High Court
Case Details
Crl.A. 219/2007 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI This appeal is directed against the judgment and order, dated 29.09.2007, passed , in Sessions Case No.204 of 2006, by the learned Additional Sessions Judge, FTC , Dibrugarh, convicting the accused-appellant under Section 354 IPC and sentenci ng him to suffer rigorous imprisonment for two years. 2.
Legal Reasoning
The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 11.09.2005, at about 3.30 pm, PW1 went to the house of the President of their Gaon Panchayat, who happened to be the wife of the accused Sh yam Kumar Sahu. When PW1 reached the house of the accused, the President was abs ent. Taking advantage of the absence of his wife, the accused, who came to the h ouse, offered a seat to PW1 inside his house. Shortly after PW1 took her seat, t he accused went out of the house, came back and caught hold of PW1 from behind b y both his hands covering her breasts. As PW1 raised hulla, the accused gagged h er mouth by his hands. A struggle between the two followed and, as a result ther eof, PW1 fell down. The accused also tried to lift the Saree, which PW1 was wear ing. PW1, somehow, managed to escape by pushing the accused away, she came to he r house on her bicycle and reported the matter to her husband and also to severa l others in her village including the Gaonburha (i.e., the village headman), whe reupon the Gaonburha (PW2), along with the husband of PW1 and some other co-vill agers went to the house of the accused and, upon being asked by his co-villagers , the accused admitted to have touched the body of PW1, whereupon PW1 lodged a w ritten Ejahar. Based on the said Ejahar, Chabua Police Station Case No.124/2006, under Sections 376/511 IPC, was registered against the accused and, on completi on of investigation, police laid charge-sheet against the accused under Section s 376/511 IPC. 3. 1 IPC , was framed against the accused, he pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 7 witnesses. T he accused was, then, examined under Section 313 Cr.PC and, in his examination a forementioned, the accused denied that he had committed the offence, which was a lleged to have been committed by him, the case of the defence being that of deni al. No evidence was adduced by the defence. 5. Having, however, not found the accused guilty of the offence Sections 37 6/511 IPC, the learned trial Court acquitted him of the same, but the learned tr ial Court, on coming to the conclusion that the evidence on record proved that t he accused had outraged the modesty of PW1, convicted the accused under Section 354 IPC and passed sentence against him as mentioned above. Aggrieved by his con viction and the sentence, which has been passed against him, accused, Shyam Kuma r Sahu, has preferred this appeal. 6.
Legal Reasoning
I have heard Mr. K. Agarwal, learned counsel, for the appellant, and Mr. At the trial, when a charge, under Section 376 IPC read with Section 51 K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 7. While considering the case of the prosecution, it is of utmost importanc e to bear in mind that PW1 is, admittedly, not only the victim, but also the sol e witness to the alleged act of outraging of her modesty by the accused-appellan t. Her evidence needed to be, therefore, examined very closely and if her eviden ce were not found to be wholly creditworthy, the accused could not have been con victed unless the evidence of PW1 were found to have received credible corrobora tion, on all material aspects, from other evidence on record, direct or circumst antial. 8. Bearing in mind what is indicated above, when I examined the evidence of PW1, I notice that according to her, when she went to the house of the accused looking for his wife, who was the President of their Gaon Panchayat, the wife of the accused was not there, but their maid servant was present at the house and the maid servant told PW1 to wait, PW1 accordingly waited and while she was so w aiting, the sister of the accused came there. It is in the evidence of PW1 that conversation took place between her and the sister of the accused and she (PW1) took tea there; but after the sister of the accused left, the accused came in an d offered a stool to PW1 to sit inside his house under a fan and when she took h er seat, the accused came from behind pulling out his shirt, hugged her from bac kside covering her breasts by his hands and when PW1 raised hulla, the accused g agged her mouth by his hands, PW1 fell down from the stool and the accused tried to do illegal act by lifting her saree. 9. It is also in the evidence of PW1 that she, somehow, managed to escape b y pushing the accused away, she came home on her bicycle and informed her husban d and her other co-villagers including the Gaonburha, who all, then, went to the house of the accused and, on being questioned, the accused admitted his guilt. 10. Broadly in tune with the evidence of PW1, her husband, PW3, has deposed that on the day of the occurrence, PW1 went to the house of the accused looking for his wife and, on returning home, PW1 told him (PW3) that the accused had ask ed her to sit inside his house and, thereafter, the accused, coming from backsid e, hugged her covering her breasts, caused her to fall down, gagged her mouth by his hands and tried to lift her saree, but she, somehow, rescued herself and ru shed to her house and informed him (PW3) about the occurrence and he (PW3), ther eafter, informed his co-villagers, who called the accused and enquired from him and the accused pleaded guilty before the co-villagers and, then, PW1 lodged the Ejahar. 11. What is, now, of immense importance to note is that in her cross-examina tion, though PW1 has denied that she had not stated before the police that the a ccused had hugged her from backside covering her breasts and/or that she had fal len down from the stool and/or that the accused tried to do illegal act by raisi ng her saree, the investigating officer has confirmed that no such statement was made by PW1, when her statement was recorded during investigation. Similarly, e ven PW3 did not, contrary to what has deposed in the Court, state before the pol ice at the time, when the occurrence was fresh in his mind, that the accused had hugged PW1 from behind covering her breasts and she fell down, whereupon the ac cused tried to raise PW1’s saree. 12. Coupled with the above, one can also not ignore the fact that according to the evidence of PW1 herself, the maid servant of the accused was present in t he house at the time of the occurrence. The said maid servant was not examined a s a witness at the trial. For omission to examine the maid servant no explanatio n has been offered by the prosecution nor is any explanation, in this regard, di scernible from the evidence on record. There can, therefore, be no escape from d rawing adverse inference against the prosecution, the inference being that had t he maid servant of the accused-appellant been examined, she would not have suppo rted the case of the prosecution. 13. In the circumstances indicated above, the evidence of PW1 is not such, w hich can be described as the evidence of a wholly reliable witness and no implic it reliance can be placed on her evidence consequently the evidence of PW1 could not have been relied upon for the purpose of founding conviction of the accused -appellant under Section 354 IPC. 14. The witnesses, it may be noted, generally, fall in three categories, nam ely, those, who are wholly reliable, and those, who are wholly unreliable. Coupl ed with this, the third category is of those witnesses, who are neither wholly r eliable nor wholly unreliable. While there is no impediment in relying upon the testimony of a witness, who is wholly reliable, it is also quite easy to reject the evidence of a witness, who is wholly unreliable. In the case of a witness, w ho is neither wholly reliable nor wholly unreliable, the evidence of such a witn ess has to be corroborated, in order to rely upon, by credible evidence, direct or circumstantial. 15. Situated thus, it is clear that unless the evidence of PW1 is found to h ave been corroborated by trustworthy and credible evidence, direct or circumstan tial, conviction of the accused-appellant was not legally permissible by solely relying upon her evidence as to what had transpired between her and the accused- appellant. Pausing here for a moment, it may be pointed out that as far as PW3, hus 16. band of PW1, is concerned, he himself was not an eye witness and his evidence is what was reported to him by his wife, strangely enough, however, even PW3 had n ot stated before the police, as confirmed by the investigating officer, that the accused-appellant had come from behind, caught hold of PW1 covering her breasts and as she had tried to raise hulla, the accused-appellant had gagged her mouth by his hands and, in the process, she had fallen down. 17. What is, now, pertinent to note is that according to the evidence of PW3 , their co-villagers, including the Gaonburha (PW2), having been informed about the occurrence, questioned the accused and the accused pleaded guilty. If the ev idence, so given by PW3, is read in the light of the evidence of Gaonburha (PW2) , what transpires is that according to PW2, PW1 came home and informed him that the accused had misbehaved with her and that she gathered the villagers and took them to the house of the accused and when they asked the accused about the inci dent, the accused conceded his guilt. 18. From a bare reading of the evidence of PW3, on the one hand, and the evi dence of PW2, on the other, what becomes clear is that while according to PW3, t he accused was called by the co-villagers and questioned and, then, he pleaded g uilty, PW2 claims that they all went to the house of the accused, questioned him and the accused pleaded guilty. 19. to PW2, the villagers pushed the accused and the accused pleaded guilty. Be that as it may, what is most crucial and important is that according The evidence, so given by PW2 and PW3, has been treated as extra-judicia 20. l confession of the accused by the learned trial Court. Suffice it to point out here that it is not the case of the prosecution, as discernible from the evidenc e on record, that the accused had, on his own volition, gone to his co-villagers and confessed his guilt. By no means, therefore, the alleged admission of the a ccused, as indicated hereinbefore, could have been regarded as voluntary. 21. It is trite that admission or confession is valueless unless the admissi on or confession, as the case may be, is voluntary and true. When the alleged ad mission of guilt by the accused is ex facie involuntary, this was not a piece of evidence, which could have been relied upon by the learned trial Court. If, the refore, the alleged admission of guilt of the accused-appellant is kept excluded from the purview of this Court’s consideration as involuntary, this Court is le ft with nothing, but the evidence of PW1, whose evidence, as this Court has alre ady pointed out above, is not the evidence of a wholly reliable witness. 22. When I proceed further with the evidence on record, I find that accordin g to PW4, he saw PW1 coming out of the house of the accused and when he (PW4) we nt there, he found PW1 crying and, on being asked by him (PW4), PW1 told him tha t the accused tried to commit rape on her and, then, PW1 left the place on her b icycle. This description of the occurrence is wholly contrary to the evidence gi ven by PW1 inasmuch as her evidence is clear that from the house of the accused, she went straight to her own house on her bicycle and informed her husband (PW3 ) about the occurrence. There is not even an iota of material, in the evidence o f PW1, showing that she met PW4 on coming out of the house of the accused-appell ant and, on being asked by PW4, she (PW1) told him that the accused had tried to commit rape on her. The evidence, thus, of PW4 cannot be believed; more so, whe n I find that according to him, when he reached the house of the accused-appella nt and enquired from PW1 as to what had happened, there were 4 to 5 more persons present, though the evidence of PW1, as I have already discussed above, gives n o indication that she met anyone on coming out of the house of the accused-appel lant after the occurrence. 23. As far as PW5 is concerned, his evidence is that on the day of the occur rence, when he found some people having gathered at the house of the accused, he went there and found PW1 weeping at the verandah of the house, her dress was no t in decent position and that PW1 told him (PW5) that the accused caught hold of her from backside. 24. Contrary to the evidence so given by PW5, PW1 never said that she told P W5 that the accused had caught hold of her from backside. This apart, the evide nce of PW5 shows that the Gaonburha (PW2) came and charged the accused and it is then that the accused admitted his guilt before the people, who had gathered th ere. This is yet another piece of evidence, which goes to show that it was not o n his own volition that the accused-appellant had made confession or admission, which is alleged to have been made by him. 25. The evidence of PW6 does not improve the case of the prosecution inasmuc h as his evidence is same as that of PW5 inasmuch as he has merely claimed to ha ve seen PW1 coming out of the house of the accused and when he (PW6) went to the house the accused, he found there a group of people including the Gaonburha (PW 2) and that the accused confessed before them that he had touched the body of PW 1. 26. If the evidence of PW4, PW5 and PW6 given to the effect that the accused -appellant had admitted his guilt before them is kept excluded as involuntary, t he prosecution is left with nothing, but with the evidence of PW1 in order to fa sten the accused-appellant with the accusation of commission of outraging the mo desty of PW1. 27. Because of the fact that this Court has found the evidence of PW1 as the evidence of a witness, who can, at best, be described as a witness, who is neit her wholly reliable nor wholly unreliable, her sole testimony, with regard to wh at had transpired inside the house of the accused-appellant ought not have been made, and could not have been made, the basis of conviction of the accused-appel lant. 28. the accused-appellant ought to have been given, at least, benefit of doubt. 29. Because of what have been discussed and pointed out above, this Court fi nds that the accused-appellant was not proved, beyond reasonable doubt, to have committed offence under Section 354 IPC. His conviction, therefore, cannot be su stained. 30.
Decision
In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction and the sentence passed against the accused-appellant b y the judgment and order under appeal are hereby set aside. The accused-appellan t is held not guilty of the offence of which he stands convicted and he is acqui tted of the same under benefit of doubt. 31. uired to be detained in connection with any other case. 32. ged. 33. At any rate, in the face of the evidence on record, as described above, Let the accused-appellant be set at liberty, forthwith, unless he is req The bail bond of the accused is cancelled and his sureties stand dischar Send back the LCR.