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Judgment
Heard Mr. A. Gayan, learned counsel for the appellant and Mr. P. Borthakur, learned Additional Public Prosecutor, for the State respondent No.1. Also heard Mr. S. K. Deuri, learned counsel for the informant/respondent No.2.
This is an appeal filed under Section 374(2) CrPC against the judgment and order dated 21.06.2022 passed by the learned Assistant Sessions Judge, Karbi Anglong, Diphu in Sessions Case No. 36/2021, whereby, the present accused appellant was convicted under Section 376 IPC and sentenced to undergo R.I. for 10 years and also to pay fine of Rs.10,000/- with default stipulation.
The prosecution story in a nutshell is that one Satyananda Bora had lodged and FIR on 04.05.2021 before the Bokajan Police Station alleging inter-alia that on 30.04.2021 at about 1:30 p.m. his daughter (victim) who is aged about 21 years was taken by the accused for a walk and on the same day at night at around 10 p.m. took her in a jungle and raped her. Since then, the victim was not taking food and confined herself in a room. Thereafter, on enquiry she told that she was raped by the accused appellant. With this allegation the FIR was lodged in Bokajan Police Station.
On receipt of the FIR, police registered a case as Bokajan Police Station Case No. 76/2021 under Section 376 IPC, arrested the accused appellant, started the investigation and after completion of investigation submitted the charge sheet against the accused appellant under Section 376 IPC and after conclusion of trial, the learned Assistant Sessions Judge, Karbi Anglong, Diphu had convicted the accused appellant under Section 376 IPC.
In order to bring home the charges leveled against the accused appellant, the prosecution has examined as many as 9(nine) witnesses including the informant and the prosecutrix. The defence took the plea of total denial at the time of recording of statement under Section 313 CrPC and did not adduce any evidence in support of his defence.
It is submitted by Mr. Gayan, learned counsel that the judgment and order passed by the learned Asst. Sessions Judge is bad in law as well as invalid and hence, liable to be set aside.
He further submitted that the entire judgment is based on the solitary evidence of the victim and other independent witnesses or the supporting witnesses are found to be inconsistent in their evidence and thus, the entire conviction is based on the evidence of the prosecutrix. The learned Trial Court had misread and did not appreciate the evidence on record in its true perspective and also failed to consider the fact that PWs-2, 3, 4, 5, 6 and 9 have made some contradictory statements which is not at all believable, but without considering those aspects of the case, the order of conviction has been passed only on the basis of the sole testimony of the prosecutrix.
Mr. Gayan, learned counsel for the appellant further submitted that there are sufficient discrepancies in the statements recorded under Sections 161 and 164 CrPC with the evidence of the victim and thus, the conviction cannot be based on the testimony of the prosecutrix who is not found consistent and thus, her evidence is also not believable to warrant conviction against the present accused appellant.
From the evidence on record it also reveals that the informant, his wife and the victim had also improved their evidences at the time of trial and thus, there are material irregularities in the evidences of the vital witnesses of the prosecution, but the learned Trial Court had committed grave error and mistake while passing the impugned judgment and order on the basis of the testimony of some unreliable witnesses.
He further submitted that from the behavior and the mental state of the victim also reveals that she was normal and there was no resistance from the side of the victim girl, neither she tried to escape, nor raised any hue and cry for help at the time of the occurrence which took place only at a distance of 20-25 feet from the car, which was standing at the place of occurrence. Further medical evidence also does not support the case of the prosecution, but this aspect was also ignored by the learned Asstt. Sessions Judge while passing the order of conviction.
Mr. Gayan, learned counsel further submitted that as per Pw-3, she saw some scratch marks on the arm of the victim, but surprisingly at the time of examination by the doctor, he did not find any injury on the body or the private part of the victim. Thus, evidence of Pw-3 also did not corroborate with the evidence of the doctor who did not find any injury mark on the body of the victim at the time of her examination.
In that context, Mr. Gayan also relied on the decision of the Apex Court in the case of Ranjit Tanti and others Vs. State of Assam reported in 2020 2 GauLR 499, 2019 0 Supreme (Gau) 790 wherein in para 17 it has been held as under:
“17.Thus having regard to the glaring inconsistencies in the evidence of the victim as indicated above, inconclusive medical evidence, coupled with the conduct of the alleged victim and members of her family, after the alleged occurrence and not disclosing about the occurrence for two days until lodging the FIR after two days of the occurrence, we are of the considered opinion that the prosecution evidence is grossly inadequate to bring home the charge against the appellant beyond reasonable doubt. In a criminal case, more so, in a serious offence of the present nature the prosecution must provide greater assurance to the court, that the charge has been proved beyond all reasonable doubt. One cannot be convicted only on mere probability. Having considered the facts and circumstances in its entirety, we are of the view, that the appellants are at least entitled to the benefit of doubt. Accordingly, we set-aside the conviction and sentence of the appellants and set them at liberty. The accused be released forthwith if not wanted in any other case.”
Mr. Gayan, learned counsel also submitted that there is delay in lodging the FIR, but there is no such explanation of delay, nor there is any reasoning as to why the FIR was lodged with a delay of 4/5 days and non explanation is also fatal for the prosecution case. Accordingly, it is submitted that it is not safe to rely on the case of the prosecution, wherein, there is an unexplained delay in lodging the FIR. In that context, also Mr. Gayan, relied on a decision of the Supreme Court in the case of Thulia Kali Vs. State of Tamil Nadu reported in (1972) 3 SCC, wherein in para 12 of the said judgment, it has been held as under:
“12………………………. First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused: The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as names of eye witnesses present at the scene of occurrence. Delay in lodging the first in- formation report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story As a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained……………………………………………….
Mr. Borthakur, learned APP submitted that the learned Asstt. Sessions Judge had passed the order of conviction after proper appreciation of evidence on record and there is no such inconsistency found in the statement made by the victim under Sections 161 and 164 CrPC as well as while adducing her evidence before the Court. Thus, there cannot be any reason to disbelieve the prosecutrix who brought the allegation of rape against the present appellant.
He further submitted that though there is no eye witnesses or no one was present at the time of committing rape by the accused appellant, but the other witnesses also supported the prosecution case to the extent that they were present in the car along with the victim, when the incident had happened at the place where the car was stopped and later on they came to know that the accused committed rape on the victim. However, Mr. Borthakur submitted that there was a delay in lodging the FIR, but from the contents of the FIR, it is seen that the matter was not reported to the parents/informant immediately after the incident by the victim which is the cause of delay in lodging of the FIR by the father of the victim.
Mr. Deuri, learned counsel for the informant/respondent No.2 submitted that the entire evidence of the prosecutrix goes un-rebutted and there is no suggestion to that regard and the veracity of the prosecution case was never questioned by the defence.
He further submitted that before lodging of the FIR, the victim girl tried to commit suicide by consuming poison, but she was recovered and then only she revealed the entire incident to her mother on the basis of which initially they approached the committee of the Church and then as per advice of some of the members, he lodged the FIR and his daughter was also medically examined by the Doctor. Mr. Deuri submitted that after lodging of the FIR and the registration of the case, the victim girl again tried to commit suicide and she already committed suicide and at present she is no more.
Mr. Deuri, learned counsel submitted that there is nothing to disbelieve the statement of the prosectrix, who was also mentally broke down after the incident and these are the reasons for which the FIR had to be lodged with a delay of 4/5 days.
He further submitted that as per the doctor, he did not found any injuries on her person, but that cannot be the only reason to disbelieve the prosecutrix that the accused had committed rape on her. To substantiate his plea he also relied on a decision of the Hon’ble Apex Court in the case of State of T. N. Vs. Ravi @ Nehru reported in (2006) 10 SCC 534 and relied on para 15, 16, 17 and 18 which read as under:
“15.We may also notice the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads thus:
"Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
16.In Parikh's Textbook of Medical Jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
17.In Encyclopedia of Crime and Justice (Vol.4) at page 1356, it is stated: "...even slight penetration is sufficient and emission is unnecessary."
18.It is now well-accepted principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. It is also well accepted principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence. The woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion treating her as if she were an accomplice.”
Mr. Deuri also submitted that it is well settled that the evidence of the prosecutrix is sufficient to convict an accused person, if her evidence is found reliable and trustworthy. In that context also he relied on a decision of the Apex Court in the case of Vijay @ Chinee Vs. State of Madhya Pradesh reported in (2010) 8 SCC 191.
Mr. Deuri also relied another decision of the Apex Court in the case of Ranjit Hazarika Vs. State of Assam reported in (1998) 8 SCC 635 and emphasized on para 5 and 6 which read as under:
“5.The argument of the learned counsel for the appellant that the medical evidence belies that testimony of the prosecutrix and her parents does not impress us. The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private pans. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross-examination. Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross-examination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the opinion of the doctor appears to be based on "no reasons".
6.The evidence of the prosecutrix in this case inspires confidence. Nothing has been suggested by the defence as to why she should not be believed or why she would falsely implicate the appellant. We are unable to agree with the learned counsel for the appellant that in the absence of corroboration of the statement of the prosecutrix by the medical opinion, the conviction of the appellant is bad. The prosecutrix of a sex offence is a victim of a crime and there is no requirement of law which requires that her testimony cannot be accepted unless corroborated. In State of Punjab v. Gurmit Singh, to which one of us (Anand, J.) was a party, while dealing with this aspect observed:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."”
Citing the above referred judgment, it is submitted by Mr. Deuri that merely for not finding any injury on the prosecutrix, the prosecution case cannot be disbelieved and the conviction can be based on the sole testimony of the prosecutrix, if her evidence is found reliable and trustworthy and no other corroboration is required to pass the order of conviction.
Further, the absence of injury mark on the private part of the prosecutrix also cannot be the sole ground for acquittal of the accused appellant, if the prosecution witnesses can establish against the accused appellant and the evidence of the prosecutrix remained consistent.
Mr. Deuri, learned counsel accordingly submitted that there is no reason to interfere with the judgment and order passed by the learned Asstt. Sessions, Judge, Karbi Anglong, Diphu and he prayed for dismissal of the appeal.
Heard the submissions made by the learned counsel for the parties and I have also perused the case record and the judgment passed by the learned Asstt. Sessions, Judge, Karbi Anglong, Diphu.
It is the case of the prosecution that the accused appellant committed rape on the victim/prosecutrix on the night of the incident and for which she even confined herself in a room and also tried to commit suicide by consuming poison.
It is a fact that there is no eye witness to the prosecution case and it is the prosecutrix on the basis of whose evidence, the order of conviction was passed by the learned Trial Court.
So before proceeding further, let us scrutinize the evidence on record.
Pw-1 is the victim/prosecutrix of this case and she deposed that the incident of rape took place on 30.04.2021 at around 9 p.m. to 9:30 p.m. near a temple of Budhia Gaon. She deposed that she addressed the accused as uncle and on the day of the incident, she attended the birthday ceremony of the son of the accused along with her cousin sister namely, one Chayamoni Borah. In the birthday ceremony she met the accused and they accompanied the accused for a drive in his new car, which was purchased a few days prior to the incident. Her mother also permitted her to go with the accused for a drive and accordingly, she along with her cousin sister Chayamoni and daughter of the accused who was about 12/13 years at the time of the incident and they were also accompanied by the wife of the driver. They all visited to the house of the sister of the accused in the said village and then they left home at about 1:30 p.m., and reached the house of the sister of the accused in the said village. Thereafter, having early dinner they all except the wife of the driver left for home in the new car of the accused at about 08:00 p.m. The wife of the driver stayed back in the house of her mother, which is situated in the same village.
On the way, they halted near Diloujan Hospital as the daughter of the accused wanted for some chips. The accused brought chips for his daughter and then they again proceeded towards home. The driver of the car did not take the road to their village and instead they went ahead and took another road to No.1 Diloujan village. The driver then stopped the car near a shop and accused then called the owner of the shop to open it which was closed at that time and he purchased 3/4 bottles of alcohol including beer. After buying the alcohol the car proceed further and stopped inside a jungle area by the side of the road. The accused then told her and her cousin sister that he would have the alcohol there in the jungle area as he is not allowed to drink at home. In the meantime, the driver left for somewhere and the accused told her that the driver had gone to bring meat. The daughter of the accused was sitting in the front seat of the car along with the driver and she along with her cousin sister along with the accused were sitting in the rear seat. Thereafter, her cousin sister also went to sit in the front seat of the car. The accused then asked her cousin to play music in a loud volume and accordingly her cousin played music in a loud volume in the car music system. At that time, she received a phone call from her father and as the music was playing loud in the car she went of the car to attend the call. As she went out of the car and was attending the call of my father, the accused followed her and after locking the door of the car, shouted loudly that it would take another one hour to reach home. Thereafter, suddenly the accused snatched her mobile phone, disconnected the call and then grab her from behind. She immediately shouted, but no one heard her shouting as the music was played loudly inside the car which was also locked. He then gagged her mouth by one hand and removed her jeans pant and panty and put down her jeans pant in the knee position with the other hand. He then had sexual intercourse with her from behind in standing position. As he gagged her mouth with one hand, she could not even shout for help.
The accused was a CRPF personnel and he is tall and strong built person and hence she could not move when he grabbed her from behind. After some time, he threw her phone on the ground and ran towards his car which was parked about 20/30 feet away. The area was completely dark and there was no dwelling house nearby. After reaching the car the accused told his daughter in a loud voice to call her saying that she might be busy with talking in mobile phone. She was shocked and started weeping after the incident and her cousin Chayamoni saw her weeping and asked her as to what had happened, but they did not see anything. Thereafter, as the driver drove the car back to home, the accused who was seated in the rear seat along with her and her cousin, told her in low voice not to say anything about the incident to anyone and also told her that if she wanted money, he would pay the same. After a drive of about 10 minutes, they reached home, she entered her house weeping and her mother also saw her weeping. Her mother came to her room and asked her as to why she was weeping, however she did not say anything. Her mother had the impression that she might have stomach pain and she did not ask her more. On the next day also she could not stop weeping and she did not even take food the entire day and passed two days without taking proper food.
On 03.05.2021 her mother had gone to market and her father was sleeping in bedroom and she was in her room thinking about the incident and she thought that if everyone comes to know about the incident than the relationship between the two house would become bad as the mother of the victim used to treat the accused as her son though she called the accused as uncle. That apart, the family relationship of the victim and the accused family was also cordial and good. As such, she was not able to say anything about the incident and hence, finding no other alternative she had consumed phenyl and lost her sense. Thereafter her aunt, namely, Nipa Bora came to her home and saw her in senseless condition and thereafter, it was told that she was taken to the hospital by her parents in the car of the accused persons. In the hospital also she was vomiting blood. Thereafter, the accused fled away from the hospital seeing her condition. On that day evening her father enquired as to why she had consumed phenyl and then only she told her father and mother that the accused had committed rape on her on 30.04.2021 and for that reason only she consumed phenyl.
Her father then called the Pastor of the Church and the accused also attended wherein she narrated the incident. Then the Pastor and few workers of the Church call the accused and confronted him about the matter, and then the accused confessed that he had committed rape on her. The wife of the accused immediately slapped him, who was also present at that time and thereafter, the Pastor suggested her father to report the matter before the Gaon Bura and subsequently on the same day the matter was informed to Gaon Bura by her father. Thereafter, a village meeting was also convened by her father where the accused and his family members attended the meeting. In the village meeting the accused again denied of raping the victim and the two sisters of the accused also abused her in the said meeting. After the said meeting also she kept silent for 3 days and thereafter, her father lodged the FIR in Bokajan Police Station. Police recorded her statement and also took her for medical examination and thereafter, she was also produced before the Magistrate for recording her statement. During recording of her statement, the victim also exhibited her statement made before the Magistrate as Ext. 1.
From her cross evidence it reveals that the place of occurrence is only about 10 minutes ride from her house and after the incident also she was seating in the rear seat in between the accused and her cousin sister. She denied when suggested that her mother did not saw her weeping when she entered into the house and she further stated that she could not remember as to whether she stated before the Magistrate that she had consumed phenyl after the village meeting.
Pw-2, the informant and the father of the victim also narrated the same story corroborating the statement made by the victim and he deposed that on the day of incident, his daughter went to attend birthday party of the son of the accused and he further deposed that the accused also dropped his daughter after the incident in the car which he purchased newly. He also described as to how prior to the incident they attended the birthday party and also had early dinner in the house of the sister of the accused corroborating the evidence of the Pw-1, the victim. He also deposed that after reaching home his daughter did not speak anything to him or his wife and she immediately went to her room. After the said incident on 03.05.2021 at about 04:30 p.m., when he was tilting his land by using tractor, his wife, i.e., the mother of the victim also went to market, suddenly one Ranjan, aged about 7 years, son of the younger brother of the informant came running saying that his daughter has consumed phenyl. Coming to know about the incident, they immediately took her to community medical center in the car of the accused and wife of the accused also accompanied them to the hospital. He returned home by his scooty when the accused called him and stated that he came from the hospital as he is not feeling well. Before he reached the hospital, his daughter regain sense and reveal everything about the incident to his wife and she also narrated the incident as to how accused committed rape on her on 30.04.2021. Thereafter, he informed the sisters of the accused and also informed one of his relative on the next day who suggested them to inform the Pastor of the Church and also the family members of the accused. He narrated the same incident as to how the meeting was convened and the accused confessed hi guilt before the Pastor of the Church. Thereafter, he also asked the accused to give written undertaking that he would not repeat such kind of incident in future, but the Pastor of the Church stated that he cannot insist anyone for giving anything in writing. Thereafter, he arrived and informed the Gaon Bura and a village meeting was convened accordingly. In the meeting also his daughter told the villagers about the whole incident, but the sisters of the accused who were present in the meeting had abused his daughter with obscene language and humiliated her in front of the villagers. Thereafter, police was informed and the accused was taken into police station and he also went to the police station and lodged the First Information Report (FIR) and his daughter was also taken for medical examination and recording of her statement.
In his cross examination he stated that the First Information Report (FIR) was written by a script and it was read over to him. He further denied the suggestion that the accused did not admitted before the Pastor that he raped his daughter.
Pw-3 is the mother of the victim and supporting the statement of the victim and her husband/Pw-2 she also narrated the same story and described as to how the incident had happened and how her daughter tried to commit suicide by consuming phenyl etc., before the Court at the time of her deposition. As per her also after the incident when the victim was dropped in their house, she immediately went to her room and started weeping and even after her enquiry, she did not disclose anything to her initially. But thereafter, on 03.05.2021 when her daughter consumed poison, she was immediately admitted in the hospital and in the hospital she disclosed about the incident as to how the entire incident of rape was committed by the accused appellant. From her evidence it also reveals that she also narrated the same story in support of the prosecution case and as per her also at the time when accused admitted his guilt, his wife was also present and slapped the accused. But subsequently, he denied the allegation and her daughter was also humiliated by the two sisters of the accused in the village meeting.
Her husband accordingly lodged the First Information Report (FIR) and her daughter was also taken for medical examination and statement of her daughter was accordingly recorded.
In her cross examination it reveals that Nipa Bora and aunt of the victim stay in the same campus who first saw the victim. However, she submitted that she had seen some scratch mark on the arm of her daughter and she did not hear any noise as the place of occurrence is far away and the sound cannot be heard from the place of occurrence wherein the alleged incident had happened.
Pw-4 is the cousin sister of the victim, who also accompanied with the victim to the birthday party and she also deposed that on that day at about 1 p.m., the accused took them along with the prosecutrix to Barpathar Langtha in the house of the sister of the accused and they were accompanied by the driver and his wife and daughter. She deposed that at 8 p.m., they left for Barpathar for their house, but when they were about to reach their home the driver did not take the left turn and instead the car went straight and stopped near a Dhaba where she along with the daughter of the accused got down from the car and the driver brought 5 packets of dry noodles. Thereafter, the driver did not drove the car towards their home and instead it was further went straight and thereafter, the car stopped near the shop of one Gulap. The driver got down from the car and brought alcohol from the shop where the accused also got down with the driver and he also brought some alcohol. The accused also brought some chocolate for his daughter and thereafter, the car was drove to an unknown place. After sometime it stopped in an isolated place, where the accused started having alcohol in the car itself and then the Pw-4 along with the prosecutrix got down from the car. The driver in the meantime went to bring meat and the accused handed over his phone to his daughter and asked to play loud music. He also asked her to switch off the light inside the car and then he locked the door of the car from outside. She then saw from inside the car at a little far away that the accused had caught hold the prosecutrix. After half an hour the accused returned to the car and took the seat in the rear and the driver returned to the car. Thereafter, the accused told her to call the prosecutrix, who was a little far away from the car and thereafter, the prosecutrix returned back to the car. She saw that the prosecutrix weeping suddenly and when she asked her, if she is having any stomach pain, she did not reply anything. Then the car dropped them in their house after five minutes. On reaching home also the prosecutrix entered home weeping and the mother of the victim also asked her as to what had happened, but she did not reply. On 03.05.2021 she came to know that the victim consumed phenyl and thereafter, she was taken to the hospital for treatment in the car of the accused. When she regains sense, she told everything as to how the accused had destroyed her life and accused had done bad work with her. Thereafter the First Information Report (FIR) was lodged and the accused was arrested by police. Police also produced her along with the prosecutrix and she also gave a statement before the Magistrate. Ext. 5 is the statement made by her before the Magistrate.
In her cross examination, she stated that the accused did not talk with the prosecutrix after the alleged incident.
Pw-5, the shop owner also deposed that at 07:30 to 08:00 p.m., the accused visted to his shop which is situated in the road side of Dilowjan, Balipathar Gaon and the accused was also accompanied with two children. He purchased chocolate and biscuits and other items from his shop. Subsequently, he came to know that the daughter of the informant has been raped by the accused person.
Pw-6 is one villager who also stated that he heard about the incident that the accused misbehaved with the daughter of the informant.
Pw-7 is the driver of the car who was driving the car on the day of incident and he deposed that initially they visited to the house of the brother in law of the accused where they had their diner and then he dropped his wife at her mother’s house at Gelabeel at Borpathar at around 06:30 p.m., and thereafter, the accused, his daughter, the victim girl and her cousin had left Borpathar for Diloujan Bokajan. Just before reaching home, he stopped the car before the shop of Gulap wherefrom the accused brought some biscuits and other edible from the shop. Thereafter, he stopped the car again near to the house of one of his mami and he went to bring broiler chicken when the other persons were inside the car. After some time he returned back and they returned home. After 2/3 days the informant called him over phone and told that the accused had raped his daughter on the day when they were returning from Borpathar.
From his cross examination, it is seen that the house of his mami is also 50/60 meters far from the place where the car was stopped. He further submitted that when he returned to the car, the victim was not inside the car and it was told by her cousin that the victim girl is talking to someone over phone.
Pw-8 is the Doctor, who medically examined the victim on 05.05.2021 at Diphu Medical College and Hospital, who was discharging his duty as Assistant Professor, Department of Forensic Medicine. The doctor also recorded the history of the incident as told by the victim at the time of her examination. After examining the victim he found no evidence of struggle and stain on wearing garments not detected and accordingly, it is opined that there is no evidence of recent sexual intercourse detected on her person and there is no injury detected on her person at the time of her examination.
Pw-9 is the Investigating Officer who investigated the case after being endorsed to him by the O/C of Bokajan P.S. Accordingly, he recorded the statement of the informant and his wife who were present in the police station, seized the medical prescription of the victim and thereafter, he visited the house of the informant recorded the statement of the victim, accused was apprehended from his house and sent him to police station. Thereafter, he visited the place of occurrence with the victim girl and prepared a sketch map and send the victim for medical examination. The statement of the victim was also recorded under Section 164 Code of Criminal Procedure and statement of another witness, namely, Sayamoni, cousin sister of the victim was also recorded by the Magistrate under Section 164 Code of Criminal Procedure. On completion of the investigation and after collecting the medical report etc., the charge sheet was submitted against the accused under Section 376 Indian Penal Code vide C.S. No. 59/2021 dated 30.06.2021.
From his cross examination it is seen that the victim did not state before him that she entered in the house weeping and her mother also saw weeping and the informant did not state before him that the accused in presence of Pastor of the Church admitted his guilt that he raped the victim girl. From his cross examination it also seen that he did not seized any wearing apparel of the victim during investigation.
So from the discussion of the PWs, it is seen that admittedly there is no eye witness to the incident and it is the prosecutrix who narrated the story as to how the accused committed rape on her. But it is a fact that Pw-4 also accompanied the victim on the day of the incident to the said birthday party and they also had dinner in the house of the sister of the accused. From her evidence also reveals that at the time of incident she was inside the car and the accused also asked his daughter to play loud music in the car and the car was also locked from outside which completely corroborates the evidence of the prosecutrix. That apart this witness also saw the accused while holding hand of her cousin sister, i.e., the prosecutrix. But, she did not see the occurrence of rape on her sister. But her further evidence also corroborates the evidence of the PW-1 that when she entered into the car the victim was silently weeping inside the car and thereafter, when they were dropped in their house at that time also the victim went straight into her room weeping and she did not reply to her mother, when she asked as to what had happened to her.
Thus, this evidence of Pw-4 completely corroborates the Pw-1 and the entire circumstances under which the incident had happened. Further another person, i.e., the driver of the car who was driving the vehicle of the accused at the relevant time of incident also narrated the same story corroborating that the car was initially stopped in one place near the shop of one Gulap wherefrom the accused bought some biscuits and other edibles and thereafter, the car again stopped in another place in a lonely place and when he also went out to purchase meat. This evidence of the driver i.e., PW-5 corroborates and supports the case of the prosecution to the extent that on the day of incident the prosecutrix along with the daughter of the accused as well as cousin sister of the victim was inside the car in his new vehicle. Further, it is also seen that when he returned to the vehicle she did not find the victim inside the car and thereafter, she entered into the car and sat in the rear seat. The Pw-2 and 3, the informant/father and mother of the victim respectively also supports the entire prosecution case to the extent that they saw her daughter coming inside the house weeping and she did not even take proper food for 2/3 days. That apart their daughter also consumed phenyl and in the hospital only she disclosed the entire incident and explained as to how she was raped by the accused.
So, there is nothing to disbelieve in the evidence of PWs- 1, 2, 3, 4 and 5 and there is no material contradictions found in their evidence to disbelieve them. That apart the shop owner namely one Gulap also adduced his evidence as PW-5 which also supports the case of the prosecution to the extent that in the night of occurrence at about 7.30 to 8:00 p.m., the accused came to his shop and purchased some biscuit and other edibles. Thus, from the entire circumstantial evidence as narrated by the other PWs, it is seen that on the day of incident initially they attended a birthday party and thereafter having early dinner in the house of sister of the accused they returned towards their home when that unfortunate incident had happened and the victim was subjected to sexual penetrative assault by the accused appellant.
Further from the submission made by the learned counsel for the informant it is also reveal that after the institution of the case and recording of evidence of the victim, she again tried to commit suicide and at present she is no more.
On visualization of the entire circumstances it is seen that the victim was girl undergone such a mental trauma that she tried to end her life by consuming phenyl as she was not even in a position to tell anything about the incident even to her parents, who had cordial relationship with the accused and she also used the address the accused as uncle and her mother also used to treat the accused as her son. So she had undergone the mental trauma and for which she was keeping silent for about 3/4 days and finally had to take such step to end her life by consuming phenyl.
The question also arises as to why she would bring such nasty allegation against the accused when the family of the accused and the family of the informant had maintain a cordial relationship and there is no evidence that out of any previous grudge or enmity she brought such nasty allegation against the accused appellant, whom she used to address as uncle. Further from the situation and circumstances also it is see that after the alleged incident, the girl was totally silent for 2/3 days and she was not even taking food properly and in such a mental trauma she even took the steps to end her life by consuming phenyl. She never had any courage to explain everything to her parents as to what had happened to her because of the relationship of her family members with the accused appellant. During argument, it is further reported that after making her deposition at the time of trial of this case, she again consumed poison and at present she is no more.
Coming to the medical evidence of the doctor it is seen that at the time of examination he did not find any mark of violence or sing of recent sexual intercourse at the time of examining the victim. Further he also recorded the entire story as narrated by the victim when she was brought for medical examination. But from the evidence of the prosecutrix it is seen that the accused had committed rape on her in a standing position from her behind. Thus, from the evidence of the prosecutrix it is seen that there is no allegation of penetration through her vagina but it was alleged that he committed rape on her from backside i.e., through anus. The evidence of the prosecutrix to that regard is:
“.............Thereafter, suddenly, the accused snatched the phone from my hand and disconnected the call. He then, grabbed me from behind. I immediately shouted but no one heard me shouting as the music was being played loudly inside the car, which was locked. He them grabbed my mouth with one of his hands and removed my jeans and panty till the knee position with the other hand. He then had sexual intercourse with me from behind in standing position. I could not shout for help as he had gagged my mouth with one hand…………………………………………………….”
So from her evidence it is seen also seen that she was not even in a position to shout as he was grabbing her mouth by one hand and committed the offence in a standing position from her behind. She also explained that the accused is a CRPF personnel with strong built person for which she could not even remove his hand while he was grabbing her mouth by one hand.
So, merely because the medical evidence is silent about the injury sustained by the victim, the entire prosecution case cannot be disbelieved, which clearly reveals that the accused had an anal sex and raped the victim from her behind.
As relied by the learned counsel for the informant/respondent in the case of Rabi @ Nehru (supra) it is held by the Apex Court that to constitute an offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Even initial penetration of penis within the labia majora or the vulva or pudenda, with or without emission of semen, or even an attempt at penetration is quite sufficient for the purpose of law. It is also further held that rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by a medical officer treating the victim. That apart in the instant case it is seen that there was allegation of penetration basically through her anus and there was no penetration through her vaginal entrance. So probability of not finding any sign of rape is very much possible in such a situation.
The Hon’ble Apex Court in the case of Dilip Kumar @ Dalli Vs. State of Uttarakhand in Criminal Appeal No.1005 of 2023 has expressed the view that bodily injuries are not necessary to sexual assault and neither it is important to raise hue and cry and also held that “it is a common myth that sexual assault must leave injuries”. In para 8 and 9 of the said judgment the Apex Court has held as under:
“8.We must caution that bodily injuries are not necessary to prove sexual assault1 and neither it is important to raise a hue or cry. In this regard, the Supreme Court’s Handbook on Gender stereotypes(2023) provides as under:
“Different people react differently to traumatic events. For example, the death of a parent may cause one person to cry publicly whereas another person in a similar situation may not exhibit any emotion in public. Similarly, a woman’s reaction to being sexually assaulted or raped by a man may vary based on her individual characteristics. There is no “correct” or “appropriate” way in which a survivor or victim behaves.”
9.It is a common myth that sexual assault must leave injuries. Victims respond to trauma in varied ways, influenced by factors such as fear, shock, social stigma or feelings of helplessness. It is neither realistic nor just to expect a uniform reaction. The stigma associated with sexual assault often creates significant barriers for women, making it difficult for them to disclose the incident to others. In the present case however, the prosecutrix herself had clearly indicated that she was not forcibly taken away by the appellant. The above evidence indicates that the ingredients for sustaining a charge under Section 366-A of the IPC of abductions with the intent to illicit intercourse of the prosecutrix, was totally absent in the present case. Therefore, the conviction of the appellant under Section 366-A IPC cannot be 1 State of UP v. Chotey Lal (2011) 2 SCC 550; BC Deva v State of Karnataka (2007) 12 SCC sustained.”
The Hon’ble Apex Court in the case of Moti Lal (supra) 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 police. 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 hesitation in accepting her evidence. This position was highlighted in State of Maharashtra v. Chandraprakash kewalchand Jain (1990 91) scc 550).”
In 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.
Further from the statement of the accused recorded under Section 313 CrPC, it is seen that he took the plea of innocence, however, the presence of the victim in his car and supported the prosecution case to the extent in regards to buying of biscuits and edibles as well as stopping the car in two places to buy chicken and alcohol etc., are admitted by the accused appellant while recording his statement under Section 313 CrPC. However, he took a new plea that the informant side was jealous of him as he is financially sound person, who is also working as a CRPF personnel and also with a view to encroach his land, they instituted a false case against him and that apart they were also jealous when he bought a new car. But surprisingly, he did not adduce any evidence to substantiate this plea that out of jealousy only, they lodged the FIR, rather, from the evidence of the prosecution, it is seen that they had a very cordial relationship and the prosecutrix along with her cousin sister attended the birthday party and that unfortunate incident had happened with her.
So from the entire discussion made above, it is seen that the prosecution could establish that the accused appellant had committed rape on the victim on the night of the incident and he had anal sex with her and for that incident victim also tried to end her life by consuming phenyl.
The learned Sessions Judge had made a detailed discussion while imposing sentence on the accused and also considered all the aggravating and mitigating circumstances at the time of passing the order on conviction and imposing sentence on the accused appellant.
In view of above and considering all the facts and circumstances of the case, this Court is of the opinion that sentenced imposed upon the accused appellant by the learned Session Judge is justified and hence, no interference is required in the judgment and order dated 21.06.2022 passed by the Court of learned Assistant Sessions Judge, in Sessions Case No. 36/2021 convicting and sentencing the accused appellant under Section 376 IPC.
Accordingly, this appeal being devoid of any merit stands dismissed.
Send back the TCR forthwith.
JUDGE
Comparing Assistant
Digitally signed by Rupam Das Date: 2026.08.28 12:35:29 Rupam Das +05'30'