Hafizur Rahman Vs the State of Assam and Anr.

1. Heard Mr. A. Rahman, learned counsel for the appellant. Also heard Ms. A. Begum, learned Addl. P.P., Assam for the State and Ms. L. Devi, learned Legal Aid Counsel appearing for the respondent No.2, who is the mother of the victim.

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2. This appeal is against the judgment dated 13/05/2021 passed by the Court of the learned Additional Sessions Judge, Dhubri in Special Case No. 9/2019, by which the appellant has been convicted under Section 6 POCSO Act and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 5000/-, in default, simple imprisonment for 6(six) months.

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3. The prosecution case is that on 30.09.2018, PW-2 submitted an FIR dated 30.09.2018 to the Officer-in-Charge, Dhubri Sadar Police Station, stating that she had come to learn that on 30.09.2018, at around 5 a.m., the appellant had called her daughter of 15 years, by way of a mobile call from number 9101584490 on the pretext of marrying her. However, the appellant in collusion with 4 unknown persons gagged her daughter (PW-3) and took her to an unknown place in Dharmasala Part-IV. After raping PW-3 (victim), the appellant handed over PW-3 to the four unknown persons. When they tried to rape PW-3 and had outraged her modesty by removing her clothes, PW-3 ran away to save her life and took shelter in the house of a family in the village. On her daughter being noticed by members

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of the family in the village, they questioned her. Then the appellant arrived at the village looking for PW-3. On being identified by PW-3, the appellant was detained by the villagers.

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4. In view of the FIR lodged by PW-2, Dhubri P.S. Case No.1485/2018 under Sections 366A/120B/ 341/376D/354 of the IPC read with Section 4 of the POCSO Act was registered. The I.O., after completing the investigation, submitted his charge-sheet, having found a prima facie case under Sections 341/376 IPC read with Section 4 of the POCSO Act against the appellant. Charge under Section 376(3) of the IPC and Section 4 of the POCSO Act, 2012 were thereafter framed by the learned Trial Court, to which the appellant pleaded not guilty and claimed to be tried. The learned Trial Court, thereafter, examined 7 prosecution witnesses and after examining the appellant under Section 313 Cr.P.C., came to a finding that the appellant was guilty of having committed the offence under Section 4 of the POCSO Act and also under Section 376(3) of the IPC. The appellant was thereafter convicted only under Section 4 of the POCSO Act, in view of Section 42 of the POCSO Act and sentenced him to undergo rigorous imprisonment for life with a fine of Rs.5,000/-, in default, to undergo simple imprisonment for 6 months.

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5. The appellant’s counsel submits that there are contradictions in the statements given by the victim (PW-3) under Section 161 Cr.P.C., 164 Cr.P.C. and in the Trial Court. He also submits that there are contradictions in the statements given by the informant, when comparing her evidence vis-à-vis the FIR and the contents of the 161 Cr.P.C. statement. He also submits that there are contradictions in the place of occurrence of the incident of alleged rape, inasmuch as, it has been stated that the place of occurrence was Dharmasala

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Part-IV, while the sketch map shows the place of occurrence to be Chitlapul.

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6. The learned counsel for the appellant also submits that the Doctor’s medical report does not indicate that the appellant had raped the victim on 30.09.2018. In any event, the appellant had not raped the victim. The learned counsel for the appellant further submits that though there was a romantic relationship between the appellant and the victim, no sexual intercourse had taken place between them.

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7. Ms. A. Begum, the learned Addl. P.P. submits that the victim girl was 15 years of age at the time the victim was raped. She submits that the fact that there was sexual intercourse between the appellant and the victim is proved by the evidence of the Doctor (PW-6), who, in his medical examination report, recorded the fact that the hymen of the victim girl was torn. She submits that even if it is assumed that the victim girl did not object to having sexual intercourse with the appellant, the victim was not capable of giving consent, as she was a minor at the time the incident had occurred. She also submits that in a case involving rape or sexual intercourse, conviction can be based on the sole evidence of the prosecutrix. In this regard, she has relied upon para 10.1 of the judgment of the Supreme Court in Ganesan Vs. State represented by its Inspector of Police, reported in (2010) 10 SCC 573, which states as follows:

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“ 10.1 Whether, in the case involving sexual harassment, molestation etc., can there be conviction on the sole evidence of the prosecutrix, in the case of Vijay vs State of M.P , reported in (2010) 8 SCC 191 , it is observed in paragraphs 9 to 14 as under:

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“9. In State of Maharashtra v. Chandraprakash Kewalchand Jain , reported in (1990) 1 SCC 550 this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of

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another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16)

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"16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."

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In State of U.P. v. Pappu , reported in (2005) 3 SCC 594 this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12)

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"12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law

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that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do."

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In State of Punjab v. Gurmit Singh , reported in (1996) 2 SCC 384 , this Court held that in cases involving sexual harassment, molestation, etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21)

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"8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... 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 is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. ... Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. ... Corroboration as a condition for judicial reliance on the testimony of

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the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ...

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... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."

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(emphasis in original)

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In State of Orissa v. Thakara Besra , reported in (2002) 9 SCC 86 , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.

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In State of H.P. v. Raghubir Singh , reported in (1993) 2 SCC 622 this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. (2010) 2 SCC 9 placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan , reported in AIR 1952 SC 54 .

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Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."

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8. She submits that when there is no doubt that the appellant had sexual intercourse with the victim, who was below 18 years of age, there was no

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infirmity with the decision of the learned Trial Court in convicting the appellant under Section 4 of the POCSO Act.

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9. Ms. L. Devi, learned Legal Aid Counsel appearing for the respondent No.2 reiterates the submission of the learned Addl. P.P. and submits that a case of rape having been made out, the appeal should be dismissed.

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10. We have heard the learned counsels for the parties.

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11. The evidence of PW-1 is to the effect that the victim along with the appellant was rescued near his house and when the appellant was questioned, he stated that he would marry the victim. Though the guardians of the victim were informed, they did not come. The police were thereafter informed, who then came and took away both the victim and the appellant. In his crossexamination, PW-1 denied the suggestion that he did not make a statement before the police that at around 8 a.m. on 30.09.2018, he came to know from the villagers that a boy had brought a girl and they had taken shelter in the village. He also stated that he had found the appellant and the victim in the verandah of Upajuddin and had taken them to his house.

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12. On a perusal of the evidence given by the informant (PW-2) and the victim (PW-3), we find that there has been contradictions in their statements given under 161 Cr.P.C., 164 Cr.P.C. vis-à-vis their evidence. The evidence of PWs 1, 4 & 5 leads us to believe that the appellant and the victim were in a romantic relationship and had eloped. It is further fortified by the evidence of Defence Witness No.1 (DW-1 in short), who stated that there was a love affair between the appellant and the victim.

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13. The evidence of the Doctor, who examined the victim on 30.09.2018, is to the effect that there was no evidence of recent sexual intercourse/assault and that there was no mark of injury and no spermatozoa was seen. Further, the Doctor (PW-6) stated that as per the statement of the victim, the appellant had assaulted her two weeks prior to medical examination of the victim, which was done on 30.09.2018. The medical report dated 30.09.2018 records show that the hymen of the victim was torn. There is no evidence of sexual intercourse between the victim and the appellant, prior to 2 weeks of the medical examination, except for the evidence of the Doctor. It is only the evidence of the victim (PW-3), who states that the appellant raped the victim sometime on 30.09.2018 and not two weeks prior to 30.09.2018.

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The medical examination report dated 30.09.2018 states that the victim had stated that “She love Nur but he sexually assaulted her 2 wk back from the date of examination.” Due to the contradictions made by the witnesses, in our view, corroboration appears to be necessary to prove that there had been sexual intercourse between the appellant and the victim. Though it is settled law that conviction can be based on the sole evidence of the prosecutrix, the evidence of the prosecutrix has to inspire the confidence of the Court. In the present case, the evidence of the witnesses and the contradictions/discrepancies which have surfaced, leads us to believe that corroboration of the victim’s evidence is required, prior to accepting the victim’s evidence that rape had been committed by the appellant. We do not find the evidence of PW-3 to be absolutely trustworthy, unblemished and of sterling quality, keeping in view the serious inconsistency in the statements of the witnesses.

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14. Now, looking into the evidence given by the mother of the victim, who is also the informant (PW-2), it is seen that in the FIR submitted by PW-2 on 30.09.2018, the appellant had apparently called away the victim from her house through mobile number 9101584490, on the pretext of marrying her. However, the appellant, in collusion with 4 unknown accused persons gagged the victim and took her to some unknown place in Dharmasala Part-IV. There the appellant raped her under the bamboo grove and handed her over to the 4 persons. When the four unknown persons tried to rape the victim and outraged her modesty by removing her clothes, she ran away and took shelter in the house of a family in the village. When the victim was noticed at around 4 a.m., the villagers started questioning her. During that particular time, the appellant arrived in the village searching for the victim. On being identified by the victim, the people therein caught hold of the appellant. However, in her examination-inchief, PW-2 stated that when the victim had gone out of the house to attend to the call of nature, the appellant forcibly took the victim and had penetrative sexual assault with the victim. Thereafter, the victim was handed over to 3/4 persons, whose names the PW-2 did not know. After making a hue and cry, the victim thereafter made her way into the house of a person she did not know. Thereafter, some persons came into PW-2’s house and informed her where her daughter had stayed. The owner of the house where the victim took shelter informed the police. In her cross-examination, PW-2 stated that she did not see who had taken her daughter. However, the victim had told her that the appellant had penetrative sexual assault with her. PW-2 further stated that she did not file any case against any other person except the appellant. It is surprising that PW2 has not filed a case against the 4 persons who tried to allegedly rape the victim.

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15. The evidence of the victim (PW-3) is to the effect that she did not know the appellant, but came to know him later. While she was attending to the call of nature, the appellant gagged her and forcibly took her to Dharmasala and committed penetrative sexual assault on her. Thereafter, she was handed over to 3/4 persons, who tried to rape her. When she made a hue and cry, she was left alone, which allowed her to take shelter in the house of a person in a village. The owner of the house where she took shelter then informed the police. In her cross-examination, the victim (PW-3) denied the fact that she had any previous relationship with the accused. In her statement made to the police under Section 161 Cr.P.C., the victim stated that on 30.09.2018, at around 12 O’ clock, she went out in the road in front of her house to freshen herself. In the meantime, the appellant came and took her away. However, in her statement given under Section 164 Cr.P.C., the victim (PW-3) stated that the appellant had called her over phone and asked her to go with him to a short distance from her house. While going, the appellant gagged her suddenly and took her to a jungle in Dharmasala and raped her. Thereafter, he left the spot. After that, 4 boys came and tried to take her into the jungle by pulling her. She ran away and hid herself in a house. On hearing the commotion the neighbours came and rescued her. Later on, when the appellant came in search of her, people detained him.

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16. In her statement given under Section 164 Cr.P.C., PW-3 stated:-

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“Around 12:00 a.m. last Saturday, Hafizul called me over phone and asked me to go a short distance away from my house. When I was going, Hafizul gagged me suddenly and took me to a jungle of Dharmasala and committed rape on me. Thereafter, he left the spot. After that, four boys came and tried to take me into the jungle by pulling. Then, I ran and hid in a house. On hearing commotion, the neighbours came there and

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rescued me. Later, when Hafizul came there in search of me, people detained him too. Thereafter, my mother lodged this case. Case.”

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PW-3 in her statement under Section 161 Cr.P.C. stated:-

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“Today, i.e., 30.09.2018, at around 12 a.m., after having my dinner, I stepped out of my house to get respite from the hot weather. Accused Hafijur Rahman gagged my mouth with a cloth and took me far away from my home. After taking me quite far away, he crossed a water filled ditch and took me to the fields and raped me forcibly. The accused, after raping me, handed over me to 4 unknown boys and fled way under the cover of darkness. Even though the 4 unknown boys tried to rape me, they could not do so. The time was around 3 a.m. To save my life, I took shelter in a house in Village Dharmasala Part-IV. The accused Hafijur Rahman came looking for me again. After I identified the accused, the villagers apprehended him.”

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17. The evidence of PWs- 4 & 5 is to the effect that people were looking for the appellant and the victim girl, who had eloped. Further, PW-5 in his crossexamination stated that the girl was recovered from the paddy bharal (paddy store). Though the guardian of the victim girl was informed, they did not come to collect the girl and as such, the victim girl was handed over to the police. Also, the victim girl stated that she had eloped with the appellant.

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18. The evidence of DW-1 is to the effect that the victim girl and the appellant were having a love affair. DW-1 further stated that the victim girl wanted the appellant to marry her. However, the appellant refused, as the victim was a minor. Thereafter, the victim conspired and called the appellant over phone and took him to Dharmasala. At Dharmasala, the public apprehended the victim and the appellant.

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19. The evidence of PW-6, who is the Doctor, is to the effect that he examined the victim girl on 30.09.2018 and as informed to him by the victim, the appellant had assaulted the victim 2 weeks prior to the medical examination being conducted on the victim. On considering the evidence of the Doctor (PW6), it appears that there was no sexual intercourse between the victim and the appellant on 30.09.2018, as the victim had apparently told the Doctor that she had been assaulted 2 weeks prior to the date of her medical examination.

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20. The evidence of PWs 1, 4, 5 and DW-1 also leads us to believe that the victim and the appellant were in a romantic relationship and had eloped. There was no kidnapping and the charges framed against the appellant also show that the appellant had not been charged for kidnapping the victim.

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21. All the above evidence, in our view, goes to show that the appellant and the victim girl were known to each other. Though the victim in her examinationin-chief has stated “I do not know the accused person but I came to know him later”, the evidence of the witnesses clearly goes to show that they were known to each other and that they were having a love relationship/affair. Whether the love affair was purely a romantic relationship without any physical relationship (platonic) is not clear. Though the reason for the victim girl taking a stand that she had not known the appellant earlier is not known, the trigger for the said statement could be due to the fact that the appellant and the victim girl had been caught while eloping and to safeguard her name and honour, the appellant may have been made a scapegoat, by foisting a false case of rape against him. However, this is in the realm of speculation. Assuming that the appellant had raped the victim 2 weeks prior to her medical examination on 30.09.2018, an FIR to that effect would have been submitted by somebody. However, such

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fact/act had not been informed by the victim to anyone, including her near and dear ones.

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22. The evidence of the victim, as stated earlier, is to the effect that after the appellant had raped the victim, she was handed over to 3/4 persons, who tried to rape her. Unfortunately, no investigation to that effect appears to have been made and no attempt has been made by the State, the informant or the victim to bring those 3/4 persons to book, giving rise to an inference that the story about the 3/4 persons has been cooked up.

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23. The evidence of PW-3 does not give a clear picture as to how the rape had occurred. We are of the view that just because PW-3 has stated that the appellant had committed vaginal penetrative sexual assault on her, without giving particulars, cannot lead to an automatic finding that rape had been committed, keeping in view the peculiar facts and circumstances of this case, besides the victim saying she did not know the appellant earlier. Further, no wearing apparel of either the victim or the appellant had been seized by the police for FSL examination. The contradictions in the evidence of PW-3 vis-à-vis her statement under Section 164 Cr.P.C. clearly goes to show that the PW-3 is not a sterling witness.

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24. In the case of Sahid Hossain Biswas Vs. State of West Bengal, reported in 2017 180 AIC 294 , the Hon’ble Supreme Court has held in a case involving the POCSO Act, 2012, the foundational facts of the prosecution case must first be established. The relevant extract of the above judgment states as follows:-

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"A conjoint reading of the statutory provision in the light of the definitions, as aforesaid, would show that in a prosecution under the POCSO Act an accused is to prove the contrary, that is, he has to prove that he has not committed the offence and he is innocent. It is trite law that negative cannot be proved [see Sait Tarajee Khimchand vs. Yelamarti Satyam, (1972) 4 SCC 562, Para-15]. In order to prove a contrary fact, the fact whose opposite is sought to be established must be proposed first. It is, therefore, an essential prerequisite that the foundational facts of the prosecution case must be established by leading evidence before the aforesaid statutory presumption is triggered in to shift the onus on the accused to prove the contrary.

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Once the foundation of the prosecution case is laid by leading legally admissible evidence, it becomes incumbent on the accused to establish from the evidence on record that he has not committed the offence or to show from the circumstances of a particular case that a man of ordinary prudence would most probably draw an inference of innocence in his favour. The accused may achieve such an end by leading defence evidence or by discrediting prosecution witnesses through effective crossexamination or by exposing the patent absurdities or inherent infirmities in their version by an analysis of the special features of the case. However, the aforesaid statutory presumption cannot be read to mean that the prosecution version is to be treated as gospel truth in every case. The presumption does not take away the essential duty of the Court to analyse the evidence on record in the light of the special features of a particular case, eg. patent absurdities or inherent infirmities in the prosecution version or existence of entrenched enmity between the accused and the victim giving rise to an irresistible inference of falsehood in the prosecution case while determining whether the accused has discharged his onus and established his innocence in the given facts of a case. To hold otherwise, would compel the Court to mechanically accept the mere ipse dixit of the prosecution and give a stamp of judicial approval to every prosecution, howsoever, patently absurd or inherently improbable it may be."

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25. In the case of Lallu Manjhi and another Vs. State of Jharkhand, reported in (2003) 2 SCC 401 , the Hon'ble Supreme Court has held as follows:-

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"The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable,

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(ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. {See - Vadivelu Thevar etc. v. State of Madras, AIR 1957 SC 614}."

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26. A close scrutiny of the evidence, in our view, shows that the foundational facts of the prosecution case has not been established, as there are glaring discrepancies and the facts of this case, which cannot be ignored.

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Though the Doctor’s evidence that the hymen had ruptured, there is nothing conclusive as to how the hymen was ruptured especially when the victim had told the doctor that she was sexually assaulted by the appellant 2 (two) weeks prior to the medial examination. There is nothing stated as to when the hymen could have been ruptured or when it was ruptured. Though, we are aware that the Doctor’s opinion is only advisory in nature, we having found the victim not to be a sterling witness, the testimony of the prosecutrix was required to be corroborated. Thus corroboration has to be from all quarters. In the case of Rai Sandeep Vs. State of NCT of Delhi, reported in (2012) 8 SCC 21, the Supreme Court has held that to test the quality of a sterling witness, the

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status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. There should not be any prevarication in the version of such a witness. The testimony of prosecutrix should consistently matched with the version of every other witness. The Supreme Court further held that it can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only such version of such a witness qualifies the above test as well as all other similar such tests should be applied, it can be held that such a witness can be called a sterling witness. In the present case, the evidence of the prosecutrix and the Doctor do not match with regard to the date when the sexual assault had occurred. There is no corroboration from all quarters with regard to the testimony of the victim and keeping in view the judgement of the Supreme Court in the case of Rai Sandeep (Supra) , we cannot accept the version of the prosecutrix alone, without there being any corroboration from other witnesses.

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Considering the glaring discrepancies and the facts of this case, we believe that it would be unsafe to convict the appellant under Section 4 of the POCSO Act and/or Section 376 of the IPC, only on the basis of the evidence of PW-3.

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27. The learned Trial Court had come to a finding that the victim was in love with the accused and that when she had been called by the appellant over

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phone, she had gone to Dharmasala jungle with the appellant quietly. As such, the sudden turnaround in the victim’s attitude towards the appellant that she had been raped on 30.09.2018, which is contrary to the evidence of PW-6, leads us to believe that the foundational facts have not been proved in the present case. Accordingly, we are of the view that the finding of the learned Trial Court, that the appellant is guilty of commission of the offence under Section 4 of the POCSO Act and/or Section 376 (3) of the IPC is not sustainable, in view of the glaring discrepancies in the evidence adduced by the prosecution witnesses.

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28. Consequently, we hold that the impugned judgment dated 13.05.2021 passed by the learned Special Judge, Dhubri in Sessions Case No. 9/2019 under Section 376(3) of the IPC and under Section 4 of the POCSO Act is not sustainable. The same is accordingly set aside. Consequently, the appellant is acquitted of the charge under Section 376(3) of the IPC and/or under Section 4 of the POCSO Act, by giving him the benefit of doubt.

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29. The appeal is accordingly allowed and disposed off.

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30. Send back the TCR.

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31. The respondents are directed to release the appellant from jail custody immediately.

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JUDGE JUDGE

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Hafizur Rahman v. the State of Assam and Anr.

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