High Court
Case Details
Crl.A. 146/2007 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI JUDGMENT AND ORDER (ORAL) This appeal is directed against the judgment and order, dated 07-07-2007, passed , in Sessions Case No. 113 of 2005, by the learned Sessions Judge, Karimganj, wh ereby the accused-appellant stands convicted under Sections 457 and 376 IPC and sentenced to undergo, for his conviction under Section 376 IPC, rigorous impriso nment for ten years and also to undergo, for his conviction under Section 457 IP C, rigorous imprisonment for five years with fine of Rs. 5,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of three The prosecution’s case, as unfolded at the trial, may, in brief, be desc
Legal Reasoning
months, both the sentences having been directed to run concurrently. 2. ribed as follows: PW3, a divorcee, used to live, in her parental house, with her two children, one of whom was about 6/7 years old and the other about 2 years old. The accused wa s a neighbor of PW3. On 29-11-2004, at about 1.00 a.m., the accused entered into the house of PW3 by breaking open the door of her house, gagged her and threate ned to kill her if she resisted. Putting thus, in fear, the accused forcibly had sexual intercourse with her. As soon as the accused left, PW3 screamed for help and the persons, who were passing by the side of the house of PW3, came to PW3’ s house and she reported to them about the fact that the accused had committed r ape on her. On 29-11-2004, at about 11.30 a.m., a written Ejahar (Ext.2) was lod ged at Ram Krishna Nagar Police Station. Treating the said Ejahar as First Infor mation Report (in short, ’FIR’), RK Nagar Police Station Case No. 90 of 2004, un der Sections 457/376/506 IPC, was registered against the accused. During investi gation, police visited the place of occurrence, drew sketch map of the place of occurrence and, on completion of investigation, laid charge-sheet against the ac cused for his prosecution under Sections 457/376/506 IPC. 3. At the trial, when charges, under Sections 457 and 376 IPC, were framed, the accused-appellant pleaded not guilty thereto.
Legal Reasoning
4. In support of their case, prosecution examined altogether 7 (seven) witn esses. The accused-appellant was, then, examined under Section 313 Cr.PC and, in his examination aforementioned, he denied that he had committed the offences, w hich were alleged to have been committed by him, the case of the defence being t hat date of denial and of his having been falsely implicated, because of the lan d dispute, which the accused had with PW3. No evidence was adduced by the defenc e. Having, however, found the accused guilty of the offences, which he stoo 5. d charged with, the learned trial Court convicted him accordingly and passed sen tences against him as mentioned above. Aggrieved by his conviction and the sente nces passed against him, the accused has preferred this appeal. I have heard Mr. SC Biswas, learned counsel, assisted by Ms. K Lorenireg 6. ina Yanthan, learned counsel for the appellant, and Mr. K. A. Mazumdar, learned Additional Public Prosecutor, Assam. 7. While considering the present appeal, what needs to be borne in mind is that it is not in dispute that PW3 is a divorcee and she has two children, one o f whom is about 6 years old and the other is about 2 years old. It is also not i n dispute that PW3 lives in her parental house alone with her children. 8. In the backdrop of the facts indicated above, when one closely examines the evidence of PW3, what transpires from her evidence is that on the night of t he occurrence, while she was fast asleep in her house, the accused entered into her room by breaking open the door, the accused gagged her and threatened that h e would kill her if she resisted. Putting PW3 into fear in the manner as indicat ed hereinbefore, the accused forcibly had sexual intercourse with PW3 and as soo n as the accused left the house of PW3, PW3 claims to have raised hullah and att racted by the hullah, so raised, Abdul Malik (PW1), who was amongst the passersb y, came to PW3 and he was reported about the occurrence by PW3 and on the follow ing day, PW3 lodged an Ejahar and the police was put to action. 9. What is, now, of immense importance to note is that the defence case, if I may reiterate, is that the accused had land dispute with PW3 and it was to pu t pressure on the accused that a case of rape was falsely made out and lodged by PW3. It is extremely important to note in this regard that when questioned, in her cross-examination by the defence, PW3 flatly denied that there was any land dispute between her and the accused. Belying the said assertions of PW3, the Inv estigating Officer (PW7) has admitted, in his cross-examination by the defence, that a proceeding under Section 144 Cr.P.C. was initiated by the accused in resp ect of a plot of land over which both the accused as well as PW3 made claim of o wnership and that the order, under Section 144, was promulgated on 28-11-2004 an d the FIR, in the present case, was lodged, on 29-11-2004, alleging that on the previous night, i.e. on 28-11-2004, PW3 have been subjected to rape by the accus ed. 10. Though, ordinarily, the existence of a land dispute would not make the e vidence of a prosecutrix untrustworthy, what cannot be ignored is the fact that PW3, having taken oath to speak the truth, denied outrightly that she had any la nd dispute with the accused. This clearly shows that PW3 is capable of lying on oath and in such circumstances; her evidence cannot be implicitly relied upon. I t becomes the duty of the Court to scrutinize minutely the evidence of a witness , such as PW3, in order to ascertain if her evidence can be believed in or relie d upon, more particularly, in a case of present nature, where it is the sole tes timony of PW3, which has been made the basis of conviction of the accused-appell ant by the learned trial Court. 11. Keeping in view what have been indicated above, when one reverts to the evidence on record, what attracts the attention of the Court, most prominently, is that though PW3 has alleged that the accused had entered into her room by bre aking open the door, there is no evidence on record either from the end of the I nvestigating Officer or from any other witness that the door of the room, where PW3 claims to have been sleeping, were found broken. This apart, the occurrence had allegedly taken place at about 1.00 a.m. on 29-11-2004 and PW3 was medically examined on 29-11-2004 itself; but no sign of any injury was found on her priva te parts. When a woman is immortalized, because of fear, which is instilled in h er by an accused by threatening to kill her, it is quite possible not to find an y sign of injury on the private parts of the woman. It is, however, imperative t o note that according to PW3, the accused had not only gagged her, but when she was struggling to free herself, the accused threw her on the floor and, then, fo rcibly had sexual intercourse with her. If this description of the occurrence we re correct, there would have been some injury on the person of PW3; whereas ther e was no sign of any injury on her person, when PW3 was examined by the doctor. Coupled with the above, PW3 claims that she reported the occurrence to t 12. he passersby and amongst the passersby, she has named PW1. However, PW1 has expr essed complete ignorance about the occurrence and though he has been cross-exami ned by the prosecution, nothing could be elicited from him to show that his evid ence that he does not know about the occurrence is not true. Merely because of t he fact that the previous statement, allegedly made by PW1, did not tally his ev idence in the Court, it would not prove the fact that he had been reported about the occurrence by PW3 in the dead hours of the night inasmuch as there is no gu arantee that what he had allegedly stated before the police were true. 13. One can also not ignore the fact that though PW6 has claimed to have bee n reported about the occurrence by PW1, but the fact of the matter remains that PW3 does not mention in her evidence the name of PW6 as a person to whom she had reported the occurrence on the very night of the occurrence. The least, which c ould have been done by the prosecution, in the light of the evidence of PW6, was to recall PW3; but this duty, which the prosecution had, was not discharged. Th ere is, therefore, no credible and convincing corroboration of the evidence of P W3 that she had reported the occurrence to anyone on the night of the occurrence , though she claims to have raised hullah immediately after the accused-appellan t had left. It is also important to note that though PW3 was sleeping with her t wo children, one of whom was about 6/7 years old; but he has not been examined b y the prosecution, though PW3 claims to have raised hullah, which, if true, woul d have woken up the children. For omitting to examine, at least, the elder child of PW3, no explanation, far less convincing and plausible, has been offered by the prosecution or is discernible from the record. 14. Because of what have been discussed and pointed out above, the evidence of PW3 cannot be treated as evidence of a wholly reliable witness. Even if, ther efore, her evidence is not rejected as evidence of a wholly unreliable witness, her evidence would fall, at best, in the category of those witnesses, who are ne ither wholly reliable nor wholly unreliable. The testimony of a witness, who is neither wholly reliable nor wholly unreliable, can be acted upon provided that t he evidence of such a witness is corroborated by convincing and credible evidenc e, direct or circumstantial. In the present case, the evidence of PW3 does not r eceive credible corroboration from the evidence of those, whom she claims to hav e told about the occurrence immediately after the occurrence. 15. Situated thus, it is well neigh impossible to treat the evidence of PW3 as evidence of a person, whose testimony could have been made basis for convicti on of the accused-appellant under Sections 457 and 376 IPC. 16. In the circumstances as indicated above, it could not have been held and ought not to have been held that the accused-appellant had been proved, beyond reasonable doubt, guilty of the offences, which he stood charged with. 17. Because of what have been discussed and pointed out above, this appeal s ucceeds. The impugned conviction of the accused-appellant and the sentences pass ed against him by the judgment and order under appeal are hereby set aside. The accused-appellant is held not guilty of the offences of which he stands convicte d and he is accordingly acquitted of the same under benefit of doubt. 18. red to be detained in connection with any other case. 19. Let the accused-appellant be set at liberty forthwith unless he is requi Send back the LCR with a copy of this judgment and order.