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Existence of Preponderance of Probability – Not Sufficient to Establish Prosecution Case


Bench: JUSTICE Meenakshi Madan Rai

Tula Ram Rai Vs. State of Sikkim On 08 MAY 2017

Law Point:
Existence of Preponderance of Probability – Not Sufficient to Establish Prosecution Case, Which must be Proved Beyond All Reasonable Doubt, Which Prosecution Failed – Accused Acquitted.


1. The Appellant is before this Court, assailing the Judgment and Order on Sentence, both dated 17-08-2015, of the Learned Judge, Fast Track Court, South and West Sikkim, at Gyalshing, in Sessions Trial (F.T.) Case No. 09 of 2014, convicting and sentencing him as follows;

(a) to undergo rigorous imprisonment of seven years and to pay a fine of Rs. 1,000/- (Rupees one thousand) only, under Section 376 of the Indian Penal Code, 1860 (for short “IPC”).

(b) Simple imprisonment for a period of one year under Section 506 of the IPC and

(c) Simple imprisonment for a period of one year and fine of Rs. 5,000/- (Rupees five thousand) only, under Section 457 of the IPC.

The default stipulations appears jointly for Sections 376 and 457 of the IPC. The sentences of imprisonment were ordered to run concurrently, duly setting off the period already undergone by the Appellant.

2. The Prosecution case is that, Exhibit 1, a written FIR was received from P.W. 1, the victim, on 08-07-2014, informing therein that, on 07-07-2014 at around 10 p.m. while she was alone and asleep in her house, the Appellant tore the plastic ceiling of her house, entered therein and sexually assaulted her, threatening her with death if she approached the Police. On receipt of the Complaint, it was duly registered as Gyalshing Police Station (G.P.S.) Case No. 36/2014 against the Appellant and investigation taken up.

3. Investigation so conducted revealed that the Appellant was a labourer and distant relative of the victim who used to frequent her house. That, a day before the incident, he had received an amount of Rs. 4,000/- (Rupees four thousand) only, from his employer, one Phurzang Bhutia, with which he paid off his dues and after partaking of liquor went to the house of the victim at around 2200 hours, aware that she was alone. Meanwhile, the husband and daughter of the victim being out in Darjeeling for personal work and the victim being alone fell asleep. The Appellant entered the room through the plastic ceiling of the victim’s house and raped her despite her cries for help, pursuant to which he slept in her room, while the victim went to an adjacent prayer room and slept there. Next morning, she reported the matter to P.W. 6, the Ward Panchayat and lodged Exhibit 1. Meanwhile, the Appellant had absconded and took shelter in the house of various relatives at Gangtok, Tashiding and ultimately at Rongli, from where he was taken into custody by the Rongli Police and eventually arrested at Gyalshing by the Investigating Officer (for short “I.O.”). That, the victim had been sexually assaulted by the Appellant about eleven months prior to the instant incident which she had brought to the notice of P.W. 2, her husband who, however, took no action. The victim was medically examined, blood sample was drawn from the Appellant and the Exhibits forwarded to State Forensic Science Laboratory, Tripura, for DNA comparison. On Completion of investigation, Charge-Sheet was submitted against the Appellant under Sections 376/506/323/457 of the IPC.

4. The Learned Trial Court framed Charge against the Appellant under Sections 376(2)(f), 376(2)(n), 506 and 457 of the IPC. On a plea of “not guilty”, the Prosecution examined thirteen witnesses to establish its case. The Appellant thereafter was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.), to enable him to explain the circumstances appearing in the evidence against him, arguments were heard and the impugned Judgment and Sentence were pronounced as detailed hereinabove.

5. It is the contention of the Appellant before this Court that infact the act was consensual which would be evident from the fact that the Prosecution has failed to establish as to how the Appellant came into her house through the ceiling. No threat was held out to her before the commission of the rape as apparent from Exhibit 1 and the person of the victim was devoid of any injuries, except for some bruises detected on her genital. That, although P.W. 1 alleges rape by the Appellant, but the evidence of P.W. 2, her husband is to the effect that P.W. 1 only told him that a fight had ensued between them, apart from which she did not narrate any other incident to him, thereby concealing the act from him for fear of reprisal as it was consensual. P.W. 2 is also unaware as to how the ceiling came to be torn.

6. The next argument canvassed was that the incident occurred on 07-07-2014 at around 2200 hours, but remained unreported to the Police until the following morning and despite the allegation of sexual assault, she continued to remain in the same house with the Appellant and infact slept in the next room while he slept in the room where the offence was committed. The victim and investigation indicate that she is related to the Appellant while P.W. 2 denies such relationship, leading to anomalies in the Prosecution case. The evidence of P.W. 1 also reveals that instead of going to the Police, the next morning at around 9 a.m. she first approached to the Panchayat Vice President, P.W. 6, who advised her to report the matter to the Police. That, this act of the victim would indicate that she first made an effort to affect a compromise, but as P.W. 6 did not respond positively, she approached the Police. The seizure of the articles of clothing from her have not been proved by the Prosecution and although the DNA Report pertaining to spermatozoa and blood being that of the Appellant may have tallied, it is not relevant in the absence of proof of seizure of the undergarment of the victim. The Appellant did not flee away the next morning, but was found working at a construction site at Rongli where he was traced. Hence, the impugned Judgment and Order on Sentence be set aside.

7. For the Prosecution, the argument advanced was that the offence was infact committed by the Appellant on holding out a threat to the victim as apparent from her evidence. That, the plastic ceiling being torn is indicative of the fact that the Appellant had forcibly entered the house of the victim and after committing the offence absconded from Gyalshing and was later traced at Rongli, which also points to his guilt. Reliance was placed on the decision of Ranglal vs. State of Rajasthan MANU/RH/0611/2005 : 2006 CRI.L.J. 1453 and on State of Punjab vs. Gurmit Singh and Others MANU/SC/0366/1996 : (1996) 2 SCC 384 wherein it was held that 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. Therefore, the decision of the Learned Trial Court ought not to be disturbed.

8. I have considered the submissions which were made at length and given due consideration thereof. I have also carefully perused the documents, evidence on record and the impugned Judgment and Order on Sentence.

9. The question before this Court for determination would be whether the Learned Trial Court erred in convicting the Appellant under the aforesaid Sections?

10. In order to arrive at a correct finding, it is essential to carefully and meticulously traverse the evidence of the Prosecution Witnesses.

11. In the first instance, it is pertinent to point out that had the Appellant decided to commit the offence he would obviously not have told anyone of his intention and, therefore, the entire Prosecution case depends on the evidence of the victim. Of course, it goes without saying that she is the only Prosecution Witness to the offence. In this context, the Hon’ble Apex Court in Wahid Khan vs. State of Madhya Pradesh MANU/SC/1850/2009 : (2010) 2 SCC 9 has held as follows;

“18. Thus, in a case of rape, testimony of a prosecutrix stands on a par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible. ………”
12. In Gurmit Singh MANU/SC/0366/1996 : (1996) 2 SCC 384 the Apex Court observed that while evaluating evidence in an offence of rape the Courts must remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court to make a humiliating statement against her honour such as is involved in the commission of rape on her. It was elucidated as follows;

“8. ……..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 case 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 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. ……..”
13. With the above observations in mind, I now embark on an examination of the evidence furnished. The Appellant, as per the victim, was known to her and on the relevant night when she was alone, at around 10.15 p.m. he entered her house through the plastic roof and committed the offence on her. When she switched on the light she recognized the Appellant who threatened to kill her if she reported the matter to the Police. She also found him to be fully intoxicated and after committing the offence he fell asleep. In the said situation, she left the room and went into the prayer room of her husband, bolted the door from inside and slept. The next morning at around 9 a.m. she went to the house of the Panchayat Vice President, P.W. 6 to report the matter who advised her to approach the Police, the offence being serious. She further claimed to have seen the torn ceiling from where the Appellant made his entry only in the morning. Considering that she has stated that he entered from the ceiling and as no trapdoor exists therein being admittedly made of plastic, so how the destruction was not noticeable to her when he made the unconventional entry indeed needs to be mulled over. She also admitted that she has had no physical relations with her husband after the birth of their daughter. Admittedly, one Deepak, Mahesh and Arjun are her neighbours and reside next to her house, but she did not take recourse to help from them on the relevant night, although the Appellant, as per her, had fallen asleep. She admits to being illiterate and thus would not be in a position to read the contents of Exhibit 1, but apart from being unable to identify Exhibit 1, she admits that its contents were not read over to her. She alleges rape by the Appellant prior to the instant incident, but concedes that no report was made by her in the belief that he would not repeat such an act. Her statement under Section 164 of the Cr.P.C. and her deposition in Court do not corroborate even if the former is to be looked into only for corroborative purposes. P.W. 2 appears to be unaware of the sexual assault, being uninformed of it by the victim who told him only of a fight with the Appellant.

14. The evidence of P.Ws 3 and 4 are of no assistance to the Prosecution case and P.W. 5 and P.W. 9 alleged to be the seizure witness for M.O. I to M.O. IV failed to shed light on the articles seized or its ownership. Further, the seizure witnesses were asked to identify M.O. I to M.O. IV which are as follows;

When only the above four M.Os were alleged to be seized in the presence of the two seizure witnesses, it cannot be fathomed as to where Exhibit ‘C’, the underwear, sent to the SFSL, Tripura, emerged from. The I.O’s evidence has made an effort to fill up the lacuna by identifying the underwear as M.O. IA, but M.O. IA finds no mention in the articles exhibited by the Prosecution as recorded in the impugned Judgment. The report of P.W. 12 the Deputy Director-cum-Assistant Chemical Examiner, Government of Tripura, in Exhibit 9 revealed that he examined Exhibit ‘C’, one pink colour underwear, allegedly of the victim and found seminal stains therein and found the DNA therein to match the blood on the stained gauze cloth, said to be obtained from the Appellant. As P.W. 5 and P.W. 9 have no inkling of the ownership of the articles seized, much less of the underwear, tampering of the exhibits at the stage of investigation cannot be ruled out. P.W. 7, the Gynaecologist, examined the victim on 08-07-2014 at around 5.15 p.m., at the District Hospital, Gyalshing and, inter alia, found tenderness in the abdomen and lower back of the victim. She recorded as follows;

“On local examination:

1. Linear abrasion (bright red) about 1.5 cm over the labia majora right side.

2. Redness present over the labia minora right side.

3. Old hymenal tear present.


Final opinion: the above history and clinical findings are suggestive of blunt injury, however, lab report prepared by Dr. A.T. Sherpa shows absence of spermatozoa.”

Thus, apparently there are injuries over her genital, but the fact of such injury being the result of rape has to be proved beyond a reasonable doubt, which is not forthcoming.

15. In view of the entire evidence on record, what can be culled out is that the Appellant entered the room from the plastic ceiling, the destruction of which remained unnoticed by the victim till the next morning. P.W. 13, the I.O. has failed to throw any light on how this was achieved, thereby pointing to shoddy investigation. According to the victim, after the incident the Appellant threatened to kill her but he slept in the same room without inflicting any injury on her. What needs to be mulled over is if the Appellant was in a drunken stupor and fell asleep, subsequent thereto, why did she not seek help from her neighbours, allegedly one Deepak, Mahesh and Arjun. Instead, she went into another room and seemingly slept unperturbed. It is indeed appalling that after such a horrific and traumatic incident she would continue to remain under the same roof with the Appellant that too only bolting the door from inside, but not taking steps to secure from the outside the door of the room in which the Appellant slept. Neither the victim nor the I.O. have enlightened the Court as to when the Appellant left the victim’s house. Evidently the victim left at 9 a.m. to inform the Panchayat Vice President, what time the Appellant left is a mystery which remained unearthed. Another incongruity that emanates from her evidence is that the next morning she heard the Appellant knocking on the door to the room where she was, but she did not open it. Investigation has failed to reveal the logical end of the acts of that morning inasmuch as it is silent as to what transpired after he knocked on the victim’s door. Also, one is aware that life in the village starts at the wake of dawn, but evidently the victim besides having no qualms and apprehensions about sleeping under the same roof as the assailant, took her own time the next morning and went to the house of P.W. 6 only at 9 a.m.

16. Thus, a careful assessment of the evidence on record fails to inspire confidence to enable this Court to reach a finding that the offence committed was of rape and not a consensual act. In view of the totality of the circumstances hereinabove, there appears to be no credibility in the deposition of the victim regarding the allegation of rape. Although a preponderance of probabilities exists, but this does not suffice to establish the Prosecution case, which must be proved beyond all reasonable doubt, which in the light of the aforesaid discussions has failed to attain the benchmark.

17. Consequently, the assailed Judgment and Sentence of the Learned Trial Court deserves to be and is accordingly set aside. The Appeal succeeds and the Appellant is acquitted of the offences under Sections 376, 506 and 457 of the IPC.

18. Consequently, the Appellant be set at liberty forthwith, unless required in any other case.

19. Fine, if any, deposited by the Appellant as per the assailed Order on Sentence of the Learned Trial Court, be refunded to him.

20. Copy of this Judgment be transmitted forthwith to the Learned Trial Court for information along with the original records related to this case.