Gauhati High Court
Crl.A./59/2012 on 3 April, 2025
GAHC010004742012
2025:GAU-AS:4701
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRIMINAL APPEAL NO.59 OF 2012
Sri Anil Das
Son of Sri Saitana Das,
Resident of Village Pachim Barkhetri,
PS- Mukalmua,
District- Nalbari, Assam.
.......Appellant.
-Versus-
The State of Assam,
.......Respondent.
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Appellant : Mr. N. Mahajan, Advocate.
For the Respondent : Mr. P. S. Lahkar, Additional Public
Prosecutor, Assam.
Date of Hearing : 03.04.2025.
Date of Judgment : 03.04.2025
Crl.A.59/2012 Page 1 of 34
JUDGMENT & ORDER (ORAL)
Heard Mr. N. Mahajan, learned counsel for the accused/appellant. Also heard Mr. P.S. Lahkar, learned Additional Public Prosecutor, Assam for the state respondent.
2. This appeal is presented against the judgment & order dated 26.03.2012 passed by the learned Session Judge, Nalbari in Session Case No. 30/2007, whereby the accused/appellant was convicted under Section 376 of the Indian Penal Code (hereinafter referred to as "IPC") and sentenced thereof to undergo Rigorous Imprisonment for 7 years and a fine of Rs. 2,000/- and in default of payment of fine, further Imprisonment for 2 months.
3. The brief facts of the case are that on 23.01.2006, PW-5 i.e. the informant lodged an FIR alleging inter alia that on that day at around 3:00 pm, the accused/appellant enticed his niece i.e. the prosecutrix(PW-1) to the Rampur L.P. School, where he raped her inside the school. Accordingly, a case was registered being Mukalmua P.S. Case No. 11/2006 under Section 376(2)(f) of the IPC.
4. Thereafter, the Investigating Officer i.e. PW-7 completed the investigation and submitted Charge-sheet under Section 376 of the IPC against the accused/appellant. Accordingly, the case was committed to the trial Court whereafter the trial Court framed charge under Section 376 (2) (f) of the IPC against the accused/appellant.
Crl.A.59/2012 Page 2 of 345. To bring home the charge, the prosecution adduced 7(seven) witnesses including the Medical Officer i.e. PW-6 and the Investigating Officer i.e. PW-7. The statement of the accused/appellant was thereafter recorded under Section 313 of the Code of Criminal Procedure (hereinafter referred to as "Cr.P.C.") and the defence adduced 2(two) witnesses. Upon conclusion of the trial and hearing, the trial Court convicted the accused/appellant under Section 376 of the IPC and sentenced him thereof. Against the aforesaid judgment & order of the trial Court, the present appeal has been preferred.
6. Mr. N. Mahajan, learned counsel for the accused/appellant submits that the evidence on record does not warrant conviction of the accused/appellant under Section 376 of the IPC and that the prosecution has miserably failed to prove the case against the accused/appellant beyond all reasonable doubt and as such, the order of conviction is liable to be set aside and quashed.
7. He further submits that the evidence of the prosecutrix is not reliable inasmuch as though she deposed during her examination before the trial Court that blood was coming out from her private parts and that there was full penetration twice, however, Medical Report indicates no sign of recent sexual intercourse. He further submits that the evidence of the prosecutrix is not reliable as there is material discrepancy in her evidence vis-a-vis the evidence of PW-5. He further submits that the medical Crl.A.59/2012 Page 3 of 34 evidence having not supported the allegation of commission of rape, the prosecution ought to have examined independent witnesses, who were present at that time in the place of occurrence and therefore non- examination of such independent witnesses weakens the case of the prosecution. He further submits that the finding of the trial Court, that the prosecutrix was a minor at the time of the alleged occurrence on the basis of the opinion of the Medical Officer i.e. PW-6 is totally erroneous inasmuch as the Medical Officer relied upon the Radiologist Report, which indicated the age of the prosecutrix below 16 years. He further submits that it is clearly evident from the evidence of the defence witnesses that it gave a different altogether story vis-a-vis the prosecution story and as such, the prosecution case becomes doubtful and on this score alone the impugned conviction ought to be set aside. He further submits that the defence taken by the accused/appellant under Section 313 of the Cr.P.C. having been not considered at all, the conviction is totally vitiated.
8. In support of the aforesaid submissions, he relies upon the following rulings:-
(i) Tameezuddin alias Tammu Vs State (NCT) of Delhi, reported in 2009 (15) SCC 556.
(ii) State of Uttarakhand Vs Darshan Singh, reported in 2020 (12) SCC 605.
(iii) Reena Hazarika Vs State of Assam, reported in 2019 (13) SCC 289.Crl.A.59/2012 Page 4 of 34
9. Per contra, Mr. P. S. Lahkar, learned Additional Public Prosecutor submits that it is apparent from the testimony of the prosecutrix that the accused/appellant has committed rape by taking her forcefully to the school in question and therefore, no further corroboration is required for the trial Court to convict the accused/appellant for the offence in question. Hence, the impugned conviction based on the testimony of the prosecutrix ought not to be interfered with.
10. I have given my prudent consideration to the arguments advanced by the learned counsels appearing for the contending parties and also perused the material available on record. I have also considered the case laws cited at the bar.
11. This being an appeal against conviction, let me first analyze the evidence on record.
12. PW-1, who is the prosecutrix, aged about 12 years, deposed that she was pursuing her studies by staying at the house of PW-5. She further deposed that on the day of occurrence at about 3:00 pm she went to the shop of PW-5 for purchasing sugar and incense stick. She further deposed that though she took sugar from the shop of her uncle, however, since incense stick was not available, she went to the shop of the accused to purchase the same. She further deposed that when she reached the shop of the accused, he asked her to keep the sugar in his shop and then took her to the nearby L.P. school. She further Crl.A.59/2012 Page 5 of 34 deposed that the accused after taking her to the said school made her nude and inserted his penis into her vagina and upon feeling pain, she screamed. She further deposed that the accused thereafter made her lie on the ground, got on top of her and again inserted his penis into her vagina and that after a while, he withdrew his penis and got up and that her clothes got dirty and smeared with soil and that blood came out of her vagina. She further deposed that after returning home, she informed her maternal grandmother about the incident and then they examined her clothes and her private parts. She further deposed that she was examined by the doctor and questioned by the police. She further deposed that she also gave her statement before the Magistrate and exhibited the statement as Exhibit-1.
During cross-examination, she clarified that PW- 5's shop is not too far from their house and the shop of the accused is a little away from the shop of PW-5 and that PW-5's shop is also close to the school in question and that the house of Gohain family is behind the school and that there is also a motor garage nearby. She further clarified that they remained in the school for about one hour. She further clarified that there is a chowk [an open market area at the junction of two roads] near the school and people remained present there during day time. She further clarified that she had visited the shop of the accused for several times to purchase goods. She further clarified that PW-5 did not notice when she and the accused entered the Crl.A.59/2012 Page 6 of 34 school and only when they were coming out of the school, he was standing at the gateway of the school. She further clarified that when she came out of the school, the neighboring people and PW-5 saw them. She further clarified that after they came out from the school, a quarrel took place between PW-5 and the accused and that she returned home. She denied the suggestion of the defence to the effect that when she came out of the shop of the accused with incense stick, the accused grabbed her hand and scolded her and PW-5 upon arriving there rebuked the accused for holding her hand and the accused dealt a blow to PW-5.
13. PW-2, who is the aunt of the prosecutrix deposed that on the day of occurrence, she was at home and that her mother-in-law sent the prosecutrix to fetch sugar and incense stick from the shop and that after a while, the prosecutrix came home weeping. She further deposed that PW-3 came running to their house and said that a quarrel has taken place between PW-5 and the accused. She further deposed that thereafter she and PW-3 enquired the prosecutrix as to why she was weeping and at their repeated insistence, she told them that the accused had removed her pants after taking her to the school and made her lie on the ground and that when they asked her whether the accused had done anything else, she told that the accused had inserted his penis into her vagina. She further deposed that the prosecutrix also told them that after sometime a white substance had come out from the Crl.A.59/2012 Page 7 of 34 accused penis. She further deposed that they noticed that the prosecutrix was not wearing her clothes properly and that her frock and pants were wet and smeared with semen. She further deposed that after the police arrived in the evening, they examined her private parts and noticed that the external portion of her vagina was reddened and swollen up.
During cross-examination, she denied the suggestion that she did not state to the police that the prosecutrix came home weeping and had told them about the incident of rape committed by the accused and that her frock and pants were wet and smeared with semen and that when they examined her private parts, they noticed that the external portion of her vagina was reddened and swollen up. She further clarified that the shop of the accused is located at the gate of the school in question and PW-5's shop is after passing the school and that there are tea stall and pan shop in front of the shop of the accused. She further denied the suggestion of the defence to the effect that when the prosecutrix came out of the shop of the accused with incense stick, the accused grabbed her hand and scolded her and that at that moment PW-5 arrived and accordingly, an altercation took place between them for which the accused dealt a blow to PW-5.
14. PW-3, who is another aunt of the prosecutrix, similarly deposed that the prosecutrix was sent to fetch sugar and incense stick from shop and since she did not get incense stick at the shop of PW-5, she went to Crl.A.59/2012 Page 8 of 34 purchase the same from the shop of the accused. She further deposed that after a while they noticed her weeping sitting near the haystack of their homestead and when she alongwith PW-2 inquired her, as to what had happened, she narrated the entire incident and accordingly, they came to know how the accused raped her. She further deposed that they noticed her pant was smeared with semen.
During cross-examination, she clarified that on the date of occurrence, the school in question ended earlier than usual. She further denied the suggestion made by the defence to the effect that she has not stated before police as regard the pants being smeared with semen and that prosecutrix was weeping. She further denied the suggestion of the defence to the effect that when the prosecutrix was coming out of the shop of the accused with the incense stick without making payment, the accused grabbed her hand and asked her for payment and at that moment, PW-5 arrived and rebuked the accused.
15. PW-4, who is a co-villager, deposed that he wrote the FIR as per the version of PW-5 and accordingly, exhibited the FIR which is Exhibit-2.
16. PW-5, who is the informant in this case, deposed that the incident occurred approximately two years ago and that the prosecutrix was 15 years old at the time of incident. He further deposed that the incident occurred around 3:00 pm when the prosecutrix came to buy sugar Crl.A.59/2012 Page 9 of 34 and incense stick for offering at the temple. He further deposed that the prosecutrix brought sugar from his shop and as incense stick was not available in his shop, she went to the shop of the accused to buy incense stick. He further deposed that after a while, the prosecutrix came home crying from the school and that upon noticing her crying, he asked her why she was crying, to which she replied that she was buying incense stick from the shop of the accused and that he took her to the school in question and raped her by removing her clothes. He further deposed that the prosecutrix also told him that when she tried to raise alarm, the accused gagged her. He further deposed that he thereafter, went to the shop of the accused in order to find him but he did not find him at the shop. He further deposed that his sister-in-law questioned the prosecutrix and took care of her. He further deposed that he went to Mukalmua Police station that day itself and lodged an ejahar. He further deposed that the ejahar was written by PW-4 as narrated by him. Thereafter, the contents of the ejahar were read over to him and after finding the ejahar as per his narration, he put his signature on it. He further deposed that Exhibit-2 is the ejahar and Exhibit-2(2) is his signature.
During cross-examination, he clarified that at the time of the birth of the prosecutrix, her horoscope was not prepared and her date of birth was registered in the hospital record but he has not taken any document in this regard from the hospital. He further clarified that the shop Crl.A.59/2012 Page 10 of 34 of the accused is 50 meters away from his shop and there are many shops situated near the shop of the accused and that the school in question is behind the shop of the accused and that the school was closed on the date of occurrence and that the school has no Chowkidar and that the school is visible from his shop. He further deposed that he saw the prosecutrix going to purchase sugar and incense stick and after 15 minutes, he saw her heading towards home crying and that he also noticed the accused when the prosecutrix came weeping but the accused disappeared all of a sudden. He further clarified that he enquired the prosecutrix in front of the school and at that time 10 to 15 people from the locality were present there. He further clarified that few shopkeepers including Dinesh Talukdar and DW-1 were also present there. He further clarified that he saw the prosecutrix visiting the shop of the accused but did not see the accused taking the prosecutrix to the school as there were many customers at that time in his shop. He denied the suggestion of the defence to the effect that when the prosecutrix attempted to leave the shop of the accused without making payment for the incense stick, the accused grabbed her hand and asked her why she attempted to steal goods from his shop and upon witnessing the same, he confronted the accused and the accused slapped him.
17. PW-6, who medically examined the prosecutrix, deposed that on 25.01.2006, he was at S.M.K. Civil Hospital, Nalbari as Medical & Health Officer-I. He further Crl.A.59/2012 Page 11 of 34 deposed that on that day, he examined the prosecutrix on being referred in connection with Mukalmua P.S. Case No. 11/06. He further deposed that the prosecutrix was escorted and identified by W.P.C. Kunjashree Kachari, No. 555 and a lady doctor was also present. He further deposed that on examination, the prosecutrix was found not attained majority. He further deposed that on local examination, he found the following:-
(1) No mark of violence on her body as well as on private part.
(2) No vaginal discharge. No discharge on external private part and upper thigh.
(3) Hymen intact.
(4) Vagina admit tip of little finger.
He further deposed that upon investigation no spermatozoa were detected and that the prosecutrix is aged below 16 years according to the Radiologist.
He further deposed that in his opinion, there was no sign of violence detected on the prosecutrix's private parts as well as the body and that there were no sign of recent sexual intercourse.
He accordingly exhibited the Medical report as Exibit-3, and Exhibit-3(1) as is his signature.
During cross-examination, he clarified that in microscopic examination no spermatozoa were detected in the vaginal area.
Crl.A.59/2012 Page 12 of 3418. PW-7, who is the Investigating Officer, deposed that on 23.01.2006, he was working as the Officer-in-Charge of Mukalmua P.S. He further deposed that on that day, upon receipt of a written ejahar from PW-5, he registered the ejahar as Mukalmua P.S. Case No. 11/06 u/s 376(2)(f) of the IPC and took the charge of investigation. He further deposed that after taking the charge of investigation, he went to the place of occurrence and drew a sketch of the place of occurrence. He further deposed that he also recorded statements of witnesses at the place of occurrence as well as the statement of the prosecutrix. He further deposed that he got the prosecutrix examined by doctor and also got her statement recorded in the Court. He further deposed that after getting information that the accused had surrendered in the Court, he interrogated him inside the jail after obtaining necessary permission from the Court. He further deposed that he collected the Medical Report of the prosecutrix. He further deposed that after completion of the investigation, as he found sufficient incriminating materials against the accused, he submitted charge sheet against him for committing offence u/s 376 of the IPC.
During cross-examination, he clarified that the house of the informant is 9 km west from the Police Station. He further clarified that he received the ejahar at 4:00 p.m. on 23.01.2006. He further clarified that he reached the place of occurrence at 4:45 p.m. He further clarified that he did not seize any article from the place of Crl.A.59/2012 Page 13 of 34 occurrence and while inspecting the place of occurrence, he found the door of the school open. He further clarified that he did not mention in the Case Diary, whether the windows of the school were open or not. He further clarified that the accused has a Paan shop in front of the school and Jyoti Prasad Choudhury's house is to the north of the school. He further clarified that Jyoti Prasad Choudhury's house is also there to the east along with garage of Jitu Baishya. He further clarified that there is an old school near the school where the incident took place. He further clarified that the prosecutrix showed him the place of occurrence. He further clarified that the prosecutrix did not visit the Police Station when the ejahar was lodged. He further clarified that he found the prosecutrix at the place of occurrence. He further clarified that her family resides near the school. He further clarified that he recorded the statement of the prosecutrix at the place of occurrence itself. He further clarified that he found PW-5 at the place of occurrence and recorded his statement there. He further clarified that PW-5 has a grocery shop near the place of occurrence. He further clarified that he did not seize any clothes of the prosecutrix. He further clarified that he did not mention in the Case Diary about the distance of the prosecutrix's house from the place of occurrence neither did he mention the names of persons who resides near the house of PW-5. He further clarified that there are shops of other people a little away from the shop of the accused. He further clarified that he did not record their statements. He further Crl.A.59/2012 Page 14 of 34 clarified that on 24.01.2006 he sent the prosecutrix to SMK Civil Hospital Nalbari for her medical check-up. He further clarified that he did not send her to Mukalmua PHC for her medical check-up. He further clarified that in the evening on 23.1.2006, he recorded statement of PW-2. He further clarified that PW-2 did not state before him that the accused had inserted his penis into the prosecutrix's vagina, but she stated that the accused had committed rape. He further clarified that she did not state before him that the prosecutrix's frock and pants were smeared with semen, and also her vagina was reddened and swollen up. He further clarified that PW-2 stated before him that the accused had gagged the prosecutrix but did not state that the accused had closed the door(s). He further clarified that PW-3 did not state before him that the prosecutrix's body was smeared with soil, and her pants were smeared with semen. He further clarified that she did not state before him that the prosecutrix was weeping near a haystack. But she stated that she was weeping. He further clarified that he did not mention in the Case Diary as to whether the accused was married or not.
19. After closure of the prosecution witnesses, the incriminating circumstances were put to the accused/appellant under Section 313 of the Cr.P.C. Apt to refer to the explanation as provided by the accused/appellant in his statement under Section 313 of the Cr.P.C., which is extracted hereunder for ready reference: -
Crl.A.59/2012 Page 15 of 34"Question No.9: What do you want to say in your defence?
Answer: I am innocent. I did not commit the alleged offence. On the day of the alleged incident, „P‟ purchased some biscuits, incense sticks etc. But, as she wanted to leave the shop without making payment, I caught hold of her hands and snatched the goods from her. Then Bolendra Baishya, came to my shop and asked me as to why I caught hold of hands of his niece. Then I told him that „P‟ tried to leave my shop without making payment. Then there was an altercation between Bolendra and me. Then I dealt a slap on Bolendra. Thereafter, Bolendra left my shop threatening that he would take action against me. In the evening I came to know that Bolendra had lodged a case against me."
20. Thereafter, the defence adduced two witnesses being Harjya Baishya(DW-1) and Mousumi Das(DW-2).
21. DW-1, who is a shopkeeper, deposed that he knows the accused. He further deposed that he also knows the informant/PW-5 and the prosecutrix too. He further deposed that it has been three years since the incident. He further deposed that the incident took place at about 3:30 p.m. and at that time he was sitting on the verandah of his shop, which is at Rampur Chowk. He further deposed that PW-5 has a shop at Rampur and the accused also has a shop near the shop of PW-5. He further deposed that the prosecutrix visited the shop of the accused at about 3:30 pm to purchase some goods. He further deposed that after a while she came to the shop of PW-5 and she took him to the shop of the accused and then there was an altercation between them. Thereafter, they got engaged in fighting. He further deposed that he went there and stopped them from quarrelling. He further deposed that the prosecutrix Crl.A.59/2012 Page 16 of 34 wanted to take goods from shop of the accused on credit but the accused did not give her goods on credit and therefore, there was a quarrel. He further deposed that after he had stopped them from quarrelling, PW-5 left for his shop and he and the prosecutrix also left. He further deposed that some 25/30 shops are there at Rampur Chowk.
During cross-examination, he clarified that four roads extend from Rampur Chowk in the directions of east, west, north, and south. He further clarified that his shop is situated to the west of the Rampur Chowk. He further clarified that his shop is four shops away from the Chowk. He further clarified that the L.P. school and the shop of the accused are situated adjacently. He further clarified that he used to go to the school. He further clarified that he did not go to the school on the day of the incident and he was alone on the verandah. He further clarified that there are 15/16 shops in the line, where his shop is situated. He further clarified that at that time some of the shops were open and about 4 or 5 shops remained close. He further clarified that at the time of the quarrel other shopkeepers also came there. He further clarified that Ranjit Nath, Sailen Nath, Rohit Das and others also gathered at the place of occurrence. He further clarified that some 15/16 people were present there.
22. DW-2, who is a co-villager, deposed that she knows the accused and that she visits his shop to purchase goods. She further deposed that she knows about the incident Crl.A.59/2012 Page 17 of 34 involving the prosecutrix. She further deposed that it has been three years since the incident. She further deposed that at about 3:00 pm one day about three years ago, she went to the shop of the accused to purchase something. She further deposed that she purchased one packet of biscuit from shop of the accused. She further deposed that she was observing the stationery goods displayed in his shop when the prosecutrix arrived at the shop of the accused and made some purchases. She further deposed that after delivering the goods, when the accused asked her for payment, she refused to do so and that the accused then snatched the goods from her hands. She further deposed that the prosecutrix left the shop of the accused in tears and headed towards the main Chowk. She further deposed that she bought a necklace and a packet of bindis from the shop of the accused and to pay, she handed the accused a fifty rupee note. She further deposed that thereafter PW-5 arrived at the shop of the accused, after which PW-5 and the accused had an altercation. She further deposed that during the altercation, the accused slapped PW-5. She further deposed that thereafter she collected her change from the accused and left for her home. She further deposed that in the evening time she heard about some bad act being committed on the prosecutrix by the accused and she told the neighbouring people that it is totally false and that when the prosecutrix was present in the shop of the accused, she was also present there.
Crl.A.59/2012 Page 18 of 34It appears that DW-2 during her cross-examination firmly stood to the stand taken by her in her examination- in-chief.
23. The case in hand relates to an offence prior to 03.02.2013, therefore, Section 375 and Section 376 of the IPC as it stood before the substitution by Amendment Act, 13 of 2013 is applicable. The issue that falls for determination is whether the prosecution has proved the guilt of the accused/appellant under Section 375 of the IPC beyond any reasonable doubt or not.
24. Apt at this juncture to refer to Section 375 of the IPC, as it stood before the 2013 Amendment, which is extracted hereunder for ready reference:-
"375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First.- Against her will.
Secondly.-Without her consent.
Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to Crl.A.59/2012 Page 19 of 34 understand the nature and consequences of that to which she gives consent.
Sixthly. With or without her consent, when she is under sixteen years of age.
Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]"
25. Apt also to refer to Section 376 of the IPC, as it stood before the 2013 Amendment, which is extracted hereunder for ready reference: -
"[376. Punishment for rape.-(1) Whoever, except in the cases provided forby sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever,-
(a) being a police officer commits rape-
(i) within the limits of the police station to which he is appointed;
or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or Crl.A.59/2012 Page 20 of 34
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.-Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.
Explanation 2.-"Women's or children's institution"
means an institution, whether called an orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children.Crl.A.59/2012 Page 21 of 34
Explanation 3.-"Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.]"
26. Thus in order to constitute an offence under Section 375 of the IPC, it is essential that there should be penetration of the penis into the private part of the victim. However, it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rapture of hymen. In other words, even partial or slightest penetration is sufficient enough to constitute the offence of rape. There are six categories indicated under Section 375 of the IPC and under the sixth category, in case of a girl under 16 years of age, consent is immaterial in order to constitute an offence of rape.
27. Reference is made to the decision of the Apex Court in the case of State of U.P. Vs. Babul Nath, reported in (1994) 6 SCC 29. Paragraph 8 of the aforesaid judgment is extracted hereunder for ready reference: -
"8. It may here be noticed that Section 375 of the IPC defines rape and the Explanation to Section 375 reads as follows:
„Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.‟ From the Explanation reproduced above it is distinctly clear that ingredients which are essential for proving a charge of rape are the accomplishment of the act with force and resistance. To constitute the offence of rape neither Section 375 of IPC nor the Explanation attached thereto require that there should necessarily be Crl.A.59/2012 Page 22 of 34 complete penetration of the penis into the private part of the victim/prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 of IPC. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains. But in the present case before us as noticed above there is more than enough evidence positively showing that there was sexual activity on the victim and she was subjected to sexual assault without which she would not have sustained injuries of the nature found on her private part by the doctor who examined her."
28. It appears that in the instant case, the prosecutrix herself is the sole eye witness to the factum of the allegation of rape. It appears that the prosecutrix deposed that the accused/appellant by taking her to the school in question inserted his penis into her vagina more than once and it was painful, for which she screamed and blood also came out from her vagina. However, PW-6 the Medical Officer, who medically examined her found no mark of violence on her body as well as on private parts and also found her hymen intact and opined that there were no sign of recent sexual intercourse. It further appears that during cross-examination, PW-6 further clarified that there were no spermatozoa detected in the prosecutrix's vaginal area. Undoubtedly, that merely because the Medical Report does not prove the allegation of the prosecution as regards Crl.A.59/2012 Page 23 of 34 commission of rape, the same is not sufficient enough to throw the testimony of the prosecutrix. However, before the Court acts upon the sole testimony of the prosecutrix to return a verdict of guilt of commission of rape, such testimony of the prosecutrix must inspire the confidence of the Court. Therefore, what is to be seen is whether the testimony of the prosecutrix can be said to be wholly trustworthy, credible, unblemished, reliable and of sterling quality. It is only when the testimony of the prosecutrix is wholly trustworthy, credible, unblemished, reliable and of sterling quality, this Court can act solely on the basis of such testimony without seeking medical corroboration.
29. Turning back to the testimony of the prosecutrix, it appears that though the prosecutrix clarified during cross examination that PW-5 was standing at the gateway of the school when she and the accused/appellant were coming out from the school, however, PW-5 during his deposition deposed that he saw PW-1 weeping at home. It further appears that PW-2, and PW-3 does not support the aforesaid version of PW-5. It is clear from reading of PW-2 and PW-3 that PW-5 was not at home when the prosecutrix returned home crying and it was them who enquired about the incident to her. That apart, it appears that though there were independent witnesses available, none were examined nor the Investigating Officer explained the reason for non-examining the independent witnesses. That apart, it is apparent that the prosecutrix accounting of the alleged commission of the offence of Crl.A.59/2012 Page 24 of 34 rape is completely inconsistent with the Medical Report. In fact, there is no sign of any penetration in the private parts of the prosecutrix in the Medical Report though the prosecutrix has categorically deposed in her testimony that the accused/appellant has penetrated his penis into her private part more than once with emission of semen and blood had also come out from her private part. Penetration being the sine-qua-non for an offence of rape, there must be evidence to indicate penetration in order to constitute the sexual intercourse necessary to constitute the offence of rape.
30. In the present case, the medical evidence having not supported the act of sexual intercourse as claimed by the prosecutrix, the prosecution story appears to be improbable. In fact, the Medical Report completely rules out the possibility of the forceful sexual intercourse as claimed by the prosecution. That apart, there are material discrepancies in the testimonies of the prosecution witnesses. In fact, the testimonies of the prosecutrix, PW- 2, PW-3 and PW-5 contradict each other on material particulars. Moreover, though there were independent witnesses available, none were examined by the prosecution. In such circumstances, the testimony of the prosecutrix does not inspire the confidence of this Court. Hence, a conviction on the basis of such testimony is not justified.
31. Reference is made to the decision of the Apex Court in the case of Tameezuddin alias Tammu (Supra) Crl.A.59/2012 Page 25 of 34 wherein the Apex Court has held that though evidence of the prosecutrix must be given predominant consideration but to hold that this evidence has to be accepted, even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. Paragraph 9, 10, 11 and 12 of the aforesaid judgment is extracted hereunder for ready reference: -
"9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that the story is indeed improbable.
10. We note from the evidence that PW 1 had narrated the sordid story to PW 2 on his return from the market and he had very gracefully told the appellant that everything was forgiven and forgotten but had nevertheless lured him to the police station. If such statement had indeed been made by PW 2 there would have been no occasion to even go to the police station. Assuming, however, that the appellant was naive and unaware that he was being led deceitfully to the police station, once having reached there he could not have failed to realise his predicament as the trappings of a police station are familiar and distinctive. Even otherwise, the evidence shows that the appellant had been running a kirana shop in this area, and would, thus, have been aware of the location of the police station. In this view of the matter, some supporting evidence was essential for the prosecution's case.
11. As already mentioned above the medical evidence does not support the commission of rape. Moreover, the two or three persons who were present in the factory premises when the rape had Crl.A.59/2012 Page 26 of 34 been committed were not examined in court as witnesses though their statements had been recorded during the course of the Investigation. In this background, merely because the vaginal swabs and the salwar had semen stains thereon would, at best, be evidence of the commission of sexual intercourse but not of rape. Significantly also, the semen found was not co-related to the appellant as his blood samples had not been taken.
12. In this background the evidence of the defence witness, Mohd. Zaki becomes very relevant. This witness testified that there was no occasion for PW 2 to have come to the factory as no payment was due to him on any account. The courts below were to our mind remiss in holding that as no written accounts had been maintained by Mohd. Zaki and no receipt relating to any earlier payment to PW 2 had been produced by him, his testimony was not acceptable, the more so, as the factory was a small one and Mohd. Zaki was a petty factory owner."
32. Reference is also made to the decision of the Apex Court in the case of Darshan Singh (Supra), wherein the Apex Court has held that where the evidence of the prosecution witnesses is totally inconsistent with the medical evidence, it amounts to a fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case. Paragraphs 42 and 43 of the aforesaid judgment are extracted hereunder for ready reference: -
"42. The appellant State seeks support from the judgment in Mangoo State of M.P. Therein, this Court took the view that when the medical evidence was not in entire conflict with the ocular version of child witness, it would not be fatal to the prosecution. It was a case where there were discrepancies regarding the number of blows Crl.A.59/2012 Page 27 of 34 inflicted and which side of the weapon was used in the first instance.
43. In Abdul Sayeed v. State of M.P., this Court discussed elaborately the case law on the subject of conflict between medical evidence and ocular evidence: (SCC pp. 272-74, paras 32-39) „Medical evidence versus ocular evidence
32. In Ram Narain Singh v. State of Punjab this Court held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case.
33. In State of Haryana v. Bhagirath it was held as follows:(SCC p. 101, para 15) '15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.'
34. Drawing on Bhagirath case, this Court has held that where the medical evidence is at variance with ocular evidence, 'it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'."Crl.A.59/2012 Page 28 of 34
35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.
'21.... The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
[Vide Thaman Kumar v. State (UT of Chandigarh) 15 and Krishnan v. States at SCC pp. 62-63, para 21.]
36. In Solanki Chimanbhai Ukabhal v. State of Gujarat this Court observed: (SCC p. 180, para 13) '13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.'
37. A similar view has been taken in Mani Ram v. State of U.P.Khambam Raja Reddy v. Public Prosecutors and State of U.P. v. Dinesh 20.
38. In State of U.P. v. Hari Ch and this Court reiterated the aforementioned position of law and stated that: (SCC p. 545, para 13) '13. ... In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy.' Crl.A.59/2012 Page 29 of 34
39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."
33. In view of the above, it was essential for the prosecution to adduce some supporting evidence in order to prove the case of the prosecution beyond all reasonable doubt. Reading of the entire evidence of the prosecution it is amply evident that the prosecution witnesses more particularly the medical witness has not corroborated the testimony of the prosecutrix as regard the commission of rape.
34. This brings me to the defence taken by the accused/appellant. It further appears that though the accused/appellant had given his explanation during his examination under Section 313 of the Cr.P.C., the same was not considered by the trial Court. A careful perusal of the explanation given by the accused/appellant in his examination under Section 313 of the Cr.P.C., it is apparent that the accused/appellant has taken the plea of defence during cross-examination of the prosecution witnesses. That apart, it appears that the accused/appellant has also established the said defence by adducing two witnesses, out of which the prosecution witness i.e. PW-5 corroborates the presence of DW-1 at the place of occurrence. It is amply evident that the Crl.A.59/2012 Page 30 of 34 defence of the accused/appellant has remained consistent throughout the trial. A careful scrutiny of the aforesaid testimony of the two defence witnesses, it appears that they are independent witnesses and it clearly makes out an altogether different version of the prosecution case.
35. In criminal trial, the trial Court is duty bound to consider the explanation given by the accused during his examination under Section 313 of the Cr.P.C. Undoubtedly, the trial Court is not bound to accept it but at the same time it cannot ignore it. In other words, the trial Court has to either accept it or reject it but in either eventuality, must give reasons. Therefore, non-consideration of the explanation given by the accused in his 313 Cr.P.C., examination would vitiate the trial. Moreover, if the accused adduces evidence after the closure of the prosecution evidence, the trial Court is also duty bound to consider the same and see for itself if the same is relevant. However, the standard of proof of defence witness is not the same as that of prosecution. The accused has to probabilize the defence by meeting the standards of preponderance of probability. In other words, unlike prosecution, accused is not required to establish defence beyond all reasonable doubt and the accused has only to raise doubts on a preponderance of probability.
36. Reference is made to the decision of the Apex Court in the case of Reena Hazarika (Supra). Paragraph 19 of the aforesaid judgment is extracted hereunder for ready reference: -
Crl.A.59/2012 Page 31 of 34"19. Section 313 CrPC cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2) CrPC. The importance of this right has been considered time and again by this Court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow, If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) CrPC the Court is duty-bound under Section 313(4) CrPC to consider the same. The mere use of the word "may" cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available, is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 CrPC, in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 CrPC and to either accept or reject the same for reasons specified in writing."
37. Reading of the aforesaid judgment of the Apex Court, leaves no doubt in the mind of this Court that if the accused takes a defence after the prosecution evidence is closed under Section 313 of the Cr.P.C., the Court is duty bound to consider the same and in the event, where the Court has not considered at all of such defence taken under Section 313 of the Cr.P.C., the conviction is vitiated.
Crl.A.59/2012 Page 32 of 3438. In the present case, it is amply evident that the trial Court has not taken notice of the defence taken by the accused/appellant under Section 313 of the Cr.P.C. In fact, the trial Court has not even considered it necessary to discuss or observe with regard to the defence of the accused/appellant taken under Section 313 of the Cr.P.C. either to accept or reject. In fact, in the present case, it is clearly discernible from the material available on record that the accused/appellant has probabilized the defence taken by him during his examination under Section 313 of the Cr.P.C., by adducing two independent witnesses, presence of one of which is admitted by the prosecution at the place of occurrence. Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt. Therefore, I am of the unhesitant view that the accused/appellant has put forward a reasonable defence, which is likely to be true and hence, a reasonable doubt having arisen, the benefit must go to the accused/appellant.
39. That being so, the prosecution has failed to prove the guilt of the accused/appellant under Section then 375 of the IPC beyond all reasonable doubt. Therefore, the accused/appellant deserves to be acquitted.
40. In view of the above, the finding of the trial Court that the prosecution has been able to establish forceful commission of rape by the accused/appellant on the prosecutrix, in the considered opinion of this Court is totally perverse and erroneous in law. Hence, the Crl.A.59/2012 Page 33 of 34 impugned conviction is not sustainable in law. Therefore, the judgment & order dated 26.03.2012 passed by the learned Session Judge, Nalbari in Session Case No. 30/2007 is hereby set aside and quashed.
41. Accordingly, the criminal appeal stands allowed.
42. Resultantly, the appellant is acquitted for the offence punishable under Section 376 of the IPC. Bail-bonds so furnished by the appellant stand cancelled and surety discharged.
43. Return the Trial Court Record.
JUDGE Comparing Assistant Crl.A.59/2012 Page 34 of 34