Tripura High Court
Convict vs The State Of Tripura on 11 June, 2018
Bench: Ajay Rastogi, S. Talapatra
Page 1 of 13
HIGH COURT OF TRIPURA
AGARTALA
CRL. A(J) No.10 of 2015
Maharam Ali,
son of late Sultan Miah,
resident of Marowari Killa, Udaipur,
P.S. Kakraban, District: Gomati Tripura
----Convict-Appellant(s)
Versus
The State of Tripura
----Respondent(s)
For Appellant(s) : Mr. Ratan Datta, Advocate
Ms. R. Purakayastha, Adv.
For Respondent(s) : Mr. B. Choudhury, P.P.
HON'BLE THE CHIEF JUSTICE MR. AJAY RASTOGI
HON'BLE MR. JUSTICE S. TALAPATRA
Reserved on : 24.04.2018
Pronounced on :
Whether fit for reporting :
JUDGMENT
BY THE COURT (Per Hon'ble Mr. Justice S. Talapatra) This is an appeal under Section 374(2) of the Cr.P.C. from the judgment of conviction dated 12.02.2015 delivered in Case No.S.T.72(ST/U)2013 by the Sessions Judge, Gomati Judicial District, Udaipur. The appellant has been convicted by the said judgment dated 12.02.2015 under Section 376(1) of the IPC and sentenced to suffer rigorous imprisonment for 7(seven) years and to pay fine of Rs.10,000/- with default imprisonment and further convicted under Section 341 of the IPC. For commission of offence under Section 341 of Page 2 of 13 the IPC, the appellant has been sentenced to pay file of Rs.500/- with default imprisonment.
[02] The genesis of the prosecution case can be located in the written ejahar dated 11.05.2012 [Exbt.P/1] filed by PW- 4, the victim (name withheld for purpose of protecting her identity) disclosing to the Chief Judicial Magistrate, South Tripura, Udaipur, as he then was, that on 07.05.2012 at about 1.30 pm while the victim along with her minor daughter namely Kulsum Begum (PW-5) was returning from their paddy land, they were intercepted by one Maharam Ali, the appellant. The appellant kicked and pushed her down to the ground. Thereafter, the appellant allegedly raped the victim (PW-4). After committing rape, the appellant left the place. She and her minor daughter raised alarm when one Namita Deb (PW-10) appeared in the place of occurrence. On returning home, both the victim and her daughter narrated the entire incident to her husband.
[03] The said complaint was filed in the Court of the Chief Judicial Magistrate who transmitted the complaint for investigation by the police under Section 156(3) of the Cr.P.C. On the basis of the said complaint, Kakraban P.S. Case No.93/2012 under Sections 341/323/376 of the IPC was registered and taken up for investigation. On completing the investigation, the final report was filed chargesheeting the appellant. Since the offence under Section 376(1) of the IPC is exclusively triable by the Sessions Court, the police papers were committed to the court of the Sessions Judge, South Page 3 of 13 Tripura, Udaipur. The Sessions Court after taking cognizance, framed the charge against the appellant under Sections 341/323/376(1) of the IPC separately. The appellant, however, pleaded innocence and claimed to face the trial. [04] In order to substantiate the charge, the prosecution adduced as many as 10(ten) witnesses along with 7(seven) documentary evidence including the statement of the victim as recorded under Section 164(5) of the Cr.P.C. For purpose of defence, the appellant examined himself as the witness (DW-
1). After recording of the evidence as led by the prosecution, the appellant was examined under Section 313 of the Cr.P.C.
when the appellant reiterated his plea of innocence and claimed that incriminating materials are false and tainted by fabrication. [05] The trial court having appreciated the evidence led by the prosecution as well as by the defence held as under:
"In this instant case, no such discrepancies found to discredit the otherwise reliable prosecution case. The prosecutrix has no control over the investigating agency or the Court. There was some delay in sending the FIR from the Court and that itself is not sufficient to discredit the prosecution case. The plea taken by the defence that she was married by the accused is also not proved by any convincing evidence. She was married and her husband was alive on the day of occurrence and on such plea of earlier mixing with the accused, cannot give an excuse for doing such a crime. So, the evidence of the victim lady is found reliable and trustworthy to come to a findings that she was raped by the accused Maharam Ali. But there is no evidence to support that the accused willfully caused hurt on her or any bodily pain voluntarily. Thus, on analyzing, appreciation and scrutinizing the evidence on record it is found that accused committed an offence punishable under Section 376(1) and 341 of IPC but he committed no offence punishable under Section 323 of IPC. Thus, prosecution has established the case against the accused Maharam Ali under Section 341 and 376(1) of IPC but failed to prove the case under Section 323 of IPC."
[Emphasis added] [06] Mr. R. Datta, learned counsel appearing for the appellant has submitted that there is no proof of rape within Page 4 of 13 the meaning of Section 375 of the IPC as it existed prior to the Criminal Law (Amendment) Act, 2013. According to Mr. Datta, learned counsel the proof of penetration of male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt of penetration into the victim completely, partially or slightly is essentially required for bringing him the charge under Section 376(1) of the IPC. Mr. Datta, learned counsel has further submitted that unless there is medical evidence of penetration, it becomes an uphill task for the prosecution to prove the charge of rape. In this regard, Mr. Datta, learned counsel appearing for the appellant has submitted that PW-1, Dr. Tani Bhattacharjee has testified that the victim refused to undergo medical examination. To note the said circumstance, PW-1 recorded the statement and obtained the signature of the victim and her husband. The said statement/report has been admitted in the evidence as Exbt.P/4. That apart, the motive for framing the appellant has surfaced from the testimony of PW-3, Sri Dipu Dey who was the Pradhan of Haripur Gram Panchayat at the relevant time. PW-3 has clearly stated that the victim and the appellant were working together and there was a dispute between them. To conciliate the said dispute, there was a meeting in the panchayat.
[07] Mr. Datta, learned counsel appearing for the appellant has drawn attention of this court towards the statement of the victim (PW-4) where she has admitted that the appellant's wife filed a false case against her, but she has Page 5 of 13 denied that she was ever married to the appellant or they lived together as husband and wife. She even denied that she divorced her husband before the said occurrence. PW-6, Farid Miah (husband of the victim) in his cross-examination has clearly admitted that he heard about the warrant issued against his wife.
[08] Mr. Datta, learned counsel has emphatically submitted that only witness who according to the victim came to the place of occurrence immediately after the occurrence is PW-10 (Namita Deb), but she did not support the prosecution case. As a result, she was declared hostile and the trial court allowed the prosecution to examine her. Finally Mr. Datta, learned counsel has submitted that the appellant has stated that he married the victim and they lived as husband and wife till 23.10.2013. The marriage which was solemnized on 22.11.2011 as recorded in a declaration but that declaration was not available with the appellant [DW-1].
[09] Mr. R. Datta, learned counsel appearing for the appellant has emphatically submitted that situated thus, the appellant is entitled to have the benefit of doubt leading to acquittal from the charge. To nourish his submission, Mr. Datta, learned counsel has placed his reliance on Rajoo and Ors. Vs. State of M.P. reported in AIR 2009 SC 858, where the apex court has observed that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no Page 6 of 13 corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight. But at the same time that cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication particularly where a large number of accused are involved. It has been further observed that there is no presumption or any basis for assuming that the statement of such witness is always correct or without any embellishment or exaggeration [Para-9]. [10] This clearly shows that in so far as the allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the place of occurrence might be probable, but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined.
[11] Mr. B. Choudhury, learned P.P. appearing for the state has submitted that the trial court has rightly relied on the statement made by the victim, corroborated by PW-5 (Kulsum Begum), the minor daughter of the victim. That cannot be an Page 7 of 13 earthly reason to disbelieve those witnesses (PWs 4 and 5). Even though, PW-10, according to the statement of PWs-4 and 5 reached at the place of occurrence, but as she turned hostile that itself cannot debase the overwhelming evidence as led to substantiate the charge. Mr. Choudhury, learned P.P. has submitted further that though the previous enmity is a double- edged sword, it does not only cause damage to the prosecution case, but at the same time it raises the possibility of furtherance. The element of previous enmity has to be assessed on the scale of cumulative appreciation of evidence. [12] For purpose of appreciating the submissions made by the counsel for the parties, we think it apposite to revisit the evidence in a meaningful manner. The transaction of offence as unfolded by the victim [PW-4] did not disclose how the rape was committed. The allegation is sketchy but this alone cannot be taken to suspect the prosecution case. The allegation that has been made in the complaint regarding rape reads as follows:
"Then the accused person forcibly raped the petitioner. Then, at the outcry of the petitioner and her minor daughter the witness No.2 Namita Dey came to the place of occurrence and thereafter, on setting her free the accused person fled away from there."
[13] Namita Deb [PW-10] did not support that story and as a result as stated, she was declared hostile. She did not even provide any input to the transaction of the offence inasmuch as she has flatly stated that she had no knowledge about the occurrence and she did not state anything to the Police Officer.
Page 8 of 13[14] PW-1, Dr. Tani Bhattacharjee has stated that the victim refused to be medically examined, but she recorded her statement. In the said statement, the victim has stated that on her way to return from the paddy field on the said day, she was intercepted by the appellant. Later on, the appellant raped her inside the jungle. Her daughter screamed out of fear. He then kicked her daughter. After taking her to the jungle, he raped her and assaulted physically. On coming back to home, she informed everything to her husband and filed the complaint against the appellant. Having reference to the statement as recorded under Section 164(5) of the Cr.P.C., it is to be noted that the said statement was not even brought to the evidence by the victim or by the Judicial Magistrate who recorded that statement as the said magistrate was not examined at all. [15] PW-4 (the victim) is the main witness of the prosecution. PW-4 has stated that the appellant who used to work with her in the brick klin was standing by the side of the road. When they came near, he caught her and dragged her towards jungle. Her daughter tried to resist the appellant and release her but as the appellant kicked her she failed in her pursuit. The appellant dragged her inside the jungle, lied her down and raped her forcibly. She has stated in the examination-in-chief as under:
"Accused undressed me, torn my clothes, also bitten on my thigh and raped me. My daughter Kulsuma then came with Namita Dey. On their arrival in the p.o., accused Maharam Ali fled away."
As it was afternoon the victim could not file the complaint on the same date. But she filed the complaint on the Page 9 of 13 next date. Even in the examination-in-chief she has claimed that she was examined by the doctor whereas PW-1 (the doctor) has categorically stated that she had refused to be examined by her [PW-1]. In the cross-examination, PW-4 has stated that against her, the wife of the appellant filed one false case in the court of the Chief Judicial Magistrate, South Tripura, Udaipur, but she denied that she was ever married to the appellant or that she lived with the appellant in the brick klin as husband and wife.
[16] PW-5, Kulsum Begum corroborated the statement of PW-4 by stating that while returning from the paddy field when they reached near the jungle, the appellant suddenly appeared there and dragged her mother towards the jungle. She tried to resist but the appellant kicked her and she fell down on the ground. She raised cry and thereafter called Namita Deb who was seen on the road and was going to her house. On her arrival in the place of occurrence, the appellant fled. PW-5 saw the blood stain on the face and hands of her mother and she was weeping. She has further stated that her mother had disclosed the matter to her father.
[17] The remaining witnesses such as PW-2, Smt. Uma Das was present at the time when the victim was produced for medical examination. She has clearly supported the narrative of PW-1 by stating that the victim had refused to undergo the medical check-up.
Page 10 of 13[18] PW-3, Dipu Dey has stated that the victim and the appellant were working together and there was a dispute between them.
[19] PW-6, Farid Miah, the husband of the victim is a hearsay witness and in the cross-examination he has stated that he gathered that warrant was issued against his wife. He has not stated anything more of material consequence. [20] PW-7, Prasanta Pal is the scribe and he has only proved the ejahar [Exbt-P/1] and did not provide further input in the matter.
[21] PW-8, Ajit Debbarma is the Sub Inspector who on receipt of the complaint from the court registered the case beng Kakraban P.S. Case No.93/12 and endorsed the case to one woman Sub-Inspector namely, Sakuntala Debbarma (PW-
9) for investigation.
[22] PW-9 has stated shortly how she conducted the investigation in every phase and arranged for the medical examination of the victim. After some days of the registration of the case, she arrested the appellant. On collecting the medical report, she filed the chargesheet under Section 376/323/341 of the IPC. But she has clearly stated in her cross-examination that she did not investigate the case of delay in respect of filing of the FIR. She denied to have suppressed any statement recorded during the investigation. PW-9 has further stated that during investigation Namita Deb, the hostile witness, had stated that on her appearance on the place of occurrence the appellant fled away.
Page 11 of 13[23] In pursuit of rebutting the prosecution evidence the appellant has examined himself as DW-1 and testified that on the day of occurrence, he was married to the victim. He did not try to rebut any other materials surfaced in the evidence but as stated earlier when he was examined under Section 313 of the Cr.P.C., before his deposition was recorded, he has stated that the incriminating materials as surfaced in the evidence are all false and visited by manipulation.
[24] The evidence of rape therefore hinges on the testimony of PW-4. But there is no material evidence of penetration as stated by Mr. R. Datta, learned counsel appearing for the appellant. However, there are substantive evidence of committing offence of wrongful restraint and attempt of rape. Rape means ravishing a woman without her consent, by force, fear or fraud. Rape is the carnal knowledge of any women above the age of particular year, against her will, or of a woman child, under that age, with or against her will. In the crime of rape carnal knowledge means the penetration to the slightest degree of the male organ. Even the slight penetration within the labia majora or the pudendum of the woman occurs no matter how little. The medical evidence would have been of little use as admittedly the victim is a married lady. But since a specific statement has been made by the victim, even though, for the first time in the trial, that the appellant had bitten her thigh, on examination at least those marks would have been available. For refusal, PW-1 could not even be examined. Thus, it cannot be held that actus reuse is Page 12 of 13 complete with penetration. Notwithstanding what has been observed so far, it can be held that there was no consent from the appellant. Evidence as led by the defence is confined to the fact of 'marriage' between the appellant and the victim. But PWs-5 and 6 have clearly stated that the victim was married to PW-6. Thus, this court does find any difficulty to presume subsistence of marriage between the victim and PW-6. [25] This court does find any probative value in the evidence of DW-1. Since there is no statement relating to penetration in the backdrop of continuing dispute, the evidence so placed on records, is not sufficient to hold that the charge under Section 376(1) of the IPC has been proved. As such, the appellant is entitled to the benefit of doubt and he is acquitted from the charge under Section 376(1) of the IPC. Further, this court finds that there were adequate materials of outraging the modesty of the victim by applying criminal force and as such, without framing any formal charge by exercising the power as conferred under Section 222 of the Cr.P.C, the appellant is convicted under Section 376(1) read with Section 511 of the IPC. However, the conviction under Section 341 of the IPC stands affirmed. Now it has become incumbent upon us to determine the sentence for commission of offence punishable under Section 376(1) read with Section 511 of the IPC. In terms of the said conviction, the appellant is sentenced to suffer 2 (two) years rigorous imprisonment with fine of Rs.1,000/- (one thousand), in default of payment of fine, the appellant shall suffer simple imprisonment for another one Page 13 of 13 month. The sentence as awarded by the trial court for commission of offence under Section 341 of the IPC remains unaltered.
In the result, this appeal stands partly allowed. Send down the LCRs forthwith.
JUDGE CHIEF JUSTICE Moumita