Md. Mahboob @ Raffu vs The State Of Bihar

Heard learned counsel for the appellant and learned Additional Public Prosecutor appearing on behalf of the State.

The present appeal has been preferred against the judgment of conviction dated 28.09.2018 and order of sentence dated 05.10.2018 passed by the learned 7th Additional District and Sessions Judge, Bhagalpur in Sessions Trial No. 158 of 2017 arising out of Trial No. 09 of 2017 (Shahkund P.S. Case No. 161 of 2016), whereby the sole appellant has been convicted for the offence punishable under Section 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-and, in default of payment of fine, to undergo simple imprisonment for three months.

The prosecution case, in brief, is that on 04.10.2016 at about 11:30 P.M., the informant was sleeping with her child at her maternal house while her husband had gone to see a dance programme in the village. It is alleged that the appellant entered the room after breaking the bamboo gate and, after putting a cloth in her mouth, committed rape upon her. It is further alleged that, in the meantime, her husband returned and, on seeing the appellant, brought a lock and locked the room, whereafter the appellant crossed the wall and fled towards the house of her aunt, namely Rebuna. It is alleged that after hue and cry, several persons assembled and the appellant threatened the informant to kill her. On the basis of the written report of the informant, Shahkund P.S. Case No. 161 of 2016 was instituted for the offences under Sections 376, 504 and 506/34 of the Indian Penal Code.

After investigation, charge-sheet was submitted against three accused persons under Section 376 of the Indian Penal Code. Cognizance, however, was taken against the appellant, namely Md. Mahboob @ Raffu, under Section 376 of the Indian Penal Code and the case was committed to the Court of Sessions. Charge was thereafter framed against the appellant under Section 376 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried.

In order to establish the charge, the prosecution examined seven witnesses. P.W. 1, namely Md. Sohrab, is the husband of the prosecutrix, who was declared hostile and did not support the prosecution case regarding the alleged rape. P.W. 2, namely Rabina Khatun, is the aunt of the prosecutrix, who was also declared hostile and did not support the prosecution case. P.W. 3 is the prosecutrix herself, who narrated the alleged occurrence and attributed the commission of rape to the appellant. P.W. 4, namely Husna Ara, stated about having heard regarding the occurrence but did not witness the alleged incident. P.W. 5, namely Dr. Alpana Mishra, is the doctor who examined the prosecutrix and proved the medical report. P.W. 6, namely Dayanand Singh, is the Investigating Officer, who deposed regarding the investigation, inspection of the place of occurrence and the steps taken during investigation. P.W. 7, namely Israt @ Nisrat Praveen, stated that she had not seen the occurrence and had only heard about the entry of the appellant into the house. The prosecution also exhibited the following documents:

On the other hand, the defence has also adduced two defence witnesses, i.e. D.W. 1, namely Md. Zahur, and D.W. 2, namely Md. Sayeed. D.W. 1, Md. Zahur, has stated that the appellant has been falsely implicated due to a land dispute between the parties and that the land adjacent to the house of the prosecutrix had been purchased by the father of the appellant, which was the reason for the dispute. D.W. 2, Md. Sayeed, has stated that on the date of occurrence, after hearing the cry and seeing the gathering, he went there and came to know about the dispute relating to the purchase of land and has specifically stated that he had neither seen nor heard about the alleged occurrence of rape.

After hearing the parties and upon consideration of the evidence available on record, the learned Trial Court convicted the appellant and sentenced him as indicated hereinabove.

Learned counsel for the appellant submits that the prosecution has failed to establish the charge beyond reasonable doubt. It is submitted that P.W. 1, the husband of the prosecutrix, and P.W. 2, her aunt, have been declared hostile and have not supported the prosecution case. It is further submitted that the prosecutrix has given materially inconsistent versions regarding the conduct of her husband immediately after the alleged occurrence. It is also submitted that there is no independent eyewitness to the alleged occurrence and P.Ws. 4 and 7 have admittedly not witnessed the incident. Learned counsel further submits that the medical examination of the prosecutrix did not disclose any physical injury and no spermatozoa was detected. It is also submitted that the Investigating Officer admitted that no incriminating material or clothes were seized from the place of occurrence and that even the alleged bamboo gate, lock, bed or other articles connected with the occurrence were not seized. It is, therefore, submitted that the prosecution case is doubtful and the appellant deserves to be acquitted.

Learned Additional Public Prosecutor appearing for the State, on the other hand, has opposed the appeal. It is submitted that the prosecutrix has consistently alleged commission of rape by the appellant in her fard beyan, statement under Section 164 of the Code of Criminal Procedure and deposition before the trial court. It is further submitted that the evidence of the prosecutrix is supported by the surrounding circumstances and that the absence of injuries or spermatozoa cannot by itself discredit an allegation of rape. It is, therefore, submitted that the learned trial court has rightly convicted the appellant.

This Court has considered the rival submissions and perused the materials available on record. It is true that the testimony of the prosecutrix in a case of sexual assault is required to be given due weight and a conviction can be based upon her testimony if the same is found to be wholly reliable and inspires confidence. However, in the present case, the testimony of the prosecutrix requires careful scrutiny in view of the material discrepancies emerging from her successive statements and the other evidence available on record.

The prosecutrix has supported the allegation of rape against the appellant. However, there are material variations in her version regarding the events immediately following the alleged occurrence. In the written report, she stated that after seeing the occurrence, her husband brought a lock, locked the room and thereafter she raised alarm, whereupon the appellant crossed the wall and fled towards the house of her aunt. In her statement under Section 164 of the Code of Criminal Procedure, the sequence regarding her running away, fetching the lock and locking the gate is not stated in the same manner. In her deposition before the learned Trial Court also, the sequence of events has been stated differently. These variations assume significance because the conduct of the husband and the manner in which the appellant allegedly escaped constitute an important part of the prosecution story.

More importantly, P.W. 1, namely Md. Sohrab, the husband of the prosecutrix, has not supported the allegation that he saw the appellant committing rape upon his wife. He was declared hostile. His evidence, at best, establishes that there was hue and cry and that persons had gathered. Similarly, P.W. 2, namely Rabina Khatun, the aunt of the prosecutrix, was also declared hostile and did not support the alleged occurrence. She specifically did not state that she had seen the appellant fleeing from her house or that she had witnessed any part of the occurrence.

P.W. 4, namely Husna Ara, is also not an eyewitness to the alleged occurrence and has merely stated about hearing that an incident had taken place. P.W. 7, namely Israt @ Nisrat Praveen, has likewise stated that she had not seen the occurrence and had only heard about the entry of the appellant into the house. Thus, none of these witnesses provides direct corroboration to the allegation of rape.

The medical evidence also requires consideration. P.W. 5, namely Dr. Alpana Mishra, who examined the prosecutrix, found no physical injury on her body, including the private parts. The medical examination report further records that spermatozoa was not found and there was no evidence of recent sexual intercourse. It is correct that absence of injuries or absence of spermatozoa, considered in isolation, cannot be treated as conclusive against an allegation of rape. However, in the facts of the present case, where the ocular evidence itself suffers from material infirmities and there is no independent eyewitness or other convincing corroborative evidence, the medical evidence assumes significance and adds to the doubt surrounding the prosecution version.

The investigation conducted in the case also does not provide the necessary corroboration. P.W. 6, the Investigating Officer, has admitted that no incriminating material was found at the place of occurrence. No clothes allegedly containing stains were seized. The alleged bamboo gate, the lock, the bed upon which the prosecutrix was allegedly sleeping and other articles connected with the alleged occurrence were also not seized. The Investigating Officer further admitted that no outer sign of injury was found on the body of the prosecutrix and that no sketch map of the place of occurrence was prepared. These omissions, when considered cumulatively with the other evidence, create a serious doubt regarding the prosecution case.

The defence has also brought on record evidence suggesting the existence of a dispute relating to land between the parties. D.W. 1 Md. Zahur has stated about the land dispute and the reason for which the appellant has allegedly been implicated. D.W. 2 Md. Sayeed has also stated regarding the dispute over the land adjoining the house of the prosecutrix. Though the existence of a land dispute, by itself, cannot be treated as proof of false implication, the same becomes a relevant circumstance when the prosecution evidence otherwise suffers from material infirmities.

This Court is conscious of the settled principle that the evidence of the prosecutrix, if found trustworthy and reliable, does not require corroboration as a matter of law. At the same time, the Court is required to examine her evidence with care where the circumstances appearing on record create a reasonable doubt about the prosecution version. In the present case, the material inconsistencies in the successive versions of the prosecutrix, the hostile testimony of P.Ws. 1 and 2, the hearsay nature of the evidence of the other supporting witnesses, the medical evidence not supporting recent sexual intercourse, and the absence of seizure of any incriminating material from the place of occurrence, when considered cumulatively, make it unsafe to sustain the conviction solely on the testimony of the prosecutrix.

The learned trial court, while convicting the appellant, principally relied upon the consistency of the prosecutrix regarding the allegation of rape. However, the material discrepancies noticed above and the lack of corroborative circumstances have not been satisfactorily dealt with. The prosecution is required to establish the guilt of the accused beyond reasonable doubt. The evidence on record, in the considered opinion of this Court, does not cross that threshold. The appellant is, therefore, entitled to the benefit of doubt.

Accordingly, the judgment of conviction dated 28.09.2018 and order of sentence dated 05.10.2018 passed by the learned 7th Additional District and Sessions Judge, Bhagalpur in Sessions Trial No. 158 of 2017 arising out of Trial No. 09 of 2017 and Shahkund P.S. Case No. 161 of 2016 are hereby set aside.

The appellant, above named, is hereby acquitted of the charge under Section 376 of the Indian Penal Code by giving him the benefit of doubt and is discharged from the liabilities of his bail bond in connection with this case.

Accordingly, this appeal stands allowed.

Interlocutory application/s, if any, also stands disposed of.