Judgment & Order (Cav)

K.R. Surana, J.

1. Heard Ms. M. Barman, learned Amicus Curiae for the appellants. Also heard Ms. B. Bhuyan, learned APP for the State and senior counsel, assisted by Ms. J. Saikia, learned counsel.

2. On receipt of petition of appeal of the appellants through the Superintendent of Central Jail, Jorhat, both these appeals are one within the provision of section 383 Cr.P.C. read with section 374 Cr.P.C.

3. These appeals are directed against the judgment and sentence dated 31.08.2021, passed by the learned Special Judge, POCSO, Jorhat in Special Case No. 93/2017. By the said judgment and sentence, the appellants were convicted for commission of offence under section 376D IPC and sentenced to undergo rigorous imprisonment for a term of 20 (twenty) years each and fine of Rs.15,000/- (Rupees fifteen thousand only) each with default stipulations. It was further ordered that the fine amount, if realized, shall be paid the victim for her medical expenses and rehabilitation.

4. In brief, the case of the prosecution is that on 29.10.2017, the victim (hereinafter referred to as ‘X’) had gone to watch movie in the tea estate. The appellants, namely, Monu Tanti (also spelt as Munu Tanti), appellant in Crl.A.(J) 44/2021; and Dip Kalindi (also spelt as Deep Kalindi) @ Dipok, appellant in Crl.A.(J) 45/2021, had raped the victim in a bamboo grove at Hatkhola Line. The friend of the victim, namely, Smti. Puja Kalindi, had informed the incident to one Golap Kalindi and the incident came to light and thereafter, the victim was taken to the Jorhat Medical College and Hospital for examination and police was requested to take action against the accused persons and accordingly, the FIR was lodged by the father of the victim (name masked), who had explained in the FIR that as both the accused persons had prevented them from coming to police station by giving threats to his daughter, the lodging of the FIR got delayed. Accordingly, Pulibor P.S. Case No.337/17 was registered under section 376 IPC read with sections 6/8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act, 2012” for brevity).

5. In course of investigation, the I/O, having found materials against the appellants, submitted Charge-Sheet No. 179/17 dated 30.11.2017.

6. It may be mentioned that in the meantime, in course of investigation, the I/O had got the statement of the victim as well as the statement of Smti. Puja Kalindi recorded before the learned Judicial Magistrate First Class, Jorhat on 06.11.2017.

7. In course of trial, after framing of charges on 29.01.2018, the prosecution evidence commenced. The prosecution had examined 10 (ten) witnesses, namely, (1) X (victim) as PW-1; (2) Shri Roghu Kalindi as PW-2; (3) Shri Krishna Kalindi as PW-3; (4) Smt. Puja Kalindi as PW-4; (5) Shri Golap Kalindi as PW-5; (6) Smt. Sarumai Kalindi as PW-6; (7) Smt. Sima Kalindi as PW- 7; (8) Dr. Ritu Saikia as PW-8; (9) Md. Shams Uddin as PW-9; and (10) Smt. Niva Rani Doley as PW-10. Thereafter, the accused persons were examined under section 313 Cr.P.C. During examination of witnesses, the following documents were exhibited, viz. (1) FIR as Ext.1; (2) Medical Report as Ext.2; (3) Sketch Map as Ext.3; (4) Charge Sheet as Ext.4; (5) Statement of victim under section 164 Cr.P.C. as Ext.5; (6) Statement of witness under section 164 Cr.P.C. as Ext.6; (7) Order passed by the learned Chief Judicial Magistrate as Ext.7; and (8) Order relating to reflection of time as Ext.8.

8. It would be suffice to mention that the learned Special Judge, POCSO, after appreciating the evidence on record and the statement of the accused recorded under section 313 Cr.P.C., amongst others, found that the statement of the victim was reliable and could be the basis of conviction of the appellants. Accordingly, it was held that the deposition of the victim corroborates in all material particulars save and except some contradictions as to the persons who were present with her when she went to relieve herself and accordingly, as the Court found that the statement of the victim recorded under section 164 Cr.P.C. was un-rebutted by the defence, the Court was of the opinion that there was no reason for the victim to falsely implicate accused persons. Accordingly, though there were certain contradictions and omissions in the testimony of the victim, those omissions and contradictions were felt to be minor. Accordingly, it was held that on material aspects, the evidence of the prosecution witnesses was consistent. Moreover, insofar as the medical evidence is concerned, the absence of any injury on the external and internal parts of the body of the victim, does not make the testimony of the victim unreliable, in view of the fact that the incident took place on 29.10.2017 and the medical examination of the victim was done on 03.11.2017, and therefore, it was held that after 5 (five) days, the sign of forcible intercourse would not persist and accordingly, it was held that the absence of injuries on the victim could not discredit her evidence. Accordingly, both the accused persons were held to be guilty of commission of offence under section 376D IPC, and punishment as indicated above ordered to be served by the appellants.

9. The learned Amicus Curiae for the appellants had meticulously read out the evidence of all the 10 (ten) witnesses and submitted that if the evidence of PW-1 was taken at its face value, it would only implicate the appellant Dip Kalindi @ Dipok, the appellant in Crl.A(J) No. 45/2021, against whom a specific averment was made of having forced his main part into the private part of the victim and that as no specific act of rape was established against the other co-accused, namely, Monu Tanti, against whom general allegation of having raped the victim was made is entitled to be benefit of doubt. Moreover, it was submitted that as against the other co-accused, the main accused could be brought forth during the examination of the PW-1, save and except a vague statement of being sexually assault the victim.

10. It is submitted that out of all the 10 (ten) witnesses examined, only PW-1 (victim) and PW-4 are the alleged eye witness to the incident. PW-8 was the Doctor, who had examined the victim, PW-9 was the I/O of the case and PW-10 was the Judicial Magistrate, who had recorded the statement of the victim and Puja Kalindi.

11. It is submitted that the evidence of the prosecution witnesses was full of contradictions. In this regard, by referring to the evidence of PW-3, it is submitted that he had been told by Puja Kalindi (PW-4) that both the accused persons had dragged the victim from the place to a passage near bamboo grove, but the said statement was denied by the I/O PW-9, who had categorically stated that such a statement was not made before him.

12. Referring to the evidence of PW-4, it was submitted that it had been stated by the witnesses that both the accused persons came towards them, pressed the mouth of the victim and took her with them and they threatened her, for which she went away from the place of kidnapping and informed her elder uncle, namely, Golap Kalindi, that the victim was taken away by the accused persons, but in her examination-in-chief, the said PW-4 stated that the victim came back to the house of PW-4. Accordingly, it is submitted that PW-4 was also not an eye witness of the rape of the victim.

13. Referring to the evidence of PW-5, it is submitted that he had admitted during examination by the prosecution that the date of incident was around 1.00 AM. Puja Kalindi along with the victim had gone to relieve themselves. Both the appellants had gagged the mouth of the victim and took her to another passage near a garden road. Accordingly, it is submitted that he is a mere hearsay witness and did not have any personal knowledge about the incident.

14. Referring to the evidence of PW-6, it is submitted that the said witness had admitted that the accused persons were under the influence of alcohol and did not listen to the objection raised by the victim.

15. It is submitted that as PW-7 was not an eye-witness, his evidence would not be reliable.

16. Referring to the evidence of the doctor (PW-8), it is submitted that during genital examination, no evidence of injury was detected and no evidence of injury was found on the body of the victim and thus, no evidence of physical injury and no recent sexual intercourse was detected by the medical officer.

17. Referring to the evidence of PW-9, who is the I/O of the case, it is submitted that the said witness took two different stands as regards the statement recorded in respect of PW-4, namely, Shri Golap Kalindi and accordingly, the examination-in-chief of the said witness and cross-examination was deferred to. It is submitted that in this cross-examination, the I/O had admitted that it is not a fact that PW-4 had stated about the presence of both the appellants to have gagged the mouth of the victim and took her to a narrow passage near a bamboo grove. Accordingly, it is submitted that such evidence to implicate the appellants was not reliable.

18. Referring to the evidence of PW-10, in his cross-examination, it is submitted that while recording the statement of Puja Kalindi, she had not deposed that the accused persons had gagged the mouth of the victim and took her with them.

19. Accordingly, it is submitted that the conviction of the appellants for the offence is not sustainable and therefore, prays for acquittal of both the accused persons.

20. Per contra, learned APP has submitted that as the evidence of the victim inspired full confidence about the incident as her evidence was made under section 164 Cr.P.C., the appellants were rightly convicted on the basis of sole statement of the victim, which cannot be discarded. It is submitted that no material contradiction could be brought forth by the appellants to discard any of the evidences so as to make the evidence of any of the witnesses doubtful. Moreover, it is submitted that the evidence of PW-1 merely implicates that both the accused persons were present at the site of incident and had kidnapped the victim girl and took her to a nearby place and committed the offence of rape.

21. It is submitted that as the appellants were charged for commission of offence under section 376D IPC, it is not required that there should be evidence of sexual assault by both the accused persons and if they form a gang, even a sexual assault by one person would implicate the other coaccused for commission of offence and would be liable for same punishment.

22. In support of her submission, the learned Addl. P.P. has placed reliance on the case of Dipak Kumar Sahu v. State of Chhattisgarh, Manu/SC/1016/2025, to project that even a sole testimony of a prosecutrix would be sufficient to convict the accused person.

23. The Court has perused the records received from the learned trial Court and considered the submissions made by the learned amicus curiae as well as the learned Addl. P.P. for the State.

24. The case of the prosecution, in brief, is that on 29.10.2017, the victim along with her friend Puja Kalindi had gone to watch a movie in Tea Estate. Both the accused persons (appellants), namely, Dip Kalindi @ Dipok (also spelt as Deep Kalindi in some places) as well as Munu Tanti had kidnapped the victim, took her to a bamboo grove and raped her.

25. After completion of investigation, charge-sheet bearing No. 179/17 dated 30.11.2017, was submitted by the I.O. in connection with G.R. Case No. 3281/2017.

26. Initially, charges were read over and explained to both the accused persons under three heads vide order dated 29.01.2018, accusing the appellants of committing offence punishable under (i) Section 376/34 IPC, (ii) Section 6 of the POCSO Act, 2012 read with section 34 of IPC, and (iii) Section 8 of the POCSO Act, 2012 read with section 34 of IPC. The petitioners pleaded not guilty and claimed to be tried. Later on, vide order dated 10.03.2021, by invoking Section 215 of the Cr.P.C., charges were altered under two heads and read over and explained to both the petitioner, accusing them of committing offence punishable under (i) Section 376D of the I.P.C. and (ii) Section 6 of the POCSO Act, 2012. The petitioners pleaded not guilty and claimed to be tried.

27. During trial, the prosecution had examined 10 prosecution witnesses (PWs for short). They are – (i) X (victim) (PW-1); (ii) father of the victim (name not disclosed to protect victim’s identity) (PW-2); (iii) Sri Krishna Kalindi (PW-3); (iv) Miss. Puja Kalindi (PW-4); (v) Sri Golap Kalindi (PW-5); (vi) Smt. Sarumai Kalindi (PW-6); (vii) Smt. Sima Kalindi (PW-7); (viii) Dr. Ritu Saikia (PW-8); (ix) Md. Shams Uddin (PW-9); and (x) Smt. Niva Rani Doley (PW-10).

28. The victim, X, who was examined as PW-1, has stated in her evidence-in-chief that she knew both the accused persons. She had gone to see the cinema with her nobou, her younger sister and her brother. She had gone to relieve herself and while she sat to do so, both the accused gagged her mouth with a chunni and removed her clothes. She tried to restrain, but they did not listen. They made her naked and did bad work with her. Her nobou and her younger sister fled away from the scene out of fear when they saw the act of the accused. She had stated that the accused Dip Kalindi forced his male part into her vagina forcefully. At this juncture, the learned Court had recorded in the deposition-sheet that the girl has problem in speaking and understands things slowly. She had further stated that she had narrated the incident to her sister Puja Kalindi and Sorumai Kalindi. She also told the incident to her father. Thereafter, her father had lodged a case before the police. She had stated that the police had sent her for medical examination as well as to the Court for recording her statement before the Magistrate under Section 164 Cr.P.C. In her cross-examination has stated the incident took place at 12.00 AM in the midnight. She does not remember the date of the incident. She had stated that the place of incident is a little distance away from the cinema house. She had denied that there was any dispute between her father and the accused person. She had denied that the accused Dip Kalindi did not commit bad work with her. She had denied that Munu Kalindi did not remove her clothes.

29. The father of the victim was examined as PW-2. His name is not disclosed in this order to mask his identity. In his examination-in-chief, PW-2 had stated that the victim is his daughter and she was aged 16 years. He had exhibited the FIR (Ext.1) and his signature [Ext.1(2)] thereon. He had stated that the victim, his daughter-in-law and his son went to watch a movie in the night. All the family members came back home but the victim did not come back. Then he started searching for his victim daughter. Then he found both the accused carrying his daughter with them. He found sing of mud on the body of the victim. On being asked, his daughter told him that the accused person had made her naked and gagged her mouth with a cloth. “She told the accused did not bad work with her. She also told that both the accused committed bad work with her.” He had further deposed that on being asked the accused denied their involvement and at that time they were under influence of alcohol and that the accused Deep Kalindi had admitted that he had raped his daughter. Then, he informed the matter to police. Police sent his daughter for her medical examination as well as to the Court for recording her statement before the learned Magistrate under Section 164 Cr.P.C. In his cross-examination, PW-2 had stated that he came to know about the incident as narrated by the victim girl. He had denied that the accused did not commit bad work with the victim. He had denied that he had lodged a false case against the accused who owed money from him. He had denied that he had deposed falsely in the case.

30. Krishna Kalindi, who was examined as PW-3, is the brother of the victim. He had stated in his examination-in-chief that the victim is his sister. The incident took place 5/6 months back. He was at the house at the time of the incident. Victim and his niece went to see the movie at the tea garden hall. He had stated that X came and told him that when she and victim went to relieve her then both the accused Dip Kalindi and Munu Kalindi dragged the victim from that place and took her to a narrow passage near a bamboo grove. Puja fled from the scene out of fear. It was about 10/11 PM. Puja also informed his cousin brother, namely, Golap Kalindi. They searched the victim but did not find her. When they failed then he went to search the victim and found the victim girl with the accused person. They kept the victim between them. He had stated that on being asked, the accused threatened him. They denied done anything to the victim (clarification: it may be stated that the above portion deposition is typed as “They denied to have done nothing to the victim”, which appears to be incorrect). He has further deposed that he saw mud on the backside of the victim including her hairs. He then took the victim to his house. She wept and told him that accused dragged her near a bamboo grove, the accused assaulted her and did bad work with her forcibly. They had put a cloth in her mouth. After hearing the incident, he along with Golap went to the house of the accused and in turn they threatened them. Then they informed the matter to Sri Bidya Bawri, the Secretary of the Tea Garden, who told them to take the victim to the hospital at Jorhat on the next day. Later on, his father had lodged a case. In his cross-examination, PW-3 had stated that at the time he was in the house and came to know about the incident from Puja Kalindi. He had denied that he did not state before the police that he was informed by Puja Kalindi that accused dragged the victim to a nearby passage; the incident took place at 10/11 PM; that he found the victim in between the accused and she was not normal; that accused threatened them; that victim did not tell him about the incident herself.

31. Puja Kalindi, the person with whom the victim had gone to see cinema in the tea garden was examined by PW-4. In her evidence-in-chief, she had stated that she along with X, her aunt (younger sister of her father/ victim), on the day of incident had gone to see a movie at Sokolani Field and the incident occurred when they were returning after watching the movie. X went to urinate in a bamboo grove. Then Deep Kalindi and Monu Tanti came and caught hold of X. She fled out of fear. She did not see what they had done with X afterwards. On that day itself, at about 1.00 AM., Deep and Monu left X at her home and they were asked to lodge a case against them. She had stated that she knows that much only. Thereafter, she went to her house and narrated the incident to her elder uncle, namely, Golap Kalindi. After some time, the victim went to her house. In her cross-examination, she had stated that she does not remember the date and day of incident. The place from where the victim was taken by the accused person and the place where the movie was going on was at a distance and one cannot hear if someone calls from that place. She had stated that they were there at the time of incident and nobody was there. She had denied that she did not state before police as well as before the learned Magistrate that accused threatened her by telling that they will treat her like the victim; she did not state before the learned Magistrate that accused dragged the victim with them after gagging her mouth; she did not state before the Magistrate that accused persons also threatened her at the time of incident.

32. Golap Kalindi, was examined as PW-5. He had stated that he knows both the accused person. They are from his village. Victim is his cousin sister. Incident took place less than one year ago. At the time of the incident they were watching movie at the tea garden. At that time X and Puja was with him. X and Puja had gone to relieve themselves. Then Puja informed him that she did not find the victim.

The witness was then declared hostile.

In his cross-examination by the prosecution, he had stated that it is a fact that he did not state before police that “on the date of the incident at around 1 AM Puja Kalindi along with the victim girl of this case went to relieve themselves. At that time both the accused persons namely Dip Kalindi and Munu Tanti gagged her mouth and took her to a narrow passage near a bamboo grove.”

In his cross-examination by the accused, he had stated that he came to know about the incident by Puja Kalindi. He cannot say whether people were moving in the road near the cinema hall. He does not have any personal knowledge about the incident.

33. Smt. Sarumai Kalindi was examined as PW-6. In her examination-in-chief, she had stated that she knows both the accused, who are from her village. Incident took place about six months ago. At that time, she was at her house. On the date of incident they went to watch movie and they came out for urinal purpose. Golap Kalindi was also with them, who is their elder cousin brother. When the victim did not return to the cinema hall of the garden, then her said brother searched them and also came to her house and asked them whether the victim had returned to the home or not and they replied in negative. She had stated that Puja Kalindi had informed Golap Kalindi that the accused persons had taken the victim with them from the place where she went to relieve herself. She had also informed that she was threatened by the accused persons that if she did not leave the place then same thing will be done like that of the victim. She had stated that on the night of the incident her mother had seen both the accused persons bringing back the victim with them. On being asked the victim told that both the accused removed her clothes from her body and did bad work with her. Accused were under the influence of alcohol and did not listen to the objection raised by the victim. In her crossexamination, PW- 6 had stated that she cannot say as to which place the victim went to urinate. She has denied that she did not state before the police that Puja Kalindi informed Golap Kalindi that both the accused persons had taken the victim with them; that Krishna Kalindi found both the accused persons bringing the victim with them by keeping her in between them; that victim told her that the accused person had done bad work with her after removing her clothes; that the accused person did not commit any bad work with her and did not remove her clothes. She had stated that she had also accompanied the victim for her medical examination. She had denied that she had deposed falsely for the sake of the victim, who is her sister.

34. Sima Kalindi was examined as PW-7. She had stated in her examination-in-chief that she knew the accused persons, namely, Monu Tanti and Dip Kalindi, who were present in the chamber of the Court on that day. She also knows X, the victim, who is the daughter of her uncle. On the date of incident she along with her husband Golap Kalindi, Puja Kalindi and the victim had gone to the playground of their Tea Estate to witness cinema and they were sitting adjacent to the victim and Puja Kalindi. After sometime, the victim and Puja Kalindi had gone out to attend nature's call. X was kidnapped by both the accused persons. Puja Kalindi came near us and informed that the victim has been kidnapped by both the accused persons. They then returned home and informed the matter before the relatives of the victim. After sometime both the accused persons were apprehended by the family members of the victim. Victim was also with them. X, the victim disclosed before her that the accused Dip Kalindi had committed rape upon her and co-accused Monu Tanti had undressed her forcibly. She had stated in her cross-examination that the urinal is situated at a distance away from where they were witnessing the cinema. People cannot hear anything from that place if someone cries for help. Many people were walking to and fro at the cinema place. The incident occurred at a tini-ali. She had stated before the police that victim was taken away by both the accused persons, which was intimated to them by Puja Kalindi, who accompanied the victim towards the urinal to attend natures call. She could not say if Puja Kalindi deposed falsely before them that both the accused persons had taken away the victim when they went to attend nature’s call.

35. The prosecution had examined the doctor, who had examined the victim, as PW-8. The doctor had stated that on 03.11.2017, she was posted at Jorhat Medical College and Hospital as Lady Medical Officer on duty. She had stated that on the said day, as per police requisition in connection with Pulibar P.S. Case No. 337/2017, under Section 376 of IPC read with Sections 6/8 of the POCSO Act, 2012, she had examined X, aged 15 years, escorted by Woman Homeguard Smt. Anowara Begum. She had stated that as per the version of the victim, on 29.11.2017, at about midnight she was forcibly taken away by the accused and his friend and was sexually assaulted. After taking consent, she had examined the victim and found the following:

                   “Marks of identification:

                   1). Small black mole on right cheek.

                   Mental State: Normal Intelligence & Memory: Normal General Examination: Within normal limit.

                   PHYSICAL EXAMINATION

                   Build: Average Height: 153 cm Weight: 35 kg Chest girth: 74 cm Abdominal Girth: 62 cm

                   HAIRS: Present. Scalp hair – 33 cm black in colour.

                   Breast & Nipple: Developed. No evidence of injury detected.

                   Teeth: 32 numbers.

                   MENSTRUAL HISTORY

                   Age at Menarche: At ten years.

                   Cycle: Regular Date of LMP: 02/11/2017

                   GENITAL EXAMINATION

                   Pubic Hairs: Present.

                   Vulva: No evidence of injury detected.

                   Hymen: Old tear at 6 o’ clock position.

                   Vagina: No evidence of injury detected.

                   Cervix: Clinically not palpable.

                   Uterus: Clinically not palpable.

                   Perineum: Normal, healthy. No evidence of injury detected.

                   INJURIES ON BODY

                   No evidence of injury detected.

                   Mental condition at the time of examination: Normal.

                   Radiological report:

                   1). The epiphysis of upper and lower end of humerus, radius and ulna are fused.

                   2). Epiphysis of ischial tuberosity is fused.

                   3). Epiphysis of B/L iliac crest not completely fused.

                   USG: No evidence of intra-uterine gestational sac.

                   In my opinion, as per physical, dental, laboratory and radiological examination of victim Miss Ritamoni Kalandi, I am of the opinion that –

                   1). Her age is above 18 years and below 20 years.

                   2). No evidence of physical injury detected.

                   3). No evidence of pregnancy detected.

                   4). No evidence of recent sexual intercourse detected.

                   Exhibit-2 is my report in three sheets. Exhibit-2 [1], Exhibit-2 [2] and Exhibit-2 [3] are my signatures.”

36. Md. Shams Uddin, the Second Officer of Pulibar P.S., who was the Investigating Officer (I.O. for short) of the case was examined as PW-9. He had stated that on 01.11.2017, he was posted at Pulibar P.S. as attached officer. He had stated in his examination-in-chief that on the said day Y, lodged an ejahar before the Sri Hrishikesh Hazarika, the then Officer-in-Charge of Pulibar P.S. and accordingly, Pulibar P.S. Case No. 337/17 under Section 376 of IPC read with Sections 6/8 of the POCSO Act, 2012 was registered. Ext.1 is the said FIR and Ext.1(2) is the signature of the then Officer-in-Charge of Pulibar P.S. He was directed to investigate the case. He had stated that after taking charge of the investigation, he visited the place of occurrence and drew a sketch map. Ext.3 is the said sketch map wherein Ext.3(1) is his signature. He then arrested the accused and forwarded them to the Hon’ble Court. He had recorded the statement of relevant witnesses of the case. Then victim was sent for her medical examination as well as to the Court for recording her statement before the learned Magistrate under Section 164 Cr.P.C. He had also sent Puja Kalindi for recording her statement before the learned Magistrate under Section 164 Cr.P.C. Then he collected the medical report of the victim and on completion of investigation, he had submitted the charge sheet against the accused under Section 376D of IPC, being charge-sheet no. 179/17 dated 30.11.2017. Ext.4 is the charge-sheet wherein Ext,4(1) is his signature. He had stated that witness Golap Kalindi had stated before him that on the date of the incident at around 1.00 AM. Puja Kalindi along with victim girl of this case went to relieve themselves. At that time both the accused persons, namely, Dip Kalindi and Munu Tanti gagged her mouth and took her to a narrow passage near a bamboo grove.

37. In his cross-examination, PW-9 had stated that he did not record the statement of Raju Gorh, Kalu Gorh or any other person from Hari Mandir as shown in the sketch map. Krishna Kalindi (PW-3) did not state before him that he was informed by Puja Kalindi that accused dragged the victim to a nearby passage; that incident took place at 10/11 PM; that he found the victim in between the accused and she was not normal; that accused threatened them; that victim did not tell him about the incident herself. He had stated that Miss Puja Kalindi (PW-4) did not state before him that the accused threatened her by telling that they will treat her like that of the victim but she told that the accused threatened her. He had denied that witness Golap Kalindi (PW-5) had stated before him that on the date of the incident at around 1.00 AM. Puja Kalindi along with victim girl of this case went to relieve themselves. At that time both the accused persons, namely, Dip Kalindi and Munu Tanti gagged her mouth and took her to a narrow passage near a bamboo grove . He had stated that witness Smt. Sarumai Kalindi (PW-6) did not state before him that Puja Kalindi informed Golap Kalindi that both the accused person have taken the victim with them; that Krishna Kalindi found both the accused person bringing the victim with them by keeping her in between them; victim told her that the accused person have done bad work with her after removing her clothes. Witness Smt. Sima Kalindi (PW-7) stated before him that victim was taken away by both the accused persons which was intimated to them by Puja Kalindi who accompanied the victim towards the urinal to attend nature’s call. He denied that it is not a fact that he had not done proper investigation of the case and submitted charge sheet without any basis.

38. The then Judicial Magistrate First Class, who had recorded the statement of the victim under Section 164 Cr.P.C. was examined as PW-10. She had stated in her examination-in-chief that on 06.11.2017, she was posted at Jorhat as Judicial Magistrate First Class. On that day, as per direction of the Chief Judicial Magistrate, she had recorded the statement of the witnesses X (Ext.5) and Puja Kalindi (Ext.6), wherein their signatures were exhibited as Ext.5(1) and Ext.6(1). They had put their RTI after recording of their statement before her. The witnesses were escorted and identified by woman Homeguard Anowara Begum of Pulibar P.S. Ext.7 is the order passed by the learned Chief Judicial Magistrate, Jorhat by which she had directed her to record the statement wherein Ext.7(1) is the signature of the learned Chief Judicial Magistrate, Jorhat. He had exhibited the order passed by her which contains that she had given reflection time to the witness as Ext.8. She had stated that the witnesses had given their statement voluntarily. After recording their statement, the case records were returned to the Chief Judicial Magistrate, Jorhat. In her cross-examination, PW-10 had stated that Puja Kalindi did not state before her that accused Deep Kalindi and Munu Tanti gagged her mouth and took her with them and she did not state before her that accused threatened her at the time of the incident.

39. Thus, from a perusal of the evidence of the witnesses, it is seen that for the offence of rape of the victim allegedly committed by the appellants, except for the victim, there is no other eye witness.

40. As per the oral evidence of X, the PW-1, on the day of the incident, she, along with her nobou, brother and sister had gone to watch a movie. Her nobou and her younger sister had fled from the scene out of fear when they saw the act of the accused. PW-7, Sarumai Kalindi, is the nobou of the victim; PW-6, Golap Kalindi is the cousin elder brother of the victim; and PW-4, Puja Kalindi, is her so called sister. Their presence at the cinema hall was not dislodged by the accused. The presence of PW-4 and PW-7 at the place from where the victim was kidnapped could not be dislodged by the accused.

41. However, PW-2, PW-3, PW-5, PW-6 and PW-7, though not direct eye witness to the commission of crime, are found to have supported the case of the prosecution by stating that they were told by the victim that she was made naked by the appellants after disrobing her and thereafter she was sexually assaulted by them. PW-2 had stated that the appellants had brought back the victim in between them.

42. The PW-2 had stated that the accused persons were carrying his victim daughter with them. The PW-2 had stated that Dip Kalindi had admitted that he had raped the victim, and the said statement could not be demolished during his cross-examination as the PW-2 was not confronted with his said statement.

43. The PW-3 had stated that after being informed by PW-4 that the victim was kidnapped by the appellants while she and the victim had gone to answer nature’s call to relieve themselves, thereupon, while searching for the victim, PW-3 found the victim girl with the accused persons, who had kept her in between them. Thus, the presence of the victim with the appellants, immediately after the commission of the alleged offence of sexual assault, has been proved by the prosecution. The evidence of PW-4 that she and the victim were together when they had gone to answer nature’s call and to relieve themselves in the urinal, which was away from the cinema hall, where the appellants had gagged the mouth of the victim and she was kidnapped, could not be dislodged. The statement of PW-1, PW-4, PW-5 and PW-7 that they had gone together to the tea garden cinema hall to watch the movie also could not be dislodged during cross-examination. On the said vital oral evidence, through the cross-examination of the I.O., no contradiction could be brought home by the defence.

44. The date of incident was 29.10.2017, but the victim was taken for her medical examination before the Medical and Health Officer-1, Jorhat Medical College & Hospital (PW-8) on 03.11.2017. Therefore, lack of sign of external injuries or reporting of old tear at 6’O Clock position, which was strongly stressed upon by the learned Amicus Curiae cannot help the appellants in any way because the oral evidence of PW-1 is found to be of sterling quality. No worthwhile contradiction could be shown by the learned legal aid counsel on material evidence regarding both the accused removing her clothes, making her naked, followed by rape, has remained un-impeached. As per medical literature available in the internet, 6’O Clock tear of hymen is the most frequent site for hymenal tear during intercourse or other penetrative acts. There was no crossexamination of PW-8 to evaluate the significance of hymenal tear on the victim.

45. The oral evidence by PW-1 that she was gagged and disrobed by both the accused and then raped by Dip Kalindi, who had forced his male organ into the private part of the victim forcefully, remains unshaken.

46. The nature of cross-examination of the I.O., was only regarding the oral statement given by PW-3, PW-4, PW-6 and PW-7, do not otherwise impeach the credibility of their oral testimony.

47. The Judicial Magistrate First Class, who was examined as PW-10 had stated that the statement of the victim and Puja Kalindi was recorded after giving them time for reflection. In his cross-examination, the PW-10 had replied that the victim did not state before her that both the accused had gagged her mouth with a cloth and that Puja Kalindi (PW-4) did not state before her that the accused had threatened her at the time of incident. In the opinion of the Court, those answers by the PW-10 neither has the effect of rendering the prosecution case as doubtful nor the minor contradiction has the effect of rendering the evidence of PW-1 and PW-4 as untrustworthy. In the said regard, the learned Special Judge is found to have correctly placed reliance on the case of Tahsildar Singh v. State of U.P., (1959) 2 SCR 875: AIR 1959 SC 1012 , Ganesh K. Gulve v. State of Maharashtra, (2002) 0 Supreme(SC) 833 , Sohrab v. The State of Madhya Pradesh, (1972) 3 SCC 751 , and Appabhai v. State of Gujarat, AIR 1988 SC 696: (1988) 0 Supreme(SC) 111.

48. The alleged offence of kidnapping and penetrative sexual assault on the victim happened at around 11.00- 12.00 midnight and in the ejahar, the informant dated 01.11.2017, had stated that as both the accused persons prevented them from coming to police station by making threats to his daughter, the lodging of the FIR got delayed. On the question delay on lodging of the FIR, as urged by the learned Amicus Curiae, it is seen that the PW-2, who is the father of the victim and informant in the FIR dated 01.11.2017, was not questioned during his cross-examination on delay, if any, in lodging the FIR. Thus, in the opinion of the Court, in this case, the delay in lodging of FIR would not be fatal.

49. The statement of the victim, which was recorded under section 164 Cr.P.C. appears to be consistent to the oral evidence of the PW1 recorded by the learned trial court. The defence could not bring out any inconsistencies between the statement made by the victim during her examination in chief compared to her previous statement made before the learned Magistrate under section 164 Cr.P.C.

50. As per the rough sketch map of the place of incident, which was exhibited as Ext-3, the place of occurrence is within the four boundaries which is a jungle surrounded by a bamboo grove and as per the statement given by PW in her examination-in-chief. In her cross examination, PW-7 had stated that the urinal is situated at a distance away from where they were witnessing the cinema and people cannot hear anything from that place if somebody cries for help. PW-7, namely, Sima Kalindi, is one of the three persons with whom the victim had gone to see the cinema.

51. The learned Trial Court is found to have given its reasons for not treating the victim as minor. As there is no cross-appeal by the State, the said aspect is not required to be examined in this appeal against conviction.

52. In this case, the evidence of the victim establishes that she was subjected to disrobing, kidnapping and rape. In this regard the learned Amicus Curiae had submitted that the oral evidence was contrary to medical evidence. In this regard, the Court upon examination of the evidence on record, has noticed that the offence took place on 29.11.2017 and the FIR/ejahar for the offence was lodged on 01.11.2017, but the victim was taken for her medical examination on 03.11.2017, i.e. after 5 (five) days of the commission of offence. Therefore, by the passage of five day’s time, obviously as the victim has not alleged that while being raped, she was subjected to violence by two adult male accused or that she had resisted the rape by struggling against two adult accused, there would be no evidence of any external injury. The sign of recent intercourse would be lost in five days delay in holding medical examination of the victim. However, in view of the unimpeachable evidence of the victim, the lack of sign of external injury and absence of sign of recent sexual assault upon the victim would not be fatal to the case of the prosecution.

53. As discussed hereinbefore, there is unimpeachable evidence by PW-1 and PW-4 that both the accused (appellants in both the appeals) had participated in the offence of kidnapping the victim. Although the victim has stated that the accused, namely, Dip Kalindi (also spelt as Deep Kalindi) had raped her by inserting his male organ into her vagina, but equally unimpeachable evidence by the victim is also to the effect that the other accused, namely, Munu Tanti had removed the clothes of the victim and had, thus, made her naked. Therefore, the appellants, as accused are found to have common intention to commit the offence of gang rape as defined by the provision of Section 376D of the IPC, with the ingredients of Section 376(2)(g) of the IPC. In this case, the prosecution, through the evidence of the victim (PW-1) and Puja Kalindi (also spelt as Pooja Kalindi) (PW-4) have established that two accused had acted in tandem and in furtherance of common intention and therefore, penetrative rape, though committed by the accused Dip Kalindi, would be construed to have been in active participation of Munu Tanti, the other co-accused as well. It is not the requirement of Section 367D of the IPC for the prosecution to prove that the actual rape must have been committed by both the accused in this case. The express and implicit participation of Munu Tanti, the other co-accused is self-evident because otherwise he had no reason to undress and/or disrobe the victim and make her naked. At the cost of repetition, it is reiterated that the victim has stated that the accused Dip Kalindi forced his male part into her vagina forcefully, and she has categorically denied the suggestion that the accused Dip Kalindi did not do bad work with her and accused Munu Tanti did not remove her clothes. Thus, the prosecution has been able to establish common intention and criminal mens rea of both the accused persons, with perfect meeting of mind of both the accused. Thus, the learned Trial Court is found to have aptly applied the ratio laid down by the Supreme Court of India in the case of Pramod Mahto & Ors. v. State of Bihar, (1989) Supp.(2) SCC 672, Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551, Priya Patel v. State of Madhya Pradesh & Anr., (2006) (6) SCC 263: (2006) 6 JT 303, Pardeep Kumar v. Union Administration, Chandigarh, (2006) 10 SCC 608.

54. Therefore, though the learned Amicus Curiae has ably assisted the Court in defending the appellants and to demonstrate that they are innocent and not involved in the crime and that they have been falsely implicated in the case, but the appellants have not been able to show that the victim or any other witnesses examined by the prosecution has any previous animosity against the appellants so as to trap them in a false case. The accused, the victim and the PW nos. 2 to 7 belong to the same village and they know each other. As a result, both the appeals fail and the same are being dismissed.

55. Resultantly, both the appeals are dismissed and the judgment and sentence dated 31.08.2021, passed by the learned Special Judge, POCSO, Jorhat, in Special Case No. 93/2017 by which the appellants were convicted for commission of offence under section 376D IPC and sentenced to undergo rigorous imprisonment for a term of 20 (twenty) years each and fine of Rs.15,000/- (Rupees fifteen thousand only) each with default stipulations are affirmed.

56. The learned Legal Aid Counsel shall be entitled to her usual honorarium for her able assistance to the Court.

57. Let the TCR be returned back along with a copy of this judgment and order, to be made a part of the record.

58. Let a free copy of this judgment and order be served on both the appellants.