CRL.A(J)/24/2020
2023 Latest Caselaw 3172 Gua

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GAHC010077652020




                              IN THE GAUHATI HIGH COURT
                      (The High Court of Assam: Nagaland: Mizoram &
                                   Arunachal Pradesh)

                                          Crl. A. (J) 24/2020
Delbar Ali
S/O. Majafar Ali,
R/O. Bagurapara (Kayakuchi),
P.S. Barpeta, Dist.
Barpeta.
                             .................................... Appellant


                      Versus
The State Of Assam
                             ............................ Respondent

BEFORE

HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

Advocate for the Appellant : Dr. B.N. Gogoi, Amicus Curiae

Advocate for the Respondent : Mr. D. Das (learned Addl. P.P. res No. 1.)

Date of Hearing : 15.05.2023

Date of Judgment : 17.08.2023.

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Judgment and ORDER (CAV)

1. Heard Dr. B.N. Gogoi, learned Amcus Curiae for the appellant. Also heard Mr. D. Das,

learned Addl. P.P. for the respondent.

2. This appeal is directed against the judgment and order dated 03.07.2019 passed by

the learned Sessions Judge, Barpeta convicting the appellant, namely, Delbar Ali (herein after

the accused) under Section 376(1) of the Indian Penal Code (IPC for short) to undergo

rigorous imprisonment for 10(ten) years and to pay a fine of Rs. 10,000/- and under Section

341 IPC to undergo simple imprisonment for 6(six) months. The sentences are to run

concurrently.

3. The prosecution case as unfolded from the FIR is that on 23.08.2018 at around 11.30

P.M. 'X' (name withheld), aged 31 years and mentally challenged was returning home from a

function, when the accused waylaid her, gagged her by mouth and dragged her to the field,

and repeatedly committed rape on her against her will and abandoned her in the field. The

victim 'X' was bleeding profusely but she managed to reach home. The accused confessed

that he committed rape on the victim. The younger brother victim 'X' lodged the FIR, which

was registered as Barpeta Road P.S. Case No. 426/2018, registered under Section 341/376

IPC and investigation commenced. The victim was forwarded to the Medical Officer and to the

Magistrate. The statements of the witnesses were recorded. On completion of investigation,

charge-sheet laid against the accused and this case was committed for trial. At the

commencement of trial, a formal charge under Sections 341/376 IPC was framed and read

over and explained to the accused, who abjured his guilt and claimed innocence. To

substantiate its stance, the prosecution adduced the evidence of 7(seven) witnesses including Page No.# 3/9

the Medical Officer (M.O. for short) and the Investigating Officer (I.O for short). The

statement of the accused was recorded under Section 313 Cr.P.C and his tenor of answers

depicts that his plea was of total denial.

4. The learned Amicus Curiae for the appellant Dr. B.N. Gogoi, laid stress in his argument

that the FIR clearly reveals that the victim is mentally challenged and conviction was not

justified because the trial Court relied on the sole evidence of the victim. There were no eye-

witnesses to the incident. The victim was 31 years old, whereas, the accused was only 26

years old. The trial Court ignored the fact that the incident occurred at night and the victim

has categorically stated that it was dark. Identification of the accused was not possible at

night? If she was alone then why was she alone at night? It is also submitted that the

medical evidence reveals that the victim did not sustain any injuries of sexual assault.

5. Per contra, the learned Addl. P.P. laid stress in his argument that the victim was

mentally challenged and her evidence cannot be discarded. Her evidence is corroborated by

the evidence of PW-3. Corroboration is not sine qua non in a rape case. The incident occurred

at midnight and immediately on the following day, the FIR was lodged. No sign of sexual

assault could be detected as the victim took bath after the incident.

6. The trial Court decided this case on the following points:-

" (1) Whether the accused on 23.08.2018, at about 11:30 P.M., at Kalahbhanga, within

the jurisdiction of Barpeta Road P.S., District Barpeta, restrained Jahanara Begum (mentally

ill), who is the elder sister of the informant Abdul Hannan, on the road when she was

returning home after enjoying a function and thereby committed an offence punishable u/s

341 of the Indian Penal Code?

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(2) Whether the accused, on the same date, time and place as mentioned above,

committed rape on Hanara Begum and thereby committed an offence punishable u/s 376 of

the Indian Penal Code?"

The learned trial Court convicted the accused relying on the evidence of the victim.

7. The question that falls for consideration is that whether the trial Court erred while

convicting the accused under Section 341/376 IPC.

8. In this case at hand, the victim 'X' has testified as PW-2 that the accused is known her

and he is married to a girl from their village. The incident occurred about 7(seven) months

back. She was returning at 10.00 P.M. from a function, near her house. She went to the

function with Asmina, but she was returning alone when the accused dragged her forcibly to

the nearby jungle and did not allow her to raise alarm. The accused undressed her and

committed bad act with her. Then she went to Asmina's house and narrated the incident to

her. Thereafter, she informed her brother about the incident. Blood oozed from her private

parts. Her brother then tied the accused in the courtyard and informed the police. The police

came and took away the accused. Her brother lodged the case in the police. The police

forwarded her for medical examination. She gave her statement before the Magistrate.

9. In her cross-examination, she admitted that the accused person's father-in-law is her

aunt's husband and the wife of the accused is a distant cousin. She also reiterated in her

cross-examination that she returned alone from the function at about 11.30 P.M. As it was

dark at night, she did not see the face of the person and she did not raise alarm. The people

present in the function did not inform about the incident as she did not informed them about

the incident. She did not know inform about the incident to her brother. She has also Page No.# 5/9

admitted in her cross-examination that at the time of the incident she was having her

menstrual periods. She has admitted that sometimes she used to suffer from mental

ailments.

10. The contradiction that could be elicited through the cross-examination of this victim,

PW-2 and the cross-examination of the Investigating Officer Kandarpo Talukdar, PW-7 is that

PW-2 did not mention in her initial statement before the I/O that she informed her sister

Asmina about the incident and blood oozed from her private parts. She also did not the

mention in her initial statement that her brother tied the accused after the incident and

handed him over to the police.

11. The learned counsel for the accused, however, emphasised through his argument that

the victim has categorically stated in her cross-examination that she did not recognize the

person in the dark. In this aspect, the accused deserves a benefit of doubt. The victim's

statement is inter-se contradictory.

In her evidence-in-chief, she has stated that the accused dragged her and committed rape on

her, whereas, in her cross-examination the victim stated that she did not recognize the

accused. Although, her statement was recorded by the Magistrate under Section 164 Cr.P.C,

this statement was not proved by the maker of the statement. The other defect in the

evidence is that Asmina, who was informed about the incident was not examined as a

witness. According to the victim's cross-examination, Asmina also noticed that blood oozed

out from her body, after the incident.

12. The victim's brother testified as PW-3 that the incident occurred about 7/8 months

ago. He was at home at the time of the incident. Asmina came to her house at about Page No.# 6/9

10/10:30 P.M. and informed them that 'X' was taken by the accused and raped. Asmina also

informed them that the victim was bleeding. Then he sent his sister-in-law and he followed

her at about 11.00 P.M. His sister-in-law informed him that the victim was bleeding and she

was taken to the hospital. He brought back his sister (PW-2) to his house. The victim

informed him that the accused committed rape on her. Then, he went to the accused person

house along with two other boys and he brought the accused to their village and he tied him

in his house. Then the villagers informed the police and he lodged the FIR as Exhibit-2 and

proved his signature on the FIR as Exhibit-2(1).

It is clear from the evidence of PW-2 that she was returning alone from the function. The PW-

3 was informed about the incident by Asmina, but Asmina was not produced as a witness.

The scribe of the FIR was also not examined as a witness. The PW-3 has also admitted in his

cross-examination that his sister is mentally challenged and some time she talks incoherently.

13. The Medical Officer's evidence also does not at all indicate any marks of violence or

evidence of sexual intercourse on examination of the victim. Dr. Mamata Devi has testified as

PW-1 that on 24.08.2018, she examined the victim and according to her opinion, no evidence

of recent sexual intercourse was detected on examination of the victim, and no marks of

injury or violence was noticed. The Medical Officer proved the medico legal report as Exhibit-

1 and Exhibit-1(1) as her signature. The age of the victim was recorded as 32 years. Even the

medical history of the doctor depicts that the victim did not know the name of the aggressor

When the victim herself mentioned in the cross-examination that she did not recognize

the face of the aggressor, it would be perilous to saddle the accused with a serious offence. It

is true that the evidence of prosecutrix is sufficient proof of sexual assault against the Page No.# 7/9

perpetrator of the crime, but in this case benefit of doubt has to be extended to the accused.

PW-3 has admitted that the victim is mentally challenged.

14. Another witness Diljan Nessa testified as PW-4 that the victim is her sister-in-law. The

incident occurred about 9(nine) months ago. The victim went to attend a function, and the

accused dragged the victim forcefully while she was returning home from the function and

took her to the nearby field. Asmina came to their house and informed that the victim is

about to die due to the heavy bleeding. Then, she went to Asmina's house and found the

victim in her house and the victim told her that the accused committed bad work with her.

Her husband also came and caught the accused and brought him to their house. On being

confronted by her husband and the others, the accused confessed his guilt and he was

handed over to the police.

The cross-examination of this witness reveals that the victim went to the function alone.

15. On the contrary that the victim stated that she went to the function with Asmina. The

victim stated that she returned alone from the function. Why did she return alone from the

function so late at night? The prosecution's failure to produce the witness Asmina casts a

shadow over the veracity of evidence. The victim has also stated that she was having her

menstrual period at the time of the incident. This explains why the doctor did not detect any

injuries, despite the fact that the victim, PW-2 and the other witnesses PW-3 and PW-4 have

stated that the victim was bleeding profusely after the incident. The PW-5 has also admitted

that the victim was mentally weak and sometimes her speech is incohesive. Thus, it can be

safely held that the evidence of PW-4 was not of much help to the prosecution.

16. Isab Ali has testified as PW-5 that at the time of the incident Asmina came to their Page No.# 8/9

house and informed that the victim went to the function and the accused dragged the victim

along with him and committed rape on her and left her in the field. The victim then somehow

managed to reach Asmina's house. The accused was brought to the victim's house and he

confessed his guilt. Although, there is evidence of oral extra judicial confession, yet this extra

judicial confession cannot be held as conclusive proof to rope in the accused with the offence

of rape and the reason is that the evidence of the victim does not inspire confidence. The

victim has mentioned in her cross-examination that she could not recognize her aggressor.

She has also stated that she was having her menstrual periods at the time of the incident.

She went to a function and returned alone late at night at about 11.30 P.M. The evidence of

all the witnesses PW-3, PW-4 and PW-5 clearly depicts that the victim is mentally challenged.

The FIR also clearly depicts that the victim was mentally challenged. No injuries were

detected despite the fact that the victim has stated that she was bleeding after the incident.

17. PW-6 has also stated that he saw that the victim was bleeding but he did not

mentioned in his evidence that the accused confessed before him or before any of the family

members about the incident. The PW-6 was also present with the victim's brother, PW-3. Isab

Ali, PW-5, but he did not mention that the accused confessed about the incident.

18. Kandarpo Talukdar is the I/O and he stated as PW-7 that on the day of the incident,

the victim's brother lodged the FIR and the O/C registered the Barpeta Road P.S. Case No.

426/2018 and entrusted him with the investigation. He conducted the investigation and finally

submitted charge-sheet against the accused.

19. It has already been held in my foregoing discussions, that PW-2 has failed to mention

in her earlier statement before PW-7 that she was bleeding and her brother tied the accused, Page No.# 9/9

after the incident and handed him over to the police. I/O's evidence also depicts this

contradiction. PW-4 failed to mentioned in her initial statement before the I/O that Asmina

came to her house and informed her that the victim was about to die, as the accused had

committed bad work with the victim. These major contradictions indeed casts a shadow of

doubt over the veracity of the victim's evidence.

20. In view of my foregoing discussions, it is thereby held the accused deserves the

benefit of doubt. The victim's evidence is not found to be credible. The judgment and order

dated 03.07.2019 holding the appellant guilty of offence under Sections 376/341 IPC is

hereby set aside. The accused is to be set at liberty forthwith, if he is not wanted in any other

case. The bail bonds are discharged.

21. Send back the LCR.

JUDGE

Comparing Assistant