Crl.A./156/2017
2021 Latest Caselaw 2229 Gua

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GAHC010021482017




                      THE GAUHATI HIGH COURT
    (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
                           PRADESH)

                                  CRL. APPEAL NO.156 OF 2017
                                  Abu Taher Prodhani @ Taher Prodhani, Son of
                                  Md. Abdur Rahman Prodhani, Village: Barobila
                                  Part-2, PO: Howrapar, PS: Dhubri, District:
                                  Dhubri, Assam, PIN - 783324.
                                                               ........Appellant
                                               -Versus-

                                  1. The State of Assam.
                                  2. Smti. Namita Roy @ Golapi Roy,
                                  Daughter of Sri Narayan Ch. Roy,
                                  Village: Chagolia 2nd Part, PO: Chagolia 2nd
                                  Part, PS: Golakganj, District: Dhubri, Assam -
                                  783335.

                                                            ........Respondents

-BEFORE-

         HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
               HON'BLE MR. JUSTICE SOUMITRA SAIKIA

              For the Appellant                : Mr. I.H. Saikia, Advocate.
              For the Respondent No.1          : Ms. S. Jahan, Additional Public
                                                 Prosecutor, Assam.
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                  Date of Judgment & Order        : 16th September, 2021.

                           JUDGMENT & ORDER (ORAL)

(Sudhanshu Dhulia, CJ)

Heard Mr. I.H. Saikia, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam, appearing for the respondent No.1.

2. This criminal appeal has been filed by the appellant challenging the Judgment & Order dated 22.03.2017 passed by the learned Special Judge, Dhubri in Special Case No.14/2016, by which he has been convicted under Section 376 IPC and was sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 50,000/- (Rupees Fifty Thousand), in default to undergo simple imprisonment for one year.

3. The prosecution case as per the FIR dated 05.02.2016 lodged at Golokganj Police Station and registered as Golokganj Police Station Case No.90/2016 by the prosecutrix herself, is that in the evening of 15.01.2016, the accused, i.e. the present appellant before this Court, called the prosecutrix over phone and when the prosecutrix met him, he gagged her with a piece of black cloth and took her to a deserted place on his two wheeler, and thereafter raped her several times. The accused had also impersonated as a Hindu and promised to marry her but later on from the conversation of the accused she realised that he is in fact a Muslim. Then she somehow persuaded him to drop her at her house. She was dropped by the accused at her house and was handed over to her family members. She immediately lodged the FIR.

4. Police after its investigation filed charge-sheet against the accused under Sections 366A IPC read with Section 4 of the POCSO Act. Thereafter, the matter was committed to the Court of sessions, being a sessions triable case. Charges were Page No.# 3/8

framed against the accused by the Court on 10.08.2016 u/s 366A/376 IPC and Section 4 of POCSO Act.

5. The prosecution in order to establish its case examined as many as seven witnesses and also presented other related materials, such as medical reports, etc. The learned Trial Court on the weight of the evidence came to the conclusion that the prosecution has not been able to establish that the victim at the relevant point of time was a minor and hence, the accused has been acquitted of charges under Section 366A IPC as well as under Section 4 of the POCSO Act but has been convicted under Section 376 IPC on ground that there could not be a consent of the prosecutrix as such a consent has allegedly been given under misconception in view of Section 90 1 of the IPC.

6. PW-1, Narayan Roy, before the Trial Court was the father of the prosecutrix. All he states in his examination-in-chief is that the victim is his daughter and he does not know the accused. One day his daughter had gone out from his house to watch Kali Puja. He was informed that she arrived at the venue of Kali Puja but thereafter she went missing. At the relevant point of time his daughter was sixteen years of age. His daughter was with a boy called Joy Roy (real name Abu Taher Prodhani), i.e. The present appellant before this Court. In his cross-examination, he admits that his daughter is now married and that she has studied up to Class VII. She was with Joy Roy and before returning to his house, she had a talk with him

90. Consent known to be given under fear or misconception.-- A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.-- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.-- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

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on phone. He admits in his cross-examination that she had a mobile phone with her and she had returned with the accused after staying with the accused for twenty days. He admits that he did not lodge a missing report or FIR immediately after his daughter went missing. No explanation whatsoever has come forward as to why he did not immediately lodge an FIR.

7. PWs-2, 3 & 4 are the neighbours of PW-1 as well as of the prosecutrix. They are witnesses to the fact that they knew that the prosecutrix was missing since 15.01.2016 and have also deposed before the Court that she was a minor. The broadly reiterated what had been said before the Court by PW-1.

8. The prosecutrix herself was examined as PW-5. In her examination-in- chief which was done on 03.11.2016 she states that she knows the accused "Abu Taher Prodhani", whom she identified in the Court. She got to know the accused as one day the accused rang her and expressed his intention to talk to her. On the day of "Kali Puja", she had gone out of her house with her friend Lakshmi. When she was at an isolated place the accused came on a two-wheeler and asked her to accompany him to another place. She declined the invitation. Thereafter, the accused covered her face by means of a black cloth, put her on a two wheeler and she was taken to an unknown place. The occurrence had taken place in the night. Then she was taken to Guwahati on a train, and was kept in a house which was at a hill top. She was kept there for 4/5 days, where she was repeatedly raped by the accused. The accused had disclosed his name as Joy Roy but when she came to the house of the accused at Dhubri, then she realized that he was actually a Muslim and then she expressed her desire to return to her parents' house. She also states that the police took her to the Court and got her statement recorded under Section 164 CrPC. In the cross- examination she admits that she has read up to Class VII and did not pursue her studies further. She denies that she had talked to her father before returning to her parents' house (this is in contradiction to the statement given by PW-1, i.e. the father of PW-5 who said that he had talked to his daughter before she returned to her Page No.# 5/8

house). She then states that she actually lost consciousness on the two-wheeler and she gained her consciousness when she was on the train. She does not remember whether the train was crowded. She admits that the train stopped at several stations but she never cried for help and then she admits that she and the accused got down at the Guwahati Railway Station where there was a large crowd at the railway platform but she did not raise alarm. She also states that she was then taken to a house at a hill top on a city bus. The city bus was crowded but she did not raise alarm in the bus. Thereafter, when she returned to Dhubri Railway Station, people were there at the Railway Station. She had also seen police at Dhubri Railway Station but there were people and she never raised any alarm. After returning to Dhubri she stayed for the night at the house of the accused. When she had talked to her father she did not disclose to her father that she had been kidnapped and raped by the accused. In her cross-examination she denies that some AKRASU 2 persons were present at her house on the following day who insisted on lodging of the FIR.

9. PW-6 is the doctor who had medically examined the prosecutrix on 08.02.2016. The relevant portion of the medical report reads as follows:

"10. General physical examination: i. Whether oriented in space & time : Yes. ii. Pulse: 70/m BP: 110/70 Temp: NAD Resp. Rate: NAD Pupils: NAD iii.Clothing: Fresh torn, stains of blood/semen/mud etc.: Fresh iv.Whether the victim has washed her genitalia/mouth/anal canal and changed her clothes or not after the incident: √

11. Examination for injuries:

(Look for bruises, systemic physical torture injuries, nail abrasions, teeth bite marks, cuts, lacerations, head-injury, any other injury) Injury Site Size Colour Swelling Simple/Grievous

1.

2.

3. Illegible

4.

Assam Koch Rajbongshi Students' Union.

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12. Local examination of genital parts: A. Public hair combing.

      B. External Genitalia
      i. Labia Majora    Any swelling, tears, edematous,
                          bruises or abrasion                   illegible
      ii. Labia Minora Scratch, bruising, fingernail           illegible
                         marks tear, infection

      iii. Fourchette   Bleeding tear:

      iv. Vulva         Any injury, bleeding, discharge:

      V. Perineum

      C. Hymen-Intact/Torn
      Injury-fresh/oedema/congestion/tenderness:

D. Vagina & Cerivx (Any Bleeding/tear/discharge/ oedema/ tenderness): illegible

Clinical opinion is inconsistent with recent sexual intercourse/assault."

10. The witness identified the medical report prepared by her and repeated the same in the Court. There were no injuries on the body of the prosecutrix and no evidence of rape. Moreover, when the prosecutrix was medically examined she did not say to her anything about kidnapping or rape.

11. PW-6 was cross-examined by the defence. In her cross-examination she categorically states that the victim never disclosed to her that she had been raped. She further states that for determination of the age of the victim she had been referred to a Radiologist but she did not receive any report in this regard. With regard to the age of the prosecutrix, which is recorded as 16 years in the medical report, PW-6 states that it was a tentative view taken that the age of Page No.# 7/8

the prosecutrix was 16 years as there was nothing on record to suggest that the prosecutrix was medically examined for her age or the determination of the age of the prosecutrix was scientifically done by the prosecution.

12. The prosecution examined the accused and his statement was recorded under Section 313 CrPC, where he denied the allegation of the prosecutrix. He clearly stated that he had been falsely made an accused in the present case.

13. After hearing the learned counsel for the appellant and the learned Additional Public Prosecutor and after having gone through the evidence which was placed before the Trial Court as well as the judgment of the Trial Court, we are of the considered view that this is a case where conviction was not possible on the strength of the evidence which was led by the prosecution.

14. Indeed the settled law here is that an accused can be convicted of rape on the strength of the sole evidence of the prosecutrix and the evidence of the prosecutrix in such cases is equal to that of an injured witness. Nevertheless, the Court also cannot lose sight of the fact that in a case where an accused can be convicted on the strength of a single witness, such witness must be thoroughly examined and it should inspire confidence of the Court. In the present case, it does not inspire our confidence. There are contradictory statements given by the prosecutrix under Section 164 Cr.PC and then before the Court. The story is improbable and does not inspire confidence of this Court. Her testimony is far from what we can call the testimony of sterling quality witness, which could be the sole basis for conviction of the accused/appellant. Her explanation that a black scarf was placed on her face and she was taken on Page No.# 8/8

a motor cycle on the point of a knife is extremely hard to believe. Moreover, she never raised any alarm, either on the pillion of the two wheeler or in the train or even at the Railway Station. Her medical examination also does not suggest that there was any assault on her person or that she was subjected to rape. Moreover, the conduct of her parents also shows that they had the knowledge that she was in the company of the accused as the FIR was lodged only after she was recovered and handed over to the police station apparently under some pressure of outsiders.

15. We reiterate that the conviction of a rape accused is possible on the sole testimony of the prosecutrix only when it inspires confidence of the Court not when there are multiple contradictions in it or when the story itself looks improbable and when there is an inordinate delay in lodging the FIR which is not reasonably explained. [Please see (2007) 2 SCC 170, Ramdas and others - vs- State of Maharashtra; (2009) 15 SCC 566, Tameezuddin @ Tammu vs. State (NCT of Delhi); and (2006) 10 SCC 92, Sadashiv Ramrao Hadbe vs. State of Maharashtra and another].

16. Under these circumstances, we allow the appeal and set aside the judgment of the Trial Court. The accused/appellant is already on bail granted by the Trial Court. The bail bond stands discharged.

                             JUDGE                         CHIEF JUSTICE



RK