The sole testimony of the victim cannot be relied upon: Sikkim High Court

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appellate Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Crl. A. No. 119 Makraj Limboo Aged about 45 years Son of Shri Mangal Singh Limboo Resident of Ralap Busty P.O. & P. S. Phodong Mangshila North Sikkim. Presently lodged at Central Prisons Rongyek East Sikkim. ….. Appellant State of Sikkim ….. Respondent Appeal under section 374(2) of the Code of Criminal Procedure 1973. Mr. N. Rai Senior Advocatewith Mr. Sushant Subba Advocate and Ms Sushmita Gurung Advocate. Mr. Yadev Sharma Additional Public Prosecutor for the Date of hearing : 8.12.2020 & 9.12.2020 Date of judgment : 07.01.2021 Bhaskar Raj Pradhan J. On 10.01.2018 the victim lodged the First Information Report (Exhibit 3) at Sadar Police Station 2 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim Gangtok alleging that she was raped by the appellant on 17.08.2013 due to which she became pregnant and had to abort the baby on his advice. It was alleged that thereafter the appellant assured the victim that he would marry her. She further alleged that the appellant had taken her to his house after a month of the miscarriage in the pretext of changing his clothes and raped her again. In Sessions Trial Case No. 15 of 2018 the learned Judge Fast Track Court East and North Sikkim at Gangtok on 30.07.2019 convicted the appellant and sentenced him on 31.07.2019 under section 376(1) of the Indian Penal Code 1860 IPC) to undergo seven years rigorous imprisonment and a fine of Rs.50 000 . It was held that the case of repeatedly committing rape on the same woman under section 376(2)(n) IPC had not been made out. The learned Judge concluded that the appellant having committed rape upon the victim could not be ruled out. The learned Judge also held that the victim had explained the delay in lodging the FIR in detail. Mr. N. Rai learned Senior Counsel for the appellant challenges both the findings of the learned Judge. He further submits that even if this court were to believe the version of the victim it would be seen that the act complained of may have been consensual and the FIR was lodged only because the 3 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim appellant did not marry the victim. According to Mr. N. Rai the delay of five years in lodging the FIR have not been explained sufficiently. He drew the attention of this court to the judgment of the Supreme Court in Sudhansu Sekhar Sahoo vs. State of Orissa1 to impress that the sole testimony of the victim can be the basis for conviction provided it is safe reliable and worthy of acceptance. It was held that the evidence of the prosecution should be cogent and convincing and if there is any supporting material likely to be available then the rule of prudence requires that evidence of the victim may be supported by such corroborative material. Court should be strict and vigilant to protect society from such evils and in the interest of society serious crimes like rape should be effectively investigated. It is equally important that there must be fairness to all sides and in a criminal case a court has to consider the triangulation of interest. It involves taking into account the position of the accused the victim and his or her family and the public. Mr. N. Rai relied upon Ramdas and Others vs. State of Maharashtra2 in which the Supreme Court found that the delay of eight days in lodging the FIR has not been satisfactorily 110 SCC 743 22 SCC 170 4 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim explained and the appellant therein was given the benefit of doubt. It was held: that mere delay “24. Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly stated to merit acceptance. It is no doubt information report is not necessarily fatal to the case of the prosecution. However the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and therefore the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats witnesses may avoid going to the police station immediately. The time of occurrence the distance to the police station mode of conveyance available are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action nor was any such advice available to them. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family s reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence and the court must consider the delay in the background of the 5 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters and each case must rest on its own facts. It is settled law that however similar the circumstances facts in one case cannot be used as a precedent to determine the conclusion on in another. See Pandurang v. State of Hyderabad1 SCR 1083 : AIR 1955 SC 216] .) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.” He also relied upon Vijayan vs. State of Kerala3 in which the Supreme Court had considered a case solely based on the evidence of the prosecutrix. The complaint had been made after seven months after the alleged commission of rape. It was held that in cases where the sole testimony of the prosecutrix is only available it is very dangerous to convict the accused especially when the prosecutrix could venture to wait for seven months for filing the FIR for rape leaving the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix had willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it would be very hazardous to convict on such sole oral testimony. 314 SCC 763 6 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim Mr. Yadev Sharma learned Additional Public Prosecutor on the other hand vociferously supported the judgment of conviction and order on sentence passed by the learned Judge. It was his contention that the FIRthe statement of the victim recorded under section 164 of the Code of Criminal Procedure 1973(Exhibit 5) and her deposition in court had elaborately detailed the circumstances of how when and why the victim had been raped by the appellant which could not be demolished inspite of the exhaustive cross examination. It was therefore contended that the judgment of conviction and order on sentence need not be interfered. The prosecution has examined 18 witnesses including Shekhar Basnett the Investigating Officer and San Bdr. Limboo DW 2) raising a plea of alibi that on the date of the incident i.e. 17.08.2013 the appellant was in Nepal with them. The learned Judge disbelieved the plea of alibi as it was not cogently proved. The defence plea of alibi would be relevant if the prosecution discharged its burden of proof. The only direct evidence relating to the alleged rape by the appellant is that of the victim. The victim has in her FIR dated 10.01.2018 statement recorded under section 164 Cr.P.C dated 26.02.2018 and her deposition dated 13.02.2019 given a detailed account of what transpired 7 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim with her before during the two incidents of alleged rape and thereafter. According to her deposition she knew the appellant whose wife used to be her teacher in her school. Sometimes in the year 2013 she had met the appellant at a funeral in the village where he had asked her about her future and promised to help her secure a government job. The victim was aware that the appellant had good political contacts and was an influential person. She was aware that he had helped other people of their village to secure government jobs. At the funeral the appellant told her that he would take her to Gangtok to get her a government job. He took her mobile number and told her that he would contact her in a few days regarding the job. The victim deposed that after two three months on 17.08.2013 the appellant called her over the phone and told her that he would take her to Gangtok for the job. Thereafter the victim along with her brother who also had to go to Ramthang North Sikkim went with the appellant in his vehiclewas the learned Judicial Magistrate who recorded the statement of the victim under section 164 Cr.P.C. on 26.02.2018. Bijay Subba was the Officer in Charge of the Police Station who registered the FIR and Shekhar Basnett was the Investigating Officer of the case. Dr. Samrat Singh Bhandariwas the Associate Professor in Psychiatry at the Central Referral Hospital Manipal who examined the victim in August 2017 and January 2018 just before she lodged the FIRwas the Gynaecologist at the STNM Hospital who examined the victim on 11.01.2018 a day after she lodged the FIR. 13. Amongst the prosecution witnesses who spoke about the settlement talks PW 4 PW 7 and PW 8 were not related to the victim but lived in the same village as that of the victim and the appellant. PW 5 was the victim’s niece and classmate. PW 9 14 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim was the victim’s uncle. PW 10 was the victim’s elder brother. PW 15 was the victim’s distant relative and PW 16 the victim’s cousin. PW 12 was the appellant’s cousin. Their evidence reflects that the appellant and his wife were also involved in those settlement talks. The evidence suggests that at least two such meetings took place in the victim’s house. It is also apparent that two documents were prepared during these meetings. PW 12 the appellant’s cousin was the scribe of “Lena Dena Patra” Exhibit 2) and Exhibit 10). PW 4 who accompanied the appellant’s wife to the meeting deposed about their preparations. Some amount of money seems to have been offered during the settlement talks and a promise to pay more seem to have been made. PW 5 the victim’s niece PW 8 PW 9 the victim’s uncle and PW 10 the victim’s elder brother all spoke about it. PW 10 the victim’s elder brother admitted having received an amount of Rs.1 00 000 from the appellant’s wife. Some of the witnesses also deposed about the demand of the victim’s family members for the appellant to marry the victim. Besides the victim PW 8 PW 9 and PW 10 deposed about the appellant himself offering to marry the victim. PW 16 the victim’s cousin seems to have prepared a video on his mobile phone recording the execution of an agreement during one of the meetings. This video was transferred into a compact disk at Digital Color Lab in the presence of PW 2 and PW 3 and handed over to the Investigating Officer. The involvement of the 15 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim appellant’s wife during these settlement talks have been deposed by PW 4 PW 5 PW 8 PW 9 PW 10 PW 12 PW 15 and PW 16. The fact that the appellant himself was also involved in at least one of the meetings has been deposed by PW 8 PW 9 PW 10 and PW 16. 14. Although the victim and her niece deposed that the victim had disclosed about the two incidents of rape to the victim’s family members after her treatment at the Central Referral Hospital in the year 2017 none of them deposed that she had in fact disclosed to them about the rape on two occasions in the year 2013. PW 9 the victim’s uncle deposed about the appellant having admitted about the physical relationship he had with the victim and promising to marry her only. Even the victim’s brother did not depose that the victim had disclosed about the two incidents of rape. In fact he admitted that even in his statement to the police he had not stated that the appellant had raped his sister. PW 15 the victim’s distant relative admitted during cross examination that the victim used to admire the appellant since the time she was studying in Class XI. According to him the victim used to say that she wanted to marry the appellant. He also admitted that initially the family of the victim and the appellant shared a cordial relation. However after the appellant physically assaulted the brother of the victim their relationship strained. The victim’s 16 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim cousin deposed that the victim had confided to PW 5 her relative about the sexual relationship between the victim and the appellant following which the victim had to abort the child. According to PW 4 the victim’s brother told him that the victim was suffering from depression due to the sexual relationship between the appellant and the victim. PW 8 also deposed that he learnt about the physical relationship between them from the family members. According to PW 12 she had heard about the love affair between the two. She also admitted during cross examination that she had gone to the appellant’s house in the year 2017 when he had met with an accident and found the victim along with PW 5 and another girl from their village there. The victim and PW 5 had gone to see the appellant. PW 7 deposed that he had learnt about the affair between the appellant and the victim during the meeting. He also admitted that he had heard few years ago about the altercation between the victim’s brother and the appellant. 15. PW 5 admitted during her cross examination that she and the victim had studied together in Class X in the year 2010. According to her the victim had to drop her Class X examination due to her serious skin infection. She also admitted that the father of the victim was suffering from hypertension and the victim was bearing all the expenses of her parents for the past four five years. PW 8 and PW 9 also 17 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim corroborated these facts. The victim’s brother admitted that both their parents remained sick due to old age and the school expenses of their younger sister was borne by the victim as well. He admitted that his brother in law had expired two three years ago. He admitted that the victim had nerve problems for which she had undergone operation. He also admitted that during her school days the victim had skin allergy due to which she had to drop one year from school. PW 5 admitted that the brother in law of the victim had died three four years ago. She also admitted that the victim had become sad due to his death. 16. Dr. Mani Gurung a Gynaecologist at the STNM Hospital examined the victim on 11.01.2018. This was five years after the alleged two incidents of rape. According to Dr. Mani Gurung the victim gave a history of two assaults by the appellant. She gave history of pregnancy and abortion. On local external genital examination he noticed old healed hymenal tear suggesting of blunt force injury of the hymen in the past. However during his cross examination he admitted that injury to the vagina could have been caused due to the impact of some material objects examined the victim on 10.08.2017 for the first time at Central Referral 18 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim Hospital Manipal Tadong. The victim was brought by her family members with the complaint of sleep disturbance reduced interaction with family members irrelevant talks at times and crying spells. She was also making some gestures indicating hallucinatory behaviour. All the symptoms were since the past four to five days. On mental status examination of the patient he found that there was decreased psychomotor activity. There was decrease in rate volume and productivity of speech. Her affect was blunt with decrease intensity and restricted range. They were not able to elicit any disturbance in thought and perception at that time. The victim was provisionally diagnosed with acute and transient psychotic disorder schizophrenia like with associated stress. The victim was put on antipsychotic olanzapine. The victim was again brought for review on 08.01.2018. At that time she had improved and had stopped taking her medicine. On mental status examination there were no significant findings except ideas of reference. During his cross examination Dr. Samrat Singh Bhandariaccepted that the symptoms he had noticed on the victim was multifactorial and could be a result of bereavement in the family skin allergy family responsibility etc. The FIR was lodged on 10.01.2018 just two days after the victim was reviewed at the Central Referral Hospital. Exhibit 1 was the medical paper prepared by Dr. Samrat Singh Bhandari at the Central Referral Hospital on 08.01.2018 and exhibited by him. Although 19 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim not deposed to by him it is important to note as per Exhibit 1 he had advised the victim to have tablet olanzapine 2.5 mg for two weeks and to follow up after two weeks. 18. learned Judge may have been correct concluding that the appellant having committed rape upon the victim could not be ruled out. The victim’s vivid description of the two incidents does lead one to understand that it may have been so. However while it is important to be conscious about the trauma of the victim a victim of alleged sexual assault it is also important to be conscious about the well settled principle of criminal jurisprudence that more serious the offence the stricter the degree of proof. What happened on 17.08.2013 in the confines of the appellant’s room at Development Area and thereafter in his house would be known only to the victim and the appellant. The victim did not report the matter to the police immediately thereafter although she was fairly educated and a woman who wanted to stand on her own feet. The victim has given a detailed account of what happened five years ago in great detail about the two alleged incidents. However her deposition is conspicuously silent about the period thereafter till the year 2017 when she went into depression. There is a serious discrepancy in the FIR and the statement recorded under section 164 Cr.P.C on the one side and the deposition on the other. While she had alleged that in between the two rapes 20 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim she had aborted the child in the statement recorded by the police and the magistrate in her deposition she alleged that she aborted her pregnancy after the second rape. The FIRwas lodged on 10.01.2018 after several deliberations between the victim’s family and the appellant’s well wishers. Although no definite date of the meetings has been given by the prosecution witnesses from the evidence of the victim and her brother it seems these meetings were held after she was discharged from Central Referral Hospital in September 2017 and just before she lodged the FIR on 10.01.2018. The FIR was lodged by the victim too close to the time of her depression when admittedly she had been suffering from transient psychotic disorder and schizophrenia and hallucinating and making irrelevant talks. Although the victim deposed as if she was aware of the meetings and what transpired there PW 4 on being questioned by the learned Judge deposed that she was in fact present during the meeting but was sick and unable to understand what was going on. PW 5 the victim’s niece and classmate also corroborated this fact. PW 10 the victim’s elder brother deposed that the victim was in his house a little above the main house where the meeting was held. According to PW 9 the victim’s uncle who had visited the victim at Central Referral Hospital and thereafter in her house the victim was very weak and frail and not in a normal state. He deposed that during the meeting the victim was bedridden in the next room. 21 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim PW 16 also deposed that the victim was not in a proper state of 19. In the circumstances this court is of the considered view that although the evidence led by the prosecution leads to grave suspicion that the appellant had in fact raped the victim it would not be judiciously prudent to convict the appellant on suspicion alone. None of what the victim deposed have been corroborated even by her family members. The victim s version of rape is not corroborated so is her version of pregnancy and abortion. There is evidence to suggest that the victim had been infatuated by the appellant and had expressed her desire to marry him. Some of the prosecution witnesses have deposed about their love affair. There is evidence to suggest that the victim had herself visited the appellant when he had an accident. The possibility of a relationship gone sour cannot be ruled out. Several of the prosecution witnesses had deposed hearing about their “physical relationship” and “sexual relationship” both of which would not amount to rape. In such circumstances this court is also of the considered view that the appellant must be given the benefit of doubt. 20. The judgment of conviction dated 30.07.2019 and the order on sentence dated 31.07.2019 are set aside. He shall be released forthwith if not required in any other case. Fine if any 22 Crl. A. No. 119 Makraj Limboo vs. State of Sikkim deposited by him in terms of the impugned order on sentence shall be refunded to him. 21. The appeal is allowed. 22. Crl. A. No. 119 stands disposed of as also the pending Interlocutory Application. Copy of this judgment be sent to the learned trial court for information and records be returned forthwith. Judge Approved for reporting: Yes No : Yes No Internet 

Summary: A five-year delay in filing the FIR and discrepancies noted in witness testimonies gave the benefit of doubt to a man charged with rape. This decision was taken by the Sikkim High Court in the case of Makraj Limboo vs. State of Sikkim [Cr.A.No. 17 of 2019] led by the single bench of Hon’ble Justice Bhaskar Raj Pradhan. In the above cited case, Victim had lodged a FIR in 2018 alleging that she was being raped twice by the appellant in 2013, in result of which she got pregnant and had to abort her child. She further alleged that appellant had made false promises of marrying her post- abortion but brutally raped her again after the miscarriage/abortion. As a result, Fast-track court of Sikkim had convicted the appellant and sentenced him for Rigorous imprisonment of 7 years and fine U/s 376(1) of Indian Penal Code. But senior counsel of the appellant argued that victim filed the complaint because appellant didn’t marry her and not because she was raped. Delay of 5 years in filing the FIR couldn’t be explained properly by the victim. The Court was also apprised that the victim was diagnosed with acute and transient psychotic disorder, schizophrenia like with associated stress, following the termination of the pregnancy. When the verdict of the trial court was being challenged, High Court stated that there are chances that the evidence of the rape must have lost in the span of 5 years. High court stated that “Rape is a violent offence. Penetration is a sine qua non. Due to the inordinate delay, medical evidence like injuries would have healed and material evidence would be lost”. While giving the judgment, HC cited the reasons that although the evidence lead to grave suspicion that appellant must have raped the victim but it wouldn’t be judicially prudent to convict the appellant on suspicion alone. And in fact, none of what the victim had said was corroborated even by her family members. HC court stated that there was enough evidence to give rise to a grave suspicion that the man had raped the victim, but it was not enough to prudentially convict him, as the victim’s statement was not sufficiently corroborated. HC said “The victim’s version of rape is not corroborated, so is her version of pregnancy and abortion and in some cases, the sole testimony of a rape victim can be relied upon, if it is safe, reliable and worthy of acceptance to convict the accused”. However, it was emphasized that the burden would still remain to prove the case beyond reasonable doubt. HC later added that “The possibility of a relationship gone sour cannot be ruled out”.