Gauhati High Court
Md. Samsul Hussain vs The State Of Assam And Anr on 20 December, 2024
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/21
GAHC010159982022
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/88/2022
MD. SAMSUL HUSSAIN
S/O. MD. HUSSAIN ALI, R/O. KAKAJAN ARANDHARA GAON, P.S. TEOK,
JORHAT, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY PP, ASSAM.
2:Mrs. Mina Begum (Informant)
R/O Kakojan Arandhora Gaon
P.S- Teok
Dist- Jorhat
Assam
Pin- 78511
Advocate for the Petitioner : MS SAGARIKA BARPUJARI (AMICUS CURIAE),
Advocate for the Respondent : PP, ASSAM, MR A. ALI (R-2),MR M AHMED (R-2)
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
Date of hearing : 11.12.2024 &16.12.2024.
Date of judgment : 20.12.2024
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JUDGMENT &ORDER (CAV)
(Suman Shyam, J)
Heard Ms. S. Borpujari, learned Amicus Curiae appearing on behalf of the sole
appellant. We have also heard Ms. S. Jahan, learned Addl. P.P., Assam appearing on
behalf of the State. Mr. M. Ahmed, learned counsel has appeared for the respondent
No.2/informant.
2. This Criminal Appeal from Jail is directed against the judgment and order
dated 05.07.2022 passed by the learned Special Judge, Jorhat in Special Case No.34
of 2019 whereby, the sole appellant was convicted under Section 376 AB of the
Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for a
period of 20 years and also to pay fine of Rs.5000/-, in default, to undergo simple
imprisonment for a period of one year.
3. The prosecution case, as unfolded from the materials available on record, in a
nutshell, is that on 26.06.2019, the mother of the victim had lodged an ejahar before
the Officer-in-Charge of Ladoigarh Police Outpost informing him that on 19.06.2019,
she, along with her 12 years old daughter, had gone to the house of ‘Bogai’ at
Holongapara. She had washed clothes in Bogai’s house and thereafter, sent her
daughter to fetch the clothes from the upper floor of the house. At that time, Md.
Samsul Hussain committed rape on her daughter inside a large room located in the
upper floor of the house. That day, her daughter did not say anything. On 26.06.2019,
at around 4:00 p.m. when her daughter was playing, Samsul gave her Rs.20/- and
asked her to accompany him to the jungle. However, instead of accompanying
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Samsul she came running home and at around 7:00 p.m. her daughter had told her
(victim’s) sister-in-law, viz., Ms. Jerina Begum about the incident and Jerina informed
her about the matter. When they asked Samsul regarding the incident, a chaotic
situation arose. The public had apprehended Samsul and handed him over to the
police.
4. Based on the ejahar dated 26.06.2019, Teok P.S. Case No.291/2019 was
registered under Section 376 AB of the IPC read with Section 6 of the POCSO Act. The
matter was thereafter taken up for investigation by the police. On completion of
investigation the I.O. had submitted charge-sheet. Accordingly, charge was framed
against the appellant/accused to which he had pleaded not guilty. As such, the
appellant was subjected to trial. On conclusion of trial, the learned Special Judge
had convicted the accused/appellant under Section 376AB of the IPC and
sentenced him as aforesaid.
5. From a careful reading of the materials on record, it appears that the
conviction of the appellant is primarily based on the testimony of the
victim/prosecutrix. Law is well settled that in a case of this nature, conviction can be
awarded solely on the basis of evidence of the prosecutrix provided the version of
the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is
of sterling quality. [ See Ganesan Vs. State (2020)10 SCC 573]. However, if there are
inconsistencies in the version of the prosecutrix, then it would be incumbent upon the
Court to look for corroboration.
6. The learned Amicus Curiae appearing in this case has argued that the version
of the prosecutrix is full of contradictions and there is no corroboration of the
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prosecution story by the other witnesses. As such, the conviction of the appellant in
this case is unsustainable in the eyes of law and hence, liable to be set aside by this
Court. In order to examine the said contention, it would be necessary for this Court to
go through the materials available on record.
7. As noted above, the victim girl was about 11 years old when the incident
allegedly took place on 19.06.2019. The evidence of the victim was recorded on oath
by the learned trial Court on 17.12.2019 i.e. barely after six months of the occurrence.
The victim girl, who was examined as PW-1, has deposed to the effect that at the
time of the incident, her age was about 11 ½ years. Her mother Ms. Mina Begum is
the complainant in this case. She knew the accused, who is her maternal
grandfather. The incident took place about 5/6 months back. On the day of the
incident, at about 11 a.m., she and her mother had gone to the house of “Bogai
Dada” located across the road, at the request of wife of Bogai, to wash clothes in
their house. While her mother was washing clothes, the accused, who also works in
the house of “Bogai Dada” was wiping the floor with mud. She had gone to the
terrace to collect clothes drying in the sun. The accused followed her to the terrace
and forcefully dragged her to an empty room in the terrace and closed the door.
Thereafter, the accused had opened her panty, took out his penis and inserted it
inside her vagina. She got hurt and shouted. However, none including her mother
heard her shouting. After sometime, she had managed to free herself from the
clutches of the accused and tried to leave the room when the accused caught hold
of her and threatened her by saying that if she tells anyone about the incident, he will
kidnap her on her way to the school and kill her. Out of fear she did not tell about the
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incident to anyone. After about a week, when she was going towards the river bank
to look for her brother Adil Ali, the accused had met her on the road and gave her
Rs.20/-. He dragged her towards the jungle and opened her panty. At that time, the
area was deserted. She cried and somehow managed to save herself from the
clutches of the accused and came running to her sister-in-law Zarina Begum and
informed her about the incident.
8. PW-1 has also deposed that by that time, her brother Adil Ali had arrived and
came to know about the incident. Her sister-in-law had informed about the incident
to her father. Then her father went to the house of the accused to enquire about the
incident. At that time, the son of the accused Akramul Hussain had hit her father on
his head from behind. Her brother also went to the house of the accused to enquire
about the incident and to ask the son of the accused as to why he had hit his father
despite the fact that it is the accused who had committed the wrong. Thereafter, her
mother had lodged the ejahar against the accused. Next day, the police came and
had sent her for medical examination. Her statement was also recorded by the
Magistrate under section 164 of the Cr.P.C. PW-1 has proved Ext-1 as her statement
recorded under Section 164 Cr.P.C. by identifying her signatures therein.
9. During her cross-examination, PW-1 has denied the suggestion that she had
not stated before the police that when she had gone to the terrace to collect
clothes which were drying in the sun, the accused had followed her to the terrace
and forcefully dragged her to an empty room in the terrace and closed the door,
opened her panty, took out his penis and inserted his penis inside her vagina. She has
also denied the suggestion that she had not stated before the police that when she
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managed to free herself from the clutches of the accused and tried to leave the
room, the accused had caught hold of her and threatened her that if she revealed
the incident to anyone, he would kidnap her on her way to the school and kill her.
PW-1 has further denied the suggestion that she had not stated before the police that
after about a week, when she was going towards the river bank to look for her
brother viz., Adil Ali, she had met the accused on the road who had given her Rs.20/-
and dragged her towards the jungle and opened her panty. She has also denied the
suggestion that she had not stated before the police that when her father went to
the house of the accused to enquire about the incident then the son of the accused
Akramul Hussain had hit her father on his head from behind. PW-1 has also denied the
suggestion that the accused did not force himself on her and that she was deposing
falsely.
10. The complainant in this case Mrs. Mina Begum was examined as PW-2. She is
also the mother of the victim. PW-2 has deposed that the age of her daughter on the
date of the occurrence was 12 years 2 months. She knew the accused Samsul
Hussain, who is her maternal uncle. The incident took place about 5/6 months back.
On the day of the incident, she had gone to the house of Bogai along with her
daughter as she was informed by the accused that wife of Bogai had asked her to
go to their house with “henna leaves”. When she reached the house of Bogai along
with her daughter, she was asked by wife of Bogai to wash their clothes. Her daughter
was sitting beside her in the shade. After sometime, she was asked by the wife of
Bogai to pick up the clothes which were drying in the terrace. PW-2 has further stated
that accused had followed her daughter to the terrace, dragged her inside a room
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situated in the terrace and after opening her panty, did bad things to her. According
to PW-2, her daughter had shouted for help but she did not hear her shouting. The
accused had instilled fear in her daughter such that if she disclosed to anyone about
the incident then he would kidnap her on her way to the school and kill her. About
one week after the incident the accused had handed over Rs.20/- to her daughter
and dragged her to the jungle. He opened her panty. However, the victim managed
to free herself from the clutches of the accused and came running to the house
crying. She disclosed as to what had happened. The victim had narrated the incident
to her daughter-in-law Zarina Begum and to her son Adil Ali and her husband Hayat
Ali. Her husband Hayat Ali went to the house of the accused to find out about the
same when the son of the accused had hit her husband on the head with a log.
Thereafter, the public also gheraoed the house of the accused and had handed him
over to the police. PW-2 has confirmed that she had lodged the ejahar Ext-2 which
contains her signature Ext-2(1). PW-2 has further deposed that the police had
recorded the statement of herself and her daughter (victim). The statement of the
victim was also recorded by the Magistrate under section 164 Cr.P.C. During her
cross-examination this witness had remained firm.
11. Ms. Rina Begum, who is the sister of PW-2, was examined as PW-3. In her
deposition she has stated that the complainant PW-2 is her elder sister and the victim
is the daughter of the complainant. She knows the accused. The incident took place
in the month of June, 2019. On that day she was present at her home when the
complainant came and told her that she is going to the house of Bogai along with
the victim girl to hand over “Mehendi leafs”. When she came back in the evening she
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told her that the wife of Bogai had sent the victim to bring clothes from the terrace
and the accused locked the victim in a room, opened her clothes and committed
rape upon her. The victim tried to alert people by raising hue and cry but her voice
was not heard downstairs. PW-3 has further stated that the complainant (PW-2) had
asked her as to what should be done. Then she enquired with the victim who had
also told her that the accused had opened her clothes and manipulated her vagina
with fingers and thereafter inserted his penis in the vagina of the victim. Then she
advised the complainant to inform the matter to the father of the victim girl. When
Hayat Ali i.e. the father of the victim went to the house of accused to find out about
the incident, he was beaten up by the son of the accused. Thereafter, the accused
was handed over by the people of the village to the police and a complaint was
lodged.
12. PW-4, Jarina Begum is the sister-in-law of the victim. She has deposed that on
the day of the incident she was present in her home. Her mother-in-law went out to
the house of Bogai to hand over mehendi leafs along with the victim and returned in
the evening. She came to know about the incident a week after the occurrence. The
victim had not divulged the incident as the accused had instilled fear in her. One
week after the incident, the accused had met the victim in a grocery shop in the
vicinity and asked her when she was coming to deliver mehendi again. Then the
victim told her that on the previous occasion when she had gone to the house of
Bogai along with the complainant to hand over mehendi leaf, the wife of Bogai had
asked her to bring dried clothes from upstairs. There the accused forcefully opened
her panty and thereafter committed sexual assault on her. When she came to know
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about the incident she told the complainant about the same and had also informed
her husband Adil Ali who in turn told the father of the victim about the incident.
Thereafter, her father-in-law went to the house of the accused to enquire about the
incident but he was physically assaulted by the son of the accused.
13. PW-5, Smti. Jahana Begum is a neighbor of the complainant. She has deposed
that on the day of the incident she was cooking food when, at about 7/7:30 p.m., the
complainant came running to her and told her that she and her daughter had gone
to the house of Bogai to give “jetuka” when the accused Samsul Hussain, who is the
maternal uncle of the complainant had called the victim upstairs and committed
rape upon her. During her cross-examination PW-5 has denied any personal
knowledge about the incident.
14. PW-9, Hayat Ali is the father of the victim and the husband of the complaint.
He has deposed that on the day of the incident the accused came to his house and
asked his wife to go to the house of Bogai with mehendi. Accordingly, his wife (PW-2)
went to the house of Bogai along with his daughter (victim). His wife was asked to
wash clothes by wife of Bogai and his daughter was asked to bring the dried clothes
from upstairs. When his daughter went upstairs the accused followed her, dragged
her inside the room located in the terrace and committed rape upon her by
threatening to end her life. PW-9 has stated that he came to know about the incident
from his wife. During his cross-examination, PW-9 has confirmed that he could learn
about the incident from his wife.
15. As per the version of PW-2, wife of Bogai viz. Rubi Ahmed had sent the victim to
the terrace to bring the clothes. Rubi Ahmed was examined as PW-10. During her
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deposition before the Court, PW-10 has, however, stated that at the time of the
incident, she was at Delhi. She had received a phone call from her husband
informing her that public had beaten Bulbul (accused) and he was arrested by the
police in connection with some case involving a female.
16. PW-11, Nurtaz Ali was on duty at the Lahdoigarh Police Outpost on 26.06.2019.
PW-11 has deposed that on that on the said day, at about 9:10 p.m., he had
received a phone call from a person from Arandhara Gaon informing him that a
person was being assaulted by the public for committing the offence of rape on a
minor girl. Based on the said phone call he had made G.D. Entry No.488 on 26.06.2019
and thereafter, proceeded to the place of the incident at Arandhara Gaon. Having
reached there he had found that accused Samsul Hussain was being assaulted. He
immediately sent the accused for medical treatment at Kakojan PHC. The victim and
her mother were also sent to the Police Station in a different vehicle. He had
recorded the statements of the witnesses including Zerina Begum, Rina Begum and
Jahanara Begum at the place of the incident, prepared rough sketch map. He had
also deposed that on receipt of the complaint dated 26.06.2019 submitted by PW-2,
Teok P.S. Case No.291/19 was registered under Section 376(AB) of the IPC read with
Section 6 of the POCSO Act, 2012 and he was entrusted with the responsibility of
carrying out investigation. He had collected the medical examination report of the
victim and after completion of investigation, charge-sheet was submitted against the
accused under Section 376(AB) of the IPC read with Section 6 of the POCSO Act. Ext-
7 is the charge-sheet which bears his signature Ext-7(1).
17. During his cross-examination PW-11 has stated that there is no mention for the
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cause of delay in lodging the ejahar and that PW-1 did not state before him that
when she managed to free herself from the clutches of the accused and tried to
leave the room, the accused had caught hold of her and threatened her that if she
reveals the incident to anyone he will kidnap her on the way to school and kill her.
The I.O. has further stated during his cross-examination that the PW-1 did not state
before him that after about a week, when she was going towards the river bank to
look for her brother Adil Ali, the accused had met her on the road and gave her
Rs.20/- and dragged her towards the jungle and opened her panty.
18. The PW-11 has further deposed in his cross-examination to the effect that PW-2
Mina Begum did not state before him that the accused followed her daughter to the
terrace, dragged her inside a room situated in the terrace and by opening her panty,
did bad things to her. He has further deposed that PW-2 had not stated before him
that her daughter shouted for help but she did not hear her shouting. The I.O. has
also deposed that PW-2 has not stated before him that the accused had instilled fear
in her daughter that if she revealed about the incident to anyone, he would kidnap
her on her way to school and kill her as a result of which, her daughter did not reveal
the incident to anyone. PW-11 has also deposed that PW-2 did not state before him
that about one week after the incident, the accused had handed over Rs.20/- to her
daughter and dragged her towards the jungle and opened her panty. However, she
managed to save herself from the clutches of the accused.
19. During his cross-examination PW-11 has deposed that PW-3 Rina Begum did
not state before him that on the date of the incident she was present at her home
when the complainant came and told her that she is going to the house of Bogai
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along with the victim to hand over mehendi leafs; that she came back in the evening
and told her that wife of Bogai had sent the victim to bring clothes from the terrace
and in the terrace the accused had locked the victim in a room, opened her clothes
and committed rape upon her; that the victim tried to alert the people by raising hue
and cry, However, her voice did not reach the people including the complainant
who was present downstairs; that when she enquired from the victim she told her
that the accused had opened her clothes, opened his clothes, manipulated her
vagina with his fingers and thereafter inserted his penis in the vagina of the victim.
20. PW-11 has further deposed that the PW-4, Zerina Begum has not stated before
him that – the victim had told her about the incident one week after the same had
occurred and that the accused had put her under fear.
21. The I.O. has also deposed that one week after the incident, he had visited the
place of occurrence and recorded the statement of Rubi Ahmed (PW-10) i.e. the
wife of Bogai in whose house, the incident took place.
22. While recording his statement under Section 313 of the Cr.P.C. the accused
has admitted that he is the maternal grandfather of the victim and that about 5/6
months back the victim and her mother had gone to the house of Bogai Dada to
wash clothes and that he also worked in Bogai’s house. The accused has further
admitted that when the victim went to the terrace to collect dried clothes he had
followed her and forcibly dragged the victim into an empty room of the terrace and
closed the door from inside. However, the accused has denied that he had opened
the panty of the victim, inserted his penis into her vagina or that he threatened the
victim to kidnap her on her way to school and kill her if she reveal the incident to
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anyone. Having regard to the significance of the statement of accused in this case,
we deem it appropriate to reproduce the Question Nos.1, 2 and 3 posed to the
accused while recording his statement under Section 313 Cr.P.C. and the answers
given by him as hereunder :-
“Question No.1: PW-1, victim, deposed in her evidence that you are her
maternal grandfather. What do you have to say?
Answer :- Yes. It is true.
Question No.2 : PW-1 deposed that the incident took place 5/6
months back at about 11 A.M. when she and her mother went to Bogai Dada’s
house to wash clothes at the request o Bogai dada’s wife and that you also
work in Bogai Dada’s house. What do you have to say?
Answer :- Yes. It is true.
Question No.3: PW-1 deposed in her evidence that you were wiping
the floor with mud at Bogai Dada’s house and while she went to terrace to
collect dried clothes, you followed her to the terrace, forcibly dragged her to
an empty room of the terrace and closed the door from inside. What do you
have to say?
Answer :- Yes. It is true.”
23. In response to Question No.34, the accused has stated that a false case has
been lodged against him due to previous enmity between his wife and the
complainant. He was innocent having three children. The accused, however, did not
adduce any evidence in his defence.
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24. Based on the evidence available on record, the learned trial Court had found
the accused/appellant guilty of having committed penetrative sexual assault/rape
upon the informant’s daughter. Bearing in mind the overall facts and circumstances
of the case, the learned court below was of the view that by invoking powers under
Section 71 of the IPC read with Section 42 of the POCSO Act, the accused should be
sentenced to imprisonment for a period of 20 years and to pay fine of Rs.5000/- for
committing the offence punishable under Section 376AB of the IPC.
25. From a careful examination of the evidence of the prosecutrix PW-1, we find
that in her deposition, she has narrated the entire incident by following logical
sequence of the events leading to the commission of rape by the accused inside the
locked room in the terrace. The evidence of the PW-1 finds due corroboration from
her statement recorded under Section 164 Cr.P.C. (Ext-1) with the only distinction that
while recording her statement before the Magistrate, the victim did not mention
about the accused offering her 20 rupees so as to accompany him to the jungle.
26. The victim has stated before the I.O. that she was taken to a room by the
accused and raped by him; that she was scared and hence, did not disclose about
the incident to anyone on that day. Again, on 26.06.2019 the accused tried to lure
her but she returned home and informed the matter to her sister-in-law (PW-4) at
around 7:00 p.m. From the above, it is apparent that all along, the version of the
victim as regards the accused committing rape on her has remained consistent and
free from any material contradiction.
27. It is no doubt correct that while recording her statement before the police on
27.06.2019 as well as the Magistrate, the victim appears to have been a bit
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circumscribed in her narrative. However, while deposing before the court she had
given complete details of the incident. The version of the prosecutrix, which is
consistent with her statement recorded under section 161 CrPC and 164 CrPC
appears to this court to be credible, free from any material contradiction and
hence, trustworthy.
28. The learned Amicus Curiae has submitted that there are some contradictions,
omissions in the version of the prosecutrix PW-1 to submit that her testimony is not
believable. First of all, as noted above, we do not find any material contradiction in
the version of the victim. It may be correct that there are some minor omissions in her
statement recorded under Sections 161 and 164 Cr.P.C. However, what must be
borne in mind is that the victim was a 11 years old girl and she had just been through
a very difficult phase when her statement was recorded by the Police as well as the
Magistrate. Therefore, minor omissions in her statements was but natural . it is possible
that she might have forgotten to mention about Rs.20/- being offered to her by the
accused while recording her statement before the Magistrate. However, such
omission, in our view, does not go into the root of the matter so as to punch a hole in
the prosecution story.
29. Law is well settled that minor contradictions, discrepancies in the testimony of
the witnesses would not have a fatal bearing in the prosecution case unless the same
goes into the root of the mater. In Ramappa Halappa Pujar Vs. State of Karnataka
reported in (2007) 13 SCC 31 the Supreme Court has observed that some
contradictions in the deposition of the witnesses are natural. In the case of Mustak @
Kanio Ahmed Shaikh Vs. State of Gujarat reported in (2020) 7 SCC 237 it has been
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observed that minor discrepancies, if any, is to be ignored.
30. In State of Uttar Pradesh Vs. Krishna Master & others reported in (2010) 12 SCC
324 the Supreme Court has held that evidence should be read as a whole and on
such reading if it appears to have ring of truth, then the discrepancies,
inconsistencies, infirmities or deficiencies of minor nature, not touching upon the core
of the case, can be ignored.
31. As has been noted above, after a meticulous examination of the evidence of
PWs-1 in the light of the materials available on record, we are of the view that the
version of the prosecutrix has a ring of truth and therefore, is liable to be accepted by
this Court.
32. Coming to the evidence of the PW-2 i.e. the complainant, it is apparent from
her testimony that after reaching the house of Bogai on 19.06.2019 she was asked to
wash clothes and thereafter, her daughter was asked to go to the terrace and pick
up the clothes which were left for drying. Accordingly, the victim had gone to the
upper floor of the terrace. However, what happened thereafter was not within the
personal knowledge of the PW-2. As a matter of fact, it has come out from the
evidence on record that she came to know about the incident from the victim only
on 26.06.2019 whereafter, the ejahar was lodged. Therefore, inconsistencies and/or
contradictions, if any, in the testimony of the PW-2 as to the sequence of events that
took place after the victim had gone to the terrace to collect the clothes, in our
opinion, would not be of much significance in this case.
33. PWs- 3 and 5 have deposed on the basis of what they had heard from the PW-
2. They are not eye-witnesses to the occurrence. Their evidence is mostly hearsay
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evidence. It is to be noted here-in that PW-3 has not mentioned the date on which
the PW-2 had told her about the incident. Therefore, it is possible that the PW-3 came
to know about the incident only on 26-06-2019 and not on a prior date. Likewise, PW-5
has also not mentioned the date when which she had come to know about the
incident from the PW-2 . It is possible that both PW-3 and 5 came to know about the
incident only on 26-06-2019. Viewed from that perspective, it cannot be said that
there is any material contradiction in the evidence brought on record by the
prosecution side. However, even assuming that there is some inconsistency in their
testimonies, it must be noted that PWs3 and 5 are not eye witnesses to the
occurrence. Both have them had learnt about the incident from the PW-2 who is also
not an eye-witness. As such, the evidence of PWs 3 and 5 is in the nature of hear- say
evidence and hence, will not have much bearing in this case. As such,
inconsistencies, if any, in their testimonies, would also, in our view, not be of much
significance in the outcome of this appeal.
34. We also find that the evidence of PW-4 is consistent in her deposition and her
evidence finds due corroboration from the testimony of PWs 1 and 2. PW-4 could not
be shaken during her cross-examination. There is no material contradiction in her
testimony. Therefore, if the version of PW-4 is believed, then there can be no doubt
about the fact that the victim had informed her about the incident for the first time in
the evening of 26.06.2019 at 7:00 p.m. when she returned home.
35. PW-9 i.e. the father of the victim had also heard about the incident from his
wife i.e. PW-2. However, the evidence of PWs-2 and 9 corroborate the version of each
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other to the effect that on 19.06.2019, in the morning hours, the PW-2, accompanied
by her minor daughter PW-1, had in fact gone to the house of Bogai to wash clothes.
Thereafter, the victim went upstairs to pick up the clothes which were left for drying in
the terrace. It was at that stage that the incident had occurred. We do not find any
justifiable ground to discard the testimonies of PWs- 2 and 9 to the above effect.
Therefore, their evidence, read with the evidence of PW-1, establishes beyond any
iota of doubt that the victim as well as the accused were present in the place of
occurrence in the morning hours of 19-06-2019.
36. In so far as the evidence of PW-10 is concerned, it is no doubt correct that in
her deposition she has denied any knowledge about the incident and has stated that
she was in Delhi at the time of the occurrence. However, PW-10 did not say so before
the I.O. Rather, it appears that PW-10, while recording her statement before the I.O.
has clearly implicated the accused. It was, thus, apparent that PW-10 was not telling
the truth before the Court. Notwithstanding the same, surprisingly, no request was
made by the prosecution to declare the PW-10 as a hostile witness so as to cross-
examine her.
37. Coming to the statement of the accused recorded under section 313 of CrPC,
law is well settled that statement/admission made by the accused under section 313
Cr.P.C. cannot be made as the sole basis for conviction of the accused. However,
such statement of the accused cannot be totally ignored by the Court. In Mohan
Singh vs Prem Singh and another reported in (2002) 10 SCC 236, the Supreme Court
has observed that the statement made in defence by the accused under section 313
CrPC can certainly be taken in aid of to lend credence to the evidence lead by the
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prosecution.
38. In Bishnu Prasad Sinha and another Vs. State of Assam reported in (2007) 11
SCC 467 the Supreme Court has held that although the statement of the accused
made under Section 313 of the Cr.P.C. cannot form the sole basis of conviction, yet,
the effect thereof may be considered in the light of the evidence brought on record.
39. In his statement recorded under Section 313 Cr.P.C. the accused has virtually
admitted that he had gone to the terrace by following the victim and forcibly
dragged her into a room and closed the door from inside. Save and except
admitting commission of rape on the victim, the rest of the facts have been
admitted by the accused/appellant while recording his statement under Section 313
of the Cr.P.C. Therefore, the denial on the part of the accused of having committed
rape upon the victim does not appear to be believable. This we say so because if the
accused was not guilty, we do not find any reason as to why he should have
dragged the victim girl inside a room in the terrace and locked the same from inside.
Therefore, the admission of the accused with regard to Question No.3 , in our opinion,
would act as an additional link in the chain of circumstances establishing the guilt of
the accused.
40. While recording his statement under Section 313 Cr.P.C. the accused has stated
that a false case has been slapped against him due to previous animosity. However,
no foundation for such plea has been laid by the defence while cross-examining the
prosecution witnesses. There is also nothing available on record to indicate any
previous animosity between the accused and the complainant or her husband.
Moreover, the victim being an 11 years old girl it would be difficult to believe that she
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would falsely implicate the accused, who happens to be her maternal grandfather,
by bringing such a serious allegation.
41. Coming to the next issue of delay in lodging the F.I.R. , the delay is well
explained in the F.I.R. itself which is on account of the fact that the victim did not
disclose about the incident to anyone until the evening of 26.06.2019. The F.I.R was
lodged on 26.06.2019 itself. Therefore, it is not a case of unexplained delay in lodging
the F.I.R.
42. In so far as lack of the medical evidence is concerned, it is evident that the
incident took place on 19.06.2019 and the victim was subjected to medical
examination on 27.06.2019 i.e. more than a week after the occurrence. Under such
circumstances, it is natural that no sign of sexual assault was found in the private parts
of the victim. However, that by itself cannot be a ground for this Court to disbelieve
the prosecution story.
What would be pertinent to note here in is that the offence alleged in this case had
occurred on 19-06-2019 and not on 26-06-2019. Therefore, the burden of the
prosecution to prove the charge would remain confined to establishing only those
circumstances relating to the incident that took place on 19-06-2019 and no further.
After analyzing the evidence adduced on record, we are of the un-hesitant opinion
that the prosecution has succeeded in establishing the charge brought against the
accused beyond reasonable doubt.
43. For the reasons stated herein above, we do not find any justifiable
ground to interfere with the impugned judgment and order dated 05.07.2022 passed
by the learned trial Court. Consequently, this appeal is held to be devoid of any
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merit. The same is accordingly dismissed.
Before parting with the record of this case, we wish to put on record our
appreciation for the valuable services rendered by Ms. S. Borpujari, learned Amicus
Curiae and recommend that the Registry may make payment of notified
remuneration to the learned Amicus Curiae as per the existing norms.
Send back the LCR.
JUDGE JUDGE T U Choudhury/ Sr.PS Comparing Assistant