Crl.A. 21/2011 BEFORE THE HON’BLE MR. JUSTICE P K MUSAHARY JUDGEMENT & ORDER(CAV) Heard Mr. HRA Choudhury, learned senior counsel along with Mr. S Huda, learned counsel for the appellant and Mr. B B Gogoi, learned Addl. Publ ic Prosecutor, Assam. 2. The appellant was convicted u/s 376/448/506 IPC and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.5000/- only, in default simple imprisonment for another six months for the offence u/s 376 IPC and furt her convicted and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.500/- only, in default simple imprisonment for another one month for the offence u/s 448 IPC and also sentenced to R.I. for one year and to pay f ine of Rs.500/- and in default simple imprisonment for another one month for his conviction u/s 506 IPC and all the above sentences have been directed to run co ncurrently vide judgment and order dated 8.11.2010 rendered by the learned Addl . District and Sessions Judge (FTC) Sankardev Nagar,Nagaon, Hojai in sessions ca se No.10(N)2009. 3. The prosecution story is that on 31.8.2008 at about 10 PM when t he prosecutrix was sleeping in her room the accused Abdul Aziz, by pushing open the bamboo door, entered her bed room, who on hearing sound of opening the door tried to get up but failed to do so as the accused had already gagged her mouth and thus forcibly committed rape on her. Initially she could not recognize the accused due to darkness but when the accused warned her not to file any case or report to any one about the incident or else she would be killed, she could reco gnize the accused by his voice and she raised hue and cry. The accused then fle d away. The victim lodged the complaint before the SDJM, Sankardev Nagar, Hojai on 3.9.2010. The delay was caused due to village Bichar which could not solve th e matter. The said complaint was registered as CR 368/08 u/ss 457/376/526 IPC wh ich was made over to a judicial Magistrate, 1st Class for disposal. After takin g cognizance, the case was committed to the court of Sessions at Nagaon who ma de over the same to learned Addl. Sessions Judge (FTC), Nagaon for disposal. Th e learned trial Court framed charge against the accused/appellant u/s 448/376/50 6 IPC. The accused, on being read over and explained the charges, pleaded not g uilty and claimed to stand the trial. The prosecution, to prove its case, examin ed four witnesses including the victim and the accused also, in his defence exam ined six witnesses including himself. On consideration of the materials and evid ence on record, and upon hearing the learned counsel for the parties the learne d trial court convicted and sentenced the appellant as stated earlier. 4. The prosecutrix made statements before a Magistrate u/s 164 Cr.P .C. In her statement under Section 164 Cr.P.C. she clearly stated that her young er brother Abu Taleb was sleeping by her side in a separate bed. The victim woma n was examined as P.W.1. She was cross-examined thoroughly by the defence. In he r cross-examination, she stated before the learned trial court that her brother Abu Taleb was sleeping in a separate room in the same house. One Abdul Noser, br other of the victim was examined as P.W.2. He stated that her victim sister sle pt in a single room and in the night of the incident Abu Taleb, aged about 5/6 y ears was sleeping in the same room. Another brother of the victim, Md. Abdul Kal am, who was examined as P.W.3, deposed that Abu Taleb stayed in one room for hi s study and in the other room of the house the victim stayed. 5. The whole case depends upon the evidence of the victim who was e xamined as P.W.1. The varacity and truthfulness of the victim in adducing the ev idence is to be examined for upholding the conviction and sentence awarded by th e learned trial court inasmuch as there is no eye witness to the incident of rap e. In the night of incident, as per her statement u/s 164 Cr.P.C., the victim w as sleeping in her room and her younger brother Abu Taleb was sleeping on the n ext bed. At the time of incident her father was not present at home. But her bro thers namely Abdul Kalam (P.W.3), Abu Noser (P.W.2) and Abu Helal (P.W.4) were p resent who came out after hearing her shouting. All her brothers searched for th e accused but they could not find him. She has stated in her cross-examination t hat her brother Abu Taleb was sleeping in one room and she was sleeping in anoth er room. It means that the victim and her brother Abu Taleb were sleeping in sep arate rooms. There is a contradiction in her statement as regards the sleeping o f Abu Taleb who was not examined. As per the evidence of Abu Noser, P.W.2, Abu Taleb a minor boy of 5/6 years. 6. As per the statement of the prosecutrix u/s 164 Cr.P.C and als o her evidence before the learned trial court, the accused was her teacher and she knows him well. All the other PWs, who are brothers of the victim, also depo sed that the accused is a teacher. In her statement before the Magistrate and th e evidence before the learned trial court she never stated that her brothers saw the accused on the courtyard or they could see the accused in the flash light o f torch used by Abdul Kalam (P.W.3). It does not matter whether, in fact, the s aid PW could see or meet the accused on the courtyard. The said P.Ws who met the accused did not make any attempt to detain him although he was seen by them in the courtyard just after they heard the shouting of their sister. They easily le t him go when the accused told them that he would return in a few moments after urination and would talk to them. The accused did not return, yet the said P.W s, brothers of the victim, did not make any hue and cry or report the village el ders, not even a villager regarding suspicious presence of the accused at their courtyard in the midnight. The said P.Ws were told by their sister that the ac cused trespassed into her room and committed rape on her. They have not reported the matter immediately to the police or the village headman about the said inci dent. They have waited reportedly for village Bichar and lodged the complaint b efore the Magistrate on 3.9.2008 i.e. after 3 days. No evidence has been led by producing /examining the villager(s) to prove that the prosecutrix and /or her guardians sought justice in the village bichar and the villagers failed to solve the matter. 7. Admittedly the victim was not examined by any medical officer an d naturally there is no medical report to ascertain or have the opinion of the m edical officer on forcible rape and also to ascertain whether the victim receive d any injury on her person. It is to be noted that all the P.Ws, except the offi cial witness, are related and interested witnesses. The prosecution did not exam ine any independent witness, not even any neighbour. It was necessary to do so t o corroborate the evidence of the victim that she shouted in the night of incide nt and her cry for help was heard by at least some neighbours and search was mad e by the brothers of the victim. There is no evidence that the said brothers of the victim tried to wake up or inform some neighbours and join them in searchin g or apprehending the accused whom they met at the courtyard; after all the al leged incident took place in the village and it was expected that the villagers, at least the neighbours, would come out at any time if any commotion is created , particularly during night time. Why the brothers of the victim did not inform the villagers although they have suspicion over the presence of the accused in their courtyard in the night time in a doubtful manner, has not been explained and as such the varacity or truthfulness of the evidence of P.Ws 1 to 4,is not a bove any doubt. The evidence of PWs 1 to 4 is quite unnatural and unbelievable. Such evidence cannot lend any corroborative value to the evidence of the victim and it cannot be a basis for conviction of the accused. 8. The victim woman in her evidence in cross-examination stated tha t her husband Asrof Ali expired long 15 years ago and after his death she was n ot married to any other person but the defence produced and examined the said A srof Ali as DW-1. The said DW-1 clearly denied that he ever died. He rather stat ed that he married her 10 years back and out of such wedlock her wife (victim) g ave birth to a stillborn male child. He was living in his inlaw’s house but he was driven out by the parent’s of the prosecutrix. The said DW-1 categorically stated that the prosecutrix subsequently got married to three other persons. T he prosecution cross-examined this defence witness but could not demolish his ev idence that he married the prosecutrix. It is a strange behaviour of the prosecu trix that she could depose falsely stating before the court that her husband had died although her husband is still alive. The evidence on record is very much c lear that the prosecutrix got married to D.W.1 and they, due to some reasons, ha d been living separately and her former husband, DW-1 is still alive , although living separately. The prosecutrix suppressed the fact of her marriage with As rof Ali who is still alive. She has given false evidence that her former husba nd has expired. Whatever may be the reason for adducing such evidence, it is unt hinkable that the prosecutrix could venture to say that her living former husban d has died suppressing the known fact that he is still alive. It may be wrong t o say that the prosecutrix is a bad character but it would not be wrong to say that she is a most untruthful and unreliable person. Evidence of such person cannot be accepted as true and correct. In my view, her evidence is as much unna tural and unbelievable as untrustworthy, far less inspiring confidence of the c ourt for convicting the accused person. 9. As per evidence on record after separation from her former husb and, DW-1, she was living in her parent’s house. She has been staying in a separ ate room. In the night of incident she was living alone in a separate room. He r younger brother was a minor boy of 5/6 years. It does not matter whether he wa s sleeping in the same room or in a separate room. What matters is that as a m arried woman, although as alleged by her, she was gagged by the accused she coul d have put physical resistance on the outrageous act of the accused, to save her self. She has not stated in her evidence that before being raped, she resisted t he accused and inspite of such resistance she failed to prevent the accused and in course of such resistance she received injuries on her person. In absence of such evidence the court may take other view that she was a consenting party and the accused entered the room of the prosecutrix at her invitation or call and t here was no case or question of committing rape on her. How far the version of t he prosecutrix is believable would depend on the evidence of independent witness es who would make statements that they heard the shouting of the prosecutrix in the death of night and they came out to see what happened in the house of the p rosecutrix. There is no such evidence from the neighbours or any independent wit ness supporting her version. She had only her own brothers, who deposed in suppo rt of her version that they heard the shouting of the prosecutrix. As stated ear lier they also did not make any attempt to call any co-villager immediately afte r the incident. The evidence of PWs 2,3 and 4 could be accepted only if their ev idence was corroborated by any neighbour or at least some villagers. In the fac ts and circumstances of the case, particularly looking at the conduct of the pro secutrix as discussed earlier, the credibility of the aforesaid witnesses has be en damaged and such evidence, in the eye of law, is not sufficient for awardin g conviction of the accused. 10. There is another factor for dis-believing the prosecution case. The convict appellant took the stand that it is a false case and it was institu ted out of old grudge. The appellant maintained in his evidence that the father of the prosecutrix was the President of the local School where he has been servi ng as a teacher. The appellant examined himself as DW-6. He deposed that Abdul H ai and Halima Khatun were father and mother of the prosecutrix. The mother of th e prosecutrix has been working as a mid-day meal cook in the school under Sarvas iksha Abhijan Scheme. Abdul Hai , father of the prosecutrix was the President o f the School building construction committee since 2006 and during his president ship a meeting was held on 15.9.2007 in the school premises and as per the resol ution of the said meeting the said Halima Khatun was removed from the service of mid-day meal cook for negligence of her duty. The appellant also deposed that o n 25.9.2007 an executive meeting was held and it was discussed in the said meeti ng that Abdul Hai wanted Rs.50,000/- out of Rs.4 lac sanctioned for construction of School building but the said amount of Rs.50,000/- was not paid to him. At that time the appellant was the secretary of the school building construction committee and the monetary transaction was done by the appellant as Secretary of the said construction committee. The said committee took resolution removing Abdul Hai from the presidentship of the school building construction committee. The parents of the prosecutrix became inimical to the accused after they were removed from their respective position. This piece of evidence of the accused ap pellant could not be dislodged by the prosecution during cross-examination, ra ther, P.W.1 (victim) admitted that her father was the president of the School Ma naging Committee in which the accused is a teacher and on allegation of mis-mana gement of school found a case was filed against her father. Abdul Kalam(P.W.3) also admitted that when his father was the president of the said committee, a c omplaint was lodged against him. A suggestion was put to him that his father wa nted an amount of Rs.50,000/- from Abdul Aziz (accused) but as he did not oblige there was a fight between his father and the accused. Abu Halem (P.W.4) also deposed on the affairs of the school. It was suggested to him that as the amou nt of Rs.50,000/- was not paid to her father out of Rs.4 lacs sanctioned for c onstruction of school building a false case was filed against the accused. The s aid P.W.4 was also suggested that a case was filed against his father by accused Abdul Aziz for mis-management of school fund and out of grudge this false cas e has been filed to take the revenge. The defence also took the plea that a f alse criminal case has been instituted against the accused out of grudge. On th e face of such evidence the possibility of instituting a false criminal case can not be ruled out. 11. The convict, as D.W.6, deposed that while he was under treatment at Lanka Primary Health Centre, a meeting was held on 31.8.2008 in presence of public, including the victim and her father Abdul Hai. They demanded Rs.13,000/- from him for withdrawal of the criminal case. There was a written agreement sig ned by the convict and he paid the said amount of Rs.13,000/- to the victim on 17.2.2009 in presence of Abdul Hai, Hassen Ali and the village Headman. The said agreement was proved and marked Ext. A. It is recorded therein that the dispute has been settled amicably in their village in presence of their relatives, frie nds and well wishers for mutual good. The Ext.A agreement executed on 17.2.09 b etween the prosecutrix and the accused appellant bears the RTI of prosecutrix an d the signature of her father Abdul Hai. The fact that the appellant was under t reatment in the said primary health centre has been proved by adducing Dr. Ranju Rajkhowa, DW-5, who was working as Medical and Health Officer in the said healt h centre at the relevant point of time 12. In regard to delay in filing the complaint the prosecutrix depo sed that the incident took place on a Sunday and on the next day i.e.Monday, c ourt was closed for which she had to file the compliant on 3.9.2008. If on Monda y the court was closed, she was supposed to file her complaint on the next day i.e. Tuesday but from record it is found that she filed the compliant not on Tue sday but on Wednesday. Her explanation is that as she was waiting for settlemen t of the matter out of court she filed the complaint on Wednesday when settlem ent could not arrived at. The conduct of the prosecutrix goes to show that she w as interested in settling the matter out side the court and in fact she received Rs.13,000/- from the accused after signing the Ext.A agreement. She avoided lod ging FIR with the local police and thereby she also avoided medical examination which is a must in a case of rape. This speaks volumes against the prosecutrix reducing her to a most unreliable witness. 13. Considering the questionable propensity of the prosecutrix, I am tempted to refer to the case of Moinul Hoque and ors -vs- State of Assam, (2001 ) 1 GLR 516. In paragraph 16 of the judgment it is held as under: It is true that a court has to take seriously the cases relating to violence against woman. Simultaneously, the court has a duty to guard itself against fal se charges of rape. The narration of the prosecution case is full of vital omiss ions and contradictions and it raises strong doubt which over-shadows the genes is of the prosecution case. In my opinion, it would be unsafe to sustain the co nviction in this case relying upon the testimony of the prosecutrix alone. Digni ty of woman will have to be protected , but without aid of emotion. This is und oubtedly not a case where the prosecutrix has the last ’say’ . 14. This court is also not unmindful of the observations made by th e Apex Court in Sadashiv Ramrao Hadbe -vs- State of Maharastra,(2006)10 SCC 92, wherein it has been observed that it is true that in a rape case the accused cou ld be convicted on the sole testimony of the prosecutrix if it is capable of i nspiring confidence in the mind of the court and if the version given by the pr osecutrix is supported by medical evidence and the whole surrounding circumsta nces makes the case set up by the prosecutrix highly probable and believable. T herein it is also observed that the court shall be extremely careful in acceptin g the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. 15. The improbability factor found in the present case is that the accused appellant who had a strange relationship with the family of the prosecut rix would never take any risk by visiting her house in the night time unless he was confident enough that the prosecutrix called him or desired his visit a t her house. The other improbability factor is that all the brothers were presen t in the house in the night of the incident. The accused appellant, even supposi ng that the prosecutrix desired his visit, would not have taken the risk of bei ng caught by her brothers because they were also inimical to the appellant. The question that has been posed is that inspite of risk factor whether it was likel y that he would visit the house of the prosecutrix. An answer to this question l argely depends on the evidence adduced by the prosecution. In this regard, the e vidence of P.W 1 to 4 may be appropriated as under: (a) The victim as P.W.1 stated that though she did not see the accused Abdul Azi z physically, she could recognize him on hearing his voice, only. (b) She has nowhere mentioned that her brothers could see the accused on the Co urtyard and could see him in the flash light of torch used by Abdul Kalam PW-3 . Her only claim is that she could recognize him on hearing his voice when accus ed Abdul Aziz cautioned her not to report the incident to anyone. Had the accuse d been seen by accused Abdul Kalam it must have been clearly mentioned in her c omplaint petition itself and her statements made u/s 164 Cr.P.C. Abu Noser PW-2, stated that at first Kalam went inside the bedroom of Anowara, and thereafter, they went , whereas the victim stated that her brother came near to her with a l athi in hand and nothing else was in his hand. She did not make any mention of u se of any torch light by anyone. (c) Abu Noser PW-2, candidly admitted that he had not seen the accused in that n ight. (d) Abu Hilal PW-4, however, clearly stated that he had not seen the accused in that night. 16. From the above evidence it is, therefore, very much clear that the statement of Abdul Kalam, PW-3, is an improvement to testify that he had a t orch and on the flashing of the torch light he could see the accused Abdul Aziz at their courtyard. Had it been factually true there could have been no reason f or not mentioning this most vital information in the complaint petition, as well as, in statement of the complainant and her brothers. So, the claim of recogniz ing the accused Abdul Aziz in the flash light of a torch, deserves outright reje ction. In this regard, I would like to refer to the case of State of Orissa-vs- Chandra Pentia, 1981 CRL L J 1060(Orissa) wherein, in respect of risk of identif ication of accused by voice, it is observed as under: 9..Regarding the identification of the accused, it is also not safe to convict the accused merely on the identification from his voice. In Modi’s Medical Juris prudence also it has been observed that to recognize a person from his voice is an every day occurrence though it is too risky to be relied upon in criminal cas es. 17. Since the prosecutrix avoided medical examination, she could not be examined medically to obtain a report of the medical officer or to ascertain whether she received any injury on her person due to alleged rape committed upo n her by the appellant. Except her oral evidence, there is no other medical or o ther documentary evidence supporting her allegation. As discussed earlier her ev idence has been found asmuch artificial as imaginary, which is due to subsistin g