Ram Krishna Pandey vs The State Of Assam
- Court
- Gauhati High Court
GAHC010002952012
2026:GAU-AS:16130
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT
Crl. Rev.P./44/2012
Ram Krishna Pandey,
S/o Santosh Kumar Pandey,
Resident of 265 Transit Camp,
Masimpur, C/o 99 APO, PS-Santaldih,
Dist.-Purulia, Santaldih.
……………Petitioner
-Versus-
The State of Assam.
……………Respondent
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the petitioner :- Mr. D. Borah
Advocate for the respondent :- Ms. S.H. Bora, Addl. P.P.
Date on which judgment is reserved : 17.09.2026
Page 1 of 31
Date of pronouncement of judgment : 03.11.2026
Whether the pronouncement is of the operative part of the
judgment :- No
Whether the full judgment has been pronounced? :- Yes
JUDGMENT & ORDER (CAV)
Heard Mr. D. Borah, learned counsel for the petitioner. Also
heard Ms. S.H. Borah, learned Addl. P.P. for the State respondent
No. 1.
2. In this petition under Section 401 of the Code of Criminal
Procedure, 1973 (as amended) the petitioner, namely, Ram Krishna
Pandey, has challenged the Judgment and Order, dated
10/02/2014, passed by the learned Addl. Sessions Judge, Cachar,
Silchar, in Criminal Appeal No. 31 of 2011.
3. It is to be noted here that vide impugned Judgment and
Order, dated 10/02/2014, the learned Addl. Sessions Judge, Cachar,
Silchar, had dismissed the Criminal Appeal No. 31 of 2011, and
thereby upheld the Judgment and Order of Conviction, dated
22.09.2011, passed by the learned Assistant Sessions Judge,
Cachar, Silchar in Sessions Case No. 82/2008.
Page 2 of 31
4. It is further to be noted here that vide judgement and order
of conviction, and sentence, dated 22.09.2011, passed in Sessions:
Case No.82/2008, the learned Assistant Sessions Judge No.1.
Cachar, Silchar, has convicted and sentenced the petitioner herein,
namely, Ram Krishna Pandey, to undergo rigorous imprisonment
(R.I.) for 7(seven) years and to pay a fine of Rs.2,000/-, in default
of payment of fine, to suffer Simple Imprisonment (S.I.) for another
3(three) months, u/s 376 1.P.C. And also convicted and sentenced
him to suffer R.I. for 6(six) months and a fine of Rs.500/- in default
of payment of fine, S.I. for another 1(one) month, u/s.448 I.P.C.,
with further direction that sentence in both the counts shall run
concurrently.
5. The background facts, leading to filing of the present
petition, is briefly stated as under:-
“On 2.09.2007, at about 11.30 am, the petitioner herein,
had committed criminal house trespass, by entering into
the house of the informant, namely, Purnima Bordoloi Roy,
while the informant and her husband went to the market
and committed rape on her cousin sister, namely, Srimati
Mouni Roy (actual name withheld), who was in the house
of the informant as her maid. Accordingly, the informant
Purnima Bordoloi Roy had lodged an F.I.R. with the In-
Charge- Arunachal Police Out Post, Cachar on 04.09.2007.
Upon the said FIR, the Officer-in-Charge, Cachar P.S. has
Page 3 of 31
registered a case, being Silchar P.S. Case No. 1597, on
04.09.2007, under Sections 448/376/506 IPC and carried
out investigation. Then on completion of investigation, the
I.O. had submitted charge sheet u/s 448/376 I.P.C.,
against the petitioner above named, to stand trial under
the said Sections of law.
Then on committal of the case to the Court of
Sessions, the same was made over to the Court of learned
Assistant Sessions Judge, Cachar, (trial court herein after)
for disposal. Then on appearance of the petitioner before
the learned trial Court, it had framed charges u/s.448/376
I.P.C. against the petitioner and on being read over and
explained the same to the petitioner, he pleaded not guilty
and claimed to be tried.
During the trial the prosecution side had examined
as many as five (5) witnesses in support of its case. The
learned trial court had also examined two more witnesses.
Thereafter, the learned trial Court had examined the
petitioner herein, under Section 313 Cr.P.C. and after
conclusion of the trial, the learned trial Court had found the
petitioner herein guilty u/s.448/376 1.P.C. and convicted
and sentenced him as aforesaid.
Page 4 of 31
Being aggrieved, the petitioner had preferred an
appeal, being Criminal Appeal No. 31 of 2011, before the
learned Sessions Judge, and thereafter, hearing both the
parties the learned Appellate Court, vide impugned
Judgment and Order, dated 10/02/2014, had dismissed the
Criminal Appeal No. 31 of 2011, and thereby upheld the
Judgment and Order of Conviction, dated 22.09.2011,
passed by the learned Assistant Sessions Judge, Cachar,
Silchar in Sessions Case No. 82/2008.”
Grounds of revision:-
6. Then being highly aggrieved, the petitioner has preferred
the present revision petition on following grounds:-
(i) The impugned judgment and order, passed by the learned
court below, is bad in law as well as in fact, for being not
based on proper appreciation of the materials on record.
(ii) The evidence of victim (PW-2) is not at all a reliable, as at
one go, she declines to identify the accused person and in
the next moment, she identified the accused person. Also
there are material contradictions in her evidence that has
been proved by the I/O and such contradictions cast doubt
about the veracity of her version.
Page 5 of 31
(iii) The Magistrate, who had recorded the statement of the
victim girl, under section 164 of the Code of Criminal
Procedure, was examined as Court witness No.2, and she
had also, in fact, stated in her evidence that the victim girl
did not mention the name of any person as the accused,
who allegedly committed the offence of rape, rather she
stated before the Magistrate that a boy entered into the
house, whose name was not known to her and as such it is
clear that the judgment and order is based on erroneous
findings.
(iv) It is also an admitted position that the victim, at the time
of alleged offence was 16 years, and as per medical
evidence of PW-3, her age at the relevant point of time
was above 16 years and below 18 years, and assuming but
not admitting, the allegation to be true and considering the
fact that there are some families, who used to reside in the
upstairs and in the neighbouring localities and considering
also the fact that the victim had not raised any hue and cry
on the alleged time of occurrence, and non-examination of
such neighbouring people, as well as independent witness,
by the prosecution, during trial, raises reasonable suspicion
regarding the occurrence.
(v) The victim was examined immediately after the
occurrence, and according to her, she was forwarded to
Page 6 of 31
the Silchar Medical College Hospital on the date of
occurrence and considering the evidence of expert,
regarding no evidence of recent sexual intercourse as well
as detection of any injury on her person, the conviction
and sentence is not in consonance with law.
Submission of learned counsel for the petitioner:-
7. Mr. Borah, learned counsel for the petitioner, submits that
though several grounds have been taken in the petition, yet the
main ground, he has been harping is that there are material
contradictions in the evidence of the victim, and the same has been
proved by the I/O, and such contradictions cast doubt about the
veracity of the evidence of victim (PW-2) and she is not at all a
reliable witness. Mr. Borah also submits that the victim, at one go,
declines to identify the accused person, and in the next moment she
identified him.
7.1. Mr. Borah also submits that the Magistrate, who had
recorded the statement of the victim girl, under section 164 of the
Code of Criminal Procedure, also testified that the victim girl did not
mention the name of any person as an accused, instead she stated
that a boy entered into the house, whose name was not known to
her and as such the accused could not be identified by her and on
Page 7 of 31
this count also, the finding so recorded by the learned Courts below,
are erroneous.
7.2. It is the further submission of Mr. Borah that the age of the
victim, as per medical evidence is below 18 years; whereas, per
school certificate her age was 16 years. He also pointed out that the
victim had raised no hue and cry at the time of occurrence and that
neighbouring witnesses have not been examined by the prosecution,
though independent witnesses were available in the upstairs, and
this cast a doubt about the occurrence.
7.3. Further submission of Mr. Borah is that the FIR was filed
after two days of the occurrence, and the delay has not been
explained and that there is also no independent witness which
makes the very incident doubtful, and under the aforesaid grounds,
Mr. Borah has contended to allow this petition.
7.4. In support of his submission Mr. Borah has referred
following decisions:-
(i)
Harshad Chiman Lal Modi vs. DLF Universal Ltd.,
reported in
(2005) 7 SCC 791.
(ii) reported in
Arun Kumar vs. Union of India, (2007)
1 SCC 732 :
(iii) Amandeep Singh Saran vs. State of Chhattisgarh,
reported in (2024) 6 SCC 541 :
Page 8 of 31
Submission of learned Addl. P.P.
8. Per contra, Ms. Borah, learned Addl. P.P., has supported the
impugned judgment and order of conviction. She submits that the
occurrence took place on 02.09.2007, and the FIR was lodged on
04.09.2007, and though there was some delay, yet the same has
been explained. Ms. Borah also submits that the prosecution side
has examined as many as five witnesses and they have
corroborated the prosecution version. She also submits that there
was no animosity between the informant and victim with the
petitioner herein, to implicate him falsely. Her further submission is
that the petitioner herein, had failed to rebut the evidence of the
victim and her evidence is consistent throughout and though some
contradictions are here and there, the same are minor in nature and
that there is nothing to disbelieve her evidence. Therefore, she has
contended to dismiss this petition.
Discussion and analysis:-
9. Having heard the submission of learned counsel for both
the parties, this Court has carefully gone through the petition and
the documents placed on record and also gone through the
impugned Judgment and Order, dated 10/02/2014, passed by the
learned Addl. Sessions Judge, Cachar, Silchar, in Criminal Appeal
No. 31 of 2011, and also gone through the Judgment and Order
Page 9 of 31
of Conviction dated 22.09.2011, passed by the learned Assistant
Sessions Judge, Cachar, Silchar in Sessions Case No. 82/2008.
10. Before a discussion is directed to the issues raised in this
revision petition, it would be in the interest of justice to discuss the
scope of revisional jurisdiction of this Court. In the case of
Amit
reported in
Kapoor–vs.-Ramesh Chander and another, (2012)
, Hon'ble Supreme Court, while dealing with the scope of
9 SCC 460
revisional jurisdiction, has held that the revisional jurisdiction is very
limited and cannot be exercised routinely or as a matter of course.
It is meant to correct a patent defect, errors of jurisdiction or law, or
to prevent abuse of the process/gross injustice, and it is not an
appeal in disguise. Revisional jurisdiction should normally be
exercised on a question of law. Where factual appreciation is
involved, interference is justified only if the finding is perverse. The
power must be exercised so that justice is done and there is no
abuse of the process of the Court. Mere suspicion or possibility of a
different view is not enough. It has also been held that inherent
powers, under Section 482 are wider than pure revisional power
under Section 397, but even then, it must be used sparingly, with
circumspection, and only in the rarest of rare cases, especially to
quash a charge. Section 482 does not completely oust the limitation
of Section 397, but nothing in the Code can affect the amplitude of
inherent power, where an extraordinary situation demand
intervention to prevent abuse of the process.
Page 10 of 31
11. Keeping the aforesaid principles in mind, now an endeavour
will be made to deal with the grounds, so taken in this petition and
the argument so advanced by Mr. Boarh, the learned counsel for the
petitioner.
(I) The ground of disbelieving the evidence of the
victim on account of contradiction.
Finding of the learned Trial Court:-
12. The learned trial Court, while discussing the evidence of the
victim,(P.W.2) had held as under:-
“8. The evidence of PW 1, PW.2, CW.1
corroborated their statement of each other and
established the prosecution story which had
been narrated in Ext.1 that on 2.9.07 in
between 10/10-30 a.m. to 12 noon the victim
Monali Roy i.e. PW.2 had stayed alone at home
with the / baby of P.W.1 and CW1 and on their
return of PW.1 and CW.1 when they knocked the
door while Monali opened the door and on
finding her in indisposed condition when they
enquired as to what had happened, to her she
replied that father of Chukku and Borki and on
entered inside the room being found the door
open and on entering, he closed the door from
inside and thereafter, he gagged her mouth and
removing her wearing garments committed rape
on her. She reported the matter by weeping.
Thereafter, when they entered inside the
Page 11 of 31
kitchen of the house they found one helmet
lying in the rack of the kitchen. Then the
accused came and again had taken away the
helmet forcibly from the hand of CW.1 and at
that time accused threatened not to lodge any
case against him otherwise he would kill them.
These facts on evidence in examination in
chief of PW 1, PW.2 and CW.1 remained un-
rebutted. During cross-examination of PW.1 and
PW.2, defendant brought in that quarter of
nayak Gobinda Sharma and habildar M.B. Singh
is situated in the 1st floor and at the time
of occurrence they were available in their
quarter. PW.2 further stated that on hearing
their hulla they came out from the quarter.
From the cross-examination of PW.1 and PW.2 as
well as the statement of PW.1 in examination
in chief it is established that the place of
occurrence is situated in the residential
quarter of Army at Machimpur, as such
inhabited by other Army personnel along with
their families residing in the Army quarter.
But P.W.-1 herself during cross-examination
had given the version that this people came
out of their quarter only when P.W.-1 raised
hulla. Considering the relevant time period to
be in between 10/10-30 am. to 12 noon
presumably the families of these Army
personnel residing in the quarter would be
busy with their own household work inside
their quarter while the male folk gone out to
attend office duties. There is found nothing
to disbelieve that the alleged occurrence
Page 12 of 31
could not have had happened inside the
residential quarter belonging to PW 1 and CW-1
within the residential campus at Masimpur.
Rather PW-1 clarified that neighbours came out
of their quarter after hearing hulla raised by
her. So, from this evidence of PW-1 it
becomes clear that neighbours of the Haldar MP
Singh and his Family and Gobinda Sarma and his
family did not see the incident by themselves
and recording of their statement would be
futile and meaningless to prove the
truthfulness of the occurrence of the incident
as PW.1 deposed that she narrated the incident
when neighbouring people came to the place of
occurrence hearing hulla. So, non-examination
of these witnesses would not result in any
fatality of the prosecution story and version
of the defence during cross examination of
PW.1 and PW.2, in this aspect did not yield
any result in shaking truthfulness of the
deposition of PW.1PW.2 and CW.1. Defence also
during cross examination of PW.2 suggested
that the person in the court is not the father
of Chutke and Borki and she also did not state
that father of Chukku and Borki committed rape
on her in her statement before police.
12.1. The learned trial Court also referred to a decision in AIR
1981 (sic) law of evidence (Syed Ahmed Ali) , held that-
“A mere suggestion in cross-examination
and denial is not evidence at all. Suggestion,
if denied cannot take place of proof.
Page 13 of 31
Considering the statement of PW.2 in her
examination-in-chief wherein she stated that
on the day of occurrence, at noon, while she
was alone in the house and baby of PW.1 was
sleeping PW.1 and her husband went out for
market and at that time father of Chukku and
Borki came to her room and he, by force,
committed rape on her. The door was not bolted
from inside at that time. The person who
committed rape on her was the person present
before the court on the date of deposition
i.e. 5.1.09. From this statement of PW.2
rather it is established that being a resident
of Army quarter PW 2 could identify the
accused person by saying as father of Chukku
and Borki, and immediately thereafter, she had
identified the accused person in the dock
stating that he had committed rape on her.
P.W.-1 and also in her examination in chief
stated that accused Ram Krishna Pandey was
residing in the Army Quarter which is situated
adjacent to their quarter in order to support
the fact that P.W.-2 had known the accused
person as father of Chukku and Borki and
defence during cross-examination of either
P.W.1 or P.W.2 had not taken the plea that
accused person is not the father of Chukku and
Borki who had resided in the Army quarter
adjacent to the quarter of PW.1 and CW.1,
wherein PW.2 was staying with them coming from
Kokrajhar district, in order to take care of
the child belonging to PW.1 and CW. 1 as maid
and related to them as their cousin. From this
Page 14 of 31
statement of PW.2 no further clarification is
required to identify the accused person as
father of Chukku and Borki, because while
narrating the incident PW.2 immediately after
saying that father of Chukku and Borki came to
the room and by force committed rape on her
also stated that the person who committed rape
on her was present before the court on the
date of her deposition. No prudent person will
require any more clarification as to whether
PW-2 had identified the accused person in the
court describing that he had committed rape
with her and was present and stated to be the
father of Chukku and Borki who had committed
rape on her by force in the same tune. If
defence argued during argument that father of
Chukku and Borki remained unidentified to be
that of the accused person as stated by PW.-2
in her examination in chief, it is established
on evidence on record that at the relevant
time of occurrence of the incident, according
to PW.-1, age of the victim PW.-2 was 16
years. CW.1 also deposed that at the time of
occurrence PW.-2 was 16 years and defence did
not take any plea that PW.2 was not of the age
of 16 years at the time of occurrence of the
incident, what has been narrated by her cousin
of PW.-1 and CW.-1. PW.-2 also during her
examination in chief stated that she was an
illiterate; so PW.2, being a minor of the of
age 16 years at the same time being an
illiterate much cannot be expected from her
than that her statement in examination in
Page 15 of 31
chief immediately after such shocking incident
occurred to her as to identification of the
accused person in the dock before the court
and narrating the incident to have been
committed by father of Chukku and Borki. There
is found no missing link between these two
sentences as is mentioned in her examination
in chief and from these two sentences deposed
by PW.2 in examination-in-chief, it is easily
ascertainable that none other than accused
person is the father of Chukku and Borki, who
committed rape on her on the relevant day of
occurrence of the incident. PW.1 also in her
examination in chief stated that she knew the
accused R.K. Pandey who had been having twin
daughters namely Chukku and Borki. This
evidence of PW.1 and PW 2 remained un-rebutted
and unimpaired except to the suggestion from
the defence that the person in the court is
not the father of Chukku and Borki.
9. PW.-1 and PW.-2 in their examination-in-
chief, corroborating each other, also deposed
that inside their house the accused after
committing rape on PW.2, fled away through the
back door of the house and one Helmet was
lying on the rack of the kitchen. Accused
after sometime came again to their quarter and
forcibly had taken away the helmet. He also
threatened not to discuss or lodged any case
about the occurrence of the incident otherwise
he would kill them. Ld. Advocate from the
accused person submitted that police did not
Page 16 of 31
recover the helmet and if the helmet was
recovered the identity of the person who had
committed rape on the person of PW.2 would had
been ascertained. Only because I.O. did not
seize the helmet and due to faulty
investigation of the I.O., truthfulness of the
prosecution witnesses cannot be impaired and
shaken as is visible.”
12.2. The learned trial Court then relied upon a decision of
Hon‟ble Supreme Court in 2004 SHR(Criminal) 403 SC (sic), also
held as under:-
“Rather during cross-examination of PW.1 from
defence it is established that the helmet
that, they had seen in their Quarter belonged
to accused R.K. Pandey. This piece of evidence
had tightened the fact that only because of
the concerning helmet belong to accused R.K.
Pandey, I.O. did not conduct the investigation
properly and for that I.0., did not record the
statement of PW.2., that father of Chukku and
Borki committed rape on her and further
established that the investigation conducted
by PWs. 4 & 5 is faulty.”
Finding of the learned appellate Court:-
12.3. Upon the aforesaid aspect the learned Appellate Court had
recorded its finding as under:-
Page 17 of 31
“7. On careful scrutiny of materials on record
it appears that the entire prosecution case,
virtually rests upon the sole testimony of
victim girl-P.W.-2. Because, at the time of
alleged occurrence there was none present at
P.O. house.
Learned counsel for the appellant gave
much emphasis that the victim as P.W.2, in her
evidence before the Court, stated that she
does not know the person present in the Court.
But, defence failed to notice that P.W.-2-
victim though stated in 2nd sentence of her
evidence before the Court "I do not know the
person who is present in the Court". But,
(immediately in 10, 11 and 12 line of her
evidence) she stated “person who committed
rape with me is present before the Court
today". So, it is clear that P.W.-2 identified
the accused Ram Krishna Pandey in the dock,
who committed rape on her. So, I find no
force in the contention of the learned counsel
for the appellant that the offender is not
identified.
8. Learned counsel for the appellant tried to
impress this Court that P.W.-2 in her
statement u/s.164 Cr.P.C. (Ext.4) stated that
an unknown boy forcibly entered into the house
and committed rape on her. He added that the
evidence of the victim as P.W.-2 as well as
that of P.W.1 and C.W.1 that accused later
came back to their house to take the helmet
which he left at the rack of the kitchen when
Page 18 of 31
he left the P.O. house. It seems this portion
of evidence is a subsequent exaggeration of
P.W.1 and C.W.1. P.W.2 nowhere stated in her
statement u/s.164 Cr.P.C. (Ext.4) that accused
returned back to take his helmet. But, this
portion of evidence as it appears not directly
concern with the commission of the offence of
rape. So, it is not material to cut the root
of the prosecution case either on the point of
criminal trespass and commission of rape. On
the other hand, it appears that victim-P.W.2
is quite consistent in her statement since the
time she made her statement before the
Magistrate u/s.164 Cr.P.C., or before the
trial Court. So, there is nothing to
disbelieve the victim-P.W.2 who deposed at the
cost of her reputation as well as reputation
of her family and at the cost of her future
matrimonial life. Besides, the defence also
failed to assail the credibility of P.2 on
material particulars during cross-examination.
9. It is the cardinal principle of criminal
law that it is not the quantity of evidence,
but the quality of the evidence is to be
weighted for right decision of a criminal
case. Mere some exaggeration in the statement
of P.W,1 and C.W.1 cannot cut the root of the
prosecution case if the evidence of P.W.2-
victim inspite confidence.
Finding of this Court:-
Page 19 of 31
12.4. The finding of the learned Courts below, when examined in
the light of the given facts and circumstances on the record, this
Court finds that the same suffers from no illegality or impropriety.
Firstly, though minor contradiction appears to be here and there
in the version of the evidence of the victim (PW-2), yet the same
are minor in nature and the same are not sufficient to spell
inveracity to her version. Secondly, the evidence of the P.W.1 and
C.W.1 have amply corroborated to the version of the victim (P.W.2).
the victim had identified the accused in the dock of the
Thirdly,
Court, during trial, and the same is sufficient. Though she had failed
to disclose the name of the accused, she identified him as the father
of Chukku and Borki, who had committed rape upon her.
nothing tangible could be elicited in the cross-
Fourthly,
examination of the P.W.-1., P.W.-2 and C.W.-1. Fifthly, entering
of the accused inside the room of the P.W.1 and forcefully taking
away of the helmet, which he left on the rack of the kitchen in the
house of P.W.-1, and threatening of P.W.-1 and C.W.-1, not to
disclose the matter and not to lodge the FIR, lends further
assurance the evidence of the victim, P.W.-1 and C.W.-1.
12.5. Even though the learned Appellate Court had held that PW-
1 and CW-1 had exaggerated by deposing about taking away of the
helmet, which the accused left on the rack of the kitchen by
threatening the PW-1 and CW-1, on the ground that PW-2, the
victim stated nothing about the helmet, yet the said finding seems
Page 20 of 31
to be not based upon any logic, in as much as the PW-2, being the
victim of the rape, was in distress and PW-1 and CW-1 found her in
such a condition when they returned to the quarter from the
market. It cannot be expected from the victim of such a heinous
crime to enquire what the perpetrator of such crime left at the place
of occurrence. There is no justifiable reason to disbelieve the
evidence of PW-1 and CW-1 in respect of helmet. They have no
reason to depose falsely. It is true that the I.O. had not seized the
helmet. This defective investigation, as rightly been held by the
learned Trial Court, could not shake the truthfulness of the
prosecution witnesses.
12.6. Though Mr. Borah submits that there are material
contradictions in the evidence of the prosecutrix, and the same has
been proved by the I/O, and that such the contradictions casts
doubt about the veracity of the evidence of prosecutrix (PW-2) and
she is not at all a reliable witness, the said submission left this Court
unimpressed in view of the fact that the victim, in her statement
before the I.O., had actually stated that accused R.K. Pandey had
committed sexual intercourse with her, though she had not stated
that father of Chukku and Borki committed rape on her.
12.7. Further, it is well settled that identification of accused in the
Court, during trial is sufficient. Reference in this context can be
made to a decision of Hon‟ble Supreme Court in the case of
Ronny
@ Ronald James Alwaris Etc. v. State of Maharashtra
Page 21 of 31
reported in wherein it has been held that
(1998) 3 SCC 625,
identification of the accused by a witness, for the first time in court
(without prior TIP) is substantive evidence, under Section 9 of the
Indian Evidence Act. Same proposition is laid down in the case of
reported
Malkhansingh & Ors. v. State of Madhya Pradesh,
in (2003) 5 SCC 746 wherein Hon‟ble Supreme Court has held
that the substantive evidence of identity is the identification of the
accused by the witness in court (dock identification) during the trial.
This proposition is again reiterated in the case of P. Sasikumar v.
The State Rep. by the Inspector of Police reported in
(2024) 8 SCC 600).
12.8. In view of the aforesaid legal proposition, the submissions
of Mr. Borah that in respect of not mentioning of name of the
accused/petitioner, in her statement before the Magistrate under
Section 164 of the Code of Criminal Procedure, cannot be accepted.
12.9. It is now well settled that minor contradictions may be here
and there, in the evidence of the witnesses, but, the same do not
spell inveracity into their versions. Reference in this context can be
made to a decision of Hon‟ble Supreme Court in the State of
Pubjab –Vs- Gurmit Singh, reported in 1996 Crl. L.J.
1728, wherein it has been held as under: –
“the testimony of victim in case of sexual
offence is vital and unless there are
Page 22 of 31
compelling reason which necessitate
looking for corroboration of her
statement, the Court should find no
difficulties to act on the testimony of a
victim of sexual assault alone to convict
an accused where her testimony inspire
confidence and is found to be reliable.
Seeking corroboration of statement before
relying upon the same, as a rule, in such
cases amounts to adding insult to injury.”
12.10. Though Mr. Borah has argued that the victim had raised no
hue and cry at the time of occurrence and that neighbouring
witnesses have not been examined by the prosecution side, though
independent witnesses were available in the upstairs and this cast a
doubt about the occurrence, yet, said submissions also left this
Court unimpressed. It is crystal clear from the evidence of the victim
that the accused gagged her mouth, for which she could not raise
hue and cry and that the accused had threatened to kill her and also
threatened the P.W.1 and C.W.1 to be killed in the event of lodging
of the case.
12.11. Besides, the occurrence took place inside the room and as
such even if there were other neighbours in the said locality they
had no occasion the see the occurrence and since the victim could
not raise hue and cry on account the her mouth being gagged, the
question of hearing the incident, by the neighbours, does not arise.
Besides, the accused/petitioner could not demonstrate any reason
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or adduce any evidence of his false implication with the offence,
during trial.
(II) The argument of delay in lodging the FIR after two
days:-
13. With regard to the ground as well as the submission of Mr.
Borah, learned counsel for the petitioner, that the FIR was filed after
two days of the occurrence, this Court finds that while the
occurrence took place on 02.09.2007, the FIR was lodged on
04.09.2007, on which medical examination of the victim was
conducted. But, it appears that there is explanation for the delay.
The learned trial Court, while dealing with the issue of delayed
medical examination of the victim, had held as under:-
“10. ………………………..
………………………….
……………………….
“To this effect of delay in conducting medical
examination on PW.2 there was a good
explanation given by PWs and PW.1 deposed that
the accused threatened them not to lodge any
case against him for which she immediately
could not inform the matter to police. PW.2
also stated that accused had threatened her
not to disclose the matter to PW.1 and her
husband and PW.1 informed the police and
police sent her to S.M.C. Hospital. C.W.1 also
stated that accused person threatened not to
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file any case and they could not take any
decision but on the next day PW.1 being
accompanied by him informed the matter to
police and army Police informed them to file a
case at Police station as the victim is a
civilian. Considering the fact that the place
of occurrence was situated within residential
quarters of Army camp at Machimpur and CW.1 as
well as the accused person have been serving
in the Army Department they preferred to
report the matter to Army police before filing
the ejhar on 4.9.07 at Arunachal outpost.
Defence could not assail this part of evidence
of PW.1, PW.2 and CW.1 regarding explanation
given for filing the ejhar on 4.9.07 as there
was two days delay.
11. Considering the facts of locality
inhabited by Army personnel these questions
arising in the matter of lodging complaint etc
cannot be wiped out as false in order to
disbelieve the evidence of PW.1, PW.2 and
CW.1. and the delay has not been explained and
that there is also no independent witness
which makes the incident doubtful and under
the aforesaid grounds Mr. Borah has contended
to allow this petition.”
13.1. The learned appellate Court also dealt with the issue of
delay in para No.10 of the impugned judgment and order as under:-
“10. On going through the materials on record
it appears that the prosecution also
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successfully explained the delay in filing
FIR. P.W.1, informant stated that since
accused gave threatening not to file F.I.R.
has caused delay in filing F.I.R. immediately,
but on the following day i.e. on 03.09.2007,
the matter was informed to Military Police.
This fact is not challenged by the defence.”
13.2. It is to be noted here that the delay in lodging the FIR and
its consequence has been dealt with by Hon‟ble Supreme Court in
the case of Gurmit Singh(supra), where in it has been held as
under:-
“In sexual offences delay in lodging FIR can
be due to variety of reasons particularly the
reluctance of the prosecutrix or her family
members to go to the police and complain about
the incident which concerns the reputation of
the prosecutrix and the honour of her family.
It is only after giving a cool thought that
complaints of offences are generally lodged.
Even if there is some delay in lodging FIR in
respect of the offence of rape if it is
properly explained and the explanation is
natural in the facts and circumstances of the
case, such delay would not matter.”
13.3. In the instant case, the finding of the learned trial Court as
well as the finding of the learned appellate Court, while examined in
the light of the proposition, laid down in the case of Gurmit Singh
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this Court find that the findings of the learned Court
(supra),
below, in respect of the delay, also suffers from no infirmity or
irregularity requiring any interference of this Court. In view of the
explanation, so forthcoming for the delay, and in view of the same
being unchallenged by the petitioner, this Court is of the view that
the delay in lodging the FIR has no bearing upon the veracity of the
prosecution case. Consequently, the submission of Mr. Borah,
learned counsel for the petitioner in this regard cannot be acceded
to. Accordingly, the same stands repudiated.
14. Now, moving forward to the submission of Mr. Borah that
the age of the victim as per medical evidence is below 18 years,
where as per school certificate her age was 16 years, this Court
finds that the victim in her evidence categorically stated that the
accused committed the offence against her will. And as such, her
age is immaterial. Moreover, the presumption u/s 114-A of the
Evidence Act is also available here in this case, which provides that
–
“If the victim states in her evidence before
the Court that she did not consent, the Court
shall presume that she did not consent.”
15. It is true that the Doctor has not found any mark of injury and
any sign of recent sexual intercourse on the person of the victim.
But, on this count alone the cogent and clear evidence of the victim
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cannot be discarded. In this context, we may refer to a decision of
the Hon‟ble Supreme Court in Guru Charan Singh vs. State of
reported in where it has been held
Hariyana, AIR 1972 SC 2661,
that absence of mark of violence on private parts, or elsewhere,
may mere suggest want of violent resistance on the part of the
victim. Besides, the victim herein this case was examined by Doctor
(P.W.3), after two days of the incident and he had clarified that
meaning of the term „recent‟- is within 24 hours. Since the victim
was examined after 48 hours, on 04.09.2007, it is natural that the
PW-3 had found no mark of injury.
16. This Court has also gone through the decisions referred by
Mr. Borah, learned counsel for the petitioner and finds that the said
decisions relate to jurisdiction of Court. But, no ground for lack of
jurisdiction by any of the Courts below, is taken by the petitioner in
this petition. Further, an Assistant Sessions Judge has jurisdiction to
try the cases under Section 376 of the erstwhile IPC (rape),
provided the case is properly made over to him/her.
16.1. The Legal Position under the CrPC was :-
(i) The offences under Section 376 IPC are exclusively
triable by a Court of Session (First Schedule to the
Cr.P.C.).
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(ii) Under Section 9 Cr.P.C., the High Court may appoint
Additional Sessions Judges and Assistant Sessions Judges
to exercise jurisdiction of a Court of Session. They form
part of the Court of Session and do not constitute a
separate court.
(iii) Under Section 194 Cr.P.C., an Additional or Assistant
Sessions Judge shall try such cases as the Sessions Judge
of the division may, by general or special order, make
over to him for trial (or as the High Court may specially
direct).
(iv) Under Section 28(3) CrPC, an Assistant Sessions Judge
may pass any sentence authorised by law except a
sentence of death, imprisonment for life, or imprisonment
for a term exceeding ten years.
16.2. Thus, once a case under Section 376 is made over under
Section 194, the Assistant Sessions Judge is competent to conduct
the trial and record a finding of guilt/acquittal.
16.3. Further, In Xxx Xxx Xxx vs. In Re – The State of
Assam (Criminal Reference No. 1 of 2016, decided on 29
August 2016, a Division Bench of this Court, while answering a
reference under Section 395(2) Cr.P.C., in respect of jurisdiction
of Assistant Sessions Judge, has held that:
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(i) An Assistant Sessions Judge is competent to try a
Sessions case made over to him/her, under Section
194 Cr.P.C.
(ii) This competence exists irrespective of whether the
Assistant Sessions Judge can impose the minimum
sentence authorised by law.
(iii) The Assistant Sessions Judge can deliver the judgment
of conviction.
(iv) If the required sentence exceeds 10 years (or involves
life imprisonment), the case record is to be placed
before the Sessions Judge for hearing on the question
of sentence and for passing the appropriate sentence.
16.4. The Division Bench also emphasised that Section 28 is a
procedural provision and must be liberally interpreted. Jurisdiction
to try the case is distinct from the power to sentence.
16.5. The specific question referred in the said reference was:-
Whether the restriction on an Assistant
Sessions Judge from passing a sentence of
imprisonment exceeding 10 years under Section
28(3) of the Cr.P.C. would act as an
impediment to conduct the trial, or would
vitiate the trial conducted by the Assistant
Sessions Judge, in respect of a case relating
to an offence punishable with imprisonment
above 10 years?
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16.6. The case that led to the reference involved charges under
Section 376D IPC (gang rape), which carries a mandatory
minimum sentence of 20 years.
16.7. Thus, this Court is of the considered opinion that the decision
referred by Mr. Borah would not advance his argument.
17. Thus, having examined the impugned judgment and order in
the light of the facts and circumstances on the record, and also in
the light of the arguments, so advanced by the learned counsel for
both the parties, this Court finds no merit in this petition and
accordingly the same stands dismissed, leaving the parties to bear
their own costs.
18. The Registry shall return the relevant case file with a copy of
this judgment forthwith.
JUDGE
Comparing Assistant
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