HOPNA SOREN vs THE STATE OF ASSAM

Both the appeals are directed against the judgment and order dated 03/02/2017 passed by learned Sessions Judge, Chirang in Sessions (T-2)

Case No. 38 (S) of 2015. By the said judgment, the learned Sessions Judge convicted Nabin Ch. Das (appellant in Crl. Appeal No. 108 of 2017)

and Hopna Soren (appellant in Crl. Appeal (J) No. 26/2017) u/s 376 (1) and sentenced them to undergo rigorous imprisonment for seven years

and fine of Rs. 2,000/- each with default stipulation.

As per prosecution case, when the victim was waiting at Kachikatra Bazar for a public transport, the accused Nabin Das picked up her in his

vehicle on the pretext of giving a lift and took her to the bank of river Sidli, where Nabin Das and Hopna Soren committed rape on her repeatedly

and thereafter, left her on the bank of the river. An FIR was lodged by the victim herself on the next day of the alleged occurrence, on the basis of

which, police registered a case and after usual investigation, submitted charge sheet against both the appellants.

Learned Magistrate took cognizance of the offence on the basis of the said charge-sheet and having found the offence exclusively triable by the

court of sessions, committed the case to the court of sessions.

In course of trial, charge was framed u/s 376 IPC against both the appellants, to which they pleaded not guilty and claimed to be tried.

Prosecution examined nine witnesses, including the doctor and investigating officer and on appreciation of evidence adduced by the prosecution,

learned trial court convicted the appellants u/s 376 IPC and awarded sentence as indicated above.

Being aggrieved, the appellants filed the appeals individually challenging the judgment of their conviction and sentence.

Learned Senior Counsel, Mr. HRA Choudhury for the appellant, Nabin Ch. Das, Mr. SK Agarwal, learned amicus curiae for the appellant

Hopna Suren and the learned Addl. P.P. Mr. D. Das for the State were heard.

Learned senior counsel, Mr. HRA Choudhury, vehemently arguing for acquittal of the appellants contended that the entire prosecution case was

based on the sole testimony of the victim and such testimony of the victim, being the lone witness, having suffered from serious infirmity because of

material contradictions, no conviction could be recorded on such sole testimony of the alleged victim.

Per contra, learned Public Prosecutor, Mr. D. Das submits that the oral evidence of the victim was fully corroborated by the medical evidence,

and therefore, there was no reason for disbelieving the testimony of PW 1, the victim. Although as many as nine witnesses were examined by the

prosecution, learned trial court essentially relying on the testimony of the victim and the evidence of PW 6, being the FSL expert, recorded

conviction of the accused/appellants. Since the entire prosecution case is banking on the sole testimony of the victim, it would be desirable to

scrutinize the evidence of the victim at the outset.

The victim was examined as PW 4. She deposed on oath that on the day of occurrence, she along with her husband came out for casting vote

for parliamentary election and after the election was over, she was waiting for public transport at Kashikotra market for going to Sunderi, to the

house of her elder sister. At that time, a vehicle arrived there, which was driven by the accused/appellant Nabin Das. Having come to know that

she was waiting for public transport for going to Sunderi, the accused/appellant Nabin Das agreed to give her a lift. Accordingly, she boarded the

vehicle on the rear seat, but the accused Nabin Das instead of taking her to Sunderi, moved the vehicle towards the river Barka at Sidli. She was

taken to the house of the accused/appellant Hopna Suren and by the time they reached the house of Hopna Soren, it was dark. She further stated

that both the appellants Nabin Das and Hopna Suren committed rape on her in the house of Hopna Soren. She further stated that they forcibly

committed rape on her repeatedly and after committing rape, both the accused/appellants left the place, leaving her alone there. In the next

morning, two villagers and one member of the house of Hopna Soren took her to the house of one Rasing situated on the other side of the river.

They informed her bother-in-law and she was taken to Sidli police station. She further stated that she could not remember as to what had

happened there or whether she informed the villagers about the occurrence. During cross-examination, it was elicited that after the election was

over, she consumed little more liquor while coming to Kachikatra. She also stated in cross-examination, that she did not notice as to who was

driving the vehicle boarded by her. She also did not notice whether there was any other passenger inside the vehicle. It was further elicited during

cross, that mother, wife and children of Hopna Soren were also residing in the same house with Hopna Soren. She also admitted, that she did not

state the name of accused/appellant Nabin Das before the court, while giving evidence and she only mentioned as the driver of the vehicle. It was

also elicited during cross-examination, that while she was brought to the house of Rasing, there was a meeting in his house, but she did not mention

the name of the accused/appellants as she was not aware of their name.

PW 1 was the sister of the victim. According to her, the victim told her that the accused/appellants Nabin and Hopna committed rape on her.

She also stated that police seized two ""petticoats"" and one Mekhala"" (lungi). This witness also stated in her cross-examination, that the victim

consumed liquor and on the next day also she was under the influence of alcohol and not in a position to speak properly.

PW 5 was the husband of the victim. According to him, the victim came out on the previous day, for going to the house of her elder sister at

Sunderi. On the next morning, when he came to take her back, he came to know that the victim did not reach the house of her brother-in-law on

the previous night. According to him, at about 7 O'' Clock, the son of his brother-in- law received a phone call, that the victim was lying in a

serious condition in a house near Sidli Borkha river. He arrived there and found his wife in the house of an artisan of the Adivashi community, and

on being asked, the victim told, that while she was going to Sunderi, she was taken to the house of Hopna Soren and both the accused/appellants

committed rape on her on that night. This witness also stated that he found the victim drowsy and she was not in a condition to speak properly. He

admitted during cross, that the mother and wife of Hopna Soren were also staying with Hopna Soren.

PW 2 was the scribe, who wrote the FIR and he did not have personal knowledge about the occurrence.

According to PW 7, he only heard about one girl coming to the house of Hopna Soren who was subjected to misbehavior. He further stated

that the parents, wife and children were staying with Hopna in his house.

PW 3 stated that on the next morning he found the victim in the house of a person of Mahali community. He also stated that the accused did

not state the name of Nabin Das before him, rather mentioned as son of Rati Kanta. It is really difficult to understand, that when the victim even did

not know the name of the accused being a stranger, how could she know the name of his father. This witness also did not have personal

knowledge and stated to have come to know about the occurrence from the victim. Thus, except PW 4, the victim, all other witness were

apparently reported witness, who came to know about the occurrence later on and therefore, it is the testimony of the victim, upon which the entire

prosecution case is banking.

Admittedly the statement of the victim recorded u/s 164 CrPC had been proved as Ex- 3. The FIR lodged by the victim had been proved as

Ex-2. In her statement recorded u/s 164 CrPC, the victim stated that the driver of the vehicle took her to the residence of Hopna and wife of

Hopna allowed her to stay for the night in her house. Accordingly, she remained in the house of the accused Hopna. She further stated that about 9

O'' clock at night, the driver of the vehicle came and forcibly committed rape on her. She tried to resist and raised alarm which was heard by the

wife of Hopna, but she did not come forward. She further stated that the driver committed rape on her initially and thereafter, Hopna also

committed rape on her. Both of them committed rape repeatedly. She further stated, that there was quarrel between Hopna and his wife because

of committing rape on her and Hopna called his elder brother at about 3 O'' clock at night and he took her to his house. She also stated that the

elder brother of Hopna called her brother-in-law over phone and later on, her husband and her brother-in-law came and took her to police station,

where she lodged the FIR. In the FIR lodged by herself, the victim, stated that she was taken to the bank of the Sidli river, where both Hopna and

Nabin had committed rape on her repeatedly and left her on the bank of the river. When the evidence of the victim in court as well as her statement

recorded u/s 164 CrPC and her statement in the FIR are placed in juxtaposition, it appears that her testimony with regard to the occurrence was

self-contradictory and mutually destructive. As per the statement made in the FIR, the accused/appellant Nabin took her to the bank of river Sidli,

where both the accused/appellants committed rape on her repeatedly and thereafter, both the accused/appellants left the place leaving her on the

bank of the river; whereas, as per the statement recorded u/s 164 CrPC, she was taken to the house of Hopna, where the wife of Hopna asked

the victim to stay in her house and while she was sleeping, at about 9 pm, Hopna and the driver of the vehicle committed rape on her repeatedly

and in spite of her raising alarm, the wife of Hopna did not come forward. In her evidence in court, she stated that both the accused persons

committed rape on her in the house of Hopna and left the place leaving her in the house of Hopna. It was elicited during her crossexamination, that

she did not know the name of the accused persons till she was taken to police station. The statement of the victim also appears to be self

contradictory with regard to the place of occurrence. Once she stated that she was sexually assaulted by the accused persons on the bank of the

river Sidli and they left her on the bank of the river. Again she stated that she was taken to the house of Hopna, where both the appellants

committed rape on her and after committing rape, both of them left the place.

Evidently the victim consumed excessive alcohol on the previous night and she was not in a position to speak properly even till the next day

due to influence of alcohol. She stated during crossexamination, that she could not remember as to what had happened. She also could not

remember whether she reported the occurrence to the brother of Hopna, who took her along with other villagers to the house of Rasing,

wherefrom she was taken to police station.

It is no doubt true, that in a case of sexual assault, primary importance has to be given to the testimony of the victim of sexual assault and there

is no difficulty in convicting the accused on the basis of the sole testimony of the victim and court should not look for corroboration to the testimony

of a victim of sexual assault, unless, there is compelling circumstances necessitating corroboration from independent source.

In the instant case, evidently the victim was in an inebriated condition, because of consumption of excessive liquor and she was under such

influence of alcohol that she could not even speak properly till the next day, nor could she remember what had happened to her. Evidently she also

did not know the name of the accused persons till she was taken to police station. The admitted facts, that the victim (PW 4) was under extreme

influence of alcohol and she failed to remember as to what had happened to her and that she was even not in a position to speak properly till the

next day, coupled with the self contradictory and mutually destructive statement made by her at different stages, rendered the testimony of the PW

4, the victim, unworthy of credence.

Another aspect of the matter is that admittedly the mother, father, wife and children of accused Hopna were also staying in the house of

Hopna, therefore, the testimony of PW 4, that she was subjecting to rape repeatedly by Hopna and other accused in the residence of Hopna

Soren with the knowledge of the wife of Hopna appears to be absurd and totally improbable. In the above facts and circumstances, the victim in

the instant case cannot be held to be a witness of starling quality, who can be relied upon for basing conviction without corroboration.

It was stated by the PW 4 that two petticoats and one Mekhala (lungi) were seized by police. According to PW 6, the parcel containing three

clothes were examined by him and on examination he found that the clothes contained human semen. Learned Addl. Public Prosecutor referring to

the testimony of PW 6, the FSL expert and the Ext.- 4, the FSL report, submitted that the wearing cloth being Mekhela (lungi) seized by police

containing human semen and giving positive test for human blood lent support to the testimony of the victim. However, referring to the evidence of

PW 4 in crossexamination, learned counsel for the appellants submitted that it was doubtful whether the report, Ex-4 and the testimony of PW 6

related to the clothes seized from the victim, inasmuch as, PW 4 stated, that the alleged clothes, which were shown to her during evidence, were

not the clothes seized from her by police. Learned counsel, Mr. HRA Choudhury placing reliance on a decision of the Apex Court in Sadeswar

Ram Das Hapte, (2006) 10 SCC 1992, submitted that mere finding of semen itself on the clothes cannot conclusively prove the factum of sexual

intercourse by the accused with the victim. The Apex Court in para 12 of the said judgment has held as under :- It is true that the petticoats and the

underwear allegedly worn by the appellant had consumed human semen but that by itself is not sufficient to treat that the appellant had sexual

intercourse with the prosecutrix. That would only cause some suspicion on the conduct of the appellant, but not sufficient to prove the case as

alleged by the prosecution.

Evidently the victim was examined by the doctor on the next day within less than 24 hours of the alleged occurrence. However, the doctor did

not find any sign of recent rape or sexual intercourse. Doctor also did not find any injury on the body of the victim. The doctor (PW 8) opined as

under :-

Examination findings :-

Build - Average

Auxiliary :- Not present.

Breast, arecola and Nipple :- Fully developed.

No injury mark were seen on her body.

Pulse :- 76 minute.

CVS, CNS, Chest and P/A ;- NAD

Teeth :- Upper & Lower ;- 7/7/7/7.

Perenium :- (a) No injury mark are seen, (b) no stain of semen, (c) coarse black coloured pubic hair present.

Perevaginal Examination :- (a) no seminal stain, (b) no mucosa tear or laceration seen, (c) no tenderness, (c) humen was absent and

completely destroyed.

Vaginal swab smear for semen :- suggest no presence of spermatozoa.

Radiological Exam :- (Report of radiologist are enclosed ) :-

Right Elbow - All the epiphysis around right elbow jt are united, Righ eliac crest :- epiphysis of right eliac crest is united. Right knee

jt.:- All the epyphysis of right knee are united.

Opinion :-

(1) from the clinical and radiological examination her age is seem to be 18 years or above,

(2) no injury or violent mark seen on her body or private part.

(3) from physical and laboratory report, it is seen that there is no evidence of rape. However, finding of genital examination is

suggestive of lost of virginity.

Absence of any sign of injury on her private part and also on the body of the victim as well as no sign of recent sexual intercourse though, the

victim was examined within less than 24 hours, casts further doubt on the testimony of the victim that she was subjected to repeated sexual

intercourse forcibly by two persons.

What therefore, crystallizes from the evidence and facts and circumstances of the case is that the victim was under extreme influence of alcohol

and she was not in a position to speak properly even till the next day and was also unable to remember what had happened to her. Above mental

condition of the victim, and her self contradictory and mutually destructive statement with regard to the place of occurrence, the improbability and

absurdity of the facts that she was repeatedly subjected to rape forcibly in the residence of the accused in presence of his wife, children and other

members of the family, coupled with the medical evidence negating the factum of forcible sexual assault, in my considered view, casts serious doubt

on the veracity of the prosecution case sought to be projected through the PW 4, the sole witness of the occurrence.

Although the evidence of PW 6 and Ex-4 transpire that the mark of semen was found in the clothes examined by PW 6, the testimony of PW

4 that the clothes shown to her in court were not the clothes seized from her, casts further doubt on the prosecution story. The fundamental

principal of administration of criminal justice that prosecution has to prove the guilt of the accused beyond reasonable doubt equally applies to the

case of rape too. Evidently the entire prosecution case is banking on the testimony of PW 4, who is not found to be a witness of starling quality to

be relied upon without further corroboration. When the sole testimony of the victim is not found to be fully reliable and inspiring confidence, and the

other facts and circumstances including the medical evidence casts doubt on the veracity of the prosecution story, prosecution can by no stretch of

imagination, be held to have proved the charge of rape against the accused/appellants beyond reasonable doubt and the accused appellants, in the

facts and circumstances of the case, are certainly entitled to the benefit of such doubt.

In view of the reasons stated supra, the appeal stands allowed. The judgment and order dated 03/02/2017 passed by the learned Sessions

Judge Chirang in Sessions (T-2) Case No. 38 (S) of 2015, is hereby set aside.

The appellant, Hopna Suren, who is in custody, shall be released forthwith, if not required in any other case.

The bail bond in respect of the accused Nabin Das stands discharged.

Appreciating the assistance rendered by Mr. S.K. Agarwal, learned Amicus Curiae, I hereby provide that he will entitled to Rs. 7,500/- as

fees, which shall be paid to him by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment.

Send back the LCRs.