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Judgment
1.Heard Mr. N. Uddin, learned counsel for the appellant and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam.
This appeal is directed against the judgment and order dated 19/11/2016 passed by learned Addl. Sessions Judge (FTC), Darrang, Mangaldoi in
Sessions Case No. 56(DM)/2015, whereby the accused/appellant was convicted u/s 354 IPC and sentenced to imprisonment for two years and fine of
Rs. 25,000/- with default stipulation.
As per prosecution case, on 21/03/2014, in the evening, when the victim went to the house of the accused for bringing her clothes, which were
given to him for stitching, the employees of the tailoring shop informed her, that her clothes were with the accused/appellant in his residence.
Accordingly, she went to the house of the accused. At that time, the accused was alone in his house and taking the advantage of absence of any other
person in the house, he molested the victim and had torn her clothes. Sensing someone was coming, he left the victim. She came home and informed
about the incident and her father lodged the FIR (Ext. 1), on the basis of which, police registered a case and after usual investigation, submitted charge
sheet u/s 324/354(A)/354(B)/506 IPC against the accused/appellant.
On the basis of said charge-sheet, initially learned Judicial Magistrate took cognizance and proceeded with the trial. However, after examining two
witnesses, learned Magistrate found the case to be triable by the court of sessions and accordingly, the case was committed to the Court of Sessions.
Eventually the accused stood trial before the court of learned Addl. Sessions Judge (FTC), Darrang, Mangaldoi.
In course of trial, learned Addl. Sessions Judge framed charges u/s 376/511 IPC, to which the accused/appellant pleaded not guilty. In order to
substantiate the charges, the prosecution examined seven witnesses, including the doctor and investigating officer. On appreciation of evidence,
learned trial court, having found the accused/appellant guilty of committing offence u/s 354 IPC, convicted him and awarded sentence as indicated
above.
Aggrieved, the accused/appellant preferred the instant appeal.
Learned counsel for the appellant submits that the eye witnesses, who were alleged to have been present at the place of occurrence, were not
examined and the sole testimony of the victim, on the basis of which, learned trial court recorded conviction, was not worthy of trust because of
various contradictions on material facts, and as such, the impugned judgment is required to be set aside.
Refuting the submission of the learned counsel for the appellant, learned Addl. P.P. submits that the contradictions and discrepancies pointed out by
the learned counsel for the appellant cannot be considered as significant to create any dent in the prosecution case and as such, the impugned
judgment warrants no interference by this court.
Out of seven witnesses, examined by the prosecution, PW 7 was the Investigating officer and PW 6 was the doctor, who examined the victim.
Though it appears from the testimony of the victim that some persons were present at the place of occurrence, who had witnessed the occurrence,
none of them was examined and learned trial court basically relying on the sole testimony of the victim (PW 2), convicted the accused/appellant.
The PW 2, victim, deposed that on the day of the incident, while coming from school, she went to the tailoring shop of the accused to bring her
clothes, where the employee of the shop informed, that her clothes were with the accused in his residence and accordingly, she went to the house of
the accused, where she met the younger brother of the accused, who informed that the accused was inside the house. When she went to the house,
the accused dragged her inside the house, laid her on bed, bite on her face and chest and also tried to unclothe her. Noticing his younger brother
coming, the accused left her. During cross examination, she deposed, that no rape was committed by the accused.
In her statement before the Judicial Magistrate recorded u/s 164 CrPC the victim stated at one point of time, that the accused caught her inside
the house and tried to molest her, but her grandmother PW 3 and the younger brother of the accused came there, who saved her from the clutches of
the accused. Again she stated that seeing her grandmother coming, the accused had fled away. Though the grandmother was examined as PW 3, the
brother of the accused was examined. PW 3, the grandmother of the victim in her evidence did not state that she went to the house of the accused
and saw the occurrence. Rather, according to her, after coming back home, the victim informed her about the occurrence.
PW 5, who happened to be the employee of the accused at the relevant time stated, that the victim was known to him as she used to visit the
tailoring shop for stitching clothes. According to him, he did not see the victim in the shop on the date of occurrence. PW 1 & PW 4 were only
reported witnesses, who knew about the occurrence later on, and as such, the evidence of these two witnesses is of no significance.
PW 6 was the doctor, who examined the victim on the next day of the occurrence. According to him, no injury on the body as well as the private
part of the victim was noticed by the doctor.
A dispassionate scrutiny of the oral testimony of the victim (PW 2) as well as PW 3, PW 5 and PW 6 transpires, that according to the victim, on
the day of occurrence, she went to the tailoring shop of the accused and having come to know from the employee of the shop (PW 5) that her clothes
were with the accused, she went to the house of the accused to bring her clothes. But such statement of the victim was not found to be supported by
PW 5. According to PW 5, the victim did not visit the tailoring shop, nor did he see her on the day of occurrence. Though PW 2 stated in her
statement recorded by the Judicial Magistrate u/s 164 CrPC, that her grandmother and the younger brother of the accused rescued her from the
clutches of the accused, such evidence of the victim was belied by the evidence of PW 3. According to PW 3, grandmother of the victim, she did not
go to the house of the accused. Â The PW 2, stated that there were injuries as the accused bite on her cheek and other parts of the body and the PW
3 also stated to have seen such injuries. However, the medical evidence does not support the testimony of PW 3 and PW 2, with regard to the victim
sustaining injury on her face or other part of her body. The evidence of PW 2, PW 3 & PW 6, make it appear that both the PW 2 & PW 3 made
exaggerated statement or improved their versions by stating that the accused bite the victim on her face and chest. The victim having been examined
by the doctor on the very next day of the occurrence, certainly the doctor would have noticed the injuries, had the victim really sustained any injury as
deposed by her.
It is no doubt true, that in case of sexual assault, testimony of the victim cannot be viewed with suspicion and the conviction can be based on the
sole testimony of the victim, provided the sole testimony of the victim is fully reliable and worthy of inspiring confidence. If the victim’s evidence is
found to be fully reliable, there is no need for seeking corroboration from any other source. But if the evidence of the victim suffers from infirmity or
there are circumstances creating doubt about the veracity of the testimony of the victim, it would certainly not be safe to record conviction on the
basis of sole testimony of the victim.
What is revealed from the scrutiny of the testimony of the victim and other attending circumstances, as discussed hereinabove is that the victim
failed to emerge as a witness of starling quality, worthy of placing full reliance, inasmuch as, the evidence of PW 5 apparently goes to rule out the
presence of the victim in the shop on the day of occurrence. Though it was stated specifically by the victim that the accused bite her causing injuries,
no such injury was found. The version of the victim during her examination u/s 164 CrPC was also found to be contradictory and inconsistent. At one
point of time, she stated that seeing her grandmother coming, the accused fled away. Again she stated that it was the grandmother and the younger
brother of the accused rescued her from the clutches of the accused. Whereas, in her evidence given in court shows, that she did not state about her
grandmother being present at the place of occurrence. The grandmother of the victim also did not support her. In view of all these discrepancies in her
evidence on material particulars, the testimony of the victim cannot be held to be dent less, nor she can be called a fully reliable witness. When the
witness, be it a victim or otherwise, is not fully reliable, it is not safe to base conviction on the sole testimony of such witness, reason being that the
basic principle of administration of criminal justice that prosecution has to prove the guilt of the accused beyond all reasonable doubt equally applies to
offence against women too.
The above facts and circumstances demonstrated that the prosecution story was shrouded, as the evidence brought on record were grossly
inadequate to bring home the charge against the accused beyond reasonable doubt, and as such, the accused was at least entitled to benefit of doubt.
The prosecution, having failed to prove the charge against the accused/appellant beyond reasonable doubt, the conviction and sentence of the appellant
is not sustainable. Accordingly, the appeal is allowed and the conviction and sentence are set aside.
Bail bond, if any, stands discharged.
Send back the LCR.