State of Sikkim vs Anu Hang Subba

Sonam Phintso Wangdi, J.

This Appeal filed by the State-Appellant under Section 378 of the Code Criminal Procedure, 1973, seeks to assail the judgment dated 29-03-2014 of the Judge, Fast Track Court, South and West Sikkim at Namchi, in F.T. (S.T.) Case No. 56 of 2013, against the order of acquittal of the Accused-Respondent, Anu Hang Subba, for the offences under Sections 341/376 of the Indian Penal Code, 1860 (for short "IPC").

The genesis of this case is traced to an FIR lodged at the Soreng Police Station, West Sikkim, by one Man Raj Subba, P.W. 4, son of Late Nar Dhoj Subba, resident of Thongling, Dodok Block, West Sikkim, on 18-06-2013, stating that it was revealed by his mother, prosecutrix, P.W. 1, that she was raped by one Anu Hang Subba, Accused-Respondent, on 16-06-2013 at around 07.30 p.m. to 08.00 p.m. near their house when she was returning home from the house of his paternal uncle.

The consequential investigation resulted in a charge-sheet being filed against the Accused-Respondent under Sections 341/376 IPC who was sent up for trial before the Fast Track Court, South and West Sikkim at Namchi, which, after the trial, acquitted him having found that the prosecution had failed to prove its case beyond reasonable doubt.

The principal ground raised in the Appeal is the Trial Court having not accepted the evidence of the prosecutrix, P.W. 1 and the corroborative evidence of P.Ws. 5, 6, 17 and 18.

The Appellant-State has particularly referred to the findings of the Fast Track Court in paragraphs 60, 61, 62 and 63 of the impugned judgment where it has discussed the evidence by which it had come to the impugned finding.

It is a settled position of law that conviction for offence of rape can be held against an accused on the sole basis of the evidence of the prosecutrix provided that it is found to be convincing and reliable. Corroboration is sought for in the event of such evidence being wanting in definiteness.

In the present case, the Fast Track Court did not find the evidence of the prosecutrix convincing and reliable. Even the principal witnesses who could corroborate the evidence of the prosecutrix, also were found to be unreliable.

In the light of the questions thrown by the prosecution in this Appeal, let us now analyse the evidence. In her examination-in-chief of the prosecutrix, P.W. 1, has no doubt stated that the Accused-Respondent had grabbed and pulled her and started opening her clothes of the lower body and, that she was unable to scream as he had covered her mouth while committing rape on her. Further, that two days later she narrated the incident to her daughters, namely, Ambika Subba, P.W. 5, Raj Mati and Chandra, which led them to reporting the matter before the Police. The incident is said to have taken place at 07.30 p.m. close to her house when she was returning after visiting her brother, Nar Bahadur Subba. In her cross-examination, however, she has stated that she was 63 years old having problems of the eyes due to which she was unable to see properly and that there were many persons in her village having similar physique as that of the Accused-Respondent. It has also been stated by her that somebody had focused torch light on her fact but was unable to say who it was and that she did not scream even after the incident or seek help from anyone. It has also been revealed that she did not have cordial relationship with the Accused-Respondent. It was only after two days, i.e., 18-06-2013, that she informed her daughter, Ambika Subba, P.W. 5 of the incident and that too, after repeated questioning. P.W. 5, has corroborated this part when it is stated in her evidence that on finding her mother unwell from 16-06-2013 to 18-06-2013, she inquired from her about her illness and the marks on various parts of her body and after repeated questioning, she finally told her and cousin, Meena Hangma Limboo, P.W. 12, whom she had called, that she was raped by the Accused-Respondent on 16-06-2013 at around 7.30 p.m. to 8.30 p.m.

P.W. 12, Meena Hangma Limboo, the other material witness, relied upon by the prosecution, deposed that the prosecutrix who was her paternal aunt had come to her house and left about 7.30 p.m. after watching television programme and, that after 5 to 10 minutes of her departure she saw the Accused-Respondent also proceeding towards her aunt''s house. She has corroborated the evidence of P.W. 5 that she was called to her house as her aunt, Phip Rani Subba, was unwell and that after repeated inquiries made by them, she finally disclosed that she had been raped by the Accused-Respondent two days before. That she also noticed bruises all over the body of her aunt and thereafter, they reported the matter to the police.

When we consider the evidence of prosecutrix in her examination-in-chief, it does appear to be quite convincing but, her cross-examination corrodes those where it has come that her vision was defective due to eye problem which raises doubts on her testimony that it was the Accused-Respondent and none other, who had grabbed her and committed the offence, particularly, having regard to the fact that darkness had set in as the incident had taken place between 07.30 p.m. to 08.30 p.m. and that there were others who were of similar physique as that of the Accused-Respondent.

Apart from the above, it is also admitted by her that someone had aimed torch light on her face but, she was unable to say who it was. She did not raise alarm when she was grabbed by her hand. Even if it is accepted that her mouth had been covered by the assailant at the time of the sexual assault, she ought to have done so as soon as she was released but, admittedly she did not. The other circumstance that further compounds the doubtful nature of the evidence is that she neither informed her daughter P.W. 5 who apparently was living with her or the Police immediately after the incident but, did so only after two days of the incident implicating the Accused-Respondent. Although the Investigation Officer, P.W. 18, has deposed that the prosecutrix had remained silent because she felt shy, the prosecutrix herself has not stated this in her evidence.

No doubt the evidence of the Gynecologist, Dr. Tukki Dolma Bhutia, P.W. 17, reveals multiple injuries on her vaginal region and body but the crucial question is as to whether it was the Accused-Respondent who had committed the sexual assault on the prosecutrix notwithstanding her evidence that the injuries could be reasons other than sexual assault which, in any case, has not been mentioned in her medical report, Exhibit 16, an aspect of the evidence which also goes against the prosecutrix.

The prosecution also failed to examine Raj Mati and Chandra, the other two daughters of the prosecutrix besides Ambika Subba, P.W. 5, who, as per her, were also present when she had narrated the incident. At the same time, P.W. 5, as noted earlier, has not mentioned of the presence of these two except for that of P.W. 12 alone.

The evidence of Man Raj Subba, P.W. 4 and Ambika Subba, P.W. 5, the son and daughter of the prosecutrix respectively, are based on the information of the prosecutrix and, therefore, obviously hearsay. These could have assumed some value as corroborative pieces of evidence, weak as they are but, even this dissipates considering the unreliable quality of the evidence of the prosecutrix as already alluded to. Apart from these, the fact that the prosecutrix and her family did not enjoy cordial relation with the Accused-Respondent as revealed from her evidence further corrodes the prosecution case.

For the aforesaid reasons, I am inclined to agree with the Judge, Fast Track Court, that it would be extremely unsafe to rely upon such evidence to hold the Accused-Respondent guilty of the offence.

Under such circumstance, the other aspects of the prosecution case as regards the lifting of the mud from the place of the occurrence, seizure of the wearing apparels of both the prosecutrix and the Accused-Respondent for examination by CFSL Kolkata and also collection of vaginal swab of the prosecutrix and, the lifting of samples of pubic hair and the swab of the penile shaft of the Accused-Respondent, would be inconsequential. In any case, CFSL report pertaining to the mud sample and wearing apparels were never filed by the prosecution. Even the vaginal and perineal swabs taken from the prosecutrix as well as the swabs from urethral and shaft of penis taken from the Accused-Respondent, as per reports of the Pathologist, Exhibits 11 and 14 respectively, did not contain any evidence of spermatozoa.

In view of the above facts and circumstances, I find no reason to interfere with the findings of the Fast Track Court in the impugned judgment and, therefore, find no merit in the Appeal.

In the result, the Appeal is dismissed.

A copy of this judgment and the original case records be transmitted to the Fast Track Court, South and West Sikkim, at Namchi, forthwith for its compliance.