ABBAS AHMAD CHOUDHARYversusSTATE OF ASSAM

                           (2010] 1 S.C.R. 869


                   ABBAS AHMAD CHOUDHARY                        A
                                         v.
                         STATE OF ASSAM
                 (Criminal Appeal No. 951 of 2004)
                         NOVEMBER 25, 2009
                                                                B
      [HARJIT SINGH BEDI AND J.M. PANCHAL, JJ.]

      Penal Code, 1860:
     ss. 376134 and 336134 - Evidence of prosecutrix - Out c
of three accused fw(J convicted and sentenced as the third
remained absconding - Appeal of convicts dismissed by High
 Court - HELD: In a matter of rape, though statement of
prosecutrix must be given primary consideration, but at the
same time the broad principle that the prosecution has to D
prove its case beyond reasonable doubt applies equally to a
case of rape and there can be no presumption that a
prosecutrix would always tell the entire story truthfully -
Prosecutrix in her earlier statement has not attributed the
offences of rape and kidnapping to one of the appellants -
Therefore, in the light of contradictions, some doubt is created E
with regard to his involvement - He is accordingly acquitted
- As regards the other appellant, statements of the
prosecutrix and other witnesses are categoric - Prosecutrix
clearly stated that she had been kidnapped and raped by this
accused and the absconding accused - His appeal is, F
therefore, dismissed - Evidence.
   · CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No.951 of 2004.
    From the Judgment & Order dated 26.3.2004 of the High       G
Court of Gauhati in Criminal Appeal No. 199 of 2003.
                                    WITH
__c. . r"'. "'""I. A. No. 477 of 2005.
,•Judgment Recd. on 10.2.2010            869                    H
    870      SUPREME COURT REPORTS                  [2010] 1 S.C.R.

A       Shakeel Ahmed, Surya Kant and Ng. Jr. Luwang (for
    Corporate Law Group) for the appearing parties.
          The following Order of the Court was delivered
                                ORDER
B
       1. These two appeals by way of special leave arise out of
  the judgment of the High Court of Gauhati dated 26th March,
  2004 whereby the two appellants have been convicted and
  sentenced to various terms of imprisonment and fine for
C offences punishable under Sections 376/34 and 336/34 of the
  Indian Penal Code.
          2. The facts of the case are as under:-
          2.1. At about 8:00p.m., on the 15th September, 1997, the
D   accused-appellants Md. Mizazul Haq and Abbas Ahmad
    Choudhury and one Ranju Das (absconder) took up the
    prosecutrix and drove her in a Maruti vehicle to the Jalalpur Tea
    Estate after gagging her mouth. She was also raped by the
    three of them whereas the absconder also removed a sum of
    Rs. 40/- from her. An FIR was lodged at 10:30a.m. on 16th
E   September, 1997, by P.W. 7 Safaruddin, the maternal uncle
    of the victim and a case was duly registered. On the completion
    of the investigation the appellants were charged fro the
    aforementioned offences and as they denied the charges, they
    were brought to trial. The trial court relying on the evidence of
F   P.W. 6 prosecutrix as also the medical evidence of P.W. 8 and
    the statements of P.W. 5 - Constable Ranjit Dutta who had
    apprehended the appellants and the prosecutrix on the evening
    of 15th September, 1997 and taken them to the police station
    as also the Investigating Officer Dhiresh Chadnra Nath - P.W.
G   9 convicted the appellants as already indicated above. The
    argument raised on behalf of the appellants that the prosecutrix
    was about 16 years of age was repelled on the basis of the
    statement of P.W. 8 - Dr. Homeshwar Sharma who deposed
    that she was between 13 and 15 years of age on the date of
H   her medical examination i.e. 17th September, 1997. The
ABBAS AHMAD CHOUDHARY v. STATE OF ASSAM 871


additional fact urged on behalf of the appellants that the medical   A
examination had not revealed any trace of recent sexual inter
course to corroborate the allegation of rape was also repelled
by observing that the said medical examination had been
carried out after 48 hours or so of the rape and the signs
thereof would have disappeared by the passage of time. The           B
matter was thereafter taken in appeal before the High Court by
the two appellants. The appeal too was dismissed as indicated
above. It is in this situation that the matter is before us.

     3. We have heard Mr. Shakeel Ahmed for the appellant -
Abbas Ahmad Choudhary and Mr. Surya Kant, the learned C
Amicus Curiae for the co-accused Md. Mizazul Haq. We are
of the opinion that the statements of the prosecutrix - P.W. 6,
the constable - P.W. 5 and the Investigating Officer - P.W. 9
are categoric insofar as the presence of Md. Mizazul Haq is
concerned. Even in her statement recorded under Section 164 D
of the Cr.P.C. by the Magistrate on 17th September, 1997, the
prosecutrix had clearly stated that she had been kidnapped and
then raped by Md. Mizazul Haq and the absconding accused
Ranju Das, and it was while they were returning to the village
from Jalalpur Tea Estate that they had been joined by Abbas E
Ahmad Choudhary and he had merely held her hand while she
was raped second time as well by the other two.
     4. Mr. Surya Kant's argument is that the prosecutrix had
changed her story time and again and had substantially made
her statement in Court which belied her truthfulness is not          F
acceptable for the reason that as far as Mizazul Haq, appellant,
is concerned she had been consistent in her statements that
he along with Ranju Das had raped her. Equally, we are of the
opinion that in the light of the fact that the prosecutrix was 13-
15 years of age at the time of the incident, the consent, if any,    G
can be inferred from the circumstances, would become
meaningless.
    5. We are however, of the opinion that the involvement of
Abbas Ahmad Choudhary seems to be uncertain. It must first           H
    872    . SUPREME COURT REPORTS                  (2010] 1 S.C.R.


A be borne in mind that in hery statement recorded on 17th
    September, 1997, the prosecutrix had not attributed any rape
    to Abbas Ahmad Choudhary. Likewise, she had stated that he
    was not one of those who kidnapped her and taken to Jalalpur
    Tea Estate and on the other hand she categorically stated that
B while she along with Mizazul Haq and Ranju Das were returning
    to the village that he had joined them somewhere along the way
    but had still not committed rape on her. It is true that in her
    statement in court she has attributed rape to Abbas Ahmad
  . Choudhary as well, but in the light of the aforesaid
c contradictions some doubt is created with regard to his
    involvement. Some corraboration of rape could have been
    found if Abbas Ahmad Choudhary too had been apprehended
    and taken to the police station by P.W. 5 -Ranjit Dutta the
    Constable. The Constable,· however, made a statement which
D was corraborated by the Investigating Officer that only two of
    the appellants Ranju Das and Md. Mizalul Haq along with the
    prosecutrix had been brought to the police station as Abbas
    Ahmad Choudhary had run away while en route to the police
    station. Resultantly, an inference can be rightly drawn that Abbas
E Ahmad Choudhary was perhaps not in the car when the
    complainant and two of the appellants had been apprehended
    by Constable Ranjit Dutta. We are, therefore, of the opinion that
   the involvement of Abbas Ahmad Choudhary is doubtful. We
   are conscious of the fact that in a matter of rape, the statement
F of the prosecutrix must be given primary consideration, but, at
   the same time, the broad principle that the prosecution has to
   prove its case beyond reasonable doubt applies equally to a
   case of rape and there can be no presumption that a
   prosecutrix would always tell the entire story truthfully.
G        6. The appeal filed by Abbas Ahmad Choudhary is
    allowed. We order his acquittal. The appeal filed by Mizazul
    Haq is dismissed.
    R.P.                                      Appeals disposed of.
H