Crl.A. 226/2002 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA The instant appeal has been filed challenging the legality and validity of the judgment and order dated 4.6.2002 passed by the learned Ad-hoc Addl Sessi ons Judge, Hojai at Sankardev Nagar, in Session Case No.54(N)/2000 convicting th e appellant under Section 365/376 IPC and sentencing him to undergo rigorous im prisonment(R.I.for short) for 3 years and to pay a fine of Rs.1000/-, in default , to R.I. for another 3 months under Section 365 IPC and sentencing him to unde rgo R.I. for 7 years and to pay a fine of Rs.5000/- in default, RI for another 6 months under Section 376 IPC with direction that both the sentences shall run concurrently. 2. Heard Mr.HRA Choudhury, learned senior counsel assisted by Mr.F.U.Borbhu yan learned counsel appearing for the appellant. Also heard Mr.B.S.Sinha learne d Addl.P.P, Assam for the respondent State. 3. The prosecution case arose on the basis of FIR(Ext.1) lodged by one Md. Abdul Nur, father of the victim girl (PW-2) on 24.8.99 with the Officer-in-char ge, Morajhar Police Station contending therein that the informant’s daughter al ongwith his son Md.Rubul Ahmed ,PW-3 on 16.8.99 went to their paternal aunts ho use situated at Doboka . On 17.8.99 they were returning therefrom and were wait ing at Morajhar Bus stand of Nilbagan tiniali to catch a bus to go to their vill age near Morajhar. At that time at about 10 AM Md.Nazrul Islam (the accused appe llant), son of his co-villager Md.Anowar Hussain came there with a Taxi and aske d them to board the taxi if they wanted to go home. While the informant’s daught er and son boarded the taxi, after coming a little distance the accused pushed d own Rubul Ahmed, son of the informant from the vehicle and went away with his da ughter towards Morajhar to some unknown destination. Informant made vigorous sea rch but found no trace of her. On 24.8.99 only the informant came to know that P olice of Morajhar Police Station has detained the appellant alongwith his daught er, he lodged the FIR, stating that as the informant was searching for his daugh ter, there was delay in lodging the FIR. 4. On receipt of the FIR the Officer-in-charge Morajhar P.S. registered it as Mo rajhar P.S.case No.133/99 under Section 366-A IPC and started investigation. Aft er completion of the investigation police submitted charge sheet against the acc used appellant under Section 376/366 IPC. 5. The offence being exclusively triable by the Sessions Judge, the same wa s committed to the Court of Sessions by the learned Sub-Divisional Judicial Magi strate, sankardev Nagar, Hojai. 6. In the court of learned Sessions Judge the case was registered as Sessio ns case No. 54(N) 2000 and the same was transferred to the Court of learned Addl .Sessions Judge, Nagaon, which was again transferred to the Court of Ad-hoc Addi tional Sessions Judge as indicated hereinabove. 7. Upon perusal of the materials on record, the learned trial Court framed charges under Sections 376/366 IPC. The charge being read over and explained to the accused he pleaded not guilty and claimed to be tried. 8. During the course of trial, the prosecution examined as many as four witnesse s namely, PW-1 Dr.Kamal Ch.Gogoi who examined the victim girl, PW-2, the victim girl, PW-3 Md.Rubul Ahmed (brother of victim girl) and PW-4 Investigating Office r. The first informant died in the meanwhile and so he could not be examined. 9. During the examination of the accused under Section 313 Cr.P.C., he took the plea of total denial. He has specifically stated that, one day when he was going to Sivasagar in a bus from Nagaon, he saw PW 2 going in the same bus to Si vasagar. When they arrived there, both of them went to their respective destinat ion and he had no knowledge, where the PW 2 went afterwards. To establish his pl ea, he examined himself as a defence witness(DW I) 10. At the conclusion of the trial the learned trial Court convicted and sen tenced the accused appellant as aforesaid. Hence the present appeal. 11. Mr HRA Choudhury learned senior counsel assisted by Mr F.U.Borbhuyan lea rned counsel appearing for the appellant has submitted that in the present case in hand PWs-1 and 4 being the doctor and Investigating officer respectively are official witnesses and other non official witnesses in the case are the victim g irl PW-2 and her minor brother PW-3. There are contradictions in the deposition of the PW-2 and PW-3 as well as in the statements made by the PW-2 under Section 164 Cr.P.C. and in the deposition made in the court. The learned trial court wi thout appreciating the same, has passed the impugned order of conviction and apa rt from that the learned trial Court has not taken into consideration the delay in lodging the FIR, inasmuch as the occurrence took place on 16.8.99 but the FIR was lodged only on 24.8.99 i.e. after about 8 days of the occurrence. Mr.Choudh ury has further submitted that the victim girl in her cross-examination has admi tted that she had filed a maintenance case against the accused appellant. She ha d admitted that on 20.8.99 she got married with the appellant. If that is so, th e accused appellant cannot be held guilty of the offence under Section 376/365 I PC. 12. In view of the above submission, evaluation of the prosecution witnesses are necessary. The same are therefore discussed thoroughly hereinbelow for prop er adjudication of the case. 13. PW-1 is the doctor who had examined the victim girl on 24.8.99. The doct or after examination of the victim girl opined that her age was approximately a bove 18 years. The doctor found no external injury upon her person including he r private parts. Moreover no spermatozoa found in the vaginal swab. During cross-examination, PW 1 stated that she was grown up girl, having 28 teeth at the time of examination. He has further stated that no evidence of recent rape/intercourse was found on examination. 14. PW-2 is the victim girl who has stated that on the day of occurrence she alongwith her brother Rubul was waiting at Nilbagan in order to catch a bus to go home. At that time the accused arrived there in a taxi and asked them whethe r they were going home. She told him that she had no money to go by taxi. Then t he accused told her that he had hired the taxi and she need not have to pay mone y. Then she and her brother boarded the taxi and after going a little distance t he accused got down her brother from the taxi. Then she also tried to get down f rom the taxi and in that process she broke the glass of the door, thereby she su stained injury in her right hand and right leg. The accused pressed her mouth. S he tried her best to save herself but could not. The accused took her to Dimapur and kept there in a house owned by a Naga person for two nights. During those t wo night the accused had sex with her against her will. When she asked the accus ed what will happen to her thereafter, he then took her to Sivasagar wherein in the Kazi’s office he married her through Kabinnama. She gave her consent to the marriage. After marriage they spent four nights at Sivasagar. During these four nights she had sexual relation with the accused and she did not prevent him fro m having sex as the accused had married her. Thereafter the accused took her to his aunts place at Mollagram. He kept her there for one day and the following da y the father and the uncle of the accused handed them over to Morajhar police st ation. The police thereafter sent her to the doctor and also produced before the Magistrate. Later she was taken in the custody from the court. During cross examination PW 2 stated that before the incident the accuse d appellant never told her or any member of her family that he wanted to marry h er. She also never wanted the accused to marry her. She had no love affairs with the accused. She has further stated that when she boarded the taxi about 30/40 shops were open at Nilbagan and about 100/150 people were here and there. Except the driver and the accused there were no other person in the taxi. She also dep osed that when she boarded the taxi, accused was seating in the front seat near driver and her brother and she sat in the back seat of the car. After going to a little distance the accused came to the back seat from front seat and kicked ou t her brother, who was about 7/8 years old. She did not know that she was taken to Dimapur. They reached Dimapur at night. She was kept in a house. She was not allowed to go outside except attending nature’s call. While attending natures ca ll she came to know that the house was amidst the market and saw people were m oving there. She also deposed that during her stay at Dimapur nobody came to see her. Thereafter she was taken to Sivasagar by the accused and the following day the accused married her through Kabinnama before a Kazi. She was taken to Sivas agar from Dimapur by bus. At Sivasagar she met members of the family where she w as kept including the family members of the house and an Assamese person accompa nied them when they had gone to the office of the Kazi. However she did not know his name. She also did not know the name of the Lawyer and the witness of the m arriage. The accused did not take her to his home instead he had taken her to u ncle’s place. She has also admitted that after the occurrence she had filed a ma intenance case against the accused. Later the case was dismissed as she did not pursue. She has further stated that she was not aware that there are 3/4 check g ates before entering into Nagaland and that Police had checked them in those che ck gates. Suggestion put to her that she has not stated before the police and th e Magistrate that she had broken the glass of the taxi and sustained cut injurie s by the broken glass, has been denied. Other suggestion put to her have been de nied. 15. PW-3 brother of the victim girl has deposed that on the day of occurrenc e when they were waiting at Nilbagan to catch bus for going their home, the accu sed came with a taxi and asked them to board the taxi. When they declined to boa rd the taxi as they had no money to pay, the accused told them that he had hired the taxi and they would not have to pay for that. Then his sister PW-2 and hims elf boarded the taxi and sat in the back sit of the car. After going a little di stance the accused pushed down him from the taxi after stopping the car and proc eeded towards Murajhar taking his sister. Then he started weeping and a man mana ged him to get into a bus and then he reached home. After reaching home he came to know that his sister did not return. During cross examination PW-3 deposed that in the back seat he sat in th e middle and the accused was sitting on one side of him and his sister was sitti ng on the other side. After going a little distance the accused dragged him out to his side in which he was sitting and suddenly pushed him down the car. 16. PW-4, the Investigating officer has stated that after receipt of the FIR on 28.4.99 he started investigation, recorded the statements of the witnesses. The victim girl was produced at Morajhar Police Station by the relative of the a ccused appellant and recorded the statement of victim girl and sent her for medi cal examination and then sent to court to record her statement under Section 164 Cr.P.C(Ext.2). He then arrested the accused and forwarded him to court. Later o n he collected the medical report of the victim girl as well as her statement re corded under Section 164 Cr.P.C. Thereafter he submitted charge sheet against th e accused under Section 376/366 IPC. During the cross examination PW 4 has stated that alleged occurrence too k place on 17.8.99 at 10 AM and FIR was lodged at Morajhar P.S. on 24.8.99. He h as admitted that he did not record the statement of any person of Nilbagan where the occurrence started. He also did not record statement of any witness at Dima pur as well as Sivasagar though the victim girl had revealed to him that she was first taken from Nilbagan to Dimapur and after spending the night there she was taken to Sivasagar. He has further admitted that he did not go to Dimapur or to Sivasagar in the course of the investigation of the case. While confronting the statements made by the victim girl PW-2, PW-4 has stated that the victim girl h ad stated before him that the accused did not allow her brother to board the tax i. She has also not stated before him that she had broken the glass of the windo w of the car and sustained cut injury in her right hand and leg by the broken gl ass. She also never stated before him that from Sivasagar she was taken by the a ccused appellant to the house of his uncle and thereafter the uncle produced the m before the police. PW-4 further stated that PW-2 never stated before him that the accused appellant first took her in a taxi from Nilbagan to a little distanc e and thereafter in a bus to Dimapur. She never stated that the accused took her by gagging her mouth inside the taxi. PW-4 has further stated that he could not collect any information to search out the taxi by which the victim was taken aw ay by the accused and could not gather any information about the name of the dri ver and conductor. He has stated that he has perused the statement made by the v ictim girl under Section 164 Cr.P.C. wherein she has stated that after taking he r in the taxi to a certain distance she was taken there from in a bus by the acc used and he could not collect any information regarding the said bus or taxi and the driver and he could not record their statement. 17. From the evidence of the prosecution witnesses so recorded would reveal the following facts: (i) The occurrence took place on 16.8.99 but the FIR was lodged by the fathe r of the victim girl on 24.8.99 only, meaning thereby that the family members of the victim girl had waited till 24.8.99 to lodge the FIR that too after product ion of victim girl and the accused in the Morajhar Police Station by the relativ es of the accused appellant. (ii) Admittedly as per statement made by the victim girl she was first taken by the accused in a taxi from Nilbagan to a short distance and thereafter she wa s taken in a Bus to Dimapur where she was staying in a house owned by a Naga per son in the midst of market area. (iii) From Dimapur she was taken to Sivasagar by Bus and the accused kept her in a house of his relative where she met the family members. (iv) At Sivasagar the accused married her through Kabinnama before a Kazi whe re witnesses and lawyers were present though she stated that she did not know th e name of the witnesses and the lawyer. (v) In her deposition she has stated that the accused while taking her away in the taxi, he was first sitting in the front seat of the car and after sometim e he stopped the car and came to the back seat and immediately after stopping th e car he pushed down her minor brother from the taxi. On the other hand the brot her of the victim girl i.e. PW-3 has deposed that he was sitting in the back sea t of the taxi between the victim girl and the accused then the accused stopped t he car and pushed down him after stopping the car. (vi) The victim girl stated her age to be 20 years while recording her statem ent by the Magistrate under Section 164 Cr.P.C on 26.8.99. Again while recording her depositions by the trial Court on 13.3.2002, she has stated her age to be 2 0 years. (vii) Upon examination, PW I the doctor found the age of the victim girl above 18 years.. 18. In the case in hand the accused has deposed as DW-1 who denied the invol vement in the case. He has stated that he went to Sivasagar in search of job alo ngwith his friends. In the same bus he saw the victim girl and on asking her whe re she was going, she told him that she was going to her brother Faizur’s house who was at that time staying at Sivasagar. He did not know whether the victim gi rl got down from the Bus at Sivasagar or not and not finding any work at Sivasag ar, he had returned home after 3/4 days and after arriving home he could come to know that a case has been filed against him alleging that he has taken away the victim girl. Coming to know about the same his father and uncle handed him over to the Morajhar Police station. The police arrested him and sent for trial. The reafter the victim girl has filed a case demanding maintenance from him. However , the case was dismissed before his appearance. He further stated that he was in jail for 3 months without any fault on his part. 19. In support of his submission Mr.Choudhury, learned senior counsel has pl aced the following decisions before this court: i. AIR 1998 SC 2694 Kuldeep K. Mahato V.State of Bihar ii. (2002) 9 SCC 537 State of Haryana Vs. Inder Singh and Ors . iii. (2008) 1 SCC(Crl)331 Kunju Alias Balachandran Vs.State of Tamil Nadu iv. 2003(2)GLT 394 Allauddin Vs. State of Assam v. 2004(3)GLT 110 Hajarat Ali Vs.State of Assam vi. 2005(3)GLT 105 Samsul Haque @ Samsul Alam Vs.State of Assam vii. 2006 (3) GLT 418 Amu Mia Vs. State of Assam viii. 2007(I) GLT 754 State of Tripura Vs Chayan @ Santosh Saha In Kuldeep K. Mahato(supra) while allowing the petitioner the Hon’ble Apex Court observed that when the prosecutrix had sufficient opportunity not on ly to run away from the house but she could have also taken the help of nei ghbours from the said village. It was further observed that the medical evidence which indicates that t here were no injuries on the person of the prosecutrix including her private par t, her entire conduct clearly shows that she was a consenting party to the sexua l intercourse and if this be so, the conviction of the appellant under Section 3 76 IPC cannot be sustained. In Inder Singh(supra) the Apex Court held that it is not the quantity bu t the quality of the witnesses which matters for determining the guilt or inn ocence of the accused but when a case is based on the testimony of the sole wi tness, his statement must be confidence-inspiring leaving no doubt in mind of t he court, being above all suspicion. In Inder Singh(supra) the Apex Court while dismissing the appeal preferred by the State against order of acquittal has obse rved that it would not be safe to rely upon the sole testimony of PW-4 for holdi ng the accused guilty of the commission of the offence with which they were cha rged by the trial Court. In Kunju Alias Balachandran (supra) while dismissing the appeal by upho lding the judgments of convictions, the Apex Court referred to and relied upon a decision in Vadivelu Thevar’s case reported in AIR 1957 SC 614, wherein the Ape x Court at Para 11 held as thus: 11 & &Hence, in our opinion it is a sound and well -established rule of law that the court is concerned with the quality and not with the quantity of th e evidence necessary for proving or disproving a fact, Generally speaking, ora l testimony in this context may be classified into three categories, namely: (1) Wholly reliable (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 12. In the first category of proof, the court should have no difficulty in c oming to its conclusion either way- it may convict or may acquit on the testimon y of a single witness, if it is found to be above reproach or suspicion of inter estedness, incompetence or subornation. In the second category, the court equall y has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There i s another danger in insisting on plurality of witnesses. Irrespective of the qua lity of the oral evidence of a single witness, if courts were to insist on plura lity of witnesses in proof of any fact, they will be indirectly encouraging subo rnation of witnesses Vadivelu Thevar’s case was again referred to with approval in Jagadish Prasad Vs .State of M.P.reported in AIR 1994 SC 1251, wherein the court held as thus: & &.As a general rule the court can and may act on the testimony of a single wit ness provided he is wholly reliably. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of Indian Evidence Act, 1872. But if there are doubts about the testimony, the court will insist on corroboration. It is for the court to act upon the test imony of witnesses & & &... The test is whether the evidence has a ring of truth, i s cogent, credible and trustworthy, or otherwise. In Allauddin (supra) this Court set aside the conviction recorded by the learned trial court after appreciation of evidence of the testimony of prosecut rix. The court found contradiction between the previous statement of the presecu trix recorded under Section 164 Cr.P.C. and her testimony before the trial Court . In the said case medical evidence shows the age of the prosecutrix to be below 18 years but above 16 years. The court below, held, erred in ignoring the possi bility of consensual nature of sexual intercourse and set aside the conviction r ecorded against the accused. In Hajarat Ali (supra) this Court while relying upon the decision in Shyam and another Vs State of Maharastra reported in AIR 1995 SC 2169 acquitted the accuse d who was convicted under Section 366 IPC by holding that during the entire stay of 1 ‰ months with the accused though the prosecutrix had the occasion to meet many people but she remained silent about her abduction and thereby held that pr osecutrix appearing to be a willing party to go with the accused on her own and therefore culpability of the accused was not established. In Samsul Haque @ Samsul Alam(supra)this Court in an identical case, held that b eing the case of voluntary elopement and not a case of forcible kidnapping , th e benefit must go to the accused and