High Court
Case Details
Crl.A. 126/2010 PRESENT HON’BLE MR JUSTICE A. C. UPADHYAY This appeal is directed against the judgment and order dated 2nd July, 2 010 passed by the learned Sessions Judge, Hailakandi in Sessions case no. 45/200 8, convicting the appellant under Section 376 of the IPC and sentencing him to r igorous imprisonment for ten years and to pay a fine of Rs 5,000/- and in defaul t to suffer simple imprisonment for six months more, and also sentencing him to pay a fine of Rs 1,000/- each under Sections 448 and 323 of the IPC and in defau lt to undergo simple imprisonment for one month more. The learned trial Court a lso directed payment of the fines to the victim as compensation under Section 35 7 of the IPC. 2.
Legal Reasoning
The facts leading to the filing of the appeal may be, stated as follows: When the victim, a married woman and a resident of Katlicherra police st ation area was sleeping at noon on 5.4.2008, at around 12-00 noon, Siraj Uddin(t he appellant) sneaked her house taking advantage of her loneliness thereat and c ommitted rape on her. After committing rape when the accused was about to flee a nd the victim tried to pull back him, the accused turned back and assaulted the victim. Following this, the victim went to police station to file an ejahar. On the basis of the FIR, police swung into action, registered a case, started an in vestigation and on conclusion thereof, submitted charge-sheet under Sections 376 / 341/ 323 of the IPC against the appellant. 3. On committal of the case to his file, the learned Sessions Judge framed a formal charge u/s 448/376/323 of the IPC against the accused. On reading out a nd explaining the charge, the accused pleaded not guilty and demanded a trial. 4. During trial, prosecution examined in all 8 witnesses to establish the c harge. On conclusion of recording of evidence of the prosecution witnesses, stat ement of the accused was recorded in terms of provisions of Section 313 of the C r.P.C. The accused, in his statement u/s 313 of the Cr.P.C, denied the charges a nd declined to adduce evidence in his defence. On conclusion of hearing, the lea rned trial court convicted the appellant as aforesaid, giving rise to this appea l. 5. i, learned Additional Public Prosecutor.
Legal Reasoning
Heard Mr AM Barbhuyian, learned counsel for the appellant and Mr BB Gogo Mr. Barbhuyan, learned counsel for the appellant submitted that the evid ence of the prosecutrix is not at all worthy of credence, since the medical evid ence do not support a commission of rape. On the top of it, according to learne d counsel, evidence of the victim is not corroborated by any of the local witnes ses. 6. owing injuries on her person: PW1, Dr Sajidul Islam, who medically examined the victim, found the foll (cid:28)One abrasion over right zygomatic bone measuring 1cm x 1cm in size. 2. Abrassions over right hand 4 in numbers. Two in right arm and tw o in the right forearm. The size of abrasion in the arm is 5cm x 1cm and size of abrasion in the forearm is 3cm x 1cm. There is multiple linear abrasions over t he back 3 in numbers. Below the shoulder blade 2cm x 1cm in size. Abrassioni ove r the middle aspect of the left thigh measuring 8cm x 1cm in size and abrasion o ver the left forearm 2cm x 1cm in size. (cid:29) In the opinion of the medical officer, injuries are simple, fresh in nature, and were caused by a blunt object. 8. PW2 (the victim) deposed that at around 12 noon on 5.4.2008 when she was sleeping in her room alone and there was none at the house, the accused sneaked her room and raped her after gagging her mouth with a towel and when she repell ed him and raised alarm, the accused beat her up and she received injuries on he r person as a result. Thereafter, the accused fled away seeing her children retu rning home from their school. Having heard her screaming, villagers poured in at her residence and immediate thereafter she registered a case with the police. 9. PW3, Rahul Amin, who is the son of the victim, deposed that when he retu rned home from his school at around 12 noon, he witnessed the accused assaulting his mother and his mother fell and received injuries on her person. But in his cross-examination, PW.3 categorically staetd that school closes at 3-00 PM, but he could not say anything as to why he came to his house at around 12 noon. On the top of it, PW.3 clarified in his cross-examination that on reaching the pla ce of occurrence, he did not see any person around. The contradiction in the te stimony of PW3 had shaken the credibility of the prosecution story. 10. PW 4, 5 & 7 had been declared hostile by prosecution. From the evidence of the neighbouring witnesses, it appears that they d id not support the version of the prosecutrix. Not a single witness came forwar d to say that they know about the incident. From the evidence of the prosecutri x, it clearly transpires that there were cluster of houses in and around her res idence, apparently, when the occurrence allegedly took place on broad daylight, there was no reason that the nearby residents would not have witnessed the incid ent of beating and assault by the accused after committing of the alleged rape. But none was found to witness, except PW.2, who is the son of the prosecutrix. But the presence of PW.3 was not believable for the admitted reason that at 12- 00 Noon, PW.3 ought to have been in the classroom. 11. ext day found the following injuries on her person: PW6, Dr Ranabijay Malakar, who examined the victim, immediately on the n (cid:28)Teeth - 32 nos., one black mole over right breast, Abrasion over right- forearm. Uterus - Normal in size and shape and no mark of violence found. Vagina l swab examination shows no spermatozoa. X-ray examination shows that the age of the victim was above 20 years (cid:29). From the report of the doctor, it appears that there was no sign of rape 12. . No spermatozoa was found. Though the victim stated to have shown the semen of the accused, which fell in her clothings to the police, but there is no referen ce of having seized clothing of the victim stained with semen. This contradictio n in the statement of the victim does not inspire the confidence of the Court in her testimony. The doctor P. W. 6, who examined the victim within 24 hours of the occurrence, found no spermatozoa in smears, any recent injury or evidence of violence on he r body and private parts. The doctor’ opined that evidence of recent sexual inte rcourse was absent. As a matter of fact absence of spermatozoa in vaginal sme ar and absence of injury in her person do not falsify the prosecution version of rape, however, opinion of the doctor on rape cannot be by-passed by substitutin g it with the opinion of the Court . In any view of the matter, the evidence of Doctor p. W. 6 in this case cast a reasonable doubt as to whether the victim w as in fact raped? The benefit thereof must be given to the accused appellant. 13. PW.8 (Abdul Matin Talukdar), the investigating officer, deposed that on being entrusted the case, he reached the spot, drew a sketch, examined the witne sses and in course of investigation, arrested the accused and later submitted a charge-sheet. This witness also got the victim examined by doctor and took steps to get her statement recorded by a Judicial Magistrate. 14. From the evidence of the victim, it appears that the accused assaulted h er only after she came out of her residence to go to the police station to lodge ejahar. The occurrence took place on broad day light, and there were members o f household nearby the residence of the victim, but the victim neither met them nor reported anyone of them. Nobody said the accused coming to her home in broad daylight. Very surprisingly, the victim admitted that she had four sons at the time of occurrence, i.e. Fajlur Rahman(15), Rahul Amin(13), Abdul Kuddus(11) and Jalal(8). Out of the three sons, who were in their school, only one son came t o witness the incident at 12 noon, when the classes in their school were going o n. This part of the story is unpalatable, and seems to have been concocted. 15. Furthermore, the bravery of shouting out the alleged occurrence after the accused completed the commission of rape, do not seem to be natural; i f the accused had put some cloth on the mouth of the prosecutrix, for a non-rele nting prosecutrix, removing Saree to complete the rape alleged, appears to be ex aggerated, when threat perception on the victim is missing. 16. The victim admitted to have gone to the police station 30 Km away instea d of going to the nearest one, which was only 3 km away. Further, the victim al so admitted to have personally known Dr. Sajudul Islam, who gave the injury repo rt. 17. The Hon’ble Supreme Court has laid down the following guidelines in AIR 2006 SC 381, to appreciate the testimony of the prosecutrix, who is alone to sup port the story of the prosecution - (cid:28)Conviction for rape could be founded on testimony of prosecutrix alone - It is now well settled principles of law that conviction can be founded on the testimony of the prosecutrix along unless there are compelling reasons for seek ing corroboration. The evidence of a prosecutrix is more reliable than that of a n injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking of corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspire s confidence and is found to be reliable. It is also well settled principle of l aw that corroboration as a condition for judicial reliance on the testimony of t he prosecutrix is not a requirement of law but a guidance of prudence under give n circumstances. The evidence of the prosecutrix is more reliable than that of a n injured witness. Even minor contradictions or insignificant discrepancies in t he statement of the prosecutrix should not be a ground for throwing out an other wise reliable prosecution case (cid:29) 18. In Tameezuddin @ Tammu vs. State (NCT of Delhi) reported in (2009) 15 SC C 566, Hon’ble Apex Court held that It is true that in a case of rape the evide nce 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 log ic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. The relevant paragraphs of Tamezuddin (supra ) are extracted herie-in-below: 10. 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 e verything was forgiven and forgotten but had nevertheless lured him to the polic e station. If such statement had indeed been made by PW 2 there would have been no occasion to even go to the police station. Assuming, however, that the appell ant was naive and unaware that he was being led deceitfully to the police statio n, once having reached there he could not have failed to realise his predicament as the trappings of a police station are familiar and distinctive. Even otherwi se, 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. I n this view of the matter, some supporting evidence was essential for the prosec ution’s case. 11. As already mentioned above the medical evidence does not support the commiss ion 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 witnesse s though their statements had been recorded during the course of the investigati on. In this background, merely because the vaginal swabs and the salwar had seme n stains thereon would, at best, be evidence of the commission of sexual interco urse but not of rape. Significantly also, the semen found was not co-related to the appellant as his blood samples had not been taken. (cid:29) 19. In Yerumalla Latchaiah vs. State of AP reported in (2006) 9 SCC 713, H on’ble Supreme Court observed that when no injury was found on any part of the body of the victim, much less on private part and hymen was found intact and t he doctor has specifically stated that there was no sign of rape at all. In the medical report, it has been stated that vaginal smears collected and examined un der the microscope but no sperm detected. The evidence of the prosecutrix is bel ied by the medical evidence. In the facts and circumstances of the present cas e, the Apex Court held that the High Court was not justified in upholding the co nviction. 20. The doctor P. W. 6, who examined the victim within 24 hours of the occurrence, found no spermatozoa in smears, any recent injury or evidence of vio lence on her body and private parts. The doctor’ opined that evidence of recent sexual intercourse was absent. As a matter of fact absence of spermatozoa in vaginal smear and absence of injury in her person do not falsify the prosecution version of rape, however, opinion of the doctor on rape cannot be by-passed by substituting it with the opinion of the Court. In any view of the matter, a reas onable doubt is cast as to whether the victim was in fact raped? The benefit th ereof must be given to the accused appellant. 21. In the opinions of both the doctors, injuries received by the accused are simple in nature admittedly such injuries were caused to the victim after co ming out from the residence of the victim. No injury was inflicted on any part of the body of the victim, while committing rape much less on private part wa s found intact and the doctor has specifically stated that there was no sign of rape at all. In the medical report, it has been stated that vaginal smears colle cted and examined under the microscope but no sperm detected. The evidence of th e prosecutrix is belied by the medical evidence. Evidence of the prosecutrix doe s not unequivocally implicate the accused in the offence alleged. The sequence o f events in the prosecution story compels to infer that that evidence may h ave laid against the appellant out of sheer animosity or hostility. As the evid ence of the prosecutrix is suspicious it would not be safe to believe her to con vict the accused. Accordingly, when two situations are possible in the prosecu tion story , the situation which is favorable to the accused has to be accepted. Therefore, the appellant is entitled to the benefit of doubt. Consequently, the accused is acquitted and he is set at liberty forth with 22. 23.
Decision
In the result, the appeal is allowed . Send back the LCR.