Gauhati High Court
Crl.A./431/2017 on 5 September, 2024
Author: Manish Choudhury
Bench: Manish Choudhury
GAHC010054912017
2024:GAU-AS:9151
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Criminal Appeal no. 431/2017
1. Sahid Ahmed @ Soid Ahmed, S/o Ala Uddin, R/o Village
- Borbari, Police Station - Karimganj, District -
Karimganj.
2. Saddam Hussain @ Sadu @ Amir Hussain, S/o Achab
Uddin, R/o Village - Rahimpur, Police Station -
Karimganj, District - Karimganj
..................Appellants
-VERSUS-
The State of Assam
...................Respondent
Advocates :
Appellants : Mr. H.R.A. Choudhury, Sr. Advocate
Mr. A. Ahmed, Advocate
Respondent : Ms. B. Bhuyan, Addl. Public Prosecutor
Ms. R. Das, Advocate
Date of Hearings and Judgment & Order : 05.09.2024
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BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
HON'BLE MRS. JUSTICE MITALI THAKURIA
JUDGMENT & ORDER [ORAL]
[Manish Choudhury, J.]
The present criminal appeal under Section 374[2], Code of Criminal Procedure [CrPC],
1973 [‘the Code’ or ‘the CrPC’, for short] is preferred by the two appellants by taking
exception to a Judgment and Order dated 11.09.2017 passed by the Court of learned
Sessions Judge, Karimganj [‘the trial court’, for short] in Sessions Case no. 16 of 2017. In
the trial before the learned Sessions Judge, Karimganj, the two accused-appellants viz.
[i] Sahid Ahmed @ Soid Ahmed [hereinafter also referred to as ‘A-1’, at places, for easy
reference]; and [ii] Saddam Hussain @ Sadu @ Amir Hussain [hereinafter also referred to
as ‘A-2’, at places, for easy reference], faced the charges for the offences described
under Section 458, Section 352, and Section 376D of the Indian Penal Code [IPC]. After
the trial, the learned trial court found both the accused persons, A-1 and A-2 guilty of the
offences under Section 458, Section 352 and Section 376D, IPC read with Section 34,
IPC.
2. For the offence under Section 376D, IPC read with Section 34, IPC, the accused-
appellants have been sentenced to undergo rigorous imprisonment for 27 [twenty-seven]
years each and to pay a fine of Rs. 20,000/- each, in default of payment of fine, to
undergo further rigorous imprisonment for 5 [five] months each. For the offence under
Section 458, IPC read with Section 34, IPC, the accused-appellants have been sentenced
to undergo rigorous imprisonment for 10 [ten] years each and to pay a fine of Rs.
5,000/- each, in default of payment of fine, to undergo further rigorous imprisonment for
3 [three] months each. For having committed the offence under Section 352, IPC read
with Section 34, IPC, the accused-appellants have been sentenced to undergo rigorous
imprisonment for 3 [three] months each and to pay a fine of Rs. 500/- each, in default of
payment of fine, further rigorous imprisonment for 7 [seven] days each. The learned trial
court has observed that all the sentences are to run concurrently. The learned trial court
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has further observed that if the fine amounts are realized, then the same shall be paid to
the victim.
3. The case, Sessions Case no. 16 of 2017 arose out of Karimganj Police Station Case no.
08 of 2017 and corresponding G.R. Case no. 20/2017. The initiation of investigation of
the case, Karimganj Police Station Case no. 08 of 2017 was commenced after registration
of a First Information Report [FIR] before the Officer In-Charge, Karimganj Police Station
on 04.01.2017 in respect of an alleged incident of forcible penetrative sexual assault
occurred in the wee hours of 01.01.2017.
4. From the materials on record and the testimonies of the prosecution witnesses including
the testimony of the Investigating Officer [P.W.8], the manner in which the investigation
progressed and the charge-sheet came to be submitted against the accused persons can
be narrated, at first.
5. On 02.01.2017, the husband [P.W.3] of the prosecutrix lodged a complaint before the
Court of learned Chief Judicial Magistrate, Karimganj naming the two accused persons
herein, A-1 and A-2 as the accused for commission of the offences under Section 457,
IPC, Section 323, IPC and Section 376, IPC read with Section 34, IPC. The complainant
had alleged that the offence under Section 376, IPC was committed on the prosecutrix,
that is, the wife of the complainant at about 01-00 a.m. on 01.01.2017. The contents of
the complaint would be adverted to in the later part of this order. On receipt of the
complaint, the same was registered as C.R. no. 04/2017. After registration of the
complaint, C.R. no. 04/2017, the learned Chief Judicial Magistrate, Karimganj transferred
the complaint to the Court of learned Judicial Magistrate, First Class – II, Karimganj for
disposal. It transpires that on receipt of the case records of C.R. no. 04/2017, the Court
of learned Judicial Magistrate, First Class – II, Karimganj in exercise of the power under
Section 156[3], CrPC forwarded the complaint to the Officer In-Charge, Karmganj Police
Station for registering a case and to investigate into the matter. As per the version of the
then In-Charge, Manashangan Patrol Post under Karimganj Police Station who was also
the Investigating Officer [I.O.] of the case, Gulzar Hussain Ahmed [P.W.8], the Officer
In-Charge, Karimganj Police Station received the written complaint, forwarded by the
Court of learned Chief Judicial Magistrate, Karimganj, on 04.01.2017 and the same was
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registered as Karimganj Police Station Case no. 08/2017 under Sections 457/323/376,
IPC read with Section 34, IPC.
5.1. The FIR was then forwarded to Manashangan Patrol Post and Gulzar Hussain Ahmed
[P.W.8], the then In-Charge, Manashangan Patrol Post was entrusted with the task of
investigation into the case. According to P.W.8, the FIR was received at 09-30 a.m. on
05.01.2017. After receipt of the FIR, the case diary was opened.
6. Thereafter, the place of occurrence [P.O.], that is, the house of the victim [hereinafter
referred to as ‘the prosecutrix’] was visited by the I.O. at 10-00 a.m. on 05.01.2017. At
the P.O., the statements of the complainant [P.W.3], the prosecutrix [P.W.1] and other
witnesses including P.W.4 and P.W.5, were recorded. No object and no wearing apparels
of the prosecutirx were seized by the I.O. from the P.O. The I.O. [P.W.8] had, however,
prepared a Sketch Map of the P.O. [Ext.-3]. The prosecutirx was sent to Karimganj Civil
Hospital for medical examination on 06.01.2017. After medical examination, the
prosecutrix was forwarded to the Court of learned Chief Judicial Magistrate, Karimganj
for recording of her statement under Section 164, CrPC and the statement of the
prosecutirix under Section 164, CrPC was recorded by P.W.9, Sri T. Dey, Judicial
Magistrate, First Class, Karimganj on 06.01.2017. On 16.01.2017, both the accused
persons surrendered at the Police Station and on such surrender, they were produced
before the jurisdictional Magistrate’s Court. On being so produced before the Court, both
the accused persons, A-1 and A-2 were remanded to judicial custody. The Medical
Examination Report [Ext.-1] of the prosecutrix was collected on 17.01.2017. Thereafter,
a charge-sheet under Section 173[2], CrPC vide Charge-Sheet no. 27 was laid on
31.01.2017 against the two accused persons, A-1 and A-2 finding a prima facie case
under Sections 457/353/376 IPC read with Section 34, IPC well established against them.
7. After submission of the charge-sheet, the Court of learned Chief Judicial Magistrate,
Karimganj, by an Order of Commitment dated 23.02.2017, committed the case records of
G.R. Case no. 20 of 2017, arising out of Karimganj Police Station Case no. 08/2017, to
the Court of Sessions, Karimganj after complying with the procedure prescribed in
Section 207, CrPC and finding the offence under Section 376, IPC exclusively triable by
the Court of Sessions. Learned Public Prosecutor was accordingly notified. On appearance
of the accused persons, A-1 and A-2 before the Court of Sessions, Karimganj the learned
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Sessions Judge, Karimganj [‘the trial court’, for short] after hearing the learned Public
Prosecutor and the learned defence counsel; and perusal of the materials available in the
case records; framed the following charges against the two accused persons, A-1 and A-
2, on 08.02.2017, :-
Firstly, both of you had developed common intention of committing
gang rape on the victim the prosecutrix [name withheld] and had, in
pursuance of the said common intention, trespassed into her house at
around 01-00 a.m. on the intervening night of 31.12.2016 and
01.01.2017 by breaking open the door of her house situated in the
Village – Rahimpur after making preparation for sexual assault on
the victim and thereby committed an offence under Section 458/34 of
the Indian Penal Code, within the cognizance of the Court of
Sessions.
Secondly, both of you had, at the same time, date and place, and in
pursuance of your common intention as aforesaid had used criminal
force upon the said victim by gagging her mouth and thereby
committing an offence under Section 352/34 of the Indian Penal Code,
within the cognizance of the Court of Sessions.
Thirdly, both of you had, at the same time, date and place, after
committing the house breaking by night as aforesaid in pursuance of
the common intention to commit rape on the said victim, had
committed rape on the said victim within the meaning of Section 375
of the Indian Penal Code and thereby committing an offence under
Section 376D of the Indian Penal Code, within the cognizance of the
Court of Sessions.
8. When the charges were read over and explained to the accused persons, the accused
persons pleaded not guilty and claimed to be tried. During the course of the trial, the
prosecution side in order to bring home the charges against the accused persons, A-1
and A-2 examined nine nos. of witnesses and exhibited seven nos. of documents. The
prosecution witnesses examined were – [i] P.W.1 : the prosecutrix; [ii] P.W.2 : Suparna
Paul, Senior Medical & Health Officer, Karimganj Civil Hospital; [iii] P.W.3 : the
complainant-husband of the prosecutrix; [iv] P.W.4 : Fakar Uddin; [v] P.W.5 : an uncle of
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P.W.3; [vi] P.W.6 : a sister-in-law of the prosecutrix; [vii] P.W.7 : a sister-in-law of the
prosecutrix; [viii] P.W.8 : Gulzar Hussain Ahmed, I.O.; and [ix] P.W.9 : Tarun Dey,
Judicial Magistrate, First Class, Karimganj. The documents exhibited during the trial were
– [i] Ext.-1 : Medical Examination Report of the Prosecutrix; [ii] Ext.-2 : Complaint
Petition; [iii] Ext.-3 : Sketch Map of the P.O.; [iv] Ext.-4 : Charge-Sheet no. 27 dated
30.01.2017; [v] Ext.-5 : FIR; [vi] Ext.-6 : Order dated 06.01.2017 passed in G.R. Case
no. 20/2017; and [vii] Ext.-7 : Statement of the prosecutrix recorded under Section 164,
CrPC.
9. After closure of the evidence from the prosecution side, the accused persons, A-1 and A-
2 were examined under Section 313, CrPC to enable them to explain the circumstances
appearing against them in the evidence led by the prosecution. The plea of both the
accused persons, A-1 and A-2 was denial. In their explanation, the accused persons had
taken a plea of false implication in view of previous monetary dispute as well as a plea in
the nature of alibi. When the accused persons were asked whether they would adduce
any evidence in support of their defence, the accused persons declined to adduce any
defence evidence. After hearing the learned counsel for the parties; and upon
appreciation of the evidence/materials on record; the learned trial court after finding both
the accused persons guilty of the offences, mentioned above, has proceeded to deliver
the Judgment and Order of conviction and sentence, mentioned above.
10. We have heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. A. Ahmed,
learned counsel for the accused-appellants and Ms. B. Bhuyan, learned Senior Counsel &
Additional Public Prosecutor for the respondent State, assisted by Ms. R. Das, learned
counsel.
11. Mr. Choudhury, learned senior counsel appearing for the accused-appellants has
submitted that from the nature of testimony of the prosecutrix [P.W.1], the prosectutrix
cannot be termed as a sterling witness to inspire confidence to base any conviction on
the basis of her sole testimony and it could not have been termed, at any stretch, as safe
to base the conviction on her sole testimony. It has been contended that the version of
the prosecutrix as regards the entry of the two accused persons into the house/room in
the middle of the night was not consistent, as apparent from her statement recorded
under Section 164, CrPC; the FIR; and her testimony before the court as P.W.1. Mr.
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Choudhruy has further contended that the prosecution witnesses – P.W.5, P.W.6 and
P.W.7 – are close relatives of the prosecutrix and her husband [P.W.3], and their
testimonies required examination not only as related witnesses but also as interested
witnesses and only by exercise of due care and caution. On scrutiny of the evidence of
these prosecution witnesses with due care and caution, the prosecution story as regards
a serious offence like Section 376D, IPC, in absence of supporting medical evidence,
would fall apart. Mr. Choudhury has contended that there were four children who were
present at the P.O. but the prosecution side, for reasons best known to it, did not
examine any one of those children and such non-examination has created doubt as
regards the veracity of the prosecution case. Mr. Choudhury has also contended that the
identification of the accused persons was also doubtful as despite statement of the
prosecutrix that the accused persons were identified by her due to a lit kerosene lamp,
the said kerosene lamp was not seized and exhibited during the trial. In view of such
inconsistencies in the prosecution case, the case of the defence that there was previous
dispute in existence between the accused persons and the husband [P.W.3] of the
prosecutrix would gain relevance. It has been further contended that the side of the
prosecutrix had raised an allegation of threat without any material basis. Mr. Choudhury
has also raised a doubt in the manner the case was initiated. He has contended that the
complainant side instead of approaching the Police authorities had chosen to file a
complaint before the court and in the process, vital medical evidence, if any, against or in
favour of the accused persons had been lost leaving only the testimony of the prosecutrix
for scrutiny to reach a conclusion on guilt. In the process, delay had occurred and such
delay resulted in prejudice to the accused persons. In view of doubtful nature of the
testimony of the prosecutrix coupled with the testimonies of the inconsistent nature of
the related and interested witnesses, it cannot be said that the prosecution has been able
to prove the serious charge for the offence under Section 376D, IPC which requires proof
in the standard of beyond all reasonable doubts. With such projections, it has been
argued that the Judgment and Order of conviction and sentence passed against the
accused-appellants, A-1 and A-2 is not sustainable in law and the same is liable to be set
aside.
12. Ms. Bhuyan, learned Additional Public Prosecutor appearing for the State has supported
the Judgment and Order of the learned trial court with the reasoning that the learned
trial court had reached the finding of guilt with well recorded reasons. Learned State
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Counsel has contended that in a case of forcible sexual assault, the testimony of the
prosecutrix is to be considered at a pedestal even higher than an injured witness and the
prosecutrix is not an accomplice to the crime. In the case in hand, the testimony of the
prosecutrix is found to be consistent in nature. As regards the manner of entry into the
room/house, learned State Counsel has submitted that there is no apparent inconsistency
in the versions of the prosecutrix. In so far as the testimony of the prosecution witnesses
– P.W.5, P.W.6 and P.W.7 – are concerned, learned State Counsel has contended that
the defence side was not able to bring any kind of previous enmity between these
prosecution witnesses with the accused persons and as such, they cannot be termed as
interested witnesses. Being close neighbours of the prosecutrix, besides being relatives,
their presence at the P.O. immediately after the alleged incident was natural and their
testimony cannot be dubbed as doubtful. It is further contended by the learned State
Counsel that non-examination of the children who were present inside the room is, at
best, a defect in the investigation and the same would not carry any benefit to the
defence in view of the fact that the case has already been established beyond all
reasonable doubts. Learned State Counsel has submitted that the delay which had
occurred in lodging the complaint was due to absence of the husband of the prosecutrix
and the delay had been properly explained. With such contentions, learned State Counsel
has submitted that the Judgment and Order of conviction and sentence passed by the
learned trial court needs no interference.
13. We have duly considered the rival submissions of the learned counsel for the parties. We
have also perused the evidence/materials on record including the testimonies of the
prosecution witnesses and the documentary evidence, available in the case records of
Sessions Case no. 16 of 2017, in original. We have also considered the judgments
referred to by the learned counsel for the parties and the same would be adverted to in
the later part of this order.
14. As the prosecutrix was examined as P.W.1, it appears apt to refer to her testimony at
first. In her testimony, P.W.1 stated that on the date of the alleged incident, she was
sleeping in the house along with her four children, who were then aged about 9 years, 8
years, 5 years and 10 months respectively. Out of those four children, three were her
own children. At that time, her husband [P.W.3] who was a Mason, was in Mizoram.
P.W.1 stated that the house where she and her family used to stay was a kutcha house
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made of bamboo. At the time of the incident, the house was not in good condition and
there was a gap between the bamboo walls and the ground. As regards the incident,
P.W.1 stated that at around 02-00 a.m. on the relevant night, the two accused persons
entered into the house through the gap between the bamboo walls and the ground. Due
to the sound of knock on a table after their entry, she woke up and on waking up, she
found that the accused person, A-1 was trying to put out the kerosene lamp lit at that
time inside the room. When she tried to scream, the accused person, A-1 gagged her
mouth with his hands and thereafter, both the accused persons removed her wearing
apparels and committed forceful sexual intercourse with her. P.W.1 testified that the
accused, A-1 committed forceful penetrative sexual assault on her first and thereafter, it
was the other accused person, A-2 who had committed forceful penetrative sexual
assault on her. P.W.1 stated that before A-1 could put out the kerosene lamp, she
identified the other accused person, A-2 as well. Before the accused persons had
committed the forceful sexual act, all the children woke up from their sleep and as soon
as the kerosene lamp was put out, the children started crying. P.W.1 stated that the
accused person, A-1 dragged her down from her bed on the ground and committed
penetrative sexual assault on her. Despite request made by her to the accused persons,
the accused persons did not grant any respite. P.W.1 deposed that the entire incident
continued for about forty to fifty minutes. Thereafter, when the two accused persons
were about to leave the house, she started screaming along with her children and
hearing their screams, P.W.5 who lived in the same courtyard, and P.W.6, her sister-in-
law came to her house and saw the two accused persons running away from the P.O.
P.W.1 further stated that the entire incident was then narrated to P.W.5 and P.W.6.
P.W.1 further stated that she stayed in the house of P.W.5 for the night and informed
her husband, P.W.3 about the incident over phone. Her husband [P.W.3] came from
Mizoram at around 10-00 p.m. on 01.01.2017 and on the next day, the complaint was
lodged in the court. P.W.1 also stated about sending of the complaint to the Police
Station; recording of her statement by the Police; about her medical examination;
narrating the incident to the Doctor; who medically examined her; and recording of her
statement before the Magistrate.
14.1. During cross-examination, P.W.1 denied the suggestions put to her by the defence. She
denied that she did not state before the I.O. [P.W.8] that the two accused persons
entered into the house through the gap between the bamboo wall and the ground. P.W.1
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stated that all the four children woke up at the time of the incident and they started
crying. P.W.1 further stated that before the accused persons had left, no relative or
neighbour came to the P.O. It was after the incident, her relatives and neighbours
gathered at the P.O. P.W.1 stated that she suffered an injury on her upper left back but
she did not consult a doctor in respect of the said injury at any time earlier to her
medical examination. P.W.1 denied that she did not narrate the incident to the doctor.
P.W.1 stated that Police did not seize the wearing apparels she was wearing at the time
of the incident. P.W.1 admitted that it would take about 10/15 minutes to reach the
nearest Police Post from her residence. P.W.1 further stated that P.W.6 was able to
identify the two accused persons and P.W.5 came after P.W.6. P.W.1 deposed that by
the time P.W.5 reached the P.O., the accused persons had already left the scene. She
denied a suggestion that there was a dispute between her husband [P.W.3] and the
accused person [A-2] as regards money and because of demand raised by A-2 for the
money, her husband [P.W.3] instituted a false case against him [A-2] and she deposed
falsely implicating the accused persons.
15. The prosecution witnesses – P.W.5, P.W.6 and P.W.7 – are related to the prosecutrix
[P.W.1] and their houses are in close proximity to the house of the prosecutrix and her
husband [P.W.3]. It is also demonstrated in the Sketch Map of the P.O. [Ext.-3]. The
prosecutrix [P.W.1] and her husband [P.W.3] used to call P.W.5 as their uncle. P.W.6
and P.W.7 are wives of the brothers of the husband of the prosecutrix [P.W.1], that is,
they are sisters-in-law of the prosecutrix.
16. P.W.5, in his testimony, stated that on the date of the incident, he woke up from sleep
hearing some screams at around 02-00 a.m. As the screams were found to have come
from the house of the prosecutrix, P.W.5 came out of his residence and heard the
prosecutrix calling ‘Abba, Abba’ from her residential house. Then, he [P.W.5] went to her
[prosecutrix’s] house and found the door of the house of the prosecutrix closed. Then he
called out for her [prosecutrix] children to open the door. Thereafter, the prosecutrix
opening the door told P.W.5 that the two accused persons had entered into her house.
When he [P.W.5] asked the prosecutrix that if the miscreants were in her house why had
she closed the door and in reply, the prosecutrix [P.W.1] told to him [P.W.5] that after
the miscreants had left, she closed the door out of fear. According to P.W.5, P.W.3’s
elder brother’s wife [not named] also came there. P.W.5 admitted presence of the
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children inside the house at that point of time. When the prosecutrix disclosed to him
[P.W.5] that she would not stay in her house due to fear, she was taken to his house for
that night and P.W.3’s elder brother’s wife [not named] also stayed in his house for that
night. It was in the following morning the husband [P.W.3] of the prosecutrix came from
his place of work and thereafter, the prosecutrix had filed the case. P.W.5 further stated
that he could know one of the accused as Saddu but he could not name the other
accused person. P.W.5 had stated that A-1 and the mother of the other accused person,
A-2 belonged to their village.
16.1. During cross-examination, P.W.5 stated that the wife of the elder brother of P.W.3
arrived at the P.O. after him. P.W.5 stated that he did not have any knowledge as
regards any dispute between P.W.3 and the accused persons prior to the incident. P.W.5
denied the suggestions given to him by the defence with regard to his previous
statement before the Police. P.W.5 denied that no incident as alleged by him, had taken
place and he had deposed falsely.
17. In her evidence-in-chief, P.W.6 stated that on the date of the incident, she was sleeping
in their house with her mother and her husband was not there. On the incident, P.W.6
stated that at around 01-30 a.m./02-00 a.m. they hearing a scream, came out of their
residence and they found that the screaming had come from the house of the
prosecutrix. Then, they flashed the torch light and in that light, they saw the accused
persons running away. Then, she went to the house of the prosecutrix to ask the reason
behind their screaming and in reply, the prosecutrix stated that the accused persons had
forceful sexual intercourse with her inside her house after breaking open the bamboo
wall of the house to make their entry. P.W.6 disclosed that at that time, the children of
the prosecutrix were also present inside the room. P.W.6 further stated that hearing the
screaming of the prosecutrix, P.W.5 also came to the P.O. from his nearby residence.
Then, she [P.W.6] along with the prosecutrix and the children went to the house of
P.W.6 to stay for the night in the house of P.W.5. The husband [P.W.3] of the
prosecutrix came to his house in the after-noon on the following day. P.W.6 stated that
she knew the two accused persons as both of them belonged to their village.
17.1. In cross-examination, P.W.6 stated that in their courtyard, there were several other
houses. P.W.6 also stated that Police recorded the statement of P.W.7. P.W.6 stated that
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Police did not seize any broken part of the house when she accompanied the Police
personnel to the house of the prosecutrix. P.W.6 stated that the two accused persons
were friends and they usually stay together. P.W.6 denied that she did not state to the
Police that she had seen the two accused persons running away from the P.O. P.W.6 also
stated that at that time, she also came out from her house and also saw the presence of
P.W.5 there. According to P.W.6, after hearing screams, several other persons reached
the P.O. but she did not know their names. P.W.6 also denied about existence of any
dispute between the prosecutrix and the accused persons.
18. P.W.7, another sister-in-law of the prosecutrix like P.W.6 and whose residence was also
nearby, deposed to the effect that on the date of the incident, she was sleeping in her
residence with her children and her husband was not present in that night. At around 01-
30 /02-00 a.m., she heard a scream and hearing the scream, she [P.W.7] came out from
her house and saw two male persons running away from the place. Then, they went to
the house of the prosecutrix and at that point of time, P.W.5 also came there. When she
enquired to the prosecutrix about the reasons behind her screaming, she was told that
the accused persons had committed rape on her [prosecutrix] inside her house. P.W.7
stated that she was told by the prosecutrix that the accused persons had entered into the
house by breaking open the bamboo wall of the house. P.W.7 was further told that at the
time of the incident, the three children of the prosecutrix were also inside the house.
Thereafter, she [P.W.7] along with the prosecutrix [P.W.1] went to the house of P.W.5
and stayed there for the night. P.W.7 further testified that before she went to the house
of the prosecutrix, P.W.6 had gone there but P.W.6 left the place before she [P.W.7]
reached there. P.W.7 further stated that after the incident, she left for her parental
house.
18.1. During cross-examination, P.W.7 stated that P.W.5 came after she reached the house of
the prosecutrix. P.W.7 disclosed that P.W.6 stayed in her own house after the incident
and did not go to the house of P.W.5. P.W.7 denied the other suggestions put to her by
the defence while admitting that there were other houses near the house of the
prosecutrix. P.W.7 stated that the Police recorded her statement after the accused
persons were arrested. P.W.7 had found that at time of the incident, the prosecutrix and
her three children were present inside the house. P.W.7 denied the suggestion that there
was monetary dispute between the prosecutrix and the accused person, A-1.
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19. The I.O. of the case, Gulzar Hussain Ahmed who had testified as P.W.8, as already
mentioned hereinabove, stated about the manner the investigation of the case was
carried out. P.W.8 stated that he did not seize the wearing apparels of the prosecutrix.
P.W.8 admitted that there were several children in the house of the prosecutrix but he
did not record their statements because of the reason that they were very young. P.W.8
stated that he did not make any prayer before the jurisdictional Magistrate for recording
of the statement of the said children. P.W.8 further stated that he did not seize any
kerosene lamp from the P.O. According to P.W.8, the nearest Police Patrol Post,
Manashangan Patrol Post is situated at a distance of 4 kms from the P.O. whereas
Karimganj Police Post is situated at a distance of 9 kms and Madanmohan Patrol Post is
situated at a distance of 15 kms from the P.O. P.W.8 stated that the prosecutrix did not
state to him that on her raising alarm, P.W.5 came to her [prosecutrix] house and after
the incident, she [prosecutrix] stayed in the house of P.W.5. P.W.8 further stated that
the prosecutrix did not state to him that the two accused persons entered into her house
through the gap between the bamboo wall and the ground and did not also state to him
that on hearing the knock on the table, she woke up and saw the two accused persons in
the light emanating from the kerosene lamp. P.W.8 further stated that the prosecutrix
stated to him that the accused persons removed her wearing apparels and thereafter,
committed the forceful penetrative sexual intercourse with her. P.W.8 further stated that
P.W.6 and P.W.7 did not state before him that each of them had seen two persons
running away.
20. P.W.9, Tarun Dey was, on 06.01.2017, serving as a Judicial Magistrate, First Class at
Karimganj. On that day, the case records of G.R. Case no. 20/2017, corresponding to
Karimganj Police Station Case no. 08/2017, was received by him for the purpose of
recording the statement of the prosecutrix. After ascertaining about her voluntariness,
P.W.9 recorded the statement of the prosecutrix under Section 164, CrPC. P.W.9
exhibited an Order dated 06.01.2017 and the statement of the prosecutrix recorded
under Section 164, CrPC as Ext.-6 and Ext.-7 respectively. In cross-examination, P.W.9
denied a suggestion that the statement was not made voluntarily.
21. Dr. Suparna Paul was serving as Senior Medical & Health Officer in Karimganj Civil
Hospital on 06.01.2017 and it was on 06.01.2017, the prosecutrix was sent to Karimganj
Page 13 of 27
Civil Hospital for medical examination. In her testimony, Dr. Suparna Paul testifying as
P.W.2, stated that the prosecutrix was examined on 06.01.2017 at around 01-50 p.m. in
connection with Karimganj Police Station Case no. 08/2017, registered for the offences
under Sections 427/323/376/34, IPC, after being identified by a woman constable named
Beladhar Das. The prosecutrix was examined after obtaining consent from her and her
husband [P.W.3]. P.W.2 testified that the prosecturix gave a history of the rape on her.
As per the story narrated to her [P.W.2], the prosecutrix, a mother of three children, was
molested at around 01-00 a.m. on 31.12.2017 inside her house when her husband was in
Mizoram. P.W.2 after examination, recorded the findings in the following manner :
ON GENERAL PHYSICAL EXAMINATION :-
The victim was oriented in space and time;
Pulse 72/min., blood pressure 120/80, temperature normal,
respiratory rate of 18 per minute, pupils normal, reacting to light,
clothing fresh.
No injury was found on her body and private parts.
Hymen was absent.
On examination of vaginal swab, no spermatozoa was seen under
microscopic examination.
Opinion : no sign of recent intercourse; no sign of injury on her
body and on a private parts.
P.W.2 exhibited the Medical Examination Report as Ext.-1 and identified her signature
therein as Ext.-1. P.W.2 stated that as the prosecutrix was examined after a gap of six
days, vaginal swab could not have given positive test for spermatozoa. At the same time,
P.W.2 stated that the above findings though did not specifically support the hypothesis of
rape having been committed on the prosecutrix, the same could not also negate the
possibility of rape having been committed either.
21.1. During cross-examination, P.W.2 stated that the prosecutrix did not give her history of
rape. P.W.2 stated that in case of forcible rape, injury marks would have been present on
the person of the victim. P.W.2 denied that as the prosecutrix was examined after a gap
of six days, vaginal swab could not have given positive test for spermatozoa was not
correct.
Page 14 of 27
22. P.W.4, Fakar Uddin was declared hostile by the prosecution and was cross-examined by
the prosecution and thereafter, by the defence.
23. The case of the prosecution, as emerged from the testimony of the above prosecution
witnesses, is to the effect that in the wee hours on 01.01.2017, the prosecutrix and four
children were sleeping inside the house. Out of the four children, three were children of
the prosecutrix and her husband [P.W.3]. P.W.3 is a Mason by profession and at the
relevant time, he was working in Mizoram, meaning thereby, at the time of the incident,
P.W.3 was not in the house. According to the prosecution, it was at around 02-00 a.m.
the accused persons made their entry inside the room of the house where the prosecutrix
and the four children were sleeping. After the entry of the accused persons, the
prosecutrix woke up from her sleep hearing some sound and thereafter, all the four
children also woke up from their sleep. It was the version of the prosecutrix that the
accused persons dragged her from bed to the floor of the room. Though the prosecutrix
beseeched with the accused persons to spare her, the accused persons did not pay any
heed to her such request. The accused persons had removed the wearing apparels of the
prosecutrix and thereafter, committed forceful penetrative sexual assault on her one after
another with the accused person, A-1 committing such forcible act first and he was
followed by the other accused person, A-2. As per the version of the prosecutrix, the
entire incident continued for a period of forty to fifty minutes. After committing such act
of forcible sexual assault, the accused persons went out of the room. It was thereafter,
the prosecution witnesses – P.W.5, P.W.6 and P.W.7 – hearing her screams, arrived of
the P.O. As the husband [P.W.3] of the prosecutrix was in Mizoram, he [P.W.3] was
accordingly informed and P.W.3 came back to his house from Mizoram in the
afternoon/night on the following day.
24. As regards appreciation of evidence in a case of sexual assault, it is considered that a
prosecutrix complaining of having been a victim of the offence of forcible penetrative
sexual assault rape is not an accomplice after the crime. In the case of forcible sexual
assault, it has been settled by a line of decisions that the testimony of a prosecutrix
stands at par with that of an injured witness and in some decisions, it has been observed
that such testimony is to be considered at a pedestal even slightly higher than an injured
witness. Ordinarily, the evidence of the prosecutrix is not to be suspected and should bePage 15 of 27
believed and if the evidence of the prosecutrix is found reliable and trustworthy, no
corroboration is necessary. It is also a settled legal proposition that once the statement
of the prosecutrix inspires confidence, conviction can be based on the solitary evidence of
the prosecutrix even if there are minor contradictions or insignificant discrepancies, not
affecting the core of the prosecution case.
25. In the case in hand, it is found that the alleged incident had occurred in the wee hours
on 01.01.2017 and according to the prosecutrix, at around 02-00 a.m. on 01.01.2017.
From the testimony of the I.O. [P.W.8], he received the FIR at 09-30 a.m. on 05.01.2017
and he visited the P.O. after opening the case diary, at around 10-00 a.m. on
05.01.2017. The aforesaid events indicate that there was a gap of about four days in
initiation of the investigation.
26. Apart from recording the statement of the prosecutrix under Section 161 CrPC, the
prosecutrix was sent to the Court of learned Chief Judicial Magistrate, Karimganj on
06.01.2017 and on that day, her statement was recorded under Section 164, CrPC. The
said statement of the prosecutrix recorded under Section 164, CrPC was exhibited as
Ext.-7. In Ext.-7, the prosecutrix was found to have stated that the accused persons
made their entry into their kucha house/room through a gap below the tin roof by
unfastening the hook of the door. In the complaint [Ext.-2] lodged on 02.01.2017, it was
mentioned that on 01.01.2017, the accused persons made their entry to the house
illegally by breaking the door of the house. However, when the prosecutrix testified as
P.W.1, she stated that the accused persons made their entry to the room of the
prosecutrix through the gap in existence between the bamboo walls and the ground.
Contrary to her such version, the prosecutrix stated to have told P.W.6 that the two
accused persons made their entry inside the house by breaking the bamboo wall of the
house. P.W.7 was told by the prosecutrix that the accused person broke open the
bamboo wall of the house and entered into the house. P.W.5 was not told by the
prosecutrix that any act of forcible rape was committed upon her. P.W.5 was only told by
the prosecutrix that two persons had entered into her house. The I.O. [P.W.8] did not
find anything broken in the house. Thus, there is apparently inconsistent version as
regards the entry of the accused persons inside the house/room of the house of the
prosecutrix on the date of the incident.
Page 16 of 27
27. As per the offence defined under Section 376D, IPC, the same is attracted where a
woman is raped by one or more persons constituting a group or acting in furtherance of
a common intention, each of those persons shall be deemed to have committed the
offence of rape. In the case in hand, the prosecutrix stated that the incident of forcible
penetrative sexual continued for a period of forty to fifty minutes and such acts were
committed by the accused persons on her on the floor of the house. It has been admitted
by the prosecutrix that the house was made of bamboo and was not in good condition.
The prosecutrix had categorically asserted that such acts were committed by both the
accused persons on her with one after another.
28. The prosecutrix herein is a married woman and a mother of three children. From the
testimony of P.W.2 and the Medical Examination Report [Ext.-1], it is established that
there was neither any injury on the private parts of the prosecutrix nor on the person of
the prosecutrix. There was no sign of recent intercourse. The examining doctor – P.W.2
had neither negated the possibility of commission of forcible rape nor affirmed the
possibility of commission of forcible rape. According to the examining doctor – P.W.2,
when the prosecutrix narrated the story to her [P.W.2], only molestation was indicated
and the prosecutrix did not give any history of a rape. P.W.2 stated that in the case of
forcible rape, injury mark would have been present on the person of the victim. It is true
that mere fact that no injuries were found on the private parts of the prosecutrix cannot
be a ground to hold that she was not subjected to sexual assault considering the fact
that the prosecutrix is a married lady and a mother of three children. Holding of the
medical examination of the prosecutrix after a period of five days from the date of the
alleged incident could also be reason behind absence of injury on the private parts.
However, in the case in hand, the prosecutrix stated that she suffered an injury on her
upper left back. When the prosecutrix was examined on 06.01.2017, the examining
doctor – P.W.2 did not find any kind of injury on the person of the prosecutrix.
29. It is true that the presence of injury on the person of the prosecutrix/victim is not a sine
qua non to prove a charge of forcible penetrative sexual assault/rape. Having regard to
the manner and extent of forcible penetrative sexual assault allegedly committed by the
accused persons on the prosecutrix on the floor of the house for a period of forty to fifty
minutes one after the other; and to the projected situation of forcible penetrative sexual
assault with no consent of the prosecutrix; with no meek surrender; and some amount of
Page 17 of 27
resistance or struggle from the prosecutrix, to the forcible rape during such duration;
there was a strong likelihood to suffer some kind of injury both on the person and in the
private parts of the prosecutrix. With not even a slightest injury; no sign of any kind of
injury on the person of the prosecutrix; no injury on her private parts; and no sign of
recent intercourse with the prosecutrix; as stated by the examining doctor – P.W.2; the
medical evidence is found not supporting the case of the prosecutrix.
30. From the testimony of the prosecutrix and P.W.5, P.W.6, P.W.7 and the Sketch Map of
the P.O., it is not in dispute that the houses of P.W.5, P.W.6 and P.W.7 are situated in
close proximity to the house of the prosecutrix. In case of occurrence of any incident,
their arrival at the P.O. immediately after the occurrence cannot be doubted. These
prosecution witnesses – P.W.5, P.W.6 and P.W.7 – are close relatives of the prosecutrix
and her husband. In view of such fact situation, these prosecution witnesses are related
witnesses. It is trite to say that a related witness cannot, in all situations, be termed as
an interested witness. Being close relatives of the prosecutrix, these prosecution
witnesses would undoubtedly be interested in seeing an accused person punished.
31. It is settled that merely because the witnesses are related to the prosecutrix or the
husband, their evidence cannot outrightly be thrown out if their evidence is found to be
consistent and true. After considering the differences between a related witness and a
interested witness and all the related aspects by discussing a line of precedents, the
Hon’ble Supreme Court in Raju @ Balachandra and others vs. State of Tamil
Nadu, [2012] 12 SCC 701, has observed as under : –
28. More recently, in Waman vs. State of Maharashtra [(2011) 7 SCC
295 : (2011) 3 SCC (Cri) 83] this Court dealt with the case of a
related witness (though not a witness inimical to the assailant)
and while referring to and relying upon Sarwan Singh vs. State of
Punjab [(1976) 4 SCC 369 : 1976 SCC (Cri) 646], Balraje v. State of
Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211], Prahalad
Patel v. State of M.P. [(2011) 4 SCC 262 : (2011) 2 SCC (Cri)
205], Israr v. State of U.P. [(2005) 9 SCC 616 : 2005 SCC (Cri)
1260], S. Sudershan Reddy vs. State of A.P. [(2006) 10 SCC 163 :
(2006) 3 SCC (Cri) 503], State of U.P. vs. Naresh [(2011) 4 SCC 324
: (2011) 2 SCC (Cri) 216], Jarnail Singh vs. State ofPage 18 of 27
Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107]
and Vishnu vs. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC
(Cri) 302] it was held: (Waman case [(2011) 7 SCC 295 : (2011) 3
SCC (Cri) 83], SCC p. 302, para 20).
“20. It is clear that merely because the witnesses are
related to the complainant or the deceased, their evidence
cannot be thrown out. If their evidence is found to be
consistent and true, the fact of being a relative cannot by
itself discredit their evidence. In other words, the
relationship is not a factor to affect the credibility of a
witness and the courts have to scrutinise their evidence
meticulously with a little care.”
29. The sum and substance is that the evidence of a related or
interested witness should be meticulously and carefully examined.
In a case where the related and interested witness may have some
enmity with the assailant, the bar would need to be raised and the
evidence of the witness would have to be examined by applying a
standard of discerning scrutiny. However, this is only a rule of
prudence and not one of law, as held in Dalip Singh [(1953) 2 SCC
36 : AIR 1953 SC 364 : 1953 Cri LJ 1465 : 1954 SCR 145] and pithily
reiterated in Sarwan Singh [(1976) 4 SCC 369 : 1976 SCC (Cri)
646]………
32. Taking into purview the observations made in Raju @ Balachandra [supra] when a
comparative analysis of the testimony of the prosecution witnesses – P.W.5, P.W.6 and
P.W.7 – are made, it is found that the versions of P.W.6 and P.W.7 are at variance to
each other as regards the events after the alleged occurrence. As per P.W.6, it was
P.W.6 who with the prosecutrix and the children stayed for the night in the house of
P.W.5. On the other hand, as per the version of P.W.7, it was P.W.7 who stayed in the
house of P.W.5 for the night along with the prosecutrix and the children. P.W.7 stated
that P.W.6 did not even go to the house of P.W.5 after the incident as she [P.W.6]
stayed in her own house after the incident. P.W.5 stated that it was P.W.6 who stayed in
his house after the incident. P.W.6 in her testimony-in-chief did not make any mention
about appearance or presence of P.W.7 at the P.O. after the occurrence. P.W.7 had
Page 19 of 27
mentioned about P.W.6 in her testimony. According to P.W.7, P.W.6 went to the P.O.
prior to her arrival but P.W.6 left the P.O. before P.W.7 reached the P.O. Thus, there
arises a clear doubt about the respective time of arrival of P.W.6 and P.W.7, whose
houses are in very close proximity to the house of the prosecutrix.
33. As per the version of the prosecutrix, as soon as the accused persons made entry into
the house/room, she woke up from her sleep and closely thereafter, all the four children
who were sleeping with her, also woke up from their sleep. After waking up, all the
children, as per the version of the prosecutrix, started crying. An act of cry is
accompanied by vocal sounds. Cry of children is not normally associated with quiet and
subdued weeping. If in the middle of the night all the children started crying for a
prolonged period of forty to fifty minutes, joined later on by the prosecutrix after getting
herself free, it is found inexplicable that the close neighbours of the prosecutrix like
P.W.5, P.W.6 and P.W.7 did not hear such cry of four children together and had heard
only the screaming of the prosecutrix at the end of the alleged incident which continued
for forty to fifty minutes. Both P.W.6 and P.W.7 admitted that there were several other
houses near the house of the prosecutrix. It is also difficult to comprehend that no
person from those nearby houses also heard the concerted cry of four children coming
from the house of the prosecutrix during the period of forty to fifty minutes and they
arrived at the scene only after the screams of the prosecutrix.
34. It is understandable that the children of such tender years, aged between 10 months, 9
years, may not understand the exact nature and effect of an act of forcible penetrative
sexual assault on the prosecutrix. But it cannot be conceived that such children, more
particularly, a child aged between 8 and 9 years, would not be able to testify as regards
the presence of two strangers inside a room in the middle of the night and had scuffle
with the prosecutrix for a duration of forty to fifty minutes. A child witness if found
competent to depose on the facts, his or her testimony is admissible. Even in the
absence of oath, the evidence of child witness can be considered under Section 118 of
the Evidence Act, subject to the rider that such child witness is able to understand the
questions and able to give rational answers thereof. The evidence of a child witness and
the credibility depends upon the facts and circumstances of each case. There is no
principle of law that it is inconceivable that a child of tender age would not be able to
recapitulate the facts in his memory. A child is always receptive to abnormal events
Page 20 of 27
which take place in his life and would never forget those events for the rest of his life. A
child may be able to recapitulate exactly about an unusual event when asked about the
same in future, as an unusual event is likely to leave an indelible imprint in his mind. If
the court is satisfied that the testimony of a child witness is not tutored or influenced, the
testimony of a child witness is admissible after exercise of due care and caution. It is true
that non-examination of a child witness may not create any dent to the core of the
prosecution case in a case. But in the present case, the alleged incident had stated to
have occurred inside a room in the wee hours for a period of forty to fifty minutes and
during such duration, all the four children were crying after having woken up at the
beginning itself. The children, at least the two children aged about 8 years and 9 years
respectively, could have been in the best position to testify at least as regards the
presence of two strangers inside the room. But the I.O. [P.W.8] despite admitting that
there were several children in the house of the prosecutrix, whose presence the
prosecutrix had also admitted, he did not find it fit to record their statements on the
premise that they were purportedly young in age. I.O. [P.W.8] admitted that he did not
even make any prayer before the jurisdictional Magistrate for recording of the statement
of the three children. In this case, it appears that the prosecution seemed to have not
brought the witnesses, who were in the best positions to testify about the presence of
two strangers inside the room/house of the prosecutrix for a period of forty to fifty
minutes.
35. Though in the complaint [Ext.-2], the complainant had alleged that for some days prior
to the alleged incident on 01.01.2017 both the accused persons were harassing the
prosecutrix in the absence of her husband [P.W.3], the prosecutrix and her husband
P.W.3, during their testimony before the court, maintained complete silence on the said
aspect. It has not emerged from the evidence/materials on record, other than in the
testimony of the prosecutrix, that there was any kind of kerosene lamp inside the room.
The I.O. [P.W.8] did not seize any kerosene lamp. It is not the case of the prosecutrix or
the complainant [P.W.3] that they had handed over the kerosene lamp to the I.O.
[P.W.8] during the course of investigation. P.W.7 testified to have seen two male persons
running away on the date of the incident. Similarly, P.W.6 also testified to have seen the
two accused persons running away. When looking at the Sketch Map of the P.O., such
testimony of P.W.6 and P.W.7 are examined, the same is found to be a product of
Page 21 of 27
embellishment qua their testimony that neither of them had meet each other during that
night though such running away would be hardly of for a few seconds.
36. In Nirmal Premkumar and another vs. State represented by Inspector of
Police, 2024 INSC 193, decided on 11.03.2024, a three-Judge Bench after considering
a number of precedents like Ganesan vs. State, [2020] 10 SCC 573; Rai Sandeep
vs. State [NCT of Delhi], [2012] 8 SCC 21; and Krishan Kumar Malik vs.
State of Haryana, [2011] 7 SCC 130; has observed that the court can rely on the
victim as a sterling witness without further corroboration, but the quality and credibility
must be exceptionally high and observed in the following manner :-
12. In Ganesan vs. State, this Court held that the sole testimony
of the victim, if found reliable and trustworthy, requires no
corroboration and may be sufficient to invite conviction of the
accused.
13. This Court was tasked to adjudicate a matter involving gang
rape allegations under Section 376[2][g], IPC in Rai Sandeep vs.
State [NCT of Delhi]. The Court found totally conflicting versions
of the prosecutrix, from what was stated in the complaint and what
was deposed before Court, resulting in material inconsistencies.
Reversing the conviction and holding that the prosecutrix cannot
be held to be a ‘sterling witness’, the Court opined as under:
“22. In our considered opinion, the ‘sterling witness’
should be of a very high quality and calibre 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 bePage 22 of 27
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
every one 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 such
similar tests to be applied, can it 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.”
14. In Krishan Kumar Malik vs. State of Haryana, this Court laid
down that although the victim’s solitary evidence in matters
related to sexual offences is generally deemed sufficient to hold
an accused guilty, the conviction cannot be sustained if the
prosecutrix’s testimony is found unreliable and insufficient due
to identified flaws and lacunae. It was held thus :
Page 23 of 27
“31. No doubt, it is true that to hold an accused guilty for
commission of an offence of rape, the solitary evidence of
the prosecutrix is sufficient provided the same inspires
confidence and appears to be absolutely trustworthy,
unblemished and should be of sterling quality. But, in the
case in hand, the evidence of the prosecutrix, showing
several lacunae, which have already been projected
hereinabove, would go to show that her evidence does not
fall in that category and cannot be relied upon to hold the
appellant guilty of the said offences.
32. Indeed there are several significant variations in
material facts in her Section 164 statement, Section 161
statement [CrPC], FIR and deposition in court. Thus, it was
necessary to get her evidence corroborated independently,
which they could have done either by examination of Ritu,
her sister or Bimla Devi, who were present in the house at
the time of her alleged abduction. The record shows that
Bimla Devi though cited as a witness was not examined and
later given up by the public prosecutor on the ground that
she has been won over by the appellant.”
37. It has been observed in Nirmal Premkumar [supra] that statements of the prosecutrix
must to be consistent from the beginning to the end, from the initial statement to the
oral testimony, without creating any doubt qua the prosecution’s case. It has been held
that the victim’s testimony is usually enough for sexual offence cases, but an unreliable
or insufficient account from the prosecitrix, marked by identified flaws and gaps, could
make it difficult for a conviction to be recorded.
38. On the aspect of delay as regards initiation of the prosecution, it is quite understandable
that as the husband [P.W.3] of the prosecutrix was not at home during the incident in
the night, the prosecutirx waited for her husband [P.W.3] to arrive at home from the
State of Mizoram. As such, for the period of wait of the prosecutrix till arrival of her
husband, there cannot be any adverse presumption. Any report as regards commission of
a cognizable offence is to be reported at the earliest point of time but lodging of a report
Page 24 of 27
after delay is not to be doubted always if the delay is properly explained. However, a
delayed lodging of report can be viewed with an amount of suspicion if the delay is not
properly explained, and if the surrounding circumstances are suggestive of a situation to
give rise to suspicion. Sometimes, it can be canvassed that a period of delay had
afforded time to the complainant to prepare a version after rethinking, which was not a
correct version otherwise. Thus, these aspects are also required to be considered with
the other materials/evidence on record and situations surrounding the incident of crime.
39. Approaching a court through a lawyer to lodge the complaint only for the purpose of
forwarding it to the Police Station under Section 156[3], CrPC is not to be doubted
ordinarily. The complainant [P.W.3], in the complaint [Ext.-2] he filed on 02.01.2017, had
mentioned that he had not lodged any report before the Police Station as because the
accused persons were influential, without disclosing as to how the accused persons were
influential. It has emerged from the evidence/materials on record, including the
testimony of the prosecutrix, that it was hardly 10/15 minutes walk from the P.O. to the
nearest Police Post. Initiation of the investigation was with delay of five days on
05.01.2017. It is not possible to comprehend whether it was due to bona fide reason
such complaint was lodged for forwarding it under Section 156[3] to the Police Station or
due to absence of medical evidence to support such charge, such approach was adopted.
It is not the case of the prosecution that after approach being made to the Police
Station/Police Post with a report and refusal to receive such report, the approach to the
jurisdictional court through the complaint was made. It cannot be presumed that the
Police authorities are biased not to accept a report disclosing commission of a cognizable
offence like a serious offence of gang rape.
40. It has not emerged from the substantive evidence that the prosecutrix was so closely
acquainted with the accused persons that they could be easily identified from their voice.
Notwithstanding the different versions regarding entry of the accused persons inside the
room/house of the prosecutrix, it has not emerged from the evidence/materials on record
that there was any sign of forcible entry into the house/room as the I.O. during the
course of investigation, did not find any material indicating forcible entry into the house
by breaking open any part of the house. In the absence of clinching evidence that a lamp
was lit inside the room at the time of entry of the accused persons inside the
room/house, we are of the considered view that the evidence/materials are not sufficient
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to hold that any offence had been committed by the accused persons to be sentenced
under Section 458, IPC. In view of the finding reached in respect of the charge under
Section 376D, IPC and Section 458, IPC, the conviction of the accused-appellants for the
charge under Section 352, IPC is also found not sustainable in law.
41. When a close look at the overall scenario is taken along with all the surrounding
circumstances as well as the testimony of the prosecution witnesses and the medical
evidence on record, it gives rise to a substantial doubt regarding the veracity of the
prosecution case. The inconsistency in the narrative of the prosecution case has rendered
the case of commission of forcible penetrative sexual assault on the prosecutirx inside
the room/house in the wee hours of the night in presence of four children doubtful. On
the face of such evidence/materials of discrepant nature, recording of conviction of the
accused persons, A-1 and A-2 for a serious offence like gang rape, defined in Section
376D, IPC, which is visited with rigorous imprisonment for a term not less than ten years
and which may extend to life, which shall mean imprisonment for a remainder of that
person’s natural life, becomes untenable as the genesis and foundation of the
prosecution case is found to have crumbled due to the improbabilities, as discussed
hereinabove. To reach such view, we are also persuaded with the fundamental principles
of criminal jurisprudence that when from the same evidence/materials on record two
hypothesis is possible – [i] one consistent with the guilt of the accused; and [ii] the other
consistent with the innocence of the accused – then, the hypothesis which is favourable
to the accused, at all stages, is to be favoured.
42. In the light of the discussion made above and for the reasons assigned herein, we are of
the considered view that the conviction of the accused-appellants for the offences under
Sections 376D/458/352, IPC read with Section 34, IPC on the basis of the
evidence/materials on record, is not sustainable in law and the same is liable to be set
aside and quashed. Therefore, we set aside the Judgment and Order of conviction and
sentence dated 11.09.2017 passed by the Court of learned Sessions Judge, Karimganj in
Sessions Case no. 16 of 2017. Consequently, this criminal appeal is allowed.
43. The accused-appellants are to be released from custody forthwith if their custody is not
required for any other case or purpose.
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44. The records of the trial court are to be sent back forthwith.
JUDGE JUDGE
Comparing Assistant
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