioned in the FIR as well as in her statement under Sec. 164 Cr. P.C that her in-laws arrived after the appellant left. This statement of PW-3 has however not been substantiated by the evidence of her mother-in-law, Pw-6. 13. Contrary to her testimony in the Court and contrary to the FIR, PW- 3 has mentioned in her statement under Sec. 164 Cr.P.C that again on 21/3/2010 at about 2.00 p.m while she was sitting alone in the shop, the appellant came and tried to embrace her. Then she raised alarm and the appellant fled. In Court, PW-3 failed to state that the appellant was also carrying a dao. No dao was seized by the Investigating Officer. 14. This statement of the appellant under Sec. 164 Cr. P.C. is an improvement to the contents of the FIR. Earlier in her FIR, she has stated that the appellant committed rape on her, then in her statement under Sec. 164 Cr.P.C she has stated that the appellant committed rape on her and he also tried to embrace her on a later date. Finally, in her testimony in the Court, she stated that the appellant attempted to commit rape on her. Due to the different versions of the informant given at the different times, a shadow of doubt engulfs over the veracity of her evidence and it is held that her evidence is not creditworthy. Although there is an allegation against the appellant, the allegation has to be consistent. Due to the different versions of the informant given at the different times, a shadow of doubt engulfs over the veracity of her evidence and it is held that her evidence is not creditworthy. Although there is an allegation against the appellant, the allegation has to be consistent. A General Rule of Prudence justifies that the offences alleged to have been caused by an accused/appellant has to be specifically described by the prosecutrix. The prosecutrix/victim herself gave varying statements on different occasions. Now, it is left for this court to decide whether the appellant attempted to commit rape on the victim or whether he committed rape on victim or whether he embraced her. 15. Her husband, say 'Y' has stated as PW-2 that the incident occurred at about 6.00 p.m. He was in the shop at that time. The appellant attempted to sexually assault his wife. When his wife raised alarm, his father reached the place of occurrence and the appellant fled. His wife informed him about the incident and then she lodged the FIR against the appellant. No effective cross-examination was carried out. 16. The victim's father-in-law 'Z' has testified as P.W.1 that when he asked his daughter-in-law (P.W.3), why she was crying, she informed him that the appellant had groped her inappropriately. A commotion erupted and the appellant fled. Later his daughter-in-law lodged the FIR. 17. A closer look at the FIR, depicts that initially a complaint was lodged and the learned S.D.J.M, Biswanath Chariali forwarded the complaint to the Police for investigation of this case. 18. The complaint was filed before the S.D.J.M, Biswanath Chariali on 17/3/2010 without any explanation regarding the reasons of delay in filing the complaint petition. Due to the discrepancies in the earlier statement of the informant and her testimony in the Court as well as the inexplicable delay in filing the complaint petition, it is held that the credibility of the evidence has been denuded. 19. The evidence of the other witnesses also does not support the prosecution case. 20. Marish Kandapan, P.W.5 heard about the incident. He has stated that on 15/3/2010 at about 6.00 p.m the appellant, taking advantage of the absence of the family members entered into the informant's house and committed rape on her. He pinned her to the ground by pointing a knife at her and he ripped of her blouse and committed rape on her. He has stated that on 15/3/2010 at about 6.00 p.m the appellant, taking advantage of the absence of the family members entered into the informant's house and committed rape on her. He pinned her to the ground by pointing a knife at her and he ripped of her blouse and committed rape on her. P.W.5 did not mention the name of the person who had informed him about the incident. 21. Now this witness went a step further. P.W.5's evidence is contradictory to the evidence of the informant, who testified that the appellant attempted to commit rape on her. She did not mention in evidence that the appellant had already committed rape on her or pinned her to the ground or pointed a knife at her. 22. P.W.6, is the mother-in-law (name withheld) who has testified that on the date of the incident, while she was in the market, the appellant went to her house and thereafter he went away. She did not ascribe any overt act to the appellant. 23. Sri Raju Rautia, P.W.7 testified that the appellant entered into the informant's house. 24. Sri Lakhindar Tanti, P.W.8 testified that the police asked him the direction to the appellant's house. 25. P.W.9, Sri Subharam, denied any knowledge about the incident. 26. Thus, it is clear that the evidence of P.W.5, P.W.6, P.W.7, P.W.8 and P.W.9 does not at all support the version of the victim. The evidence of victim's mother-in-law, who testified as P.W.6 does not even support the prosecution case. The M.O, Dr. Bednidhi Sarmah, PW-10 opined that no marks of injury were found on the breast or on the private parts on examination of the victim. He could not detect any marks of recent sexual intercourse on examination of the victim. He proved his report as Exhibit.1 and his signature on the medico legal report as Ext.1 (1). 27. The other formal witness is the Investigating Officer, Sri Tilok Ch.Roy. He has testified as P.W.11 that on 20/3/2010 he was posted at Balichang Out-Post. On receipt of FIR (Exhibit. 3), the O/C at Biswanath Chariali Out Post registered a case at BNC P.S. under Sec. 447/376/506 of IPC. He identified the signature of the O/C as Ext. 3 (1). He proved the printed format of the FIR as Ext.4. He further testified that he was endorsed with the investigation and he conducted the investigation. On receipt of FIR (Exhibit. 3), the O/C at Biswanath Chariali Out Post registered a case at BNC P.S. under Sec. 447/376/506 of IPC. He identified the signature of the O/C as Ext. 3 (1). He proved the printed format of the FIR as Ext.4. He further testified that he was endorsed with the investigation and he conducted the investigation. He prepared the sketch-map, marked as Ext.5, wherein Ext.5 (1) is his signature. He examined the witnesses at the place of occurrence and forwarded the victim for medical examination. She was also forwarded to the Magistrate, who recorded her statement under Sec. 164 Cr. P.C. Finally he submitted charge-sheet against the appellant under Ss. 448/376/506 of IPC. He proved his signature on the charge-sheet as Ext.7(1). No effective cross-examination was carried out. 28. The statement of the victim under Sec. 164 Cr.P.C. and the contents of the FIR reveals allegations of rape. The charge sheet was also laid under Ss. 448/376/506 IPC after investigation. However evidence adduced by the prosecution, unfolded an inconsistent narrative. 29. Relying on the evidence of P.W.1, the Trial Court convicted the appellant under Sec. 354 of IPC. The deciding part of the Judgment of the learned Trial Court is reproduced hereinbelow verbatim. "22. After entering into the house, the accused caught the victim lady and wanted to do evil work or illicit work. The meaning of evil work, illicit work as per Indian traditional society is nothing but act of sexual intercourse. The accused pressed her hands and body. The accused person could not commit rape on her. The act of accused person as stated by the victim woman may be amount to preparation for commission of rape and not an attempt to commit rape. Preparation consisting in devising or arranging the means or measure necessary for the commission of the offence. Attempt is direct movement towards commission of the offence. 23. In the Instant case the accused caught the victim lady with intention to have evil work with her and pressed her hands and body and at that time, the victim was not disrobed. The offence made out is U/S-354, IPC as the modesty of the victim woman has been outraged by the accused person by pressing her hand and body and wanted to have evil work. Here, I find that the offence U/S-354, IPC is found to be well proved. The offence made out is U/S-354, IPC as the modesty of the victim woman has been outraged by the accused person by pressing her hand and body and wanted to have evil work. Here, I find that the offence U/S-354, IPC is found to be well proved. The offence U/S-376(1) of IPC is not proved." 30. The Trial Court after an in depth discussion, converted the offence from Sec. 376 of IPC to an offence Sec. 354 IPC relying on the testimony of the victim. It was held by the Trial Court that the evidence of P.W.1 depicts that- "the accused wanted to do the evil work or illicit work." The Trial Court again stated that: "the act of the accused person as stated by the victim may be amount to preparation for commission of rape and not an attempt to commit rape." It was also further observed by the Trial Court that the victim was not disrobed. The crossexamination of the victim clearly depicts that the accused/appellant tore her dress. The trial Court has overlooked the fact that the prosecution has testified that the appellant tore off her dress. After considering the discussions of the Trial Court, it is held that the appellant was convicted on presumption. It was conjectured that the act of the accused may amount to preparation for commission of the offence of rape and the accused wanted to proceed with the evil work, but the accused was not held guilty of the offence of rape as the victim was not disrobed. Then the Trial Court went ahead and convicted the accused/appellant under Sec. 354 of IPC. 31. I do not agree with the decision of the learned Trial Court. The allegations of penetrative sexual assault was however correctly discarded. Major contradictions could be culled out through the evidence of the victim (P.W.3). These contradictions are apparent from the earlier statement of the victim compared to her testimony in the Court. These contradictions were not even elicited by the defence through crossexamination but the contradictions are apparent and impeaches the credibility of the victim. In her earlier statement under Sec. 164 Cr.P.C. (Ext.-6) and in the FIR lodged by the victim, it is stated that the appellant committed rape on her but the victim testified in the Court that the appellant attempted to commit rape on her. The victim herself has vacillated on this aspect. In her earlier statement under Sec. 164 Cr.P.C. (Ext.-6) and in the FIR lodged by the victim, it is stated that the appellant committed rape on her but the victim testified in the Court that the appellant attempted to commit rape on her. The victim herself has vacillated on this aspect. She described the act of the appellant by stating that he groped her inappropriately. Her evidence depicts that the appellant touched her body and her hands. The fact that the victim's evidence is not substantiated by her mother-in-law's (P.W.6's) evidence, also casts a shadow of doubt over the veracity of victim's evidence. Although the victim's testimony is supported by the testimony of her father-in-law (P.W.1) and her husband (P.W.2), yet due to the major contradictions evident in the earlier statement of the victim under Sec. 164 Cr.P.C as well as the FIR, vis-a-vis to her testimony in the Court, the appellant gets the benefit of doubt. 32. In Rajendra @ Raju Vs. State of Maharashtra, reported in (2002) 7SCC 721 the Hon'ble Supreme Court set aside the order of conviction under Sec. 354/366 IPC as the evidence of the prosecutrix was found to be unreliable. 33. In this case the learned Trial Court considered the prosecutrix to be a sterling witness. In Rai Sandeep @ Deepu Vs. State of NCT of Delhi (2012) 8 SCC 21 the Hon'ble Supreme Court has observed that: "In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a "sterling witness" whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged." 34. The instant case of the prosecution hinges on the evidence of PW-3. Her evidence was found to be highly unreliable. In this case at hand, the versions of the prosecutrix was found to be vacillating. It is apparent that the victim is not a sterling witness. It can be stated with certitude that the evidence of the victim is not of sterling quality. PW3's husband and her father-in-law are interested witnesses. Her father-in-law suddenly appeared in the scene. His evidence was not found to be reliable. His evidence depicts that when he found his daughter-in-law crying, a commotion erupted and the appellant fled. It can be stated with certitude that the evidence of the victim is not of sterling quality. PW3's husband and her father-in-law are interested witnesses. Her father-in-law suddenly appeared in the scene. His evidence was not found to be reliable. His evidence depicts that when he found his daughter-in-law crying, a commotion erupted and the appellant fled. His evidence is fuzzy and does not directly implicate that he saw the appellant in his house or escaping from his house. 35. Boloram Kumar, PW-4 is a neighbour. He has stated that he heard from the victim that the appellant physically abused her. Although his evidence depicts that he heard about the incident from the victim, yet his evidence does not lend support to the victim's evidence as her evidence was found to be unreliable. The evidence of other witnesses including her mother-in-law's evidence does not substantiate PW-3's evidence. 36. There was an inexplicable delay in lodging the FIR/complaint. The prosecution has failed to prove beyond reasonable doubt that the accused outraged the modesty of the victim. It is thereby concluded that the prosecution has also failed to prove beyond reasonable doubt that the accused committed house trespass by trespassing into the victim's house. The major contradictions in the evidence lends a benefit of doubt to the appellant and he is not found guilty of assault or using criminal force on a woman with intent to outrage her modesty. 37. It is held that the victim's evidence does not inspire confidence and the major contradictions impeaches the credit of the witness. Her evidence is not found to be creditworthy. 38. In the result and for the reasons discussed above, the appeal succeeds. The impugned order of conviction of the appellant and the sentence passed against him by the judgment and order under appeal is hereby set aside. The appellant is held not guilty of the offence of which he stands convicted for. Accordingly, the appellant is set at liberty. 39. The surety also stands discharged. 40. Send back the LCRs. 41. Pending application(s), if any, also stands disposed.