Bhagwan Singh vs The Andaman and Nicobar Administration

Joymalya Bagchi, J.—The present case narrates a sordid saga of the appellant, who was the then Station House Officer of the local police station, venting his sexual lust on a defenceless house wife by blatant abuse of official powers.

A thumbnail sketch of the prosecution case, as alleged, against the appellant is that one Mohammed Ismail (PW 19) and his wife Kamrul Nissa (PW 16), the victim herein, along with their four children were residing at Austinabad in Port Blair since April, 1986. Mohammed Ismail befriended one Karim Bux (PW 23) who was a crew member of a ship. As a result, Karim Bux regularly visited the family and got acquainted with other family members of Mohammed Ismail including Kamrul Nissa and the latter started referring him as her Devar (Brother-in-law).

It appears that Kamrul Nissa was suffering from vertigo and giddiness and, in spite of being treated by various doctors, the disease could not be cured. PW 19 informed PW 23 about this problem. PW-23 suggested that Kamrul Nissa be treated by one exorcist at Dundaspoint. He said that he knew an exorcist namely Saiyyad at Dundaspoint and another exorcist namely Ahmed Hussain (PW 7) at Namunaghar. On the request of PW 19, PW 23 agreed to take PW 16 to an exorcist for treatment. Accordingly, on 19.01.1987, PW 23 took PW 16 to Dundaspoint for meeting the exorcist, Saiyyad. However, they were unable to meet the exorcist at Dundaspoint as he was not at his residence. Accordingly, they returned to Namunaghar and try to meet the other exorcist namely, Ahmed Hussain who was also not available at his house. Finding no other alternative, they returned to Austinabad.

Another attempt was made on 21st January, 1987 when both PW 16 and PW 23 left for meeting the exorcist at Dundaspoint around 12.30 P.M. They went to Pahargaon by foot and from there, they took a bus to Namunaghar. At Namunaghar crossing, they went to the house of the exorcist namely Ahmed (PW 7). Ahmed was busy with his guests. Ahmed, however, informed PW 23 that Saiyyed was available at Dundaspoint. Accordingly, PW 16 and PW 23 left for Dundaspoint on foot. At Dundaspoint, they found that Saiyyad was not at his residence and had gone to Namunaghar crossing. Accordingly, they returned to Namunaghar on foot and took tea in a tea stall.

After taking tea, PW 23 went to the house of Ahmed leaving PW 16 at the tea stall. Thereafter, he came back and informed PW 16 that they cannot meet Ahmed. It was around 4-4.30 p.m. in the evening. As no bus or boat was available, PW 16 and PW 23 decided to return back on foot. They started walking towards Mitakhari road on foot and reached near a saw mill on the left hand side of the road near Ograbraj crossing around 6/6.30 pm. At that point of time, the appellant came in a scooter from the side of Dundaspoint and stopped by their side. The appellant introduced himself as Bhagwan Singh, the Station House Officer of Dundaspoint Police Station and called upon them to accompany him. When they expressed unwillingness, the appellant threatened them that they would be imprisoned for twelve years if they did not obey his orders.

Reluctantly, they followed the appellant. The appellant tried to start his scooter to leave for Dundaspoint. His scooter failed to start. At that time, two persons came to the spot. They tried to mend the scooter, but failed. The appellant spoke something to them in English which PW 16 and PW 23 could not understand. Therefore, the appellant kept his scooter in the custody of Venkat Master (PW 6) and started walking towards Dundaspoint taking PW 16 and PW 23 with him. After walking for some distance to the tri-junction at Ograbraj crossing the appellant ordered PW 23 to wait and took PW 16 away to a deserted place and proposed to have sexual intercourse with her. PW 16 refused such advance. Thereupon the appellant threatened her that she would be killed and pressed her throat. PW 16 was dragged into the field by the appellant and her wearing apparels were torn while she was dragged into the bushes. Thereafter, PW 16 was made to lie down in the field after spreading her Dopatta. The appellant forcibly undressed her as well as himself and then forcibly committed rape on her. The incident took about 4-5 minutes. Thereafter, the appellant got up and dressed himself and directed PW-16 to dress up and threatened that if she told the incident to anyone, she as well as PW-23 would have to suffer 12 years'' imprisonment. Then, the appellant brought PW-16 back to the tri-junction. Thereafter, the appellant took PW-16 and PW-23 to the nearby saw mill namely, Sea - Island Saw Mill. PW-20 (M.P. Monappan) the Mill Assistant was present in the Mill at that time. The appellant introduced PW-16 and PW-23 as his guests and asked for a truck to send them home. However, no driver was available. Accordingly, the appellant alongwith PW-16 & PW-23 started walking towards Chouldhari on foot. Enroute the appellant again misbehaved with PW-16 and molested her. On their way, they met two persons namely PW-8 (Jagan Prasad) and PW-22 (Alok Adhikari) with scooters. The appellant requested them to give one of their scooters so as to take PW-16 and PW-23 home. The said boys agreed to such proposal. Accordingly, the appellant rode one of the scooters along with PW-16 and PW-23 as pillion riders while PW-8 & PW-22 followed them in the other scooter. They reached Chouldhari junction in this manner. All the shops were closed at that time. The appellant asked one of the shop owners namely PW-6 (P. Narayan) to open his shop and had a pan. PW-8 purchased a cigarette from the shop. The appellant took a blank sheet of paper from the shop and ordered PW-16 and PW-23 to write their names thereon. PW-16 and PW-23 wrote incorrect names in English and Urdu respectively in order to hide their identity. The appellant kept the piece of paper and threatened both of them that if they disclosed the matter to any one, they would be implicated in a false case on the basis of their writings on the blank paper. From Chouldhari, the appellant took PW-16 and PW-23 in the said scooter to Protherapur, and after taking Rs. 50/- from PW-23 for buying fuel for the scooter, left them at that place. From there, PW-16 and PW-23 went to Austinabad by foot. PW-16 narrated the incident to PW-23 in the meantime. PW-23 advised her not to disclose the matter to anyone including her husband as the latter may divorce her upon knowing such facts. PW-16 reached her house at about 11.00 pm in the night. She did not disclose the incident to her husband immediately as she was in fear that he may divorce her. She was also afraid of reprisal from the appellant. However, she was feeling very depressed and cast down. Upon seeing her in such depressed state, her husband (PW-19) questioned her in the night of 23.01.1987 and thereupon PW-16 narrated the entire incident to him. On the next day, i.e. 24.01.1987, PW-16 and PW-19 went to the Aberdeen Police Station, where they met PW-27,(Raghubir Singh) Dy. S.P. and lodged FIR at Aberdeen Police Station, which was recorded by PW-12 (R.B. Yadav). The appellant had come to Aberdeen Police Station in connection with preparations for Republic Day ceremony and was identified by PW-16 at the said Police Station. The FIR was registered as a zero FIR at Aberdeen Police Station and transferred to Dundus Point Police Station on the point of jurisdiction and registered as Dunduspoint Police station as 9 of 87 under sections 376 IPC against the appellant. PW-28 (Hari Gopal Das) and PW-24 (Vidya Sagar) investigated the case. PW-28 arranged for medical examination of victim and the appellant by the Medical Officer (PW-14). Wearing apparels of the victim and the appellant were seized and sent for the chemical examination. Specimen handwritings of the appellant & witnesses were taken and sent for opinion of hand writing expert. Chemical examiner''s report, handwriting expert''s opinion and serologist''s report were collected. Statement of witnesses were recorded under section 164 Cr.P.C. and charge sheet was filed under sections 376 and 342 of the IPC by PW-24.

The case, being a session''s triable one, was committed to the Court of Sessions, Andaman and Nicobar Islands. Charge was framed under sections 376 and 342 IPC. The appellant pleaded not guilty and committed to trial.

In course of trial, the prosecution examined as many as 28 witnesses and exhibited number of documents including Exhibit 20, Zero FIR, Exhibit 21- formal FIR, Exhibit 22 - specimen handwriting of the appellant, Exhibit 35,- Chemical Examiner''s Report, Exhibit - 36- Serologist''s report and the seized alamats including shirt and trouser of the appellant. Material Exhibit -2, wearing apparels of the victim, PW-16 namely; Salwar Material Exhibit -5, Dupatta - Material Exhibit-5 and Kamiz Material Exhibit-6 respectively.

The defence of the appellant was one of the innocence and false implication. It was his specific defence that he was falsely implicated due to office rivalry between himself on the one hand and PW-27 and PW-28 on the other hand. It was his further defence that PW-23 could not have been at the place of occurrence as he was working as a crew of a ship, namely, MV Chowra from 16.01.1987 till 20.01.1987. The appellant examined D.W.-1, D.W.-5, D.W.-7 in support of such contention. The appellant also examined D.W.-2 to show that PW-16, PW-19 did not travel to mainland by M.V. Andamans in the month of September, 1987 after the incident. D.W.-3, (P.L. Alagapan) Manager Ram Niwas Lodge, Port Blair and D.W.-4, Jai Kumar Roy, Warden, Youth Hostel, Port Blair were examined and it appears from their deposition that PW-19 and his family stayed at Youth Hostel from 19.07.1989 to 31.08.1989 during the trial of the case. D.W.-6 S.C. Kar, Head Constable attached to S.P. Office was also examined. Various documents were also exhibited on behalf of the defence.

In conclusion of trial, the learned Sessions Judge convicted the appellant for commission of offence under section 376 & under section 342 of IPC and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 3000/-, in default, to suffer rigorous imprisonment for one year for the offence punishable under section 376 IPC and to suffer rigorous imprisonment for six months for the offence punishable under section 342 IPC, both the sentences are to run concurrently. Hence, the present appeal.

Mr. Adhikari, learned senior counsel appearing with Ms. Ganguly, learned counsel submitted that the evidence of PW-16, the victim, suffered from various inconsistencies and/or contradictions. Her evidence and that of two other vital witnesses PW-23 and PW-19 were unreliable and ought to be discarded. He submitted that there was an inordinate delay in lodging the FIR. The incident occurred on 21.01.1987. On that date, PW-16 claimed to have informed the matter to PW-23. However, FIR was lodged on 24.01.1987 after the matter was informed to her husband (PW-19) in the night of 23.01.1987. Explanation of holding back such information from PW-19 is wholly unbelievable. Such explanation is given for the first time in Court and PW-19 had not give out such explanation to the Investigating Officer (PW-28) during interrogation.

Evidence of PW-16 is artificial and unreliable as there was no medical evidence on record that she was suffering from giddiness or vertigo. It is also absurd as to how PW-16 in such physical condition could travel a considerable distance from Dundaspointto Namunaghar and back by foot. Mr. Adhikari further argued that the prosecution version that PW-16 and PW-23 was compelled to travel by foot from Namunaghar crossing down Mitakhari road, on their way back home as there was no bus or ferry service available is rendered improbable by the evidence of PW-28 that ferry services was available every 15 minutes between Dundaspointand Port Blair upto 4.00 pm and frequency would be less after 4.00 pm. He argued that PW-23 being a crew man of the ship ought to have known that ferry service was available though at a reduced frequency even after 4.00 pm. Hence, the prosecution version that they resorted to travel by foot down Mithakhari road from Namunaghar crossing on their way back is patently absurd and exposed the hollowness of the prosecution case.

Mr. Adhikari also argued that it is improbable that PW-16 and PW-23 repeatedly went to Dundaspoint without ascertaining the availability of the exorcist namely Saiyyed (not examined). He submitted that PW-4 (Sasi Kumar), tea stall owner at Namunaghar, where PW-16 and PW-23 claims to have had tea on 21.01.1987 was declared hostile and had not supported the prosecution case thereby breaking the chain in the prosecution case.

Mr. Adhikari further argued that the evidence of PW-16 and PW-23 that the appellant took away PW-16 from the tri-junction and forcibly committed rape on her appears to be absurd inasmuch as neither PW-16 nor PW-23 raised any hue and cry though the incident occurred near a public road. There is ample evidence on record that there was a saw mill near the place of occurrence and there were several houses in the neighbouring area. Hence, if the said witnesses had raised hue and cry, the same would have attracted local people and the incident could have been averted. These circumstances raise serious doubt as to the authenticity of the prosecution case as to whether the alleged incident occurred in the manner and under the circumstances as portrayed by the prosecution.

Mr. Adhikari also criticised the non-disclosure of the incident by the PW-16 or PW-23 to PW-19 on the same day. He submitted that wearing apparels of PW-16 were torn and she had come home very late. Still then, PW-19 was not apprised of the incident till the night of 23.01.1987. It is most strange as to why PW-16 and PW-23 would suspect that PW-19 would divorce the victim over the incident of rape on her when it is alleged that she was not a consenting party. He submitted that evidence of PW-19 and PW-23 also suffered from various embellishments and/or improvements from their earlier statements and ought to be discarded on such score alone. He relied on D.W.-1, D.W.-5 and D.W.-7 and documents exhibited on behalf of the defence to establish that PW-23 was on duty on board of MV Chowra from 16.01.1987 to 20.01.1987 and had taken payment for such job on 21.01.1987 and hence the said witness could not have accompanied PW-16 to Dundaspoint and back on 21.01.1987 as per the prosecution case.

Apart from delay, the FIR lodged in the instant case was also criticised on the ground that it was narrated in Hindi by PW-16 although there is no evidence that the latter was conversant in such language. Graphic details of topography is contained in the FIR which improbabilities the fact that it was narrated by PW-16 who claimed to be a house wife and was not conversant with the said surroundings.

It was also argued that forensic or medical evidence does not support the oral version of PW-16. No injuries were found on her person. No semen or spermatozoa was found in her private parts. Serologists report did not show semen stains on the dupatta of PW-16 although it is claimed by her that semen was discharged on the dupatta..

It was emphatically argued that the appellant has been falsely implicated due to service rivalry between himself on the one hand and PW-27 and PW-28, investigating officer of the case on the other hand. It was also argued that there was no reason as to why PW-16 and PW-19 lodged FIR at Aberdeen Police Station in stead of Danduspont Police Station within whose jurisdiction the incident occurred. It is strange why prior to lodging FIR, PW-16 went to meet PW-27, (Dy. SP) and PW -28 was present at that time.

It was also argued that the presence of the appellant at Aberdeen Police Station, at the time of registration of FIR and his identification by PW-16 at the said police station is most unnatural and a cooked up story. Admittedly, no test identification parade was conducted in the instant case.

It was also alleged that some of the witnesses were related to the police personnel while others or their relations had criminal cases pending against them. PW-6 was a relative of one Nageshwar Rao who was the Station House Officer, Dundaspoint Police Station before and after the tenure of the appellant. Son of PW-7 was implicated in a case under 376 of IPC. PW-9 was implicated in a case under section 381 of IPC. Hence, they were pocket witnesses of the police.

Mr. Adhikari relied on various authorities and submitted a written submission to supplement his oral arguments.

Per contra, Mr. Mandal learned senior counsel appearing with Mr. Mishra, learned counsel submitted that the evidence of PW-16 is most natural and reliable in all respects. Her evidence is corroborated by PW-23 and PW-19. Minor contradictions or improvements in their evidence who are simple folks ought not to have been a ground to reject their version particularly when the kernel of their version is consistent and corroborated by the evidence of other witnesses, namely PW-1, PW-6, PW-8, PW-9, and PW-20. He submitted that evidence of PW-16 relating to the incident of rape was intrinsically truthful and could be the sole basis of conviction. Prosecution case is further fortified by corroboration of the prosecutrix by other evidence.

He further submitted that the delay in lodging the FIR has been adequately explained. He also submitted that PW-23, in his cross-examination, stated that he was not aware of the timing of the ferry service from Dundaspoint and accordingly had decided to return to Austinabad by foot. He submitted that forensic evidence was consistent with the oral evidence. He also stated that no evidence is forthcoming with regard to alleged enmity between the appellant and the other police personnel. Admittedly, there is no enmity between the appellant on the one hand and PW-16, PW-19, PW-23, the principal witnesses of the case, on the other hand.

He stated that the conduct of PW-16 and PW-23 must be judged in the light of the fact that the appellant was the Station House Officer of the local police station and had threatened to falsely implicate the said witnesses in criminal cases and make them suffer imprisonment for 12 years if they did not abide by his directions. The appellant was known to PW-23. He was also identified by PW-16 at the Aberdeen Police Station at the time of registration of FIR. Hence, the question of test identification parade did not arise in this case. He further submitted that the defence evidence is of little consequence. In cross-examination, D.W.-1 categorically admitted that crew of the vessel are allowed by the Master to leave the ship without signing off and hence it is a common practice that when the ship is anchored at Port Blair, the crew, who are not on duty, go to their respective houses without signing off and even without seeking permission from the Master. The other defence witnesses have no bearing with the prosecution case as they relate to the post-prosecution conduct of the witnesses. He, accordingly, prayed for dismissal of the appeal.

Let me examine the evidence on record in the light of the aforesaid submissions.

PW-16, PW-23, and PW-19 are the most vital witnesses in the instant case. PW-16 is the victim and the wife of PW-19. She stated that she was residing at Port Blair since April, 1986 with her husband PW-19 and four children. She deposed that PW-23 was a friend of her husband and used to regularly visit their house. She referred to him as Devar (brother-in-law). As she was suffering from vertigo and giddiness, she had accompanied PW-23 on 19.01.1987 to have herself treated by an exorcist either at Dundaspoint or at Namunaghar. As the exorcists were not present in their houses, they returned home without consulting them. Another attempt was made on 21.01.1987, when she, accompanied with PW-23, again went to the house of an exorcist namely Ahmed (PW-7) at Namunaghar. Ahmed was unable to treat the victim as he was engaged. He, however, informed that Saiyyed, another exorcist, was available at Dundaspoint. Accordingly, they went to Dundaspoint but could not meet Saiyyed as he had left for Namunaghar crossing. They returned to Namunaghar and had tea in the Tea Stall of PW-4. After taking tea, PW-23 went to the house of Ahmed (PW-7) and thereafter returned. It was 4.30 pm in the evening and as no bus or boat was available, they decided to return home by foot. As they were walking down Mitakhari road, near a Saw Mill the appellant intercepted them in his scooter. She deposed that the appellant introduced himself as Station House Officer, Dundaspoint Police Station and asked them to accompany him to Thana. They entreated him not to take them to thana. But the appellant threatened them to act as per his direction failing which they would have to suffer dire consequences as he was the Station House Officer of the locality. Hearing the commotion, two persons came to the spot. The appellant spoke to them in English which the witness could not understand. The appellant tried to start his scooter for going to Dundaspoint but failed. The aforesaid men were requested by the appellant to repair the scooter but they also failed. Accordingly, the appellant requested the said men to keep the scooter in their house and started walking on foot towards Dundaspoint along with PW-16 and PW-23. Coming near the tri-junction, the appellant threatened them that they have to do whatever he desired failing which they would be killed. Thereafter asking PW-23 to wait at the tri-junction, the appellant took the witness some distance away and proposed to have sexual intercourse with her. When she refused, the appellant pressed her neck. The appellant dragged her to the field on the left side of the road and threatened her that they would be killed if she did not obey his directions. Her wearing apparels were torn as they got struck in the bushes when the appellant dragged her through the field. As directed by the appellant, witness spread her dupatta on the field out of fear. The appellant forcibly undressed her and as well as undressed himself thereafter the appellant forcibly kissed her and raped her. The incident occurred for about 4-5 minutes. Then, the appellant got up and put on his clothes and directed witness to do the same. He also further threatened the witness that if she narrated the incident to anyone, she and PW-23 would suffer 12 years'' of imprisonment. Then, the appellant brought her back to tri-junction. The witness and PW-23 were then taken to the nearby Saw Mill where they were introduced as his guests to PW-20 (the mill assistant) who was asked to arrange a truck for their transportation. PW-20, however, expressed inability to do so as no driver was available. So, the appellant took them towards Chouldhari by foot. On the way, while PW-23 was walking in front, the appellant again misbehaved with her and molested her. After some distance, they found two persons (PW-8 & PW-22)with scooters. The appellant introduced her and PW-23 as his guests and asked for a scooter so as to give them a lift to Pathurgudda. Accordingly, the appellant took one of the scooters from the aforesaid persons and drove the witness and PW-23 as pillion riders. PW-8 and PW-22 followed them in the other scooter. In this manner, they reached Chouldhari junction. At Chouldhari junction, the shops were closed. The appellant called one shopkeeper (PW-3) and opened his shop and had a pan (betel leaf) from his shop. He also obtained a blank paper and forced the witness and PW-23 to write on it. PW-23 wrote his name in English in block letters while witness wrote her name in Urdu respectively. They, however, gave incorrect names. The appellant threatened them that he would use this paper to falsely implicate them if the aforesaid incident is disclosed to anyone. From Chouldhari junction, they proceeded Protherapur in the scooter. At Protherapur, the appellant took Rs. 50/- from PW-23 for purchasing fuel for the scooter and the appellant left that place along with other two persons. From there, the witness along with PW-23 went on foot to her house at Austinabad. She narrated the incident to PW-23. PW-23 asked her not to disclose her husband as he may divorce her and the appellant might also cause harm. They reached Austinabad at about 11.00 pm. Out of fear, she did not disclose the incident to her husband but she stated that she was late as they had to come on foot. She was perturbed and wept all time. Her husband asked her as to why she was worried in the night of 23.01.1987. She broke down and narrated the incident to him. Next day at 10.00 am, she and her husband PW-19, went to Aberdeen Police Station where she lodged FIR. When the FIR being recorded, the appellant was found in the Police Station and she identified the appellant as the culprit.

PW-23 has substantially corroborated the aforesaid version of PW-16.

The other vital witness PW-19 has deposed that on 19.01.1987, PW-23 and his wife went to meet an exorcist at Dundaspoint to treat his wife who was suffering from giddiness. They were unable to meet the exorcist and, accordingly, again they left for Dundaspoint on 21.01.1987. His wife returned in the late night and told that she was delayed as they had missed the bus. He found that his wife to be in a depressed condition. Hence in the night of 23.01.1987 he queried his wife whereupon the latter broke down and narrated the incident to him. On the next day in the morning they went to Aberdeen Police Station and in the presence of PW-27 (Dy. Superintendent of Police) and the Circle Inspector, PW-28, Hari Gopal Das, they lodged FIR. The appellant was present at Aberdeen Police Station at that time and was identified by his wife. He further deposed that in September, 1987 they went back to Calcutta and since then have been residing there.

PW-6 (Y. Venkatraman) is a teacher whose house is near Sea Island Saw Mill located at tri-junction road leading to Ograbraj, Mitakhari and Pourt Mout. He stated that on 21.01.1987 around at 6.00 pm, the appellant came to his residence along with a man and a woman and kept his scooter there. He further stated that the woman was wearing Salwar Kamiz and Dupatta. He also deposed that around 12.00 am on the same night, the appellant came to his house along with PW-8 (Jogen Prasad) and after repairing his scooter took away the scooter from the said place.

PW-1, Ratan Lall, is a primary school teacher who deposed that in the evening of 21.01.1987, the appellant had taken his scooter saying that he was required to go to Namunaghar and would return the scooter within an hour. The scooter was not returned in the night and he found that the said scooter was in front of the quarter of the appellant on the next morning at about 6.00 pm. The appellant stated that the scooter could not start at night as it had developed mechanical trouble and it had to be repaired by PW-8.

PW-8, Jogen Prasad has corroborated the prosecution case of meeting the appellant with PW-16 and PW-23 at the tri-junction at Mitakhari Road. He stated that he was accompanied by another person namely Alok Adhikari (PW-22) (tendered for cross-examination) and they were on two scooters. The appellant requested them to permit him to use one of the scooters to give his companions a lift upto Pathargudda. The girl was wearing Salvar, Kamiz and Dupatta. They initially declined saying they did not sufficient fuel. The appellant, however, assured that he will provide sufficient fuel. Accordingly, they agreed to the proposal of the appellant. PW-8 made over his scooter to the appellant who drove the scooter. The boy and the girl rode the scooter as pillion riders. PW 8 & PW-22 followed in the other scooter. They reached Chouldhari. In Chouldhari, the appellant asked one shopkeeper (PW-3) to open his shop and purchased a pan. PW-22 purchased a cigarette and they left Chouldhari. They reached Pathurgudda at around 11-11.30 pm. The appellant requested them to wait at Pathargudda so that he may come back after dropping his guests and went towards Protherapur in the scooter. After two minutes, PW-8 and his friend went to Protherapur and found that the appellant was sitting on the scooter and his guests were standing by his side. Thereafter, PW-8 & PW-23 returned with the appellant on their scooters. From Pathargudda junction, PW-8 drove his scooter and the appellant rode as a pillion rider. They went to the residence of Venkat Master (PW-6) and repaired the scooter of the appellant and the appellant left in his scooter while the witness went to his residence.

PW-20 (M.P. Monappan) was the mill assistant of Sea Island Saw Mill. He deposed that the appellant had come with a man and woman to the Saw Mill and asked for a truck to give a lift to them to Austinabad. As there was no driver available, he could not oblige the appellant. The witness saw that the lady was wearing Salvar and Kamiz.

PW-3 Shadevan Pillai was the pan shop owner at Chouldhari where the appellant had purchased a pan and had taken a blank piece of paper. He has corroborated the prosecution case.

PW-4 Sasi Kumar, was the Tea Stall owner where the prosecution claimed that PW-16 and PW-23 had a tea at Namunaghar. He, however, has not supported the prosecution case and was declared hostile. PW-5 P. Narayan was a Tea Shop owner at Dundaspoint. He however supported the prosecution case that on 19.01.1987 and 21.01.1987 he had seen a boy with a girl who had enquired about an exorcists namely Kana Ahmed. He also signed the seizure list.

PW-7, Ahmed Hussain is the exorcist of Namunaghar. He stated that on 21.01.1987, a boy and a girl came to his house around 3.00 pm. He, however, could not talk with them as he had other guests in his house. He found that the boy and the girl left for Namunaghar crossing.

PW-9 (Farzand Ali) was a police constable of Dundaspoint. He deposed that on 19.01.1987 at 2.00 pm, he found a boy and girl at Dundaspoint. On 21.01.1987, at about 4.45 pm, the appellant enquired about the said boy and the girl whom he had met on 19.01.1987. He informed the appellant that the said boy and the girl has gone towards Mitakhari from Namunaghar on that day. The appellant told the witness to go back his house as he would be going on his scooter. On the next day the appellant informed the witness that he was in trouble as he had returned at 1.00 am on the previous night.

PW-11 Badri Brasad, was the Head Constable who was attached with the Dundaspoint, Police Station. He deposed that at 2.30 pm on 21.01.1987 he returned to Dundaspoint Police Station from Port Blair and took roll call on behalf of the Station House Officer at 8.00 pm as the latter was not present in the Police Station. The witness was present in the Police Station till 8.45 pm. Till such time, the Station House Officer was not present in the Police Station. On 24.1.1987, the witness drew up formal FIR (Ext. 21) on the basis of written complaint of PW-16 lodged at Aberdeen Police Station-Exhibit -20.

PW-12 Shri Ram Bachan Yadav, was a Sub-Inspector of police attached to Aberdeen P.S. On 24.01.1987 he recorded the zero FIR (Ext. 20) at Aberdeen P.S. lodged by PW-16. He deposed that he read over and explained the contents of the FIR to the informant (PW-16) and the latter signed the FIR. The FIR was sent to Dundaspoint Police Station on the point of jurisdiction. On 25.01.2014 he seized the wearing apparels of the victim.

PW-14 Dr. Mrs. Zakia Begum, examined the victim on 24.01.1987. She found that PW-16 had been subjected to sexual intercourse. Her hymen was found to be ruptured but not a recent rupture. She did not find spermatozoa in her vagina. No stray hair found stuck up on her body. No mark of violence was found on her body. No semen was found on her body or her private parts. Vaginal swab was taken and given to the police. She also examined the appellant. She did not find any injury in his person. She further found that the appellant was capable of sexual intercourse.

PW-27 (Raghibir Singh, Dy. Superintendent of Police) stated that PW-16 being accompanied by her husband and four children came to Aberdeen Police Station while he along with the Circle Inspector Hari Gopal Das(PW-28) were present in the said Police Station and had lodged the FIR. PW-16 identified the appellant at the said Police Station. After the registration of the FIR, the case was entrusted to the Circle Inspector Shri Hari Gopal Das (PW-28). The witness identified the handwriting of the appellant, who had worked under various capacities under him.

PW-28 was the investigating officer of the case. He visited the place of occurrence, examined witnesses, prepared sketch map and arranged for taking photographs of the place of occurrence by PW-13 (Photographer). He also arranged for medical examination of the victim and the appellant. He also took specimen writings of the appellant, PW-16 & PW-23.. Wearing apparels of the victim, four tubes of swab, pubic hair etc were sent to for forensic examination. The handwriting contained in the blank sheet of paper as well as specimen hand writing were sent for its comparison by handwriting expert. The statement of witnesses were also recorded under section 164 Cr.P.C. Report of the CFSL, handwriting expert''s report, serologist report were collected and exhibited during trial. He also proved the hand writing of the appellant on the blank sheet of the paper which was seized in course of investigation.

PW-24 (Vidya Sagar) deposed that he concluded the investigation and submitted charge sheet.

It has been strenuously argued before me that the evidence of victim PW-16 and PW-23 is wholly untrustworthy, unreliable and not worthy of any credence. It has been argued that no evidence has been adduced to establish the illness of the victim which compelled her to go Dundaspoint to be treated by an exorcist. It has also been argued that it is highly improbable for the victim to walk to Dundaspoint from Namunaghar and back on foot as she was suffering from vertigo and giddiness. It has also been submitted that the prosecution case that the victim and PW-23 decided to return to Austinabad by foot is highly improbable as ferry service was available from Dundaspoint to Port Blair ever after 4 p.m. as per PW-28. It has also been urged that it is absurd without ascertaining availability of exorcist PW-16 and PW-23 would have repeatedly embarked on a long journey from Austinabad to Dundaspoint and back. Relying on these arguments, it has been canvassed by the appellant that the evidence of the victim and her companion PW-23 ought not to be believed.

PW-28 in his deposition stated that after 4.00 pm, the frequency of ferry service from Dundaspoint decreases.

PW-23 in cross-examination categorically stated that he was not aware of the timings of the ferry service from Dundaspoint. It is therefore likely that PW-16 & PW-23 did not take the chance of availing the ferry service from Dundaspoint to Port Blair as PW-23 was not aware of its timings and was of the view that such service had already stopped. Hence, they decided to return by foot to Austinabad from Namunaghar crossing instead of returning to Dundaspoint as they were not aware of the timings of such ferry service and were of the opinion that boats had already stopped plying. Such decision was most natural and cannot be held to be improbable on the plea that there was a skeletal ferry service even after 4 PM as per the version of PW-28. Such information was not in the knowledge of PW-16 or PW-23 as is evident from the cross-examination of PW-23 as discussed hereinabove. Hence, decision to travel from Namunaghar crossing via Mitakhari on foot cannot be said to be so absurd that it is contrary to the common course of human conduct and liable to be disbelieved.

Furthermore, the evidence of PW-6 corroborates prosecution case that the appellant came to his residence with a boy and a girl (the latter wearing salwar, kameez and dupatta) to keep his scooter as it was not working. Such evidence of PW-6 corroborates the prosecution case that the appellant was with PW-16 and PW-23 at the tri-junction at the relevant time, i.e. 6/6.30 pm, on 21.01.1987.

Immediately after the incident of rape, as narrated by PW-16, the appellant was again found in the company of the victim & PW-23 by PW-20, the Manager of Sea Island Saw Mill which is situated on the left side of the road near the tri-junction. This fact further supports the prosecution case and establishes beyond doubt the presence of PW-16 & PW-23 in the company of the appellant near the place of occurrence at the relevant time.

In the light of the aforesaid evidence, I am not willing to accept the plea of the defence merely because the prosecution chose not to adduce evidence with regard to the treatment of the ailment of the victim and the fact that some skeletal service may have been available from Dundaspoint, the prosecution version as narrated by PW-16 and PW-23 that they decided to return to Austinabad by foot down Mithakhari road and were intercepted by the appellant on the way is to be disbelieved.

I am also unable to accept the defence plea that due to giddiness or vertigo PW-16 could not have travelled the distance from Namunaghar to Dundaspoint and back by foot. There is no evidence on record that the victim was so sick that she was unable to walk on foot. Moreover, I find nothing unnatural in the conduct of witnesses in going to Dundaspoint on 21.01.1987 to meet exorcist, namely, Saiyyed (after having failed in their attempt on 19.01.1987) when PW-23 was told by PW-7, another exorcist at Namunaghar, that Saiyyed would be available at his residence on that date. Hence, the prosecution case ought not to be disbelieved on the aforesaid counts.

The evidence of PW-16 and PW-23 has also been criticised on the premise that they did not raise any hue and cry when the appellant intercepted them and forcibly committed rape on PW-16 at a deserted place near road. Appreciation of evidence of PW-16 and PW-23 in this regard must be done bearing in mind the fact that the protector in the instant case has turned into a predator. The appellant was the Station House Officer of the local police station and had introduced himself as such to PW-16 & PW-23. The appellant threatened the witnesses with dire consequences and stated that they would be falsely implicated in criminal cases and imprisonment for 12 years. Naturally, the witnesses were overwhelmed by such brute exhortation of the appellant that he would abuse his official position and put them behind bars and accordingly were cowered into silence. Such threats held out by the appellant who was a man in power paralysed PW-23 to inaction so that he was unable to seek assistance when PW-16 was forcibly dragged by the appellant for ravishing her against her will. However, there is evidence on record that the witnesses initially resisted the appellant and two persons had come to the spot. The said persons were however send off by the appellant by speaking something to them in English which PW-16 or PW-23 could not understand.

PW-16 has also deposed that the appellant threatened her with death and pressed her neck when she resisted his lascivious advances for sexual intercourse. Thereafter, she was forcibly dragged to the field and her wearing apparels were torn. She was finally compelled to succumb to the sexual assault of the appellant against her will out of fear and coercion. The above circumstances clearly indicate the ominous control and dominion which the appellant exercised over PW-16 and PW-23 at the time of occurrence by holding out threats of blatant abuse of his official powers. PW-23 had no other alternative but to remain a mute spectator under such circumstances failing which he risked the unenviable fate of being killed or falsely implicated in criminal cases and suffer imprisonment by the appellant who was not less a person than the Station House Officer of the local police station.

It therefore, does not stand in the mouth of the defence to say that no resistance was held out by the victim or her associate at the time when the victim was dragged and raped nearby a deserted place. It is trite law that mere submission due to fear or coercion does not constitute consent to a sexual act.

References in this regard may be made to State of Himachal Pradesh Vs. Mango Ram, . In the report the Apex Court held as follows:

"Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of the relevant circumstances."

Evidence of PW-16 has received corroboration from the deposition of the other witnesses in material particulars. As discussed above, PW-16 and PW-20 have corroborated the version of PW-16 that she along with PW-23 was in the company of the appellant near the place of occurrence at the relevant time. PW-1 in his deposition has supported the prosecution case that the appellant had demanded his scooter from him and had promised to return the same in an hour. He further stated that the scooter was found in front of the house of the appellant on the next morning at 6.00 am and the appellant claimed that the scooter had developed mechanical failure in the night and was repaired by PW-8, Jogan Prasad and brought back. PW-8, Jogan Prasad has supported the version of PW-16 and PW-23 that immediately after the incident they were taken by the appellant on his scooter to Chouldhari Junction and the appellant dropped them at Pratherapur. PW-8 has also corroborated the prosecution case that he had returned with the appellant to the resident of PW-6 and the scooter was repaired and the appellant returned to his residence in the said scooter. PW-9 also spoke that the appellant enquired on 21.01.1987 about the whereabouts of the boy and girl, who had come to Dundaspoint on 19.10.1987. He also stated the appellant asked him to go home and informed him that he would go in his scooter. These corroborative pieces of evidence have rendered reliability and credence to the version of the prosecutrix (PW-16) and engenders the truthfulness of her version. Minor contradictions and/or embellishments in her evidence therefore does not militate against its truthfulness inasmsuch as the gist of her version is not only convincing and reliable but substantially corroborated by other prosecution witnesses. Failure of PW-4, tea stall owner at Namunaghar, to support the prosecution does not erode its credibility inasmuch as he is not a vital but an incidental witnesses and that the evidence of PW-16 & PW-23 is otherwise substantially corroborated by other prosecution witnesses.

It has been argued that the conduct of the victim and PW-23 in not narrating the incident to PW-19 immediately after returning home is more unnatural and renders prosecution case improbable. Sufficient explanation in this regard has been offered by the witness. PW-16 and PW-23 have deposed that they did not inform the incident to PW-19 as they were afraid that the latter may divorce the victim upon hearing the incident and they also apprehended that the appellant may cause harm to them if they disclosed it to others.

Suppression of such a brutal incident affected the victim severely and she remained depressed and wept continuously at her residence. PW-19, on seeing her distressed and pitiable condition, questioned her and finally she mustered courage to narrate the incident to him in the night of 23.01.1987.

It is, therefore, clear that PW-16 was under extreme mental pressure that she may be divorced by her husband if she narrated the incident to him. She was also under the sceptre of threat held out by the appellant that they would be killed if the matter was reported. Hence, initially she kept quiet till she was unable to bear the agony and pain and finally narrated the incident to her husband.

An act of rape on a woman affects not only her body but creates a severe impact on her mind and self-esteem. Hence, the time taken by the PW-16 to narrate the incident to her husband PW-19 cannot be said to be unnatural in the factual matrix of the case. The explanation given by the prosecution witnesses is, therefore, plausible and the delay in lodging of FIR cannot be said to be a ground to throw out the prosecution case as a whole.

It has also been argued that PW-16 narrated the incident at Aberdeen Police Station in Hindi although she claimed to have studied Urdu. The statement of PW-16 under section 164 Cr.P.C. was argued to have been recorded in Bengali. It was also argued that graphic details of the demography of the place of occurrence as narrated in the FIR raises suspicion that the said document is a tutored and manufactured one since PW-16 being a house wife could not have been aware of such minute details.

I am unable to accept such contentions of the defence. There is nothing on record to show that PW-19 did not know Hindi. Evidence of PW-12 to show that FIR was read over and explained to PW-16 and thereafter she signed the same.

I also do not find any unnatural or suspicious circumstance surrounding the registration of the FIR in the instant case.

Upon hearing the incident in the night of 23.01.1987, PW-19 accompanied his wife PW-16 along with their children went to the nearest police station i.e. Aberdeen Police Station where they met the PW-27 (Dy. Superintendent of Police) a superior police officer as they intended to lodge a complaint against the appellant who himself was a Station House Officer of Dundaspoint, Police Station. Naturally, the victim and his family members were hesitant to lodge FIR at the said Dundaspoint Police Station as the appellant was the Incharge of the said Police Station. They contacted the PW-27, a superior police officer and lodged complaint at the nearest police station i.e. Aberdeen Police Station. Zero FIR was lodged and transmitted to the jurisdictional police station. The conduct of PW-16 and PW-19 and the manner of lodging the FIR, therefore, cannot be said to be unnatural in view of the factual matrix that the said witnesses were seeking to implicate the appellant who was the then Station House Officer of the police station within whose territorial jurisdiction the offence had been committed.

I am unable to accept the contention of the defence that forensic evidence militated against the prosecution case. The victim and the appellant were examined after three days of the incident i.e. on 24.01.1987. The belated medical examination in the instant case renders the medical/forensic evidence of little consequence. In view of lapse of time between the incident and the medical examination, absence of injury on the person of the victim or the appellant or absence of sperm/spermatozoa on the body, including private parts, of the victim cannot be a ground to disbelieve the allegation of penetrative sexual assault by the appellant against the will/consent of the victim and more particularly when the latter was coerced into submission out of fear.

Evidence however has come on record that wearing apparels of the victim were torn which probablises force or coercion being used on her at the time of sexual intercourse. Semen stains were also found on her Kamiz. However, absence of semen stains on the Dupatta by itself cannot be a ground to disbelieve the prosecution case as the Dupatta was seized on 25.01.1987 and it is most likely that it may have been washed and/or cleaned in the meantime.

The defence suggestion of service rivalry between PW-27 and PW-28 and the appellant has not been established though cogent evidence. There is also no evidence on record to show that there was any enmity to the victim on the one hand on the appellant on the other hand.

There is also nothing to show that the vital witnesses, namely PW-16, PW-19 and PW-23, were in the control and acting as per the dictates of PW-27, Deputy Superintendent of Police, who is alleged to be inimical to the appellant. They were in no way connected with the police administration nor had any criminal case pending against them.

The appellant was known to PW-23 and had identified himself before PW-16 at the place of occurrence. He was also identified by PW-16 at the time of registration of FIR at Aberdeen Police Station. I find no reason to disbelieve the presence of the appellant at Aberdeen Police Station at that time since it has explained that he was there on account of preparation for Republic Day celebration. In view of the fact that the appellant was known to the witnesses from before and had been identified earlier, holding of T.I. parade in this case was an empty formality.

Defence evidence as adduced in the course of trial does not improbabilise the prosecution case. D.W.-1, D.W.-5 and D.W.-7 were examined to establish that PW-23 was working as a crew in MV Chowra from 16.01.1987 to 20.01.1987 and had drawn his pay on 21.01.1987. Hence, he could not have been accompanied the victim to Namunagar on the relevant date, i.e. 21.01.1987. Such plea suffers a fatal blow as D.W.-1 in his cross-examination admitted that crew members of the ship leave the vessel and go to their homes when they are not on active duty without taking leave from the master or signing off. It is nobody''s case that PW-23 was on active duty on 21.01.1987 at the time when the incident occurred. Therefore, the defence evidence does not cause any dent to the version of PW-23 that he had accompanied the victim to Dundaspoint and Namunagar from her residence at Austinabad on the fateful day and on their way back she was ravished by the appellant. The other defence evidence relates to post occurrence conduct of the victim and PW-19. They have no relevance to the incident of rape which occurred on 21.01.1987 which is the subject matter of the instant case. The defence evidence were therefore rightly rejected by the trial court.

The authorities relied by the learned senior counsel are clearly distinguishable on facts.

In Radhu Vs. State of Madhya Pradesh, the Apex Court had disbelieved the version of the prosecutrix on the ground that her evidence suffered from various contradictions and there was no corroboration of her version. Ratio is clearly distinguishable as in the instant case the evidence of the prosecutrix is not only convincing but is corroborated by other prosecution witnesses.

In Pratap Misra and Others Vs. State of Orissa, , Ram Nivas v. State of Karnataka reported in 1994 SCC Crl. 503 and Joseph Poulo Vs. State of Kerala, , the Apex Court disbelieved the allegation of forcible rape as there were no injuries in the private parts of the victim. In the instant case, the victim was medically examined after three days. That apart, it is the prosecution case that the victim was forced to submit due to threats held out by the appellant, who was the then Station House Officer of the local Police Station, that she would be killed or falsely implicated in criminal case and imprisoned. In such factual backdrop, absence of injuries cannot militate against the truthfulness of the prosecution case of rape where submission of the victim to sexual intercourse was procured by fear and/or coercion.

Consent of the victim or lack of it is to be judged from the relevant considerations as emanating from the facts of the case. The victim and her associate initially resisted the lascivious advances of the appellant till they were cowered into silence by the brutal threats of abuse of official power on the part of the appellant who was a Station House Officer and had threatened them that they would be killed or imprisonment for 12 years'' if they did not yield to his demands. The neck of the victim was pressed and her wearing apparels were torn as she forcibly dragged through the bushes by the appellant. She was finally coerced into helpless submission out of fear due to the sinister threats held out by the appellant. Judged from this angle it cannot be said by any stretch of imagination that the victim was a consenting party to the act of rape or that the incident did not occur as no injuries were detected on her person during her belated medical examination three days after the incident.

In Narender Kumar Vs. State (NCT of Delhi), , Rajesh Patel Vs. State of Jharkhand, and Hem Raj Vs. State of Haryana, the Apex Court held that evidence of a prosecutrix has to be decided on the anvil of probability. In the factual matrix of the case, I find the version of the prosecution not only to be convincing and credible but the same has been corroborated by other independent evidence. The said decisions are, therefore, of no assistance to the appellant in the facts of the instant case.

In view of the aforesaid discussion, the judgment and order of conviction and sentence passed by the learned Sessions Judge, Andaman & Nicobar Islands is upheld.

The appeal is accordingly dismissed.

The bail bonds of the appellant are cancelled.

The appellant is directed to surrender before the Trial Court forthwith and serve out the sentence in accordance with law, failing which the Trial Court shall take immediate steps in accordance with law for execution of such sentence.

In conclusion, I note with distress that there has been an inordinate systemic delay of two and half decades in disposing of the appeal. During these years, the victim agonizingly waited for ''just desert'' to be meted to her tormentor while the latter roamed freely (being on bail) in society. Such state of affairs strike at the very root of the justice delivery system and shake the confidence and trust of the common man in the administration of justice. The victim deserves an institutional apology for such inexcusable delay and I tender the same to her through this judgment.

Copy of the judgment be sent to the lower court at once for necessary action.