Tripura High Court
Shri Haricharan Munda @ Chuka vs The State Of Tripura on 12 May, 2021
Equivalent citations: AIRONLINE 2021 TRI 314
Author: Arindam Lodh
Bench: Akil Kureshi, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J) NO.30 OF 2019
Shri Haricharan Munda @ Chuka,
S/O Shri Mangal Munda,
Resident of Mundapara, Betaga,
P.S Sabroom, District-South Tripura.
----Appellant(s)
Versus
The State of Tripura,
represented by the Secretary,
Home Department,
Government of Tripura.
----Respondent(s)
For appellant(s) : Mr. D.J. Saha, Advocate
For respondent(s) : Mr. Sumit Debnath, Addl. P.P.
Date of hearing : 28.04.2021
Date of delivery of
Judgment & Order : 12.05.2021
Whether fit for reporting : YES
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT & ORDER
(Arindam Lodh, J)
This criminal appeal is directed against the judgment and order of conviction and sentence dated 16.03.2019, passed by the learned Special Judge, Belonia, South Tripura, in case Page 2 of 25 No. Special 9 (POCSO) of 2016, whereby and whereunder the appellant has been convicted for commission of offence punishable under Sections 451 and 376(2)(i) of IPC as well as under Section 6 of POCSO Act and sentenced him to suffer R.I. for life and also to pay a fine of Rs.5,000/- under Section 6 of the POCSO Act/Section 376(2)(i) of IPC. He has also been sentenced to suffer R.I. for six months under Section 451 of IPC and to pay a fine of Rs.500/-, in default to suffer further RI for seven days. It was directed that both the sentences shall run concurrently.
2. The case of the prosecution, as projected by the learned Special Judge, is reproduced here-in-below:
"On 10.02.2016 at around 2 p.m. the wife of the informant returned to her house from the house of Ranjit Mohan Tripura where she went to attend an invitation along with her victim child, but entering into her dwelling hut she found that the accused Haricharan Munda alias Chuka was cleaning blood from the legs and private parts of the victim girl and the victim was lying on the ground. The mother of the informant then Page 3 of 25 asked the accused, what happened? The accused person replied that he did not know anything. But while the mother of the victim child asked her minor victim daughter then she replied that the accused person brought her from the house of Ranjit Tripura to her room and entered his penis to her vagina. In the meantime the accused person fled away from there. The wife of the informant saw that there was blood stain in the panty of the victim girl and blood was coming out from her private part. Then the mother of the victim called on some neighbours who assembled in the house of the informant and found the victim child bleeding by vagina. The victim was taken to Kalachara hospital and from there she was referred to Sabroom hospital."
3. Depicting this episode, the informant-father of the victim lodged ejahar with the O/C, Sabroom P.S. which was registered as Sabroom P.S. Case No.8/16, under Sections 451 and 376(2)(i)(j) of IPC and under Section 6 of the POCSO Act. Page 4 of 25
4. Being endorsed by O/C, S.I. Khokan Saha took up investigation and during investigation the victim and her mother were produced before a Magistrate and their statements under Section 164(5) of CrPC were recorded. The accused-appellant was arrested. The investigating officer recorded the statements of the available witnesses under Section 161 of CrPC, arranged for medical examination of the victim-girl. Blood samples were sent to the State Forensic Science Laboratory. On completion of investigation, the I.O. filed charge-sheet against accused Sri Haricharan Munda alias Chuka for commission of offence punishable under Sections 451 and 376(2)(i)(j) of IPC and Section 6 of POCSO Act.
5. At the commencement of trial, the learned Special Judge had framed charges against the accused-appellant under Section 451 and Section 376(2)(i) of IPC and under Section 6 read with Section 5(m) of Protection of Children from Sexual Offences Act, 2012.
6. In course of trial, prosecution examined as many as 29(twenty nine) witnesses including the victim. Thereupon, the accused person was examined under Section 313(1)(b) of CrPC. Page 5 of 25 However, the accused pleaded not guilty, but denied to adduce evidence in self defence.
7. Having taken into account the submissions of the learned counsels appearing for the parties and on consideration of the materials on record, the learned Special Judge found the accused guilty of committing the offence and the charges framed against him being proved, convicted and sentenced the accused person as stated here-in-above.
8. Feeling aggrieved and dissatisfied with the judgment of conviction and sentence as afore-stated, the accused person preferred the instant appeal before this Court.
9. We have heard Mr. D.J. Saha, learned counsel appearing for the accused-appellant(here-in-after referred to as the accused person) as well as Mr. Sumit Debnath, learned Addl. P.P. appearing on behalf of the State-respondent.
10. Mr. Saha, learned counsel appearing for the accused person submitted that the prosecution witnesses had improvised their versions in course of trial. He pointed out that the informant(PW11), the father of the victim, and the mother Page 6 of 25 of the victim(PW9) improved their versions which were not stated in the FIR. Learned counsel for the accused person tried to persuade us contending that before shifting the victim to the hospital she was taken to one Kabiraj(Ayurvedic doctor), but that Ayurvedic doctor was not examined by the prosecution and the fact that the victim was taken to an Ayurvedic doctor was suppressed in the FIR.
10.1. Learned counsel for the accused person further argued that it became apparent from the statements of the doctors that they found dirty materials in the private parts of the victim and those dirty materials would be responsible to rupture the hymen. Proceeding further, learned counsel for the accused person contended that on examination of the victim girl, the doctors did not find any semen in the private part of the victim, which negated the story of the prosecution that the victim had suffered penetrative assault.
10.2. The crux of his submission was that the medical evidence did not support the prosecution story and the victim did not give any statement or note implicating the accused person.
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11. To counter the submissions of the learned counsel for the accused person, Mr. Debnath, learned Addl. P.P. strongly defended the findings arrived at by the learned Special Judge pointing out to the statements made by PW9, the mother of the victim, recorded under Section 164(5) of CrPC. The learned Addl. P.P. contended that her depositions before the Court wholly corroborate the statements she made before the Magistrate. The medical evidence made the prosecution‟s case more stronger that it was the accused person only who committed rape upon the victim. The neighbouring people had rushed to the place of occurrence and had witnessed the victim bleeding by vagina.
12. Learned Special Judge, to determine the merits of the prosecution evidence had formulated the following questions:
"(i) Whether the evidence given by the victim on oath is admissible under Evidence Act, and whether such evidence has found corroboration from other witnesses, particularly from the evidence of the mother of the victim and from medical evidence?Page 8 of 25
(ii) Whether the accused person can be said to have committed an offence of rape and penetrative sexual assault basing on the evidence of the witnesses and particularly on the basis of medical evidence?"
13. While passing the judgment, the learned Special Judge held that the prosecution has been able to prove the foundational facts of the case and the legal presumption under Section 29 of POCSO Act was available against the accused persons. Meaning thereby, the onus was shifted upon the accused person to show why such presumption could not be available against him. But the accused person did not discharge such onus either from the evidence led by the prosecution or by adducing evidence.
14. Since, it is a court of first appeal, we have scrutinized the evidence and the materials on record meticulously to assess the sustainability of the findings of guilt of the accused person as arrived at by the learned Special Judge.
15. Having gone through the evidence of the prosecution witnesses, we find the following witnesses out of 29(twenty Page 9 of 25 nine) witnesses are very much relevant to the sustainability of the charges framed against the accused person. They are:-
(i) PW2, Kanchan Mala Tripura, (ii) PW3, Basa Laxmi Tripura, (iii) PW9, the mother of the victim, (iv) PW10, the victim, (v) PW11, father of the victim, (vi) PW12, Guna Laxmi Tripura, (vii) PW16, Ratna Tripura, (viii) PW17, Jitendra Tripura, (ix) PW 21, Dr. Anamika Nath, (x) PW22, Dr. Sailendra Tripura, (xi) PW25, Ranjit Tripura, (xii) PW27, Dr. Sagarika Tripura and (xiii) PW28, Dr. Sabyasachi Nath.
16. As we find the prosecution case started rolling from the house of Ranjit Tripura, PW25, who deposed that he arranged a ceremony in his house on 10.02.2016 on the occasion of his marriage. The mother of the victim along with the victim attended that ceremony and the accused person also attended his house at noon. Subsequently, the mother of the victim, PW9 informed him(PW25) that the accused person Page 10 of 25 committed rape on her minor daughter. The depositions of PW25 corroborates the contents of the FIR that the mother of the victim on her return from the house of PW25 found the accused committing rape on her victim daughter inside her living hut. The defence could not elicit any material contradictions.
17. PW9, the mother of the victim is the eye-witness of the occurrence. She deposed that her daughter went to the house of PW25 to attend one invitation. But, after a short while her victim daughter was found missing. As such, in search of her victim daughter, she returned home and found the accused person committing sexual intercourse on her minor daughter. PW9 then raised alarm. Responding to her alarm, PW2, Kanchan Mala Tripura, PW3, Basa Laxmi Tripura and one Satya Tripura came to her house. On enquiry, her victim daughter informed that the accused person took her victim daughter to his house alluring to give biscuit. At that instance, her husband, PW10, the informant also had returned home. Thereafter, the victim was taken to Kalachara hospital wherefrom she was shifted to Sabroom hospital. The victim was admitted there for Page 11 of 25 10/12 days. PW9 further deposed that she was produced before a Magistrate at Sabroom and her statement was recorded. She further stated that the house of the accused is situated in the same village though on another tilla and that there were some houses in between the house of PW9 and the house of PW25, Ranjit Tripura. PW9 denied the defence story that her husband had a quarrel with accused person a few days prior to the incident and fabricated the case against the accused person.
18. PW2 and PW3 also attended the invitation in the house of PW25. They deposed that they had seen PW9 and her minor daughter. PW2 saw the accused person giving biscuit to the victim in the house of Ranjit, PW25. All on a sudden, PW2 found the accused person missing in the house of Ranjit. Later on, PW9 informed PW2 that the accused person raped the minor daughter of PW9. On this, PW2 went to the house of PW9 and enquired the incident with the victim. The victim informed PW2 that the accused gave biscuit to the victim and raped her. PW2 saw the blood oozing from the private part of the victim. PW3 also saw bleeding injury on the private part of the victim. Page 12 of 25
19. PW11, the father of the victim deposed that he returned home after hearing alarm of his wife, PW9 and found the victim bleeding. He called Guna Laxmi Tripura, PW12, Jitendra Tripura, PW17 and one Satya Tripura. PW11 heard the incident of rape from his wife, PW9 and found his victim daughter profusely bleeding by vagina. Proceeding further, he deposed that the victim was shifted to Kalachara hospital and from there she was referred to Sabroom hospital wherein the victim was admitted for five days. PW11 further deposed that from Sabroom hospital he went to Sabroom P.S. and lodged ejahar written by Jitendra Tripura, PW17.
19.1. From the evidence, it has come to light that PW17 has proved the ejahar(Exbt.4/1). The cross-examination of PW17 divulged the second defence story that because of political enmity with the accused a false case was manufactured. The said defence story was advanced to PW17 that PW17 was a worker of political party IPFT, but PW17 denied that he along with Guna Laxmi and the mother of the victim being workers of IPFT party manufactured a false case against the accused person.
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20. PW12, Guna Laxmi Tripura and PW17, Jitendra Tripura in their depositions stated that the victim was taken to the house of PW12 as the father-in-law of PW12 is a Kabiraj, but seeing bleeding by vagina of the victim, PW12 along with others took the victim to Kalachara hospital and there from the victim was referred to Sabroom hospital. On being asked the victim stated to PW12 that the accused person raped her alluring her to give biscuit. PW17 also accompanied the victim to hospital and later on wrote the ejahar as per the versions of PW11, the father of the victim.
21. PW16, Ratna Tripura was informed by the mother of the victim that the accused raped her minor daughter. PW16 also went to the house of the victim just after the occurrence and found the victim bleeding by vagina. PW12 and PW16 corroborate one another on the episode that the victim was first taken to a Kabiraj and later on she was shifted to hospital.
22. PW21, Dr. Anamika Nath of Forensic Medicine and Toxicology Department of GBP Hospital, Agartala conducted ossification test to determine the age of the victim and found Page 14 of 25 that the victim was 3½ years old. The report of ossification test has been proved and marked exhibit-9.
23. PW10 is the victim. Statement of the victim was recorded by PW18, Sub-Divisional Judicial Magistrate, Sabroom, South Tripura. The statement of the victim as recorded at the time of trial by the court may be reproduced in verbatim, for convenience:-
"Do you go to school?
Ans. No Who are there in your family?
Ans. The witness keeps mum.
Where have you come today?
Ans. The witness keeps mum.
Did anything happen to you?
Ans. Again the witness keeps mum.
Did you get admitted in the hospital? Ans. The witness shakes her head and indicated that she was admitted in the hospital."
24. PW22, Dr. Sailendra Tripura of Kalachara PHC who noticed dirty materials in the private parts of the victim and referred her to Sabroom hospital keeping history in a register of the hospital. In cross he stated that, if a girl of this age without Page 15 of 25 wearing apparels moves in dirty surface, she may have such dirt in her private parts. The learned Special Judge asked the following questions to PW22 which are reproduced here-in- below, in extenso:
"What did you actually find in the vagina? Ans. I noticed vaginal secretion.
Did you notice blood secretion?
Ans. I did not notice carefully."
25. PW27, Dr. Sagarika Tripura was on duty as Medical Officer at Sabroom Hospital on 10.02.2016. She deposed that on general examination, she found the victim was mentally normal. She referred the victim to dental surgeon for ossification test. She had a light green frock and one light yellow printed blood-stained panty. On examination PW27 detected some redness and tenderness in the vulva. "There was a fresh line tear of posterior, lateral quadrant and little amount of blood clot seen. In her vaginal canal, some amount of blood clot seen." PW27 advised investigation of blood and vaginal swab. She finally opined that "the victim had recent vaginal penetration because of tear hymen presence of some amount of Page 16 of 25 blood in the vaginal canal and tenderness and redness of the vulva." PW27 further detected, "multiple nail scratch mark over right back of the forearm, multiple nail scratch on the right wrist joint. Nail scratch mark on the left mustriod process, one nail scratch mark over the back of chest(upper part). Nail scratch mark over the right arm umbilicus. Another small abrasion over the right face 1 cm x 0.2 cm. The injuries were caused within less than 24 hours." PW27 identified the medical report bearing her handwriting and signature, marked as Exbt.13.
26. Other witnesses are: PW4, who recorded the statement of the victim as per direction of the I.O. as the victim was not proficient in Bengali language. PW5 visited the victim in the hospital on the next day and the mother of the victim narrated the incident to PW5. PW6, one interpreter engaged by the court of learned SDJM while the statements of the victim and her mother were recorded under Section 164(5) of CrPC. PW8 is the O/C who recorded the FIR and endorsed the case to S.I. Khokan Saha. PW13, PW14 and PW15 are witnesses of seizure of the vaginal swab, blood, etc. of the victim. PW19 and Page 17 of 25 PW20 are witnesses of seizure of a memory card, which has ultimately not been used in the trial.
27. Now, a survey of the above discussed ocular versions of the prosecution witnesses reveals that there is contradiction in the statement of PW3 because PW3 omitted to give such statement to the I.O. that she saw bleeding injury on the private part of the victim. Further, PW12 and PW17 deposed that the victim was first taken to a Kabiraj which was neither stated by PW9, the mother of the victim nor by PW11. 27.1. Question is, as submitted by the learned counsel for the accused person, whether this discrepancy by way of omission can be said to be fatal to the prosecution case. Our answer is in negative.
27.2. Further, the contradiction in the statement of PW3 that she omitted to give statement to the I.O. that she saw bleeding injury on the private part of the victim, in our considered view, will also not be fatal to the prosecution case. 27.3. According to us, these are mere minor discrepancies, when evidence is galore that PW9 along with her victim Page 18 of 25 daughter responding to the invitation of PW25, attended his marriage ceremony on the date and time of the incident. All on a sudden, PW9 noticed that her victim daughter was missing in that house, prompting her to return to her home. Reaching the hut, she found the accused person committing sexual intercourse on her daughter. She wanted to know what happened from the accused. On enquiry, her victim daughter told her that accused allured her to give biscuit and brought her to home and committed the sexual act. The accused person had fled away. PW9 raised alarm. The neighbouring people came to the home of PW9. After a short while, her husband(PW11) also arrived at the spot. All of them had seen the victim bleeding by vagina.
28. The medical examination of the girl clearly reveals that she suffered penetrative sexual assault. The blood sample of the victim girl had matched to the blood of the accused person. PW27, Dr. Sagarika Tripura clearly opined that the victim had suffered recent vaginal penetration because of tear hymen presence of little amount of blood clot in vaginal canal and the presence of little redness and tenderness of the valva. Page 19 of 25
29. We have given our anxious consideration to the statements of the victim girl. According to us, the statement of the victim girl in course of trial clearly indicates that the victim was confused and could not understand the morality of the act done to her and that the victim was unable to speak.
30. We are in full agreement with the findings of the learned Special Judge that, in fact, the victim could not give oral evidence before the Court, but the circumstance that she got admitted in the hospital has been established when by shaking her head she answered positively. The victim also stated that the accused, namely, „Chuka‟ allured her to give biscuit.
30.1. These two statements which she answered positively carry immense importance to arrive at a right decision of the case. Further, these two statements are relevant under first part of Section 119 of the Evidence Act as the victim was a witness, who is "unable to speak" because of extreme tender years. But, the status of the victim in this case is not like a witness, who is "unable to communicate verbally" within the meaning of the proviso to Section 119 of the Evidence Act so as Page 20 of 25 to take assistance of any interpreter or special educator. The proviso to Section 119 of the Evidence Act may be reproduced here-in-below for convenience:-
"S.119 Witness unable to communicate verbally.--A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence:
Provided that if the witness is unable to communicate verbally, the court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed."
On bare reading, it is clear that the proviso of Section 119 of the Evidence Act is applicable for the witnesses, who cannot speak in the language of the court or otherwise able and can communicate otherwise than by verbal communication. Thus, the evidence of the victim has found corroboration from the prosecution witnesses, particularly the evidence of PW9, the mother of the victim and by evidence of PW2, who saw the accused giving biscuit to the victim in the house of PW25 wherein all of them attended invitation.
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31. In the instant case, we find that the learned Special Judge had put questions to the victim girl and the answers by way of signs or motions i.e. by way of shaking her head were reduced into writing in the open court. According to us, this is sufficient compliance of the requirements of Section 119 of the Evidence Act.
32. We are in no mood to give any importance to the evidence of PW22, the Doctor of Kalachara PHC who attended the victim at the first instance. We are in full agreement with the findings of the learned Special Judge that the evidence of PW22 is luminous that neither he performed his duty as a medical officer passionately nor did he give evidence sincerely before the court.
33. In our ultimate analysis, we do not find any reason to disbelieve or suspect the evidence of PW9, PW2, PW25, PW27 and PW11 who had seen the victim bleeding by vagina. PW9 is the eye-witness to the incident. The evidence of PW12 and PW17 who arrived at the spot immediately hearing the alarm raised by PW9 and that the victim girl as well as PW9 disclosed the factum of rape by the accused on the victim are Page 22 of 25 part of res gestae and admissible in evidence under Section 6 of the Evidence Act.
34. Dealing with the submission of the learned counsel for the appellant that PW9 and PW11 have not stated that the victim was taken to a Kabiraj, in our opinion, is a mere omission, which cannot shake the prosecution case in any manner and does not amount to suppression of fact for the reason of the settled law that the FIR is not the encyclopaedia of the entire episodes of the crime.
35. In our opinion, if the victim girl was taken to a Kabiraj, it does not break the entire chain of circumstances in the entire chain of connecting the crime of the accused with the crime, because the fact remains that, ultimately, the victim was taken to the hospital where she was admitted for few days and PW11, the father of the victim lodged the FIR after his return from hospital.
36. Further, the medical report clearly throws light that there are so many nail scratch marks at various parts of the person of the victim girl. The tearing hymen which was fresh in Page 23 of 25 nature clearly reveals that there was penetration of penis, even to a slightest extent on the private part of the victim girl which attracts the definition of rape as emphasized under Section 375 of the IPC. Added to it, penetration is not a sine qua non to constitute rape. The medical examination report of the victim girl clearly supports the ingredients of „carnal knowledge' which means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation[Stephens Criminal Law, 9th Ed, P.262]. In Halsbury's Statutes of England and Wales(4th Edn. Vol 12), it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation, with violence of the private person of a woman, an outrage by all means. By the very nature of offence it is an obnoxious act of the highest order.
37. On culmination of the entire evidence and materials on record, we are of the opinion that apart from the evidence of eye-witness, PW9, all other circumstances have completed the total chain which started rolling from the house of PW25 and what have been crystallized ultimately that the prosecution has been able to establish the foundational facts of the charges Page 24 of 25 levelled against the accused person as discussed in the preceding paragraphs. The legal presumptions as contemplated under Sections 29 and 30 of the POCSO Act are available against the accused person. In this situation, the onus is shifted on the accused person to show why such presumptions shall not be drawn against him. But he has not discharged his liability either from the evidence let in by the prosecution or by adducing evidence in his self defence.
38. Before parting, we have noticed that the learned Special Judge has imposed punishment upon the accused person to suffer the sentence of rigorous imprisonment for life, which shall mean imprisonment of remainder the natural life. We are doubtful if any such order passed by the Special Judge under the POCSO Act can have the effect of taking away the powers of the Governor and the President of granting pardons and remissions which are Constitutional powers which can be done by the Constitutional Courts. In any case, considering the nature and degree of offence and the age of the accused person(30 years), we are of the opinion that for fair ends of Page 25 of 25 justice, the sentence to suffer rigorous imprisonment for 20(twenty) years without remission would be justified.
39. In the result, the conviction of the accused person, the appellant herein as returned by the learned Special Judge has been upheld and affirmed. However, the accused appellant, Sri Haricharan Munda alias Chuka is sentenced to suffer rigorous imprisonment for 20(twenty) years without remission.
40. With the said modification of sentence, the present appeal preferred by the accused appellant stands dismissed.
Send down the LCRs forthwith.
(ARINDAM LODH, J) (AKIL KURESHI, CJ)