Judgment & Order (Cav):

1. Heard Ms. B Sarma, learned Legal Aid counsel for the appellant and Mr. R J Baruah, learned Additional Public Prosecutor, Assam, appearing for the respondents.

2. The present appeal has been instituted assailing the judgment and order dated 19.11.2020, passed by the Court of the learned Assistant Sessions Judge, Tinsukia, Assam, in Sessions Case No. 28(T)/2019, convicting the appellant, herein, under Section 376(2)(l) IPC and sentencing him to undergo Rigorous Imprisonment for a term of 10 (ten) years with imposition of fine of Rs.50,000/- (Rupees Fifty Thousand), in default, to undergo further Rigorous Imprisonment for another 6 (six) months.

3. The prosecution case, in brief, is that the informant, Satrughan Karmakar, lodged an FIR before the Officer-in-Charge, Bordubi Police Station, inter-alia, alleging therein, that the appellant, herein, had committed rape on his daughter, who was a deaf & dumb girl. It was further alleged that as a result of the said rape committed upon his daughter, his daughter had become two months pregnant and the said fact was clearly explained by his daughter in a village meeting.

On receipt of the said FIR, the same was registered as Bordubi P.S. Case No. 144/2019 under Section 376 IPC.

Police on completion of the investigation, submitted a charge-sheet before the Court of the learned Chief Judicial Magistrate, Tinsukia. The case came to be transferred to the Court of the learned Sub-Divisional Judicial Magistrate (S), Tinsukia, who had taken cognizance of the offence under Section 376 IPC. Thereafter, vide order dated 27.03.2019, the learned Sub-Divisional Judicial Magistrate(S), Tinsukia, had committed the matter to the Court of the learned Sessions Judge, Tinsukia. The learned Sessions Judge, Tinsukia, thereafter, transferred the matter to the Court of the learned Assistant Sessions Judge, Tinsukia, for disposal.

The appellant, herein, on being produced from jail, the learned Trial Court proceeded to frame charge against the appellant under Section 376(2)(m) IPC.

The charge, on being read over and explained to the accused, he having pleaded not guilty and claimed to be tried, a trial ensued in the matter.

The prosecution in the trial had examined 11 (eleven) witnesses, including the victim girl.

The appellant was, thereafter, examined under Section 313 Cr.P.C. The appellant had also adduced a defence witness. The trial, thereafter, was concluded.

At the stage of passing of the judgment, the learned Trial Court had altered the charge from that under Section 376(2)(m) IPC to Section 376(2)(l) IPC. The altered charges were, thereafter, read over and explained to the accused, the accused pleaded not guilty to the altered charges and claimed to be tried.

However, after alteration of the charge, both the sides having declined to adduce further evidence or recall any of the witnesses, the evidence came to be closed and the evidence already available on record, was to be considered.

The learned Trial Court, upon conclusion of the trial, appreciating the evidences coming on record, proceeded vide judgment and order dated 19.11.2020, to convict the appellant, herein, under Section 376(2)(l) IPC and sentenced him, as noticed, hereinabove.

4. Ms. Sarma, learned Legal Aid counsel, appearing for the petitioner, at the outset, by referring to the incident alleged against the appellant in the FIR, has submitted that no specific date has been brought on record, with regard to the commission of the offence in the matter by the appellant, herein. She submits that the victim girl was medically examined on 06.09.2018 and then, it was detected, after she was subjected to an ultrasound, that she was carrying a single intrauterine pregnancy, which was calculated at 16 months 0 days (+/-1 week 2 days gestation period). She submits that thereafter, the FIR was lodged and Bordubi P.S. Case No. 144/2019, came to be registered against the appellant.

                   4.1 Ms. Sarma, learned Legal Aid counsel, by referring to the statements of PW1, i.e., the informant, who is the father of the victim girl and PW2, who is the mother of the victim girl, has submitted that the evidence adduced is clearly contradictory to the evidence adduced during the trial by the victim girl, who had deposed as PW6. She submits that the victim girl, not being able to talk being deaf & dumb, the Interpreter, who was engaged in the matter, considering the manner in which, the interpreter had interpreted the signs of the victim girl during the examination of the victim girl under Section 161 Cr.P.C., a pertinent doubt had arisen with regard to the competence of the Interpreter to correctly interpret the signs and actions of the victim girl. She submits that the date of commission of the offence by the appellant, herein, not being established, the apparent contradictions existing in the evidence adduced by PW1 and PW2, it is not established beyond reasonable doubt that the offence was so committed on a date corresponding to the determination of the pregnancy of the victim girl, which at the time of initial examination was found to be 16 weeks (+/-1 week 2 days gestation period).

                   4.2 Ms. Sarma, learned Legal Aid counsel submits that the Medical Officer, who had deposed as PW10, had deposed that no injury was found in the body of the victim girl at the time of her examination, but her hymen was found to be torn and the victim was already pregnant. She further submits that from the evidence adduced by the Investigating Officer as PW11, it was brought on record that the specific date and time of the incident was not mentioned in the FIR or by any of the witnesses, including the victim and the informant. She further highlights that the place of occurrence of the incident was deposed by the Investigating Officer from the sketch map, which was exhibited as Ext.5, to be the house of the informant. However, from the statements of the victim girl, as well as from that of PW1 and PW2, it was evident that the place of incident was not the house of the informant, but a place in a jungle, wherein, the victim girl had gone to collect firewood.

                   4.3 Ms. Sarma, learned Legal Aid counsel, has further submitted that there is no eye witness to the commission of the offence upon the victim girl by the appellant, herein and it is only the victim girl, who was an eye witness to the incident. Accordingly, the learned Trial Court, while placing full reliance on the deposition of the victim girl, had not factored in the fact that the said deposition, had not brought on record the time and place of the commission of the offence by the appellant, herein.

                   4.4 Ms. Sarma, learned Legal Aid counsel, has further submitted that although, it had come on record that the victim girl subsequently had given birth to a child, police had not proceeded to conduct a DNA examination of the child and the appellant, herein, so as to ascertain the paternity of the child.

                   4.5 Accordingly, in the above premises, Ms. Sarma, learned Legal Aid counsel, submits that a doubt having arisen in the matter with regard to the very factum of commission of the offence by the appellant, herein, the said doubt was required to be answered in favour of the appellant and accordingly, he was required to be acquitted from the charges framed against him in the matter.

5. Per contra, Mr. R J Baruah, learned Additional Public Prosecutor, Assam, has submitted that the victim girl is found to be consistent in her statement made under Section 164 Cr.P.C. as well as in her deposition during the trial as PW6. He submits that the appellant, being a deaf & dumb person, the services of an Interpreter was requisitioned for interpreting the signs made by the victim girl during her deposition. He submits that during the trial, both the victim girl as well as the Interpreter were examined on oath. He submits that a perusal of the depositions of PW6, i.e., the victim girl and the Interpreter, who had deposed as PW7, it is found that the appellant, although, had cross-examined them, their deposition was not rebutted. He submits that merely because the victim girl is a deaf & dumb person, her testimony is not permissible to be discarded and her testimony, having been found to be credible, the same being corroborated by the other witnesses, the conviction of the appellant would not mandate an interference.

                   5.1 Mr. Baruah, learned Additional Public Prosecutor, Assam, by referring to the inconsistencies alleged with regard to the depositions made by PW1 and PW2 and the deposition of the victim girl as PW6, submits that the victim girl in a village meeting, having clearly identified the appellant, herein, as the aggressor by pointing to him and such statement, having been corroborated by the depositions of the other witnesses, inconsistencies even if held to be existing in the statements of PW1 and PW2, the same are inconsequential and not fatal to the case of the prosecution.

                   5.2 Mr. Baruah, learned Additional Public Prosecutor, Assam, submits that the learned Trial Court, had on a due and proper appreciation of the evidences coming on record, proceeded to convict the appellant under Section 376(2)(l) IPC and he submits that such conclusions drawn by the learned Trial Court, being supported by the evidences coming on record, the judgment and order dated 19.11.2020 would not mandate any interference by this Court.

6. I have heard the learned counsel for the parties and also perused the materials available on record.

7. The appellant, herein, was convicted by the learned Trial Court, vide impugned judgment and order dated 19.11.2020 under Section 376(2)(l) IPC.

8. To appreciate the rival submissions made by the learned counsel for the parties to the present proceedings, this Court is of the considered view that the evidences adduced during the trial, would mandate a consideration.

                   8.1 PW1, i.e., the informant, who is the father of the victim girl, had deposed that he knew the accused and that the incident involved, had occurred about a year ago. He deposed that his daughter, at the relevant point of time, was ill and she was taken to the hospital, wherein, he was informed by the nurse that his daughter, i.e., the victim girl was pregnant. He further deposed that he had taken his daughter, i.e., the victim girl to another hospital and on being referred, was taken to AMCH, Dibrugarh, wherein, his daughter, i.e., the victim girl had given birth to a girl child. He further deposed that his daughter, who is deaf & dumb, after returning from Dibrugarh, in a meeting held in their village in presence of the villagers, had pointed out that she was raped by the appellant, due to which, she had got pregnant. He further deposed that at the time of the incident, his daughter was aged about 19 years and he after coming to know about the incident had lodged the FIR.

                   During his cross-examination, nothing material could be elicited from him by the appellant, herein.

                   8.2 PW2 is the mother of the victim girl and she had deposed that she knew the accused as a neighbor and that the incident had occurred about 1½ years back. She deposed that the accused had committed rape on her daughter in the jungle, when her daughter had gone to collect firewood and her daughter after returning home from the jungle, narrated to her about the incident and stated that the appellant had committed a rape upon her. On being informed about the incident, she had taken her daughter, i.e., the victim girl to the hospital. She further deposed that on her daughter, being found to be pregnant, a village meeting was held regarding the incident and during the meeting, her daughter, i.e., the victim girl had pointed towards the accused in presence of the villagers and had demonstrated how the accused had committed rape on her and that she had got pregnant. Thereafter, she deposed that the victim girl had given birth to a baby boy.

                   During her cross-examination by the appellant, it is found that nothing material could be elicited from her.

                   8.3 PW3 is a villager and during her deposition, she deposed that she knows the informant as well as the accused and that the incident had occurred about 1½ years ago. She further deposed that the mother of the victim girl informed her about the victim girl having no menstruation period and of taking the victim girl to the hospital for checkup. She further deposed that after returning from the hospital, the mother of the victim girl informed her that the victim girl was 2 (two) months pregnant and thereafter, a meeting was convened in the village, which was attended by her and other villagers and in their presence, the victim girl, who is deaf & dumb, had pointed towards the accused and tried to explain by signs that the accused had committed rape on her. She submits that the accused had denied the same and did not say anything more.

                   During her cross-examination, PW3 deposed that around 40/50 people had attended the village meeting and she was one of the villagers, who had attended the meeting and had seen PW4, PW5, therein. However, she deposed that she did not remember the exact date of the meeting, but clarified that the meeting was held in the year 2018. She further deposed that neither the Gaonburha nor the VDP members were present in the said meeting and that the Gaonburha was also not informed. She deposed that the meeting was held on the mother of the victim girl informing the villagers, including the woman folk about the incident. Nothing material is found to have been elicited by the appellant from PW3.

                   8.4 PW4 is another villager, who had also deposed in the lines of the deposition of PW3. However, during her cross-examination, she had deposed that police had not recorded her statement nor police had visited her and there was no occasion for her to disclose the matter before the police authorities. She further deposed that she had good terms with the family of the victim girl as they were co-villagers. However, she had no personal knowledge of the incident as to how and in what manner, the incident had taken place with the victim girl. She, however, denied the suggestion made by the appellant that she had falsely stated that the victim girl, being a deaf & dumb girl, by signs pointing towards the accused stated to them about doing the wrongful acts with the victim girl, due to which, she got pregnant and her period stopped and at the time, the accused kept silent.

                   8.5 PW5 has during her deposition reiterated the facts stated by PW3 and PW4.

                   8.6 The victim girl had deposed on oath with the assistance of an Interpreter as PW6. The PW6 by her signs and gestures, which were interpreted by the Interpreter deposed that she will speak the truth and that she knows the accused, whom she saw in the Court, since her childhood days. She deposed that the incident took place about a month ago, when she went to the garden adjacent to their house to collect firewood in the afternoon hours and at that point of time, all of a sudden, the accused came from behind and caught hold of her and touched her private parts, including her breasts.

                   PW6 further deposed to the effect that when she tried to escape from the clutches of the accused, she could not do so as she was held tight by the accused and thereafter, the accused torn her wearing apparels and pushed her to the ground and thereafter, inserted his penis in her vagina and raped her and blood came out from her vagina. The victim girl further deposed that the accused, thereafter, had offered her money, but she refused the same and escaped from the place and reached home and out of fear did not tell anyone, including her parents about the incident. The victim girl also deposed to the effect that thereafter, due to the said incident, she attempted to commit suicide, but was rescued by her mother and then, she narrated to her mother about the incident by gestures and on coming to know about the incident, her mother went and slapped the accused out of anger and her father lodged the ejahar. She further deposed that in the village meeting, which was held regarding the incident, she had recognized the accused and told everyone with signs and gestures of the accused committed rape upon her.

                   During her cross-examination by the appellant, PW6 admitted that she generally goes daily to the same area for collecting firewood and no other person was present, when the accused committed rape on her. She further deposed that there is no house near the place of occurrence, but there are some houses at a little distance. She denied the suggestion of the appellant that the appellant had not committed rape upon her and she had not attempted to commit suicide. She also denied the suggestion that during the village meeting, she had not recognized the accused and had told everyone with signs and gestures about the accused committing rape upon her.

                   8.7 PW7, the Interpreter, who deposed that she was a teacher for disabled children at Mrinaljyoti Rehabilitation Center, Duliajan and deposed that she was engaged in the said field since last 2½ years and on a request made by police to their center, she was deputed by her organization to help the police in recording the statement of the victim girl in connection with the case and also that she had got the statement of the victim girl recorded before the learned Judicial Magistrate, by interpreting the signs and gestures of the victim girl. She during her deposition exhibited and identified the statement of the victim girl under Section 164 Cr.P.C. and her signature therein, as Interpreter.

                   During her cross-examination, she clarified that she is a professional Interpreter and had done a course to that effect, but had not brought with her any certificate to the Court. She further clarified that she was an expert in interpreting disabled persons, including persons, suffering from hearing impairment and accordingly, interpreted the statement of the victim girl within her capacity and training and whatever she had interpreted was true and correct statement of the victim girl, as she could interpret from her signs and gestures. She, however, admitted during her cross-examination that in the statement of the victim girl recorded under Section 161 Cr.P.C. by the Investigating Officer, she had used words like “Kowa Jen Lagil” and “Ullekh Kora Jen Lagil”. However, she denied the suggestion made by the appellant that those words appeared in the statement because she was not sure what was being interpreted.

                   8.8 PW8 is another villager, who had deposed in the lines of the evidences adduced by PW3, PW4 and PW5.

                   8.9 PW9 similarly is another villager, who had deposed in the lines of the evidences adduced by the PW3, PW4, PW5 and PW8.

                   8.10 PW10 is the Medical Officer, who had deposed that on 02.09.2018, the victim girl was produced before her for medical examination, but as the victim girl was a deaf & dumb, she had requested to provide an Interpreter and accordingly, on 06.09.2018, the victim girl was again produced before her for medical examination, along with the Interpreter, i.e., PW7.

                   PW10 further deposed that with the help of the Interpreter and the mother of the victim girl, the victim girl had given a history of alleged sexual assault upon her for a unknown period of time, while she was picking wood in the tea garden in the day hours by an old man with moustache and broken tooth and both legs having crooked big toe and other toes were little curl.

                   PW10 further deposed that the victim girl was found to be oriented with helping with the Interpreter, but had disturbed attentions span and to ascertain pregnancy, she advised the victim girl to consult the O&G Department and on consultation with the Gynecologist, she was advised to undergo Sonography. On undergoing Sonography, she deposed that the victim girl was found to be carrying 16 weeks pregnant (+/- 1 week 2 days gestation period).

                   The Medical Officer further deposed that she did not find any injury on the body of the victim girl at the time of the examination, but the hymen was found torn and as the victim girl already being found to be pregnant, a swab examination was not conducted.

                   During her cross-examination, PW10 had deposed that the victim girl had not stated the name of the person, who had committed sexual assault upon her, but the description of the person was given. She further deposed that the date, month or time of the alleged incident of the sexual assault was not disclosed before her.

                   8.11 PW11, i.e., the Investigating Officer of the case. He deposed with regard to the manner in which he had conducted the investigation of the case, as to how he examined the witnesses and also how he had got recorded the statement of the victim girl under Section 164 Cr.P.C. before the Magistrate with the help of an Interpreter, which he requisitioned through Principal, Mrinaljyoti Rehabilitation Center, Duliajan. He also deposed that he had got the victim girl medically examined and had collected her medical report. He deposed that on completion of the investigation, he had submitted the charge-sheet in the matter.

                   During his cross-examination, the PW11 had clarified that the specific date and time of the incident was not mentioned in the FIR or by any of the witnesses, including the victim girl and the informant during their examination, by him.

                   PW11, however, admitted that he had shown the house of the informant as the place of occurrence in Ext.5, sketch map. However, in the FIR, there was no mention of the place of occurrence. He further admitted that there was no eye witness to the incident and he had not recorded the statement of the neighbours as shown in the sketch map and had also not recorded the statement of the Interpreter. He further clarified that neither in the FIR nor in the statements of the witnesses recorded under Section 161 Cr.P.C, there is any reference to a village meeting being held regarding the incident. He also admitted that he did not further investigate whether the victim girl gave birth to any child or not. He further clarified that in the instant case, there was no necessity to enquire about the birth of any child or conduct DNA test of such child as material was sufficient to submit charge-sheet. He further admitted that he knows that if a DNA test is conducted, the paternity of the child can be ascertained. He further denied the suggestion made by the appellant that the wife and son of the appellant had visited him after the victim girl gave birth to a child and also requested him to conduct DNA test but he avoided it. However, he admits during his cross-examination that prior to submission of charge-sheet, he came to know that the victim girl gave birth to a child, but inspite to that he did not get conducted a DNA test in the matter to know the paternity of the child.

                   PW11, during his cross-examination further deposed that the mother of the victim girl, i.e., PW2 had not stated before him that the accused committed rape upon the victim girl, when the victim girl had gone to the jungle to collect firewood and the victim girl on returning home from jungle had narrated to her about the incident and stated to her how the appellant had committed rape and taking the victim girl to the hospital.

                   PW11 further deposed that PW4 Salita Das, had stated before him that when the victim girl pointing towards the accused in the village meeting, then she suspected that the accused had committed rape on the victim girl. He further clarified during his cross-examination that the victim girl in her statement before him did not state about the village meeting. He also admitted that he had not seized the garments/cloths of the victim girl or the accused.

                   PW11 also admitted during his cross-examination that the Interpreter in the statement of the victim recorded under Section 161 Cr.P.C. had used the words “Kowa Jen Lagil” as the Interpreter was not sure on those portions of the said statements. However, he denied the suggestion made by the appellant that he had not properly investigated the matter.

9. The defence side examined one witness, Bimla Bawri as DW1.

                   9.1 DW1 during her examination deposed that she knows the informant, accused as well as the victim girl, as they were her co-villagers and the victim since her birth, is a deaf & dumb girl. She further deposed that she seldom saw the victim girl leaving her house all alone when her parents were away for work. She further deposed that she also heard the parents of the victim girl scolding the her when she returns home late in the evening and further, deposed that the victim girl would then leave the house and sometime take shelter in the night in varanda of some other villagers. She deposed that the appellant was a good person and she had never heard anything bad about him.

                   During her cross-examination, she admits that her statement was not recorded by police and her house is 5 to 6 quarters away from the house of the informant. She, however, admitted during her cross-examination that she heard about some incident taking place between the accused and the victim girl and of convening of a village meeting with regard to the said incident. However, she deposed that she was not informed or came to know what was the incident.

10. The altered charge framed against the appellant is of having committed an offence under Section 376(2)(l) IPC. The said provision pertains to commission of rape on a woman suffering from mental or physical disability.

11. At the outset, this Court would examine the contentions raised by the learned counsel for the appellant, with regard to the evidence adduced by the victim girl to be not reliable.

12. The statement of the victim girl was recorded under Section 164 Cr.P.C. on 06.09.2018 by the learned Judicial Magistrate First Class, Tinsukia.

13. A perusal of the said statement would go to reveal that the same was so recorded with the assistance of Munmi Sonowal, i.e., the PW7 as Interpreter. While recording the statement of the victim girl, both the victim girl as well as Munmi Sonowal were administered oath and Munmi Sonowal was directed to interpret the victim’s signs to the best of her ability. Further satisfaction was drawn of Munmi Sonowal, being able to understand the signs and gestures of the victim girl. Thereafter, the statement of the victim girl was recorded as interpreted by said Munmi Sonowal.

14. A perusal of the said statement would go to reveal that the victim girl before the Magistrate, had demonstrated the manner in which she was sexually assaulted by an old man, who was projected to be wearing a black pant and was short in height and also gesture that the person had a teeth coming out of his mouth and was a old man, who worked with his hand bulging towards his sides. The victim girl is found to have stated that on the date of the incident, when she was roaming in the tea garden to collect firewood for kitchen, a person came and hit her with a stick on her neck and thereafter, had gestured that the person had held the victim by his arms and the victim further pointing towards breast had indicated that the person caught hold of her breast. The victim girl further is found to have gestured by holding her clothes near her waist and indicated that her clothes were torn apart towards the lower part of her body by a short person. The victim girl also divulged that she had a wound on her hand. The victim girl further suggested that she was made naked by opening her undergarments.

15. The sexual assault made upon the victim girl is also found to have been stated by the victim girl by way of gestures which were interpreted by said Munmi Sonowal. The victim had further stated that she had informed her mother of the incident and by gestures about hanging herself had also indicated that the mother of the victim girl had slapped her.

16. On appreciating the statement recorded of the victim girl under Section 164 Cr.P.C., and her deposition during the trial as PW6, this Court finds that the victim girl was consistent in her deposition with regard to the offence committed upon her by the appellant.

17. The victim girl during her deposition in the trial as PW6, had also brought on record that a village meeting was held regarding the incident and in the said meeting, she had recognized the accused and had told everyone present in the meeting with signs and gestures about the appellant, committing rape upon her. The said deposition of the victim girl, is found to have been corroborated by the evidences of PW3, PW4, PW5, PW8 and PW9.

18. Further, PW10, i.e., the Medical Officer, who had examined the victim girl in her deposition during the trial, had also deposed that the victim girl during her medical examination had also by way of sings and gestures communicated about the history of sexual assault being committed upon her by an old person. The appellant during the cross-examination of PW10 had not even put a suggestion to PW10 that the description of the person, who had committed rape upon her, as given by the victim girl, did not fit the appellant. Accordingly, the deposition of the Medical Officer as PW10, also corroborates the deposition made by the victim girl as PW6, during the trial.

19. The further issue raised by the learned counsel for the appellant is that the qualification of the PW7 to act as an Interpreter is doubtful, considering the fact that she was not in a position to interpret the signs and gestures made by the victim girl, during her examination under Section 161 Cr.P.C. The Interpreter had also deposed in the enquiry as PW7. From the said deposition, this Court finds that the appellant during the cross-examination of PW7, had not rebutted her qualification to act as an Interpreter and to be not an expert in the field. The deposition of PW7 was not rebutted by the appellant. Further, the credibility of PW7, being not discredited by the appellant, she has to be held to be qualified to act as an Interpreter in the matter, more so, when there is nothing brought on record by the appellant to show that PW7 was in anyway interested in the trial and/or had any kind of enmity with the accused. The Interpreter is found to be independent, impartial and trustworthy person.

20. Accordingly, from the above discussions, this Court finds that the evidence adduced by the victim girl is credible, believable and reliable and cannot be discarded only on the ground that she was a deaf and dumb person. It is found that the evidence of the prosecutrix inspires confidence and accordingly, the same is permissible to be relied upon.

21. This Court having also found the statement made by the victim girl, more particularly, with regard to the identification of the appellant, herein, during the village meeting, as the person, who had committed sexual assault on her to have been corroborated by the evidences of PW3, PW4, PW5, PW8 and PW9, the contention raised by the learned counsel for the appellant that the testimony of PW6, i.e., the victim girl, who is the only eye witness is to be discarded, would not mandate an acceptance.

22. This Court also finds that the issue was examined by the learned Trial Court and the learned Trial Court, had on appreciating the evidences coming on record, also proceeded to hold the evidence adduced by the victim girl to be reliable, credible and believable and accordingly, proceeded to draw conclusions with regard to the guilt of the appellant, herein, basing thereon.

23. The learned counsel for the appellant had raised a contention with regard to the inconsistencies in the depositions of PW1 and PW2 and further, the inconsistencies, so existing between the depositions of PW1 and PW2 with the deposition made by PW6, i.e., the victim girl.

24. This Court has perused the said depositions and finds that although, there are certain inconsistencies in the depositions of PW1 and PW2 and further, in the depositions of PW1 and PW2 with the deposition of PW6, the said inconsistencies is not found to exist with regard to the offence committed by the appellant in the matter, but is with regard to certain ancillary issues. The victim girl, being the sole witness and her deposition being found to be reliable, cogent and trustworthy, the inconsistencies highlighted in the depositions of PW1 and PW2, considering the totality of the circumstances coming on record, this Court is of the considered view that the said inconsistencies, even if, taken note of, would not be fatal to the case of the prosecution.

25. The learned Trial Court, upon appreciating the evidences coming on record with regard to the issues already considered by this Court, hereinabove, had drawn the following conclusions:

                   “48. The victim girl as P.W.6 in her testimony has categorically narrated how she knows the accused whom she could identify in the Court and whom she knew since her childhood days and how on the unfateful day when she went to the garden adjacent to her house to collect firewood in the afternoon hours all of a sudden the accused came from behind and caught hold of her and touched her private parts including her breasts and how she tried to escape but could not do so and then the accused tearing her wearing apparels and pushing her to the ground inserted his penis on her vagina and raped her.

                   49. The defence side during argument has tried to raise the plea that the testimony of the victim girl was not at all corroborated by the testimony of her own father (P.W.1) or mother (P.W.2). However, if the testimony of the victim girl (P.W.6) is evaluated with the testimonies of her father (P.W.1) and her mother (P.W.2) and also with other co-villagers i.e. P.W.3, P.W.4, P.W.5 and P.W.9, it is found that each of the P.W.s have clearly and categorically stated the fact how the victim girl in presence of them and other villagers in a village meeting which was held after she got pregnant by her actions, signs and gestures had pointed out towards the accused to convey that the accused was the person who committed rape/wrongful act on her due to which she had got pregnant. The testimonies of the said prosecution witnesses which remained unrebutted and are found to be cogent, trustworthy and reliable has indeed corroborated the testimony of the victim girl to the effect that due to the accused committing rape, she (victim girl) got pregnant.

                   50. Also, the M.O.(P.W.10) in her testimony has clearly and categorically stated that the victim gave history of sexual assault and was found to be around 16 weeks pregnant and thus, corroborating the evidence of the victim girl and aforesaid P.W.s to the effect that the victim girl was subjected to sexual assault and due to such assault got pregnant.

                   51. It is true that except the victim girl there is no other eye witness of the alleged crime and only because of that reason, it cannot be said that the testimony of the victim girl and the entire prosecution story needs to be rejected. Whereas on the other hand, the sole testimony of the victim girl having considered with all the evidence other prosecution witnesses is found to be very much trustworthy, believable, reliable and cogent to arrive at conclusion that the accused committed rape on the victim girl on the unfateful day.

                   52. The defence side also tried to raise the plea that the prosecution side failed to bring on record the exact date, time and place of the incident either in the 'Ejahar' or through testimony of the prosecution witnesses. However, the same is to some extend though found to be correct but cannot be said to be wholly correct considering the fact that the victim girl categorically stated about the incident occurring in the afternoon hours and in the garden adjacent to her house where she went to collect firewood.

                   53. Moreover, admittedly, the victim girl being a deaf and dumb person and obviously not being an educated person as she used thumb impression in her testimonies and is incapable of reading or writing, it cannot be expected, rather it is found to be quite natural that she could not definitely say about the exact date and time of the alleged incident.

                   54. The testimony of the victim girl if found to be reliable, credible and believable cannot be merely on the ground that it is the sole testimony regarding the alleged crime needs to be disbelieved or lead to disbelieving the entire prosecution story. In this regard, the Judgment of the Hon'ble Supreme Court being Om Prakash -Vs- State of U.P. [reported in (2006) 9 SCC 787] in Paragraph Nos. 13 to 15, which is as follows can be looked into-

                   "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian woman has a tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members have courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scatting (sic scathing) her own prestige and honour.

                   14. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault- it is often destructive of the whole personality of the victim. A murderer destroy the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with case involving sexual molestation. This position was highlighted in State of Punjab v. Gurmit Singh.

                   15. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act, 1872 (in short "the Evidence Act") similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature o evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have strong motive to falsely involve the person charged the court should ordinarily have no hesitation in accepting her evidence. This position was highlighted in State of Maharashtra v. Chandraprakash Kewalchand Jain."

                   55. Also, in Bipul Medhi -Vs-State of Assam, 2007 (2) GLR 2000, it has been held that evidence of a woman of the society given at the cost of her reputation cannot be disbelieved by the Court, except for extra ordinary reason.

                   56. Now, the defence side in argument as well as during cross-examination of I.O. has tried to point out the fact that there was delay in lodging the 'Ejahar' and the I.O. failed to seize the clothes of the victim as well as the accused and has admitted to have lapsed in conducting the DNA test of the child born.

                   57. However, if the entire prosecution evidence is considered in its totality and the evidence of the victim girl, which is inspiring and trustworthy and in background of the entire case and also considering the totality of the circumstances and as there is nothing brought on record regarding possibility of any manner of false implication of the accused, for aforesaid lapses on the part of the I.O., it cannot lead to rejecting or disbelieving the entire prosecution story and hence, such plea of the defence is not acceptable in the given circumstances in hand. Moreover, in offence of rape when otherwise proved, delay in lodging of 'Ejahar' if there are no other mitigating circumstances cannot lead to rejection of the prosecution case which is otherwise proved beyond reasonable doubt and which is so in the instant case in hand.

                   58. The defence side has also taken the plea regarding contradiction as regard gender of the child born in the testimonies of P.W.1 and P.W.2 but those seems minor and irrelevant contradiction and thus, not accepted.

                   59. The defence side also took the plea and tried to highlight in the U/s.313 Cr.P.C. statement of the accused as well as to some extent through testimony of D.W.1 trying to raise the plea of the victim girl being a characterless person, seems quite immaterial and rather is found not have been properly proved by the defence side and being not raised during cross-examination of P.W.s, seems to be a last attempt made by the defence side to escape the liability of the crime.”

26. This Court has carefully perused the said conclusions and finds that the conclusions so drawn by the learned Trial Court with regard to the plea taken by the appellant in the matter, to be so drawn basing on the evidences coming on record, during the trial and the same is not found by this Court to be perverse.

27. Having drawn the said conclusions, this Court would also note that the appellant, during his examination under Section 313 Cr.P.C., had not brought on record any clarification with regard to the circumstances put to him, emanating from the deposition of the prosecution witnesses during the trial. There was only a denial to the circumstances put to the appellant.

28. The Hon’ble Supreme Court in the case of Raj Kumar Vs. State of U.P., reported in (2014) 5 SCC 353, had held that complete denial, silence and non-explanation of incriminating materials would entitle a Court to draw an adverse influence against an accused, as may be permissible in law.

29. In the case on hand, the appellant had not rebutted the statements made by the prosecution witnesses, who had been a part of the village meeting to the effect that the victim girl, therein, had by pointing out to the appellant, had demonstrated that he had committed rape upon her and had also made her pregnant. The identification of the appellant as the person committing the sexual assault upon the victim girl from a totality of the evidences coming on record stood established beyond reasonable doubt.

30. In view of the above discussions, this Court is of the considered view that the conviction of the appellant by the learned Trial Court, vide the impugned judgment and order dated 19.11.2020 in Sessions Case No. 28(T)/2019 under Section 376(2)(l) IPC, would not mandate any interference. Further, the sentencing of the appellant, as ordered by the learned Trial Court, would also not mandate any interference. Accordingly, the conviction and sentencing of the appellant, herein, as directed by the learned Trial Court, stands affirmed.

31. Accordingly, the present criminal appeal is held to be devoid of any merit and consequently, the same stands dismissed. However, there would be no order as to cost.

32. Registry to send down the records of the case to the learned Trial Court forthwith.