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Judgment
Both the appeals are directed against the judgment and order dated 08/06/2016 passed by learned Addl. Sessions Judge, Jorhat in Sessions
Case No. 3 (JJ) of 2014. By the said judgment, learned Sessions Judge convicted Pranab Tahu (appellant in Crl. Appeal No. 182 of 2016) and
awarded sentence of imprisonment for seven years and fine of Rs. 20,000/- with default stipulation. Learned Sessions Judge also directed to pay
50% of the fine amount to the victim as compensation.
Prosecution case, in brief is, that the accused /appellant, PranabTahu came to the house of the victim on 18/05/2013 and stayed there for the
night. At about 12 O''clock at night, the accused Pranab Tahu entered into the room of the victim and committed rape on her by gagging her
mouth. Somehow she could manage to raise huge and cry, hearing which, the members of her family and a few neighbours arrived there and the
accused had fled away, taking advantage of darkness. An FIR was lodged on 22/05/2013 by the victim herself, on the basis of which, police
registered a case and after usual investigation, submitted charge sheet against the accused/appellant Pranab Tahu u/s 376 IPC and eventually, the
accused/appellant stood trial for the offence u/s 376 IPC.
In course of trial, charge was framed u/s 376 IPC against the appellant Pranab Tahu, to which he pleaded not guilty. Thirteen witnesses were
examined by the prosecution to establish the charge against the accused. On completion of the prosecution evidence, the accused was examined
u/s 313 CrPC and all the incriminating evidence were put to him. In his examination u/s 313 CrPC, the accused took the plea of innocence and
examined himself as a sole defence witness. On appreciation of evidence, learned trial court convicted the appellant Promod Taye u/s 376 IPC
and awarded sentence as indicated above.
Aggrieved by the conviction and sentence, the accused/appellant preferred the appeal assailing the impugned judgment, for setting aside the
conviction and sentence, which was registered as Crl. Appeal No. 182 of 2016. The victim also filed an appeal for enhancement of punishment
and compensation, which was registered as Crl. Appeal/131/2017.
Both the appeals, having arisen out of same judgment, are taken up together for disposal.
I have heard Mr. M. Dutta, learned counsel for the accused/appellant in Crl. Appeal No. 182 of 2016 and Mr. SK Barkakati, learned counsel
for the appellant/victim in Crl. Appeal No. 131 of 2017 and Mr. BB Gogoi, learned Addl. P.P., for the State. I have considered the submission
made by the learned counsels as well as the evidence and materials brought on record.
Learned counsel, Mr. M. Dutta submitted that a false case was imposed on the accused/appellant out of grudge and that there was inordinate
delay in lodging the FIR without any cogent explanation. Further contention of the learned counsel for the accused/appellant was that prosecution
failed to prove the charge against the accused beyond reasonable doubt, as the oral testimony of all the ""so-called"" eye witnesses were self-
contradictory and unworthy of inspiring confidence. Learned counsel, Mr. SK Barkakati representing the victim, submitted that in view of
seriousness of the offence, the minimum punishment imposed by the learned trial court was inadequate and not commensurating with the gravity of
the offence. Learned counsel for the victim contended that the compensation ordered to be paid to the victim was also very meager and not as per
the compensation scheme of the State Government, and as such, urged for enhancement of the quantum of sentence as well as the compensation.
From perusal of the records it appears, that besides, PW 4, the victim, PW 1, PW 2, PW 5, PW 8 & PW 10 claimed to be eye witnesses of
the occurrence. PW 3, PW 6, PW 7 & PW 9 were not eye witnesses and they came to know about the occurrence later on. PW 11 was the
doctor and PW 12 & PW 13 were the investigation officers. It would be desirable to scrutinize the evidence of the eye witnesses at the outset,
inasmuch as, the prosecution case essentially hinges on the testimony of the six eye witnesses, who claimed to have witnessed the occurrence.
PW 1, the elder brother of the victim deposed that on 18/05/2013, at about 7 pm, the accused came to their house because of inclement
weather and stayed for the night in their house. At about 12 O'' clock at night, he heard an abnormal sound coming from the room of the victim.
Immediately he went there and noticed in the focus of torch, that the accused was committing rape on his sister, the victim. Noticing him entering
into the room, the accused/appellant immediately tried to put on his trouser and at that time, he found the victim lying on the bed almost in senseless
condition. Seeing him (PW 1), the accused became nervous and told that he would accept the victim as his wife. He further stated that the accused
fled away taking advantage of darkness, on the pretext of going out to attend the call of nature.
PW 2, Pallabi Taye, wife of PW 1, deposed in verbatim, what was stated by her husband, PW 1. She also stated, that hearing an abnormal
sound, she came into the room of the victim, at about 12, O''clock at night and found the accused committing rape on the victim and seeing him, he
tried to put on his pant and the victim was lying almost in senseless condition. According to her, the accused confessed his guilt and told that he
would marry the victim and requested her to arrange the marriage. PW 2 further stated, that in the meantime, on the pretext of attending the call of
nature, the accused had fled away.
PW 5, sister-in-law of the victim deposed, that the accused came to their house and after having dinner, requested for accommodation for the
night as there was heavy rain and accordingly, the accused was allowed to stay for the night. According to her, at about 12 O'' clock at night, she
heard hue and cry in the room of the victim. Immediately she along with PW 1, PW 2, PW 8 & PW 10 came to the room of the victim and saw
the accused committing rape on the victim. She further stated, that noticing them, the accused immediately left the victim and put on his pant. This
witness also stated that on the pretext of going to attend the call of nature, the accused had fled away. She further stated, that while leaving the
room, the accused left his pan card, driving license, purse, mobile etc on the bed of the victim. According to her, there was a village meeting,
where the father of the accused refused to take the responsibility of the victim.
PW 8, a married sister of the victim stated, that on the day of occurrence, she came to her paternal house and the accused/appellant also came
on the same day at 7.00 pm as guest. They offered tea to the accused and because of rainy weather, the accused requested for accommodation
and they allowed the accused to stay for the night in their house. According to her, while she was sleeping, she suddenly heard hue and cry raised
by the victim. Immediately she came to the room of the victim and in the focus of mobile phone torch, she saw the accused PranabTahu over the
victim, committing rape by gagging the mouth of the victim. As soon as she entered the room, the accused left the victim and tried to put on his
dress. Seeing the incident, she raised hue and cry, hearing which, the PW 1, PW 2, PW 5 and PW 10 came to the room of the victim. Noticing all
the members of the family, the accused apologized and told that he would take care of the victim for rest of her life. She also stated that on the
pretext of attending the call of nature, the accused had fled away and after the accused left the place, they raised hue and cry.
PW 10, who happens to be the paternal aunt of the victim deposed, that on the day of occurrence, she came to the house of the victim and the
accused also came on that day as guest. They offered tea, snacks etc to the accused. As there was heavy rain, they allowed the accused to stay
for the night. She further stated, that while they were sleeping, at mid-night, she heard shouting of the victim, and she along with PW 2, PW 5 and
PW 8 came to the room of the victim and saw the accused committing rape on the victim. This witness also stated that seeing them entering the
room of the victim, the accused sought apology and promised to marry the victim.
A dispassionate scrutiny of the oral testimony of all these five witnesses, all of whom claimed to be eye witnesses, transpires that all of them
were close relatives of the victim. According to PW 1, hearing abnormal sound, he came into the room of the victim and saw the accused
committing rape on her. PW 2 also stated that hearing abnormal sound, he came into the room of the victim and saw the accused committing rape
on her. Neither PW 1 nor PW 2 stated that they came together into the room of the victim. According to PW 5 & PW 10, all of them, i.e., PW 5
herself, PW 1, PW 2 & PW 10 came together into the room of the victim, hearing alarm raised by the victim, whereas, PW 8, who also claimed to
be an eye witness, stated that hearing hue and cry raised by the victim, she alone came to the room and saw in the focus of torch of his mobile, that
the accused was committing rape on the victim. Seeing her, the accused left the victim and tried to put on his dress. She then raised hue and cry,
hearing which, all the other members of her family, i.e. PW 1, PW 2, PW 5 and PW 10 arrived there and the accused sought apology from all of
them. If the evidence of PW 8, that she came first and after hearing hue and cry raised by her, PW 1, PW 2, PW 5 & PW 10 came to the place of
occurrence, then the testimony of PW 8 belies the testimony of PW 1, PW 2, PW 5 and PW 10 that they had seen the accused committing rape
on the victim. Although PW 5 and PW 10 stated that all of them came together to the room of the victim and saw the occurrence, such testimony
of PW 5 & PW 10 is belied by the testimony of the PW 1, PW 2 & PW 8, according to whom, they came individually. PW 2 & PW 8 claims to
have arrived at the place of occurrence first at the point of time. Now the question arises --who actually came first to the place of occurrence when
three witnesses claimed that each of them came to the place of occurrence first. According to PW 1 and PW 2, when they came into the room of
the victim hearing an abnormal sound, they noticed the accused committing rape on the victim and the victim was lying almost in senseless
condition. If the evidence of PW 1 & PW 2, that the victim was lying almost in senseless condition is believed, then such testimony belies the
testimony of PW 8 and PW 10, that they came to the place of occurrence hearing hue and cry raised by the victim. None of these five witnesses in
their statement u/s 161 CrPC stated, that they had seen the accused committing rape on the victim and made such statement for the first time in
court. The omission of these five witnesses to state before police that they had seen the accused committing rape on the victim and stating the same
before the court for the first time appears to be a contradiction on material facts, creating dent in the oral testimony of all these witensses. All these
five witnesses though stated in their evidence, that on the day of occurrence, there was heavy rain and because of inclement weather, the accused
was allowed to stay in their house, but none of them stated before police regarding the inclement weather or that because of heavy rain, they
allowed the accused to stay for the night in their house on the day of occurrence.
It is the case of the prosecution that the accused was a stranger and they did not know him before the date of occurrence. According to PW 5
& PW 8, the accused came to their house as a guest and they also entertained him and allowed him to stay for the night, whereas, according to
PW 1, PW 2 & PW 4, it was because of the adverse weather, the accused came to their house and requested them to allow him to stay for the
night. Therefore, the self contradictory and mutually destructive evidence of PW 1, PW 2, PW 5, PW 8 & PW 10, that they came to the room of
the accused and saw the accused committing rape on the victim and omission to make such material statement before police by all the witnesses,
cast serious doubt as to the veracity and truthfulness of the testimony of all these five witnesses, who are admittedly close relatives of the victim.
PW 8 & PW 10 appears to be chance witnesses, as both of them were married and incidentally they came to stay in their paternal house on the
day of occurrence. Thus, in view of material contradictions between their statement in court and previous statement and the contradictory and
mutually destructive evidence as regards their claim of witnessing the accused committing rape on the victim rendered the evidence of all these five
witnesses unworthy of placing reliance.
PW 4, the victim stated in her evidence on oath, that on the day of occurrence, the accused came to their house, at about 7 O''clock because
of inclement weather, and it was only on request of the accused, he was allowed to stay in their house. According to her, the accused was allowed
to sleep in a different room and at about 12 O''clock, while the victim was in deep sleep, the accused entered into her room, gagged her mouth,
held her hands and after getting over her, he committed sexual intercourse with her. She further stated that she could not raise any hue and cry as
she was in a complete state of shock and her mouth was gagged by the accused tightly. She further stated that the accused caused scratches on
her chest and abdomen and tried to bite her breast, but somehow she could manage to free herself from the clutches of the accused by throwing
him away and after getting herself free from the hands of the accused, she raised hue and cry, hearing which, PW 1, PW 2, PW 5, PW 8 & PW
10 arrived there. Again she stated that when all of them came, the accused was still climbing over her and all of them had seen the accused
committing rape on her. She also deposed that the accused apologized to all the members of her family with folded hands and told that he would
marry her. She further stated that the accused left his pan card, identity card, ATM Card, driving license, mobile phone on her bed, which she
handed over to police, but such statement of the PW 4 is not supported by any other evidence, as those articles were never seized by police nor
the police stated to have received those articles.
The scrutiny of the testimony of PW 4 would show that her testimony is also self-contradictory and mutually destructive, inasmuch as, she had
blown hot and cold in the same breath. At one point of time she stated, that the accused gagged her mouth, held her hands and completely
overpowering her and committed rape. However, she could manage to free herself from the clutches of the accused by throwing him away and
raised hue and cry, hearing which, all the PW 1, PW 2, PW 5, PW 8 & PW 10 arrived at the place of occurrence. Again she stated, that while all
of them came, the accused was still climbing on her and was committing rape on her. If the evidence of PW 4 in her first part of the examination-in-
chief is believed that the accused gagged her mouth, for which initially she could not raise alarm and ultimately, she could get herself freed from the
clutches of the accused and raised alarm, hearing which, other members of the family arrived at the place of occurrence, then her statement in the
same breath that the accused was still climbing over her and was committing rape till arrival of the family members, who had also seen the accused
committing rape, appears to be totally improbable and absurd. Thus, the oral testimony of the victim also belied the oral testimony of PW 1, PW 2
and PW 10. Although PW 1 stated that the accused left his pan card, ATM Card, driving license, mobile phone etc, which were handed over to
police, she neither made such statement before police, nor those articles were ever seized by police.
The statement of the victim was recorded u/s 164 CrPC, which was proved as Ex-2, wherein she stated that the accused committed rape on
her by gagging her mouth and as soon as she raised alarm, the accused fled away leaving her there. If this version of the victim in her examination
u/s 164 CrPC is believed, then such statement recorded u/s 164 belies her evidence that hearing alarm raised by her, other witnesses came and
saw the accused committing rape and accused also sought apology from them and also promised to marry her. The statement of the victim
recorded u/s 164 CrPC also belies the testimony of the PW 1, PW 2, PW 5, PW 8 & PW 10 that they saw the accused committing rape and that
the accused sought apology and wanted to marry the victim. The FIR was lodged by the victim herself, wherein she stated that the accused
committed rape on her by gagging her mouth forcibly and somehow she could manage to raise alarm, hearing which, the neighboring people and
the members of her family came and asked her as to what had happened, but in the meantime, the accused had fled away taking advantage of
darkness. Thus, her statement made in the FIR and in Ex-2 recorded u/s 164 CrPC seems to have belied her evidence in court. PW 1 & PW 2
stated that hearing abnormal sound, they came and found the accused committing rape and seeing them, the accused left the victim and the victim
was lying almost in senseless condition. If this version of PW 1 & PW 2 is believed, then it goes to belie the entire evidence and the statement of
the victim that she raised alarm, hearing which, the other people arrived and witnessed the occurrence. The victim also did not state in her previous
statement recorded u/s 164 CrPC regarding the inclement weather on the date of occurrence and the accused having requested them for allowing
him to stay for the night in their house because of inclement weather. She neither stated before police regarding accused leaving his pan card, ATM
card etc on her bed, nor she stated about the accused scratching her chest and abdomen and trying to bite her breast. Evidently, no material, as
deposed by PW 1, was seized by police.
No doubt the medical examination was done on 22/05/2013 i.e, after three days of the occurrence, but the doctor did not find any injury on
the body of the victim. It is understandable that when the medical examination was done after three days, it might not be possible on the part of the
doctor to find any sign of sexual intercourse when the victim was evidently a grownup girl. But if there were injury of scratching and biting on the
body of the victim, such marks of injuries could not have vanished within two or three days. Thus, medical evidence disclosing that no injury was
found on the body of the victim and omission on the part of the victim to state either in the FIR or in her statement recorded u/s 164 CrPC or in
her statement recorded u/s 161 CrPC that the accused, while committing rape, scratched on her chest and abdomen and tried to bite her breast
renders her testimony, made for the first time in court unreliable and hardly convincing. The testimony of PW 4 regarding the accused leaving his
pan card, ATM Card, mobile phone etc, is also hardly worthy of inspiring confidence, as she neither made such statement before police, nor in her
statement recorded u/s 164 CrPC. In the FIR also she did not make such statement and such articles was never seized by police.
It is no doubt true, that in a case of sexual assault, the testimony of a victim should not be doubted or usually court should not seek for
corroboration, unless there are compelling circumstances for seeking corroboration and conviction can be based on the sole testimony of the
victim, provided her testimony is found to be reliable and trustworthy. In the present case, the self-contradictory and mutually destructive evidence
of the PW 4 and her inconsistent stand taken at different stages of the proceeding and the facts and circumstances as discussed hereinbefore,
clearly demonstrates that the PW 4, the alleged victim, can by no stretch of imagination, be held to be a witness, who can be fully relied upon and
therefore, no conviction can be based on the sole testimony of PW 4 without corroboration from independent source. All the five other witnesses,
who claimed to be eye witnesses are also found to be totally unreliable and unworthy of inspiring confidence. That being the position, necessarily
one infirm evidence cannot lend support to other infirm evidence.
The prosecution story of the accused staying for the night in the house of the victim because of inclement weather also appears to be suspicious
for the simple reason, as according to prosecution witnesses, the accused was a stranger and they did not know the accused prior to the date of
occurrence. Though some of the witnesses more particularly, PW 1, PW 2 and PW 4 stated, that because of heavy rain, the accused came to their
house and sought for accommodation for the night, PW 5 and PW 10 stated that he came to their house as their guest. But none of the witnesses
stated in their previous statement that there was heavy rain on the day of occurrence and because of inclement weather, accused came to their
house seeking shelter for the night.
The accused by examining himself as DW 1 sought to put forward a defence case. According to him, he was in a relationship with the victim
and he was in service in the BSF, but in the meantime, the victim eloped with another Muslim boy and because of that incident, he was reluctant to
continue the relationship or to marry the victim. It is also the case of the accused, that he was invited to the house of the victim and requested to
marry the victim, which the accused turned down and because of his refusal to agree to their proposal to marry the victim, false FIR was lodged.
Although the defence suggestion that the victim eloped with another boy was denied, but PW 1, the elder brother of the victim, admitted in his
evidence that he took custody of the victim from Mangaldoi Gola Police Station and informed the Bhagamukh Police Station. Though the accused
examining himself as DW 1, could not prove the GD Entry made in the Bhagamukh Police Station with regard to the missing of the victim, the
admission of PW 1 that he took custody of the victim from Mangaldoi Gola Police Station and informed the Bhagamukh Police Station goes to
probabilise the defence version at least to the extent of the victim''s elopement with another boy. Had there been no police case or had the victim
not been missing, why she was in police custody at a different place and PW 1, being her brother, had to take her custody from the police ?
It is the settled principal of appreciation of evidence that burden of the accused to prove a defence plea is not that strict as in the case of
prosecution, inasmuch as, prosecution needs to prove its case beyond reasonable doubt; whereas it is sufficient for the accused, if the accused can
probabilise the defence case in the touchstone of preponderance of probability. Because of the improbable story of the accused taking shelter in
the house of the victim due to inclement weather and self-contradictory evidence of all the eye witnesses, including the victim, and admission of the
PW 1, that he took custody of the victim from Mangaldoi Gola police station and waiting for three days for lodging FIR, the defence plea of
lodging false FIR against the accused, because of his refusal to marry the victim, cannot be totally ruled out.
Evidently the occurrence took place on 19/05/2013, whereas FIR was lodged on 22/05/2013. However, an explanation was given in the FIR
that because of public discussion and ""bichar"" there was delay in lodging the FIR. Although it was stated by the prosecution witnesses that there
was a village ""Mel"" and the father of the victim refused to take the responsibility of the accused, no other independent evidence was adduced to
show that any village meeting was held. Not a single witness, who alleged to have attended the village meeting, had been examined. Although PW
1 stated that immediately after the occurrence they went to the police station, but the police did not accept the FIR and asked them to settle the
matter amicably, there was no evidence to support the above version of PW 4, that they went to the police station for lodging the FIR and police
refused to accept the FIR and requested them to settle the matter amicably. Therefore, the failure of the prosecution to adduce any evidence with
regard to village ''Mel'' or absence of any evidence to prove that PW 4 or any other member of her family went to the police station to lodge the
FIR immediately on the next day of the occurrence, rendered the explanation given in the FIR with regard to the delay in lodging the FIR, hardly
convincing.
PW 3, PW 6 , PW 7 & PW 8 were admittedly not eye witnesses to the occurrence and they only came to know about the occurrence later on
and their testimony does not appear to be of much significance. The doctor (PW10), who examined the victim, did not find any sign of recent
sexual intercourse, nor did he find any injury on the body of the alleged victim. Evidently, according to the doctor, the victim was about 22 years of
age and therefore, the medical evidence also does not support the testimony of the victim, regarding the accused causing bodily injury to the victim.
From the totality of the evidence as discussed hereinabove, it is apparent that neither the PW 4, the victim, nor PW 1, PW 2, PW 5, PW 8 &
PW 10, who claimed to be eye witnesses were at all worthy of placing reliance, rather the self contradictory and mutually destructive evidence of
all these so-called eye witnesses clouded the prosecution story creating serious doubt about the veracity of the prosecution case.
What therefore, crystallizes from the entire evidence and the facts and circumstances of the case is, that prosecution has not been able to prove
the charge against the accused/appellant beyond reasonable doubt and accused is certainly entitled to the benefit of such doubt and in that view of
the matter, the conviction and sentence of the accused/appellant cannot be sustained. The prosecution, having failed to prove the charge against the
accused, the claim of enhancement of punishment as sought in Crl. Appeal/131/2017, filed by the victim, appears to be without merit.
In view of what has been discussed hereinabove, the Criminal Appeal/182/2016 filed by the accused/appellant stands allowed and the
conviction and sentence of the accused/appellant is set aside. The bail bond stands discharged.
The Criminal Appeal/131/2017 filed by the victim for enhancement of sentence is dismissed.
Send back the LCRs.