JUDGMENT
I.A. Ansari, J.
1. By the judgment and order, dated 30.06.04, passed in Sessions Case No. 188/2001, the learned Assistant Sessions Judge, Sonitpur, has convicted the accused-appellant under Section 376(2)(g) of the IPC and sentenced him to undergo rigorous imprisonment for seven years with a fine of Rs. 1,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of one month.
2. The case against the accused-appellant, as unveiled at the trial, may, in brief, be described thus: The victim, ‘D’, aged about 20/21 years, who is the daughter of the first informant ‘B’, came from the house of her parents, who live at Rangapara to Koliabor to attend a wedding. On 12/02/99, D’s maternal uncle took her from Koliabor to Tezpur, at about 11 -00 a.m., by a bus and at Tezpur, D’s uncle made her board into a bus, which was to proceed to Balipara and asked the driver of the bus i.e., accused Anand Mandal to drop ‘D’ at Balipara. In the said bus, accused Prakash Nath (i.e., the accused-appellant) was a handyman (i.e., helper). The bus reached Balipara with’ D’ as one of its passengers at about 3-00 p.m. On being asked by accused Anand (since absconder) to go to his residential quarter, ‘D’ accompanied the said two accused, to the residential quarter of accused Anand. Keeping, however, ‘D’ locked inside the said residential quarter alone, the two accused left the house. In the later part of the evening of that very day, both the accused returned to the said quarter, had meals and also some liquor and, then, forcibly had sexual intercourse with ‘D’. Accused Prakash, again, forcibly had sexual intercourse with ‘D’ at late hours of the night. As a result of such forcible sexual intercourse, ‘D’ started bleeding through her vagina. In the early morning of the following day, the two accused took ‘D’ to the bank of the river, located nearby and left her there. At the place, where ‘D’ was so left, ‘D’ happened to meet a woman named Neeru, who, on coming to know about what ‘D’ had been subjected to, got her (‘D’) sent to Balipara hospital for treatment and, eventually, her parents were informed. While ‘D’ was lying at the hospital for treatment, her father ‘B’ lodged a written Ejahar, on 13.02.1999, at Charduar Police Outpost. Based on this Ejahar and treating the same as F.I.R., police registered a case against the two accused aforementioned under Section 376(2)(g) I.P.C. During the course of investigation, the victim, ‘D’, was medically examined. During the course of investigation, the police also seized the wearing apparels of the victim, the bed-sheet, where the alleged sexual intercourse had taken place, and also the wearing apparels of the accused. These seized materials were sent to Forensic Science Laboratory for chemical examination. Some of these seized articles, on serological examination, were found to bear human blood stains. On completion of investigation, police laid charge-sheet against the two accused aforementioned under Section 376(2)(g) showing accused Anand Mandal as absconder.
3. To a charge framed against him, at the trial, under Section 376(2)(g) I.P.C., the accused-appellant pleaded non guilty.
4. In support of their case, the prosecution examined as many as eleven witnesses. The accused-appellant was, then, examined under Section 313 Cr.P.C. and in his examination aforementioned, the accused-appellant denied that they had committed the offence alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. Having found the accused-appellant guilty of the charge framed against him, the learned trial Court convicted him accordingly and passed sentence against him as mentioned hereinabove. Aggrieved by his conviction and the sentence passed against him, the accused-appellant has preferred the present appeal.
5. I have heard Mr. S.C. Biswas, learned Counsel for the accused-appellant, and Mr. D. Das, learned Additional Public Prosecutor, Assam.
6. While considering the present appeal, what is of immense importance to note is that it is the alleged victim, ‘D’ (PW 6), around whose evidence revolves the entire case of the prosecution. Necessary it is, therefore, that her evidence is minutely and dispassionately scrutinized in order to ascertain if her evidence can be believed in or safely relied upon.
7. Bearing in mind what has been indicated above, when I turn to evidence of PW 6, what I notice is that according to her evidence, after having spent about five days at the house of her maternal uncle at Nagaon, she came alongwith her maternal uncle to Tezpur and, on reaching Tezpur, her maternal uncle put her in the bus, which had the present accused-appellant, namely, Prakash Nath, as a handyman, and accused Anand Mandal (since deceased) as its driver. It is in the evidence of PW 6 that while putting her in the bus, her maternal uncle told the driver and the handyman to drop her at Balipara. The bus was accordingly taken by the driver to Balipara and on reaching there at about 3.00 p.m., the two accused took ‘D’ to a nearby restaurant and offered her tea and, thereafter, accused Anand suggested that she could go to his residential quarter and she, then, accompanied by the two accused, went to the residential quarter of accused Anand. It is also in the evidence of PW 6 that accused Anand had told her that she (PW 6) would find his wife at the quarter, but when she did not find accused Anand’s wife at his quarter, she wanted to go out, but both the accused closed the door from outside and left. The two accused, according to PW 6, came back, at about 7.30 p.m., to the quarter and cooked rice, fish, etc. and, then, they had alcohol and they also offered alcohol to her and though she declined to consume alcohol, both the accused threatened that they would kill her and, thus, forced her to drink alcohol. PW 6 has deposed that both the accused, then, put her on the bed and forcibly had sexual intercourse with her one after the other. PW 6 has also deposed that at about 12 O’clock at night, accused Prakash Nath got up on her and continued to have sexual intercourse with her till about 3-00 a.m. and as a result of such sexual intercourse, she started bleeding from the vagina. The blood, which so came out, had smeared, according to PW 6, not only her wearing apparels, but also the bed sheet and the wearing apparels of the accused-appellant.
8. Giving further details about the occurrence, PW 6 has deposed that on the following day, early in the morning, both the accused took her to the bank of the river located nearby and left her under a tree there. PW 6 has also deposed that while she was present, where she had been left by the accused, a woman named Neeru came there and, on being informed by PW 6 as to what she had been put through, the said woman informed the local persons and also Mahila Samiti and, then, they took her to Balipara hospital, where the police came and, thereafter, she was taken to Tezpur Civil Hospital, where she was treated.
9. Close on the heels of the evidence of PW 6 is the evidence of the doctor (PW 8), whose evidence is to the effect that on examining ‘D’, on 13.02.1999 at about 2-00 p.m., at the Civil Hospital, Tezpur, he found, inter alia, that vulva and pubic hair were matted with blood clots and that there was a tear in her vagina.
10. Lending support to the evidence of PW 6, the Investigating Officer (PW 7) has deposed, inter alia, that he had seized the wearing apparels of PW 6 and also the bed sheet, etc. from the quarter of the accused and the same, on serological examination, were found containing human blood stains.
11. From a careful examination of the evidence of PW 6, coupled with the medical evidence on record and also the evidence of the Investigating Officer, there remains no doubt that PW 6 had undergone sexual intercourse at the residential quarter of accused Anand. Despite the fact that PW 6 has been subjected to detailed cross-examination, nothing could be elicited by the defence to show that her evidence given to the effect that the two accused had sexual intercourse with her is unfounded or unbelievable. Far from this, her evidence to the extent that the two accused had sexual intercourse with her stands proved beyond any shadow of doubt. The question, however, which still remains to be answered is as to whether the sexual intercourse, which PW 6 underwent, was or was not without her consent.
12. While considering the above aspect of the case, it is pertinent to point out that in terms of the provisions of Section 375 IPC, a man is held to have committed rape, when he has sexual intercourse with a woman against her will or without her consent. In view of the fact that in the case at hand, there is no dispute that PW 6 was aged about 20/21 years at the time of the occurrence, the sexual intercourse, which a man may have with her, would not constitute offence of rape unless such sexual intercourse is against her will or without her consent.
13. Coupled with the above, what is equally important to note is that when sexual intercourse by an accused is proved and the question is as to whether such intercourse was without consent of the woman alleged to have been subjected to rape, the Court shall, under the provisions of Section 114A of the Evidence Act, presume that the woman did not consent if she states, in her evidence before the Court, that she did not consent. In the present case, it is the evidence of PW 6 that the sexual intercourse, which the two accused had with her, were without her consent and, in fact, against her will. In a situation, such as the present one, incumbent it is, on the part of the Court, to presume that PW 6 had not given consent to the sexual intercourse, which the two accused had with her. This presumption is, however, rebut table. Though the onus lies on the accused to show that the consent to sexual intercourse existed in a given case, the burden of proof on the accused is not as heavy as on the prosecution. If the evidence on record probabilities the plea of the defence that the sexual intercourse, which the accused is alleged to have had with the prosecutrix, was with her consent, the burden of the defence shall stand discharged.
14. Bearing in mind what have been indicated above, when I revert to the evidence of PW 6, what I find impossible to ignore is the fact that the two accused were not relatives or friends of PW 6. The evidence on record shows that PW 6 had been brought to Tezpur by her maternal uncle and was put into the bus aforementioned so that she could be taken to Balipara and when she got down at Balipara, she had absolutely no reason for not going to her house and, instead, go to the house of accused Anand. Let us assume, for a moment, that PW 6 was deceptively taken to the house of accused Anand and she was left by the two accused there and the doors of the house were closed from outside. In such circumstances too, there is no reason as to why PW 6 had not raised hue and cry and/or make any attempt to attract the attention of the neighbours, though her explicit evidence is that there were other residential quarters around the quarter of accused Anand. There is absolutely no whisper, in her evidence, that when the two accused left her at the said quarter, she had been given any threat or that the accused had threatened to kill or harm her if she raised hue and cry. In such circumstances, complete silence of PW 6, when she remained alone in the house of accused Anand, eloquently speaks that she remained at the said quarter willingly and not under any kind of threat or compulsion. It is also curious to note that according to her evidence, the doors of the said quarter were lying open till about 10 O’clock at night and she had seen the nearby quarters having lights on. Her evidence does not explain at all as to why she had not, even in the evening, raised alarm and/or attempted to attract attention of the neighbours, particularly, when even at this stage, according to her evidence, she had not been given any threat. In fact, her clear evidence is that while the two accused were cooking food, she was sitting silently on the bed with the doors ajar. When the two accused were busy in cooking food and the doors of the said quarter were lying open, there was no reason for PW 6 not to have raised hue and cry or not to have tried to get out of the house. Such ominous silence of PW 6, exhibition of complete lack of resistance on her part and her complete omission to raise any hue and cry are glaringly noticeable circumstances, which leave no room for doubt that she remained at the said quarter willingly.
15. While proceeding further with the evidence of PW 6, what attracts the eyes is that after she and the two accused had meals, the two accused took her to their bed and accused Anand was the first one to have sexual intercourse with her. It is at this stage and for the first time, at the trial that PW 6 claims that when she resisted, accused Anand showed her a dagger and intimidated her. Surprisingly enough, however, when her statement was recorded by the police, she did not state that any dagger had ever been shown to her by any of the accused and/or that she had been intimidated, on the point of a dagger, to succumb to sexual intercourse. The assertion of PW 6, made for the first time, at the trial, that she had been intimidated substantiates the impression that the sexual intercourse, which the accused had with her, was with her consent, otherwise, there was no reason as to why she had not stated before the police that it was because of the threat given to her by showing a dagger that she had succumbed to the sexual lust of the accused.
16. What is, however, now, necessary to point out is that it is in the evidence of PW 6, as already indicated hereinabove, that accused Prakash got up on her at about 12 O’clock at night and continued to have sexual intercourse with her till about 3.00 a.m. and it was then that she started bleeding. When a woman, who might have consented to have sexual intercourse at one stage, offers resistance to sexual intercourse at a subsequent stage, any further sexual intercourse, after the consent of the woman ceases, would constitute an offence of rape. Viewed thus, it is clear that even if the sexual intercourse, which the two accused, at the initial stage, had with the PW 6 were with her consent, the subsequent sexual intercourse, which accused Prakash had with P W 6, would still constitute offence of rape if no consent for the subsequent sexual intercourse existed.
17. While, however, considering the above aspect of the case, it is of paramount importance to not that unlike the victim of any other offence, whose testimony may necessitate corroboration, the victim of a sexual assault needs no corroboration, for, she is not an accomplice. There is, therefore, no impediment in law in founding conviction of an accused on the sole testimony of the victim of rape. Founding of such conviction on the sole testimony of a victim is possible even if not supported by medical evidence or other evidence on record provided that her testimony inspires confidence of the Court and the Court is in a position to hold, confidently and boldly, that she is a wholly reliable witness.
18. It may be noted, at this stage, that witnesses fall in three distinct categories. There are witnesses, who are wholly reliable. Conviction of an accused can be safely based on the evidence of a witness, who is wholly reliable. There may be witnesses, who are found to be wholly unreliable. The evidence of such witnesses are to be completely discarded. There is yet another category of witnesses, who may be neither wholly reliable nor wholly unreliable. Before the evidence of such a witness is relied upon to convict an accused, imperative it is that the Court is satisfied that the evidence of such witness has been corroborated by trustworthy and reliable evidence; such corroborative evidence may be either direct or circumstantial. In short, the evidence of a witness, who is neither wholly reliable nor wholly unreliable, cannot be relied upon for the purpose of founding conviction of an accused without corroboration thereof, either direct or circumstantial.
19. In the present case, the evidence, as analyzed above, clearly reflects that PW 6 is not a wholly reliable witness inasmuch as her evidence, when closely analyzed, leaves no room for doubt that she willingly went to the residential quarter of accused Anand, she remained there willingly and had sexual intercourse with the two accused with her consent. In such a situation, I find considerable force in the submissions made, on behalf of the accused-appellant, that had PW 6 not suffered from tear on her vagina or bleeding from her vagina, the fact that she had undergone sexual intercourse, at the residential quarter of accused Anand, might not have ever come to light or become known. The solitary testimony of a witness, such as PW 6, cannot be made basis for conviction of the accused-appellant merely because of the fact that a tear was noticed on her vagina, particularly, when even in the case of normal and willing sexual intercourse, a woman may suffer injury, such as, a tear on her vagina. Since this Court has disbelieved the evidence of PW 6 that she had been forcibly kept by the two accused at the residential quarter and that she had been forcibly subjected by them to sexual intercourse, it is wholly unsafe to rely upon her sole testimony that the accused-appellant’s sexual intercourse with her, at any stage, was without her consent.
20. When the evidence on record eloquently speaks that PW 6 had sexual intercourse with her consent, the mere fact that there was tear on her vagina and the same led to the bleeding cannot be made the sole basis for treating the evidence of PW 6 as wholly reliable and hold that the sexual intercourse, which the accused-appellant allegedly had with PW 6, was without her consent.
21. In the circumstances as indicated hereinabove, it cannot be held that the testimony of PW 6 is safe enough to make the foundation of the conclusion that the sexual intercourse, which the accused-appellant allegedly had with PW 6 after 12 O’clock at night, was without her consent.
22. What crystallizes from the above discussion of the evidence on record is that the present one is a case, wherein the evidence adduced by the prosecution is nothing, but an admixture of half-truth and untruth. The truth, if any, is so inextricably mixed with the untruth and half-truth that it has become impossible to disengage the truth from falsehood. In the facts and circumstances of the present case, the accused-appellant ought to have been accorded, at least, benefit of doubt.
23. Because of what have been discussed and pointed out above, I am firmly of the view that the evidence on record was grossly inadequate to hold the accused-appellant guilty of the offence under Section 376(2)(g) IPC. At any rate, in the face of the evidence on record, the present accused-appellant ought to have been accorded benefit of doubt.
24. In the result and for the reasons discussed above, this appeal succeeds. The impugned judgment and order of conviction and sentence shall accordingly stand set aside. The accused-appellant is held not guilty of the offence under Section 376 (2)(g) IPC and is acquitted of the same under benefit of doubt.
Let the accused-appellant be set at liberty forthwith unless is required to be detained in connection with any other case.
Send back the LCR.