Judgment & Order (Oral):

1. Heard Mr. R. Sarma , learned counsel for the appellant. Also heard Mr. K. K. Parasar, learned Additional Public Prosecutor for respondent No.1 and Mr. B. Chowdhury, learned counsel appearing for respondent No.2.

2. The convict-appellant, namely Bhumidhar Kalita, has filed this appeal under Section 374(2) of the CrPC, 1973 (as it existed then) against the judgment and order dated 19-12-2018 passed by the learned Sessions Judge, Nalbari, in Sessions Case No. 33 of 2009, whereby the appellant, who faced trial as accused was convicted under Section 376 IPC and for such conviction, he was sentenced to undergo rigorous imprisonment (R.I.) for 10 years and pay a fine of Rs.5,000/- (in default, S.I. for six months).

3. The prosecution case, in brief as it unfolded before the learned trial court is that on 03-02-2008 the alleged victim woman herself as the prosecutrix lodged a complaint alleging that the appellant, Bhumidhar Kalita, used to come to their house since last Durga Puja and told to marry her. That, on 25-01-2008 at around 9:30 PM, Bhumidhar Kalita and Pankaj Kalita brought her to some distance of her house by gagging her mouth. She further alleges that the said Pankaj Kalita gagged her mouth and Bhumidhar Kalita committed rape upon her whereupon both of them fled away.

4. She also stated that though steps were taken for a public meeting but the Bhumidhar denied the incident and refused to marry. On the basis of the aforesaid complaint, Dhamdhama outpost GD No. 33 dated 03-02-2008 was made where the complaint was lodged and it was forwarded to the Ghograpar Police Station for registration of the case. Thereupon, Ghograpar P.S. Case No. 11 of 2008 was registered under Section 376 IPC.

5. The case was investigated during which the statement of the prosecutrix was recorded before the learned JMFC and she was also medically examined at the hospital.

6. Upon completion of investigation and upon finding sufficient materials the I.O. of the case submitted a charge-sheet against the present appellant and coaccused, Pankaj Kalita under Section 376 IPC showing the latter as an absconder. Subsequently, vide order dated 15-06-2009, the learned trial court was pleased to frame charge against both the accused persons under Section 376 IPC.

7. The charge upon being denied by the accused persons, led to commencement of the trial. During the trial, the prosecution examined five witnesses, including the prosecutrix herself, her mother, the M.O., the I.O., and the learned Magistrate who had recorded her statement under Section 164 CrPC. After completion of prosecution evidence, the accused persons were examined under 313 CrPC. The defense did not lead any evidence. As stated in paragraph 5 of the impugned judgment, the co-accused Pankaj Kalita died during the trial and the case abated against him. Upon completion of the trial, the appellant herein, namely Bhumidhar Kalita was convicted under Section 376 IPC and sentenced as already narrated above. Hence, the present appeal.

8. Mr. Sharma, the learned counsel for the appellant submits that there are contradictions between the statement of the prosecutrix before learned JMFC and her testimony during the trial. The learned counsel fairly submits that it is well settled that a conviction in an offense of this nature can be recorded on the sole testimony of the prosecutrix. But such testimony has to be cogent, consistent and free from infirmities for basing a conviction solely upon it. The learned counsel also submits that in her statement before learned JMFC she omitted the name and role of the co-accused, Pankaj Kalita, who subsequently expired during the trial, though in her testimony before the trial court, she mentioned about him and the role played by him. The learned counsel also points out that though the incident took place on 25-01-2008, the FIR came to be lodged on 03-02-2008.

9. It is also submitted that the medical examination also did not reveal any recent sexual intercourse nor any injuries on her body, including on her private parts. The learned counsel submits that in her statements before learned Magistrate and before the trial court during her deposition, she stated that she will withdraw the case if the accused marries her. Summing up his submissions, the learned counsel contends that the impugned judgment suffers from infirmity and that the accused may be acquitted, further submitting that in any case ever since the date of conviction and sentence he has been in custody which is more than seven years eight months.

10. The learned Additional Public Prosecutor while supporting the impugned judgment of conviction and sentence fairly submits that reference to the other co-accused is missing in the statement of the girl recorded under Section 164 CrPC. Nevertheless, she has stated about the commission of the offense in her statements before the Magistrate as well as before the trial court. It is submitted that she has also reported about the incident to her mother, who has deposed as P.W. 2 during the trial.

11. It is submitted that medical report though has not indicated injuries or recent sexual intercourse, it has to be kept in mind that medical examination was conducted several days after the date of the alleged incident. It is also submitted by the prosecution that the delay of a few days in lodging the FIR stands explained in the context of materials regarding the village meeting. In support of his contentions, the learned Additional Pubic Prosecutor refers to the decision of State of Punjab vs. Gurmit Singh, reported in AIR 1996 SC 1393.

12. Mr. B. Choudhury, the learned counsel appearing for the informant submits that the delay of eight days in lodging the FIR can be overlooked. It is also submitted that the apparent contradictions between her testimony during the trial and her statement before the learned JMFC can be considered as minor contradictions and can be overlooked in view of her overall testimony regarding the incident during the trial. In support of his contentions regarding delay, the learned counsel refers to the decision of Satpal Singh vs. State of Haryana , 2010 (0) Supreme (SC) 636, (2010) 8 SCC 714.

13. I have perused the appeal memo, the impugned judgment and order, the evidence before the learned trial court, the statement of the girl recorded before Magistrate under Section 164 CrPC, the medical report and other relevant documents. I have considered the submissions of the respective learned counsels and perused the decisions cited.

14. It is revealed from the testimony of PW-1 (the prosecutrix) as well as her mother as PW-2 that after the incident there was a village bichar and when the matter could not be resolved upon refusal of the appellant to marry the victim, the case came to be lodged. Though, the FIR itself does not enumerate the said explanation but from the materials, the delay has stood explained and therefore, I do not consider the delay to be fatal. The decisions in Gurmit Singh (suprea) and Satpal Singh(supra) are also in support of the said finding by this Court.

15. However, even though the medical examination was conducted a few days after the alleged incident, it did not reveal any injuries upon the private parts of the victim or any indication of forceful sexual intercourse. Though the hymen was stated to be torned but the medical report is not indicative of whether it is an old tear or otherwise.

16. I find an apparent contradiction between the testimony of the victim and the medical report in as much as, though the victim has testified about the forceful nature of the offense leading to bleeding in her testimony before the learned trial court, but the medical report does not indicate any tenderness etc. on her private parts.

17. In her testimony as PW-1, the prosecutrix deposed that the incident had taken place at around 9:00 PM at night when her father, a deaf person and her younger sister were at home and asleep and mother was not at home. She testified that at that time, the accused came to the house and when she came out for answering nature's call, one accused caught hold of her hand and another gagged her mouth and brought her to the field located in the village. She testified further that they tore her clothes and the co-accused held her on the ground and then the present convict-appellant committed sexual intercourse upon her due to which she suffered pain and bleeding injuries. She stated about hue and cry, whereupon villagers came and before the villagers came, the accused persons ran away. She testified about narrating the incident before the villagers, who then brought her to the house.

18. She proved the FIR as Exhibit-1 and her signature thereon as Exhibit-1(1). She stated about recording her statement before Magistrate, which is exhibited as Exhibit-2 and her signature thereon as Exhibit-2(1). She stated that the appellant had intercourse with her. In cross-examination she indicated her age as 18 years before the learned Magistrate. In cross-examination, she explained the delay in lodging of the FIR due to the village meeting but admitted that she had not mentioned the same in the FIR. She stated in cross-examination that the appellant committed sexual intercourse upon her. She denied in her crossexamination that as the appellant did not marry her, she had lodged a false case. She stated in her cross-examination that four villagers were present at the place of incident. In cross-examination she stated that her brother had brought her to the house.

19. Though it is revealed from the testimony of the prosecutrix that four villagers had appeared at the place of incident but none of them were examined and made witnesses during the trial. No persons who were stated to be present in the village meeting, as revealed from the testimony of PW-1 and PW-2 have also been examined during the trial.

20. The testimony of PW-4, the learned Additional CJM, who had recorded the statement of the girl during investigation is of a formal nature and she has testified recording of such statement. In any case no there is no dispute about the recording of the statement of the victim girl.

21. PW-2 is the mother of the girl and admittedly she is not an eyewitness but she has stated about being reported to about the incident by her daughter.

22. As rightly pointed out by the learned counsel for the petitioner and fairly submitted by the Prosecution also in this regard, in her statement recorded before Magistrate, the prosecutrix has not mentioned about the other coaccused at all. She stated that one day the convict-appellant Bhumidhar sent one man to their house to inform that he will not marry her and after two days of the said incident, he came to their house and when she refused to go with him he kidnapped her by gagging her mouth, brought her to a paddy field and raped her by force.

23. Upon carefully going through the statement of the girl under Section 164 CrPC, I find that she has only mentioned about the present convict-appellant and has completely omitted to mention about the co-accused who died during the trial.

24. In her testimony, she has stated about being kidnapped by both the accused persons taken to the field and while the co-accused held her to the ground, the present convict-appellant committed the sexual offense.

25. In this context when we compare the evidence adduced by the prosecutrix as PW-1 and her statement under Section 164 CrPC, non-omission of the name of the co-accused in her statement before learned Magistrate changes the nature of the incident that emerges from her statement before Magistrate and her testimony during the trial.

26. In the instant case, this contradiction assumes importance because there are no other eyewitnesses examined by the prosecution. Though the materials reveal the possibility of examination of other witnesses who could have been res-gestae witnesses, but the investigating agency/IO missed that opportunity and did not examine any such possible persons.

27. I have already seen that the medical report does not lend any cogent support to the allegation of rape by the prosecutrix. In that situation, we are left largely with the testimony of the prosecutrix to determine the question of guilt of the of the appellant.

28. In the case of Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, the Hon’ble Apex Court has explained the characteristics of a sterling witness and held that for such a witness, the most important hallmark of such a witness is consistency and the testimony being free from infirmities and contradictions. In a prosecution for rape, conviction can be based upon the sole testimony of a prosecutrix as is well settled but such testimony has to be wholly reliable and not suffering from infirmities and doubts.

29. As already discussed, apart from the divergence between the ocular testimony of PW-1 and the medical evidence rendered by PW-3; the testimony of the prosecutrix and her statement before Magistrate also suffers from significant inconsistency. As already discussed earlier, the complete omission to mention about the co-accused and the role played by him in the alleged offense vis-à-vis her testimony as PW-1 brings about difference in the nature of the incident that emerges from her statement before learned JMFC and that which emerges from her testimony during the trial.

30. In the considered opinion of this Court, the discrepancy between the statement under Section 164 Cr.P.C. and her testimony during the trial cannot be overlooked as a minor discrepancy because, as already discussed, it to some extent, at least, changes the nature of the incident.

31. The learned trial court has held that this discrepancy would not be fatal to the prosecution case. The learned trial court has held that this discrepancy is not fatal to the prosecution case. However, this Court would be of a somewhat different opinion. The learned trial court has rightly held that her narration of the incident to her mother lends some support to her own testimony. Nevertheless, the aforesaid discrepancy which remains unexplained damages the prosecution case.

32. Another vital aspect which emerges from the materials is that both in her statement under Section 164 CrPC. and in her cross-examination as PW- 1 during the trial, the prosecutrix has stated that if the court convict appellant marries her, she will withdraw the case. This in my considered opinion might not constitute the natural conduct of a victim of an offence of the nature, that has been alleged to have taken place. Moreover, it only lends credence to the contention of the defense that due to not marrying the prosecutorix a false case has been foisted upon the appellant.

33. In any case such aspect of the testimony lays open the possibility of an alternative hypothesis as well, about false implication due to refusal to marry. In this context, it may be mentioned herein that it is well settled that when two views emerge, with one in favor of the accused, benefit has to be given to the accused.

34. Thus, upon perusing and analyzing the entire evidence on record, this Court comes to the considered opinion that in this case it was risky to base a conviction only upon the testimony of the prosecutrix as because such testimony suffers from some inconsistency and discrepancies which have already been discussed above. Further, PW2, the mother of the prosecutrix is not an eyewitness and she is more in the nature of hearsay. The medical evidence does not really lend support to the alleged offenses in any cogent manner.

35. In the aforesaid facts and circumstances, the evidence and materials on records, in the considered opinion of this Court do not lead to a definitive finding of guilt of the appellant. Rather, because of the infirmities in the prosecution case as discussed above, benefit of doubt ought to have been given to the accused. Accordingly, in such view of the matter, the impugned judgment dated 19/12/2018 passed by the learned Sessions Judge, Nalbari in Sessions Case No.33/2009 is hereby set aside. The convict appellant shall be set at liberty forthwith, if not wanted in any other case.

36. The original records be returned back to the learned trial court.

37. The criminal appeal stands allowed and disposed of.