A. Hazarika, J.
1. The accused Shri Suresh Barua was tried for an offence under Sections 457/376 of the Indian Penal Code (hereinafter referred to as IPC), for commission of lurking house trespass by night and rape of Smti. Prabhawati Baruah. The court of Assistant Sessions Judge, Nagaon in Sessions Case No. 25(N)S9 held that, the prosecution has proved the charges levelled against the accused and convicted him accordingly. The judgment and order of conviction was challenged before the Court of Sessions Judge, Nagaon, who, allowed the appeal vide judgment dated 19.6.2000 and remanded the case to the trial court to pass afresh an appropriate judgment as per law. While remanding the case, the learned Sessions Judge, has re-casted the following points for determination:
(a) Whether there was any lurking house trespass by night in the house of the prosecutrix by the accused as alleged and if so, whether such lurking house trespass by night was with intent to commit any offence, which is punishable with imprisonment ?
(b) Whether the accused had sexual intercourse will Smti Prabhawati Baruah against her will and without her consent ?
(c) Whether the sexual act was done under the circumstances falling under any of the five descriptions specified in Section 375 IPC and,
(d) Whether there was sufficient penetration to constitute the offence as per the definition of rape?
2. On remand, the learned Assistant Sessions Judge recorded the statement of the accused afresh under Section 313 of the Code of Criminal Procedure (hereinafter referred to as Code), and witnesses on the defence were examined and cross-examined in compliance with the order of the learned Sessions Judge and held that the prosecution has been able to prove the charges against the accused and accordingly convicted the accused under Sections 457/376 IPC and sentenced him to suffer rigorous imprisonment for 3 years and to pay a fins of Rs. 2,000 only, in default, to suffer R.I. for another period of 6 (six) months for the offence under Section 457 of the IPC and also convicted him under Section 376 IPC and sentenced him to suffer R.I. for 7 years and to pay a fine of Rs. 5,000 only, in default, to undergo another period of R.I. for 1 (one) year vide judgment dated 20.11.2000. The aforesaid judgment of conviction and sentence was taken on the file of the learned Sessions Judge, Nagaon, being Criminal Appeal No. 65(N) 2000, who had affirmed the judgment dated 20.11.2000, passed in Sessions Case No. 25(N)99 by the learned Assistant Sessions Judge Nagaon, vide judgment dated 20.3.2001 which is under challenge, invoking power under Section 397/401 of the Code.
3. Prosecution case in brief is that, on 8.7.1998 at about 12 AM, while the prosecutrix was sleeping in her house, the accused had entered into the house by breaking the bamboo door and used force on the prosecutrix with the intention to outrage her modesty and tore the blouse which the prosecutrix was wearing. A complaint with regard to the incident was lodged on 9.7.1998 with the Raha Police Station which was registered as Raha PS Case No. 55/98 under Sections 448/354/427 IPC. The Investigating Agency investigated the matter and recorded the statement of the witnesses under Section 161 of the Code. The police seized the torn red blouse from the place of occurrence and arrested the accused. The prosecutrix was examined by the Doctor on 13.7.1998 and her statement was recorded under Section 164 of the Code. While the investigation was under progress, the investigating agency prayed to add the offences under Section 457/376 IPC which was allowed by the learned Chief Judicial Magistrate, Nagaon and on completion of investigation, submitted the charge sheet under Sections 457/354/376 IPC against the accused.
4. Since the case is triable by the Court of Sessions, the same was remitted to the Court pf Sessions, Nagaon, who in turn interfered the case to the trial court for disposal. The Assistant Sessions Judge Court, after going through the relevant records and after hearing the parties, framed the charges under Sections 457/376 IPC against the accused. The charges were explained to the accused to which he pleaded not guilty and claimed for trial.
5. During the trial, the prosecution has examined altogether 7(seven) witnesses including the Doctor, Investigating Officer and the Magistrate who recorded the statement of the accused under Section 164 of the Code. The defence examined the accused and one Umesh Barua after remand. The accused was examined elaborately under Section 313 of the Code. The learned Assistant Sessions Judge after considering the materials on record and after hearing the parties convicted the accused and on appeal, the learned Sessions Judge affirmed the conviction and sentence of the learned trial court and hence the Revision Potion before this Court.
6. Advancing the argument on behalf of the accused, Shri A.K. Bhattacharjee, senior counsel assisted by Smti. R. Borbora, advocate, submitted that, the learned courts below have failed to analyze the essential ingredients of Section 376 IPC in its proper perspective and has kept out of consideration the contents of FIR and the subsequent alleged rape on the victim, inasmuch as, on the Doctor's evidence had drawn the presumption and conclusions against the accused and, therefore, the judgment of both the courts below requires interference, which otherwise, if not interfered with, in exercise of power under Section 397/401 of the Code would result in miscarriage of justice.
7. To be more precise, the learned senior counsel has argued the following points for determination in the case in hand, viz.;
(a) The FIR was lodged on 9.7.1998 alleging outraging modesty of a woman, but has failed to mention about rape in the said FIR which was subsequently alleged rape on the victim which would be lie the story of rape as indicated by the Doctor and hence judgments are liable to be sol aside Grid quashed;
(b) The evidence of prosecutrix would go to show that, she recognised the accused in the light of burning electric bulb but in her cross- examination, she denied the aforesaid statements and stated that, she could recognise the accused in the light of thunder and both the court below did not consider the factum of recognition and on this ground atone, the judgments are liable to be set aside and quashed;
(c) The medical, evidence would show that the ingredients required to establish rape being absent in the instant case, the conviction and sentence by the Court of Assistant Sessions Judge and affirmed by the learned Sessions Judge, are liable to be set aside and quashed;
(d) Wearing apparel of the prosecutrix having proof of rape containing sperm, etc., were not seized by the Police. There is no explanation as to why those are not seized and sent for chemical examination;
(e) The relation between the prosecutrix, who is 36 years of aye and the victim is such that, there cannot be any rape on the victim from 12 AM to 4. AM continuously and such the conviction and sentence are liable to be set aside and quashed.
8. In the instant case the prosecution was launched on the basis of FIR dated 9.8.1998. In the said FIR, the prosecutrix had alleged that, on 8.7.1998 at 12 AM while she was sleeping in her house, taking advantage of the absence of her husband, Shri Suresh Baruah, son of Shri Siba Prasad Baruah, resident of Baligaon, illegally entered into her house by breaking the bamboo door and used force on her with the intention of outraging the modesty of woman and tore the blouse which she was wearing. When she raised a hue and cry, the opponent tied away. On the basis of the aforesaid FIR, the police registered a case being Raha PS Case No. 55/98 under Section 448/354/427 IPC, which would disclose that no case of rape has been alleged in the First Information Report submitted by the prosecutrix before, the Police.
9. While taking up the investigation, the Investigating Officer arrested the accused and forwarded him to the court of learned civil showing the ground of arrest under Section 376 I PC and submitted charge sheet under Section 376 as well as 457 IPC.
10. Except the evidence of PW-1 (prosecutrix) there is no eye witness to the occurrence. Other witnesses are only reported witnesses.
11. The learned senior counsel for the petitioner submitted the following material facts which was overlooked by both the courts below while convicting the accused petitioner under Section 457/376 IPC.
(a) In the FIR dated 9.8.1998 the prosecutrix had alleged that on 8.7.1998 at 12 AM, while she was sleeping in her house, taking advantage of the absence of her husband, the accused Shri Suresh Baruah illegally entered into her house by breaking the bamboo door and used force on her with the intention of outraging the modesty of woman and tore the blouse which she was wearing, but no rape has been alleged. On the basis of the said FIR, Raha PS Case No. 55/98 was registered under Section 448/354/427 IPC. Section 376 IPC was added later on.
(b) The medical evidence of the Doctor who examined the prosecutrix is as follows:
(i) vaginal injury not seen;
(ii) hymen was found absent;
(iii) vaginal smear did not show presence of spermatozoa.
(iv) no injury mark on private part.
In the opinion of the doctor there was no rape within 40 hours. The doctor further opined that a victim when raped against her will, may sustain injury on her private parts.
(c) The prosecutrix is admittedly the solitary witness. There is admittedly a departure from the FIR and the evidence which would go to show that the story of rape has been made out to PW-2 and PW-3 on the next morning. The Investigating Officer, except the red blouse, has not seized the petticoat, underpant of the accused, the bedsheet, where the semen would have been visible after the commission of the offence. A close scrutiny of the circumstances relating to the commission of rape would go to show that the prosecutrix was 36 years of age and a married woman at the time of alleged commission of offence. The cross examination of the prosecutrix would go to show that from 12.AM till dawn the accused continuously raped her. The prosecutrix recognized him initially in the burning electric bulb, whereas, on questions put by the court, she had stated that she recognized the accused in the light of thunder, though the accused is her nephew who resides adjacent to the house of the prosecutrix. The injury sustained as alleged is negatived by the medical evidence. There was no vaginal injury, no hymen found, no vaginal smear and no injury mark on the private part.
(d) There is no definite indication in. the medical evidence regarding the commission of rape by the accused. The solitary testimony of the prosecutrix would have been sufficient had it been supported by the medical evidence suggesting rape on her.
(e) The Investigating Officer who has been examined as PW-7 did not explain as to why he could not seize the 'mekhala chader', the bed sheet, the under pant and did not send the accused for medical examination, inasmuch as, no evidence was led in respect of house trespass as required under the law.
12. Mr. P.C. Gayan appearing on behalf of the State, supporting the two impugned judgments submitted that the submission made by the learned senior counsel appearing for the petition do not continue material facts in arriving at a conclusion that the accused petitioner is innocent. The learned PP also submitted that the solitary evidence of PW-1 the prosecutrix is enough to uphold the conviction.
The learned PP further submitted that this Court, sitting in revision, cannot interfere with the concurrent findings or the courts below, by taking the aforesaid submission of the learned senior counsel on behalf of the accused, accepting the same as material facts overlooked by the courts below.
13. The revisional jurisdiction of this Court is circumscribed unless there is an illegal or perverse finding or that the findings are not based upon any evidence, then normally, this Court will not interfere with the conviction and sentence.
14. However, before dealing with the case in hand, this Court is referring a case reported in : 2004CriLJ4254 (State of Maharastra v. Jagmohan Singh Kuldip Singh Anand and Ors.). In the aforesaid case, the conviction and sentence under Sections 324 and 452 read with Section 34 of IPC, passed by the trial court and the appellant court has interfered with by the High Court of Bombay in its revisional jurisdiction in exercise of power under Sections 379 read with Section 401 of the Code, setting aside the conviction and sentence and acquitted the accused petitioners. While dealing with the case, the Apex Court set aside the judgment of the High Court, affirming the judgment of the trial court and the appellate court. In the said case the Apex Court observed at para 22 as follows:
The revisional court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401. Cr.P.C. Section 401 Cr.P.C. is a provision enabling the High Court to exercise all powers of appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or Sessions Court. Section 397 Cr.P.C. confers power on the High Court or Sessions Court, as the case may be for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding sentence or border, recorded or passed and as to the regularity of any proceeding of such inferior court'. It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 Cr.P.C. conferring powers of appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to 401, Cr.P.C. read together do not indicate that, the revisional power of the High Court can be exercised as a second appellate power.
15. In the aforesaid decision a reference of a case of the Apex Court reported in 2004 AIR SCW 3626 (Ram Briksh Singh and Ors. v. Ambika Yadav and Ors.) has been referred to wherein the Apex Court has held that the revisional court has power to interfere with an order of acquittal and remit the case for trial, where material evidence is overlooked by the trial court and a duty rests on the court to correct manifest illegality resulting in gross miscarriage of justice.
16. In the above context in regard to the scope and limitation imposed on revisional court this Court thought it proper to evaluate the entire case in order to find out as to whether the prosecution has established the case of rape against the accused and if not, whether the accused is entitled for acquittal in the hands of revisional court.
17. While assessing the rival contentions of the parties, this Court formulates the following two questions as to whether the prosecution was able to prove the case against the accused beyond all reason has doubt.
(i) Whether the material facts as raised by the learned senior counsel appearing on behalf of the accused are material facts relevant in proving the essential ingredients Section 376 SPC against the accused;
(ii) Whether the conviction and sentence passed against the accused by the learned trial court and affirmed by the lower appellate court is liable to be interfered with, if it is found that the material facts as decide in question No. 1 demolishes the prosecution story and which was found to be the case against the accused not proved beyond all reasonable doubt.
18. For deciding question No. 1, it is necessary to find out if the facts submitted by the learned senior counsel appearing for the accused are relevant and material.
19. The absence of allegation of rape in the FIR is a serious lapse, because, the prosecution for the first time disclosed the occurrence to the investigating machinery and the investigation started with this place of information.
20. The investigation started by registering the case under Section 448/354/427 IPC and only after the arrest of the accused, Section 376 IPC was added. That means, there is reason to believe that the story of rape was an after thought.
21. Assuming that rape has been committed as narrated by the prosecutrix in court, whether her story can be believed on the following counts:
(i) The medical evidence does not support the prosecution story of rape;
(ii) The evidence of the Investigating Officer does not corroborate the story of rape. He being the Investigating Officer did not seize the wearing apparels of the prosecutrix such as, petticoat, mekhala chadar, except the blouse which she was wearing at the time of commission of offence. He also did not seize the under pant of the accused, the bed sheet etc.
(iii) Taking the evidence of the prosecutrix into consideration regarding occurrence of rape, the submission made by the learned senior counsel about the circumstances of the occurrence are very much relevant. When medical evidence is silent, when the prosecutrix as the first informant failed to allege occurrence of rape in the FIR, corroboration is to be sought from the circumstances. The vital circumstances as; narrated by the learned senior counsel, if taken into account, then those are the chain of links which are missing in implicating the accused in the alleged occurrence of rape.
22. Continuous sexual intercourse for four hours by a young man of 27 years of age with a married woman of 36 years completing ten years of married life may be possible only when the prosecutrix is a consenting party. This is also a material fact which can be inferred from circumstances as narrated by the prosecution story. Over and above, there was no injury on the private part of the prosecutrix as well as other vital organ on the person of the prosecutrix. Thus, material fact would go to show, even if there was any sexual intercourse resorted to by the accused and the prosecutrix, the prosecutrix failed to show that the sexual intercourse was committed against her will and under threat.
23. The foregoing discussion would go to, show that all these facts are not only relevant but material facts which were totally overlooked by both the courts below.
24. Now, coming to the next question in order to repel the material facts as stated above, it is highly essential that the evidence of the prosecutrix must inspire confidence in order to arrive at a finding of guilt of the accused.
The evidence of the prosecutrix can hardly inspire confidence if the material facts are taken into account under question No. 1 above. In her evidence, the prosecutrix, while identifying the accused person in the night, she never raised a hue and cry nor she resisted the accused ' from indulging in sexual intercourse continuously for four hours. On the basis of this sole consideration, the prosecutrix's evidence that the accused committed rape on her under threat, cannot be believed. If it is to be believed at all, then it may be taken as sexual intercource indulged by her with the accused as a consenting party in the absence of threat or resistance offered by her.
25. That being the position, this Court is of the view that those material facts as pleaded and proved above, shows that the prosecution story of occurrence of rape has not been proved beyond all reasonable doubt.
26. In the result, the Criminal Revision is allowed. The conviction of the accused in Sessions Case No. 25(N)/99 on the file of the Assistant Sessions Judge, Nagaon, under Section 457/376 IPC passed on 20.11.2000 and the conviction affirmed on appeal being Criminal Appeal No. 65(N)/2000 by the learned Sessions Judge, Nagaon, on 20.3.2001 are set aside. Consequently, the sentence of imprisonment of seven years under Section 376 IPC and also a fine of Rs. 2,000 imposed on the accused are also set aside.
27. When the principal offence of rape under Section 376 IPC having been disproved, there is no material to warrant the conviction under Section 457 IPC of the accused. Thus, the conviction under Section 457, IPC for RI of three years with a fine of Rs. 5,000 imposed on the accused is also set aside.
28. Since the accused is on bail granted by this Court, he is discharged from the bail bond.
29. Send down the case records.