Gauhati High Court
Page No.# 1/2 vs The State Of Assam on 29 October, 2024
Page No.# 1/21
GAHC010003222011
2024:GAU-AS:10580
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./18/2011
MD. ANIZUL HOQUE
S/O LT. UZIR ALI VILL- TAKIMARI BORBILA, P.O. TAKIMARI, P.S.
LAKHIPUR, DIST. GOALPARA, ASSAM.
VERSUS
THE STATE OF ASSAM
Advocate for the Petitioner : MR.J AHMED
Advocate for the Respondent : MR. D. DAS, ADDL. P.P, ASSAM.
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
Date of hearing : 18.07.2024
Date of Judgment : 29.10.2024
JUDGMENT & ORDER (CAV)
Heard Mr. J. Ahmed, learned counsel for the petitioner. Also heard Mr. D.
Das, learned Additional Public Prosecutor for the State respondent.
2. This is an application filed under Sections 401 and 397 of the Code of
Criminal Procedure, 1973, against the impugned Judgment and Order dated
06.12.2010, passed by the learned Sessions Judge, Goalpara, in C.A. Case No.
17/2010, whereby the Judgment and Order dated 22.09.2010, passed by the
learned Assistant Sessions Judge, Goalpara, in Sessions Case No. 40/2009 under
Sections 366/376(1)/34 of the IPC, was affirmed. In that case, the present
petitioner was convicted and sentenced to undergo rigorous imprisonment for
three years and to pay a fine of Rs. 2,000; in default, simple imprisonment for
another three months for the offence under Section 366 of the IPC. The
petitioner was also sentenced to rigorous imprisonment for seven years and to
pay a fine of Rs. 2,000; in default, another rigorous imprisonment for three
months for the offence under Section 376 of the IPC. Both sentences run
concurrently.
3. The case of the petitioner, in brief, is that one Mograb Ali lodged an FIR on
16.01.2007 against the petitioner, alleging that the daughter of the informant
was kidnapped by him while she went outside of their house for her nature call.
Accordingly, the FIR was registered as Lakhipur P.S. Case No. 10/2007 under
Sections 447/366/34 of the IPC. After the completion of the investigation, the
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investigating agency submitted the charge-sheet against the present petitioner
under Sections 366/376/34 of the IPC. During the course of the trial, the
prosecution examined total of 12 witnesses, while the defence examined 3
witnesses. After the conclusion of evidence from both parties, arguments were
heard, and accordingly, Vide Judgment and Order dated 22.09.2010, the learned
Assistant Sessions Judge, Goalpara, passed the order of conviction and
sentenced the petitioner as stated above.
4. Being highly aggrieved and dissatisfied with the impugned Judgment and
Order dated 22.09.2010, passed by the learned Assistant Sessions Judge,
Goalpara, in Sessions Case No. 40/2009, the petitioner preferred an appeal
which is registered as C.A. Case No. 17/2010 before the learned Sessions Judge,
Goalpara. However, the appeal was dismissed, and the judgment and order
passed by the learned Assistant Sessions Judge, Goalpara, was upheld.
Consequently, the petitioner has preferred the instant criminal revision petition,
praying for the setting aside and quashing of the impugned judgments and
orders dated 22.09.2010 and 06.12.2010 respectively.
5. Mr. Ahmed, learned counsel for the petitioner, has submitted that the
learned Trial Court committed irregularities and illegalities while convicting and
sentencing the petitioner. In passing the judgments and orders, the Trial Courts
failed to appreciate the evidence on record, particularly the medical evidence
provided by the doctor. According to the radiological report, the victim was
approximately 20 years old and showed no signs of injury to her private parts.
Additionally, the examination of the vaginal smear did not yield any positive test
for the presence of sperm, indicating a lack of evidence for rape based on the
medical report. However, the Trial Courts passed its judgments and orders
without properly considering the evidence in its true perspective, arriving at a
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wrong decision which is liable to be set aside and quashed.
6. Moreover, the prosecution witnesses, specifically P.Ws. 1 to 7, provided
contradictory statements. At the same time, these witnesses are relatives of the
victim, which raises doubts about the reliability of their testimonies unless they
corroborate or inspire confidence. He further submitted that the Trial Courts
failed to consider the evidence presented by D.W. Nos. 1 to 3. The judgments
and orders were based solely on the testimonies of the P.Ws., without giving
appropriate consideration to the evidence of the D.Ws.
7. Additionally, the Trial Courts did not accept the medical evidence which
indicates no signs of rape on the victim and based its judgments solely on
ocular evidence. It is noteworthy that the case was filed by the informant out of
personal animosity against the petitioner, which is corroborated by the
testimonies of both the P.Ws. and D.Ws.
8. The petitioner is a teacher at an EGS Centre in the village, which was later
provincialized. P.W. 2 wished for his own brother to be appointed as a teacher at
that centre but was unable to do so due to community demands. The present
petitioner was appointed based on his academic credentials. As, P.W. 2 could
not fulfill his desires, he conspired with P.W. 1 to file a case only to harass the
petitioner and to have him dismissed from service.
9. The Trial Court failed to assess the credibility of both the P.Ws. and D.Ws.,
resulting in a wrongful findings convicting the appellant under Sections 376 and
366 of the IPC. Furthermore, the father of the victim claimed to have heard his
daughter crying from the house but surprisingly did not enter the petitioner’s
home to rescue her. Although he lodged the FIR, the victim’s mother, P.W. 11,
was unaware of any incident, which raises reasonable doubt about the veracity
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of prosecution’s case. Additionally, the petitioner contends that P.Ws. 1, 2, and 6
were accused in a case filed by the petitioner’s brother regarding fishing in the
Beel. P.W. 1 admitted during cross-examination prior to lodging of the present
case an FIR was lodged against him for fishing in the Beel, and P.W. 2 also
revealed that he was an accused in a case filed by the petitioner’s brother.
10. Moreover, in the statement made by the victim under Section 164 of the
Cr.P.C., she claimed the petitioner raped her by showing a dagger, but she did
not mention anything about a dagger in her statement recorded under Section
161 of the Cr.P.C. Thus, he submits that, without proper medical evidence, the
petitioner cannot be convicted under Section 376 of the Cr.P.C.
11. In support of his submission, he cites the following decisions from the
Hon’ble Apex Court:
i). Arulvelu & Anr. vs. State Rep. by the Public Prosecutor & Anr. ,
reported in 2009 (10) SCC 206; and
ii). Lalliram and Anr. vs. State of M.P., reported in 2008 (10) SCC 69.
12. Mr. Ahmed, learned counsel for the petitioner, further submitted that this is
not a fit case for convicting the petitioner under Section 376 of the IPC; rather,
it may be a case under Section 354 of the IPC. He accordingly requests that the
sentence be reduced.
13. On the other hand, Mr. Das, learned Additional Public Prosecutor, has
submitted that even if the medical evidence not indicate any signs of rape or
injury on the victim’s private parts, it is well settled that medical evidence is
always suggestive and not a substantive piece of evidence. Moreover, the
incident occurred on 15.01.2007, and P.W. 8 (the doctor) examined the victim
on 18.07.2007, that is three days after the occurrence; thus, the medical officer
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may not have found any injury marks on the victim’s private parts.
14. He further submits that to prove a case under Section 375 of the IPC,
even the slightest penetration is sufficient, and the degree of penetration is not
material for proving a case under Section 376 of the IPC. From the evidence of
the victim, i.e. P.W. 3, which remains unchallenged, her testimony regarding the
sexual assault by the accused/petitioner is consistent. Additionally, other
material witnesses corroborated the victim’s evidence and supported the
prosecution’s case.
15. Both the learned Assistant Sessions Judge and the learned Sessions Judge
arrived at concurrent findings in this case, concluding that the
accused/petitioner committed the offences of kidnapping and rape against the
victim. Accordingly, he submits that there is no reason to interfere with the
judgments and orders passed by the learned Trial Court and the Appellate
Court, which convicted and sentenced the accused/petitioner under Sections
366 and 376 of the IPC. The judgment and order dated 22.09.2010 was
rendered after a proper appreciation of the evidence on record by the learned
Assistant Sessions Judge, Goalpara.
16. After hearing the submissions made by the learned counsels for both
sides, it is deemed necessary to assess the evidence on record presented by
both the P.Ws. and the D.Ws.
17. P.W. 1, Md. Mogrob Ali, the informant in this case, deposed that on the
day of the incident, 15.01.2007, his daughter, who was around 15 or 16 years
old and preparing for her matriculation examination, was found missing. Around
11:00 P.M., he got up and noticed her absence. He went outside his house and
heard his daughter crying from the house of the accused/petitioner, Anizul
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Hoque. However, he did not feel safe going alone into the accused’s house due
to a prior incident involving fishing. He then immediately informed one Asan
Master, who, with the help of VDP personnel, recovered his daughter from the
house of the accused/petitioner. Afterward, he lodged the FIR.
From his cross-examination, it appears that he did not provide his
daughter’s School Certificate to the police during the investigation. He was also
not aware as to who recovered his daughter from the house of the
accused/petitioner. Nonetheless, his testimony is consistent that he heard his
daughter’s cries from the accused’s house and reported the matter to others,
who then came and rescued her. Additionally, it was revealed during cross-
examination that prior to lodging the FIR, the petitioner’s brother had filed a
case against P.W. 1 and P.W. 2 regarding fishing in the beel.
18. P.W. 2, Md. Asan Ali, is one of the most important witnesses for the
prosecution. According to him, on the night of the incident, around midnight,
P.W. 1 came to his house and stated that when he found his daughter missing at
about 11 P.M, when he got up and heard her crying from the house of the
accused/petitioner. Subsequently, the matter was discussed with some elderly
persons and VDP personnel, and thereafter, victim girl was recovered from the
house of the accused/petitioner.
From his cross-examination, it is evident that he did not enter the house
of the petitioner; instead, the VDP personnel entered the house and rescued the
P.W.1’s daughter. After her recovery, she narrated the entire incident, explaining
how she was forcibly taken by the accused/petitioner while she was going out
for nature call and committed rape on her. It is also admitted that he was a co-
accused in a case lodged by the petitioner’s brother. Thus, it is clear that he did
not enter the house of the accused/petitioner at the time of the victim’s
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recovery. However, his testimony remains consistent regarding the recovery of
the informant’s daughter from the house of the accused/petitioner.
19. P.W. 3, is the victim of the case and she deposed that in the night of
incident she went out to attend her nature call, when the accused/petitioner
came and gagged her mouth, and forcibly took her into his house and
committed rape on her by opening her cloths. She further deposed that her
mouth was gagged with cloths while she was trying to raise alarm. Thereafter,
her father heard the sound of her crying and he informed the villagers and with
the help of VDP personnel etc, she was rescued from the house of the
accused/petitioner. She further deposed that when the accused/petitioner came
to know that the villagers and the VPD personnel are coming, the
accused/petitioner gagged her and tight her hands and fastened her in a jute
mate. Initially the accused/petitioner did not opened the door, but after some
time he opened the door and then the VDP personal entered the house of the
accused/petitioner and rescued her. But by that time, the accused/petitioner had
fled from his house. Thereafter, she was taken to her uncle’s house, where she
was interrogated by the villagers. She narrated the entire story, and the next
morning, her father lodged the FIR. The police recorded her statement, and she
was also examined by a doctor. Her statement was recorded under Section 164
of the Cr.P.C. by the Magistrate. Exhibit-1 is her statement, and Exhibits-1(1)
and 1(2) are her signatures.
In her cross-examination, she remained consistent in her statement that
the accused/petitioner forcibly took her when she came out of her house to
attend her call of nature, gagged her mouth, and tied her hands behind her
back, and committed rape on her. She also describe as to how he committed
rape on her at the time of her cross examination. However, from the cross
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evidence, it is seen that blood was not coming out from her vagina though he
released his semen inside her vagina. From her cross-examination, it was also
revealed that the police did not seize the wearing apparel at the time of the
seizure.
20. P.W.4, Md. Khadem Ali, deposed that at the time of the incident, he was
called by P.W.1 and P.W.2, who informed him about the incident. He stated that
the victim needed to be recovered from the house of the accused/petitioner.
Thereafter, he informed the VDP personnel, and he, along with the VDP
personnel, went to the house of the accused/petitioner, where they heard the
victim crying and successfully recovered her.
From his cross-examination, it is evident that he does not belong to the
same ‘Samaj’ as the accused and the informant. However, it was noted that
P.W.2 is his nephew. Additionally, from his testimony, it revealed that the brother
of the accused/petitioner also lodged a case against the P.W. 1 and P.W.2. It was
also mentioned that many people gathered outside the house of the
accused/petitioner at the time of the incident, and some VDP personnel and
villagers went inside the house and rescued the girl. He denied the suggestion
that he testified falsely against the accused/petitioner due to a previous grudge,
as the brother of the accused/petitioner had lodged a case against the
informant and his nephew, P.W.2.
21. P.W.5 and P.W.6 are members of the VDP. According to them, they were
informed about the matter by P.W.2. They then met Tazimuddin, Nausad Ali, the
other VDP members, P.W.1, and P.W.4 at the house of P.W.2. Subsequently,
P.W.1 and P.W.2 requested their assistance in recovering the victim girl from the
house of the accused/petitioner.
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These two witnesses were also cross-examined at length, but their
statements regarding the recovery of the victim and their knowledge of the
incident of rape remained unrebutted. There is no reason to disbelieve these
two witnesses, who are VDP members engaged in the recovery of the victim
girl.
22. P.W.7 also supported the prosecution case. According to him, at the
request of P.W.6, he visited the house of P.W.2 and learned that the victim was
confined by the accused/petitioner in his house. Consequently, he, along with
the VDP members, went to recover the victim girl.
From his cross-examination, it is revealed that he was not on VIP duty at
the time of the incident; however, at the request of the other P.Ws and VDP
personnel, he and some others entered the house of the accused/petitioner and
rescued the girl. His testimony regarding entering the house and recovering the
girl remained unchallenged, and he supported the prosecution case in respect of
the recovery of the victim from the house of the accused/petitioner.
23. P.W.8 is a doctor and an important witness for the prosecution. She
examined the prosecutrix on 18.01.2007 while serving as the Senior Medical and
Health Officer at Goalpara Civil Hospital. According to her medical report and
testimony, she did not find any injuries on the private parts of the victim at the
time of examination, and the vaginal swab also yielded a negative result for the
presence of sperm. She stated that the radiological age of the victim girl was
approximately 20 years at the time of the incident.
However, during her cross-examination, it was noted that the hymen was
absent at the time of the victim’s examination.
24. P.W.9, Md. Sahar Ali, heard some noise outside the house, and when he
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came out, he learned that the victim girl was kept confined in the house of the
accused/petitioner.
25. P.W.10, Mohiruddin Mandal, also supported the prosecution case, stating
that on the night of the incident, when he heard noise outside his house, he
came out and saw some VDP personnel along with other people recovering the
victim from the house of the accused/petitioner.
26. P.W.11 is the mother of the victim; however, she did not provide any
information and testified that she does not know about the incident, despite the
victim being her own daughter.
27. P.W.12 is the investigating officer who investigated the case upon
receiving the ejahar. During the investigation, he visited the place of the
occurrence, prepared a sketch map, recorded the statements of witnesses, sent
the victim girl for a medical examination, and also recorded her statement under
Section 161 of the Cr.P.C. After completing the investigation, he filed a charge
sheet against the accused/petitioner under Sections 366/376/34 of the IPC.
Exhibit 2 is the charge sheet, and Exhibit 2(1) is his signature.
From his cross-examination, it is seen that the ages disclosed by the
victim and the informant were contradictory.
28. Thus, the case of the prosecution is that on the night of the incident when
the victim girl went out to attend her nature call, the accused/petitioner forcibly
took her by gagging her mouth to his house and then committed rape on her by
tying her hands and gagging her mouth. When the victim’s father learned that
his daughter was missing from the house, he went out and heard her crying. He
initially informed P.W.2, and then other VDP personnel were notified. With the
assistance of these VDP members, the villagers were also informed, and the girl
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was rescued from the house of the accused/petitioner.
29. The defence, on the other hand, contended that a false and fabricated
case had been lodged against the accused/petitioner due to a prior grudge, as
the petitioner’s brother had filed an FIR against P.W.1, P.W.2, and others for
fishing in the beel. To substantiate this claim, the defence presented three
witnesses in support of their case.
30. D.W.1 is the uncle of the accused/petitioner. He deposed that he went to
the house of the accused/petitioner on the night of the incident at around 7:00
P.M. His father informed him that the accused/petitioner was not at home, as he
had gone to Dhumerghat to visit one Mozid Ali. The next morning, when the
police arrived at the complainant’s house, he learned about the incident.
In his cross-examination, he admitted that he went to the house of the
accused/petitioner to write an application to the co-operative for purchasing
goods for his fair shop. Although he found that the accused/petitioner was
absent, he did not make a second attempt to meet him to write the application.
31. D.W.2 is the grandfather of the accused/petitioner. He deposed that on the
day of the incident, he went to the house of the accused/petitioner, but learnt
from his father that the accused was not available, as he had gone to
Dhumerghat. The next morning, when he visited the complainant’s house, he
came to know that a case had been filed solely to harass the accused/petitioner.
32. D.W.3, Abdul Mozid, deposed that on 15.01.2007, the accused/petitioner
came to his house at about 3:00 P.M. and returned to his own house on
17.01.2007.
33. Thus, all the D.Ws primarily emphasized that the accused/petitioner was
not present on 15.01.2007, the day of the incident, as he was in Dhumerghat
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and had gone to D.W.3’s house. The defence raised the plea of alibi, asserting
that the accused/petitioner was not at home at the relevant time of the incident.
However, D.W.1 stated that he visited the house of the accused/petitioner at
around 7:00 P.M., but he was unaware of the accused/petitioner’s presence
afterward and did not know what happened in the house after that time.
Similarly, D.W.2 also visited the house of the accused/petitioner on the day of
the incident, but he too was unaware of what had happened after 7:30 P.M.
Therefore, both D.W.1 and D.W.2 do not know what happened after 7:00 P.M.
because they claimed to have visited the house at that time. Furthermore,
D.W.3, who stated that the accused/petitioner visited his house on the day of
the incident and stayed there until he returned home on 17.01.2007, revealed
during cross-examination that he follows the Bengali calendar and could not
accurately identify the date when the accused/petitioner visited. Instead, he
mistakenly stated that the accused/petitioner visited his house on 07.03.2000.
Thus, the testimony of D.W.3 cannot be believed, as he is uncertain about both
the date of the incident and the date of the accused/petitioner’s visit to his
house.
34. After careful examination of the evidence presented by the P.Ws and
D.Ws, it is clear that the defence could not rebut the testimony of the victim
during cross-examination. Her statements remained consistent, indicating that
the accused/petitioner forcibly took her by gagging her mouth when she came
out of her house to answer a call of nature. It is also seen that she was
preparing for her matriculation examination, studying late in the night. Following
her abduction, P.W.1, the informant, only realized that his daughter was missing
after hearing her cries from the house of the accused/petitioner.
35. This part of the evidence is supported by other P.Ws who learned about
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the incident that night. With the assistance of the VDP Secretary, some VDP
personnel and others entered the house of the accused/petitioner and rescued
the victim. It is also noted that a previous case had been filed by the brother of
the accused/petitioner regarding a fishing dispute, in which P.W.1, P.W.2, and
some other witnesses were also implicated as accused. This fact was
acknowledged by the P.Ws regarding lodging of the earlier case. However,
previous enmity and grudges can be considered as a double-edged sword: a
person may be falsely prosecuted due to past grievances, or conversely, such
grievances may lead an individual to commit offences.
36. However, in the instant case, after a thorough examination of the evidence
on record, it is evident that the prosecution could not be compelled to concede
that the case was lodged solely due to previous grudges or enmity. Although the
defence raised the issue of prior enmity and cross-examined the P.Ws, it is
surprising that when presenting the evidence of the D.Ws, the defence did not
pursue this line of argument and instead relied solely on the plea of alibi.
37. As discussed above, they could not establish through the D.Ws that the
accused/petitioner was absent for the entire night. Both D.W.1 and D.W.2 stated
they were unaware of any incident that may have occurred after 7:30 P.M.
Furthermore, D.W.3 could not accurately identify the date when the
accused/petitioner visited his house, mistakenly stated that the accused visited
him on 07.03.2000.
38. Coming to the evidence of the doctor, it is seen that she did not find any
injury marks on the private parts of the victim during her examination. However,
it must be acknowledged that she examined the victim only on 18.01.2007,
which was almost three days after the alleged incident. Furthermore, the doctor
did not provide any opinion as to whether there were any signs of recent
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intercourse with the victim; her report merely stated that no injury marks were
found on her private parts. The examination also revealed that the hymen was
absent, but the doctor did not specify or clarify the reasons for the absence or
what other factors could have contributed to it. Additionally, the defence did not
cross-examine the doctor to elicit any further material related to the allegations
of rape against the victim.
39. The Hon’ble Apex Court in the case of Radhakrishna Nagesh Vs. State
of Andhra Pradesh, reported in (2013) 11 SCC 688, has held in paragraph
No. 15 of the said judgment that “settled principle of law that a conflict or
contradiction between the ocular and the medical evidence has to be direct and
material and only then the same can be pleaded. Even where it is so, the Court
has to examine as to which of the two is more reliable, corroborated by other
prosecution evidence and gives the most balanced happening of events as per
the case of the prosecution.” Paragraph Nos. 18 & 19 of the said judgment
reads as under:-
“18. In order to establish a conflict between the ocular evidence and the
medical evidence, there has to be specific and material contradictions.
Merely because, some fact was not recorded or stated by the doctor at a
given point of time and subsequently such fact was established by the
expert report, the FSL Report, would not by itself substantiate the plea of
contradiction or variation. Absence of injuries on the body of the
prosecutrix, as already explained, would not be of any advantage to the
accused.
19. In any case, to establish a conflict between the medical and the
ocular evidence, the law is no more res integra and stands squarely
answered by the recent judgment of this Court in the case of Dayal Singh
and Others v State of Uttaranchal [(2012) 7 SCALE 165]”
40. For ready reference, Section 375 of IPC is extracted hereinbelow:
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“375. Rape.– A man is said to commit “rape” if he–
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or
anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the
penis, into the vagina, the urethra or anus of a woman or makes her to do
so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause
penetration into the vagina, urethra, anus or any part of body of such
woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes
her to do so with him or any other person, under the circumstances falling
under any of the following seven descriptions:-
First. Against her will. Secondly. Without her consent. Thirdly. With her consent, when her consent has been obtained by
putting her or any person in whom she is interested, in fear of death or of
hurt.
Fourthly. With her consent, when the man knows that he is not her
husband and that her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully married.
Fifthly. With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and
consequences of that to which she gives consent.
Sixthly. With or without her consent, when she is under eighteen
years of age.
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Seventhly. When she is unable to communicate consent.”
41. The absence of injury marks on the private parts of the victim cannot be
solely regarded as grounds for the acquittal of the accused/petitioner. Moreover,
medical evidence or the opinion of an expert cannot be treated as substantive
evidence on its own. A conviction may still be based on the sole testimony of
the prosecutrix, provided that her testimony inspires the confidence of the
Court.
42. The Hon’ble Apex Court in the case of Sudhansu Sekhar Sahoo vs.
State of Orissa, reported in 2003 SCC (Crl.) 1484, it was held that:
“It is well settled that in rape cases the conviction can be solely
based on the evidence of the victim, provided such evidence inspires
confidence in the mind of the court. The victim is not treated as
accomplice, but could only be characterised as injured witness. It is also
reasonable to assume that no woman would falsely implicate a person in
sexual offence as the honour and prestige of that woman also would be at
stake. However, the evidence of the prosecution shall be cogent and
convincing and if there is any supporting material likely to be available,
then the rule of prudence requires that evidence of the victim may be
supported by such corroborative material.”
43. The Hon’ble Apex Court in the case of Moti Lal Vs. State of M.P.
[(2008) 11 SCC 20] has held in paragraph Nos. 7 & 9 as under:
“7. It is settled law that the victim of sexual assault is not treated as
accomplice and as such, her evidence does not require corroboration from
any other evidence including the evidence of a doctor. In a given case
even if the doctor who examined the victim does not find sign of rape, it
is no ground to disbelieve the sole testimony of the prosecutrix. In normal
course a victim of sexual assault does not like to disclose such offence
even before her family members much less before public or before the
Page No.# 18/21police. The Indian women as tendency to conceal such offence because it
involves her prestige as well as prestige of her family. Only in few cases,
the victim girl or the family members has courage to go before the police
station and lodge a case. In the instant case the suggestion given on
behalf of the defence that the victim has falsely implicated the accused
does not appeal to reasoning. There was no apparent reason for a
married woman to falsely implicate the accused after scatting her own
prestige and honour.
9. A prosecutrix of a sex-offence cannot be put on par with an accomplice.
She is in fact a victim of the crime. The Evidence Act nowhere says that
her evidence cannot be accepted unless it is corroborated in material
particulars. She is undoubtedly a competent witness under Section 118
and her evidence must receive the same weight as is attached to an
injured in cases of physical violence. The same degree of care and caution
must attach in the evaluation of her evidence as in the case of an injured
complainant or witness and no more. What is necessary is that the Court
must be conscious of the fact that it is dealing with the evidence of a
person who is interested in the outcome of the charge leveled by her. If
the Court keeps this in mind and feels satisfied that it can act on the
evidence of the prosecutrix. There is no rule of law or practice
incorporated in the Indian Evidence Act, 1872 (in short Evidence Act)
similar to illustration (b) of Section 114 which requires it to look for
corroboration. If for some reason the Court is hesitant to place implicit
reliance on the testimony of the prosecutrix it may look for evidence
which may lend assurance to her testimony short of corroboration
required in the case of an accomplice. The nature of evidence required to
lend assurance to the testimony of the prosecutrix must necessarily
depend on the facts and circumstances of each case. But if a prosecutrix
is an adult and of full understanding the Court is entitled to base a
conviction on her evidence unless the same is own to be infirm and not
trustworthy. If the totality of the circumstances appearing on the record of
the case discloses that the prosecutrix does not have a strong motive to
falsely involve the person charged, the Court should ordinarily have no
Page No.# 19/21hesitation in accepting her evidence. This position was highlighted in State
of Maharashtra v. Chandraprakash kewalchand Jain (1990 91) scc 550).”
44. Again, in the case of State of Himachal Pradesh v. Raghubir Singh,
(1993) 2 SCC 622; 1993 SCC (Cri) 674, the Hon’ble Supreme Court held
that there is no legal compulsion to look for any other evidence to corroborate
the evidence of the prosecutrix before recording an order of conviction.
Evidence has to be weighed and not counted. Conviction can be recorded on
the sole testimony of the prosecutrix, if her evidence inspires confidence and
there is absence of circumstances which militate against her veracity. A similar
view has been reiterated by the honourable Supreme Court in Wahid Khan v.
State of Madhya Pradesh (2010) 2 SCC 9; AIR 2010 SC 1, placing reliance an
earlier judgment in Rameshwar S/o kalian Singh v. State of Rajasthan, AIR 1952
Sc 54. Thus the law that emerges on the issue is to the effect that the
statement of prosecutrix, if found to be worthy of credence and reliable,
requires no corroboration. The Court may convict the accused on the sole
testimony of the prosecutrix.
45. Addressing the issue raised by the learned counsel for the petitioner
regarding the delay in lodging the FIR, it is noted that the incident occurred on
the night of 15.01.2007, and the girl was recovered the following morning at
around 1:30 A.M. The FIR was lodged on 16.01.2007 at approximately 3:00
P.M., after her recovery. However, it is an admitted fact that there is no
explanation for the delay in lodging the FIR, but, the delay cannot be
considered fatal to the prosecution’s case. It is acknowledged that the girl was
recovered on 16.01.2007 at around 1:30 A.M. and that the FIR was lodged later
that same day, after discussions with other family members. The learned
Page No.# 20/21
Assistant Sessions Judge, Goalpara, vide Judgment and Order dated 22.09.2010
addressed this issue in paragraph 28 of the judgment, which reads as follows:
“28. In State vs. Gurmit Singh, the Hon’ble Supreme Court
stated “the Court cannot over looked the fact that in sexual offence delay
in lodging of the FIR can be due to variety of reasons particularly the
reluctance of the prosecutrix or her family members to go to the police
and complained about the incident which concerns the reputation of the
prosecutrix and the honour of her family. It is only after giving it a cool
thought that a complaint of sexual offence is generally lodged.”
46. From the discussion above, it is evident that the learned Assistant
Sessions Judge and the learned Sessions Judge, Goalpara, rightly concluded
that the accused/petitioner committed rape on the victim on the night of the
incident. Consequently, the Judgment and Order dated 22.09.2010 was passed
by convicting and sentencing the accused/petitioner. Another issue raised by the
learned counsel for the petitioner pertains to the reduction of the sentence, and
also relied on the decisions of this Court. However, considering the nature of the
offence and the overall circumstances of the case, it is clear that this case does
not fall under Section 354 of the IPC, as submitted by the learned counsel, who
is requesting for reduction of the sentence imposed on the accused/petitioner.
47. Therefore, considering all the facts and circumstances of the case, I do
not find any reason to interfere with the impugned Judgment and Order dated
06.12.2010, passed by the learned Sessions Judge, Goalpara, in C.A. Case No.
17/2010, which affirmed the Judgment and Order dated 22.09.2010, passed by
the learned Assistant Sessions Judge, Goalpara, in Sessions Case No. 40/2009,
convicting the accused/petitioner under Sections 366/376(1)/34 of the IPC. As a
Page No.# 21/21
result, I find no merit in this revision petition, and accordingly, it stands
dismissed.
48. With above observations, this criminal revision petition stands disposed of.
JUDGE
Comparing Assistant