Serial No. 01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.A. 4 of 2019
Date of Decision: 12.03.2020
Shri. Plis Khymdeit Vs. State of Meghalaya Ors.
Coram:
Hon’ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. K. Ch. Gautam, Adv.
For the Respondent(s) : Mr. N.D. Chullai, AAG. with
Mr. A.H. Kharwanlang, GA.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. The genesis of this case started on 23.05.2015, the date when an FIR
was lodged by the victim/complainant before the Officer In-charge Nongpoh
Police Station, Ri-Bhoi District. The said FIR was exhibited as Ext. 1 by the
victim in her deposition as P.W. 1 before the learned Sessions Judge, Ri-
Bhoi District, Nongpoh.
2. The victim/complainant in her complaint has stated that at the tie
when she was sleeping with her children at home, the accused/appellant,
who is her maternal uncle and who is residing near their house at Umjari
Mathan entered inside the house and raped her four times on 22.09.2014,
23.09.2014, 28.04.2015 and 30.04.2015. The victim/complainant could not
tell anyone as the accused threaten to kill her. However, when she could bear
it no more, she reported to her family members.
3. The Officer Incharge, Nongpoh Police Station on receipt of the said
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FIR which was registered as Nongpoh P.S. Case No 123 (5) 2015 under
Sections 448/376 (2) (n)/506 IPC, endorsed the same to WPSI R. Syiemiong
to take up the investigation.
4. The victim was then medically examined and her statement was also
recorded by the Investigating Officer as well as by the Magistrate under
section 164 Cr.P.C. The statement of the accused/appellant was also
recorded by the Investigating Officer.
5. The Investigating Officer has further sent the sample exhibits
collected by the attending medical officer during the medical examination of
the victim as well as the accused and the same after seizure were sent to the
F.S.L., Shillong for chemical analysis.
6. In the meantime, the accused was arrested and in course of the
investigation, the Investigating Officer has found a case under Sections
448/376 (2) (n)/506 IPC well established against the accused and he was
accordingly forwarded to the Court to face trial.
7. In the charge-sheet, the Investigating Officer has cited the names of
seven witnesses, including the victim herself, her husband, Shri Mihpli
Lyngdoh, Dr. Sandip M. Sangma, the Medical and Health Officer, Civil
Hospital, Nongpoh, Dr. D. Laloo, Medical and Health Officer, Civil
Hospital, Nongpoh, Inspector H. Kharnaior, the Officer Incharge Nongpoh
Police Station, WPSI R. Syiemiong, the Investigating Office and Smti. D.P.
Shadap, Scientific Officer Biology Division Forensic Science Laboratory,
Meghalaya, Shillong.
8. When the matter was brought to the attention of the learned Sessions
Judge, Nongpoh, the accused was caused to be produced before the Court
and on 12.01.2016, the learned Sessions Judge framed three charges against
him being charges under Sections 448/376(2) (n) and 506 IPC.
9. On being explained about the aforementioned charges, the
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accused/appellant pleaded not guilty and demanded to be tried. Thereafter,
the Court then summoned the witnesses for recording of their evidence and
from the record, it is seen that the victim was examined as P.W. 1, while
four more witnesses, Viz; Shri Mihpli Lyngdoh, Dr. Sandip M. Sangma, Dr.
D. Laloo and WPSI R. Syiemiong were produced in Court by the
prosecution in support of its case.
10. On 15.10.2018, the statement of the accused under Section 313
Cr.P.C. was recorded and on being offered, he opted to examine witnesses
from his side. Accordingly, three defence witnesses were examined, being
Smti Rita Shylla as DW-1, Shri Pharangsngi Shylla as D.W. 2 and Shri
Hadbor Mangu as D.W. 3.
11. Thereafter, the argument of the accused as well as the prosecution was
heard by the learned Sessions Judge and the matter was fixed for judgment
and order which was passed on 28.02.2019, resulting in the conviction of the
accused/appellant.
12. The learned Sessions Judge then passed the order for conviction of the
accused under Sections 448/376 (2)(n)/ 506 IPC with order to serve sentence
of one-year rigorous imprisonment (RI) with fine of 1000/- and in
default, to undergo RI for one month, under Section 448 IPC, for the offence
under Section 376 (2) (n) IPC, to undergo imprisonment of 7(seven) years
RI with fine of 50000/- and in default, to undergo another one year’s RI,
and under Section 506 IPC, two years RI. The imprisonment was to run
concurrently. The fine of 51000/- was to be paid to the victim.
13. Being highly aggrieved and dissatisfied with the judgment and order
dated 28.02.2019 passed by the learned District and Sessions Judge,
Nongpoh in Sessions Case No. 147 of 2015, the appellant has approached
this Court with a prayer to set aside the impugned judgment and sentence for
conviction.
14. This Court on hearing the argument of the learned counsel for the
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appellant as well as Mr. N.D. Chullai, learned AAG assisted by Mr. A.H.
Kharwanlang, learned GA also had the occasion to go through the written
argument filed by the parties and on consideration of the same, the main
issue to be decided is whether the learned Sessions Judge has considered all
aspects of the case to come to the findings and conclusion that it did vide the
impugned judgment and order.
15. In the argument advanced on behalf of the appellant, the learned
counsel has submitted that on the analysis of the testimony of the prosecutrix
and in comparison with her statement under Sections 161/164 Cr.P.C and the
allegation made in the FIR, it is seen that the prosecutrix has changed her
version of the incident and the discrepancy in her statements is very
pronounced and cannot escape the test of a prudent mind.
16. In this regard, it is submitted that the prosecutrix has stated that the
appellant had raped her on four occasions, i.e., on 22.09.2014, 23.09.2014,
28.04.2015 and on 30.04.2019. However, in her statement before the Doctor
she has stated that the appellant raped her a week back, but she cannot recall
the date and time.
17. In her statement under Section 164 Cr.P.C before the Magistrate, she
stated that the appellant had raped her on 29.09.2014 and many times after
that and again on 19.05.2015. In her deposition before the Court, she had
stated that the appellant had entered her house at around 11:30 PM while she
was sleeping and forcefully raped her on 22.11.2014. In her cross-
examination, she had reiterated that she was raped only once i.e. on
22.11.2014.
18. Apart from the discrepancies as regard the fact about the number of
times she was raped by the accused/appellant, the learned counsel for the
appellant has also submitted that the prosecutrix has stated that on
22.11.2014 when the appellant entered her house at around 1:30 PM and
forcefully raped her, she was sleeping with her breast feeding child who
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started crying. She also stated that her other children were sleeping at some
distance, but did not get up. This version of the prosecutrix cast serious
doubt on the veracity of the statement since it is highly improbable that the
appellant would enter her house and forcefully raped her with the children
sleeping in the adjoining room not waking up. This is very suggestive that
the prosecutrix was having an affair with the appellant and there is no
incident of rape whatsoever.
19. The appellant was also medically examined by the Doctor (P.W. 4)
who has deposed that he has drawn the required samples and according to
him, he did not find any activity of recent sexual intercourse by the
appellant.
20. Another limb of the argument of the learned counsel for the appellant
is that there was inordinate delay in lodging the FIR by the
complainant/prosecutrix which has remained unexplained. The reasons
given for the delay in filing the FIR was that on the third time when the
accused person/appellant visited her house, she informed her husband,
children and her elder brother about the incident after which the family
asked the accused to come and asked for forgiveness, but he did not come.
Thereafter, the Complaint/FIR was filed. This, according to the learned
counsel for the appellant is not a plausible explanation for the delay in
lodging of the FIR.
21. The appellant has further submitted that the victim’s husband (P.W. 2)
did not corroborate the version of the victim’s account inasmuch as, after the
victim informed him about the incident, he had informed the village head
and was advised to report the matter to the police. However, the prosecutrix
has stated that she had never inform about the incident to the village head
22. As to the investigation carried out by the Investigating Officer, the
learned counsel for the appellant has submitted that the investigation is not
up to the mark since the I.O did not examine or produce any of the victim’s
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children as witnesses, inspite of their presence at the crime scene.
23. The evidence of the prosecution when read as a whole, is full of
discrepancies and does not inspire confidence. The gaps in the evidence
would show that it is highly improbable that such an incident ever took
place. It is submitted that it is a settled position that conviction can be based
upon the sole testimony of the prosecutrix provided if it is reliable and is of
sterling quality.
24. The prosecution having failed to prove the case beyond reasonable
doubt, cannot take support from the weakness of the case of defence and as
such, the Trial Court in its finding did not pay any attention to the
contradictions and discrepancies in the version of the prosecutrix and has
proceeded to convict the appellant under Sections 448/376 (2) (n)/506 IPC
solely on her testimony, the decision arrived at in the impugned judgment
and order is liable to be set aside and quashed it is submitted.
25. In support of his submissions and contentions, the learned counsel for
the appellant has cited the following cases:
i) Sadashiv Ramrao Hadbe v. State of Maharashtra Anr:
(2006) 10 SCC 92 at paragraph 9.
ii) Ramdas v. State of Maharashtra: (2007) 2 SCC 170: (2007) 1
SCC (Cri) 546 at page 179 paragraph 23.
iii) Abbas Ahmed Choudhury v. State of Assam: (2010) 12 SCC
115, para 11.
iv) Raju v. State of Madhya Pradesh: (2008) 15 SCC 133, para
11.
v) Rai Sandeep @ Deepu v. State of NCT of Delhi): (2012) 8
SCC 21, para 22.
vi) Tameezuddin @ Tammu v. State (NCT of Delhi): (2009) 15
SCC 566, para 9.
vii) Tukaram v. State of Maharashtra: (1979) 2 SCC 143: 1979
SCC (Cri) 381 at page 149, para 16.
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viii) Ritesh Tiwari v. State of U.P: (2010) 10 SCC 677 : (2010) 4
SCC (Civ) 315 at page 686, para 37 b.
ix) Maria Margarida Sequeira Fernandes v. Erasmo Jack de
Sequeira: (2012) 5 SCC 370 at page 383, para 33.
x) Bhimanna v. State of Karnataka: (2012) 9 SCC 650 at page
660, para 28.
xi) Goma Chettri v. Bhuban Chandra Sharma: (2013) SCC
OnLine Megh 194: 2013 Cri LJ 3000 at page 3004, para 18.
26. The learned AAG Mr. N.D. Chullai assisted by Mr. A.H.
Kharwanlang, learned GA has appeared on behalf of the State respondent
and apart from the oral submission made before this Court has also filed the
written submission on behalf of the respondent No. 1 2.
27. The written submission would show that the brief facts of the case
was cited which corresponds with the materials on record and is not required
to be repeated as the same has been recounted above.
28. The State respondent has approached this case by posing the
following questions:
i) Whether the learned District and Sessions Court has flawed in
sentencing the appellant under Sections 448, 376 (2) (n) and
506 IPC based on the sole testimony of the prosecutrix and the
prosecution witness?
ii) Whether minor discrepancies in the evidence produced before
the learned District and Sessions Court can be taken as sole
reason for acquitting the accused of the charges of rape of a
literate and rural victim? and
iii) Whether inordinate delay in filing FIR by the rape victim is
cogent reason for dismissing the conviction and sentence of the
appellant?
29. Addressing the first issue, the State respondent has submitted that it is
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a settled law that in matters involving sexual harassment, molestation, etc.
the Court is duty bound to deal with such cases with utmost sensitivity and
minor contradictions or insignificant discrepancies in the statement of the
prosecutrix should not be a ground for throwing out an otherwise reliable
prosecution case.
30. The State respondent has submitted that the conviction of the accused
is based upon the sole evidence given by the victim in her deposition, being
an adult and of full understanding, knowing fully well the repercussions of
her actions especially by filing a case against her own maternal uncle whom
she has no reason to falsely implicate and being a wife and a mother of ten
children living in a small closed knit village would not risk humiliating
herself as such.
31. In support of his contention, the State respondent has relied upon the
following case laws:
i) Vijay v. State of M.P: (2010) 8 SCC 191 at paragraph 9.
ii) Ranjit Hazarika v. State of Assam: (1998) 8 SCC 635 at
paragraph 8.
iii) Bharwada Bhoginbhai Hirjibhai v. State of Gujarat: (1983) 3
SCC 217 at paragraphs 9 and 10.
32. As regard the second issue, the State respondent has admitted that
there may be minor discrepancies in the evidence of the prosecutrix,
however the fact remains that the prosecutrix was raped by her maternal
uncle, the appellant herein and the learned Sessions Court has agreed that the
statements given by P.W. 1, P.W. 2 and P.W. 5 corroborated the statement
made by the prosecutrix and upon appreciation of evidence, the learned
Court has formed an opinion about the credibility thereof and in normal
circumstances, the appellate Court would not be justified to review it once
again without justifiable reason. In this regard, reliance was placed in the
case of Vijay Alias Chinee v. State of Madhya Pradesh: (2010) 8 SCC 191
at paragraph 22 and also in the case of State of Punjab v. Gurmit Singh:
8
(1996) 2 SCC 384 with the relevant paragraphs of the judgment being
paragraphs 21, 23 and 24. Paragraph 20 in the case of Narendra Kumar v.
State (NCT of Delhi): (2012) 7 SCC and also the case of B.C Deva v. State
of Karnataka: (2007) 12 SCC 122 at paragraph 18 was also referred in this
connection.
33. Coming to the third issue, the State respondent has submitted that the
reason for delay in filing the FIR as recorded by the learned Trial Court was
duly explained by the P.W. 1 in her testimony and corroborated by P.W. 2.
The delay in filing the FIR was due to the fact that the accused/appellant has
threatened the prosecutrix and the apprehension by the prosecutrix that the
accused/appellant used to practice Voodoo and as such, she was scared to
inform anyone. Another reason for the delay in filing the FIR is that the
husband and the brother of the victim tried to settle the matter with the
appellant/accused within the household, but the accused/appellant failed to
address the issue which resulted the victim to file the FIR.
34. Referring once again to the case of Vijay Alias Chinee (supra) at
paragraph 11 of the same, the Supreme Court has noted thus; “… the Court
further held that delay in filing FIR for sexual offence may not be even
properly explained, but if found natural, the accused cannot be given any
benefit thereof…”
35. The case of State of Himachal Pradesh v. Sanjay Kumar Alias
Sunny: (2017) 2 SCC 51 at paragraphs 24, 25 and 26 as well as the case of
State of H.P. v. Gian Chand: (2001) 6 SCC 71 at paragraph 12 was also
cited by the State respondent to support its case. It was finally submitted that
in view of the facts and circumstances of the case and the law discussed
above, this appeal may be dismissed.
36. After giving due consideration to the submission and contentions of
the rival parties, this Court is of the opinion that this case hinges upon the
value and substance of the evidence of the prosecutrix and the support taken
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from other materials on record.
37. In this regard, the evidence of the prosecutrix as recorded by the
learned Sessions Judge read with the statement given by her under Sections
161 and 164 Cr.P.C. has to be revisited to see whether the conclusion arrived
at by the learned Sessions Judge was the correct proposition of law or not.
38. The prosecutrix was the one who has filed the FIR, stating therein that
the accused/appellant had raped her while she was sleeping with her children
at home on four occasions, even giving the exact dates when the said
occurrences took place, being on 22.09.2014, 23.09.2014, 28.04.2014 and
30.04.2015.
39. In her statement before the Magistrate under Section 164 Cr.P.C. the
prosecutrix has stated that the accused/appellant raped her on 29.09.2014
while she was sleeping with her son and again, he raped her on 19.05.2015.
She did not shout since he warned and threatened to kill her as he is a
sorcerer. Both the dates cited before the Magistrate are not found in the list
of dates given in the FIR.
40. In her deposition before the Court as P.W. 1, in her examination-in-
chief, the prosecutrix has deposed that on 22.11.2014, the accused, who is
her uncle forcefully, entered her house at 11.30 PM and raped her while she
was sleeping with her young children. After the incident the accused came
three times but could not do anything since her children and husband were
there. In her cross-examination, the prosecutrix has admitted that the
accused raped her only once, that is, on 22.11.2014. Again, the date
22.11.2014 is nowhere seen in the FIR and the statement under Section 164
Cr.P.C.
41. On observation of the testimony of the prosecutrix as noticed above, it
appears that the facts as portrayed are inconsistent with the allegation of the
prosecutrix, inasmuch as, in a case of allegation of rape or sexual assault, it
is expected that the victim being an adult as in this case, having confidently
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given the dates when the said sexual assault/rape had taken place, but in
subsequent narration particularly in her statement under Section 164 Cr.P.C
and in her deposition before the Court, the victim has failed to explain the
circumstances as to how the accused/appellant has committed the offence on
the different dates cited by her.
42. Some of the other discrepancies notice by this Court which was not
taken into account by the learned Sessions Judge in the impugned judgment
and order is the fact that the victim/prosecutrix has stated in her complaint,
that the accused/appellant had forcefully entered her house while she was
sleeping with her small children and thereafter, he raped her four times i.e.
on 22.09.2014, 23.09.2014, 28.04.2015 and 30.04.2015. In her evidence, the
prosecutrix has not been able to explain as to how the accused/appellant was
able to forcefully enter her house at night when it is expected that the house
would have been bolted from inside and according to the evidence of the
Investigating Officer who has visited the place of occurrence, there is no
sign of forcible entry. Again, the prosecutrix has stated that at the time of
occurrence, she was sleeping with her young children and her youngest child
who was a breast feeding child got up and started crying, while her other
children were sleeping at some distance.
43. Though the victim/prosecutrix has stated that she did not cry out as
she was threatened by the accused/appellant yet by any logic, it cannot be
understood as to how in a house where about seven or eight children are
residing and sleeping within the house, the sound of a baby crying in the
dead of night could not wake them up.
44. The victim/prosecutrix has also deposed that the accused after
committing rape, left the house and thereafter, came three times but could
not do anything since her children and husband were there, after which she
informed her husband, children and her elder brother about the incident.
45. It cannot be understood as to how a victim who has been sexually
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assaulted and raped would keep quiet about the matter and inform about the
same only after a considerable period of time which according to her
statement in her cross-examination was about two to three weeks.
46. This inconsistency in the narration of the victim/prosecutrix according
to this Court is not a minor discrepancy and has cast more doubt than light
on the whole incident.
47. From the evidence of P.W. 3, Dr. Sandip M. Sangma, who has
examined the victim on 23.05.2015 and has collected samples such as blood,
vaginal swab, saliva and nail scrapping, the doctor found that the victim was
clinically and physically healthy with no recent injury on the body or the
private part and there was no sign of recent sexual intercourse.
48. P.W. 4, Dr. D. Laloo has also examined the accused/appellant on
24.05.2015 and has found that there are no signs of recent sexual
intercourse.
49. Apart from the ocular evidence tendered by the victim/prosecutrix as
to the offence of rape perpetrated on her by the accused, the medical
evidence would reveal a contradictory situation. Even the evidence of the
I/O as P.W. 5 revealed that the exhibit (presumed to be the samples lifted by
the doctors from the victim as well as the accused) were sent to FSL but the
FSL report was not produced in evidence and as such, nothing can be
ascertained from this aspect of the matter to confirm whether sexual
intercourse (rape) was committed or not.
50. The delay in filing the FIR was sought to be explained by the victim
on the ground that she was threatened by the accused and as such, she kept
quiet. However, eventually after about 8(eight) months or so after the first
incident, the victim informed her husband and others and the FIR was filed
on 23.05.2015. There is no plausible explanation for the inordinate delay.
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51. Coming to the law cited by the State respondent, on the issue of the
relevance of the testimony of a sole witness (victim) of sexual assault, it is
seen that in the case of Vijay Alias Chinee v. State of Madhya Pradesh:
(2010) 8 SCC 191 at paragraph 9 of the same, the Hon’ble Apex Court has
held as under:-
“9. In State of Maharashtra v. Chandraprakash Kewalchand
Jain AIR 1990 SC 658, this Court held that a woman, who is the
victim of sexual assault, is not an accomplice to the crime but is
a victim of another person’s lust and, therefore, her evidence
need not be tested with the same amount of suspicion as that of
an accomplice. The Court observed as under :- (SCC p. 559,
para 16)
“16. A prosecutrix of a sex offence cannot be put on par
with an accomplice. She is in fact a victim of the crime.
The Evidence Act nowhere says that her evidence cannot
be accepted unless it is corroborated in material
particulars. She is undoubtedly a competent witness
under Section 118 and her evidence must receive the
same weight as is attached to an injured in cases of
physical violence. The same degree of care and caution
must attach in the evaluation of her evidence as in the
case of an injured complainant or witness and no more.
What is necessary is that the Court must be alive to and
conscious of the fact that it is dealing with the evidence
of a person who is interested in the outcome of the
charge levelled by her. If the court keeps this in mind and
feels satisfied that it can act on the evidence of the
prosecutrix, there is no rule of law or practice
incorporated in the Evidence Act similar to illustration
(b) to Section 114 which requires it to look for
corroboration. If for some reason the court is hesitant to
place implicit reliance on the testimony of the prosecutrix
it may look for evidence which may lend assurance to her
testimony short of corroboration required in the case of
an accomplice. The nature of evidence required to lend
assurance to the testimony of the prosecutrix must
necessarily depend on the facts and circumstances of
each case. But if a prosecutrix is an adult and of full
understanding the court is entitled to base a conviction
on her evidence unless the same is shown to be infirm
and not trustworthy. If the totality of the circumstances
appearing on the record of the case disclose that the13
prosecutrix does not have a strong motive to falsely
involve the person charged, the court should ordinarily
have no hesitation in accepting her evidence.”
52. Again in the case of Ranjit Hazarika v. State of Assam: (1998) 8
SCC 635 at paragraph 6 of the same, the Hon’ble Apex Court has referred to
the case of “State of Punjab v. Gurmit Singh: (1996) 2 SCC 384, wherein
at paragraph 6 of Ranjit Hazarika’s case it was observed as follows:-
“6. The evidence of the prosecutrix in this case inspires
confidence. Nothing has been suggested by the defence as to
why she should not be believed or why she would falsely
implicate the appellant. We are unable to agree with the
learned counsel for the appellant that in the absence of
corroboration of the statement of the prosecutrix by the medical
opinion, the conviction of the appellant is bad. The prosecutrix
of a sex offence is a victim of a crime and there is no
requirement of law which requires that her testimony cannot be
accepted unless corroborated. In State of Punjab v. Gurmit
Singh (1996) 2 SCC 384, to which one of us (Anand, J.) was a
party, while dealing with this aspect observed: (SCC pp. 395-
96, para 8)
“The courts must, while evaluating evidence, remain
alive to the fact that in a case of rape, no self-respecting
woman would come forward in a court just to make a
humiliating statement against her honour such as is
involved in the commission of rape on her. In cases
involving sexual molestation, supposed considerations
which have no material effect on the veracity of the
prosecution case or even discrepancies in the statement
of the prosecutrix should not, unless the discrepancies
are such which are of fatal nature, be allowed to throw
out an otherwise reliable prosecution case. The inherent
bashfulness of the females and the tendency to conceal
outrage of sexual aggression are factors which the courts
should not overlook. The testimony of the victim in such
cases is vital and unless there are compelling reasons
which necessitate looking for corroboration of her
statement, the courts should find no difficulty to act on
the testimony of a victim of sexual assault alone to
convict an accused where her testimony inspires
confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the14
same, as a rule, in such cases amounts to adding insult to
injury. Why should the evidence of a girl or a woman
who complains of rape or sexual molestation be viewed
with doubt, disbelief or suspicion? The court while
appreciating the evidence of a prosecutrix may look for
some assurance of her statement to satisfy its judicial
conscience, since she is a witness who is interested in the
outcome of the charge leveled by her, but there is no
requirement of law to insist upon corroboration of her
statement to base conviction of an accused. The evidence
of a victim of sexual assault stands almost on a par with
the evidence of an injured witness and to an extent is
even more reliable. Just as a witness who has sustained
some injury in the occurrence, which is not found to be
self-inflicted, is considered to be a good witness in the
sense that he is least likely to shield the real culprit, the
evidence of a victim of a sexual offence is entitled to
great weight, absence of corroboration notwithstanding.
Corroborative evidence is not an imperative component
of judicial credence in every case of rape. Corroboration
as a condition for judicial reliance on the testimony of
the prosecutrix is not a requirement of law but a
guidance of prudence under given circumstances. It must
not be overlooked that a woman or a girl subjected to
sexual assault is not an accomplice to the crime but is a
victim of another person’s lust and it is improper and
undesirable to test her evidence with a certain amount of
suspicion, treating her as if she were an accomplice.
Inferences have to be drawn from a given set of facts and
circumstances with realistic diversity and not dead
uniformity lest that type of rigidity in the shape of rule of
law is introduced through a new form of testimonial
tyranny making justice a casualty. Courts cannot cling to
a fossil formula and insist upon corroboration even if,
taken as a whole, the case spoken of by the victim of sex
crime strikes the judicial mind as probable.”
We are in agreement with the aforesaid view”.
53. Yet another case being Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat: (1983) 3 SCC 217 was cited by the State respondent to argue that
the corroboration of the evidence of a rape victim is not to be taken in the
same light in India as it is done in the western countries. Paragraphs 9 and
15
10 of the said judgment has been quoted as below:-
“9. In the Indian setting, refusal to act on the testimony of a
victim of sexual assault in the absence of corroboration as a
rule, is adding insult to injury. Why should the evidence of the
girl or the woman who complains of rape or sexual molestation
be viewed with the aid of spectacles fitted with lenses tinged
with doubt, disbelief or suspicion? To do so is to justify the
charge of male chauvinism in a male dominated society. We
must analyze the argument in support of the need for
corroboration and subject it to relentless and remorseless
cross-examination. And we must do so with a logical, and not
an opiniated, eye in the light of probabilities with our feet
firmly planted on the soil of India and with our eyes focused on
the Indian horizon. We must not be swept off the feet by the
approach made in the western world which has its own social
milieu, its own social mores, its own permissive values, and its
own code of life. Corroboration may be considered essential to
establish a sexual offence in the backdrop of the social ecology
of the western world. It is wholly unnecessary to import the
said concept on a turnkey basis and to transplant it on the
Indian soil regardless of the altogether different atmosphere,
attitudes, mores, responses of the Indian Society, and its
profile. The identities of the two worlds are different. The
solution of problems cannot therefore be identical. It is
conceivable in the western society that a female may level false
accusation as regards sexual molestation against a male for
several reasons such as:-
(1) The female may be a ‘good digger’ and may well
have an economic motive – to extract money by
holding out the gun of prosecution or public
exposure.
(2) She may be suffering from psychological neurosis
and may seek an escape from the neurotic prison
by phantasizing or imagining a situation where she
is desired, wanted, and chased by males.
(3) She may want to wreak vengeance on the male for
real or imaginary wrongs. She may have a grudge
against a particular male, or males in general, and
may have the design to square the account.
(4) She may have been induced to do so in
consideration of economic rewards, by a person
interested in placing the accused in a16
compromising or embarrassing position, on
account of personal or political vendetta.
(5) She may do so to gain notoriety or publicity or to
appease her own ego, or to satisfy her feeling of
self-importance in the context of her inferiority
complex.
(6) She may do so on account of jealousy.
(7) She may do so to win sympathy of others.
(8) She may do so upon being repulsed.
10. By and large these factors are not relevant to India, and
the Indian conditions. Without the fear of making too wide a
statement, or of overstating the case, it can be said that rarely
will a girl or a woman in India make false allegations of sexual
assault on account of any such factor as has been just enlisted.
The statement is generally true in the context of the urban as
also rural society. It is also by and large true in the context of
the sophisticated, not so sophisticated, and unsophisticated
society. Only very rarely can one conceivably come across an
exception or two and that too possibly from amongst the urban
elites. Because (1) A girl or a woman in the tradition-bound
non-permissive society of India would be extremely reluctant
even to admit that any incident which is likely to reflect on her
chastity had ever occurred. (2) She would be conscious of the
danger of being ostracized by the society or being looked down
by the society including by her own family members, relatives,
friends, and neighbours. (3) She would have to brave the whole
world. (4) She would face the risk of losing the love and respect
of her own husband and near relatives, and of her matrimonial
home and happiness being shattered. (5) If she is unmarried,
she would apprehend that it would be difficult to secure an
alliance with a suitable match from a respectable or an
acceptable family. (6) It would almost inevitably and almost
invariably result in mental torture and suffering to herself. (7)
The fear of being taunted by others will always haunt her. (8)
She would feel extremely embarrassed in relating the incident
to others being overpowered by a feeling of shame on account
of the upbringing in a tradition-bound society where by and
large sex is taboo. (9) The natural inclination would be to
avoid giving publicity to the incident lest the family name and
family honour is brought into controversy. (10) The parents of
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an unmarried girl as also the husband and members of the
husband’s family of a married woman, would also more often
than not, want to avoid publicity on account of the fear of social
stigma on the family name and family honour. (11) The fear of
the victim herself being considered to be promiscuous or in
some way responsible for the incident regardless of her
innocence. (12) The reluctance to face interrogation by the
investigating agency, to face the court, to face the cross-
examination by counsel for the culprit, and the risk of being
disbelieved, acts as a deterrent.”
54. In reply on law points, the appellant has cited the case of Sadashiv
Ramrao Hadbe v. State of Maharashtra Anr: (2006) 10 SCC 92, wherein
at paragraph 9 of the same, the Hon’ble Apex Court has held that:
“9. It is true that in a rape case the accused could be
convicted on the sole testimony of the prosecutrix, if it is
capable of inspiring confidence in the mind of the court. If the
version given by the prosecutrix is unsupported by any medical
evidence or the whole surrounding circumstances are highly
improbable and belie the case set up by the prosecutrix, the
court shall not act on the solitary evidence of the prosecutrix.
The courts shall be extremely careful in accepting the sole
testimony of the prosecutrix when the entire case is improbable
and unlikely to happen.
55. Similarly, in the case of Abbas Ahmed Choudhury v. State of Assam:
(2010) 12 SCC 15 and Raju v. State of Madhya Pradesh: (2008) 5 SCC 33,
both at paragraph 11 and at paragraph 9 in the case of Tameezuddin @
Tammu v. State (NCT of Delhi): (2009) 15 SCC 566, the Hon’ble Apex
Court has laid down the same principle that the prosecution has to prove its
case beyond reasonable doubt and that there could be no presumption that a
prosecutrix would always tell the entire story truthfully. This principle was
also followed by the High Court of Meghalaya in the case of Goma Chettri
v. Bhuban Chandra Sharma: 2013 Crl. LJ 3000 at paragraph 18 of the
same.
56. In the light of the above proposition of law, on appreciation of the
evidence in the case under consideration, notwithstanding the fact that the
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issue of delay of filing of FIR is one of the issues to be addressed by this
Court but not required to be dealt with at length. A general summary of the
prosecution’s case would show that the guilt of the accused appellant has not
been proved beyond reasonable doubt and as such, he is liable to get the
benefit of doubt which was denied to him vide the impugned judgment and
order/sentence.
57. On appraisal of the facts and circumstances of the case, since the
prosecution has failed to prove the initial offence of rape, therefore, the
offence of trespassing and criminal intimidation also failed to make an
impact as far as the guilt of the accused/appellant is concerned.
58. Accordingly, I find that the appellant has made out a case of reversal
of the conviction and the impugned judgment and order dated 28.02.2019
passed by the learned District and Sessions Judge, Ri-Bhoi District is hereby
set aside and quashed.
59. The accused/appellant is directed to be set at liberty if not wanted in
any other case.
60. Registry is directed to send back the Lower Court case record along
with a copy of this order to the Court of the learned District Sessions
Judge, Ri-Bhoi District, Nongpoh and also another copy to the
Superintendent, District Jail, Ri-Bhoi District, Nongpoh for compliance.
61. With the above this case is hereby disposed of. No cost.
Judge
Meghalaya
12.03.2020
“D. Nary, PS”
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