Crl.A. 197/2003 BEFORE THE HON’BLE MR. JUSTICE P K MUSAHARY JUDGMENT AND ORDER(ORAL) As expected, since the accused appellant has been granted bail a fter his conviction, the learned counsel engaged by the accused appellant, is fo und absent today when the matter was called-upon for hearing. However, I have he ard Mr. B. B. Gogoi, learned Addl. Public Prosecutor, for the State of Assam. 2. The prosecution case, in brief, is that on 13.04.2002, Smti. Nil ima(real name withheld, wife of Mr. ’X’) lodged an ejahar with the Officer-in-ch arge, Sipajhar Police Station alleging that on 12.04.2002 at about 3 pm, while h er husband was away from home, accused Jagyadhar Kalita visited her house. She r eceived him in the courtyard and immediately, she went inside her house for serv ing betel nut to the visiting guest(accused) who was a friend of her father. The accused immediately followed her to her room and grabbed her from backside, cov ered her mouth, made her to lie down on the bed and forcibly committed rape on h er. The Sipajhar Police Station Case No. 48/2002 was registered under Section 37 6 IPC.. During investigation, she was produced before the learned Magistrate, Ma ngaldoi, who recorded her statement on 17.04.2002 under Section 164 Cr.P.C., 197 3. On the following day of the occurrence, she was medically examined by the Doc tor of Mangaldoi Civil Hospital and after completion of investigation, charge-sh eet was laid against the accused appellant under Section 376 IPC and committed t o the court of Sessions for trial. The learned Sessions court framed charge unde r Section 376 IPC, to which, on being read over and explained, the accused appel lant pleaded not guilty and claimed to stand the trial. 3. As many as 6(six) witnesses were examined by the prosecution whi le only 1 witness was examined by the defence. In his statement recorded under S ection 313 of Cr. P.C., 1973, the accused appellant stated that he has been made the victim for demand of dowry at the time of marriage between the complainant and her husband who demanded Rs. 50,000/- from the father of the victim woman an d in that settlement, the appellant, as a friend of her father, happened to be p resent, and as because her father did not pay the amount, the false plot of rape has been made by the husband of the victim to harass the accused appellant. 4. The victim woman who was examined by the prosecution as PW-1, is the informant. Earlier, during investigation, her statement was recorded by a M agistrate under Section 164 Cr.P.C.. I have gone through the FIR, victim woman’s statement under Section 164 Cr.P.C. and her evidence tendered before the learne d trial court. It is found that the victim woman has been maintaining the statem ent in the FIR, statements before the learned Magistrate under Section 164 Cr. P .C. and in the deposition made before the learned trial court. I have found no c ontradiction in her allegation made in the FIR, statements made before the learn ed Magistrate and the deposition before the learned trial court. In the cross-e/ xamination, the evidence of the victim woman could not be shattered by the defen ce. 5. The mother-in-law of the victim woman was examined as PW-2, who clearly stated in her deposition that she was away for some time from her house and when she returned home, she could see one bicycle in the courtyard of their house and she curiously wanted to know who came in their house. While she came t o the doorstep of her daughter-in-law’s bedroom, she could see the accused appel lant in a compromising position with her daughter-in-law. She left the scene and after returning to her room, she wept over the misdeed. Her daughter-in-law and the accused appellant were not aware of her presence in the house. The defence counsel while cross-examining the PW-2, simply put a suggestion that she did no t witness the sexual act between the victim woman and the accused appellant but the said evidence of PW-2 could not be destroyed. The evidence of victim woman(P W-1) is, thus, found corroborated by the evidence of PW-2. 6. The medical officer who medically examined the victim woman was examined by the prosecution as PW-4. The officer found no injury on the private parts of the victim woman although her hymen was found absent as a married woman and used to sexual acts. The Magistrate who recorded the statements of the vict im woman u/s. 164 Cr.P.C. was also examined as PW-6, testified that he recorded the statements of the victim woman. 7. The only point for consideration is as to whether the evidence o f the victim woman could be treated as consistent, reliable and trustworthy so a s to convict the accused appellant solely on the basis of her testimony. A doubt has been raised by the defence as to why the victim woman did not make any hue- and-cry as soon as she was grabbed by the accused appellant from behind and prep ared to commit rape on her. The defence also raised a question as to whether she , infact, resisted the accused appellant while he made the attempt to commit rap e on her and if she resisted, why no sign of injury was found on her person incl uding the private parts as such injury is normally expected in such forcible rap e. Such injuries being absent, the defence made an attempt to take the plea that the victim woman was a consenting party. But on a careful perusal of the eviden ce of the victim woman(PW-1), it is found that the appellant is a friend of her father and she never expected/thought that such an attempt could be made from a person of her father’s age. The accused appellant took advantage of this positio n who grabbed her forcibly from behind and gave her no chance to raise any hue-a nd-cry as her mouth was already gagged by the accused appellant and she was also threatened not to raise any alarm. 8. In my considered view, in all the cases of rape, there must be i njury or mark of violence on the persons of the victim and the petitioner. In th e present case, it must be noted that the victim woman was alone in the house; h er husband and mother-in-law being away; and the accused appellant, in such a po sition, taking advantage of the absence of other family members; committed rape on her. It must also be noted that the mother-in-law(PW-2) had an occasion to re turn home and witnessed the scene of sexual act by the accused appellant with he r daughter-in-law, with her own eyes. 9. The incident was disclosed by the victim woman to her husband as soon as he returned home and a decision was taken to lodge an FIR. It must be n oted that the victim woman was a newly married woman who was living with her hus band peacefully. Why should a newly married woman bring such false allegation ag ainst the accused appellant taking the risk of breach of blissful marital life a nd also being ostracized by the family of her husband and also the society at la rge? It must be borne in mind that the prosecutrix could have remained silent wi thout disclosing the unfortunate incident to her husband but she courageously pr eferred to disclose the same to him inspite of possible problems that may crop u p after disclosure of the aforesaid occurrence. 10. The accused appellant tried to make out a case that the allegati on of rape against him was brought due to some personal grudge over the demand o f dowry but no evidence was led by him to prove such allegation. The defence sto ry is that as because the victim’s father, who was a friend of the accused appel lant, assured payment of dowry in his presence and on his failure to fulfill it, the husband of the victim woman, out of grudge, made the false allegation again st the accused appellant. But is it a believable story? In my considered opinion , it is not at all a believable story because there is no evidence or material o n record to show that the victim’s husband used to ask her to bring dowry or use d to torture her for demand of dowry. There is also no evidence or material on r ecord to show that the victim’s husband had any rivalry with the accused appella nt over any matter. In absence of such evidence or materials proving the case o f rivalry or grudge, the defence story must be discarded simply as improbable an d unbelievable. 11. Accordingly, in my considered view, the evidence of prosecutrix( PW-1) has been substantially corroborated by PW-2(mother-in-law) and as such, it cannot be said that the conviction was ordered by the learned trial court solel y on the basis of the evidence of the prosecutrix. I do not find any valid groun d for disbelieving the evidence of PW-1(victim woman) and PW-2(mother-in-law) an d discard the same. Both the PWs, aforementioned, are found to be consistent, re liable and trustworthy and their evidence have been found of sterling quality on the basis of which the conviction can be made against the accused appellant. 12. In that view of the matter, I find no infirmity in the impugned judgment rendered by the learned trial court and the same, is, therefore, accept ed and confirmed. The accused appellant shall surrender forthwith for serving th e sentence imposed by the learned trial court. The bail bond shall accordingly s tand cancelled. The learned court below shall take necessary steps if the accuse d appellant fails to surrender to serve the sentence. 13. The instant appeal stands rejected. 14. Send down the LCRs to the court below forthwith.