The testimony of the victim recorded with the aid of her mother being an interested witness cannot be given any credence: Gauhati High Court

Page No.# 1 9 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A. 5 2019 ABDUL KARIM @ GATU S O LATE SUMUDDIN SHEIKH VILL. ANANDA NAGAR P.O. AND P.S. BILASIPARA DIST. DHUBRI ASSAM PIN 783348 THE STATE OF ASSAM AND ANR REPRESENTED BY PP ASSAM S O LATE BAIDY NATH CHOUDHURY R O VILL. BILASIPARA WARD NO. 3 P.O. AND P.S. BILASIPARA DIST. DHUBRI ASSAM PIN 78334 Advocate for the Petitioner : MR H R A CHOUDHURY Advocate for the Respondent : PP ASSAM HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI Date : 07 04 2021 M.A. Ali J. Heard Mr. H.R.A. Choudhury learned Sr. Counsel assisted by Mr. Azad Ahmed appearing for the appellant and the learned Additional P.P. Mr. M. Phukan for the respondent State Page No.# 2 9 2. This appeal is directed against the judgment and order dated 09.10.2018 rendered by the learned Additional Sessions Judge Bilasipara in Sessions Case No. 46 2016 whereby the appellant was convicted under Section 376IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 25000 with default stipulation. 3. The prosecution case as unfolded at the trial may briefly be stated thus The victim in the instant case is a deaf and dumb girl of 22 years of age and she is the daughter of the informant. On 16.07.2013 at about 10.30 AM the accused took the daughter of the informant to an isolated place on the back side of Moinamati building and committed rape on her. The incident was witnessed by Hemen Singhaand Liton Dascame later and had taken the victim home. During cross Page No.# 3 9 examination it was elicited that the place of occurrence was about 200 cubit away from the house of the victim. He also stated that at the time of occurrence he was present in his house. He also stated in his cross examination that initially he went to the place of occurrence and his wifefollowed him. It was also elicited in his cross examination that there was a tea stall at a distance of about 10 20 cubits from the temple and the victim on the day of occurrence came to the said tea stall for taking tea. When she was coming back from the tea stall the occurrence took place. He however pleaded ignorance as to who had taken the victim to the place of occurrence from the tea stall. 7. The PW 3 mother of the victim stated that at the time of occurrence she was at her home and having heard hue and cry she rushed to the place of occurrence and had found the victim in naked condition. She also stated to have found the accused at the place of occurrence in naked position According to her as soon as she arrived the place of occurrence the accused put on his ‘gamocha’ and had fled the scene. She brought the victim home and police was informed. During cross examination she stated that she had received the information about the incidence after half an hour of the occurrence. She also stated that having arrived at the place of occurrence she had found many people assembled there. She also stated during cross examination that at the time of the occurrence her husband was at the market and he came home at about 11 AM. She also stated that her husband found the victim at home after she was brought back home by her. 8. The PW 4 Padum Singha deposed that when she was going to graze cattle in the field one cowboy by name Liton told her pointing to the incident that “see aunty what the old man is doing with the poor deaf and dumb girl”. She also stated that the accused committed rape on her. She further stated that having seen them the appellant had fled the scene. She also stated to have seen the victim in naked condition. During cross examination she stated that she had not seen the exact incident of rape but had seen the accused running away from the place of occurrence 9. Liton Das has been examined as PW 6. He deposed that when he was in his shop he had noticed the accused running away from the side of the Moinamati Sangha. He also stated to have seen the victim at the place i.e. Moinamati Sangha. This witness again stated that he heard that a lady had noticed the accused with the victim and thereafter the accused had left the place. During cross examination he stated that he did not go to the place of occurrence or inside the Moinamati Sangha and as such he did not see exactly what had happened. He also admitted that he did not go near the victim nor did he meet the parents of the victim. According to him the wife of one Krishna had seen the victim with the accused and he had only seen the accused from the back side when he was running Page No.# 4 9 away. Wife of Krishna has not been examined either by the police or by the court. 10. The PW 7 stated to have heard that some incident had taken place with the victim. This witness was however declared hostile by the prosecution. From the cross examination of this witness including the previous statement proved through the Investigating officer we find that this witness in fact was not an eye witness to the occurrence. The PW 8 pleaded ignorance about the incident. The PW 5 was one of the Investigating Officer through whom the accused proved certain previous statement of the witnesses. According to him the PW 3 did not state before him that she had found the victim in naked condition nor had she stated to have seen the accused running from the place of the occurrence. The PW 2 also did not state before police that hearing hue and cry he went to the place of occurrence and had seen the victim as well as the accused in naked condition. The PW 4 also did not state before him that she had seen the victim in naked condition. Rather she had stated before police that she tried to understand from the victim as to what had happened but she could not follow her. The PW 9 was also another Investigating Officer. The testimony of the PW 9 was more or less formal as he only narrated the various steps taken by him during investigation. 11. The PW 10 is Dr. Muskura Ahmed who examined the victim. The doctor in his evidence stated that during examination he did not find any sign of rape. According to the doctor no spermatozoa was detected in vaginal swab of the victim. PW 10 however deposed that hymen was found torn. 12. Appreciating the evidence adduced by the prosecution learned trial court convicted the appellant under Section 376(2)(1) IPC and awarded sentence as indicated above. 13. Assailing the impugned judgment learned counsel for the appellant Mr. Choudhury contends that the prime witnesses of the prosecution were the PW 1 PW 2 PW 4 & PW 6 and all of them stood contradicted on material facts and as such testimony of all these four witnesses was totally unreliable Though they projected themselves to be eye witnesses in fact none of them were eye witness of the occurrence and as such no reliance could have been placed on the testimony of these four witnesses submits Mr. Choudhury. Learned counsel for the appellant further submits that the evidence of the victim was also not reliable inasmuch as her statement was recorded with the aid of her mother who was an interested witness. Mr. Choudhury has placed reliance on a decision of the Apex Court in State of Rajasthan Vs. Darshan reported in 2012(4) Supreme 72 to argue that the testimony of the victim in the instant case recorded with the aid of her mother being an interested witness cannot be given any 14. Par contra learned Additional P.P. Mr. Phukan contends that in a case of sexual assault the testimony of the victim is sufficient to record conviction without any corroboration inasmuch as the victim of the sexual offence cannot be disbelieved unless her testimony is found to have suffered from Page No.# 5 9 15. We have considered the submission made by the learned counsels and also meticulously scrutinized the evidence and materials brought on record. 16. On our assessment of the evidence we find that the PW 2 & PW 3 who are parents of the victim stated in their testimony that they went to the place of occurrence having heard hue and cry and had seen the victim as well as the accused in naked condition. But none of them had stated in their previous statement recorded under Section 161 CrPC that they had seen the appellant and the victim in naked condition at the place of occurrence. According to PW 2 he was in his home at the time of the occurrence and having heard hue and cry he rushed to the place of occurrence and had found the victim and the accused in naked condition. He further stated that having seen him the accused put on his lungi and had fled the scene. He further stated that his wife came later following him whereas PW 3 the wife of PW 2 deposed that at the time of occurrence the PW 2 was not available in his home rather he was at the market. According to her having heard hue and cry she went to the place of occurrence first in point of time and had seen the victim and the accused both in naked condition. She further stated that having seen her the accused put on his ‘gamocha’ and had fled the scene. Again during cross examination she stated that she got the information about the occurrence after half an hour. Therefore if the evidence of PW 2 & PW 3 are read in juxta position it appears that the testimony of these two witnesses who projected themselves as eye witness to the occurrence stood contradicted against each other on material facts. Though both of them stated in court that upon arrival at the place of occurrence they have found the accused and the victim in naked condition in their previous statement none of them stated to have found the victim and accused in naked condition at the place of occurrence. Thus the PW 2 and PW 3 not only stood contradicted with their previous statement on material facts they also contradicted each other by making mutually destructive statement and thereby the PW 2 and PW 3 have belied each other’s claim of being a witness to the occurrence. In view of the above we are of the considered view that no credibility can be attached to the oral testimony of PW 2 and PW 3 Page No.# 6 9 17. In the FIR lodged by the PW 2 it was clearly mentioned that the occurrence was witnessed by PW 6 Liton Das and PW 8 Hemen Singha. However the PW 8 in his evidence stated that he did not know anything about the occurrence. The PW 4 Padum Singha stated in his evidence in chief that the occurrence was initially witnessed by PW 6 Liton Das who had told him pointing to the incidence that the appellant was doing some immoral act with the victim. She also stated to have seen the appellant committing rape on the victim. However during cross examination she stated that she did not see the occurrence of rape but she had only seen the accused running away from the place of occurrence. The PW 4 though stated in court that she had seen the victim and the accused in naked condition in her previous statement she did not state that she had seen the victim in naked condition rather her statement before police was to the effect that she tried to understand as to what has happened but could not know anything as the victim did not respond to her queries 18. The PW 6 Liton Das stated in his evidence in chief that he had seen the accused running away from the side of Moinamati Sangha. He also stated to have heard that one lady had noticed the victim with the accused who ran away from the place of occurrence. During cross examination this witness also stated that he did not see the exact incident nor did he go to the place of occurrence or inside the Moinamati Sangha. He also admitted that he did not go near to the victim nor did he meet the parents of the victim. According to PW 6 he only heard that one lady had seen the victim with the accused Thus the testimony of the PW 6 also appears to be hearsay. In view of the above facts and circumstances the oral testimony of PW 4 & PW 6 also does not inspire confidence. A dispassionate scrutiny of the oral testimony of the PW 2 PW 3 PW 4 and PW 6 shows that none of them witnessed the occurrence except having seen the accused running away by the PW 4 and PW 6. Once the oral testimonies of PW 2 PW 3 PW 4 & PW 6 are discarded the prosecution is left with only the testimony of the victim. 19. On careful scrutiny of the oral testimony of the victim we find that when at the first instance she was examined in chief with the aid of the independent interpreter she only stated by giving signs and gesture that the accused removed her clothes and touched her abdomen. However learned trial court could not record her statement completely as she was not responding to the interpreter. But when she was examined for the second time with the aid of her mothershe had stated that the accused Page No.# 7 9 committed rape on her and after committing rape he had run away. What we notice is that the victim could not communicate specifically the acts done by the appellant inasmuch as ‘rape’ is a legal or technical term which is defined in Section 375 IPC and the court has to decide whether particular sexual act or assault constitute rape or not. Evidently the victim is deaf and dumb and as such there is no difficulty in understanding that commission of rape as recorded by the learned trial court with the aid of the mother certainly did not fall from the mouth of the victim as she was not able to speak. The evidence was also not given in writing. Therefore the statement attributed to the victim was certainly articulated by the mother from the signs and gesture made by the victim. However the signs made by the victim were not mentioned in the deposition. Section 119 of the Evidence Act provides the procedure for recording evidence of a deaf and dumb witness. Section 119 of the Evidence Act reads as follows: “119. Dumb witnesses.—A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible as by writing or by signs but such writing must be written and the signs made in open Court Evidence so given shall be deemed to be oral evidence.” 20. Section 119 of the Evidence Act requires that when a witness is unable to speak or communicate verbally may give his her evidence in any other manner in which he she can make it intelligible such as in “writing” or by ‘sign’. The proviso further lays down that when a witness is unable to communicate verbally his her statement can be recorded with the assistance of the interpreter or a special educator and when the statement is recorded with the assistance of interpreter or special educator such recording of the statement shall be video graphed. The proviso to Section 119 of the Evidence Act was incorporated by criminal law Act 2013. In the instant case the evidence was recorded in the year 2017. Therefore the court was under obligation to video graph the recording of statement when the victim adduced evidence by signs and the court recorded the statement with the assistance of the interpreterwhether the hymen of the victim was torn or not. Though the doctor in his deposition stated that hymen was found torn we found that such statement was given by the doctor from his memory inasmuch as the medical report was silent in this regard. Therefore the testimony of the doctor that hymen was torn which was not even mention in the medical report also hardly carries any weight. Therefore in our considered view though in the second part of the evidence of the victim recorded by the learned trial court with the aid of the mother who tried to project that a rape was committed is not believable her evidence recorded at the first instance through the independent interpreter to the effect that the appellant removed her cloth and touched her abdomen cannot be doubted reason being that the trial court had also recorded the signs made by the victim from which it can be easily understood that the appellant by removing the upper garment touched the abdomen of the victim. Therefore we find no reason to disbelieve the testimony of the victim to the extent that the accused touched the abdomen of the victim by removing cloth in a public place which certainly amounted to outraging the modesty Thus having considered the evidence and materials in its entirety we are of the considered opinion that the prosecution evidence falls sort of proving the charge of rape under Section 376IPC However on the facts and circumstances more particularly the testimony of the victim clearly establishes a charge of outraging modesty punishable under Section 354 IPC beyond reasonable doubt Accordingly we set aside the conviction of the appellant under Section 376IPC instead we convict him under Section 354 IPC. Page No.# 9 9 22. Having regard to the fact that the victim a deaf and dumb girl was subjected to sexual assault by way of outraging her modesty by the accused taking advantage of her disability we are not inclined to show any leniency in awarding punishment to the accused. Accordingly we are of the considered opinion that the maximum punishment of imprisonment for 5 years would commensurate with the gravity of the offence in the present case. Accordingly we sentence the accused to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 1000 in default to undergo further simple imprisonment for 15 days. The period undergone during investigation and trial shall stand set off 23. The appeal stands partly allowed to the extent indicated above 24. Send back the LCR. JUDGE JUDGE

Summary: The argument credited to the victim was undoubtedly articulated by the mother based on the victim’s signs and gestures. However, the victim’s symptoms were not listed in the interview, and since she is a party of concern, her evidence is not credible. The judgment was passed by The High of Court Gauhati in the case Of Abdul Karim @ Gatu Vs the State of Assam And Anr. [Crl.A./5/2019] by Division Bench consisting of Hon’ble Shri Justice Suman Shyam &amp; Justice Mir Alfaz Ali. The case as unfolded at the trial, may, briefly, stated as the victim in the instant case is a deaf and dumb girl of 22 years of age. the accused took the daughter of the informant to an isolated place on the backside of Moinamati building and committed rape on her. The incident was witnessed, the father of the victim lodged an FIR, on the basis of which, police registered the case under Section 376 IPC and upon completion of the investigation submitted a charge sheet against the appellant under Section 376 IPC. Learned Counsel for the appellant, contends that the prime witnesses of the prosecution contradicted on material facts and as such testimony of all these four witnesses was totally unreliable. Though they projected themselves to be eyewitnesses, in fact, none of them was an eye witness of the occurrence and as such, no reliance could have been placed on the testimony of these four witnesses, submits Mr Choudhury. He further submits that the evidence of the victim was also not reliable, inasmuch as, her statement was recorded with the aid of her mother, who was an interested witness. On the contrary Learned Counsel contends that in a case of sexual assault, the testimony of the victim is sufficient to record conviction without any corroboration, inasmuch as, the victim of the sexual offence cannot be disbelieved unless her testimony is found to have suffered from inherent improbabilities. The court relying on the Apex Court in the State of Rajasthan Vs. Darshan argues, “that the testimony of the victim in the instant case recorded with the aid of her mother being an interested witness cannot be given any credence.”