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Sri Sanjay Malakar @ Bhuto vs The State Of Assam And Anr on 27 February, 2020

Page No. 1/9

GAHC010112052016

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 136/2016

1:SRI SANJAY MALAKAR @ BHUTO
S/O LATE RAM GOPAL MALAKAR, R/O 26 NO. COLONY, P.O. AMINGAON,
P.S. JALUKBARI, DIST. KAMRUP M, ASSAM.

VERSUS

1:THE STATE OF ASSAM and ANR

2:MRS. DEEPA DAS
W/O LATE PRADIP DAS
R/O 26 NO. COLONY
P.O. AMINGAON
P.S. JALUKBARI
DIST. KAMRUP M
ASSAM

Advocate for the Petitioner : MR.T DEWAN
Advocate for the Respondent : P.P., ASSAM

BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT ORDER (ORAL)
Date : 27-02-2020

Heard Mr. R. Mazumdar, learned counsel for the accused-appellant and Mr. B. B. Gogoi,
learned Additional Public Prosecutor, State of Assam. It is found from the records that the
notice to the respondent no. 2-informant had been duly served. But despite such service,
there is no representation on behalf of the respondent no. 2-informant.

2. This appeal under Section 374(2), Code of Criminal Procedure, 1973 (CrPC, for short)
is directed against the judgment and order dated 29.04.2016 passed by the learned
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Additional Sessions Judge No. IV, FTC, Kamrup (Metro), Guwahati in Sessions Case No.
331/2011. By the said judgment and order dated 29.04.2016, the accused-appellant has been
found guilty of the offences under Section 376, Indian Penal Code (IPC, for short) and under
Section 357, IPC. For commission of the offence under Section 376, IPC, the accused-
appellant has been sentenced to undergo rigorous imprisonment for 7 (seven) years and to
pay a fine of Rs.5,000/-, in default of payment of fine, to undergo simple imprisonment for
another 1 (one) year. In connection with the offence under Section 357, IPC, he has been
sentenced to undergo rigorous imprisonment for 1 (one) year and to pay a fine of Rs.
1,000/-, in default of payment of fine, to undergo simple imprisonment for 5 (five) years. The
sentences are ordered to run concurrently.

3. The prosecution case, as unfolded from the First Information Report (FIR) lodged by
the prosecutrix (P.W.1) on 10.07.2009 before the In-Charge, Amingaon Police Post, is that at
about 2-30 a.m. in the night intervening 07.07.2009 and 08.07.2009, the accused, a resident
of the same colony, forcefully entered into her house when she was sleeping. He holding an
axe on her neck, gagged her mouth with a cloth and tied her hands and thereafter,
committed rape on her. It was further stated that she did not inform about the incident to
anybody but on 10.07.2009, she was compelled to lodge the FIR.

4. On receipt of the FIR (Ext.-1), the In-Charge, Amingaon Police Post registered a
general diary entry being G.D. Entry No. 152 dated 10.07.2009 and forwarded the FIR to the
Officer In-Charge, Jalukbari Police Station for registering a case and took up the investigation
of the case. On receipt of the FIR, the Officer In-Charge, Jalukbari Police Station registered a
case being Jalukbari Police Station Case No. 356/2009 under Section 376, IPC.
Correspondingly, G.R. Case No. 6130/2009 had been registered.

5. During the course of investigation, the I.O. (P.W.5) visited the place of occurrence and
stated to have prepared a sketch map (Ext.-3) of the place of occurrence. The statements of
the witnesses including the prosecutrix, were recorded under Section 161, CrPC and the
prosecutrix was sent for medical examination to the Guwahati Medical College Hospital (the
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GMCH, for short) on 10.07.2009. Thereafter, the statement of the prosecutrix was recorded
under Section 164, CrPC before the Court of learned Special Judicial Magistrate, Assam,
Guwahati on 14.07.2009. After collection of the medical examination report (Ext.-5), the I.O.
submitted a charge sheet being Charge Sheet No. 237/2009 (Ext.-4) on 30.12.2009 under
Section 173, CrPC finding a case established against the accused on the basis of the materials
collected during the course of investigation, noting that the accused had been found to be in
abscondance. On 07.07.2011, the accused surrendered before the Court of learned

Magistrate. On submission of the charge sheet, the learned Judicial Magistrate, 1 st Class,
Kamrup, Guwahati finding the case to be triable by the Court of Session committed the case
to the Court of Session by an order dated 03.09.2011 after compliance of the formalities
under Section 207, CrPC.

6. On receipt of the case records of G.R. Case No. 6130/2009, Sessions Case No.
331/2011 has been registered. On appearance of the accused and after hearing the Public
Prosecutor and the learned defence counsel and upon perusal of the materials on record, the
learned Sessions Judge framed charges under Section 457, IPC and under Section 376, IPC
against the accused on 21.01.2012. On charges being read over, interpreted and explained to
the accused, he pleaded not guilty and claimed to be tried.

7. During the course of the trial, the prosecution side in order to bring home the charges
against the accused had examined 6 (six) witnesses and exhibited 5 (five) nos. of documents,
as indicated above. After closure of the prosecution evidence, the accused was examined
under Section 313, CrPC and had informed the Court of adducing evidence in defence.
Thereafter, the defence examined 1 (one) witness as D.W.1. After examination and appraisal
of the evidence on record, the learned trial Court has convicted and sentenced the accused,
as indicated above.

8. Mr. Mazumdar, learned counsel appearing for the accused-appellant has submitted that
there was no eye-witness to the incident alleged, except the prosecutrix. The medical
evidence does not support the version of the prosecutrix. The appearance of P.W.2 at the
place of occurrence immediately after the occurrence appears to be doubtful one in view of
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the version projected by the prosecutrix in the FIR. It is the testimony of the prosecutrix
which has to be closely examined. He submits that the versions of the prosecutrix given at
different points of time were at variance with each other and therefore, the testimony of the
prosecutrix cannot be made the sole basis of conviction.

9. Mr. Gogoi, learned Additional Public Prosecutor has submitted that as the medical
examination of the prosecutrix was done after few days, it is only natural that there could not
be any evidence as regards injury but absence of any injury does not preclude a Court from
considering the statement of the prosecutrix as the sole basis of conviction if the same is
found to be trustworthy and reliable. In the instant case, he submits, the testimony of the
prosecutrix is found to be reliable and therefore, the learned trial Court has convicted the
accused accordingly.

10. I have given due consideration to the submissions advanced by the learned counsel for
the parties and also perused the materials available in the case records of Sessions Case No.
331/2011, in original.

11. As has been indicated above, the prosecution had examined 6 (six) prosecution
witnesses. The prosecutrix was examined as P.W.1 and P.W.2 was one Smti. Chaya Rani
Chettri. The other witnesses are :- P.W.3 :- Smti. Parvati Das; P.W.4 :- Sri Lalu Dey; P.W.5 :-
Sri Tarun Talukdar, Assistant Sub-Inspector of Police, I.O.; and P.W.6 :- Dr. R. Chaliha, Head of
the Department, Department of Forensic Medicines, GMCH.

12. Before looking into the testimony of the prosecutrix, the testimonies of other witnesses
are looked into. P.W.3 deposed that the the prosecutrix was the wife of her brother-in-law.
She used to know both the accused and the prosecutrix. She was informed by her mother-in-
law after 5 (five) days of the incident to the effect that the prosecutrix had instituted a case
against the accused but she was not aware why such case was lodged. She claimed
ignorance about anything in respect of the case. P.W.4 is a co-villager who knew both the
prosecutrix and the accused. He stated that he heard about the incident only on the next day
but he was not examined by police. He did not have any relation with the prosecutrix and he
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was not told about the incident by her. Thus, the testimonies of these 2 (two) witnesses –
P.W.3 and P.W.4 – are of no assistance to the case of the prosecution.

13. P.W.6 had deposed that the medical examination of the prosecutrix was carried out at
the GMCH on 10.07.2009 in connection with Amingaon Police Post G.D. Entry No. 152 dated
10.07.2009. On examination, he recorded his findings as under :-

“Genital examination :- (a) Genital organs :- Health, (b) Vulva :- Labia minora exposed on gentle
abduction of thighs, (c) Hymen :- Carunculae myrtiformes, (d) Vagina :- Healthy, roomy with decreased
rugosity, (e) Cervix :- Healthy, as closed, (f) Uterus :- Healthy, not palpable clinically, (g) Evidence of
venereal deceases :- Not detected, (h) Evidence of injury on her body or private parts :- 1) A linear
abrasion of size 6 cm, reddish brown in colour present in the front of neck directed obliquely upward
towards the chin, (2) A linear abrasion of size 9 cm, reddish brown in colour present in the front of neck
situated transversely 3 cm below thyroid cartilage and 5 cm above suprasternal notch, (i) Vaginal
smears taken on glass slides for laboratory investigation :- One vaginal smear taken on glass slide from
posterior fornix, Wearing clothes :- (a) Evidence of struggle :- Not detected. (b) Evidence of stain :- Not
detected. Mental condition :- No abnormality detected at the time of examination, (a) Co-operation
and behavior :- co-operative, good, (b) Intelligence and memory :- Fair.

Report of radiological investigation :- (1) X-ray wrist joint, elbow joint, shoulder joint :- Epiphyseal union
of bones are completed around the joints. (2) X-ray pelvic bones :- Epiphyseal union of bones for illiac
crest and ischical tuberosity are almost completed.

[N.B.- However in our opinion, sacral vertebraes are united.]
Result of Laboratory investigation :- Vaginal smear does not show spermatozoa or gonococci.”

P.W. 6 had deposed about opinion reached after such medical examination. On the
basis of the physical examination and radiological and laboratory investigation, it was opined
that (1) there was no evidence of recent sexual intercourse on the person of the prosecutrix;
(2) her age was above 25 years; (3) there was no evidence of injury on her body except that
was described above; and (4) there was no evidence of injury found in her private parts. The
medical examination report had been exhibited as Ext.-5. In his cross-examination, P.W.6
deposed that vaginal organs were healthy at the time of examination and injuries were not
related to any sexual act. Injuries had been caused by blunt force impact and no evidence of
sexual intercourse was detected at the time of examination.

14. Thus, from the above testimony of the doctor and the medical examination report
(Ext.-5), it has emerged that there is no medical evidence to support the version of the
prosecutrix as regards commission of rape. The other injuries were not by any sharp
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weapons.

15. P.W.5 i.e. the I.O. had stated that it was on 10.07.2009, the prosecutrix instituted the
written FIR alleging that the accused had committed rape on her on 07.07.2009 at about 12-
30 a.m. Then on the basis of the said FIR, he along with the prosecutrix visited the place of
occurrence and examined the witnesses found available there. He thereafter, prepared the
sketch map (Ext.-3) and sent the prosecutrix for medical examination. The accused was not
found despite search. In his cross-examination, the I.O. had stated that he had not found
anything broken in the house of the prosecutrix. The prosecutix did not tell him as to how the
accused had entered into her house. The prosecutrix was asked about cloth, axe, gamosa,
etc. but she did not hand over anything to him.

16. It is in the aforesaid premises, the testimonies of the prosecutrix and P.W.-2 are to be
examined and analyzed. In her testimony as P.W.1., the prosecutrix had deposed that on the
date of the incident when she was sleeping along with her 2 (two) sons, the accused entered
into her house. He thereafter, took out a knife from below her bed and held the same on her
neck. Then she got awake and made a noise. The accused then gagged her mouth with a
gamosa. She found the accused in an inebriated condition and he disclosed his name.
Thereafter, the accused tied her with a rope from behind and committed rape on her. After
committing rape he left the place. She thereafter, somehow untying the rope, made noise and
then P.W.2 reached the place. On enquiry by P.W.2, the prosecutrix stated to have told her
about the incident. She stated to have lodged the FIR in the Amingaon Police Post on the
next date. She further stated that the house was made of bamboo and it was for that reason,
the accused was able to enter inside the house. She exhibited and proved the FIR (Ext.-1)
and her statement recorded under Section 164, CrPC (Ext.-2). In her cross-examination, she
stated that the FIR was lodged after 3 (three) days. She further stated that though the
accused belonged to their village, she did not know about his occupation. Though at the
relevant point of time there was no light inside her house but there was some light coming in
from the outside lights nearby. She further stated that the accused tied her hands with the
rope after taking it out from below her bed. She denied the suggestions that there was no
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rape on her and that because of enmity with the accused, she had lodged a false case.

17. The above testimony of the above two witnesses if read conjointly with the FIR (Ext.1)
and the statement of the prosecutrix recorded under Section 164, CrPC (Ext.-2), then such
reading demonstrates several inconsistencies and embellishments. Her statements given at
various points of time are found to be at variance with each other. In the FIR, the prosecutrix
had stated that the accused had held an axe on her neck but in her statement recorded
under Section 164, CrPC, she stated that the accused had held a dao (machete) against her
neck. But in her testimony made before the Court, she stated the weapon as a knife. Axe,
dao and knife are three different kinds of weapons/instruments of different shapes and sizes.
The prosecutrix is a major lady and as per Ext.-2, she declared her age to be 27 years and as
per the medical examination report (Ext.-5), she was found to be aged above 25 years. It,
thus, cannot be conceived of that a lady of more than 25 years cannot distinguish between
an axe and a dao and for that matter, between a dao and a knife and between an axe and a
knife. In her FIR, the prosecutrix stated that the incident had happened in the night
intervening 07.07.2009 and 08.07.2009 but she did not disclose about the same to anybody
till the institution of the FIR on 10.07.2009. While deposing as P.W.-1, she stated that when
she made noise after getting herself freed from the tied rope then P.W.-2 came to the place
and asked her about the incident and she disclosed the incident to P.W.-2. P.W.-2 deposed
that she came out of the house during the night after hearing noise from the house of the
prosecutrix and the prosecutrix immediately told her about the accused committing rape on
her. This fact of disclosure of the incident to P.W.-2 by the prosecutrix immediately after the
occurrence runs contrary to the version reflected in the FIR wherefrom it has emerged that
for a period of three days the prosecutrix did not disclose about the incident to anybody. In
her statement recorded under Section 164, CrPC, the prosecutrix stated that she was able to
identify the accused in the light of the electric lamp of her house. But in her testimony before
the Court, she projected a different version where she had stated that there was no light
inside her house at the time of the incident and she was able to identify him only from the
light coming in from outside. It has emerged from the testimony that though she and the
accused were co-villagers, there were no visiting terms between them. It is, thus, difficult to
believe that the accused without having never visited the house of the prosecutrix at any
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earlier point of time, could be able to locate the weapon, be it an axe or a dao or a knife, and
the rope kept below the bed of the prosecutrix after entering into her house in the middle of
the night. On perusal of Ext-2 which was recorded on 14.07.2009 i.e. after four days of
lodging of the FIR on 10.07.2009, it is found that she did not make any noise out of the fear
of being assaulted. P.W.-2 who had been able to know about the incident of rape only from
the prosecutrix, did not see the accused at the place of occurrence.

18. It is settled that to hold an accused guilty for commission of an offence of rape, the
solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and is
found to be absolutely trustworthy and unblemished. A prosecutrix complaining about
commission of rape is not an accomplice. Absence of injuries on the private parts of the
victim does not falsify case of rape in all cases, nor can it be construed as presence of
consent. The opinion of a doctor that there was no evidence of any sexual intercourse or rape
is also not sufficient to disbelieve the victim. The injury of abrasion found present in the front
of the neck is not sufficient to establish rape in the present case. But at the same time, it is to
be borne in mind that false charge of rape is also not uncommon. In the present case, the
medical evidence does not corroborate the allegation of commission of rape. As a result, it is
the sole testimony of the prosecutrix which has been left to be tested as to whether the same
can be the solitary basis for conviction of rape. The evidence of the prosecutrix when read as
a whole, as has been discussed above, is found to be full of discrepancies and imbalanced.
The statements of the prosecutrix given at various points of time in the forms of the FIR
(Ext.-1) lodged by herself, the statement recorded under Section 164, CrPC (Ext.-2) and her
testimony before the Court as P.W.-1 are found to be at variance with each other in material
particulars and such variances in the evidence and the other circumstances make it difficult to
believe about the occurrence of the incident in the night intervening 07.07.2009 and
08.07.2009 inside the house of the prosecutrix, in the manner as has been sought to be
projected by the prosecutrix. The I.O., P.W.-6 stated that he was not handed over any clothes,
weapons, etc. by the prosecutrix and he did not witness anything broken in the house of the
prosecutrix. Thus, after having gone through and considering the statements of the
prosecutrix given at different points of time, along with other evidence, contradictions are
found in many aspects which are very material and of relevance. The medical evidence about
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an offence of rape, stated to have taken place as per the version of the prosecutrix, belies her
version. Further, there was a delay of three days in lodging of the FIR and there is no specific
explanation as regards the delay of said three days, except mentioning that she was
compelled to lodge the FIR after three days. Nothing has been disclosed as to why she was
not able to lodge the FIR for three days and what compelled her to lodge the FIR after three
days. As per her testimony, the accused had left the place after committing rape leaving her
tied from behind with a rope. Non-recovery of the weapon, rope, gamosa, etc. from the place
of occurrence and not finding any evidence as regards any forceful entry into the house
further throw doubt about the veracity of the allegations of rape and house-breaking by
night. On scrutiny, it is found that a charge was framed for the offence under Section 457,
IPC but the conviction has been recorded for an offence under Section 257, IPC. Be that as it
may, the prosecution evidence has been found to have fallen short in respect of either of the
two offences.

19. Therefore, in the facts and circumstances of the case, the conviction of the accused on
the basis of the sole testimony of the prosecutrix is not found sustainable for the reasons
discussed above. Thus, this Court is of the considered opinion that there is no scope to
sustain the conviction of the accused-appellant for commission of offences either under
Section 376, IPC or under Section 457, IPC or under Section 357, IPC and as a result, the
accused-appellant is entitled to the benefit of doubt as the prosecution has not been able to
prove its case beyond all reasonable doubts. Resultantly, for the reasons mentioned above,
the appeal stands allowed. The impugned judgment and order conviction and sentence
passed by the learned trial Court is hereby quashed and set aside. The accused-appellant is
acquitted of the charges leveled against him. The accused-appellant is to be set at liberty
forthwith, if he is not required in connection with any other case.

The records along with a copy of this judgment, are to be sent back forthwith.

JUDGE

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