Crl.A. 229/2007 BEFORE HON’BLE MR JUSTICE P K MUSAHARY IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARU NACHAL PRADESH) PRINCIPAL SEAT Crl. Appl. No. 229/2007 1. Sri Prasanta Bharali S/o Sri Dimbeswar Bharali 2. Sri Niranjan Rajkhowa S/o Late Dibakar Rajkhowa Both residents of Village Mornoi Chapori under Ghilamara Police Station in the District of Lakhimpur, North Lakhimpur, Assam. .............. Accused/Appellants (IN JAIL) - Versus - The State of Assam ...............Respondent Advocates for the appellants :- Mr. R. Sekhar Mr. U S Borgohain Advocates for the respondent :- Mr. B B Gogoi, Addl. Public Prosecutor P R E S E N T THE HON BLE MR. JUSTICE P K MUSAHARY Date of hearing :- 17.12.2009 Date of Judgment & order :- 17.12.2009 JUDGMENT AND ORDER(ORAL) Heard Mr. R. Sekhar, learned counsel for the convict appellants. Also heard Mr. B B Gogoi, learned Addl. Public Prosecutor, for the respondent S tate of Assam. 2. This appeal has been preferred by 2(two) of the 5(five) accused persons, convicted by the Court of Addl. Sessions Judge(FTC), Lakhimpur, North L akhimpur, vide Judgment dated 29.06.2007 in Sessions Case No. 27(NL)03, convicti ng them u/ss. 457/376(2)(g) I.P.C. and sentencing them to undergo R.I. for 3 yea rs and to pay a fine of Rs. 2000/-, in default of payment of fine, to suffer R.I . for a further period of 2 months for the offence u/s. 457 I.P.C. and further t o undergo R.I. for 10 years and to pay a fine of Rs. 5000/-, in default of payme nt of fine, to suffer R.I. for a further period of 2 months for the offence u/s. 376(2)(g) I.P.C., both sentences to run concurrently. The prosecution case, in brief, is that in the night of 15.03.20 02, the FIR named accused persons forcefully entered into the house of informant and threatened her and her daughter Smt. Purnima Sutradhar. While Smt. Purnima Sutradhar managed to flee away from the house, the informant was allegedly gang- raped by the accused persons. On receipt of the FIR, police registered Dhakuakha na P. S. Case No. 30/2002 u/ss. 457/376(2) (g)/506 I.P.C. and launched investiga tion. During the investigation, the I.O. sent the informant victim woman for med ical examination, examined some of the witnesses, arrested the accused persons a nd on completion of the investigation, submitted charge sheet against 5(five) ac cused persons, namely, Prasanta Bharali, Ranjan Saikia, Niranjan Rajkhowa, Joy C h. Chutia, and Bupan Saikia. The case being committed, the learned Court of Sess ions framed the charge against the aforementioned accused persons under the rele vant sections of Indian Penal Code, as noted above. On being explained, the accu sed persons pleaded not guilty and claimed to stand trial. The prosecution, in order to establish its case, examined as man y as 6(six) witnesses including the informant victim woman. The accused persons examined none in their defence. After conclusion of the trial, on consideration of the materials and evidence on record and upon hearing the learned counsel for the parties, the learned trial Court passed the Judgment, dated 29.06.2007, con victing and sentencing them, as stated above. Out of the 5(five) convicts, only 2(two) of them, namely, Prasanta Bharali and Niranjan Rajkhowa, are before this Court in appeal. 3. For disposal of this appeal, I would like to refer to and examin e the FIR, statement of the informant victim woman u/s. 164 Cr.P.C., her oral ev idence, and the evidence of Medical Officer, for the purpose of testing the vera city and reliability of the evidence of the informant victim woman. 4. In the FIR(Ext. 1), it is alleged that the accused persons in th e night of 15.03.2002, at about 12 o’clock, came and entered into the informant’ s house forcefully and woke her from sleep. Then they threatened to kill her and her daughter Smt. Purnima Sutradhar, aged about 16 years, and they were brought outside the house. However, her daughter, aforesaid, could escape from the clut ches of the accused persons. But, they committed gang rape on the informant and thereafter left the place of occurrence. On 20.03.2002, the informant victim wo man was produced before the SDJM(Sadar), North Lakhimpur, before whom, she made statement, which was recorded u/s. 164 Cr.P.C.. In the said statement, she gave narration as to how she was raped by the accused persons. It is to note that in her statement u/s. 164 Cr.P.C., she stated that the accused persons had sexual i ntercourse with her, against her will and inside her house. Thereafter, she was dragged outside the house and was again raped at the nearby paddy field, by for ce. The informant victim woman was examined as P.W. 4. Before the trial court, s he deposed that in the said night of incident, she was sleeping with her 2 minor sons, aged 7 years and 2 years respectively. She further stated that her daught er Smt. Purnima Sutradhar was also present at home at the time of incident but s he later on, managed to flee from the scene. She gave detailed narration as to h ow she was gang raped by the accused persons inside and outside her house. 5. The informant victim woman’s daughter Smt. Purnima Sutradhar was also produced before the SDJM(Sadar), North Lakhimpur, on 20.03.2002, and her s tatement was recorded u/s. u/s. 164 Cr.P.C.. In her statement, she stated that t he accused persons came to their house in the night of 15.03.2002, at about 12 o ’clock, and one of the accused, namely, Niranjan Rajkhowa caught her by hand. Sh e stated that Niranjan Rajkhowa was accompanied by 3(three) other boys and they entered into the house by breaking the door and that she, somehow, managed to fr ee herself from the clutches of Niranjan Rajkhowa and flee away therefrom, to th e house of one Samu Dev and took shelter there. In the next morning, she could l earn from the people that the accused persons committed some misdeed with her mo ther(informant victim woman). She also stated that she saw her mother with mud o n her person and with tattered clothes. 6. The Medical Officer, Dr. Bhabesh Gogoi, was examined as P.W. 6. According to him, on 16.03.2002, he, on police requisition, examined the inform ant victim woman at Dhakuakhana PHC. On examination of the victim woman, he foun d injuries, on her person, as follows : 1. On external examination : There were human teeth bite on the base of the right nipple. There were nail scratching marks in her both breasts and abdomen. 2. On vaginal examination : The whole perineum was tender, hymen was not fo und and bleeding per vagina was found. This bleeding was probably due to menstru ation as stated. 3. On laboratory examination : Vaginal swab shows sluggishly motile spermat ozoa. Remarks : Raped within 20-30 hours from the time of examination. 7. As per the medical evidence, it is proved and confirmed that the victim woman was raped. Now, the niggling question is as to who has committed t he rape on informant victim woman. The victim woman while deposing before the t rial court stated that for her livelihood, she worked as a day labourer. She dep osed that her two minor sons of 7 years and 2 years, were sleeping with her in t he house in the night of incident and they cried for help when accused Ranjan Sa ikia forcibly raped her. She deposed that after she was raped by the accused pe rsons, she came to the house of one Sri Cheniram Sutradhar, a neighbour. The acc used persons too chased her but she was saved from them as the family members of Cheniram Sutradhar told the accused persons that she was not in their house. Th ereafter, she went to the house of one Sri Nagen Sutradhar, another neighbour, t o whom, she confided the incident. She further deposed that she along with Sri Nagen Sutradhar informed the villagers about the incident. The villagers told he r that they would go to the police station in the morning. In her examination-in -chief, she stated that before the ’rape incident’ took place, her husband elope d with the wife of accused Ranjan Saikia and that her husband does not stay with her any longer. She deposed that, in her opinion, the ’rape incident’ took plac e because of the elopement of her husband with the wife of accused Ranjan Saikia . In the cross-examination, she did not mention in the FIR that her daughter Smt . Purnima Sutradhar was at home in the night of the incident. She also stated th at now her daughter Smt. Purnima Sutradhar has been married. 8. 3(three) accused persons including the present appellants and Jo y Ch. Chutia were examined u/s. 313 Cr.P.C. wherein they have denied the allegat ions levelled against them. However, they stated that the informant victim woman is not a good character and she sells liquor and maintains clandestine relation with others. They also stated that the informant victim woman’s husband eloped the wife of accused Ranjan Saikia and in this regard, on the said night of incid ent, when they visited the house of the informant victim woman for some informat ion, she rebuked them belligerently. They, later in the next day, came to know t hat in the same night, somebody had raped the informant victim woman. They also stated that out of grudge, she mentioned them as accused persons without recogni zing the real culprits. From the impugned judgment itself, it is found that accu sed Bupan Saikia and Ranjan Saikia did not appear before the Court and they were declared absconders. The other accused Joy Ch. Chutia, after filing hazira, at the time of pronouncement of sentence, fled away from the premises of the trial court. The above named convicts are, thus, not before this Court. 9. In the charge sheet, the informant victim woman’s daughter Smt. Purnima Sutradhar along with 5(five) others, was cited as a witness but she was not examined by the prosecution. No explanation has also been offered by the pro secution as to why she was held back from being produced before the trial Court. According to the statement of Smt. Purnima Sutradhar, u/s. 164 Cr.P.C., she was present in the house in the night of occurence and she was caught by Niranjan R ajkhowa and she could somehow escape from the grip of the said accused person an d fled away. If that was so, she was an important eye-witness, at least, to the stage of forceful entry of the accused persons in their house by breaking the do or. She might have seen the other co-accused along with accused Niranjan Rajkhow a and she could have, to a certain extent, corroborated the evidence of the info rmant victim woman(her mother). But the informant victim woman herself contradic ted her stand in the FIR by deposing before the learned trial Court that her dau ghter Smt. Purnima Sutradhar was not present in the house in the night of the in cident. At the same time, the informant victim woman(PW 4) has deposed that her 2 minor sons, one of whom, was 7 years old, were present in the night of the inc ident. The minor boy of 7 years old, if he was actually present in the house in the night of the incident and saw the incident with his own eyes, could also be an important eye-witness. He, thereafter, could have been produced as an importa nt eye-witness after testing him as to whether he was fit for giving any evidenc e but the prosecution has left-out this important eye-witness and seemingly rema ined complacent with the evidence of the informant victim woman and her 3 neighb ours[PW 1, PW 2, and PW 3], who were in fact not the eye-witnesses to the said i ncident and whose evidence failed to lend support/corroboration with the informa nt victim woman’s evidence. These PWs, merely, have stated before the learned tr ial Court what they heard from the informant victim woman only. 10. Generally, in a case of rape, eye-witness is not available. But, in the present case, at least, one minor boy of 7 years old was present at the time and place of occurrence and he was an eye-witness to the same. In such a sc enario, child witness can also be produced. There is no bar, as such, in the cri minal trial on examining a child witness. I may, in this regard, refer to the ca se of Suryanarayana -vs- State of Kerala, reported in (2001) 9 SCC 129 wherein a girl of 4 years who was an eye-witness to the incident and 6 years at the time of her deposition, was produced and examined as an witness. In another case of B aby Kandayana -vs- State of Kerala reported in 1993 Supp.(3) SCC 667, two child witnesses were examined by the prosecution. The law requires that the child witn ess, before recording his/her evidence, must be tested by the trial Court asking him/her general questions and his/her testimony could be accepted if they withs tand the cross-examination and conviction could be ordered on the basis of his/h er sole testimony alone if the same inspires confidence of the court so as to ru le out any possibility of tutoring. The law is that the children are considered as most natural witness(s) and therefore, their evidence, is acceptable by the c ourt. In the instant case, the prosecution failed to take this advantage by exam ining the seven-year old child of the informant victim woman who could have stat ed the truth as he was an eye-witness to the ravishment of his mother by the acc used persons. 11. It is in the evidence of the informant victim woman that there a re neighbouring houses and her minor sons cried out for help while she was raped inside the house by the accused persons. It is also in her evidence that she wa s forcefully dragged outside her house and taken to the nearby paddy field where the accused persons again raped her. In the statement u/s. 164 Cr.P.C., her dau ghter Smt. Purnima Sutradhar also stated that she somehow managed to escape and took shelter in the house of one Sri Cheniram Sutradhar. If that was so, she cou ld have cried out for help and could have asked some villagers to save her mothe r. It has been stated by PW 1, PW 2 and PW 3, that the accused persons were dang erous men. But could those 5(five) accused persons really afford/dare to challen ge the villagers if the villagers came out in horde. It will not be fair to make any comment on the character of the informant victim woman without any evidence on record but the appellants have thrown some light in their statements u/s. 31 3 Cr.P.C. on her character as doubtful. The informant victim woman has also cont radicted in making statement on the material fact like presence of her daughter Smt. Purnima Sutradhar in the night of the incident. The informant victim woman clearly stated in the FIR that her said daughter was present in the house who la ter on managed to escape from the scene. In the cross-examination, the informant victim woman stated that the FIR was not written by her as she was an illiterat e and the contents in the said FIR were also not read over and explained to her. It may be correct, for which, she deposed before the trial court that her daugh ter, aforementioned, was not present. But what about the statement u/s. 164 Cr.P .C. made by her daughter who categorically stated before the Magistrate on oath that she was present in the house when the accused persons entered into their ho use, forcefully, by breaking the door and she could somehow manage to run away f rom the scene. Could the statement of Smt. Purnima Sutradhar, daughter of the in formant victim woman and 16 years of age, at the time of the incident/recording her statement, be discarded out-rightly? In my considered view, the categorical statement given by Smt. Purnima Sutradhar u/s. 164 Cr.P.C. cannot be left aside and outside the purview of consideration. It may, at least, be used, for the pur pose of testifying the veracity of the evidence of the informant victim woman wh o has contradicted her own statements given in the FIR and deposition. 12. The evidence of Medical Officer confirming rape on the informant victim woman alone, cannot lead to a conclusion that the accused appellants, he rein, were involved in the commission of offence and they may be convicted for t he same. The law permits conviction, without any corroboration, on the sole test imony of the prosecutrix/victim woman, if her evidence inspires confidence of th e court and appears to be natural and truthful. There are several decisions on t his point, amongst which, I may refer to Vimal Suresh Kamble -vs- Chaluverapinak e S.P. & Anr., reported in (2003) 3 SCC 175. It is also well established princip le of law that minor contradictions or insignificant discrepancies in the statem ents of the prosecutrix should not be a ground for throwing out an otherwise rel iable prosecution case. This has been so held in the State of Punjab -vs- Gurmit Singh, reported in (1996) 2 SCC 384. In the present case, the contradictions in the material fact, namely, presence of her daughter (Smt. Purnima Sutradhar), 1 6 years old, in the evidence of the prosecutrix cannot be treated as a minor con tradiction or an insignificant discrepancy taking into account that the prosecut ion although cited her (Smt. Purnima Sutradhar) as an witness, held her back fro m producing before the learned trial Court and thus, deprived the defence to cro ss-examine her. 13. In this regard, it may be apt to refer to the case of Habeeb Moh ammad -vs- State of Hyderabad, reported in AIR 1954 SC 51, wherein it is observe d that if a material witness is deliberately or unfairly kept back, then, a seri ous reflection is cast on the trial itself and the validity of the conviction re sulting there from it, may be open to challenge. Following the above, the Apex C ourt, in Narain -vs- State of Punjab, reported in AIR 1959 SC 484, further obser ved, as follows : 13. It will be seen that the test whether a witness is material for the p resent purpose is not whether he would have given evidence in support of the def ence. The test is whether he is a witness essential to the unfolding of the narr ative on which the prosecution is based. Whether a witness is so essential or no t, would depend, whether he could speak to any part of the prosecution case or w hether the evidence led disclosed that he was so situated that he would have bee n able to give evidence of the facts on which the prosecution relied. It is not, however, that the prosecution is bound to call all witnesses who may have seen the occurrence and so duplicate the evidence. But apart from this, the prosecuti on should call all material witnesses. 14. As stated earlier, the minor son of 7 years, who, according to t he prosecutrix herself, was present at the time and place of occurrence, was als o not produced. There is another important aspect which is found in the evidence of the prosecutrix that her husband eloped the wife of one of the accused, name ly, Ranjan Saikia, and she herself stated that the rape incident took place due to the said elopement. The present appellants have in their statements u/s. 313 Cr.P.C. stated that such incident of elopement actually took place and they have been simply implicated in the case out of grudge as because they have visited t he house of the prosecutrix and enquired/sought information, from her regarding elopement of her husband with accused Ranjan Saikia’s wife. 15. From the evidence of prosecutrix, it is found that she was stayi ng alone with her children i.e. without her estranged husband, and that an enmit y developed between accused Ranjan Saikia (husband of the lady whom prosecutrix’ s husband eloped) and husband of the prosecutrix. Because of such enmity, there may be a second view that accused Ranjan Saikia, in order to avenge, took the le ad by way of committing rape on the prosecutrix with the help of accused Bupan S aikia and Joy Ch. Chutia, who have absconded since then, and they may be the rea l culprits. The present appellants have faced the trial and are serving the sent ence. There is no reliable and solid evidence to record conviction and sentence against them. The materials and evidence, on record, are not sufficient enough t o convict and sentence them given the contradictory, unreliable, untruthful and unnatural testimony of the prosecutrix which has failed to gain the confidence o f this court. With this nature of testimony/evidence, on record, the prosecution cannot claim that it has proved its case, beyond all reasonable doubt, at least , in the case of the present appellants. The present appellants, namely, Prasant a Bharali and Niranjan Rajkhowa, are, therefore, entitled to get the ’benefit of doubt’ and as such, they must get the order of acquittal. Consequently, the app eal succeeds. 16. The appellants, namely, Prasanta Bharali and Niranjan Rajkhowa, are hereby directed to be set at liberty, forthwith, if their detention, otherwi se, is not required in connection with some other case. 17. It is made clear that the other 3(three) convicts, namely, Bupan Saikia, Joy Ch. Chutia and Ranjan Saikia, who are not before this court, would not get the benefit of this judgment. 18. LCRs be remitted to the lower court concerned.