Judgment:
H. Barua, J.
1. The appellant, Md. Ikramul Haque, @ Ikram Hussain, son of Md. Kasim Ali of Village Muslimghopa under Sipajhar Police Station, District Darrang, was tried by the learned Sessions Judge, Darrang, Mangaldoi under Section 376 IPC and convicted and sentenced him to suffer 7(seven) years Rigorous Imprisonment with fine of Rs. 10,000/- (Ten thousand) in default to R.I. for another 6(six) months in Sessions Case No. 16(DM) 1998 corresponding to GR. Case No. 512/1997.
2. Challenging the legality and correctness of the judgment so rendered by the learned Sessions Judge preferred this instant appeal on various grounds, which may be summarized as under:
(i) For that the impugned judgment and order dated 10.04.2002 passed by the Sessions Judge, Darrang, Mangaldoi is erroneous in as much as bad in the eye of law and facts.
(ii) For that the learned Court below failed to appreciate the evidence on record in proper perspective and came to an erroneous finding on the basis of conjecture and surmise.
(iii) For that the trial Court below has not applied his mind in proper perspective to the defence set up by the accused/ appellant and consequently there has been a failure of justice.
(iv) For that the learned trial Court below erred in law as well as fact while assessing the evidence on records. The prime prosecution witness stated contradictory and conflicting views on major point of fact as well as law and as such the prosecution suffers from material contradiction and the appreciation of which by the learned sessions judge, caused miscarriage of justice.
(v) For that the learned trial court below convicted the accused/appellant without any cogent and conclusive evidence. The statement of the prime prosecution witness were not corroborated by other witness nor supported by any independent witness and as such the judgment and order suffers from material defect and liable to be set aside and quashed.
(vi) For that the learned trial Court below committed grave error in non considering the Medical reports properly which confirmed that there were no external and internal injuries and no rape committed on the victim girl. The victim girl was examined and the Doctor reported that no rape took place.
(vii) For that the learned trial court below committed a grave error in considering the very FIR which itself was a manufactured one. From the deposition of the informant and the victim girl it seems that 2(two) number of F.I.Rs were filed-one by the informant and another one was forced bythe police at Sipajhar P.S. which is evident from the deposition of the victim girl in cross examination. She stated in her cross examination that she and her mother (the informant) were called by the police and made to writ an F.I.R. Therefore it is not known which F.I.R. was accepted by the police and subsequently the case was registered.
(viii) That trial court below erred in law as well as fact in considering the age of the victim girl. In her statements she said her age was 15 years at the time of the alleged incident, whereas her mother, the informant in her statements Under/Section 161/ Cr.P.C. stated that the age of the victim girl is about 25 years. In the medical report although the Doctor who examined her tentatively stated that she is about 15 years but he was not sure, for which he referred the victim to Gauhati Medical College for ascertainment of her age only. But neither the report nor the Doctor of GM.C. was examined by the learned trial Court. Hence the impugned order is devoid of any legal basis and liable to be set aside and quashed.
(ix) For that the learned trial court below acted ih a very mechanical and arbitrary manner which is clear from the fact that the alleged accused who was aged 18 years 10 months only at the time of the alleged incident and also studying in the College could have been considered Under/Section 6 of the Probation of Offenders Act, 1.958 while passing the sentence of conviction. The learned trial Court did not mentioned about the provisions of this act while passing the same. As such the judgment and order dated 10.04.2002 is bad in law and liable to be set aside and quashed.
The appellant under the above premises prays this Court to set aside and quash the impugned judgment and order of conviction.
3. The facts of the case are as follows:
(a) Victim, Rausanara Begum (PW2) is the daughter of Miss Bulu Bibi (PW1). Rausanara Begum was engaged as maidservant in the house of the appellant at a monthly salary of Rs. 200.00 (Two hundred). The appellant on different pleas committed, rape upon the victim for 3 (Three) days at his residence. On the last occasion the mother of the appellant saw both the appellant and the victim in a compromising position. Victim was assaulted by the mother of the appellant. Victim fled away and reported the incident to her mother (PW1). Bulu Bibi (PW1) brought the matter to the notice of the police by filing an F.I.R. (Ext. 1). Sipajhar Police Station accordingly registered a case under Section 376 IPC and commenced investigation. Victim was produced before a doctor at Sipajhar C.H.C. for her medical examination. Victim was thereafter referred to GM.C.H. for further investigation on her. Victim girl (PW2) was also examined under Section 164 of the Cr.P.C by a Judicial Magistrate, Smti. Arunima Deka. After completion of investigation police laid charge-sheet against appellant under Section 376 of the I.P.C.
(b) The case was committed. Charge under Section 376IPC was framed. The appellant pleaded not guilty and claimed trial. Trial commenced. Prosecution examined 5(five) witness altogether. No defence witness was examined, nor any document was proved. Appellant was examined under Section 313 Cr.P.C. The defence plea is that of false implication. At the conclusion of the trial, learned Sessions Judge convicted the appellant and sentenced as above. Hence, this appeal.
4. Heard Shri A.M. Mazumdar, learned senior counsel, assisted by Mrs. H.A. Choudhury, Mr. R. Islam, Mr. D. Das, learned Counsel for and on behalf of the appellant. Also heard Shri B.S. Sinha, learned Addl. Public Prosecutor, Assam, for and on behalf of the respondent, the State of Assam.
5. Shri A.M. Mazumdar, learned senior counsel appearing for and on behalf of the appellant at the very out set of his argument submitted that the entire prosecution is an outcome of concoction and engineering on account of alleged non-payment of salary of the victim as desired by her parents for which there arose animosity between the parties. Shri Mazumdar, in support of his contention has led us through the contention of the F.I.R. (Ext. 1) wherein some statements have been made by the first informant (P W1), the mother of the victim regarding non-payment of 16,800.00 (Sixteen thousand eight hundred) to them by the father of the appellant for rendering service by her daughter to their family as maid-servant. In the FIR it is also found that victim (PW2) served the family of the appellant for 7 (seven) years together relentlessly. Significantly, the FIR Ext. 1 also contains an allegation of rape on the victim by the appellant. It was argued taking aid of the statement of non-payment of the salary, that the instant case was filed with vengeance and to harass the appellant and his family members. The fact of non-payment of monthly salary/remuneration got more highlighted than the allegations of rape. That apart, incorportion of the name of the father of the appellant as an accused of the case gives another reason to ponder over the truthfulness of the allegations of rape, Shri Mazumdar argued. This enmity, according to Shri Mazumdar, took the shape of the case of the nature against the appellant and the witnesses resorting to falsehood became successful in recording the judgment of conviction of the appellant.
6. This FIR (Ext.1) was admittedly filed by P.W. 1 (Bulu Bibi), the mother of the victim (PW 2). While Bulu Bibi was in the witness box, she was not cross-examined by the defence in regard to non-payment of monthly salary and in regard to the truth of allegation. Defence mainly concentrated to the allegations of rape. No importance was given on the allegation of non-payment of monthly salary while cross-examining PW 1. The appellant merrily sat over the matter without any challenge to the allegation. Now the appellant suddenly woke up from deep slumber and challenged the case of the prosecution as false and concocted.
7. An FIR is not a substantive piece of evidence. It can however be used by the prosecution for corroboration and contradiction by the defence. In short, it can be used for corroboration and contradiction FIR is not required to contain all the facts. It is an instrument, which enables the police to take up the investigation of the allegations contained therein. Since the FIR (Ext. 1) contains a different allegation that of the allegation for which the case started, veracity of the prosecution case cannot be called in question or discredited by making an argument on the basis of the FIR. The statement of nonpayment of Rs. 16,800/- by the father of the appellant was never disputed to the maker of the FIR.
8. Shri A.M. Mazumdar, learned senior counsel for the appellant also criticize the case of the prosecution that it cannot be relied upon in view of the evidence of PW2. PW2 in her evidence admitted of going to police station on several occasion and further stated that S.I. Intaz Ali (PW 5) asked them to file an FIR. Shri Mazumdar argued and also put more emphasis that missing of the other FIR, which was filed on the behest of the S.I. Intaz Ali put cloud over the truthfulness of the prosecution case and further submitted that S.I. Intaz Ali is the brain behind of this case. Visiting of police station by a man on several occasions cannot mean and result that several FIRs were lodged with police. The complainant partymight have visited the police station for more than once. This fact ought not therefore mean that the complainant party lodged more than one FIR. PW 5 is the Investigating Officer of this case. He was cross-examined by the defence at length. No such question was ever been put to him. Therefore, the evidence of PW 2 that they had been to the police station more than once cannot form the basis of rejection of the case of the prosecution. The evidence of PW 5 does not speak more than the present FIR Ext.1).
9. The above two criticisms were also dealt with by the learned Sessions Judge. The learned Sessions Judge rightly rejected the argument of the appellant by projecting a cogent and sound reasoning. This Court also finds no force in the arguments advanced by Mr. Mazumdar, learned senior counsel. The facts which do not receive, any challenge during trial cannot be agitated at the appellate stage. This Court finds no force in the argument of Mr. A.M. Mazumdar.
10. Now, it would be our solemn effort to look into whether the learned trial Court committed any illegality in recording conviction of the appellant in the face of the facts and law laid down therein. It is a general prudence on the part of the Court to look for corroboration of a particular fact from amongst the witnesses which afford grounds to record a finding without much difficulties, but the rule of law does not say so. Law requires that conviction can be warranted on the basis of sole testimony of a witness, if the testimony is wholly reliable. The words 'wholly reliable' mean and teach that the testimony should be reliable and truthworthy from all angles without a shadow of doubt. If in the evidence of sole witness, doubt creeps in, no conviction can be warranted since such testimony cannot be branded as 'wholly reliable'. Evidence Act provides that no number of witness is required to prove the guilty of the accused. Therefore, in a rape case, which is generally committed without the sight of others cannot have the evidence of so many witnesses except the victim and some other important witnesses.
11. In a rape case, the court generally finds the evidence of the informant, the prosecutrix, the doctor and the I.O. The offence of rape being committed beyond the sight of others. Normally, there cannot be any eye witness to the occurrence. In that situation, the court is to rely on the evidence of the prosecutrix alone. Of course seldom we can have the evidence of eye witness. This possibility is 90% less.
12. Victim Rausanara Begum was examined as PW 2 by the prosecution. In her evidence she has stated her age to be 15 years. She stated that for about 7 years she was working as maid servant in the house of the appellant. On the first day of commission of rape on her by the appellant, no one was present in the house of the appellant except his mother. The appellant's mother went to the pond for cleaning the utensils. Appellant taking that chance asked her to bring a glass of water for him and when she went inside to fetch the glass of water, appellant suddenly embraced her, removed her wearing apparels and under garment.
13. P.W. 1 is the mother of PW2. Her evidence is that on being informed by PW2 about commission of rape on her by the appellant, on the third occasion, she was sanguine to help of police and accordingly lodged FIR (Ext. 1), which set a criminal law in motion. It is also in her evidence that being informed of the commission of rape, she had been to the house of the appellant but she was rebuked and threatened. At the time of commission of offence, PW 2 was 14/15 years old, she stated.
14. It was argued vehemently by Shri. Mazumdar that this piece of evidence in no way assist the case of the prosecution except lodgment of the FIR (Ext.1). FIR was apparently lodged by PW 1 to teach a lesson to the appellant and his family members for non-payment of the monthly salary of the prosecutrix, who was a maid servant and for recovery of the arrear amount amounting to Rs. 18.600/- in all. No such occurrence had ever been occurred as claimed by the prosecution, Shri Mazumdar argued.
Admittedly, this witness did not witness the occurrence. Her evidence is apparently hearsay. But her evidence palpably make the following two aspect may clear:
(i) that the prosecutrix was a maid servant in the house of the appellant for 7 years at monthly salary of Rs. 200/-
(ii) that PW 1 lodged FIR (Ext. 1) with police for commission of rape on her daughter.
This two aspects cannot be brush aside and in that regard there was no cross-examination.
15. The doctor, who examined the prosecutrix did not find any sign of rape or any injury on her private part or body. Apparently the evidence of doctor does not come into assist the case of the prosecution. Now, most pertinent question arises whether in a case of rape, evidence of doctor plays a pivotal role in the assessment of the evidence of the prosecutrix regarding commission of rape. The answer is 'No'.
16. In a catena of decisions, Hon'ble Supreme Court held that doctor's evidence is not required to record a finding of guilt of the offender in a rape case when the evidence of the prosecutrix is found wholly reliable. However, assistance can be had from the doctor's evidence when the evidence of the prosecutrix is found somewhat shaky. The doctor also failed to give an opinion as to the age of the victim. He offered his opinion on the basis of clinical findings, but the learned trial Judge criticized his evidence severally and held that his evidence cannot be branded, as evidence at all since his findings are not based on clinical findings. Medical report and his evidence do not speak of clinical findings. It is found from his evidence that he did not make an honest endeavour to project the clinical findings, rather gave his findings on surmise and presumption.
17. In a case of rape doctor's evidence is not a statutory requirement. Without the aid of doctor's evidence, charge under Section 376 can be held to have been proved. Explanation to Section 375IPC calls for such requirement when factum of penetration is required to be proved else not. In every case of rape, doctor cannot find signs of rape. Sign of rape can be found on the body of the victim or in her private part when there is a forceful throat or when rape has been committed by using force etc Therefore, the evidence of doctor cannot be said to have played pivotal role in a case of rape. Now, let us consider whether evidence of PW 2 is wholly reliable and on the basis of her sole testimony, conviction can be warranted against the appellant.
18. It is found from the evidence on record except the evidence of doctor that P. W. 2 was a made servant in the house of the appellant and she was serving as such for 7 years. She was employed at a monthly salary of Rs. 200/ -. It is her evidence that the appellant taking advantage to absence of the inmates of his house, he committed rape twice on her. On the third day, appellant asked her to bring a glass of water and at that time his mother went to clean utensils at the pond situated nearby their house. Taking advantage of the absence of the mother and also taking advantage of bringing a glass of water to him, appellant suddenly embraced her and removed her wearing apparels and committed rape. It is also in her evidence that when she tried to raise alarm, appellant threatened her. It is also found in her evidence that in the meantime mother of the appellant returned from the pond and had seen both of them in a compromising position. The mother of the appellant then assaulted her. She left for their house and narrated the incident to her mother, who lodged FIR Ext. 1).
19. From the scrutiny of the evidence nothing absurdity is found so as to disbelieve her evidence. Since P W 2 was a maid servant, the appellant had every opportunity to take advantage for committing rape on her. On two occasions, the appellant was successful and nothing communicated to anybody. But on the third occasion, the appellant and the victim was seen by the mother of the appellant in the state of compromising position. It was argued by Sri. Mazumdar that for nonpayment of monthly salary, this case has been made out against the appellant.
20. Chastity is the ornament of every woman. Woman are always scared of their chastity. No one would be allowed to errode her chastity in any manner whatsoever. Every woman therefore, considers her chastity as wealth and she never allows any body to erode the same. Here in our case, it was argued that PW1 filed FIR Ext. 1 against the appellant falsely. Now the question is as to why the PW 1 would file the FIR (Ext.l) against the appellant at the cost of her daughter that too in respect of her chastity. This Court does not see any force in the argument advanced by Sri Mazumdar.
21. In the case between the State of Punjab v. Gurmith Singh and Ors. reported : 1996CriLJ1728 , the Hon'ble Supreme Court observed in the context of crime against woman as under:
The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as involved in the commission of rape on her. In case involving sexual molestation, supposed considerations which have a no material effect on the veracity of the prosecution case or even discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrange of sexual aggression are factors which the court should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons, which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault along to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a part with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not deal uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty.
Therefore law provides that if the testimony of the victim is found to be acceptable and wholly reliable from all angles, even if some minor discrepancies creep in , here and there, conviction can be warranted against the offender. No corroboration is even required.
22. Here in our case, we do not find/see any room to doubt or disbelieve the evidence of PW 2, the victim. If a question is raised as to why she did not report or in other words feels shy in reporting earlier two incidents to her family members, the answer would be perhaps the victim considering her future life did not reveal so, Girls are always prone to their chastity. They do not like to earn stigma in their character considering their future life. Therefore, girls always remain shy in divulging such an act. The victim too stood in the same situation for which she did not divulge the act of rape on her by the appellant. But when the appellant committed rape on her for the third time, perhaps she had no other alternative than to divulge it to her mother.
23. Learned trial Court while deciding the case, considered the case very carefully with reference to the acceptability of the testimony of the prosecutrix together with reference to law laid down by the Apex Court and rejected the argument of the learned defence counsel. Learned trial court committed no error or illegality in accepting the evidence of PW 2.
24. From the facts and circumstances appearing in the case and the evidence available on record, the appellant has been found rightly booked under the charge under Section 376IPC. This Court finds no ground to interfere with the impugned judgment and order of conviction. It is accordingly affirmed.
The appeal stands dismissed.