D. Biswas, J.@mdashAppellant Shri Haren Bora was tried and convicted u/s 448/376 IPC by the learned Sessions Judge, Nagaon in Sessions
case No. 85 (-H) of 1989 and sentenced to undergo R.I. for 1 year u/s 448 IPC and to R.I.for 7 years with fine of Rs 1000/-in default of payment
of fine, to undergo 1 months R.I. u/s 376 IPC. Being aggrieved, the Appellant has preferred this appeal on various grounds incorporated in the
memorandum.
2. Prosecution story is that on 22.11.87 at about 9.30 p.m. Smti Nilima Bora was sleeping in her father''s house along with her two-years old baby
and her sister aged 18. The accused Haren Bora, a Home Guard attached to Kaki police station, knocked at the door. As the parents of Nilima
Bora were away to neighbour''s house to attend a ''Nakhowa'', she thought that it was her parents who had knocked the door. She lighted a
''Chaki'' and, the moment she opened the door the accused gagged her mouth, laid her down and raped her forcefully. The younger sister of the
victim, hearing ruffling sound came to the front room and found her sister lying in a dishevelled condition. She however, did not see the accused as
he had left the place by that time. In the meantime, the parents also came back and Smti Nilima Bora narrated the occurrence to them by referring
to the assailant as a member of Home Guard. Her father, Shri Purna Bora took her to the nearest Police Station and around 2 P.M. lodged the
FIR depicting the above incident.
3. The police immediately registered a case and took up investigation. The accused who by that time appeared at the P.S. was arrested and
forwarded to the court. The prosecutrix was also sent for medical examination. Her statement was also recorded on 24.11.97 u/s 164 Code of
Criminal Procedure Eventually, on completion of investigation, the police submitted chargesheet against the Appellant u/s 448/376 IPC.
4. During the course of trial, prosecution examined 5 witnesses including the investigating officer. The learned Sessions Judge, mainly relying on the
statement of the prosecutrix Smti Nilima Bora, convicted the accused as aforesaid.
5. The learned Counsel for the Appellant assailed the judgment on the ground that the prosecution utterly failed to established the identity of the
accused. That apart, in view of negative medical report, the learned advocate pleaded that the conviction awarded by the Learned Sessions Judge
cannot be sustained.
6. P.W. 1 Nilima Bora is the prosecutrix. In her statement she alleged of rape by force by a member of Home Guard on the night of 22nd
November, 1997 at about 9.30 P.M. She identified the accused Haren Bora for the first time in the dock and deposed that at the time of
occurence, when her parents were away to attend a ""Nakhowa"" in the house of a co-villager, the accused knocked at the door calling ""Bhonti,
Bhonti"". Thinking that her parents might have returned home, she lighted a Chaki and opened the door. The accused entered the house, gagged her
mounth, threw her on the ground and raped her. After sometime, being attracted by ruffling sound, her younger sister aged 18 who was inside the
house came and sprinkled water on her face. By that time her parents also arrived and she reported them about the incident. She further deposed
that she could not recognise the accused and, as such, she could not name him to her parents. But she could recognise him when the police brought
him under arrest. Thereafter, she identified the accused in the dock during the trial.
7. The prosecution story is solely depended on the testimony of the prosecutrix as reproduced above. The F.I.R. Exhibit -3 was lodged by Shri
Purna Bora, father of the prosecutrix. In the ejahar we find that the accused Haren Bora has been specifically indicated as the assailant. We also
find in it that his daugther told him that the aforesaid accused person entered the house forcibly opening the door and ravished her gagging her
mouth.
8. There is an apparent gap between the statement made by the prosecutrix and the F.I.R. lodged so far the identity of the accused is concerned. It
is, therefore, necessary to examine as to how Shri Purna Bora could name the accused specifically in Exhibit-3. It is essential in view of the fact
that no identification parade has been held by the police in the instant case.
9. P.W. 1 stated that she could recognise the accused after arrest. Her father Purna Bora supported this statement to the extent of presence of the
accused. He deposed that the accused was apprehended by the police immediately and that the accused admitted his guilt. The investigating
officer, Shri Diganta Bora, P.W.-5 in his deposition has stated that the accused Haren Bora was a Home Guard and was residing in the premises
of the Police Station. He was interrogated when he appeared before him in the Police Station and after such interrogation he had arrested him. In
his cross examination he had stated that P.W. 1 Smti Nilima Bora was present at the time of filing the ejahar and at that time the accused had also
arrived there.
10. The evidence of P.W. 1, P.W. 2 and P.W. 5 read together point out that the prosecutrix had the opportunity to see the accused at the time of
filing ejahar. In her house, a few hours before, she had seen the accused while committing the offence in the light of a Chaki. Therefore, her
statement that she had identified the accused in the police Station cannot be disbelieved. It is pertinent to mention at this stage that the police had
also seized the Chaki in the instant case. Although P.W. 5 did not depose in specific term that on identification of the accused by the prosecutrix,
he had arrested the accused and forwarded him to Police station, but the evidence as above leads to the conclusion that the arrest of the accused
was due to his indictment by the prosecutrix in the police Station. This explains as to how the name of the accused Haren Bora could be reflected
in the F.I.R. lodged after the occurrence.
11. The learned Sessions Judge in his judgment pointed another relevant factor while accepting the identification of the accused by the prosecutrix
for the first time in the court. According to him, the prosecutrix told her father immediate after the occurrence that a member of Home guard had
ravished her. In the dock, she had identified the man, who is also a member of the Home Guard. This facet further lends support to the above
observation about the identification of the accused.
12. In her statement u/s 164 Code of Criminal Procedure recorded on 24.11.87, she had indicted the accused by way of reference as a member
of Home Guard and further submitted that she had seen him only once when he came for an investigation of a dispute relating to boundary. All
these circumstances on consideration as a whole lead to established that the person identified in the dock was the aggressor. The argument that
there has been no test identification is of no significance in view of the convincing evidence of P. W. 1 (Prosecutrix).
13. But identification of the accused is not enough. In order to establish a charge of rape, the prosecution has to show that it has been done against
her will or without her consent or with her consent, when her consent has been obtained by putting her in fear of death or of hurt etc. In this case
there is no allegation on any attempt to put the prosecutrix in fear of death or of hurt. The evidence has been led to show that she was over-
powered by the accused and raped. Therefore, it has to be seen whether it was done, as alleged, against her will or without her consent Before we
deal with this, it is necessary to have a look into the medical report.
14. Exhibit-4 is the medical report. It shows that the prosecutrix Smti Nilima Bora was examined on 23.11.87 at Nagaon Civil Hospital. The
doctor examining her found no external mark or injury. Her hymen was found to have old tear. There was no presence of spermatozoa. The
doctor''s opinion is that no evidence of physical injury or rape could be noted.
15. Since she was a married woman having a child, it was likely that her hymen would have only old tear as found by the doctor. From this part of
medical evidence, it cannot be said whether she was raped or not. Absence of any physical injury, however, may lead to a doubt whether the
alleged rape was committed against her will or without her consent. In a case of rape, will or consent, if any, given by the prosecutrix must be
voluntary. The mere act of helpless resignation in the face of in evitable compulsion, non-resistance or passive giving in, when volitional faculty was
either clouded by fear or vitiated by duress, could not be deemed to be consent. Consent signifies voluntary participation of the woman after
having fully exercised the choice between resistance and assent. A married woman having a child and hailing from a traditional Assamese family is
not normally expected to foist a false charge of rape against a person with whom she had no enimity. In the instant case, evidence on records show
that the prosecutrix had the opportunity to see the accused only once when he had visited their place in connection with a boundary dispute. There
is no evidence whatsoever to suggest that her father who had lodged the ejahar had any enimity with the accused. A mere suggestion that the
complainant had once proposed to give in marriage the prosecutrix with the accused is of no significance in view of the fact that the accused was a
married man having children. Situated thus, it is not expected of a woman to foist a charge of rape at the risk of her reputation. Normally a woman
in a tradition bound non-permissive society would be extremely reluctant even to admit any such incident having reflection on her character and
chastity, and to face the danger of being looked down by the members of the Society including her near and dear ones. The only inclination on the
past of a victim of rape would be to avoid giving publicity to the incident But the prosecutrix immediately after arrival of her parents reported the
matter. In this case we have no evidence even to presume that she was detected by any one in a compromising position with the accused Even the
younger sister who was in the other room was not aware of the happenings as the prosecutrix could not raise any alarm her mouth being gagged.
The circumstances Rule out the possibility of consent or wilful submission even by remote inference. From this it can be said that absence of marks
of any injury on her person does not by itself devalue her credibility. She was a helpless victim prevented by force from offering serious resistance.
The learned Sessions Judge has also dealt with this matter in details and the conclusion arrived at by him, for reasons above, calls for no
interference.
16. There can be no doubt that in an offence of rape eyewitness are rarely available. The offender selects his time and place depending on the
surrounding circumstances. The accused who had also visited the house of the co-villager to attend the Nakhowa saw the parents of the
prosecutrix and immediately left the place. He was absent from the function for sometime and, during this time, he has allegedly committed the
offence. This temporary absence of the accused from the house of the co-villager alternately justifies the prosecution allegation that he had chosen
that moment as appropriate for committing the offence.
17. There is obviously no independent corroborative evidence. In a case of rape the prosecutrix is the injured and her evidence cannot be straight-
way rejected for want of corroboration. The learned Sessions Judge had drawn support from the decision in Krishan Lal Vs. State of Haryana,
and Rafique v. State of Uttar Pradesh AIR 1981 SC 559 in order to show that the absence of corroboration to the evidence of the prosecutrix is
not fatal in a case of rape if the evidence of the prosecutrix does not suffers from any significant infirmity. Reliance has also been placed upon the
decision of the Supreme Court in B.B. Hijribhai v. State of Gujrat AIR 1983 SC. The Supreme Court in Hijribhai (supra) observed as follows:
On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an
injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the
evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of
eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex
offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration
from the Rules devised by the courts in the Western World. If the evidence of the victim does not suffer from any basis infirmity, and the
probabilities-factor'' does not render it unworthy or credence, as a general Rule, there is no reason to insist on corroboration except from the
medical evidence, where having regard to the circumstance of the case, medical evidence cannot be expected to be forthcoming subject to the
following qualifications corroboration may be insisted upon would a woman having attained majority is found in a compromising position and there
is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation or-probabilities factor''s is found to be out of
tune.
18. In the instant case. The prosecutrix or her father does not appear to have any deep seated grudge so that they should foist a charge of rape
against an innocent person. Therefore, her evidence cannot be rejected for want of corroboration.
19. The prosecutrix reported about the incident immediately after arrival of her parents. She had the occasion to see the accused while lodging the
ejahar in the police station and, after long 4 years she had identified the accused in the dock and indicated him as the assailant. Her allegation
against the accaused has been clear and positive. It cannot be treated as devoid of credence, or embellished to substantiate a false charge of rape.
20. In the result, the appeal is dismissed being devoid of merit. The accused Appellant is directed to surrender before the Court of Learned
Sessions Judge, Nagaon to serve the sentence.