Judgment & Order (Cav)

1. Heard Mr. M.U. Mahmud, learned counsel appearing for the appellant. Also heard Mr. K.K. Das, the learned Addl. Public Prosecutor, Assam representing Respondent No.1 as well as Mr. S. Nawaz, learned counsel appearing for the Respondent No.2.

2. This is an appeal under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order dated 15.06.2023 passed by the learned Special Judge, Bongaigaon in Special (P) Case No.6(BGN) of 2022.

3. On 24.11.2021, the informant Dilbar Sheikh (PW-2) had lodged a written FIR before police that on 23.11.2021 at about 7 P.M., while his daughter PW-1 was washing her feet by the side of the tubewell at his residence, the present appellant and one unknown person forcibly took her to the banks of the river Ghutoni and committed rape upon her. On the basis of the said FIR, police registered the Bongaigaon P.S. Case No.962/2021. The PW-1 i.e. the victim also gave a statement before a Magistrate under Section 164 CrPC. She stated before the Magistrate, inter alia, that the present appellant had assaulted her and also raped her. She also stated before the Magistrate that when she started to shout and raised a holler, the appellant ran away.

4. After investigation, police filed the charge sheet against the present appellant alleging commission of offences under Sections 376(1) and 366 of the Indian Penal Code read with Section 4 of the POCSO Act.

5. During the trial of the case, the prosecution side examined 9(nine) witnesses. The appellant did not examine any witness. Finally, the trial court convicted the appellant under Sections 376(1) and 366 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment of 10(ten) years and to pay fine of ₹25,000/- with default stipulations for each of the offences.

6. I have gone through the evidence and the impugned judgement.

7. PW-1 is the victim of this case. She stated in her evidence that while she was washing her feet at the tubewell situated within her house, the appellant and another person forcibly gagged her mouth from behind and lifted her and took her to the banks of the river. There, the appellant removed her pants and inserted her penis into her vagina. He allegedly assaulted her also as she had refused to love him. The PW-1 further stated that after the appellant had left the place, she started to shout and some people arrived there after hearing her voice and all of them took her to the house of Akkabbar Ali (not examined in this case). She stated that from his house, her father i.e. the PW-2 brought her home.

8. In her cross-examination, the PW-1 has stated that for two years, she did not appear in the final examination of her class because of COVID-19. She also stated that on the day of the incident at about 7 P.M., the appellant called her over phone but she did not receive his phone call. The remaining part of her cross-examination contains some suggestions and she denied all those suggestions.

9. The PW-2 was not present in his house at the time of occurrence. Whatever he learnt about the incident was from his daughter. He stated that after the incident, somebody took her to the house of another villager and from there, he brought her home.

10. In his cross-examination, he has stated that his daughter studied in Class-VIII with one year gap.

11. The 3rd Prosecution witness is Miyar Uddin Sheikh (PW-3). He stated in his evidence that on the day of occurrence, while he was returning home after performing Namaz, he heard hue and cry amongst some young boys on the road. One of the villagers was told him that the appellant had taken away PW-1 and left her on the road. According to this witness, when the villagers found the PW-1 crying on the road, they took to the house of Noor Hussain. PW-3 also went to the house of Noor Hussain and found the girl there. PW-3 noticed that the wearing apparels of the girl were torn. The girl reportedly told this witness that the appellant forcibly took her to the jute fields and committed rape upon her. According to PW-3, the girl reportedly told him that the appellant took the girl to the place of occurrence on a promise of marriage. PW-3 brought the victim girl to the house of the PW-2.

12. In his cross-examination, PW-3 has reiterated that the PW-1 told him that the appellant took her away on a promise of marriage.

13. The 4th prosecution witness is Mohibul Islam (PW-4). He is a hearsay witness. He has stated that after hearing about the incident, he went to the place of occurrence and saw that the wearing apparels of PW-1 were torn. She told this witness that the appellant and another person had brought her there and they committed rape upon her. According to the witness Mohibul, he along with other villagers took the girl to the house of Gofur and later on her parents took her away from there.

14. In his cross-examination, the witness Mohibul has stated that he never stated before police that the present appellant had abducted the PW-1 while she was washing her feet at her residence nor did he state before police that the victim girl had ever told him that the appellant and another unknown person had committed raped upon her.

15. The 5th prosecution witness is Bir Ali (PW-5). He has stated in his evidence that on the day of occurrence, he was sitting in the house of Jaharul and one unnamed boy informed him that the PW-1 was taken to Gofur’s house. PW-5 along with PW-2 and some other persons went to the house of Gofur. PW-5 has stated that the PW-1 had told him that the present appellant and another person forcibly took her to the banks of river Ghutoni and raped her. The girl also told that she tried to detain the appellant but he managed to escape after giving her a good thrashing.

16. The cross-examination portion of the evidence of PW-5 contains repetitions of whatever he has already stated in his examination-in-chief.

17. The 6th prosecution witness is Abdul Kashem Sheikh (PW-6). He has stated that one day that a person called Rafikul had called him over phone and asked him to come to the house of PW-2. When this witness went to the house of PW-2, then only he came to know about the incident. This witness had informed the Officer-in- Charge of Bidyapur Police Out Post over phone.

18. The cross-examination portion of his evidence has nothing relevant to warrant a discussion.

19. The 7th prosecution witness is Momin Ali (PW-7). He has stated in his evidence that one night, he along with some fellow villagers went to the house of Gofur and brought PW-1 home from there. The PW-1 told him that the appellant forcibly took her to the banks of river Ghutoni and committed rape upon her there.

20. The cross-examination portion of the evidence of this witness has nothing relevant.

21. The 8th prosecution witness (PW-8) is the police investigation officer and he spoke about the investigation.

22. The 9th prosecution witness is the doctor (PW-9), who examined the victim girl at the time of investigation. She has stated in her evidence that after three days after the occurrence i.e. on 26.11.2021, she examined the victim girl and she has stated that no opinion could be given whether she was raped or not.

23. The defence plea is total denial and the appellant did not examine any defence witnesses.

24. After going through the prosecution evidence, it is clear that the victim girl knew the present appellant prior to the date of occurrence, because on the day of the occurrence, the appellant called her over phone.

25. The victim has stated in her evidence that after the incident, she was taken to the house of Akkabbar Ali. The PW-3 has stated that the girl was taken to the house of Noor Hussain. On the other hand, the PW-5 has stated that the victim girl was present in the house of Gofur from where the girl was taken away by her father.

26. Be that as it may, except the victim girl, there are no eye witnesses to the occurrence. The medical evidence failed to support the prosecution story.

27. It is true that in a case of rape, there may not be any other witnesses except the victim. It is also true that in a case of rape, the value of medical evidence plays a little role. Even then, I will rely upon a judgment of the Supreme Court that was delivered in Rajoo v. State of M.P., (2008) 15 SCC 133 , it is held as under:

                   ”11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.”

28. In this case, there is evidence that the victim girl PW-1 tried to detain the appellant at the place of occurrence but he managed to escape from her clutches by assaulting her. In her statement under Section 164 of the CrPC, the victim girl simply told that the appellant committed rape upon her. But in her examination-in-chief, she has clearly stated that the appellant had inserted his penis into her vagina. It goes to show that the victim has tried to improve the prosecution case in her evidence. She had also stated that the appellant had fallen in love with her but she did not love him. Police did not seize her wearing apparels at the time of investigation. The investigating officer in this case has stated in his cross-examination that the PW-1 has never stated before him that the appellant had inserted his penis into her vagina.

29. From the aforesaid facts, this Court is of the opinion that there is a substantial doubt about the truthfulness of the prosecution case against the present appellant and the benefit of doubt must go to the appellant. For the aforesaid reasons, the appeal is allowed.

30. The impugned judgment and order dated 15.06.2023 passed by the learned Special Judge, Bongaigaon in Special (P) Case No.6(BGN) of 2022 is set aside. The appellant Robiyal Ali @ Robial Sheikh is acquitted from this case. If he is in custody now, he shall be set at liberty forthwith.

31. The present appeal along with the connected IA(Crl.) stand disposed of accordingly.

Send back the LCR.