Crl.A./20/2022 of RAFIQUL ALI Vs THE STATE OF MEGHALAYA AND 2 ORS. on 25 October 2024

J U D G M E N T

1. The judgment and order dated 29.06.2022 passed by thelearned Sessions Judge, East Garo Hills District, Williamnagar inSessions Case No. 6 of 2017, whereby by such order, the appellantherein was convicted and sentenced to undergo rigorous imprisonmentfor a period of 7(seven) years along with fine of 1500/- (rupees one₹thousand and five hundred) only, for having committed an offence underSection 376 IPC and further, to undergo simple imprisonment of 1(one)year and fine of ₹ 500/- (rupees five hundred) only, for the offenceunder Section 354 IPC, both sentence to run concurrently, is the subjectof appeal herein preferred under Section 374 Cr.P.C.

2. The genesis of the case is that on 23.02.2017, an FIR waslodged before the Officer-in-Charge, Rongjeng Police Station, East GaroHills, to inform about an incident which occurred on the same day atabout 5.00 pm or so wherein one unknown person was alleged to haveentered the shop of the sister of the complainant while she was workingin the kitchen and she was forcible held by her hair and neck andsexually assaulted with even her underwear torn by such person.

3. Immediately, the FIR was registered as Williamnagar WomenP.S. Case No. 03(02) 2017 under Section 376 IPC and an InvestigatingOfficer (IO) was assigned to take up the investigation in the case. The IOthen arrested the accused person/appellant herein and he was remandedto custody. Upon initiation of the investigation, the IO visited the placeof occurrence and also met the complainant as well as theaccused/appellant who was in the custody of the police of RongmilOGC, since at that point of time, he was assaulted by a number ofpersons who came to know of the said incident.

4. The IO after completion of the investigation had thensubmitted the final report under Section 173 Cr.P.C. by stating the stepstaken during the course of investigation and also by filing thechargesheet with a prima facie finding that a well-established case hasbeen made out against the accused/appellant who is said to havecommitted the offence under Section 376 and 354 IPC.

5. The learned Sessions Judge, taking cognizance of the saidoffence had framed the charges on 30.11.2017, under two heads, that is,under Sections 376 and 354 IPC and the accused/appellant being madeto stand trial, the prosecution witnesses were summoned by the court togive their evidence. In all, 11 prosecution witnesses were examined andsome material exhibits, including the medical report of the victim werealso produced.

6. The learned Sessions Judge on conclusion of the recording ofevidence of the prosecution’s witnesses then recorded the statement ofthe accused/appellant under Section 313 Cr.P.C. and on theaccused/appellant not willing to call any witnesses on his part, theargument of the parties was heard. On consideration of all the relevantevidence, the impugned judgment and order was therefore passed.

7. Heard Mr. A.H. Hazarika, learned counsel for the appellantwho has submitted that the evidence on record would show that there isa marked discrepancy in the statement of the prosecutrix vis-à-vis thestatement of the other witnesses as to the detailing of what actuallyhappened on the day of the alleged incident.

8. The learned counsel has firstly referred to the statement of theprosecutrix made before the police under Section 161 Cr.P.C wherein she has narrated the fact that the appellant/accused whose name is notknown to her at that point of time, came into the tea stall she wastending to and he caught hold of her hair and her neck and penetrated hispenis into her by tearing her underwear. When she was released, she rantowards her home and shouted for help and on hearing her cry, herhusband and another person came running to the tea stall and caughthold of the accused/appellant. In her statement before the Magistratemade under Section 164 Cr.P.C she had stated that her husband had goneto fend the cattle when the accused/appellant had sexually assaulted herand later on her husband and brother-in-law arrived at the scene. In herdeposition in court as PW5 she had stated that her husband who hadcome back after bath saw the accused committing rape on her and heldthe accused. The learned counsel has submitted that this discrepancy hasnot been explained by the prosecution as far as the role of the husband asan eye-witness of the incident is concerned.

9. The husband of the prosecutrix who was examined as PW6has also stated that he saw the accused raping his wife and when he triedto escape, he managed to detain him. In his cross-examination he hasalso maintained that he saw the accused when he was raping his wife.Therefore, as has been submitted, this discrepancy in the statement ofthe prosecutrix and the PW6 would only show that the prosecutrix hasnot been truthful in her narration of the incident which had allegedlytaken place on 23.02.2017, submits the learned counsel.

10. The learned counsel has also referred to the evidence of PW1,the doctor who had examined the prosecutrix soon after the said incidentwherein in his deposition he has stated that the prosecutrix had narratedthe incident to him and on physical examination, he found that there is penetration by penis on her genitalia but there is no emission of semen.There is also no finding of violence on other parts of the body, no bitemark or scratches were also found on the body of the accused as well asno foreign pubic hair was found in his garment. However, the doctor hasconfirmed that the accused/appellant had consumed alcohol but cancontrol himself at the relevant point of time. In view of such evidence,the learned counsel has submitted that no case of sexual assault can bemade out, though an offence under Section 354 IPC may be attractedagainst the accused/appellant.

11. The learned counsel has then submitted that the evidence ofthe prosecutrix and the so-called relevant witnesses not beingconvincing, the accused/appellant should have been given the benefit ofdoubt considering the fact that the case of the prosecution has not beenproved beyond reasonable doubt.

12. In support of his contention, the learned counsel has cited thefollowing authorities:

i.Radhey Shyam v. State of Rajasthan, (2014) 5 SCC 389,para 27 and 28;para 27 and 28;

ii.Shivasharanappa & Ors. v. State of Karnataka, (2013) 5SCC 705, para 19, 20, 21 and 22;SCC 705, para 19, 20, 21 and 22;

iii.Mohan Baitha & Ors. v. State of Bihar & Anr., (2001) 4SCC 350, para 4; andSCC 350, para 4; and

iv.Suresh N. Bhusare & Ors. v. State of Maharashtra,(1999) 1 SCC 220, para 6, 7, 8, 9 and 10.(1999) 1 SCC 220, para 6, 7, 8, 9 and 10.

13. Refuting the contention and submission of the learned counselfor the appellant, Mr. K. Khan learned P.P has submitted that this Courton scrutiny of the impugned judgment and order dated 29.06.2022whereby the appellant was sentenced to undergo 7(seven) years rigorousimprisonment for the offence punishable under Section 376 IPC and also1(one) year imprisonment for the offence punishable under Section 354IPC along with fine, would find that there is no infirmity or illegality inthe well-reasoned order passed by the learned Sessions Judge.

14. The learned P.P while narrating the incident as was detailed bythe prosecutrix has submitted that the prosecutrix in her deposition hadaccurately given the factual details as it happened to say that theappellant while she was busy in the kitchen at the tea stall of her eldersister, which tea stall was situated by the road side but isolated fromother tea stalls, the appellant who entered the said tea stall suddenlycaught her by her hair and also held her tightly by her neck andthereafter raped her after forcefully taking off her garments, includingher undergarment. The statement given by the prosecutrix in this regardis found to be consistent when one looks at what she has stated beforethe police, before the Magistrate as well as in the court when she wascalled to depose as PW5. Therefore, considering the consistency of herstatement, there can be no doubt on the truthfulness of the same whichhas convinced the learned trial court to believe her.

15. It is the further submission of the learned P.P that theprosecutrix who is an adult and is aware of what had happened to herincluding the repercussions of her action, when the FIR was lodgedagainst the accused/appellant who is a total stranger to her, there is no reason why she would falsely implicate the appellant had the incidentnot taken place.

16. In the context of reliance on the evidence of a sole witness,more so when the case involves sexual assault or rape, the learned P.Phas placed before this Court the case of Vijay alias Chinee v. State ofMadhya Pradesh, (2010) 8 SCC 191, para 9 and also the case of RanjitHazarika v. State of Assam, (1998) 8 SCC 635, para 6 as well as the caseof Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC217, para 9 and 10 and has submitted that the evidence of the prosecutrixis strong enough to prove that the appellant had indeed sexuallyassaulted her and as such, the conviction by the learned trial court cannotbe faulted.

17. The learned P.P has however submitted that there may beminor discrepancies in the evidence of the prosecutrix but the samewould not dilute the fact that the offence has indeed been committed bythe appellant as has been amply proven by the evidence on recordincluding the medical report which has confirmed the fact that theprosecutrix was sexually assaulted. In this regard, the learned P.P hasonce again referred to the case of Vijay (supra) at para 22, 23 and 24 ofthe same wherein the Hon’ble Supreme Court has observed that thecourt while appreciating the evidence of a witness, minor discrepancieson trivial matters which do not affect the core of the prosecution casemay not prompt the court to reject the evidence in its entirety. The caseState of Punjab v. Gurmit Singh & Ors., (1996) 2 SCC 384, para 21, wasalso cited in this regard.

18. As to the contention of the learned counsel for the appellantthat because there was no injury on the genital parts of the prosecutrixthe same would not mean that there was no sexual assault perpetratedupon her since the doctor who had examined her has also come to afinding that there was vaginal discharge which suggests recent sexualintercourse, as such, the assertion of the appellant in this regard cannotbe accepted. Even so, the Hon’ble Supreme Court in the case of B.C.Deva alias Dyava v. State of Karnataka, (2007) 12 SCC 122, has, at para18 observed that even if no marks of injuries were found either on theperson of the accused or the person of the prosecutrix or that the medicalexamination of the prosecutrix does not disclose any evidence of sexualintercourse, however if the oral testimony of the prosecutrix is found tobe cogent, reliable, convincing and trustworthy, the same has to beaccepted, further submits the learned P.P.

19. The prosecution case having been proven beyond reasonabledoubt, the punishment imposed is found reasonable and the appellantcannot make out a case for appeal, this appeal is therefore liable to bedismissed, submits the learned P.P.

20. To the extent of repetition, the factual aspect of the case of theprosecution revolves around the event which occurred on 23.02.2017when the appellant is said to have entered the tea stall and found theprosecutrix alone which perhaps prompted him to take advantage of thesituation resulting in his forcible sexual assault till he was accosted bythe husband of the prosecutrix who may have been called by her or mayhave seen the act perpetrated by the appellant.

21. The narration of how the appellant sexually assaulted theprosecutrix by catching hold of her neck and tearing off her clothesincluding her underwear and the very act of rape has been consistenteven in her statement made under Section 161 as well as under Section164 Cr.P.C and in her deposition in court as PW5. It is also noticed thatthe accused/appellant has not been able to contradict the statement madeby the prosecutrix.

22. When the prosecutrix in her examination-in-chief stated thatthe accused/appellant tore off her ‘panty’ and ‘petticoat’ and raped her,he could not demolish such statement of fact in the cross-examination.What emerged would be the assumption that the allegation against theaccused/appellant had indeed committed rape is true. Even logicallyspeaking, the fact that the prosecutrix had mentioned about herunderwear being torn by the appellant and the same being seized by thepolice speak volumes about her bonafide as it cannot be expected thatany woman would be callous enough to speak publicly about such anincident only to frame the appellant who is a total stranger to her.

23. The Doctor who was examined as PW1 in his deposition hasalso exhibited the medical report based on his examination of theprosecutrix, which records would show that she was medically examinedat about 1:30 am on 24.02.2017 roughly 9 hours after the incident. Thatthe Doctor has come to the conclusion that there was vaginal penetrationand such act of sexual intercourse was as recent as 8 hours ago, thetiming matching with what has been stated by the prosecutrix, therecannot be any other conclusion but only to point a finger to thecomplicity of the accused/appellant in such respect. Again, such factsnot being able to be refuted by the accused/appellant in the cross- examination of the said Doctor, the evidence of the prosecutrix wasindeed corroborated by the evidence of the Doctor.

24. As to the veracity of the evidence of the husband of theprosecutrix, who in his deposition as PW6 has maintained that he sawthe accused/appellant raping his wife and that he caught hold of theappellant who fought back, thereafter, he and his brother-in-law and twoothers took the appellant to the parking till the time the police came andarrested the accused/appellant, the same though slightly distorted, sinceat one point of time, this witness said he saw the appellant raping hiswife, yet he also said when he heard his wife calling for help, when atthat time he went to the tea shop and saw the accused/appellant puttingon his shorts, there could be some doubt as to whether he was an eye-witness to the incident or not. Be that as it may, this Court is persuadedto believe that the fact that the appellant had raped the prosecutrix hasbeen well established.

25. At this juncture, this Court need not look to other factors to tryand find supporting evidence to back the prosecution’s case, suffice it tosay that only on the question of facts, the prosecution has been able toprove that the prosecutrix had been raped by the appellant.

26. As to the authorities cited by the learned counsel for theappellant, the case of Radhey Shyam (supra) at para 27 and 28 speaksabout the conduct of the accused therein which did not match with theaccount of the relevant witnesses as far as the commission of the crimeis concerned and on this premise the accused was let off. However, inthis instant case, the accused/appellant has not been able to disprove the testimony of the prosecutrix as far as his conduct is concerned and assuch, evidence confirming his guilt has to be accepted.

27. In the case of Shivasharanappa also relied upon by theappellant at para 19, 20, 21 and 22 of the same, the Hon’ble SupremeCourt has discussed the behavioural pattern of the witnesses inconnection with their account of how a crime was committed, it is theopinion of the Court that having regard to the natural reaction of manwhich is unpredictable, evidence in this regard has to be appreciated inthe context of given facts and circumstances of the case and if thebehaviour is absolutely unnatural, the testimony of such witness may notdeserve credence and acceptance. In the context of the case before thisCourt, no unnatural behavioural pattern as far as the prosecutrix isconcerned has been observed. Her testimony is therefore foundacceptable.

28. In the same manner the appellant has also cited the case ofSuresh N. Bhusare (supra) to say that in that case, the Court hasobserved the conduct of the prosecutrix therein who is said to be avictim of rape but her testimony is found inconsistent as far as heraccount of how the incident occurred and the role of the accused thereinwho are said to be the perpetrators of such an act. Her testimony wasaccordingly disregarded as infirmed. However, it is reiterated that this isnot the case as far as the testimony of the prosecutrix herein isconcerned.

29. On the other hand, the prosecution has relied in the case ofVijay (supra) wherein at para 9 of the same the Hon’ble Supreme Courthas cited the case of State of Maharashtra v. Chandraprakash Kewalchand Jain, para 16 to emphasize the fact that the testimony of aprosecutrix has to be given special consideration and could not be madeto be at par with that of an accomplice. If the totality of thecircumstances appearing on the record of the case disclose that theprosecutrix does not have a strong motive to falsely involve the personcharged, the court should ordinarily have no hesitation in accepting herevidence.

30. As has been discussed above, this Court would find it safe torely on the testimony of the prosecutrix. This aspect of the matter isfurther fortified by the observation of the Hon’ble Supreme Court in thecase of Ranjit Hazarika (supra) wherein at para 6 of the same is foundthe following:

“6. The evidence of the prosecutrix in this case inspiresconfidence. Nothing has been suggested by the defence as towhy she should not be believed or why she would falselyimplicate the appellant. We are unable to agree with thelearned counsel for the appellant that in the absence ofcorroboration of the statement of the prosecutrix by themedical opinion, the conviction of the appellant is bad. Theprosecutrix of a sex offence is a victim of a crime and there isno requirement of law which requires that her testimonycannot be accepted unless corroborated. In State of Punjab v.Gurmit Singh, to which one of us (Anand, J.) was a party,while dealing with this aspect observed: (SCC pp. 395-96,para 8)

"The courts must, while evaluating evidence, remainalive to the fact that in a case of rape, no self-respectingwoman would come forward in a court just to make ahumiliating statement against her honour such as isinvolved in the commission of rape on her. In casesinvolving sexual molestation, supposed considerationswhich have no material effect on the veracity of theprosecution case or even discrepancies in the statement ofthe prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out anotherwise reliable prosecution case. The inherentbashfulness of the females and the tendency to concealoutrage of sexual aggression are factors which the courtsshould not overlook. The testimony of the victim in suchcases is vital and unless there are compelling reasonswhich necessitate looking for corroboration of herstatement, the courts should find no difficulty to act onthe testimony of a victim of sexual assault alone toconvict an accused where her testimony inspiresconfidence and is found to be reliable. Seekingcorroboration of her statement before relying upon thesame, as a rule, in such cases amounts to adding insult toinjury. Why should the evidence of a girl or a womanwho complains of rape or sexual molestation be viewedwith doubt, disbelief or suspicion? The court whileappreciating the evidence of a prosecutrix may look forsome assurance of her statement to satisfy its judicialconscience, since she is a witness who is interested in theoutcome of the charge levelled by her, but there is norequirement of law to insist upon corroboration of herstatement to base conviction of an accused. The evidenceof a victim of sexual assault stands almost on a par withthe evidence of an injured witness and to an extent iseven more reliable. Just as a witness who has sustainedsome injury in the occurrence, which is not found to beself-inflicted, is considered to be a good witness in thesense that he is least likely to shield the real culprit, theevidence of a victim of a sexual offence is entitled togreat weight, absence of corroboration notwithstanding.Corroborative evidence is not an imperative componentof judicial credence in every case of rape. Corroborationas a condition for judicial reliance on the testimony of theprosecutrix is not a requirement of law but a guidance ofprudence under given circumstances. It must not beoverlooked that a woman or a girl subjected to sexualassault is not an accomplice to the crime but is a victimof another person's lust and it is improper and undesirableto test her evidence with a certain amount of suspicion,treating her as if she were an accomplice. Inferences haveto be drawn from a given set of facts and circumstanceswith realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introducedthrough a new form of testimonial tyranny making justicea casualty. Courts cannot cling to a fossil formula andinsist upon corroboration even if, taken as a whole, thecase spoken of by the victim of sex crime strikes thejudicial mind as probable."

We are in agreement with the aforesaid view.”

31. In view of the above findings and observations, this Court isconvinced that the accused/appellant has not been able to demolish thecase of the prosecution or the findings of the learned trial court in theimpugned judgment and accordingly, the appeal is found lacking insubstance. The same is hereby dismissed.

32. Appeal disposed of. No costs.

33. Trial court case records to be returned.

Judge