Allowed

Akhtar Hussain v. State of Jharkhand

Jharkhand HC14 Jan 2020Cr.A(SJ)/377/2001

Case brief

AI extract

What is this about?

The High Court of Jharkhand allowed the appeal against conviction for rape under Section 376 IPC. The court acquitted the appellant, holding that the prosecution failed to establish foundational facts due to lack of corroborative evidence for pregnancy and treatment. Serious inconsistencies in the prosecutrix's testimony and failure to examine key witnesses and doctors rendered the conviction unsu

What did the court decide?

The criminal appeal is allowed; the appellant is acquitted of the charge of rape and discharged of liability of bail bonds.

Akhtar Hussain Vs State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Criminal Appellate Jurisdiction)

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Criminal Appeal (D.B.) No.377 of 2001

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(Against the judgment of conviction dated 28.07.2001 and the order of sentence dated 31.07.2001 passed by the learned 4^th Addl. Judicial Commissioner, Ranchi in Sessions Trial No.579 of 1999)

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Akhtar Hussain s/o Leyakat Hussain, Resident of village Paska Nagri, P.S-Ratu, District-Ranchi ....... Appellant

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Versus

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The State of Jharkhand …... Respondent

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----------------- PRESENT

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HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellants : Mr. Nilesh Kumar, Advocate For the State : Mr. Satish Kumar Keshri, A.P.P

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JUDGMENT

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Per, Shree Chandrashekhar, J. Dated:14th January, 2020 Oral Order

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The sole appellant has suffered conviction and sentence of R.I for ten years in Sessions Trial No.579 of 1999.

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The informant of this case is the prosecutrix herself. On the basis of her fard-beyan which was recorded on 11.08.1999, Ratu (Nagri) P.S Case No.67 of 1999 was registered against the appellant under section 376 of the Indian Penal Code.

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During the trial, the prosecution has examined 7 witnesses. The prosecutrix has been examined in the court as P.W 5.

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In her fard-beyan , the prosecutrix has stated that in the month of March, 1999, at about 1:00 p.m. in the afternoon, the accused-appellant dragged her inside the house of his maternal uncle and committed rape upon her. At that time she was bringing tea to her home from Gauhar tea-stall. The appellant threatened her with dire consequences and that was the reason she did not inform her parents about the occurrence. On 22.05.1999 her marriage was solemnized with Abdul Gaffar and about 1½ months thereafter she felt pain in her abdomen and she was examined by Dr. (Mrs.) S. Kujur. The doctor told

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her that she is pregnant. Her husband suspecting that she is not carrying his child divorced her on 14.07.1999 and thereafter she was staying with her parents. In her fard-beyan the prosecutrix has stated that after she came back to her parents' place a complaint was given to the Committee (Anzuman Islamia), however, the Committee did not take any decision on the ground that it is a serious matter. She has asserted that after her husband divorced her she became very ill. She had undergone abortion during which a dead foetus was removed.

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The prosecutrix has been examined in the court as P.W 5. She has claimed that she is literate, her date of birth as recorded in the school diary is 13.03.1985 and she was married to Abdul Gaffar on 22.05.1999. She has further stated that after the marriage when she became sick she was taken to Dr.(Mrs.) S. Kujur who informed her that she was carrying pregnancy of three months. Photo copy of the prescription of Dr. (Mrs.) S. Kujur was tendered in the court and marked as 'X' for identification. She was further examined by Dr. (Mrs.) Anita Kumari. Her prescription has been marked as Exhibit-1 during the trial. The prosecutrix has claimed that she was treated at Apollo Hospital and Anzuman Islamia and has undergone the procedure for abortion at Anzuman Islamia. The father of the prosecutrix has been examined as P.W 3. He has supported the testimony of his daughter on material particulars of the case. He has stated that marriage of his daughter was solemnized with Abdul Gaffar on 22.05.1999. She became pregnant and suspecting illegal child her husband divorced her. She came back home and thereafter she was treated at Apollo Hospital and Anzuman Islamia and she had undergone abortion. He has further stated that when his daughter informed about the incident he has made a complaint to Anzuman Islamia and a meeting was held, however, no decision was taken there.

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The prosecution witnesses Md. Salim Ansari-P.W1, Md. Yusuf-P.W 2 and Md. Muslim-P.W 4 are co-villagers. They have come to the court to state that they were informed about the occurrence by father of the prosecutrix.

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Dr. Ragini Minz-P.W. 6, who has examined the prosecutrix on 11.08.1999, has made the following observations in her report:

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Breast- developed.

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Auxiliary and pubic hair present. Height-61”, weight-82 Ponds. P/v Examination-Old ruptured hymen admit two fingers. No mark of injury on the private part, no stain on her private part, no mattering of pubic hair, no foreign hair on her private part. Size of the uterus antener and normal.

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The doctor has deposed in the court that according to the report of Radiologist age of the prosecutrix is between 16-18 years. In her opinion no positive sign of rape was found at the time of examination of the prosecutrix and she was not found pregnant at that time. In her cross-examination, the doctor has stated that she has not found any sign of labia or pregnancy. She has admitted that when the prosecutrix has delivered a child cannot be said now.

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Mr. Nilesh Kumar, the learned counsel for the appellant has submitted that; (i) there is unexplained delay in lodging the First Information Report, (ii) the prosecutrix who has not stated before the investigating officer about her pregnancy is not a reliable witnesses, (iii) the documents on treatment and abortion of the prosecutrix produced during the trial cannot be read in evidence, and (iv) inconsistencies in the testimony of the prosecutrix and her father would render conviction of the appellant unsustainable in law.

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In support of his contentions, the learned counsel for the appellant has relied on the judgments in “ Rajesh Patel Vs. State of Jharkhand” reported in (2013) 3 SCC 791 and “ Mohd. Ali @ Guddu Vs. State of Uttar Pradesh” reported in (2015) 7 SCC 272.

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In a case under section 376 of the Indian Penal Code, delay in lodging the First Information Report by itself is not a ground to doubt the prosecution's case. If to the satisfaction of the court delay in lodging the First Information Report is explained, testimony of the prosecutrix which generally is considered at par with an injured witness is accepted by the courts. In “ State of Rajasthan Vs. Shri Narayan” reported in (1992) 3 SCC 615, the Supreme Court has observed that a victim of sexual assault would generally be reluctant to approach the police as it involves the question of her morality and chastity. It was also observed that a woman or her relative would have to struggle with various situations before they decided to approach the police and, therefore, less chances of false implication. However, it is also well-settled that delay in lodging a report with the police is altogether not an insignificant aspect in a case lodged under section 376 of the Indian Penal Code. If the attending circumstances in the case and inconsistencies, exaggeration, embellishment, contradictions etc. in testimony of the prosecution witnesses create a doubt on veracity of their evidence, delay in lodging the First Information Report may prove fatal for the prosecution. In “State of Punjab Vs. Gurmit Singh” reported in (1996) 2 SCC 384, the Hon'ble Supreme Court has observed, thus;

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8. ........The trial court overlooked that a girl, in a tradition-bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing the teachers or her friends at the examination centre under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others overpowered by a feeling of shame and her natural inclination would be to avoid talking about it to anyone, lest the family name and honour is brought into controversy.

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Therefore her informing her mother only on return to the parental house and no one else at the examination centre prior thereto is in accord with the natural human conduct of a female. 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. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts 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 alone 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 par 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 selfinflicted, 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

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she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead 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. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. In State of Maharashtra v. Chandraprakash Kewalchand Jain [(1990) 1 SCC 550] Ahmadi, J. (as the Lord Chief Justice then was) speaking for the Bench summarised the position in the following words: (SCC p. 559, para 16)

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“A prosecutrix of a sex offence cannot be put on a 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 the present case, testimony of the prosecutrix is supported by the evidence of P.W 1, P.W 2, P.W 3 and P.W 4. In a case under section 376 of the Indian Penal Code, testimony of the prosecutrix if inspires confidence and found of such sterling quality that leaves no manner of doubt on complicity of the accused in the

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crime can be the sole basis for conviction. At the same time though corroboration is not sine qua non for conviction in a rape case, in “Rameshwar Vs. The State of Rajasthan” reported in AIR 1952 SC 54, the Hon'ble Supreme Court has observed that the rule which has hardened into one of law is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence except where the circumstances make it safe to dispense with it, must be present to the mind of the judge. In “ Gurmit Singh” case (supra), the Hon'ble Supreme Court has held as under:

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“21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. 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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In the backdrop of the aforesaid legal principles when testimony of the prosecutrix which according to the prosecution is corroborated by the evidence of P.W 1, P.W 2, P.W 3 and P.W 4 is examined, we find that the prosecution has failed to establish the charge under section 376 of the Indian Penal Code against the appellant.

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In the first place the prosecutrix has not disclosed the day or date of the incident, though she has stated her date of birth, date of marriage and date of divorce. She has simply stated that in the month of March, 1999, the appellant dragged her inside the house of his maternal uncle and sexually ravished her. In her fard-beyan she has claimed that she became sick and she had to undergo abortion but there she has not disclosed the date and name of the doctors or the hospitals where she was treated and the investigating officer has deposed in the court that during investigation prescription of any doctor was not made available to him and he has not made any enquiry whether the prosecutrix was examined in a hospital. In para-10 and 11 of his cross-examination he states that he has not recorded statement of any lady doctor and he has not conducted investigation in connection to abortion of the prosecutrix. Further, in para-14 and 15 he has admitted that he does not know any doctor by name of Dr. (Mrs.) S. Kujur and whether Anzuman hospital is at Ranchi is also not to his knowledge. On the prescription dated 17^th July of Anzuman Islamia which was marked as Exhibit-2, he has admitted in the court that it does not bear signature of any officer or a doctor. The prosecutrix has failed to produce any other prescription of Dr.(Mrs.) Anita Kumari and she has admitted that after her marriage and till one day before she was divorced she had physically relationship with her husband. Dr.(Mrs.) S. Kujur, Dr.(Mrs.) Anita Kumari and/or any other doctor/nurse/employee of the Apollo hospital and the Anzuman Islamia were not examined by the prosecution. Section 59 of the

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Evidence Act, 1872 provides that all facts, except the contents of documents or electronic records may be proved by oral evidence. Under section 61 of the Act, the contents of documents may be proved either by primary or by secondary evidence and section 62 of the Act provides that a document in original if produced for inspection of the court is a primary evidence. Secondary evidence is defined under section 63 of the Act and under which circumstances secondary evidence may be tendered in evidence are provided under section 65 of the Act. Photo copy of the prescription of Dr. (Mrs.) Anita Kumari which has been marked as Exhibit-1 during the trial is not one of the documents which may fall under the category of secondary evidence as defined under section 62 of the Evidence Act, 1872. The prescription of Dr.(Mrs.) S. Kujur which has been marked as Exhibit 'X' for identification does not bear her signature, as admitted by the investigating officer and in terms of section 292 of the Code of Criminal Procedure no one from the hospital or clinic of Dr.(Mrs.) S. Kujur has come to the court to explain this document satisfactory. Moreover, neither Dr.(Mrs.) Anita Kumari nor Dr.(Mrs.) S. Kujur has been examined during the trial and while so, contents of these documents cannot be read in evidence.

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On such evidence, the prosecution story that the prosecutrix was pregnant, treated by two doctors and undergone abortion is not proved.

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It has come in the evidence of the prosecutrix that her house is situated at about 10 steps from the house of maternal uncle of the appellant and Gauhar tea-stall is at about 15-20 steps away from her house and according to her the incident has happened in the broad day light, at about 1:00 p.m, but no one from the vicinity including anyone from the tea-stall has been examined. After her divorce, she told about the incident to her mother and father and thereafter a Panchayati was held in this matter, however, her mother

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has not been examined during the trial. Around her house there are houses of Amruddin, Kalimuddin Ansari, Shaukat Ali and Gauhar Ansari, however, neither these neighbours have been examined nor Kalimuddin Ansari, who is the maternal uncle of the appellant, has been produced during the trial. The appellant has taken a stand that Anganbari School is situated nearby the house of the prosecutrix and she, in fact, did not go to bring tea from Gauhar tea-stall for her mother as claimed by her and at the instance of a friend of her brother who is also known by the name of Akhtar he has been falsely implicated in this case. During her cross-examination, the prosecutrix has admitted that there is one Anganbari School which is attended by the children and the teacher, however, she has stated that she does not know name of the teacher and she has no knowledge whether attendance is marked in the school or not. In paragraph no.15 of her cross-examination, she has admitted that the place of occurrence is in Muslim Tola and that result was published in the school so she has accompanied the appellant.

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On such facts, the prosecution has failed to establish the foundational facts on which charge under section 376 of the Indian Penal Code has been found against the appellant.

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As observed by Hon'ble Supreme Court in “Raju and others Vs. State of Madhya Pradesh” reported in (2008) 15 SCC 133, testimony of the prosecutrix is not like a gospel truth and her evidence shall be examined like any other eye-witness. In the present case, as discussed hereinabove, there are serious inconsistencies in testimony of prosecutrix. Her husband has not been examined during the trial and her father who has admitted in the court that she was pregnant, but he has also failed to disclose details of treatment and abortion of his daughter. He has not produced any material such as money-receipt, discharge-certificate etc. from the hospital. He has stated in his cross-examination that he has given papers of Apollo hospital to the police, however, the

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investigating officer has denied the same during his crossexamination. And, above all, once the prosecutrix herself has admitted in her cross-examination that her husband had access to her during the period of cohabitation and they had physical relationship, a presumption under section 112 of the Indian Evidence Act, 1872 would arise and, therefore, it cannot be inferred that the pregnancy – if at all the prosecutrix was pregnant – was through the appellant.

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From the aforesaid discussions, we find that testimony of the prosecutrix and her father contains more chaff than substance and on the basis of their testimony conviction of the appellant under section 376 of the Indian Penal Code cannot be sustained.

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Having said so, we hold that the prosecution has failed to prove the charge under section 376 of the Indian Penal Code against the appellant and, accordingly, his conviction for the said offence is set-aside.

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