Tripura High Court
Sri Madan Deb vs The State Of Tripura on 17 February, 2021
Equivalent citations: AIRONLINE 2021 TRI 59
Author: Arindam Lodh
Bench: Akil Kureshi, Arindam Lodh
Page 1 of 40
HIGH COURT OF TRIPURA
AGARTALA
CRIMINAL APPEAL (J) 18 OF 2019
Sri Madan Deb, S/o Sri Kali Deb, resident of
Village Laltilla, PS Khowai, District Khowai Tripura.
----Appellant(s)
Versus
The State of Tripura.
----Respondent(s)
For Appellant(s) : Mrs. S. Chakraborty, Advocate.
For Respondent(s) : Mr. Kohinoor N. Bhattacharje, Advocate.
CRIMINAL APPEAL (J) 29 OF 2019
Sri Subrata Sarkar, S/o Sri Sudhir Sarkar, resident of Village Laltilla, PS Khowai, District Khowai Tripura.
----Appellant(s) Versus The State of Tripura.
----Respondent(s)
For Appellant(s) : Mr. S. Sarkar, Advocate.
For Respondent(s) : Mr. Kohinoor N. Bhattacharje, Advocate.
Date of hearing : 27.01.2021
Date of Judgment & Order : 17.02.2021
Whether fit for reporting : Yes
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR.JUSTICE ARINDAM LODH
Judgment & Order
(Arindam Lodh, J)
These two appeals arise out of common judgment and order of conviction dated 19.12.2018, whereby and whereunder the appellants, Page 2 of 40 namely, Subrata Sarkar and Madan Deb were convicted and sentenced to suffer rigorous imprisonment for 10 years along with fine of Rs.5000/- (Rupees five thousand) with default stipulation being found guilty for the commission of offence punishable under Section 376(2)(g) of the Indian Penal Code (for short, IPC) in connection with case No.ST (Type-1) 6 of 2011, passed by the learned Sessions Judge, Dhalai District, Ambassa.
2. The prosecution case as projected by the learned Sessions Judge may be reproduced here-in-below in verbatim:
"The prosecution story, in brief, is that the complainant of this case who is also the father of the victim-prosecutrix (name withheld) filed one written complaint on 20-09-2008 to the Officer-in-charge of Ambassa police station to the effect that on 20-09-2008, Saturday in the morning hours his daughter went to the DM office complex to work as helper of mason.When she reached at the DM office complex, at that time Smti. Sonabati Tripura and Smti. Malirung Reang who accompanied daughter of the complainant at the DM office complex informed his daughter that on that day three helpers were not required and told her to go back to her house. At this, on the way when she was going back to her house and reached in front of the shop of Shri Ajay Sharma, she met with Sri Subrata Sarkar and one Madan and they took his daughter towards the DM office complex again on the assurance of giving work. On the way towards DM office complex, suddenly the said two persons by force pressing her mouth with a piece of cloth took her in a building of the Forest office which was under construction inside the jungle. There at first Shri Subrata Sarkar and then one Madan committed rape upon her forcibly. They also threatened the daughter of the complainant with dire consequences keeping a knife on her neck and told her that if she told anybody about the incident, then she would be killed. When the complainant of Page 3 of 40 this case and his son were coming in a rickshaw along the said road with fire woods and reached near to the place of occurrence, at that time hearing his voice, his daughter came out from the place of occurrence and narrated the incident to him. The accused persons fled away from the place of occurrence hearing his voice. Hence, this case."
3. On the basis of aforesaid complaint, the Officer-in-Charge of Ambassa Police Station on 20.09.2008, registered Ambassa Police Station Case No.60 of 2008 under Section 376(g) of IPC. The complaint was investigated by the investigating officer. After completion of investigation, charge-sheet was submitted against the accused persons namely, Sri Subrata Sarkar and Sri Madan Deb under Sections 366/376(2)(g) of IPC vide charge-sheet No.8/09 dated 10.03.2009. After commitment, the learned Additional Sessions Judge, North Tripura, Kamalpur had conducted trial.
4. Being summoned, both the accused persons appeared before the court when charge was framed against them under Section 376 (2)(g) of IPC. They pleaded not guilty to the said charge and claimed to be tried.
5. During trial, the prosecution had examined as many as 14 witnesses and introduced the exhibited documents and the material object as Exbt. M.O.1.
6. On closure of recording evidence, both the accused persons were examined under Section 313 CrPC when they were noticed about the Page 4 of 40 incriminating evidence and materials brought on record by the prosecution witnesses to which they denied but declined to adduce any evidence from their side.
7. Thereafter, the submissions of the learned counsels appearing for the prosecution and the accused persons being heard, the learned Sessions Judge, Dhalai District, Ambassa had passed his judgment declaring the conviction and sentence against the accused persons as aforestated.
8. Being aggrieved and dissatisfied with the findings arrived at by the learned Sessions Judge, both the appellants have preferred these two appeals separately.
9. Heard Mrs. S. Chakraborty, learned counsel appearing for the accused-appellant namely, Madan Deb and Mr. S. Sarkar, learned counsel appearing for the accused-appellant namely, Subrata Sarkar. Also heard Mr. Kohinoor N. Bhattacharjee, learned counsel appearing for the State- respondent.
10. According to Mrs. S. Chakrborty, learned counsel appearing for the accused-appellant, Madan Deb has submitted that the prosecution has failed to prove the case beyond reasonable doubt. Mrs. S. Chakraborty, learned counsel has further submitted that the evidence Page 5 of 40 adduced by the prosecution witnesses suffers from serious discrepancies which should not be termed as minor discrepancies in any manner. She candidly submitted the victim girl had improved her statements during her examination-in-chief and not only that the victim girl had deviated from her previous statements which she made during her examination under Section 161(1) CrPC and Section 164(5) of CrPC as well.
11. Mrs. Chakraborty, learned counsel drawing our attention to the deposition of the doctor submitted that the victim was medically examined immediately after the occurrence but the doctor found her hymen was ruptured and healed and the doctor could not interpret whether the said rupture was old or recent. She further submitted that no x-ray report was produced by the prosecution in proof of the age of the victim. Further, Mrs. Chakraborty, learned counsel had disputed the fact that the victim was minor at the time of commission of offence and according to her the father of the victim (PW-1) himself deposed that the age of his eldest son was 21 years at the time of offence and the victim was one year younger than his eldest son. Mrs. Chakraborty, learned counsel had tried to persuade this court that to constitute the offence of rape, the prosecution had to prove beyond reasonable doubt that it must be forceful and without the consent of the woman. She tried to submit that there was no rape but it was consensual sex.
Page 6 of 4011.1 Reliance being placed on Santosh Prasad @ Santosh Kumar V. the State of Bihar, reported in (2020) 3 SCC 443, learned counsel for the appellant, Madan Deb submitted that the testimony of victim of rape should be of sterling quality. To justify her submission that it was a consensual sex, her pointed submission was that the father of the victim girl himself had deposed that after her recovery he had slapped her victim daughter. Relying on the decision of the Apex Court in Abbas Ahamad Choudhary Vrs. State of Assam, reported in (2010) 12 SCC 115, Mrs. Chakraborty, learned counsel contended that when a victim of rape herself contradicted in her statements, then, the court should not take it lightly and should put a question mark to her deposition. To support her statement that the age of the victim girl was not proved in accordance with law, learned counsel for the appellant Madan Deb had relied upon the decision of the Apex Court in Alamelu & Anr. Vrs. State of Andhra Pradesh, reported in (2011) 2 SCC 385
12. Mr. S. Sarkar, learned counsel appearing for the accused- appellant Subrata Sarkar has submitted that the story of the prosecutrix could not be believed for the reason that she deposed that the accused persons had taken her to the under constructed DM office at Jawaharnagar, Ambassa by riding a bicycle. If that be so, Mr. Sarkar, learned counsel for the appellant Subrata Sarkar emphatically contended that the victim Page 7 of 40 daughter of the complainant could have easily drawn the attention of many passersby as well as the residents of the neighbouring houses situated at both the sides of the road. But, there was no evidence on record that she ever tried to draw the attention of any person or persons that she was forcefully taken away by the accused persons. Mr. Sarkar, learned counsel for the appellant Subrata Sarkar has adopted the submissions of Mrs. S. Chakraborty, learned counsel for the appellant, Madan Deb.
13. Refuting the submissions of learned counsels for the appellants, Mr. Kohinoor N. Bhattacharjee, learned counsel appearing on behalf of the State-respondent, vehemently argued that the prosecution had discharged its burden successfully that the daughter of the complainant was raped by the two appellants. According to Mr. Bhattacharjee, learned counsel, the sole testimony of the prosecutrix can be the basis for convicting the accused-appellants. Mr. Bhattacharjee, learned counsel for the State further argued that the way the victim girl deposed during her examination-in-chief and cross-examination is sufficient to conclude that her depositions instill confidence to return a finding of guilt against the accused-appellants. Mr. Bhattacharjee has tried to convince this court that the circumstance at which she was taken away by the accused-appellants has been proved beyond reasonable doubt as being corroborated by PW-3, Mangalsree Debbarma when she deposed that "the accused persons and Page 8 of 40 Chapanti while proceeding through the road in front of my shop I heard their conversations and also talked with them. Chapanti refused to work on that day but the accused persons persuaded her to work and I told the accused persons since she was not allowed to work in the DM office complex so she would not be taken to work with the accused persons but they told that they could not work without the helper and then they proceeded through the road and Subrata has a cycle in his hand and all proceeded on foot. At that time it was about 8 am."
14. We have given our anxious thought to the submissions of the learned counsels and perused the evidence and materials brought on record to test the credibility and genuinity of the prosecution witnesses. For the sake of brevity, we may first discuss the evidence adduced by PW-3 Mangal Shree Debbarma who was the witness to identify the accused persons and the victim girl.
15. PW-3 deposed during her examination-in-chief that Pada was her son and she was known as Pada‟s mother. She had been running a tea stall towards Jawaharnagar and a forest office was situated about half mile away from her shop. She deposed that on 20.09.2008 at about 8 am, the victim girl along with Sonabati (PW-6) and Malirung went to DM office complex for working but the victim girl was not allowed to work. Having not allowed to work she was returning home when she met with the Page 9 of 40 accused-appellants. The accused-appellants told her to work with them as helper. She further deposed that while they were proceeding through the road in front of her shop, she heard their conversation and also talked with them. The said witness deposed that the victim prosecutrix refused to work on that day but the accused persons persuaded her to work as they told her that they could not work without a helper. Thereafter, the victim prosecutrix accompanied the accused-appellants and proceeded towards the place of work. She further deposed that the accused Subrata had a bicycle in his hand but all of them proceeded on foot. Deposing further, PW-3 stated that after one hour, Narendra Tripura, father of the victim prosecutrix went to her shop and told her that accused Subrata and Madan had committed rape upon his daughter in the forest office. Forest office was situated about half mile away from the shop of PW-3 as was deposed by PW-3.
During her cross-examination PW-3 stated that SPO camp was situated about 1 KM distance towards north side of her shop and forest office was situated about 2 furlongs from SPO camp. Further, in her cross- examination, she stated that every Saturday in the morning general people used to use the road for marketing at Ambassa. Vehicles also used to ply through the said road but it was rare because at that time the road was not in good condition. She further stated that the forest office was under Page 10 of 40
construction at that time and the walls were constructed upto the half level.
She also stated that she did not talk to the victim prosecutrix about the occurrence as the victim and her father were the customers of her shop. She further stated that on the fateful morning it was raining slightly for which the victim did not enter in her shop. She gave statement to the investigating officer being interrogated.
16. Next, it would be relevant to go through the deposition of the victim girl who deposed as PW-2. She deposed that at about two years ago, on one Saturday in the morning time she along with Malirung Tripura and Sonabati Tripura went to the DM office complex for working as helper but she was not allowed to work and while she was returning home she met with the accused persons on the road. The accused persons told her to work with them as helper, then, she herself and accused persons went to the shop of Pada‟s mother situated by the side of the road when Pada‟s mother told the accused persons that once she denied to work then why she would be taken to work there to which the accused persons told Pada‟s mother that to execute the work one helper was required. Thereafter, the accused Subrata took her in his cycle and both Subrata and Madan took her in a forest office which was under construction at that time. She further deposed that she was asked to sit in the front seat of the cycle i.e. on its rod and Madan took his seat in back side carrier of the cycle and accused Subrata was riding the Page 11 of 40 cycle. Proceeding further, she deposed that on reaching the forest office accused Subrata firstly committed rape on her and thereafter by the accused Madan and thereafter again accused Subrata committed rape on her by pressing napkin on her mouth so that she could not raise any shout.
PW-2 went on deposing that after commission of rape when she was coming through the road she met with her father near the forest office when her father was proceeding with rickshaw carrying fire woods. She told her father about the incident and at that time, the accused also fleeing away seeing her father. On that day her father lodged a complaint to the darogababu of Ambassa Police Station. She was taken to Kulai Hospital when doctor had examined her and kept her „Pachara‟ in the PHC. She further deposed that after one day she was brought to Agartala Hospital by darogababu and doctor examined her in the hospital. After few days of the occurrence, i.e. after 2/3 days, she was again brought and produced before the court of Kamalpur and she gave statement in her own language and the Magistrate translated the same by a person in court and recorded her version. She deposed that she put her thumb impression on it.
PW-2 had witnessed her „Pachra‟ kept in the Kulai PHC after her examination which on identification marked as Exbt.MO 1. Page 12 of 40 16.1 Being confronted with cross examination, PW-2 stated that darogababu interrogated her about the occurrence and she gave statement to him when she told that when she was returning home she met with the accused persons on the road and they told her to work with them. Her attention was drawn to her statement, recorded under Section 161 of CrPC, but, such statements were not found. She further stated in cross- examination that she told darogababu that she herself and accused persons came to the shop of Pada‟s mother by the side of the road and she told the accused persons that why they would take her for working since she denied to work on that day, but, the accused persons told her that they could not work without a helper. Attention was drawn to such statement, recorded by I.O., under Section 161 CrPC, but, no such statement was found. She further stated in her cross-examination that she told to darogababu that Subrata had taken her along with Madan on his cycle to the forest office, but, no such statement was found in her 161 CrPC statement, recorded by the I.O. PW-2 further stated that she told to darogababu that inside the forest office firstly Subrata and then Madan and thereafter again Subrata had committed rape on her by pressing napkin on her mouth. Her attention was drawn in respect of this statement, but, no such statements were found. She further stated that she told to darogababu that the accused persons had Page 13 of 40 fled away by seeing her father on road, but, when her attention was drawn to her statements made in 161 CrPC, this version was not found.
During her cross-examination, her attention was drawn to her previous statement recorded under Section 164(5) of CrPC by the learned Sub Divisional Judicial Magistrate, Kamalpur in respect of the fact that she stated that "I went to DM office complex along with Malirung and Sonapati Tripura and also stated that on way I met with present accused persons then came to the shop of Pada‟s mother, after that accused Subrata has taken me and Madan to forest office by riding his cycle." But these statements were found missing. Her attention was further drawn to her previous statement recorded under Section 164(5) of CrPC in respect of the fact that "in the forest office first Subrata then Madan and then again Subrata committed rape on me by pressing napkin on my mouth" were found missing. In her cross-examination, she stated that she got married about one month ago that means she got married about a month ago from the date of her deposition. In her cross-examination she further stated that she was brought to Kulai Hospital after the occurrence. She further stated that her house was situated about half KM distance from the DM office complex and forest office where the incident had taken place was nearer to the DM office complex. Being asked by the defence, she could not say how many numbers of workers used to work at that time on the date of Page 14 of 40 occurrence. She further stated that the public generally used the road which was near to the forest office which was under construction and the wall of which was erected upto about two cubits. Forest office was visible from the road. She further stated that for about one hour she was inside the forest office with the accused persons. She further stated that due to rape she suffered bleeding injury in her private parts and blood also had fallen on her „Pachra‟. She further stated that accused persons slapped on her face and she also received pain on her shoulder.
17. Next, it would be relevant to recapitulate the evidence of the father of the victim girl who was also the complainant. In his examination- in-chief as PW-1, he deposed that he lodged the complaint against the accused-appellants and that darogababu had written his complaint and thereafter obtained his signature on it and the signature of the witness in the complaint on identification was marked as Exbt.1. He further deposed that on 20.09.2008, in the morning, at about 9 am, he along with his son Sri Joy Singh Tripura were proceeding by rickshaw carrying fire woods and when they reached near forest office at Jawaharnagar, at that time, both the accused persons were fleeing away from the forest office with bicycle and behind them his daughter i.e. the victim prosecutrix of this case was coming out from the side of the forest office and she was crying. He further deposed that on being asked his daughter told him that in the morning she Page 15 of 40 along with Smt. Molirung Tripura and Smt. Sonabati Tripura went to DM office complex to work as labourer, but, she was not allowed to work there. Thereafter, when she was returning to house, in front of the shop of Smt. Mangalshree Debbarma (PW-3), the accused-appellants told her to work with them as a helper of mason. After that, the accused persons and his daughter came to the shop of Mangalshree and took tiffin in that shop.
He further deposed that his daughter told him that firstly she refused to work on that day, but on request of the two accused persons she agreed. Further, the said witness deposed that the accused Subrata took her in his cycle in front side and another accused Madan boarded on the back seat i.e. carrier of cycle and thereafter accused Subrata took his daughter inside the forest office. PW-1 deposed that his victim daughter also told him that the accused Subrata pressed her mouth by napkin and threatened her with dire consequences and committed rape on her. Thereafter, accused Madan also committed rape on her and again accused Subrata committed rape upon her twice and accused Madan committed rape on her once inside the forest office. He further deposed that thereafter they came to the shop of Smt. Mangalshree and told her about the occurrence. PW-1 went to the SPO camp at Jawaharnagar and informed about the occurrence. The matter was informed to Ambassa police station from the SPO camp at Jawaharnagar and he lodged oral complaint to darogababu who reduced it Page 16 of 40 into writing and after completion of writing read over the contents to him. PW-1 identified both the accused persons in the dock of the court. He further deposed that on that day darogababu brought his daughter to Kulai Hospital from his house for her medical examination and darogababu seized the „pachara‟ of his daughter in Kulai Hospital by preparing a seizure list in his presence where he put his signature [Exbt.2]. PW-1 also identified the „pachra‟ of his daughter [Exbt.MO 1]. He further deposed that on 04.05.2011 i.e. on the date of his examination before the court, he stated that the age of his daughter was 18 years only.
During his cross-examination he stated that he told to darogababu that at the time of lodging oral complaint his daughter met with the accused persons near the shop of Mangalshree and they told his daughter to work with them and thereafter the accused persons and his daughter came to the shop of Mangalshree and took tiffin. His attention was drawn to the statements he made in the ejahar, but no such statement was found therein. PW-3 further stated that he also told to darogababu at the time of lodging complaint that Subrata was riding his cycle, took his daughter in the front side of the cycle and another accused Madan boarded in the back seat carrier of the cycle and went to the forest office. His attention was drawn again to the ejahar but no such statement was found in the ejahar.
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PW-1 further stated that he told to darogababu that he saw the accused persons to flee away from the side of forest office by riding cycle but this statement was found absent when his attention was drawn to the ejahar. PW-1 further deposed that DM office is 10 minutes working distance from his house and his house is situated in the southern side of DM office complex and he further stated that SPO camp is situated at a few distance away from the forest office and on the way to his house SPO camp was situated. He also stated that the forest office was situated about 50/60 cubits distance from the road of Jawaharnagar. He further stated that forest office was under construction and wall of the said office was almost constructed at that time.
PW-1 further stated that the accused persons gave slap on the face of his daughter and he saw the sign of slap on her face. Deposing further, he stated that villagers of Nakulbari, Kalachari and Galachara use the road generally. He also stated that he had five sons and two daughters and the victim prosecutrix was his second issue and the son who was with him on the date of incident was his eldest son and the victim prosecutrix was one year younger of his eldest son who was 21 years old then. He further stated that he told to darogababu at the time of lodging of complaint that his daughter told him accused Subrata committed rape on her twice and accused Madan committed rape once inside the forest office but when Page 18 of 40 his attention was drawn to his statement, recorded under Section 161 of CrPC, during investigation, such statement was not found in the ejahar that accused Subrata committed rape upon her twice.
18. Next, it would be useful to peruse the deposition of Smt. Sonabati Debbarma who deposed as PW-6. She deposed that in the year 2008 she herself along with Malirung and victim girl came to DM office complex in the morning for working as helper. Thereafter she deposed that on that day at noon she came to know from Narendra (PW-1) that the accused persons committed rape on the victim girl inside the forest office. But when her attention was drawn to her statement, recorded under Section 161 CrPC, such statement was found absent.
19. PW-4 is the mother of the victim prosecutrix. Her depositions are repetitions of PW-1 and PW-2. In her cross-examination when her attention was drawn in respect of the fact that "when her daughter was returning home from DM office complex as she was not allowed to work, on way she met with present accused persons who approached her to work and then proceeded with them on foot and thereafter they had taken her in the forest office" were found absent.
20. PW-5, Shyam Kumar Debbarma is the husband of Mangalshree Debbarma (PW-3). He deposed that one Saturday, in the year Page 19 of 40 2008, at about 9 am, the victim girl was proceeding to her house through the road in front of their shop when accused persons met with her on the road near to his shop and brought her in his shop. He himself and his wife Mangalshree Debbarma were inside the shop and the accused persons as well as the victim girl had taken tiffin in his shop and then the accused persons told her to work with them but she did not agree. Proceeding further, he deposed that he told the accused persons that since the victim did not agree to work with them, then why they were persuading her. But the accused persons told him that without a helper they could not work on that day.
He further deposed that thereafter the accused persons and the victim had left their shop. PW-5 further deposed that Subrata had a bicycle in his hand and all started proceeding on foot. Deposing further, PW-6 stated that after about half an hour, the father of the victim girl came to his shop on running and told him that his daughter told him that the accused- appellants had committed rape on his daughter inside the forest office and also told him whether he had seen accused Subrata and Madan.
21. PW-6, Sonabati Tripura, a co-villager of victim girl has stated in her deposition that she came to know from Narendra (PW-1) that the accused-appellants committed rape on the victim inside the forest office. Page 20 of 40
In her cross-examination, her attention was drawn to the statement as she deposed in her examination-in-chief, but no such statement is found in her 161 CrPC statement, recorded by I.O.
22. PW-7, Pradip Bhandari, a constable of police deposed that on 20.09.2008 he was posted as In-charge of SPO camp, situated at DM office complex at Ambassa. On that day in the morning about 9:30/9:45 am a tribal person came to their camp and informed that his daughter was raped. He informed the matter to Ambassa Police Station.
Nothing important was elicited from his cross-examination.
23. PW-8, Smt. Banchabati Reang who deposed that she had a tea stall by the side of Jawaharnagar road. Both Narendra and his victim daughter were known to her. The present accused persons also were known to her. She deposed that one Saturday in the year 2008, the victim girl along with other tribal girls went to DM office complex in the morning for working but the victim girl did not get work and as such, she was returning home through the road in front of her shop. At that time on the road near to her shop the accused persons told her to work with them and she had seen the victim girl to proceed with the accused persons through the road. She further deposed that after a short while the father of the victim girl came to Page 21 of 40 her shop and told her that Subrata and Madan committed rape on his daughter.
Nothing important was elicited from her cross-examination. However, she stated that her husband was also present at that time in her shop when Narendra (PW-1) came to her shop and told about the occurrence.
24. PW-9 was declared as hostile. He denied that he made any statements which were recorded under Section 161 CrPC. During his cross- examination by the defence PW-9 stated that being asked by darogagabu he replied that he had no knowledge about the occurrence of rape. He further deposed that there was a bitter relation between Tribal and Bengali in that area and for that reason he closed his shop about one year ago. He further deposed that on 24.09.2008 he was in his shop for the whole day. On that day being Saturday was Ambassa market day. Proceeding futher, PW-9 further stated that on that day about 50/60 persons went to Ambassa through the road so far as his memory was concerned. The said witness further deposed that the forest office was visible from the road under tin shed with no wall at that time. PW-9 further deposed that the shop of Nacrue Reang was there beside his shop and there was no shop except their shop.
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25. PW-10 also was declared hostile. When his attention was drawn to his statement recorded under Section 161 of CrPC, he virtually denied that he had made such statements. During his cross-examination by the defence, PW-10 stated that the houses of father-in-laws‟ of the accused persons were situated at Jawaharnagar and they used to visit in their father- in-laws‟ house. Proceeding further, PW-10 stated that the work was done in the DM office complex under a sub-contractor and no local labourers were engaged by the sub-contractor. PW-10 further stated that he did not know the profession of the accused persons and he had never seen the accused persons to work in Jawaharnagar area. PW-10 further stated that he had been working in DM office complex as mason for last four years and before that he worked at Agartala under the said sub-contractor. PW-10 had voluntarily stated that darogababu asked him whether he had knowledge about the occurrence of rape on that day when he told him that he did not know but he heard later on. He further stated that he came to know about the occurrence of rape from darogababu.
26. PW-11, Babul Das was posted as Sub-Inspector of police at Ambassa police station. He deposed that at about 10:45 am he received wireless message from Constable Pradip Bhandari of Jawaharnagar SPO camp when he was informed that some people along with a victim of rape had gathered in the SPO camp and also requested for police help. He Page 23 of 40 entered the information in GD of police station and also informed the In- charge of police station. Thereafter O.C. had deputed S.I., M.R. Das with staff to enquire the matter and they went to Jawaharnagar.
During his cross-examination he failed to remember the G.D. entry No. on that day.
27. PW-12, Dr. Jayanta Sankar Chakraborty who was posted as Tutor in the Department of Forensic Department and Toxicology in AGMC & GBP Hospital on 23.12.2008. He deposed that on that day, he conducted medical examination of the victim girl in connection with Ambassa P.S. Case No.60/2008. He further deposed that he conducted general physical examination, local examination, x-ray examination and also dental examination to ascertain the age of the victim girl. On the basis of the said examination, he opined that the victim girl was more than 14 years but below 16 years of age on the date of relevant examination. He prepared the report (Exbt.5).
During his cross-examination, he stated that he did not enclose the x-ray plate of elbow joint, right wrist joint, right hip, ankle and sternum along with the report. Being questioned further by the defence, he stated that without seeing the x-ray plates, he could not say the details what was reflected in the x-ray plates individually. Proceeding further, PW-12 stated Page 24 of 40 that he had not mentioned any report about individual teeth but mentioned about the dental charting of the individual.
28. PW-13, S.I., Manoranjan Das who investigated the case. During his examination-in-chief he deposed that during the process of investigation, he visited the place of occurrence, prepared the hand sketch map of the scene of occurrence, recorded the statements of the available witnesses under Section 161 CrPC, arranged for medical examination of the victim girl and also produced the victim girl before the Judicial Magistrate for recording her statement under Section 164(5) of CrPC, collected the reports of the SFSL, seized the wearing „pachra‟ of the victim girl. Thereafter, he handed over the case diary to the O.C. on being transferred. The case was then investigated by S.I. Subhas Debbarma who had submitted charge-sheet. PW-13 had confirmed the statements of the witnesses recorded by him under Section 161 of CrPC.
29. PW-14, Dr. Subrata Biswas deposed that on 20.09.2008 he was posted as Medical Officer in Kulai Hospital. On that day, he examined the victim of this case and on examination of the victim girl, he made the following observations:-
"On her examination I found (1) Hymen was ruptured and healed, so difficult to interpret it was old or recent rupture. (2) Mild tear in posterior farnix of vagina which was recent act shows. (3) While collecting the vaginal swab there was little blood stain.Page 25 of 40
I have collected sample of the vaginal swab of the victim and handed over to the police officer of Ambassa P.S. In my opinion whether there was any rape or not it was necessary to obtain expert opinion of the chemical analysis and circumstantial evidence. I have prepared report in 3 poages and it is marked as Exbtg.12 series."
During his cross-examination, he further stated that he did not find any external injury on her body.
30. Based on those aforesaid evidences and materials on record, we are to examine the sustainability of the findings of the guilt as returned by the learned Sessions Judge against the convict-appellants.
31. There cannot be any dispute in the Bar that once the statement of the prosecutrix inspires confidence and is accepted by the Courts, as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the courts for corroboration of her statement. It is also equally true that corroboration of the testimony of the prosecutrix is a condition for judicial reliance but is not a requirement of law but a guide of prudence under the given facts and circumstances. Minor discrepancy in the statement of prosecution or insignificant discrepancy should not be a ground for throwing out and otherwise reliable prosecution case.
Page 26 of 40
32. In the instant case, the victim-prosecutrix was examined as P.W.-2. We have minutely scrutinized her oral testimony. Before discussing her oral testimony as P.W.-2 in course of trial, we deem it necessary to recapitulate her statement which she made under Section 164(5) of Cr.P.C. before the Judicial Magistrate which reads as follows:-
"On last Saturday, i.e., on 20-9-08 AD at around
9.A.M. I went to Jawahar Nagar to work as wage labourer. I did not get work after going there. Thereafter, on my way back to home two persons namely Subrata Sarkar and Madan who were on bicycle and by profession are masons stopped me on the way saying that (they) will give me work. Saying this they took me in a new building of forest office located at Jawaharnangar and raped me forcibly and threatened me with life. No one was there. Then I raised alarm and subsequently when people came there then the said persons fled from there. I don‟t know their father name. Then I told the entire fact of the incident in detail to my father. My father had lodged an ejahar in the police station."
The above statement was recorded by the learned Magistrate on 22.09.2008 i.e., after two days of the date of incident.
33. Here, it would be relevant to reproduce her cross examination during trial:-
"Cross-examination:
Darogababu interrogated me about the occurrence and I gave statement to him. I told him that when I was returning home on way I met with accused persons and they told me to work with them.
But no such statement is found in the statement of witness recorded by I/O u/s 161, Cr.P.C.
I told Darogababu that myself and accd. persons came to the shop of Pada‟s mother by the side of the road and she told the accused persons that why they will take me for working since I was denied to work on that day once, then the accused persons told her that one helper is required to work.Page 27 of 40
Attention of the witness is drawn to statement recorded by I/O u/s 161, Cr.P.C. but no such statement is found.
I told to darogababu that Subrata has taken myself and Madan his cycle to the forest office.
But no such statement is found in her statement recorded by the I/O u/s 161, Cr.P.C.
I told to darogababu that inside the Forest office firstly Subrata taken Madan then again Subrata committed rape on me by pressing napkin on my mouth.
Attention is drawn but no such statement is found in the statement recorded u/s 161, Cr.P.C.
I told to darogababu that the accused persons fled away by seeing my father on road.
But no such statement is found in the statement of the witness recorded by the I/O u/s 161, Cr.P.C.
I also stated before the court earlier that I went to DM Office complex along with Malirun and Sonapati Tripura and also stated that on way I met with present accused persons then came to the shop of Pada‟s mother, after that accused Subrata has taken me and madan to Forest Office by riding his cycle.
Attention is drawn but no such statement is found in the statement recorded u/s 164(5) Cr.P.C. by the Ld. SDJM, Kamalpur.
I also stated before the court earlier that in the forest office first Subrata then Madan and then again Subrata committed rape on me by pressing napkin on my mouth.
Attention is drawn but no such statement is found in the statement recorded u/s 164(5) Cr.P.C. by the SDJM, KMP.
I got marriage about one month ago.
It is not a fact that on the day of occurrence I did not go to the DM Office complex along with Malirung and Sonapati to work there or that I was not allowed to work there, or that when I was returning home I did not meet with the accused persons on way near the shop of Pada‟s mother, or that the accused Subrata did not take me by his cycle with accused Madan to the Forest Office, or that in the forest office firstly Subrata then Madan and then again Subrata did not commit on me.
After the occurrence I was brought to Kolai Hospital. My house is situated about ½ KM distance from the DM Office complex. Forest office where the occurrence has taken place is nearer to the DM complex. I could not say how numbers of worker used to work at that time on the date of occurrence. SPO camp is not visible from forest office where the occurrence took place. Public generally use the road passes through near to the forest office. The forest office was then undergoing construction. The wall of the forest office was completed about 2 cubits surrounding. Forest office is visible from the road. For about one hour I was detained inside the said forest office by the accused persons and I was released at about 9 AM in the morning. Due to rape, I suffered bleeding injury in my private Page 28 of 40 parts. Blood also fell down on my „pachra‟. The accd. persons gave slap on my face. I received pain on my shoulders.
It is not a fact that on the alleged date of incident in the morning my father assaulted me.
It is not a fact that I gave false statement before the court earlier and also deposed falsely today in the court. It is not a fact that my age is now 20 years, or that myself after making conspiracy with my father fabricated a false case against the present accused persons with intention to squeeze money from them, or that the accused persons never raped on me."
34. Secondly, if we go through the entire part of cross- examination, the victim-prosecutrix had tried to improve and exaggerate the version which she did not say during her previous examination. It is noticed that she has stated in her cross-examination that in her previous statement before the Court she stated that in the Forest Office, the accused- Subrata first raped her and then Madan and thereafter again Subrata committed rape upon her by pressing napkin on her mouth within a span of her detention for one hour. Now if we look at her statement under Section 164(5) of Cr.P.C., we find total absence of such statement. If we proceed further, it transpires that she has stated that " Public generally used the road passing through near the Forest Office which was under construction and the wall of the Forest Office building was about two cubit surrounding which is visible from the road". Her statement that many people used this road to go to the Ambassa market as it was a village market had found support by the statements of other witnesses including P.W.-1, P.W.-3, etc. Page 29 of 40 The wall was two cubits which means the height of the wall was 0.9144 meter i.e. below one meter.
35. Further fact as emanated from her evidence that forest office was visible from the road. The question that appears in our mind is whether considering the geographical condition of the Forest Office, it was possible for the convict-appellants to commit rape upon her detaining her therein for one hour.
36. The victim-prosecutrix as PW-2 has specifically stated that the accused-person had released her at about 9.00 A.M. in the morning from the Forest Office. As regards this statement, we have noticed that PW-5, Shyam Kr. Debbarma during his deposition said that when the victim- prosecutrix accompanied by the convict-appellants had left his shop, the father (P.W.-1) of the prosecutrix had rushed to his shop after about half an hour and told him that the victim-prosecutrix had disclosed to him that the convict-appellants had committed rape upon his daughter inside the forest office. Question that strikes our mind is that how it would be possible that when the prosecutrix herself has stated that she was detained in the Forest Office for about one hour, then, how it was possible for the PW-1 to tell the story of rape of his daughter by the convict-appellants. According to us, it cast doubt about the genuinity of the very genesis of the prosecution story. Page 30 of 40 Both PW-1 and PW-2 i.e. the father of the prosecutrix & the victim herself had deposed that at the time of committing rape, her mouth was pressed by a napkin and the convict-appellants had slapped her and furthermore, PW-1 had noticed sign of slap on the face of her daughter . But victim-prosecutrix being medically examined by PW-14 Dr. Subrata Biswas had opined that there was no mark of injury on the person of the victim at column No.6 of the prescribed form. It is necessary to mention here that the victim was medically examined at 3.35 P.M. on the date of incident and the incident took place between 8.00 A.M to 9.00 A.M.
37. The victim has further stated that due to forcible rape, she suffered bleeding injuries in her private part and "blood also fell down on my pachra". The said „pachra‟ was seized by the investigating officer by preparing seizure list (Exbt-11) and the „pachra‟ being identified was marked as Exbt-M.O-1.
38. Before us, there is no evidence that the seized „pachra‟ was containing blood. Though the „pachra (wearing apparel)‟ was sent for SFSL examination but the SFSL examination report has not been brought on record for the reasons best known to the prosecution. Furthermore, though the victim has stated that she suffered bleeding injuries on her private part but on the scene of occurrence, investigating officer (P.W.-13), Page 31 of 40 Monoranjan Das did not find any blood at the scene of occurrence. More so, none of the witnesses including PW-1, the father, who according to him first noticed her daughter coming out of the forest office did not say anything that he found blood on the person of the victim.
39. In our opinion, non-furnishing of the SFSL report in regard to blood stained „pachra‟ would definitely draw an adverse inference against the prosecution in the context of our quest for integrity and credibility of the statements of the victim.
In view of Section 114(g) of the Indian Evidence Act, 1872 which says:
"114. Court may presume existence of certain facts. --The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume--
(a) xxx xxx
(b) xxx xxx
(c) xxx xxx
(d) xxx xxx
(e) xxx xxx
(f) xxx xxx
(g) That evidence which could be and is not produced
would, if produced, be unfavourable to the person who withholds it;....."Page 32 of 40
40. The sample of vaginal swab of the victim-prosecutrix was collected by the medical officer of the Kulai PHC i.e., PW-14, Dr. Subrata Biswas though it was by preparing seizure list (Exbt-10), the same was sent to SFSL examination but the prosecution has failed to furnish the report in regard to sample of vaginal swab. Since the victim was examined by the Doctor shortly after the alleged incident, presence of semen in the vaginal swab would have corroborated the version of the victim at least to the extent of sexual intercourse. On the other hand, absence of semen would deal a serious blow to her allegations. Failure on part of the prosecution to produce the FSL report without proper justification must therefore lead to an adverse inference against the prosecution.
41. Further, PW-13, the investigating officer has specifically stated that he did not find any sign/mark on the pucca floor wherein alleged rape was committed. The Doctor who examined the victim girl has stated that the convict-appellants raped her putting her down on the floor and the exact remark is against caption "position used during the sexual assault, lying down (natural position)".
42. The Medical Officer, i.e., the PW-14 in his opinion has further stated that he found a mild tear in posterior fornix of vagina which was recent act shows and finally he said that as per his knowledge, it was very Page 33 of 40 difficult for him to pass any comment whether the victim-girl was raped or not. He has further stated that the expert opinion would be given after chemical analysis and circumstantial evidence.
43. As we said earlier, in the instant case, the prosecution has failed to produce the expert opinion for the reasons best known to them.
44. As per the victim, she was subjected to forcible sexual intercourse multiple times. Absence of any major injuries on her private parts is not consistent with this version.
45. The other part of the prosecution story is that, the prosecutrix along with one Malirung Reang and Sonabati Tripura went to the DM‟s Office in search of work but she did not get work and they returned to her house. At the time, the convict-appellants stopped her saying that they would provide her work as they required helper. The victim was refusing initially but they persuaded her. While the victim and the convict- appellants were discussing those aspects, it was noticed by P.W.-3, Smt. Mangal Shree Debbarma, her husband Shri Shyam Kr. Debbarma and Smti. Banchabati Reang, P.W.-8.
46. After careful scrutiny of their depositions, it transpires that PW-3 has stated that she heard conversation of the victim girl and the convict-appellant when they were in front of her shop whereas her husband Page 34 of 40 PW-5 has stated that the victim as well as the convict-appellants were discussing in regard to work while they were taking tiffin in side his shop.
47. PW-8 has stated that the victim and the convict-appellants were discussing near her shop. PW-8 has further stated that she has seen the victim to proceed with the victim girl through the road and PW-5 has stated that though the accused-Subrata had a bicycle in his hand but all started to proceed on foot through the road. PW-3 and PW-5 have stated that though accused-Subrata has a bicycle but they have proceeded through the road on foot.
48. In contrast, the victim has stated that they went to the Forest Office, the place of occurrence by riding the cycle and she was sitting in front side of the cycle i.e. on the iron rod and the accused-Madan was sitting on the carrier at the back of the cycle. Interestingly, the bicycle was not seized and none of the witnesses has said that the convict-appellants had fled away with the bicycle. There is yet another circumstance which requires at least cursory mention. According to the girl‟s testimony, on hearing her cry, the people had gathered to the place of occurrence when convict-appellants had fled away as would be evident from her statement made under Section 164(5) of Cr.P.C. But during her deposition, she has not stated anything that on hearing her cry people had gathered at the place Page 35 of 40 of occurrence. But she has stated that "After commission of rape when I was coming through the road I met with my father near the forest office and my father was proceeding with rickshaw carrying firewood. I told my father about the incident at that time. The accused persons also fled away seeing my father."
49. According to us, this is not minor discrepancy but major discrepancy in the statement of the victim-prosecutrix. It is settled proposition of law that statement under Section 164(5) of Cr.P.C. and Section 161 of Cr.P.C. are not material pieces of evidence but can be used for contradiction and corroboration. In our opinion, this type of major discrepancy in the circumstances of the present case affects the genesis of the prosecution case and resultantly, makes the prosecution case doubtful. In view of such discrepancy, it appears to be difficult for us, which statement of the prosecutrix is to be accepted.
50. PW-9, Shri Ajit Sharma who was running a Grocery shop which is revealed from the sketch map (Exbt-8) prepared by the investigating officer and PW-10 Shri Ranadhir Das was declared hostile at the instance of the prosecutrix. PW-9 has stated that he was not acquainted with Narendra Tripura, PW-1 and he also did not know the convict- appellants. He has further stated that he has no knowledge about any Page 36 of 40 occurrence of this case. During his cross examination by prosecution he has stated that he had given statement to darobababu on 24.09.2008 stating that at that relevant time, he had a grocery shop by the side of the Jawahar Nagar but he denied the statements which were recorded by the investigating officer under Section 161 of Cr.P.C. (Exbt-5) Being confronted by the defence, he has stated that being asked by darogababu, whether he had any knowledge about the occurrence of rape, he had stated that he had no knowledge about the occurrence of rape. On his further cross-examination, PW-9 has stated that there was bitter relation between tribal and Bengali in that area and for that reason he closed the shop about one year ago. He has further stated in his cross- examination that on 20.09.2008, he was in his shop for the whole day. He has further stated that on that day, about 50/60 persons went to Ambassa through the road. Proceeding further, he has stated that the Forest office was visible from the road and there was only tin shed with no wall at that time.
In his cross, he has revealed that there was a shop of Nacro Reang beside his shop and there was no other shop except their shop.
51. P.W.-12, Dr. Jayanta Sankar Chakraborty was posted as Tutor in the Department of Forensic Medicine & Toxicology of GBP hospital has Page 37 of 40 stated that he conducted the general physical examination, local examination, X-ray examination and also dental examination to ascertain her age. According to him, the age of the girl was more than 14 years but below 16 years on the date of relevant examination. He has furnished his report and signed on it which is marked as (Exbt-9). In his cross examination, P.W.-14 has stated that he had not done X-ray of the teeth of the victim girl and he had not enclosed X-ray plate of elbow joint, right wrist joint, right hip, ancal and sternum along with his report. The said witness has failed to say anything without seeing the X-ray plate.
52. But according to us, the statement of the PW-1, the father of the victim-girl in the prosecution case is most relevant as regards the age of the victim-girl. To determine the age of a person the best evidence is of her parents. PW-1 has categorically stated that he had five sons and two daughters and the victim-girl was his second issue and Joy Singh was his eldest son. Victim daughter was one year younger to his eldest son-Joy Singh who was attained 21 years as on the date of his examination. If we now proceed to calculate the age of the victim-girl, the alleged incident of rape had occurred on 20.09.2008 and she was examined on 04.05.2011, which means that on the date of occurrence, Joy Singh was 18 years of age and the victim girl would be 17 years being one year younger than that of Joy Singh. At the time of the alleged incident, the age of majority was 16 Page 38 of 40 years i.e. she was on her consenting age at the time of alleged incident of rape. However, these observations are in addition to the discussion on the appreciation of evidence on the basis of which we find many lacunae and contradictions in the prosecution case.
53. On summation of the entire facts and circumstances of the prosecution case, we find that the prosecutrix had changed her story time and again and had substantially deviated from her previous statement including her statement she made under Section 164(5) of Cr.P.C. which had been specifically improved and exaggerated during her examination-in- chief leaving enough space for us to doubt the credibility of the integrity of the statement of the victim-prosecutrix. Most striking feature is that Medical examination report did not corroborate the fact of rape as intended to be projected by the prosecution witnesses particularly, PW-2. More importantly, PW-14, the Doctor who examined her medically appears to be not firm in his opinion (Exbt-12 series) when he has clearly stated that it was not possible for him to pass any comment whether the victim was raped or not and he would be able to pass his definite opinion after the receipt of the expert opinion but prosecution for unknown reason has failed to bring the expert opinion i.e., SFSL report. Such report was not produced on record by the prosecution. Only presumption could be that the contents of the report were not favourable to the prosecution. That apart, as we said Page 39 of 40 earlier there is a major discrepancy in the statement of the victim-girl as regards the circumstance that actually who had noticed her first, whether it was the people, who according to her had gathered on hearing her cry or whether she met her father first on the road. The chain after the alleged incident is somehow missing and the chain is not completed since we are failing to link the appearance of the victim girl with her release from the clutches of the convict-appellant. Another important factor is that if her evidence is accepted that she suffered bleeding injuries on her private parts, then, there was definitely some sort of stain on her person at that moment but no blood was noticed on her lower part of the person and no manner of external injuries was detected when she was medically examined by the Doctor after a short while.
54. For the reason recorded above, both the appellants are given benefit of doubt and they are acquitted of the charges levelled against them.
55. Accordingly, the judgment and order of conviction and sentence dated 19.12.2018 as returned by the learned Sessions Judge, Dhalai District in Case No.S.T(Type-1) 06 of 2011 are hereby set aside and quashed. Both the appellants are set at liberty forthwith.
Send down the LCRs.
Page 40 of 40
56. Both the criminal appeals are accordingly allowed and disposed of.
(ARINDAM LODH), J (AKIL KURESHI), CJ