Crl.A. 132/2003 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY JUDGMENT AND ORDER (ORAL) Heard Mr. M. Singh, learned counsel appearing for the appellant. Also heard Mr. B.S.Sinha, learned Addl. Public Prosecutor who represents the St ate. 2. The appellant challenges the judgment and order dated 25.3.2003 in Sessions Case No. 45(DM)/2001 rendered by the learned Sessions Judge, Mangald oi, whereby the appellant has been convicted under Section 376/511 I.P.C. and ha s been sentenced to undergo rigorous imprisonment for 4 year and to pay a fine o f Rs.10000/-, in default of which further R.I. for 1 year. 3. The criminal process in this case was set in motion by an FIR fi led on 30.8.2000 by the informant Noor Jahan Begum with the information that on 23.8.2000 while she was on duty as a Female Health Worker of the Panbari Sub Hea lth Centre, taking advantage of absence of others, the accused molested and assa ulted the informant. Accordingly Kalaigaon P.S. Case No. 78/2000 was registered and investigation of the case was started. Thereafter accused was arrested and c harged under Section 342/353/323/376/511 of the I.P.C. and the case was committe d for trial by the Sessions Court, as some of the charges were triable exclusive ly by the Court of sessions. 4. In the trial, 6 witnesses were presented on behalf of the prosec ution and 4 witnesses from the side of the defence. PROSECUTION WITNESSES 4.1 P.W.1, the victim gave a vivid description of the incident and s tated that 23.8.2000 was a Government holiday on account of Janmasthami and th erefore none of her colleague, doctors and patients were present at the Sub Heal th Centre where she was the only person present on duty. The Panchayat Office wa s located in an adjacent room and since some carpenters were engaged for some wo rks in the panchayat office the accused being the Panchayat Secretary was presen t to supervise the works of the carpenters. At noon time when the carpenters and the helpers left to have their meal, the accused entered the Health Centre by p retending to ask for some eye drops and then dragged the informant to his office room and attempted to sexually assault her. Then the prosecutrix pushed away th e accused and tried to come out from the room but the accused once again caught her and carried her back to his office room and molested her a second time. Then after some time, the witness managed to come out of the accused’s office room a nd she then left the health centre. P.W.1 then proceeded to the nearby residence of Aswini Bora (P.W .2), where she spoke to the mother of Aswini Bora. Then one of her colleague nur se Goleara Begum (P.W.4) met her and together they left for their residences at Kharupatia, located at a distance of 17 k.m. from the Sub-Heath Centre. She stated that after taking advice from the Sub-Divisional Medical Of ficer and others, she decided to lodge the FIR on 30.8.2000. In her cross-examin ation the prosecutrix denied a suggestion given to her that she lodged a false c omplaint because the accused had refused her marriage proposal. She explained th at since the accused was a married person, there was no question of her giving a marriage proposal to him. 4.2 P.W. 2 was Aswini Bora whose residence was located at a distance of 1‰ k.m. from the Sub-Heath Centre. He stated that on the day of occurrence a t noon time, the victim visited his house and spoke to his mother and wife but n othing was told to him. The witness stated that the victim was a regular visitor to his house and sometime the victim visited his house by riding on the motor c ycle of the accused. 4.3 P.W.3 Dhanaraj Chouhan was engaged as one of the carpenter to wo rk in the Panbari Panchayat Office on the date of the occurrence. He stated that when he left the place at noon time, the victim and the accused were the only 2 persons present in the office. 4.4 P.W.4 Goleara Begum is a colleague of the victim in the Sub-Heal th Centre. She stated that on the date of the occurrence when she could not find the victim at the Sub-Health Centre, she came to the house of Aswini Bora where she found the victim weeping. According to her, the victim informed her about t he assault made upon her by the accused and the fact that she got injured in the knee while resisting the accused. 4.5 Dr. Chandra Prasad Payeng was examined as the 5th prosecution w itness since he treated the victim for the injuries suffered by victim. The foll owing injuries were noticed on the victim by the doctor :- (1) Blackening with thrombus formation of the left leg just above the knee joint. (2) Tenderness was felt over the left side of the chest. Weapon used blunt. 4.6 P.W.6 was the Investigating Officer Mansur Ali who after receivi ng the information, visited the place of occurrence and arrested the accused on 2.9.2000. 5. When the accused was examined under Section 313 of the Cr.P.C., he denied any sexual assault on the victim but admitted that he was present in the Panchayat Office on the date of the incident. DEFENCE EVIDENCE 6. D.W.1 was Pratima Bora who is the mother of Aswini Bora (P.W.2). It was to her residence that the victim rushed to immediately after the assault . The witness stated that the victim told her that the accused did not keep his promise of marriage with the victim. Significantly nothing else was informed by the victim to D.W.1 6.1 D.W.2 Sachindra Nath and D.W.3 Safar Ali were the assistants to the carpenter Dhanaraj Chouhan. They stated that on the date of the occurrence, they saw the accused and the victim gossiping together and that they overheard t he talk of marriage. But they could not say with certainty as to whose marriage was being discussed by the victim and the accused. 6.2 D.W.4 Bodheswar Deka, another carpenter present at the place of occurrence stated that the victim was speaking in a friendly mood with the accus ed and talk of marriage also figured in the conversation. APPELLANT’S CONTENTIONS 7. On behalf of the appellant, it is argued that there was a delay of 7 days in lodging of the FIR (30.8.2010) of the incident which took place on 23.8.2000 and accordingly it is contended that a coloured version has been given by the informant of the incident of 23.8.2000 and the delay in the FIR must be taken into account by the Court while testing the veracity of the evidence in th e case. 7.1 It is further submitted that since there was no eye witnesses of the incident, the version projected by the victim has to be decided on the basi s of circumstantial evidences and it is contended that the circumstances did not unerringly point towards the guilt of the accused and accordingly the benefit o f doubt must be given to the appellant. 8. According to Mr. M. Singh the learned counsel, the testimony of the defence witnesses clearly reveal the motive as to why the victim had lodged a belated false complaint against the accused and accordingly it is submitted th at the prosecution version is not reliable and cannot be made the basis for upho lding the conviction of the accused appellant. 9. Mr. B.S. Sinha, learned Public Prosecutor submits that in the ab sence of any direct evidence, the case has to be considered only on the basis of the circumstances. However the learned Public Prosecutor submits that mere dela y in lodging of the FIR is not fatal for the prosecution. DISCUSSION 10.1 The stand taken by the appellant is that the victim and the accu sed were on friendly terms and only because the accused refused the marriage pro posal given by the victim, she belatedly filed the case with a false charge of s exual molestation. It is of some significance that victim who rushed to the resi dence of Pratima Bora (D.W.1) soon after she was assaulted, gave no information of the assault to DW-1 but merely told her that the accused didn’t keep his marr iage promise with the victim. It also appears from the evidence of D.W.1, D.W.2 and D.W.4 that on the date of incident, they saw the accused and the victim talk ing in friendly terms and they also overheard talks of marriage although they co uld not say with certainty as to, reference to whose marriage was made, in the c onversation between the victim and the accused. 10.2 The injuries noticed on the victim by the PW-5 were described a s old injuries and specific injuries were not mentioned in the Certificate given by the Doctor. 10.3 Cross-examination of the I.O. shows that the victim had not inf ormed the I.O. on the nature of assault. From this it can be inferred that the e vidence given by the victim was an embellished version of the happenings of 23.8 .2000. It must also be noted that the incident as has been narrated had happened at 2 stages and it is difficult to believe that the victim after escaping the a ccused’s first assault, was not able to escape a 2nd assault on her person. 10.4 We must also take note of the fact that on a Janmastami holida y the victim was present alone in the Sub-Health Centre when no other employee o f the Centre or patient was present and she remained there till about 1:30 p.m., even after the carpenters and their helpers had left for their midday meal at n oon time. The two were alone and were chatting on friendly tones when the assaul t had taken place. Then the victim rushed to the house of Aswini Bora (P.W.2) wh ere she met the P.W.2’s mother Smt. Pratima Bora (D.W.1). But as earlier noted, she did not mention of the sexual assault made on her just moments earlier and a ll that she told to DW-1 was that the accused had broken his promise of marriage to her. 10.5 Thereafter for 7 days, the victim kept silent and only on the 7t h day i.e. on 30.8.2000 she chose to file the FIR against the accused. 11. Considering the entire chain of events from the evidence availab le, it is seen that the version projected by the victim have been belied not onl y by the 4 defence witnesses but also by some of the prosecution witness such as P.W.2, P.W.3. There are enough evidence to point towards a friendly rendezvous of the victim and the accused at the Sub-Health Centre on a Government holiday. Taking this possible version into account, I am of the considered opinion that w ith the evidence available, it cannot be said with certainty that the prosecutio n has been able to prove the case beyond all reasonable doubt. There are several gaps in the prosecution version which raises doubt on the veracity of the victi m’s testimony and it doesn’t inspire the confidence of the Court. These factors coupled with the delay in lodging of the FIR persuades me to hold that the Appea l should be allowed. Having held thus, the judgment and order dated 25.3.2003 in Sessions Case No. 45(DM)/2001 is quashed. As the appellant is on bail, his bail bond stands discharged. 12. The LCRs be returned forthwith.