Gauhati High Court
Page No.# 1/12 vs The State Of Assam And Anr on 18 March, 2025
Page No.# 1/12
GAHC010190642024
2025:GAU-AS:2896
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./307/2024
SUNIL SUTRADHAR @ DHANJIT
S/O. SRI BALEN SUTRADHAR, R/O. DEWANGAON, SUTRADHARPARA, P/S.
AND DIST. BONGAIGAON, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM.
2:SMTI BEBIKA CHOUDHURY
W/O. ASHOK KR. RAY
VILL. MANIKPUR
GOSSAIGAON
P/S. MANIKPUR
DIST. BONGAIGAON
ASSA
Advocate for the Petitioner : MRS. R DEVI, MR. A R TAHBILDAR,MR H GUPTA,MS. K DEKA
Advocate for the Respondent : PP, ASSAM, MR K.K. , APP,MR D K BHATTACHARYYA,
AMICUS CURIAE (R-2)
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
JUDGEMENT AND ORDER (ORAL)
Date : 18-03-2025 Heard Ms. R. Devi, learned counsel for the appellant, Mr. P.S. Laskar, learned Additional Public Prosecutor for the respondent State and Mr. D.K. Bhattacharyya, learned Amicus Page No.# 2/12 Curiae for the respondent No. 2.
2. This appeal is directed against the judgment and order dated 19.07.2024 passed by the learned Sessions Judge, Bongaigaon in Sessions Case No. 21 (BGN) of 2021, convicting Sri Sunil Sutradhar @ Dhanjit (hereinafter also referred to as the accused or the appellant) under Section 341/376 of Indian Penal Code, 1860 (IPC for short) and, sentencing him to undergo simple imprisonment for 1 (One) month under Section 341 of IPC and, sentencing him to undergo simple imprisonment for 10 (Ten) years under Section 376 of IPC and to pay a fine of Rs.3000/- (Rupees Three Thousand) only with default stipulation.
3. The genesis of the case was that on 28.12.2020 while the victim (hereinafter also referred to as the X) was returning home from Bongaigaon the appellant wrongfully restrained the victim at Dangtol and made obscene gestures towards her. He also threatened to kill her and compelled her to accompany him to a hotel at Bongaigaon. In the hotel, he forcefully committed rape on the victim X and clicked some nude pictures with his mobile phone. He threatened the victim X not to divulge about the incident lest he would kill her parents. On 02.02.2021, victim's marriage was solemnized with Y, who hails from Bijni, Gosaigaon.
4. As the appellant was sending obscene photographs to her mobile, the victim's husband learnt about the incident and informed the victim's (X's) parents about the incident. The appellant had also threatened to upload the pictures through social networking sites. An ejahar (FIR) regarding this incident was lodged by the victim X, which was registered as Bongaigaon Police Station Case No. 511/2021 under Section 341/376 of IPC. The Investigating Officer (IO for short) embarked upon the investigation. He recorded the statements of the witnesses and forwarded the victim for medical examination and for recording her statement under Section 164 of Code of Criminal Procedure, 1973 (CrPC for short). On completion of investigation, charge sheet was laid against the appellant. At the commencement of trial, a formal charge under Section 341/376 of IPC was framed and read over and explained to the appellant to which he abjured his guilt and claimed innocence.
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5. To substantiate its stance, the prosecution adduced the evidence 7 (Seven) witnesses including the IO and Medical Officer (MO for short). On the incriminating circumstances against the appellant projected by the prosecution witnesses several questions were asked to the appellant under Section 313 CrPC. The plea of the appellant was of total denial.
6. It is submitted on behalf of the appellant that the appellant had a love relationship with the victim X since 2017. The victim got engaged to Y and later, her marriage was solemnized with Y. Her relationship before her marriage was consensual with the appellant. It has been falsely alleged that the appellant forcefully committed rape on the victim. The evidence clearly reveals that the victim on her own volition went with the appellant to the hotel. The evidence of the hotel employee, PW-5 clearly reveals that the victim and the appellant identified themselves as husband and wife and booked a room for 2-3 hours. The Trial Court has relied on the sole testimony of the victim and has erroneously come to the conclusion that the appellant had committed rape on the victim.
7. The cross-examination of the victim clearly reveals that there was no wrongful restraint or pressure exercised by the appellant, compelling the victim to accompany him to the hotel at Bongaigon. Even the evidence of the victim's mother Z as PW-3 clearly reveals that she did not notice any unnatural behaviour on the relevant day when the victim returned home. Major contradictions could be elicited through the cross examination of the victim vis-à-vis the cross-examination of the IO which clearly reveals that the victim is not a sterling witness as she has vacillated from her earlier statement.
8. This extends a benefit of doubt to the appellant. The victim's statement that she kept mum about the incident of rape as she was terrified of the appellant is not credible because the appellant cannot be considered to be such a formidable person nor did he have any criminal antecedents.
9. Learned Additional Public Prosecutor Mr. P.S. Laskar and the learned counsel for the respondent No. 2 Mr. D.K. Bhattacharyya have disagreed with the argument submitted by the learned counsel for the appellant.
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10. I have considered the submissions at the bar with circumspection.
11. After appreciation of evidence, the learned Trial Court has come to the conclusion that the appellant and the victim earlier had a love relationship after they got acquainted with each other through Facebook. During their relationship, the appellant pressurized the victim to send nude photographs and as she was in love with the appellant, the victim sent nude photographs to the appellant. Taking advantage of these photographs, the appellant started to blackmail the victim. After a period of time, the relationship between the appellant and the victim (X) turned sour. Meanwhile, the victim X got engaged to Y on 02.12.2020 and finally their marriage was solemnized on 02.02.2021.
12. It has been held by the learned Trial Court that after the ring ceremony on 02.12.2020, the appellant started disturbing the victim X by threatening her to upload the nude photographs in the Facebook. The learned Trial Court has also held that there is cogent evidence that on 28.12.2020 at about 3:00 PM, the appellant compelled the victim to alight from the auto-rickshaw in which she was travelling and, forcefully took her on his scooty with threats like killing her parents and uploading her obscene pictures to a hotel near Bongaigaon Police Station and forcefully committed rape on her. It has been held by the learned Trial Court that no contradictions could be elicited to rebut the robust evidence.
13. The learned Trial Court has discarded and rejected the submission of consensual relationship between 'X' and the appellant by holding that the victim already got engaged to Y on 02.12.2020 before the incident which took place on 28.12.2020 and this reveals that the victim X had already made up her mind to get married to Y. It has been held by the learned Trial Court that in such a situation, the question of getting involved in consensual relationship with someone else does not arise.
14. To decide this case in its proper perspective, the evidence is re-appreciated.
15. The victim X deposed as PW-1 that she has lodged the FIR in the month of June, 2021. The delay in lodgment of the FIR is not mentioned. Her husband learnt about her relationship Page No.# 5/12 with the appellant and her husband and her parents advised her to lodge the FIR. PW-1 has further deposed that she was returning home from Bongaigaon in an auto on the day of the incident when the appellant asked her to get down from the auto. She had relationship with the appellant with whom she got acquainted in the year 2017 through Facebook. Eventually, she learnt about the appellant's nefarious character and she started to avoid him and blocked his phone number. The appellant kept sending messages and also threatened to kill her parents. Meanwhile, she got engaged to Y and, on 02.12.2020 a ring ceremony was held and finally her marriage was solemnized on 02.02.2021. This incident of rape occurred between the period of her engagement and marriage, i.e. on 28.12.2020.
16. Through her evidence-in-chief and her cross-examination, PW-1 has deposed that she was taken forcefully to the hotel near Bongaigaon Police Station but in her cross-examination, she stated that she was a pillion rider in the scooty and it took her half an hour to reach the hotel in Bongaigaon, which was located in a busy area. There were many people but she never asked for help although she was under duress. While travelling to Bongaigaon, she had crossed several police points, but she never took the help of the police.
17. It is pertinent to mention at this juncture that the victim has stated in her evidence-in- chief that the appellant forcefully took her to the hotel and forcefully committed sexual intercourse with her and then, he took videos and certain nude photographs. Thereafter, the appellant took the victim to Dangtol and threatened her not to divulge about the incident lest he would kill her parents and upload the videos through social media.
18. Learned counsel for the appellant laid stress in her argument that cross-examination of PW-1 clearly reveals that she met a hotel employee but she did not take his help or raise alarm and she silently went into the hotel.
19. I find substance in the argument of the learned counsel for the appellant. The evidence of the victim clearly reveals that this alleged incident of rape occurred between the date of engagement of the victim and the date of her marriage with Y. Admittedly, the victim had a love relationship with the appellant and meanwhile, when the relationship between the Page No.# 6/12 appellant and the victim turned sour, the victim got engaged to Y. Although the victim has stated that the appellant kept disturbing her by sending messages even after her marriage, her cross-examination clearly reveals that the victim also kept sending messages to the appellant. She has admitted in her cross-examination that on 04.02.2021 i.e. after her marriage on 02.02.2021, she initiated a conversation with the appellant through Whatsapp by sending him a message as 'ki koris te'.
20. The victim has also admitted in her cross-examination that she contacted the appellant through Whatsapp before as well as after her marriage with Y. Thus, paradoxes play when we consider the evidence-in-chief of the victim vis-à-vis her cross-examination.
21. It is submitted at the bar that the evidence of the victim as PW-1 is not consistent to her statement under Section 164 of CrPC as her statement proved by her and marked as Ext.- 2/P2(1) and P2(2) reveals that the victim has not mentioned about being compelled and threatened to send nude photographs. The victim has also not mentioned that she was forcefully taken by the appellant on her scooty to the hotel near Bongaigaon Police Station. She has merely stated that the appellant asked her for some nude photographs during their relationship and then, she had sent some nude pictures to the appellant through her mobile phone. She has also stated in her statement under Section 164 of CrPC that on the day of the incident, the appellant took her on his scooty to a hotel near Bongaigaon Police Station and had physical relationship with her. She has also not alleged that the appellant had forcefully committed rape on her or forcefully compelled her to accompany him on his scooty to a hotel near Bongaigaon Police Station.
22. At this juncture, it is pertinent to mention the cross-examination of the IO Sri Krishanu Pathak who has affirmed that the victim has not stated before him in her initial statement that she was pressurized by the appellant to send some nude pictures through Whatsapp or she was compelled to have sexual intercourse with the appellant who threatened to upload nude pictures through Facebook. The IO, PW-7 has also affirmed through his cross- examination that PW-1 has not mentioned in her initial statement that the appellant had threatened to kill her parents and kept insisting her to maintain a relationship with him.
Page No.# 7/12 These are the major contradictions which were elicited through the cross-examination of the victim X, PW-1 as per Section 145 of the Indian Evidence Act, 1872 (Evidence Act for short) qua Section 162 of CrPC which casts a shadow of doubt over the veracity of the victim's evidence.
23. PW-2 is the victim's husband Y. Both the victim, PW-1 and her husband PW-2 have deposed that their marriage was solemnized on 02.02.2021. Their evidence also reveals that a few days after their marriage, victim's husband noticed some objectionable messages in the mobile phone of the victim. These messages were sent by the appellant. When confronted, the victim informed him (Y) that the appellant is crazy and she earlier had some relationship with him but at present, after her marriage she did not maintain any relationship with the appellant. The evidence of PW-1 and PW-2 also reveals that when PW-2 took the mobile phone of PW-1, he noticed the objectionable photographs of his wife PW-1 and he forwarded the pictures to his wife and confronted her. His wife, PW-1 told him that she was compelled by the appellant to get those pictures clicked.
Finally, the victim PW-1 confessed to PW-2 that the appellant had forcefully taken her to a hotel on 28.12.2020 and compelled her to have sexual intercourse in the hotel near Bongaigaon Police Station. Thereafter, the appellant also threatened to upload the pictures through the social networking sites.
24. Learned counsel for the appellant laid stress in her argument and has drawn the attention of this Court to the evidence of PW-2 wherein he has admitted that he did not see the face of the man who was with his wife in the explicit video. Moreover, the cross- examination of PW-2 also reveals that he did not know the name of the registered user from whose mobile the objectionable messages and pictures were sent to his wife's mobile and the appellant therefore, deserves a benefit of doubt in this respect also.
25. There is indeed substance in the argument of the learned counsel for the appellant. Moreover, the evidence of the hotel employee clearly reveals that both the appellant and the victim checked in into their hotel as husband and wife.
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26. The hotel employee Sri Ranjan Barman deposed as PW-5 that about two years ago, when he was working at Raj Palace Hotel, the appellant came with a girl to the hotel. Both of them booked a room for 2/3 hours and identified themselves as husband and wife. This witness has clearly identified the appellant who was present at that time when the evidence of this witness was recorded. This witness has proved the Hotel Register Visitor Book as Ext. P4/PW5 and his signature as Ext.-P4(1). He has proved the Hotel Register as M. Ext.- P1/PW5 and entries as M. Ext. P(1) and P(2). He has also identified the signatures of the appellant and the victim. In his cross-examination he has stated that he did not notice any unnatural behaviour between the appellant and the victim. This hotel register was not disputed by the defence and it was also not disputed by the defence that the appellant went to the hotel accompanied by a girl on 28.12.2020, after cross-examining the hotel employee, PW-5.
27. Thus, there is sufficient evidence that there was not a whisper that the victim was traumatized after the incident of alleged rape. The victim's mother Z has also admitted as PW-3 in her cross-examination that she did not notice any abnormalities in her daughter's behaviour on 28.12.2020. Her evidence corroborates the evidence of her daughter and her son-in-law but her evidence clearly reveals that she even did not notice any abnormalities in the behaviour of her daughter on the day of the incident.
28. In her cross-examination, she has also admitted that her daughter has filed this case on the instructions of her husband.
29. The evidence of the IO clearly reveals that during the course of investigation, he went to the place of occurrence and to the Raj Palace Hotel. He asked the Hotel Management to produce the register which could not be produced as it was kept separately by the owner of the hotel. Later, on the same day it was produced before him in the Police Station by the hotel manager and he seized the hotel register. He has proved the seizure of the hotel register as Ext.-P4 and his signature on the seizure list as Ext.-P4(2). He has proved the hotel register of the Raj Palace Hotel as M. Ext. P-1. This witness has also proved the charge sheet as Ext.-P8/PW-7 and his signature on the charge sheet as Ext.-P8(1) and P8(2).
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30. Although the learned counsel for the appellant laid stress in her argument that the obscene photographs were not proved by producing the materials and the phone, the evidence of the IO, PW-7 reveals that the IO has seized one Redmi 5 Smartphone on being produced by the victim. He has proved the phone as Material Ext. 1 and the seizure list as Ext. P-3. However, the seizure of this phone is not sufficient to conclusively prove that the appellant is the person who has sent the obscene pictures of the victim. Moreover, the person whose picture was clicked with the victim has not been identified by PW-2 who has also seen the pictures. PW-2 has stated that he could not identify the person with his wife. There is not a whisper in the evidence of PW-1, PW-2 and PW-3 that the man seen with the victim in the nude pictures was the appellant, despite the fact that there is overwhelming evidence that the nude pictures of the victim X were clicked by the appellant.
31. Although the evidence of PW-1, PW-2 and PW-3 reveals that the victim was threatened by the appellant that he would upload the pictures through Facebook or other social networking sites and he would kill her parents if she would divulge about the incident, yet these allegations does not inspire confidence because the evidence of the victim clearly reveals that she was sending messages to the appellant even after her engagement or even after her marriage with her husband (Y). Had she been so terrified by the appellant she would not have initiated any conversation with the appellant immediately one day after her marriage. She has admitted that she initiated conversation with the appellant after her marriage through Whatsapp messages.
32. The Medical Officer's evidence in this case is not noteworthy.
33. Akon Choudhury deposed as PW-4 that prior to the victim's marriage with Y, one day while he was at Basugaon, his aunt Z called him over phone and informed him that a boy had restrained X and snatched away her mobile phone and scooty keys. He immediately went to the spot and confronted the boy, identified as the appellant and asked him to return the mobile phone and the scooty key. Then, he with the help of some other boys took the appellant and the victim to the victim's house and called the appellant's family members but the appellant's family members refused to come. He also confronted the victim and asked her Page No.# 10/12 whether she had relationship with the appellant but the victim had denied, whereas, the appellant admitted that he was in love with the victim. This evidence is not similar to the evidence of victim, PW-1 and her mother, PW-3 who deposed that one day, when the victim went to drop her mother on her scooty, the appellant snatched away her mobile and scooty keys as she started to avoid the appellant. The witness informed her cousin/Akon Choudhury and then Akon Choudhury called her mother and came to the spot. They then returned to the house along with the appellant and the appellant's family members also came to their house and took him back to their house. This stray incident is not at all connected to the incident of 28.12.2020.
34. In view of the foregoing discussions, it can thus be held that there are too many contradictions and variations in the evidence which casts a shadow of doubt over the veracity of the victim's evidence.
35. Learned counsel for the appellant has relied on the decision of the Hon'ble Supreme Court in Abbas Ahmad Choudhary Vs. State of Assam reported in (2010) 12 SCC 115 wherein it has been held that :-
"11. We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."
36. Learned counsel for the appellant has also relied on the decision of this Court in Nasib Ali Vs. The State of Assam and Anr. in Criminal Appeal No. 276/2023, wherein it has been observed that :-
"22. In criminal jurisprudence, it is compulsory on the part of the prosecution that in order to hold a person guilty of an offence, the offence must be proved beyond all reasonable doubt against that person. Here, in this case, two eye witnesses stated in their evidence that the victim girl, on her own, got into the car of the appellant. One witness has stated that the victim Page No.# 11/12 girl had stayed with the appellant for a long period of 1 year 3 months and after which she returned home on her own. There is no evidence in this case, except the evidence of the victim girl herself, to prove that she was forcibly taken away by the appellant.
23. Moreover, the POCSO Act, 2012 has defined sexual assault as whoever with sexual intent commits the offence against the child, it amounts to sexual assault. So, in order to constitute the offence of sexual assault, there must be a sexual intent proved. Except the evidence of the victim girl, there is no other evidence to prove this fact. Even the medical evidence was against the victim. In spite of presence of other people in the house at Tezpur, where she was kept by the appellant, the victim girl never disclosed before anyone that she was raped by the appellant."
37. In this case at hand too there are too many contradictions in the evidence. Major contradictions could be elicited through the cross-examination of the victim vis-à-vis the cross-examination of the IO. The evidence of the victim does not inspire confidence. There cannot be any eye witness in this case as the incident occurred with the victim which was not disclosed by the victim immediately. The evidence of the victim ought to have been consistent which is not so in this case. The victim has vacillated from her earlier statement. Major contradictions culled out through the cross-examination of the witnesses renders the testimony of the victim incredible. The victim cannot be held to be a sterling witness.
38. Thus, the appellant cannot be convicted on the sole testimony of the victim as her evidence does not inspire confidence. As the evidence is replete with contradictions and discrepancies, the appellant deserves a benefit of doubt.
39. I do not agree with the decision of the learned Trial Court that the sole evidence of the victim inspires confidence. When there is conflicting evidence that the victim was wrongfully restrained by the appellant on 28.12.2020 and forced to go with him to the hotel near Bongaigaon Police Station, the Trial Court has erroneously held that the appellant had wrongfully restrained the victim and forced her to alight from the auto-rickshaw and compelled her to accompany him on his two wheeler to the hotel.
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40. In view of my foregoing discussions, it is also held that the prosecution has failed to prove beyond the reasonable doubt that the appellant committed rape on the victim. Thereby the judgment and order dated 19.07.2024 passed by the learned Sessions Judge, Bongaigaon in connection with Sessions Case No. 21 (BGN) of 2021 is set aside.
41. The appellant is set at liberty forthwith and he may be released from custody if he is not required in any other case.
42. Send back the Trial Court Record.
JUDGE Comparing Assistant