Tripura High Court
Sri Laxman Debbarma @ Thunta vs The State Of Tripura on 7 July, 2020
Author: Arindam Lodh
Bench: Akil Kureshi, Arindam Lodh
Page 1 of 40
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl. A(J) No. 35 of 2019
Sri Laxman Debbarma @ Thunta, son of Sri
Achang Debbarma, resident of Arai Number Colony
under P.S. Birganj, District: Gomati Tripura.
.....Appellant
-V E R S U S-
The State of Tripura.
..... Respondent
B_E_F_O_R_E
HON'BLE THE CHIEF JUSTICE AKIL KURESHI
HON'BLE MR. JUSTICE ARINDAM LODH
For Appellant(s) : Mr. S. Kar Bhowmik, Advocate.
For Respondent(s) : Mr. Samrat Ghosh, Addl. P.P.
Date of hearing : 17.06.2020
Date of judgment
and order : 07.07.2020
Whether fit for
reporting : YES
JUDGMENT & ORDER
(Arindam Lodh, J)
The Convict, Laxman Debbarma @ Thunta has
presented this appeal challenging the judgment of conviction
and order of sentence dated 19.03.2019 passed by the
learned Special Judge, Gomati Judicial District, Udaipur in
case No. Special 05(POCSO) of 2016, whereby and
Page 2 of 40
whereunder, he was convicted under Section-6 of Protection
of Children from Sexual Offences Act (POCSO Act for short)
and sentenced to suffer RI for 10(ten) years and to pay a fine
of Rs. 20,000/-.
BACKGROUND & RELEVENT FACTS:
[2] PW-2 (hereinafter referred to as the "victim" or the "girl", according to context) was noticed by two morning workers on a road side under Jatanbari police station with profuse bleeding on her lower portion. The matter was informed to the Jatanbari police station; the police personnel rushed to the spot and immediately shifted the girl to nearby hospital. The police personnel informed the matter to the parents of the victim (PW-2); they came to the hospital when the girl had narrated the incident.
[3] The mother of the victim (PW-1) accordingly, had lodged an oral ejahar inter alia, stating that on 20.04.2016 at about 7/8 pm Laxman Debbarma accompanied by Pilat Debbarma had taken away her minor daughter aged about 15 years by a bike with a view to go out from the road to a nearby house situated at a little distance but she was taken to a rubber garden near Chellagungmukh area and was Page 3 of 40 forcibly raped. It was further stated that two friends namely, Pilat Debbarma and Raja Debbarma were also with them. She was taken to Natunbazar hospital and subsequently, considering her critical condition, her daughter was shifted to Udaipur District Hospital. Further complaint of profuse bleeding is oozing out from her private part. The said oral ejahar was reduced into writing and accordingly, an FIR being numbered 00016 dated 21.04.2016 was registered under Sections-376(2) (i)/120B of IPC read with Section-181 of the Motor Vehicles Act and Section-6 of the POCSO Act. [4] SI Rabindra Debbarma (PW-21) being endorsed, took up investigation and through interaction with the victim girl he came to know that she had a love affair with the appellant and on the previous night at about 7.30 pm both the appellant and his two friends brought her to Chellagungmukh by a motorcycle in a rubber garden and the appellant had raped her and on the following morning the appellant left her at Jatanbari market area in bleeding condition. The I.O. went to the house of Laxman Debbarma, but, he was not available. He returned to the police station and lodged one written ejahar at Natunbazar P.S. (Exbt.17). Page 4 of 40 [5] During investigation, he seized one pachra, one legging, one panty, one vial containing urethral swab and another vial containing vaginal swab of the victim from Dr. Tani Bhattacharjee (PW-20) by preparing a seizure list. He collected the medical report on the same day. Thereafter, he again visited the house of the appellant and his two friends namely, Pilat Debbarma and Raja Debbarma and arrested them. They were also medically examined and he seized nail scraping, dried blood sample, one part of dress containing seminal stain, two vials containing controlen swab from glans penis of Laxman Debbarma and collected blood sample of Pilat Debbarma and controlen swab of glans penis of Pilat Debbarma separately packed by preparing a seizure list (Exbt.2/2). The investigating officer also seized motorcycle bearing registration No. TR-03-E-7108 in the name of Pilat Debbarma by preparing seizure list (Exbt.3/2) and a mobile was also seized.
[6] Thereafter, on 22.04.2016 he recorded the statements of Bulti Debnath under Section-161 Cr. P.C and went to the District Hospital for dental examination of the victim which was earlier suggested by Dr. Tani Bhattacharjee, but, the same could not be done due to absence of dental Page 5 of 40 surgeon. He further recorded the statement of other witnesses.
[7] PW-22, Smt. Mina Kumari Debbarma, Dy. S.P. (Head Quarter) took up investigation on 12.05.2016. She collected medical examination report and the SFSL report. She also reexamined some of the witnesses, but did not record their statements afresh as their statements were properly recorded by the previous I.O. On being satisfied, she submitted charge-sheet against the appellant under Section- 376(2)(i)/120B of IPC read with Section-6 of the POCSO Act and against Pilat Debbarma under Section-120B of IPC read with Section-181 of M.V. Act against Raja Debbarma under Section-120B of IPC.
[8] Being committed, the learned Special Judge, Gomati Judicial District, Udaipur conducted the trial. In order to bring home the charge under Section-6 of the POCSO Act, prosecution examined as many as 24 witnesses. After closure of recording evidence, during his examination under Section- 313 Cr. P.C, the accused-appellant was noticed about the incriminating materials surfaced against him from the depositions of the witnesses. He pleaded his false implication with the case and claimed to be innocent.
Page 6 of 40[9] Having considered the materials on record and after hearing the learned counsel appearing for the parties, the learned Special Judge returned the findings of guilt and accordingly, convicted and sentenced the accused-appellant as aforestated. Hence, this appeal before this Court. [10] We have heard Mr. S. Kar Bhowmik, learned counsel appearing for the appellant. Also heard Mr. S. Ghosh, learned Addl. G.A. appearing for the State-respondent. [11] Mr. Bhowmik, learned counsel for the appellant mainly had emphasized on the point that the girl was not minor at the time of commission of offence since the prosecution had failed to prove her age as 15 years. Learned counsel further submitted that the school certificate introduced by the prosecution itself had no evidentiary value since its contents were not proved in accordance with established procedure of law. He strongly argued that the parents also did not divulge the actual date of birth of their victim-daughter. He further submitted that the girl was a consenting party as she on her own volition accompanied the accused-appellant out of love affair between them which would be evident from her statements made to SI Ramendra Page 7 of 40 Debbarma during her first interaction with him at the hospital.
[12] To fortify his submission, learned counsel appearing for the appellant relied upon the cases of Alamelu & Anr vs. State Rep. by Inspector of Police reported in AIR 2011 SC 715, paras-38, 39, 40, 42, 43 and 44; Sunil v. State of Hariyana, reported in (2010) 1 SCC 742, paras-25 and 26; Birad Mal Singhvi v. Anand Purohit, reported in 1988 (Supp.) SCC 604 para-14 and State of MP v. Munna, reported in (2016) 1 SCC 696 in para-8-
11. [13] Next, the learned counsel for the appellant contended that the testimony of the prosecutrix should not be accepted as a gospel truth and he relied upon the case of Raju v. State of MP, reported in (2008) 15 SCC 133 in paras-10, 12 and 22. He further argued with vehemence that though it was suggested by Dr. Tani Bhattacharjee to conduct ossification test, but, it was not done. Further, it was found that the secondary sexual characteristics of the girl was well developed which, according to learned counsel, was quite indicative that the age of the girl was above 15 years. Page 8 of 40 SUBMISSIONS ON BEHALF OF THE RESPONDENT-STATE [14] To brush aside the submission of the learned counsel for the appellant that it was the result of consensual sex out of love affair, learned Addl. P.P. submitted that the severity of the injuries in and around the vaginal part of the girl which was revealed from the medical examination would not justify the hypothesis of consensual sex. The profuse bleeding which was found to be oozed out, would only lead to draw the inference of extreme violence before intercourse and that would not have happened had the girl been consented to the desire of the accused-appellant. [15] To confront the argument that the girl was not aged about 15 years, learned Addl. P.P. strongly contended that the victim was found to be consistent to her age during her statement recorded under Section-164 Cr. P.C. and in her deposition in course of trial. In the oral ejahar which was treated as FIR, the mother of the victim (PW-1) also mentioned the age of her victim daughter as 15 years. The medical officer also deposed that she was aged about 15 years. There was no denial on behalf of the defence to contradict the same.
Page 9 of 40[16] Before we delve into the merits of the submissions as advanced by the learned counsel for the parties, we are inclined to make a short survey of the evidence that has surfaced in course of trial to determine the sustainability of the conviction as returned by the learned Special Judge against the accused-appellant.
EVIDENCE [17] PW-1, Smti. Saral Bhakti Jamatia, the mother of the victim girl had deposed that her daughter was aged about 15 years but she could not say the exact date of birth. She deposed that on that fateful night at about 7/8 pm she called her daughter (PW-2) to take her dinner but she replied that she would take it after sometimes. When she again called her, she was found missing from her house. On the next morning, police personnel came to her house and took her to hospital where she found her daughter admitted with profuse bleeding from her private part. On being asked, her daughter told that the accused-appellant along with Pilat Debbarma and Raja Debbarma took her to Chellagung Mukh by a motorcycle and fed her some cold drinks of brand "sprite" and thereafter all of them raped her and she lost her sense. On the following morning police recovered her from the road and Page 10 of 40 took her to the hospital. She further deposed that her daughter was a student of Class-IX of Chellangungmukh School and subsequently, she lodged an oral ejahar. In her cross-examination she denied that her daughter was aged about 19 years and did not study in Class-IX. [18] PW-2, victim girl is the most vital witness and she deposed that on 20.04.2016 at about 6.30 pm she was in her house and at that time, the accused-appellant asked her over telephone to meet him. Thereafter, again at 7.00pm he again called her to meet him on the road. Initially she refused but on his insistence she met him in front of her house where she found Pilat Debbarma along with the appellant. They took her to a rubber garden situated at the back side of Chellagung Mukh School and there she found Raja Debbarma. She further deposed that seeing it to be a jungle area she requested the appellant to bring her back to the house, but, the appellant assured her not to have any fear and he offered her sprite and after sometimes she lost her sense. She further deposed that she could not say how she was taken to the hospital. She further deposed that when she regained her sense she found there was severe injury in her vagina but she could not say how she sustained it. She stated that she Page 11 of 40 knew the appellant and his two companions prior to that incident. After her release, she was taken to Amarpur Court and her statement was recorded and signed thereon marked as (Exbt.1). She categorically deposed that at the time of incident she was studying in Class-IX in Chellagung Mukh School and at the time of trial she was studying in Class-IX at Amarpur Girls H.S. School. She deposed that her date of birth was 10.08.2001.
[19] PW-3, Shri Suren kumar Jamatia, the father of the victim and he deposed that one day her daughter was taken to a rubber garden at Chellagung Mukh area by the appellant and his companions. Later on, he found his daughter in the hospital with profuse bleeding on the lower part of the body. Nothing material illustrated in the cross-examination. [20] PW-4, Shri Subash Ch. Debnath who deposed that he along with his brother-in-law while out for morning walk noticed the girl who was aged about 14/15 years with profuse bleeding on her lower portion. He informed the matter to SI Ramendra Debbarma and within 20/25 minutes said Ramendra Debbarma shifted the girl to the Natunbazar Hospital. Nothing material contradiction was noticed in his cross-examination.
Page 12 of 40[21] PW-5, Sri Subrata Debnath narrated the same facts as that of PW-4, being his brother-in-law. [22] PW-6, Sri Kishore Karmakar is the seizure witness of nail scrap, blood sample etc. of the accused appellant. On 21.04.2016 by preparing a seizure list where he signed marked as (Exbt.2), the motorcycle was also seized where he put his signature (Exbt.3). He also was the witnesses to the seizure of one mobile phone belonging to the victim. He identified his signature thereon (Exbt.4) the said mobile hand set was marked as (Exbt. M.O-1). He further deposed that on the same date a school certificate was seized relating to the victim in his presence from Chellagung Mukh School by preparing the seizure list and on being identification marked as (Exbt.5).
[23] PW-7, Sri Litan Das is also a seizure witness who witnessed to the seizure memo of blood sample, nail scrap and wearing apparels etc. of the accused appellant. [24] PW-8, Smt. Manorama Chakraborty, who deposed that she was posted as Staff Nurse at District Hospital, Tepania on 21.04.2016 and on that day one police officer seized one Pachra, one leggings, one panty and vaginal swab Page 13 of 40 of the victim by preparing a seizure list where she put her signature (Exbt.6).
[25] PW-9, Dr. Sourav Bhowmik is the medical officer who examined Pilat Debbarma on 21.04.2016 and found no injury on his person. He further deposed that he examined the accused-appellant Laxman Debbarma and found blood stain on his glans penis and seminal stain was found on the right side of his pant and both the samples were handed over to the police for chemical examination.
[26] PW-10, Smt. Jesmin Debbarma who deposed that on 25.04.2016 she along with the victim and SI Ramendra Debbarma went to the place of occurrence which was shown by the victim and from that place SI Ramendra Debbarma seized some dry leafs with some black spot appearing to be blood stain, by preparing a seizure list where she put her signature marked as (Exbt.9).
[27] PW-11, Kamal Hossain who is also a witness to the seizure memo of motorcycle, one Micromax mobile hand set, one shirt and one jeans pant of the accused-appellant, he identified the signature in the sizure memo which was marked as (Exbt.10).
Page 14 of 40[28] PW-12, Rajib Rudrapaul was also a witness to the seizure memo of Micromax mobile hand set with two SIM cards.
[29] PW-13, Sri Subhendu Debbarma who deposed that on 23.04.2016 he was posted as Teacher In-charge of Chellagung Mukh School and on being request by police, he issued one school certificate of the victim who was studying in Class-IX at that time. He further deposed that according to the school admission register her date of birth was 10.10.2001. He identified the said certificate (Exbt.11), he also identified his signature thereon marked as (Exbt.11/1). He further deposed that the date of birth of the victim girl was mentioned in the Admission Register as per the transfer certificate issued by the previous school authority. In his cross-examination PW-13 stated that neither birth certificate nor the relevant admission register were produced before them. However, he denied the suggestion that the date of birth of the victim was not recorded as 10.10.2001. [30] PW-14, Smt. Baugla Rani Jamatia is the elder sister of the victim. She identified the mobile belonging the victim by saying that the said mobile was purchased by her father PW-3.
Page 15 of 40[31] PW-15, Smt. Sangita Chakma who deposed that on 19.05.2016 blood sample of the victim was seized in her presence by Dy. SP. Mina Kumari Debbarma at Nutunbazar Rural Hospital and she signed in the seizure memo which is marked as (Exbt.12).
[32] PW-16, Smt. Ruma Lodh was also a witness to the seizure memo of the blood sample of the victim. [33] PW-17, WSI Minna Debbarma(2) who deposed that on 21.04.2016 she was posted as WSI at R. K. Pur Women PS and on being instructed she went to the hospital and met with the victim and at that time, the mother of the victim (PW-1) who lodged the oral ejahar concerning the rape upon her daughter. She further deposed that the mother of the girl put her thumb impression which is being identified and marked as (Exbt.13/1).
[34] PW-18, Sri Shyamal Debnath being posted as constable at Natunbazar P.S. on 12.07.2016. He deposed that on that day DSP Mina Kumari Debbarma seized some medical examination papers of the victim from Gomati District Hospital, Tepania in his presence and he identified his signature marked as (Exbt.14).
Page 16 of 40[35] PW-19, Sri Pallab Majumder who deposed that on 12.07.2016 while he was posted as constable he witnessed the seizure of five sheets of medical examination papers of victim by DSP Mina Kumari Debbarma.
[36] PW-20, Dr. Tani Bhattacharjee who examined the victim on 21.04.2016 and found the following injuries. On examination I found her pachra (wearing apparels) was stained with blood and she was unable to pass urine. There was tear at valve and blood stain found at both thighs, legs and foot. Trickles of fresh bleeding were at the valve. Under anesthesia victim was examined and a tear was found just below and right side of urethra measuring 1 cm in length with fresh bleeding which was repaired under anesthesia. Another tear was found on postero lateral and left side of forchette of 1 cm in length which had also fresh bleeding and same was also repaired. Both sides bleeding were stopped after such repair. Two units of blood were transfused. Blood stain was found at monspubis and valva. There was injury at lower most end of vagina with bleeding. Her vaginal swab and urethral swab along with blood stain pachra were taken and handed over to police and further recommended her X-ray for age determination.
Page 17 of 40[37] From the history given by the victim and also from the injuries found at genital organs, it was opined that the victim was sexually assaulted and she had coital injuries of recent origin which proved the incident of rape. The doctor gave her final opinion that though vaginal and urethral swab examination reports were negative but there was forceful penetration of vagina because there was a fresh genital injury with bleeding which needed to be repaired under anesthesia and even the victim needed blood transfusion for excessive bleeding. Accordingly, she prepared the report(Exbt.15) and her signature marked as Exbt.15/1. The victim also identified her two thumb impression(Exbt.15/2).
[38] PW-21, S.I. Sri Ramendra Debbarma, was posted as OC of Jatanbari Out Post and he was the first I.O. He deposed that after taking up the investigation, he met with the victim and shifted her to hospital. He talked with the girl, found her with profuse bleeding on her lower portion. He seized the wearing apparels and other articles of the victim. Informed her parents, raided the house of the accused person as named by the victim, seized the motorcycle and also seized the school certificate. He thereafter visited the place of occurrence along with the victim and other police personnel Page 18 of 40 and seized some particles. He further deposed that he seized the shirt and one jeans pant belonging to the appellant. In his cross-examination he stated that he did not see the seized articles belonging to the appellant but those were in his custody and thereafter he handed over all these articles to the subsequent I.O. He further stated in his cross- examination that he did not get the victim examined by dental surgeon.
[39] PW-22, Smt. Mina Kumari Debbarma, Dy. SP, Gomati deposed that she took up investigation on 12.05.2016 and re-examined the witnesses and collected medical report and SFSL report and thereafter submitted the charge sheet. [40] PW-23, Dr. Sabyasachhi Nath being posted as Senior Scientific Officer at State Forensic Science Laboratory, Narsingarh and recorded his findings as follows:
"Exhibit-A: One paper packet contained one blue colour pachara with maroon violet-yellow colour stripes, Exhibit-B: One paper packet contained one black leggings with white colour dots, Exhibit-C: One paper packet contained one ash colour panty.Page 19 of 40
Exhibit-D & E: One sealed paper envelop bearing necessary particulars contained two sealed glass vials marked as D and E, each having a stick wrapped with cotton, said to be urethral swab and vaginal swab of victim Jabati Jamatia respectively.
Exhibit-F: One sealed paper envelop contained few black strands, said to be pubic hair of accused Laxman Debbarma.
Exhibit-G: One sealed paper envelop bearing necessary particulars contained piece of gauge cloth bearing brownish stain, said to obe dried blood sample of accused person Laxman Debbarma.
Exhibit-H: One sealed paper envelop contained one blue coour piece of cloth, said to obe part of dress of accused Laxman Debbarma.
Exhibit-I: One sealed paper envelop bearing necessary particulars contained two plastic vials subsequently marked in Laboratory as I.1 and I.2, each having a stick wrapped with cotton, said to be control and swab from penis of accused Laxman Debbarma.
Exhibit-J: One sealed paper envelop bearing necessary particulars contained piece of gauge cloth bearing brownish stain, said to be blood sample of accused Pilat Debbarma.
Exhibit-K: One sealed paper envelop bearing necessary particulars contained two plastic vials Page 20 of 40 subsequently marked in Laboratory as K.1 and K.2, each having a stick wrapped with cotton, said to be control and swab from penis of accused Pilat Debbarma respectively.
Exhibit-L: One news paper packet contained one black colour full sleeves shirt with white and sky colour dots, said to be accused Laxman Debbarma.
Exhibit-M: One news paper packet contained one b lue colour long jeans pant (some part near right thigh is cut off), said to be of accused Laxman Debbarma.
Exhibit-N: One paper packet contained some dry leaves, said to be collected from p.o.
Exhibit-O: One sealed paper envelop bearing necessary particulars contained some small pieces of gauge cloth bearing brownish stain, said to be dried blood sample of victim Jabati Jamatia.
Exhibit-P: One sealed paper envelop bearing necessary particulars contained one paper packet having a small piece of nail like structure and a scanty dust like particle, said to be nail scrapping and part of nail of accused Laxman Debbarma.
After sub-sampling of the exhibits in Biology/Serology Division, some stained
portions of seven exhibits marked S A, B. C. G. Page 21 of 40 J. L. and O were forwarded to DNA Typing Division for further examination and opinion.
I examined those items in the Laboratory from 28.06.2016 to 05.07.2016 and finally gave the following opinion.
1. No seminal stain/Spermatozoa of human origin could be detected in the Exhibits A, B. C. D. E. H. I.2, K.2, L and M.
2. Blood stain of human origin could be detected in the exhibits A, B, C, D, E and L.
3. Blood group of the exhibits marked as A, B. C. L. and O could determine as „A‟ group.
4. Blood group of the exhibits marked as G could be determined as „O‟ group.
5. Blood group of the exhibits marked as J could be determined as „B‟ group.
6. Blood stain could be detected in the exhibit- N, but its origin and group could not be determined.
7. Blood groups of the exhibits marked as D and E could not be determined.
8. No opinion could be given regar4ding the presence of any vaginal stain in the exhibits marked as H, I.2, K.2, L and m.
9. No blood stain could be detected in the exhibit marked as M. Page 22 of 40
10. No bold stain/skin like substance could be detected in the exhibit marked as P. Thereafter, I prepared my report and sent the same. This is the said report and on identification, same is marked as Exbt.20 and signature of the witness is marked as Exbt. 20/1".
[41] PW-24, Dr. Subhankar Nath, who conducted DNA examination of the blood particles, deposed that he received 7 exhibits from Biology Serology Division of State FSL, Tripura in connection with case No. Natanbazar PS case No. 2016/NTB/016 dated 21.04.2016 u/s 376(2)(i)/120B, IPC and Section-6 of POCSO Act, 2012 and added Sections- 354(D)(1)(i), IPC on 30.06.2016, the seven exhibits are as follows:
Exbt.A: One small blue coloured cloth piece said to be the cloth piece of pachra of victim.
Exbt.B: One small black with yellow dot prints cloth piece said to be the cloth piece of leggings of victim.
Exbt.C: One small cloth piece said to be the cloth piece of the panty of victim.
Exbt.G: Dry blood sample of accused Laxman Debbarma in gauze.Page 23 of 40
Exbt.J: Dry bold sample of accused Pilat Debbarma on gauze.
Exbt.O: Dry blood sample of victim.
Exbt.L: One small black coloured dot print cloth piece said to be the cloth piece of shirt of accused Laxman Debbarma.
The exhibits marked A, B, C, G, J, O and L were examined for blood test and all the exhibits were found positive for blood of human origin.
The above-mentioned exhibits were subjected for DNA isolation by organic extraction method.
DNA recovered from the above-mentioned exhibits were subjected to multiplex PCR reaction for co-amplification of the 15 STR loci and amelogenin using AmpFL STR identifiler plus PCR amplification kit. The amplified products along with the control were run in the automated DNA sequencer. Thesizing of the fragments was carried out using Gene mapper ID software version 3.2 with respect to gene scan LIZ size standard. The resultant allelic distribution is shown in the table annexure-A observation :
Partial female genetic profile was generated from Exbt.A, Complete female genetic profile was generated from Exbt.B, Page 24 of 40 Complete female genetic profile was generated from Exbt.C, Complete male genetic profile was generated from Exbt.G, Complete male genetic profile was generated from Exbt.J, Complete female genetic profile was generated from Exbt.O, Complete female genetic profile was generated from Exbt.L, The alleles of the amplified loci of DNA profile of Exbt.B, Exbt.C and Exbt.L are matches with each other and also matches with Exbt.O. Conclusion: on the basis of the above observation it is concluded that :
The blood stain found on Exbt.B (source : one small black with yellow dot prints cloth piece said to be the cloth piece of leggings of victim), Exbt.C (source : one small cloth piece said to be the cloth piece of the pantie of victim), and Exbt.L (source : one small black coloured dot print cloth piece said to be the cloth piece of shirt of accused Laxman Debbarma) are originated from single source Exbt.O (source : dry blood sample of victim).
The period of examination was 05.07.2016- 09.08.2016.Page 25 of 40
This is the report prepared and signed by me marked as Exbt.21 and my signature as Exbt.21/1.
Cross-examination:
Exbts. A, B, C, G, J, O and L were packed in white paper. There was no gala seal on the packet. Date of packeting and the name of the packer was not mentioned. DNA examination was started in our country in the late 80's. DNA test was first applied in the case of establishing the paternity of the baby. In regard to paternity issues the outcome of DNA test was based on the theory of probability. But not in other cases. If the report of DNA is negative then the suspected person is excluded from being the biological father of the baby. There is an international as well as national guideline on the issue of DNA examination and we follow :
In this case I followed the organic extraction method. PCR was conducted. GeneAmpPCR system 9700 ABI machine using indentifiler plus kit and genotyping was conducted on automated DNA sequencer. It is not a fact that the method followed by me was not internationally adopted. It is not a fact that the method followed by me was not mentioned in my report. We forward our reports to the forwarding authority from which we received the exhibits. We are not obliged to send it to any other person. It is not a fact that the method used by us was outdated. It is not a fact that the distribution Page 26 of 40 table report is not internationally recognized. It is not a fact that my report is not as per law.
Sri S. K. Singh, deposed that he recorded the statement of the victim girl.
FINDINGS AND DECISION [42] Keeping in view the aforesaid evidence and materials on record coupled with the submission as advanced by the learned counsel appearing for the parties to the lis, let us now examine and evaluate the merits of the prosecution case.
[43] At the outset, it becomes apparent that the learned counsel for the appellant tried to demolish the evidence regarding the age of the girl that she was not attaining the age of 15 years but 19 years at the time of offence and that, since the girl on her own will had accompanied the appellant and went to the jungle, sexual intercourse was the result of consensus between them out of love.
[44] Before we advent to decided the issues as raised by the learned counsel for the appellant we would like to evaluate the relevant evidence to determine the age of the girl at the time of the incident keeping in view the principles Page 27 of 40 emerged in the judgment of the Apex Court as relied upon by the learned counsel for the appellant to trace out evidentiary value of School Certificate issued by the school authority.
[45] True it is, in Birad Mal Singh (supra), the Apex Court observed that the date of birth in the School Register has no evidentiary value unless the person who made the entry or gave the date of birth, is examined. The Court observed as under:
"The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such and entry will have no evidentiary value."
[46] We have given our conscious consideration to the judgment of the Apex Court in Sunil (supra). In this case, Page 28 of 40 the Apex Court relying upon the principle laid down in Birod Mal Singhvi (supra) was not inclined to place reliance upon the School Leaving Certificate on the basis of which age of the prosecutrix was entered in the school. According to us, the facts of the case required to be elucidated to some extent to find out the reason as to why the court discarded the evidence regarding the age of the prosecutrix. It was a case where the Court held that Sunil was a frequent visitor to the house of the prosecutrix and she never resisted to develop physical relation with him.
[47] In the case of Sunil(supra), the doctor on clinical examination of the prosecutrix categorically observed that she was habitual to sex. Doctor who examined her suggested the prosecutrix be examined from a Dental Surgeon or the Radiologist, but those were not done. While deciding the case of Sunil (supra) the Apex Court had noticed so many discrepancies in the evidence of the father of the prosecutrix.
In that situation, Dr. Verma (PW-1) who clinically examined the prosecutrix found that her secondary sexual characteristics were well developed. Even taken into account the fact of failure of getting the prosecutrix examined from a dental surgeon or radiologist, the Apex Court in Sunil (supra) Page 29 of 40 clearly held that "we are not laying down as a rule that all these tests must be performed in all cases, but in the instant case, in absence of primary evidence, reports of the Dental Surgeon and the Radiologist would have helped us in arriving at the conclusion regarding the age of the prosecutrix."
[47.1] Thus, it is borne out from above observation that ossification test or the reports from dental surgeon or Radiologists are not always necessary to determine the age of the victim, but, as a matter of prudence, in absence of any cogent primary evidence, these tests are necessary to help the court to come to a definite conclusion in regard to her age. In criminal jurisprudence, a fact in issue is required to be beyond reasonable doubt.
[48] We have further noticed, under which circumstances the Apex Court did not accept the contents of the school leaving certificate in the case of Sunil (supra). The findings as returned by the Apex Court are as under:
"31. The School Leaving Certificate produced by the prosecution was also procured on 12.09.1996, six days after the incident and three days after the arrest of the appellant. As per that certificate also, she joined the school in the middle of the session and left the school in Page 30 of 40 the middle of the session. The attendance in the school of 100 days is also not reliable.
32. The prosecutrix was admitted in the school by Ashok Kumar, her brother. The said Ashok Kumar was not examined. The alleged School Leaving Certificate on the basis of which the age was entered in the school was not produced.
33. Even PW-8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. in a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date."
[49] After being so observing, the Apex Court held in the case of Sunil (supra) that it would be unsafe to convict the appellant when there are so many infirmities, holes and lacunae in the prosecution version.
[50] In Alamelu (supra), the Apex Court held that transfer certificate was issued by the government school duly signed by the Headmaster, would be admissible in evidence under Section-35 of the Evidence Act, but, the admissibility of such document would be of not much evidentiary value to prove the age of a girl in absence of materials on the basis of Page 31 of 40 which age was recorded. Date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made entry or who supplied information about the date of birth is examined. In the event of non- examination of Headmaster of the school who made such entries, such transfer certificate is unreliable to definitely fix the age of the girl.
[51] After close reading of the pronouncements as referred to above, it is aptly clear that the entries contained in the admission form or in the scholar‟s register or in the school leaving certificate or transfer certificate must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned [Birod Mal Singhvi (supra)]. Thus, what is culled out from the above principle, that entry regarding the date of birth must be made on the basis of the information given by the parents; a person having special knowledge about the date of birth of the person concerned; and that it must not be given by a stranger or someone unless who had no special means of knowledge of the date of birth.
Page 32 of 40[52] On the aforesaid principle as has been drawn by us, if we scrutinize the evidence, then, following facts are emerged coupled with the relevant circumstances:
(i) PW-1, the mother of the victim at the time of lodging her ejahar has mentioned the age of the prosecutrix as 15 years. She further deposed that her daughter was studying in Class-IX at the time of commission of offence.
She categorically denied the suggestion put forth by the defence that her victim daughter was aged about 19 years;
(ii) PW-3, the father of the victim girl was not put any question regarding the age of his victim daughter;
(iii) The doctor who examined the victim was not put any question so that the Court can come to a conclusion about the consequence of developed secondary sexual character of the victim.
[53] More importantly, in the instant case, we find that the evidence of the victim is very specific, categorical and consistent in regard to her age. In her examination-in-chief she has stated that her date of birth was 10.08.2001 and she was studying in Class-IX. In her cross-examination she denied the suggestion in the following manner: "it is not a fact that my date of birth is not 10.08.2001." Page 33 of 40 [54] In view of this categorical statement, in our considered view, a student of Class-IX must have special knowledge in regard to his/her age and date of birth. That apart, we should not be oblivious of the fact that in normal circumstances, a student who studies in Class-IX attains the age of 15 years. This fact has been corroborated by the evidence of the mother of the victim. In this circumstance, we can un-hesitantly hold that the girl was aged about 15 years at the time of commission of offence. In the instant case, the victim being a student of Class-IX is a person having special knowledge regarding date of birth concerning to her and in that event, applying the principle laid down in Birod Mal Singhvi (supra), the date of birth which is within the special knowledge of the girl, carries much evidentiary value proving her age.
[55] This evidence of the girl is well corroborated by the evidence of PW-1, the mother of the victim girl when she in her examination-in-chief has stated that her victim daughter was aged about 15 years. According to us, her failure to say the exact date of birth would not discard her statement regarding the age of her victim daughter. Page 34 of 40 [56] Further, unlike the case of Sunil (supra), in the case in hand, the teacher In-charge of the school was examined as PW-13, who supports the testimony of the prosecutrix who has special knowledge about her exact date of birth.
[57] To conclude, we have held that the victim girl was aged about 15 years at the time of commission of offence. We may record that the alleged offence took place on 20.04.2016 when by virtue of amendment in Section-375 of IPC, the age for valid consent for sexual intercourse was increased to 18 years from 16 years. The question in this case therefore was the victim below 18 years and not 16 years. Since we find that she was way below 18 years of age, her consent even if there was any, was irrelevant. [58] Now, to discuss the second fold of submission of the learned counsel for the appellant as to whether the girl was a consenting party, it transpires that the girl had faced serious injuries in and around her vagina, which, according to us, is quite indicative that she was subjected to violent and forceful intercourse. It further indicates that she was not willing to sex with the appellant, though, she had a love affair with him.
Page 35 of 40[59] Next important features are found from the evidence of the scientific expert where Dr. Nath concluded that the blood stain found in the wearing apparels of the victim had matched with the cloth piece of the shirt of the accused-appellant. Conclusive part of the evidence of PW-24 may be reproduced here-in-below:
"Conclusion: On the basis of the above it was concluded that:
The blood stain found on Exbt.B (source: one small black with yellow dot prints cloth piece said to be the cloth piece of leggings of victim) Exbt. C (source: one small cloth piece said to be the cloth piece of the pantie of victim), and Exbt. L (source: one small black colour dot print cloth piece said to be the cloth of shirt of accused Laxman Debbarma) are originated from single source Exbt. O (source: dry blood sample of victim).
The period of examination was 05.07.2016- 09.08.2016. He proved his report as Exbt.21 and his signature as Exbt.21/1."
[60] We have noticed the statement of the accused appellant under Section-313 of Cr. P.C. The relevant part may be quoted as under:
Page 36 of 40
"Q. No. 59. PW.24 Dr. Subhankar Nath, Dy.
Director, SFSL, who conducted DNA examination of blood particles and he received the following exhibits for examination:
Exbt.A : One small blue coloured cloth piece said to be the colth piece of pachra of victim, Exbt.B: One small black with yellow dot prints cloth piece said to be the cloth piece of leggings of victim.
Exbt.C: One small cloth piece said to be the cloth piece of the panty of victim.
Exbt.G: Dry blood sample of accused Laxman Debbarma i.e. of you in gauze.
Exbt.J: Dry bold sample of accused Pilat Debbarma on gauze.
Exbt.O: Dry blood sample of victim.
Exbt.L: One small black coloured dot print cloth piece said to be the cloth piece of shirt of accused Laxman Debbarma.
Do you have anything to say in this regard?
Ans: False.
Q.61. He deposed that after examination he gave the following observation:
Partial female genetic profile was generated from Exbt.A, Page 37 of 40 Complete female genetic profile was generated from Exbt.B, Complete female genetic profile was generated from Exbt.C, Complete male genetic profile was generated from Exbt.G, Complete male genetic profile was generated from Exbt.J, Complete female genetic profile was generated from Exbt.O, Complete female genetic profile was generated from Exbt.L, The alleles of the amplified loci of DNA profile of Exbt.B, Exbt.C and Exbt.L are matches with each other and also matches with Exbt.O. Do you have anything to say in this regard?
Ans. False.
Q. 62. He came to the conclusion that the blood stain found on Exbt. B (source : one small black with yellow dot prints cloth piece said to be the cloth piece of leggings of victim), Exbt. C (source: one small cloth piece said to be the cloth piece of the pantie of victim), and Exbt. L (source: one small black colour dot print cloth piece said to be the cloth of shirt of accused Laxman Debbarma i.e. of you) are originated from single source Exbt. O (source: dry blood Page 38 of 40 sample of victim) and thereafter, he prepared his report.
Do you have anything to say in this regard?
Ans. False."
[61] Another striking feature that has been revealed is that it was the accused-appellant Laxman Debbarma who took away the girl. Learned counsel for the appellant has submitted that they had a love affair. Evidence on record would show that the accused and the girl were together on the night of the incident and had spent time at an isolated place. The girl was found alone the next day in the early morning by morning walkers. She was badly injured, profusely bleeding from private parts, and was unable to walk or even talk properly. Assuming that the victim willing joined the accused when called, but it would be improper to presume or hold that she also agreed to involve in sexual intercourse. The nature of injury carried by her is the testimony of force used for commission of sexual act. Even the conduct of the accused of abandoning the girl at a deserted place to fend for herself after severely injuring her during sexual intercourse is significant in the context of the evidence on record.
Page 39 of 40[62] Summarizing the entire circumstances in sequence, starting from taking away the victim from her house in and around 7.30/8 pm; getting her on the road with profuse bleeding on the lower portion on her person; her narration of facts to her parents; blood stain on the glans penis of the accused appellant as well as the seminal stain found on the right side of his pant; opinion of the scientific expert that the blood stain of the cloth piece of the victim having matched with the blood stain found in cloth piece of the accused-appellant being originated from a single source (Exbt.A); failure to give any satisfactory explanation as to how the girl experienced such severe injuries in her private parts, form a complete chain without any gap, leading us to arrive at an irresistible conclusion that it was the accused- appellant, Laxman Debbarma, who committed rape upon the girl.
[63] Considering the totality of the facts and circumstances of the case, according to us, the accused- appellant has failed to make out a case to call for any interference with the conviction and sentence as returned by the learned Special Judge against him. As such, the judgment and order of conviction and sentence passed by the learned Page 40 of 40 Special Judge, Gomati Judicial District, Udaipur, in Special 05 (POCSO) of 2016 dated 1903.2019, is upheld and affirmed. Hence, the appeal fails and accordingly, the same stands dismissed. Send down the LCRs forthwith. Pending application(s), if any, also stands disposed of.
(ARINDAM LODH), J (AKIL KURESHI), CJ A.Ghosh