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Shri Mahadev Das vs The State Of Assam And Anr on 5 April, 2019

Page No.# 1/6

GAHC010155902017

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

Case No. : Crl.A. 447/2017

1:SHRI MAHADEV DAS
S/O SHRI KANU DAS, R/O SANKAR TEA ESTATE, P.S. DOOMDOOMA, DIST.
TINSUKIA, ASSAM.

VERSUS

1:THE STATE OF ASSAM and ANR

2:SMTI ANITA MURA
W/O SHRI AJAY MURA
R/O SANKAR TEA ESTATE
1 NO. LINE
P.S. DOOMDOOMA
DIST. TINSUKIA
ASSAM

Advocate for the Petitioner : MR.T DEURI

Advocate for the Respondent : PP, ASSAM

BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI

JUDGMENT

Date : 05-04-2019

This appeal is directed against the judgment and order dated 12.01.2017
passed by the learned Sessions Judge, Tinsukia in Sessions Case No.170(T)/2015. By
the said judgment, learned Sessions Judge convicted the appellant under sections
376/448 IPC and sentenced him to Rigorous imprisonment for 7 (seven) years and to
pay a fine of Rs.500/- with default stipulation under section 376 IPC. The appellant was
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further sentenced to pay a fine of Rs.500/- and in default to Rigorous imprisonment for
1 (one) month under Section 448 IPC.

2. As per the prosecution case, on 18.03.2015, while the victim (PW-6) was
sleeping in her house with her two children, the appellant Mahadev Das entered into the
house and committed rape on her. At the relevant time, the husband of the victim was
away from home, at Arunachal Pradesh and therefore, the FIR exhibit-4 was lodged on
20.03.2015. On the basis of the said FIR, police registered Doomdooma PS Case
No.123/2015 under Sections 448/376 IPC and commenced investigation. In course of
the investigation, the statement of the victim was recorded under Section 164 Cr.P.C.
On completion of investigation charge-sheet was laid against the appellant under
Section 448/376 IPC and eventually the appellant stood trial.

3. In course of trial, charges were framed under Section 448/376 IPC against the
appellant, to which, he pleaded not guilty. The prosecution examined 10 (ten) witnesses
to establish the charges. No defence evidence was adduced by the accused and the
plea of the accused was that of innocence. On appreciation of evidence, learned
Sessions Judge convicted the appellant under Section 448/376 IPC and awarded
sentence as indicated above.

4. Learned counsel for the appellant Mrs. RS Deuri and learned Additional Public
Prosecutor Mr. BB Gogoi, were heard.

5. Learned counsel for the appellant contended that there was no independent
witness of the occurrence and the learned trial Court recorded the conviction of the
appellant on the basis of the solitary evidence of the victim, which was not reliable.
Supporting the impugned judgment, learned Additional Public Prosecutor contended that
in case of non-consensual sexual assault, which usually takes place in private, conviction
can be based on the solitary testimony of the victim.

6. Apparently, there was no other independent witness except the victim, who
was examined as PW-6. Pw-6 stated in her evidence that on the day of occurrence, her
husband was away from home at Arunachal Pradesh. She was alone sleeping in the
house with her two minor daughters. At about 10.00’o clock at night, the accused
entered into the house caught her and asked her not to shout. Thereafter the appellant
undressed her and committed sex on her under threat. She further stated, that due to
fear she did not disclose the incident at night. On the next morning she informed her
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mother-in-law, who was residing in a different house in the neighbourhood as well as
one Sunil Mura. Though immediately on the next day she tried to inform her husband,
but due to non-availability of network, she could not contact her husband in the
morning and only in the evening, she informed her husband about the occurrence,
whereupon, he came home, and the FIR was lodged. During cross-examination it was
elicited, that the accused used to visit the house of the victim.

7. PW-8 Phuleswari Mura, mother-in-law of the victim deposed that she came
to know about the occurrence only when the FIR was lodged. Evidently the FIR was
lodged after two days of the occurrence. PW-7, Bir Singh Mura, father-in-law of the
victim, stated that he never heard about any incident happening with his daughter-in-
law (PW-6). Although the victim stated that in the next morning she informed the
incident to her mother-in-law (PW-8) and Sunil Mura. Sunil Mura has not been
examined in this case. Apparently, PW-8 also did not support the victim that she was
informed immediately on the next day morning about the occurrence, inasmuch as,
according to PW-8 she came to know about the occurrence only at the time of lodging
the FIR i,e., after two days. Though Smti Sumi Munda, (PW-3) stated that the victim
told her on the next day about the occurrence, the victim in her evidence did not state,
that she informed Sumi Munda about the occurrence on the next day. Apparently, the
occurrence took place on 18.03.2015 and the husband of the victim came home on the
next day, whereas, the FIR was lodged on 20.03.2015.

8. Although PW-5 Dipak Mura stated for the first time in Court, that on being
asked by him, the accused told that he was under the influence of alcohol and was not
aware, as to what did he do under the influence of alcohol. Therefore, this so called
extra judicial confession, as deposed by PW-5 for the first time in Court is hardly
convincing. That apart there is nothing incriminating in the above statement.

9. PW-1, the husband of the victim stated, that at about 8-9 am, on the next
day of occurrence, he got a telephone call from his wife, who informed him about the
occurrence and immediately he came home. Whereas, according to PW-6, the victim,
she could not contact her husband in the morning, rather, she could inform her husband
only in the evening of 19.03.2015. It is also stated by PW-6, that there was a village
mel on 19.03.2015, where the accused apologised and she told that she would take a
decision whether to forgive the accused or not, after arrival of her husband.

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10. The doctor who examined the victim, testified that no sign of violence was
noticed by him.

11. A dispassionate scrutiny of the oral testimony of the aforementioned witnesses
crystallizes, that though the victim deposed to have informed her mother-in-law
immediately on the next morning, such version of the victim was belied by PW-8,
mother-in-law of the victim, inasmuch as, according to her, she only came to know
about the occurrence, when FIR was lodged after 2 (two) days. Admittedly, father-in-
law of the victim pleaded ignorance about the occurrence and as such, the evidence of
PW-7, father-in-law of the victim also goes to belie the testimony of the PW-6 regarding
village mel on 19.03.2015.

12. In the instant case, though the victim did not raise any alarm at night and such
conduct of the victim not raising alarm at night is understandable. But what appears
from the oral testimony of PW-7 and PW-8 is that PW-6 even did not disclose the
occurrence for two days till lodging the FIR, inasmuch as, though the victim stated to
have informed her mother-in-law and one Sunil Mura, on the next morning, following
the date of occurrence, the mother-in-law of the victim denied such evidence of PW-6.
As already indicated above, Sunil Mura was not at all examined. The evidence of PW-6,
that she could not contact her husband in the morning and inform him about the
occurrence only in the afternoon is also not convincing, inasmuch as, such, version of
PW-6, regarding informing her husband in the afternoon was belied by the testimony of
her husband (PW-1) himself.

13. In view of the above contradiction in the oral testimony of PW-6 with PW-1,
PW-7 and PW-8, it would be difficult to hold the PW-6 to be a witness falling in the
category of fully reliable witness. It is no doubt true, that in case of non-consensual
sexual assault, which often takes place in private, there may not be any independent
witness and as such, the testimony of the victim, if found to be reliable, there is no bar
in basing the conviction on the oral testimony of the victim alone. The only question is,
when there is no other independent evidence, the evidence of the victim needs to be
scrutinised meticulously, to be ensured, that the victim is fully reliable. If the victim
withstand the test of reliability and trustworthiness, there may not be the necessity of
seeking any corroboration. When the victim in the present case is not found to be a
witness fully reliable, in my considered view, it will be unsafe to convict the accused on
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the sole testimony of the victim without some corroboration from independent source.

14. Though testimony of the victim in case of rape or other sexual assault
commands great weight, Court is also obliged to protect the accused from being falsely
implicated, inasmuch as, a wrong conviction may ruin the life of the accused. It will be
profitable to refer here the observation of the Apex Court in Raja and Others Vs. State
of Karnataka (2016) 10 SCC 506. The Apex Court observed that:

34. This Court in Raju, while reiterating that the evidence of the prosecutrix in cases
of rape, molestation and other physical outrages is to be construed to be that of an
injured witness so much so that no corroboration is necessary, ruled that an accused
must also be protected against the possibility of false implication. It was underlined
that the testimony of the victim in such cases, though commands great weight but
the same, cannot necessarily be universally and mechanically accepted to be free in
all circumstances from embellishment and exaggeration. It was ruled that the
presumption of absence of consent of the victim, where sexual intercourse by the
accused is proved as contemplated in Section 114-A of the evidence Act, was
extremely restricted in its application compared to the sweep and ambit of the
presumption under Sections 113-A and 113-B of the Indian Evidence Act. It was
exposited that insofar as the allegation of rape is concerned, the evidence of the
prosecutrix must be examined as that of an injured witness whose presence at the
spot is probable but it can never be presumed that her statement should always
without exception, be taken as gospel truth. The essence of this verdict which has
stood the test of time proclaims that though generally the testimony of a victim of
rape or non-consensual physical assault ought to be accepted as true and
unblemished, it would still be subject to judicial scrutiny lest a casual routine and
automatic acceptance thereof results in unwarranted conviction of the person
charged.

15. Thus, having regard to the evidence and the facts and circumstances of the
case as a whole, I am of the view that the prosecution evidence was inadequate to
bring home the charges against the accused beyond all reasonable doubt and as such,
at least the accused ought to have been given the benefit of doubt. Accordingly, the
conviction and sentence of the appellant are set-aside and the appeal stands allowed.
The appellant be set at liberty, if not required in any other case.

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16. A copy of this judgment be forwarded to the Superintendent of the Central
Jail, Guwahati.

17. Send down the LCR with a copy of this judgment.

JUDGE

Smita

Comparing Assistant

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