Gauhati High Court: While deciding the instant appeal against decision passed by the Sessions Judge, Udalguri convicting the accused-appellant under Sections 448 and 376 of Penal Code, 1860 and sentencing him to undergo rigorous imprisonment, the Bench of Arun Dev Choudhury, J.*, did not find the deposition of victim having sterling quality and trustworthy enough to uphold the conviction of the accused-appellant. The Court stated that law is well settled that there can be a conviction in a case of rape when the victim’s deposition is deemed to be trustworthy, immaculate, and credible and her evidence is of pristine quality. The Court was of the opinion that inconsistencies in the deposition of the victim and prosecution witnesses in the instant case created not only serious doubt regarding the nature of the alleged sexual offence but also credibility of the deposition of the victim herself.
The prosecution was launched based on an FIR lodged by the informant/victim by alleging that on 03-10-2019, while her husband was not at home, the accused-appellant taking the advantage of absence of other family members entered into the residence of the informant and made an attempt to outrage her modesty.
Subsequently, a chargesheet was prepared against the accused-appellant and he was tried before the Sessions Court. The accused-appellant did not lead any evidence. The prosecution was able to bring home the guilt leading to the conviction and sentencing of the accused-appellant.
Aggrieved with the impugned decision, the instant criminal appeal was filed.
In order to determine the validity of the impugned judgment, the Court perused the deposition of the prosecution witnesses. The Court observed that conviction in a sexual offence is possible by sole testimony of the victim without any corroboration if such testimony is of sterling quality.
However, in the instant case the Court noted that if one looks into the FIR, the case projected is that the accused-appellant attempted to rape the victim in absence of her family members. In her deposition before the Trial Court, she testified that the accused-appellant forcefully raped her. In her examination in chief, she further deposed that the accused-appellant raped her for about half an hour. The vital witnesses according to her are 2 persons who came to the place of occurrence after hearing her hue and cry these two persons were neither listed as witnesses nor they were examined. Thereby revealing a vital lacuna in the investigation.
In the instant case the deposition and testimony of PW-1 and PW-2, creates a doubt whether this was a rape or a consenting act, as, the PW-2 who witnessed the incident did not term the incident as rape but an illegal act being committed by both the accused-appellant and the victim. Furthermore PW-2 did not state anything that either the victim was struggling or raised any hue and cry.
Furthermore, the medical report did not disclose nay marks of violence. “According to PW-1, she was raped for half an hour and she was resisting and raising hue and cry. Therefore, if such an act happens for half an hour and she was resisting, the same will definitely indicate some minimal kind of evidence of injury or mark of violence. This fact has also created a doubt in the mind of this Court for the reason that initial allegation was of attempt of rape, however, in the deposition it was a specific case of rape, that too for a period of half an hour”.
With the afore-stated perusal, the Court was of the view that inconsistencies riddled the statements made by the prosecution witnesses. Due to the victim's deposition not being of sterling quality, the Court thus deemed it fit to set aside the impugned decision of the Sessions Judge, Udalguri.
[Raham Ali v. State of Assam, Crl.A./129/2022, decided on 08-08-2023]
*Judgment by Justice Arun Dev Choudhury
Advocates who appeared in this case :
For appellant- M.K. Hussain
For the respondent- K.K. Parashar (ADDL.PP, ASSAM)