Gauhati High Court
Crl.A./332/2023 on 25 November, 2024
Page No.# 1/20
GAHC010202262023
2024:GAU-AS:11575
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
CRIMINAL APPEAL 332/2023
Sri Bindeswar Tiwari, aged about 47 years,
S/o Late Ramnaresh Tiwari,
R/o Amguri Town, Ward No. 4,
P.S. & P.O.-Amguri, PIN- 785683,
District- Sivasagar, Assam
..........Appellant.
-Versus-
State of Assam,
Represented by its Public Prosecutor.
.........Respondent.
Advocates for the appellant: Mr K Das, Amicus Curiae,
Advocate for the respondent: Mr B B Gogoi, Addl. P. P, Assam
Page No.# 2/20
BEFORE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Date of hearing : 26.07.2024.
Date of judgment : 25.11.2024
JUDGEMENT AND ORDER (CAV)
1. Sri Bindeswar Tiwari is the appellant, who has preferred this appeal
under Section 374(2) of the Code of Criminal Procedure, 1973, (CrPC, for
short) as he is aggrieved by the Judgment and order dated 26.07.2023,
passed by the learned Additional Sessions Judge, Sivasagar, in Sessions Case
No. 08(s-s)/2021, corresponding to GR Case No. 2066/2020, convicting him
under Section 376 (2) (k)/511 of the Indian Penal Code, 1860 (IPC, for
short), to undergo Rigorous Imprisonment for 10 years and to pay a fine of
Rs. 10,000/-, with default stipulation. Bindeswar Tiwari (hereinafter will be
referred to as the appellant or the accused).
2. The genesis of the case was that the victim-'X' has been working in the
shop of the appellant since 17.11.2020. She could sense the appellant's
lustful gaze upon her, but she ignored him and concentrated on her work. On
25.11.2020, when the shop was empty, the appellant called her inside his
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house and asked her to prepare tea. The appellant then closed the door of
the room and dragged her to his bed and attempted to commit rape on her.
The victim raised alarm and then the appellant gagged her, but she somehow
managed to escape and reach home. An FIR regarding this incident was
lodged on 27.11.2020, which was registered as Amguri PS Case No.
179/2020, under Sections 352/354/376/511 of the IPC and the investigation
commenced. On completion of investigation, the Investigating Officer (IO, in
short) laid charge sheet against the appellant. This case was committed for
trial. At the commencement of trial, a formal charge under Sections 376/511
IPC, read with Section 354 IPC was framed and read over and explained to
the appellant. The appellant abjured his guilt and claimed innocence.
3. To substantiate its stance, the prosecution adduced the evidence of 7
(seven) witnesses and the defence cross-examined the witnesses in extenso.
4. Against the incriminating evidence projected by the prosecution through
its witnesses, several questions were asked to the appellant and the tone and
tenor of the answers of the appellant depicts a plea of total denial. The
appellant stated that that he is innocent. He has admitted that the victim-'X'
used to work in his garment shop for about 4/5 days. She demanded Rs.
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5,000/- from him, which he refused to pay. She informed the matter to her
brother and her brother in return, demanded Rs. 5 lacs from him. The
appellant did not tender any evidence in defence.
5. Learned counsel for the appellant laid stress in his argument that this
case is fraught with discrepancies. The victim was sent for medical
examination even before the FIR was lodged. The medical report is dated
26.11.2020, whereas the FIR was lodged on the following day, i.e., on
27.11.2020. The GD Entry reflected on the medico legal report is not similar.
Thus, it is apparent that the Police swung into action even before the FIR
was lodged. It is submitted that the Medical Officer was not examined by the
prosecution. The statement of the victim under Section 164 CrPC does not
substantiate the FIR and the victim's deposition is not consistent to her
statement under Section 164 CrPC. Her deposition is contradictory to her
cross-examination. The family members of the appellant were not examined
as witnesses. It has surfaced through the evidence that different versions
were projected by the prosecution witnesses. It has to be borne in mind that
an incident of rape cannot be easily forgotten which gets imprinted in the
victim's mind. The delay in lodgment of the FIR was not properly explained.
Moreover, PW-3 is the cousin and not the brother as stated by PW-1. The
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learned trial Court relied squarely on the evidence of PW-1 and thus, the
Judgment and Order is not sustainable. The investigation was conducted in a
perfunctory manner. The incident occurred at about 04:00 pm in a busy area,
but not a single witness was examined from the area where the incident took
place.
6. It is submitted that the shop is located in a busy business area with
many shops in the locality, but the neighbours were not examined.
7. On the contrary, learned Additional Public Prosecutor laid stress in his
argument that the deposition of the victim is consistent to her statement
under Section 164 CrPC. It is not possible to obtain eye-witnesses by the
investigating agency in a case of this nature. There is no error apparent and
interference is not required as the Judgment was correctly passed. This
appeal is devoid of merits and is fit to be dismissed.
8. The remaining part of the arguments placed by both the sides will be
discussed at the appropriate stage.
9. Now, the question that arises for consideration is that whether the
learned trial Court, erroneously convicted the appellant under Sections 376
(2) (k)/511 of the IPC.
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10. To decide this case in its proper perspective, it is necessary to re-
appreciate the evidence.
11. The victim-X deposed as PW-1 that at the time of the incident, she was
an unmarried woman. She used to work in the garment shop belonging to
the appellant. The incident occurred on 25.11.2020. She had completed only
11 days in the appellant's shop. On the fateful day, at about 04:00 pm as she
was about to finish her day's work, the appellant asked her to prepare tea for
him and she went to the kitchen to prepare tea.
12. PW-1 has described the shop of the appellant stating that the shop of
the appellant consists of two parts. Behind the shop, the appellant has his
godown, where the garments are kept and behind the godown, is the
bedroom of the appellant with the kitchen behind the bedroom. PW-1 further
deposed that she was wearing a full-sleeved sporting and a pair of jeans at
that time. The appellant pulled her sporting from behind and held her hand
and waist and started pulling her towards his bedroom. She sustained injuries
in the process, and there was a tear in her sporting as he pulled her by her
right hand. He pinned her to the bed and groped her breasts and other parts
of her body and pulled down her jeans. One button of the jeans was torn off
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as the appellant forcibly pulled down her jeans. The appellant who was
donning a pair of pants, started undressing. He was straddled over her body
with one leg and with the other leg he was undressing himself. She then
pushed him and the appellant fell down below the bed. He got up and asked
as to why she had pushed him. The victim again pushed the appellant and he
got tossed off and landed near the door of the kitchen. In her undressed
condition, she ran away from the room leaving her bag in the shop and
reached home.
13. PW-1 further testified that two days after she started her work, the
appellant told her that his wife is not with him and he is very fond of her
('X'). The victim then made it clear to the appellant that if he has such
feelings, she would not work with him. The victim never anticipated that the
appellant would stoop so low. As soon as she reached home, she divulged
about the incident to her sister-in-law, Mira Das Neog, who pacified and
consoled her. Meanwhile, when her brother reached home, her sister-in-law
informed her husband (X's brother) about the incident. On the following day,
she told her brother that she would not go for work but she would lodge a
case. She then went to Amguri Police Station and lodged the FIR. The Police
interrogated her and took her to the hospital for medical examination and
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forwarded her to the Court for recording her statement under Section 164
CrPC. This witness has proved her FIR as Exhibit-1 and her signature as
Exhibit-1 (1). She has proved her statement under Section 164 CrPC as
Exhibit-2 and her signatures as Exhibits-2 (1) to 2 (4). As she was perturbed
after the incident, there was a delay in lodgment of the FIR. She lost her
appetite and she had to suffer from low pressure after the incident. The
cross-examination of this witness will be discussed at the appropriate stage.
14. The victim's sister-in-law, Smt Mira Das Neog, deposed as PW-2 that
the appellant is known to her. The incident occurred on 25.11.2020. She
reached home at about 03:00 pm from work. The victim had informed her
that the appellant asked her to prepare tea while she was in the shop and
when she went to prepare tea, he grabbed her from behind and pulled her
towards the bed, but somehow she managed to escape. She (PW-2) further
deposed that the informant used to work in the appellant's shop and at the
time of the incident she was staying in their house for about 7 months, prior
to the incident. When her husband returned home at night, she informed him
about the incident and thereafter, they informed the Police about the
incident.
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15. In her cross-examination, PW-2 has admitted that the informant's sons
reside with the informant and the informant's house is located at a distance
of 4 kilometres away from their house. At times, the informant's sons used to
reside in their (PW-2's) house also.
16. The victim's brother, Sri Rituraj Neog, deposed as PW-3 that the victim
is his cousin. The appellant is also known to him and he used to visit the
appellant's shop. The incident occurred on 25.11.2020. On the fateful night,
he returned home at about 08:00 pm from work and his wife had informed
him about the incident. The victim/informant was perturbed and was
contemplating to lodge an FIR. On 27.11.2021, they went to the Police
Station and the FIR was lodged. On the following day, he called the appellant
over phone and confronted him about the incident, but there was no
response from the appellant. The victim used to go to the appellant's shop
from his house as she was staying with them since 6/7 months.
17. It is pertinent to note that PW-3 mentioned in her cross-examination
that she was not aware if the appellant has married again, whereas PW-4 has
stated that the appellant was married at that time. He provided
accommodation to the victim as she was attending her computer classes and
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she was trying to secure employment. Through the cross-examination of this
witness, the defence tried to project that the victim was earlier married to
some other person and PW-3 has denied in his cross-examination, the
suggestion by the defence that the victim was staying in his house because
of an earlier incident with her husband. He has also admitted in his cross-
examination that he has lodged the FIR after a discussion with an Advocate.
He has denied that he had demanded Rs. 5 lacs from the appellant and as
the appellant failed to meet his demand, they have foisted a case against the
appellant. Although the appellant in his answers under Section 313 CrPC,
tried to take the plea that, a false case has been foisted against him as he
has failed to meet the demand of Rs. 5 lacs from PW-3, this plea was not
affirmed, more so, when PW-2 was not cross-examined in this aspect.
18. Smt Jyoti Das deposed as PW-4 that she used to work in the garment
shop of the appellant. The incident occurred about a year ago. She was
working in the appellant's shop for the last 4 years. Around the time of the
incident, she met the appellant's daughter who was in tears and on being
asked, the appellant's daughter informed her that the victim has filed a case
against her father and her father had to go to the Police Station. She denied
any knowledge about the incident.
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20. In her cross-examination, she (PW-4) has testified that there are four
employees in the shop, including the victim. The appellant's family consists of
his wife and three children. There is a godown adjacent to appellant's shop.
She met the victim in the appellant's shop for the last time. Her duty hours
are from 08:30 am to 07:00 pm. She was present in the shop on the date of
the incident. The victim used to return home from the shop at around 04:00
pm. The appellant's son was also present on the last day of victim's tenure.
On leaving the shop for the last time, the victim distributed sweets and she
told them that she would not come to the shop anymore.
21. The learned counsel for the appellant has relied heavily on the
testimony of PW-4. He has submitted that the independent witness did not at
all support the prosecution case. She is also an employee of the shop and her
evidence exonerates the appellant. She was present in the shop and so was
the appellant's son at the time of the incident and thus, it was not at all
possible that the appellant would be able to commit sexual assault or even
make an attempt to commit sexual assault on the victim, in presence of four
employees and his family in the shop. The victim's co-workers did not support
her evidence.
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22. Another co-worker, Smt Anita Paul, also did not at all implicate the
appellant. She deposed as PW-5 that she also used to work in the appellant's
shop. She worked in his shop for 8 years, till December 2021, and then she
left her work, after her marriage. The appellant has two shops within a
distance of about 300 meters. She used to work in the shop named as 'Ma
Kamakhya'. On the last day of her work, the victim distributed sweets to the
employees and she stated that she would not come henceforth. PW-5 also
deposed that around the time of the incident, when she met the appellant's
daughter in the shop she noticed that she was in tears and the appellant's
daughter informed her that the victim has brought up a case against her
father and her father had to go to the Police Station. This witness was
declared as a hostile witness and on the prayer of the prosecution, this
witness was allowed to be cross-examined by the prosecution.
23. The IO, ASI Jayanta Das has affirmed as PW-7 that PW-5, Anita Paul
has stated before him that-"On 25.11.2020, I went home early. In the
morning after I came to the shop, I came to know from the employees of the
shop that on that day, our friend namely, 'X' was preparing tea kitchen
adjacent to the shop, when our owner Bindeswar Tiwari (appellant) caught
hold of her hair and with ill motive touched her and thereafter, tried to
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commit rape on her by throwing her on the bed."
24. It appears that this witness has already stopped working in the
appellant's shop and thus taking the appellant's side will serve no purpose.
She has also admitted in her cross-examination that she never prepared tea
in the kitchen while she was working in the appellant's shop, but at times,
the appellant's wife used to prepare tea for them. The appellant's family used
to stay in a room adjacent to the shop. When she left the shop along with
the informant, the appellant's son and daughter were also present. The
informant/victim used to come to the shop at 08:00 am and thereafter, she
used to go for computer classes and again return at about 2:30 pm and after
lunch she used to leave. This witness has denied the initial statement
projected by the prosecution, through her cross-examination.
25. Another co-worker of the victim, Sri Anand Panday deposed as PW-6
that he used to work in the appellant's shop and the victim worked in the
same shop for about 4/5 days. He denied any knowledge about the incident.
He has stated that at present, he is working at Lahoti Petrol Pump. This
witness was also declared a hostile witness and the learned trial Court
allowed the prosecution to cross-examine its own witness, but this witness
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has denied that he stated before the IO that-"on 25.11.2020, he was working
in the godown. He saw the victim at about 04:30 pm, scurrying out of the
kitchen. He did not notice the incident of attempt to commit rape on the
victim. Later he heard that the victim was asked to prepare tea in the kitchen
and then, the appellant groped her and attempted to commit rape on her by
pinning the victim to the bed."
26. Although this witness has denied his initial statement before the IO, the
IO, PW-7, however has affirmed that he has stated that he heard that the
appellant attempted to commit rape on the victim and he saw the victim
running away from the appellant's kitchen.
27. Thus, in the instant case, the evidence of PW-5 does not at all implicate
the appellant. Her cross-examination depicts that she heard about the
incident from her colleagues on the following day of the incident. It is true
that the evidence of a hostile witness cannot be effaced from the record, but
the evidence of this witness cannot be taken into consideration, least of fall,
the initial statement of the witness.
28. I would like to reiterate that at present, PW-7 is also not working with
the appellant and there appears to be no reason for this witness to take the
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appellant's side and try to exonerate him by giving false evidence. I believe
that a benefit of doubt has to be extended to the appellant as the initial
statement of the victim is not consistent to her testimony. The other reason
for extending a benefit of doubt is that there was a delay in lodgment of the
FIR. The victim has assigned reasons in her testimony that the delay was
because she was perturbed by the incident and she was contemplating to
lodge an FIR. I find force in the argument of the learned counsel for the
appellant that the victim was forwarded for medical examination before the
lodgment of the FIR.
29. The Medical Officer was also not produced as a witness, but the
Medico-Legal Report has been identified by the IO, PW-7. The Medico-Legal
Report marked as Exhibit-3, reveals that the victim was forwarded for medical
examination on 26.11.2020, whereas format of the FIR marked as Exhibit-5
and the FIR marked as Exhibit-1, reveals that the FIR was lodged on
27.11.2020. However, the Medico-Legal Report also reveals that the victim
was forwarded for medical treatment vide GD Entry No. 551, dated
27.11.2020. The Medical Officer was not examined as a witness and the
Medico-Legal Report depicts that no injuries were detected on the victim and
the learned counsel for the appellant laid emphasis through his argument
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that the victim has stated that the appellant twisted her arm and gagged her
by her mouth, yet no injuries were detected.
30. It is further argued that the victim, PW-1 has stated that there was a
tear on her sleeve as a result of the assault, but her sporting was not
exhibited in the Court. To this, the learned Additional Public Prosecutor has
submitted that the victim's deposition clearly reveals that the victim has
deposed as PW-1 that she did not hand over her sporting to the Police as the
Police had never asked for her torn sporting.
31. Further, the learned counsel for the appellant has submitted that the
victim has clearly stated under Section 164 CrPC that her sporting was torn
and it was the duty of the Police to seize the torn sporting or the T-Shirt.
32. Learned Additional Public Prosecutor has emphasized through his
argument that the deposition of the victim is consistent to her statement
under Section 164 CrPC. Although there is consistent evidence that the
victim's T-Shirt was torn, yet the victim's torn T-Shirt was not seized by the
Police. The appellant deserves a benefit of doubt due to the perfunctory
investigation.
33. Learned counsel for the appellant has also drawn the attention of this
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Court towards the major discrepancies elicited through the cross-examination
of the PW-1, vis-à-vis the cross-examination of IO.
34. Learned counsel for the appellant has laid stress in his argument that
the FIR and the statement of the victim is not similar. She has not mentioned
in the FIR as deposed in her evidence that she was hesitant to lodge an FIR
and then she was contemplating to lodge an FIR. On the contrary, it has
been mentioned in the FIR that she informed her sister-in-law about the
incident, on 27.11.2020, whereas in her deposition she has stated that after
reaching her home, she informed her sister-in-law about the incident. She
was also silent in her evidence regarding the allegations in the FIR that she
could sense lustful looks from the appellant.
35. It is true that several contradictions could be elicited through the cross-
examination of PW-1 under Section 145 of the Indian Evidence Act, 1872
(The Evidence Act, for short), qua Section 162 CrPC. The IO, PW-7 has
affirmed that the victim, PW-1 has not mentioned in her initial statement that
two days after she started working in the appellant's shop, the appellant told
her that his wife was not present and he was fond of her and then the victim
apprised the appellant that if he ever behaves in that manner, she would not
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work with him and then the appellant assured that he would not misbehave,
but she never apprehended that the appellant would stoop so low and
behave in such a manner. The IO has also affirmed that PW-1, victim has not
stated in her initial statement that as she was perturbed and angsty, there
was a delay in lodgment of the FIR and she had suffered from low pressure
and she lost her appetite.
36. The IO, PW-7 has also affirmed that PW-1, victim has not mentioned in
her initial statement that the appellant groped her and pulled down her jeans
and one button got torned off in the tussle, and the appellant who was
wearing three-quarter pants at that time, started undressing.
37. The IO, PW-7 has also affirmed that the victim, PW-1 has not
mentioned in her initial statement that at the time of undressing, the
appellant was straddled over her body and he was lowering his pants with
one leg and the other leg was straddled over her body and at that time, she
pushed the appellant who fell down below the bed and then, the appellant
got up and asked her as to why she had pushed him and then she again
pushed the appellant and she then ran away from the place of occurrence.
38. I find substance in the argument of the learned counsel for the
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appellant. There are too many contradictions and these contradictions being
noteworthy cannot be ignored. It is true that there is corroborating evidence
that the appellant attempted to commit rape on the victim, but at the same
time, the evidence of PW-1, 2 and 3 has not been corroborated and
substantiated by the evidence of the victim's co-workers. The major
contradictions elicited through the cross-examination of the victim, PW-1, vis-
à-vis, the cross-examination of the IO, causes a dent in the evidence and
thus, the appellant deserves a benefit of doubt. Moreover, after a scrutiny of
the evidence, I am constrained to hold that the testimony of the victim is not
consistent to her statement under Section 164 CrPC. Her statement has been
marked as Exhibit-2 and she has elaborately described the entire incident
when her statement was recorded, but when her deposition was recorded,
she chose to skip some material facts which she had mentioned under
Section 164 CrPC. There is also a deviation of her statement from the
contents of the FIR. The prosecution and the investigation was conducted in
a lackadaisical manner and the appellant deserves a benefit of doubt.
39. In the wake of the foregoing discussions, it is held that although in a
case of rape or attempt to commit rape, the sole testimony of the victim can
be relied upon to hold the accused guilty of the offence of rape, yet in the
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instant case, due to the contradictions in the testimony of the key witnesses,
a benefit of doubt is extended to the appellant.
40. It is trite law that when two views are possible, the view favouring the
appellant has to be taken into consideration. The decision of the learned trial
Court convicting the appellant under Section 376 (2) (k) of the IPC is hereby
set aside. The appellant be set at liberty forthwith, if he is not wanted in any
other case.
41. However, keeping in view the provisions of Section 437-A Cr.P.C./481
BNSS, the accused appellant is directed to furnish a personal bond in the sum
of Rs. 40,000/- and a surety bond in the like amount before the learned trial
court, which shall be effective for a period of six months.
42. Send back the Trial Court Record.
JUDGE
Comparing Assistant
