Tripura High Court
Sri Narayan Debnath vs The State Of Tripura on 7 July, 2020
Equivalent citations: AIRONLINE 2020 TRI 201
Author: Arindam Lodh
Bench: Akil Kureshi, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J) NO.47 OF 2019
Sri Narayan Debnath
S/O- Sri Nibaran Debnath
Vill- Kenania, P.S- Madhupur,
District- Sepahijala
..........Appellant
Versus
The State of Tripura
.........Respondent.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE ARINDAM LODH For the Appellant : Mr. R.G. Chakraborty, Advocate Ms. S. Chakraborty, Advocate For the Respondent : Mr. S. Ghosh, Addl. P.P. Date of hearing : 17.06.2020 Date of delivery of Judgment & Order : 07.07.2020 Whether fit for reporting : YES/NO J UDGEMENT& O RDER (Arindam Lodh, J) In impugnment, is the judgement and order of conviction and sentence dated 27.06.2019 respectively, passed by the learned Special Judge(POCSO), Sepahijala Judicial District, Bishalgarh, in case No. Special POCSO 10 of 2016, whereby and whereunder the appellant has been convicted under Section Page 2 of 19 376(2)(i) of IPC and Section 4 of the POCSO Act, and sentenced him to suffer RI for 10 years and to pay a fine of Rs.10,000/-, in default of payment of fine to suffer further imprisonment of 6(six) months, and further sentenced him to suffer RI for 10 years under Section 4 of the POCSO Act and to pay a fine of Rs.10,000/-, in default of payment of fine to undergo further imprisonment for 6(six) months. It was directed that both the sentences shall run concurrently.
2. The prosecution case, in a nutshell, is that on 07.12.2015, at about 6 a.m., the victim girl(here in after referred to as "victim" or "girl", according to the context) who was aged about 8 years and was a student of class-II, was waiting for the vehicle near the shop of the accused, Narayan Debnath at Kenania to go to her school, and at that time she went to the shop of the convict-appellant to purchase chips. The convict-appellant on seeing the victim called her inside his shop and made her to sit on his lap, and thereafter, he put his hand into her vagina. At that time, some people reached near the shop of the convict-appellant and the convict-appellant allowed the victim to leave his shop. On that night, the victim-prosecutrix disclosed the incident to her mother namely, Chinta Rani Debbarma. On the next day, the informant, Radha Charan Debbarma, who is the father of the Page 3 of 19 victim girl, lodged a complaint with the Bishalgarh Women Police Station about the incident.
3. On receipt of the complaint, the Officer-In-Charge of the Bishalgarh Women Police Station registered Case No.2015 BLGW 40 of 2015 dated 08.12.2015 under Section 376(2)(i) of IPC and under Section 4 of the POCSO Act.
4. Being endorsed, the investigating officer took up the case for investigation, recorded the statements of the material witnesses under Section 161 of Cr.P.C, arranged for medical examination of the victim-girl, and also the investigating officer had ensured recording of statements of the victim-girl(PW2) and Smt. Chinta Rani Debbarma(PW3) under Section 164(5) of the Cr.P.C, and accordingly, the learned Judicial Magistrate First Class had recorded the statements of the victim-girl(PW2) as well as Smt. Chinta Rani Debbarma(PW3) under Section 164(5) of Cr.P.C. The investigating officer also seized the school certificate of the victim and visited the place of occurrence accompanied by the victim and her parents and prepared the hand-sketch map.
5. After completion of the investigation, the investigating officer submitted the charge-sheet against the accused-appellant and the learned Special Judge after taking cognizance had framed the following charges:-
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"Firstly, that you on 07.12.2015 at about 6.00 A.M at South Kenania inside your shop at Kamalasagar under Bishalgarh PS committed rape upon xxxxx(name kept withheld) who was 8 years old at that time and thereby committed an offence punishable under section 376(2)(i) of the IPC and within the cognizance of this Special Court.
Secondly, that on the same date, time and place you committed penetrative sexual assault upon xxxx (name kept withheld), and thereby committed an offence punishable under section 4 of the POCSO Act, 2012, and within the cognizance of this special court."
6. During trial, the prosecution examined as many as 10 witnesses. On completion of recording of evidence, the accused was examined under Section 313 of Cr.P.C, to which he strongly denied the allegations brought against him by the prosecution and claimed to be tried.
7. The learned Special Judge(POCSO) took up the following points for discussions and decision:
"(i) Whether on 07.12.15 at about 6 a.m. at south Kenania accused Narayan Debnath committed rape on the victim girl who was aged about 8 years?
(ii) Whether on the same date, time, and place accused committed penetrating sexual assault upon the victim girl."Page 5 of 19
8. After hearing the arguments of both sides and on going through the evidences and materials available on record, the learned Special Judge found the accused-appellant guilty of committing offence and, accordingly, convicted and sentenced him as afore-stated.
9. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the accused appellant has preferred the instant appeal before this Court.
10. Mr. Chakraborty, learned counsel appearing for the convict-appellant has strongly argued that the presence and participation of the accused in the commission of the alleged offence is absolutely doubtful and on the basis of such evidence the appellant could not be convicted. The learned counsel further argued that there was no eyewitness of the alleged incident, except the girl (PW 2) herself, who has only deposed in course of trial that the accused took her on his lap and put his hand on her private part. Nowhere the victim stated that the accused-appellant penetrated finger or hand in the private part of the victim.
Learned counsel for the appellant further argued that the Medical Officer, Dr. Rajib Karmakar(PW9), who examined the victim, had categorically stated that there was no external injury detected on the body of the victim, but, the hymen was torn, bleed Page 6 of 19 and tender on touch and there was evidence of vaginal penetration. However, two specimen of vaginal swab was taken but, the prosecution had failed to produce any forensic report in this regard. He further argued that if the victim had suffered injuries on her private parts due to sexual assault, she would have felt pain and there must be bleeding, but, during the whole day, she did not state to anyone about any pain or bleeding. Learned counsel further argued that the entire story of rape is false and the appellant is the victim of family rivalry for purchasing goods on credit and no such incident took place at all.
11. Per contra, Mr. Ghosh, learned Addl. PP. relying on the testimony of the victim-girl and P.W.3, the mother of the victim- girl and also on the basis of the evidence of the P.W.9, i.e., Dr. Rajib Karmakar, argued that prosecution has been able to prove the charge levelled against the appellant. Learned Addl. P.P. further argued that the prosecution has proved the case beyond any shadow of doubt, and the learned Special Judge has not committed any error in convicting the accused-appellant as stated above.
12. In view of the aforesaid submissions of the learned counsels appearing for the parties, we have perused the Page 7 of 19 evidence and materials on record decide the sustainability of the conviction imposed by the trial court upon the appellant.
13. PW1, Sri Radhacharan Debbarma, in his deposition stated that the victim was his younger daughter and she was 8 years old. On 07.12.2015 during night time, his daughter, while going to sleep divulged to his wife that on that day while she went to the shop of Narayan Debnath for purchasing chips on her way to school, the accused-appellant, Narayan called her daughter inside his shop and made her sit on his lap and put his hand into her vagina. After that she went to school and attended her private tutor. PW1 further stated that he discussed the incident with some of the village people, namely, Mallika Debbarma, Krishna Bhowmik, Narayan Chandra Choudhury and on the following day PW1 lodged ejahar against accused Narayan Debnath.
In his cross-examination PW1 stated that he did not state to the I.O. that on the night of occurrence he did not go to the house of Krishnapada Bhowmik, Mallika Debbarma and Narayan Choudhury to discuss to matter. All the suggestive questions put by the defence lawyer has been denied by the PW1.
14. PW2, the victim in her deposition stated that few months back, on her way to school, she went to the shop of Naru kaka to purchase a packet of chips and Naru kaka took her on his Page 8 of 19 lap and put his hand on her private parts. Thereafter, she went to school. PW2 further stated that she narrated the whole incident to her mother. Thereafter, a case was lodged and she was produced before a Magistrate at Bishalgarh and further she was produced before a Doctor.
In her cross-examination PW2 deposed that she usually used to go to the bus stand at 6 a.m. for going to her school. On the date of the incident she reached home at around 10.30 a.m. After that her mother used to take care of her throughout the day. PW2 further stated that the accused cannot speak kokborok language. However, she denied the suggestion that the accused appellant did not outrage her modesty on that date and time.
15. PW3, Smt. Chinta Rani Debbarma is the mother of the victim-girl and in her deposition she stated that on 07.12.2015 the victim on way to her school went to the shop of the accused and the accused took her on his lap and put his hand on her vagina. PW3 further deposed that the victim divulged the fact at night while she was going to sleep. After that she informed the matter to her husband. PW3 further deposed that her husband on that night approached Narayan Choudhury, a local leader. On the following day, her husband lodged a case and her statement was recorded by a Magistrate at Bishalgarh.
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In her cross-examination, PW3 stated that she used to purchase household articles from the shop of accused-appellant, Narayan on credit. PW3 denied the suggestion that prior to lodging the case, the accused-appellant refused to sell any article to her on credit and to take the revenge she manufactured a false case against Narayan i.e. the accused.
16. PW5 Sri Rabindra Debbarma in his deposition stated that on 07.12.2015 during night time, Radhacharan Debbarma informed him that while the victim went to the shop of Narayan Debnath for purchasing a packet of chips, the accused offered two chocolates to the victim-girl and put his hand on the private part of the victim. PW5 further deposed that on the following day he inquired the victim and she told him that when she went to the shop of Narayan Debnath for purchasing chips, Narayan put his hand on her vagina.
In his cross-examination he deposed that he stated to the I.O that in the night of 07.12.2015 Radhacharan called him and narrated the whole incident that when the victim went to the shop of the accused, the accused put his hand in the vagina of the victim.
17. PW6, Jumeli Debbarma in her deposition stated that on 08.12.2015 she was posted in Bishaighar as JM 1st Class, and Page 10 of 19 she recorded the statement of Chinta Rani Debbarma(PW3). PW6 further deposed that the PW 3, the mother of the victim girl on oath stated that on the previous day in the morning her daughter, while proceeding towards her school, went to the shop of the accused for purchasing chips and the accused took her daughter inside the shop and on alluring to give a chocolate made her to sit on his lap and thereafter touched her vagina. At night, the victim told her about the incident.
PW6 further stated that she also recorded the statement of the victim-girl. The victim was 8 years old and PW6 put her three questions, i.e. about her school, the colour of sun and about her brother and sister, which she answered correctly and she certified her to be a competent witness. PW6 stated that the victim stated that while she went to the shop of the accused, he took her inside the shop and gave her chocolate and made her to sit on his lap and touched her vagina. Thereafter, on hearing that some people were coming, the accused had left her.
In her cross-examination, PW6 stated that she did not mention in the statements of both the witnesses that except Kokborok language they were not proficient in any other language although they gave statements in Kokborok language which she herself interpreted and recorded in English. Page 11 of 19
18. PW8, Shri Haradhan Nama deposed that he had a sweet shop at Kanania Bazar and besides his shop there was the grocery shop of accused-Narayan. He further deposed that about one year back one day when he was in his shop he heard from the local people of the market that Narayan Debnath ill behaved with a minor tribal girl in his shop. PW8 identified the accused in the dock.
In his cross-examination, he stated that the time of movement of the student is at about 7.10 a.m. to 7.15 a.m. PW8 further deposed in cross-examination that some shop owners used to open the shop in the early morning and the vendors also used to come in the market in the morning time prior to 7.00 a.m. and he used to open his market at about 6.00/6.30 a.m.
19. PW9, Dr. Rajib Karmakar, in his deposition stated that on 08.12.2015 he was posted as medical officer on deputation at Bishalgarh Sub-Divisional Hospital. On that day he examined the victim girl, aged about 8 years in connection with Bishalgarh Women P.S. Case No.40/15 as the victim was produced by a women constable. PW9 further deposed that in the report he opined that there was evidence of recent vaginal penetration. PW9 also deposed that in the report he also mentioned that "In the private parts there was redness and swelling on vulva region and the hymen found torn on superior margin, bleed and tender on Page 12 of 19 touch". PW9, further deposed that "The age of torn was 1/2 days fresh".
In his cross-examination, PW9 stated that according to the dental surgeon the age of the victim is above 6 years and the private parts of a girl of 6 to 8 years shall have delicate and tender in nature. He further revealed that the victim girl was not in a normal condition. PW9 further deposed that the victim girl must have suffered pain on her private parts just after the occurrence and while clarifying physical condition of the victim the doctor stated that the gait of the victim was not normal.
20. PW10, Smti. Shipra Das, in her deposition stated that after receipt of the complaint the Officer-In-Charge of the Bishalgarh Women Police Station registered a case under Section 376(2)(i) of IPC and under Section 4 of the POCSO Act. Being endorsed PW10 took up the investigation, recorded the statements of the victim and also examined the parents of the victim. PW10 further deposed that she visited the place of occurrence accompanied by the victim and her parents. PW10 also prepared the hand-sketch map, also seized the birth certificate of the victim- girl. PW10 further deposed that she arranged for medical examination of the victim-girl and the potency test of the accused by medical officer. She also ensured the recording of the statements of the victim-girl under section 164(5) of Cr.P.C as well Page 13 of 19 as PW3, and accordingly, the learned Judicial Magistrate 1st Class had recorded the statements of the victim and her mother.
In her cross-examination, PW10 deposed that a women constable, namely Smt. N. Suganthi Devan was an expert in Kokborok language and also acted as an interpreter, but, the PW10 in the case dairy did not mention any note in regard to the examination of the women constable. PW10 further deposed that PW5 did not state in his 161 statement that in the night of 07.12.15, Radhacharan Debbarma informed her about the incident.
21. This Court has meticulously scrutinised the testimonies of the victim girl (PW2) as well as Smt. Chinta Rani Debbarma (PW3) and also the medical report of the victim (Exbt. 7/1) along with other evidences. From the evidence of P.W 2, the prosecutrix, it is found she had categorically stated that she went to the shop of the accused to purchase a packet of chips, when the accused- appellant made her to sit on his lap and thereafter put his hand on her private parts. The testimony of the prosecutrix could not be shaken during cross-examination. Further, the statement of the victim girl is found to be consistent to her statement recorded under Section 164(5) Cr.P.C. before the Magistrate. It is extremely difficult for us to consume that a girl of 8 years would fabricate such a story, against the appellant. According to PW 2, she went to the shop of the accused. It is not the case of the appellant that no Page 14 of 19 such shop was there in the locality at that time. There is no material on record to show that this part of her deposition is incorrect. Therefore, the testimony of the girl remains totally un- impeached during examination and that by itself is sufficient to prove the guilt attributed to the appellant.
22. PW3, Smt. Chinta Rani Debbarma also corroborated the version of the victim-girl that on her way to school the accused appellant offered two chocolates to the victim and made her to sit on his lap and put his hand on her vagina. Though PW3 is not an eyewitness, but, she is the first person to whom the girl divulged the whole incident as she is the mother of the victim and this circumstance is most natural. Further, this circumstance leads us to accept the statements of the victim girl with more credence. The victim was a girl of eight years at the time of incident who was not supposed to understand the motive and action of the accused person, who is a grown up man and because of this she did not tell the incident to any other person except her mother.
23. The defence has tried to build a case that the appellant, he has been falsely implicated in this case because he had a quarrel with the mother of the victim, though there is no credible evidence to prove it. It is inconceivable that a mother would implicate a person with whom she had minor dispute on Page 15 of 19 purchase of household items on credit, in a case of this nature and that too at that cost of staking the future welfare of her own 8 years old daughter.
24. In the case of State of Rajasthan vs. Biram Lal, reported in AIR 2005 SC 2327, the Apex court held that if the sole testimony of the prosecutrix is free from blemish and implicitly reliable, then a conviction can be recorded on that basis. It was observed as follows:
"It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. If the court is satisfied that the evidence of the prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases, the court may look for corroboration from independent source or from the circumstances of the case before recording an order of conviction."
25. In the case of State of Rajasthan vs. Om Prakash, reported in AIR 2002 SC 2235, the Apex court observed a well settled proposition that conviction for an offence under Section 376 of the IPC can be based on the sole testimony of the rape victim. A woman or a girl subjected to sexual assault is not an accomplice to a crime but a victim of another person's lust and it is improper and Page 16 of 19 undesirable to test her evidence with a certain degree of suspicion, treating her as if she were an accomplice. It was further observed that the testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assaults alone to convict an accused where her testimony inspires confidence and is found to be reliable.
26. When the girl was examined in the hospital on 08.12.2015, Dr. Rajib Karmakar(PW9) stated that her hymen was found torn and there was an evidence of recent vaginal penetration. PW9 further stated that the age of torn was 1/2 days fresh. The prosecutrix being a girl aged about 8 years at that time and her hymen, having been found torn, when she was examined in hospital, is drawing expression of the fact that she had been subjected to rape in terms of Section 4 of POCSO Act and Section376(2)(i) of IPC. The medical report produced by PW9, Dr. Rajib Karmakar is sufficient to convict the appellant and establish the credibility of the statement of the victim girl (PW 2) that the accused-appellant put his hand in her private parts.
27. In Aman Kumar & Other vs. State of Haryana, reported in (2004) 4 SCC 379(para 7), the Apex Court held that: Page 17 of 19
"Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. The depth of penetration is immaterial in an offence punishable under section 376 of IPC. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law."
28. Section 4 of the POCSO Act provides the punishment for "penetrative sexual assault" which may be read as follows:-
"Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine."Page 18 of 19
29. Section 3 of the POCSO Act defines "penetrative sexual assault" which may be read as follows:-
"A person is said to commit "Penetrative sexual assault" if-
(a) He penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) He inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) He manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) He applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."
30. In the case in hand, it has come to the fore that the accused appellant has inserted his finger in and around the private parts of the girl and falls within the purview of definition of Section 3(b) of POCSO Act.
31. After meticulous appreciation of the evidence on record, it can safely be opined that the testimony of the girl finds full corroboration not only from the injuries, including torn vagina found on her person when she was examined in the hospital but Page 19 of 19 also from the statement of PW 3, her mother to whom she first divulged the entire episode. When the medical evidence supported the victim and there was nothing in the cross-examination of the victim to discard her evidence or brand it as unbelievable or untrustworthy, then, the facts stated were sufficient to come to the conclusion that the accused committed the offence.
32. By giving our thoughtful consideration to the evidence and materials on record, this Court is of the view that there is no scope to draw any other inference other than the guilt of the accused appellant to the crime. There is no reason to disbelieve the testimony of the victim and, therefore, the learned Special Judge was justified in holding that the prosecution had been able to prove the guilt of the accused beyond reasonable doubt and proceeded to convict him. The Judgement and order of conviction and sentence dated 27.06.2019 as returned by learned Special Judge are upheld and affirmed.
33. Consequently, the appeal fails and the same is dismissed.
Send down the LCRs.
(ARINDAM LODH),J (AKIL KURESHI),CJ Suhanjit