Tripura High Court
Crl. App. No.16/2014 vs Sri Sathang Mog on 20 July, 2017
Bench: Chief Justice, S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
1. CRL. APP. No.16/2014,
2. CRL. APP. No.29/2014,
3. CRL. APP. No.30/2014.
In CRL. APP. No.16/2014.
The State of Tripura,
Represented by the Ld. Public Prosecutor,
High Court of Tripura, Agartala.
....... Appellant.
-: Vrs. :-
Sri Sathang Mog,
S/o Lt. Sudhao Mog of Suknachari,
P.S. Silachari, South Tripura District.
...... Respondent.
In CRL. APP. No.29/2014.
The State of Tripura, Represented by the Ld. Public Prosecutor, High Court of Tripura, Agartala.
....... Appellant.
-: Vrs. :-
Sri Sathang Mog,
S/o Lt. Sudhu Mog of Hazachari (Suknachari),
P.S. Silachari, Karbook, Gomati District.
...... Respondent.
In CRL. APP. No.30/2014.
The State of Tripura,
Represented by the Ld. Public Prosecutor,
High Court of Tripura, Agartala.
....... Appellant.
-: Vrs. :-
Sri Sathang Mog,
S/o Lt. Sudhu Mog of Hazachari (Suknachari),
P.S. Silachari, Karbook, Gomati District.
...... Respondent.
CRL. APP. NOs.16, 29 & 30/2014 Page 1 of 21
_B_E_F_O_R_E_
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE S. TALAPATRA
Counsel for the appellant : Mr. R C Debnath, Addl. P. P.
Counsel for respondent : Mr. H Debbarma, Legal Aid Counsel.
Date of hearing : 27-6-2017.
Date of Judgment & Order : 20-7-2017
JUDGMENT & ORDER
[T. Vaiphei, C.J.]
These three appeals involving a common question of law, having been heard together, are now being disposed of by a common judgment. To avoid complications, we will first decide Crl. Appeal No.16 of 2014 and thereafter make an attempt to dispose of the remaining appeals on the basis of that decision.
2. In Crl. Appeal No.16 of 2014, the case of the prosecution is that when the ¾ months old baby of Mrs. X (name not disclosed) was suffering from illness, she sought the help of the accused-respondent, the village Quack/doctor/Baidya, who advised her to arrange a puja to cure the baby. On 25-9-2013 at about 7.30 PM, she accordingly took her baby to the house of her father at Sukhachari to perform the puja. The respondent then performed the puja with all the articles whereafter she was taken alone to the jungle on the instruction of the respondent. On reaching there, the respondent asked her to remove all her clothes, but she, out of shame, refused to do so. The respondent then proceeded to remove her clothes and started chanting of 'mantra'. After sometimes, he suggested sexual intercourse with her and forcibly managed to do so. Thereafter, he warned her that if she disclosed what he had done to her, her baby would die. The condition of her baby, however, got worsened the next day and ultimately succumbed to her illness at about 6 PM. Mrs. X approached thereupon approached the Panchayat for justice, but to no avail whereupon she on 2-10-2013 lodged the complaint with Silachari Police Station, which registered the case as FIR No. 24/13 U/s 376/417 IPC.
CRL. APP. NOs.16, 29 & 30/2014 Page 2 of 21
3. The police then swung into investigation of the case and, after completing the investigation, charge-sheeted the appellant U/s 376(1)/417 IPC. The learned Sub-Divisional Judicial Magistrate, Sabroom, took cognizance of the offences U/s 376(1)/417 IPC and committed the case to the learned Sessions Judge, Udaipur for trial. On the basis of the charge sheet submitted by the police and after hearing both the prosecution and respondent, the learned Sessions Judge framed the charge U/s 376(1)/417 IPC against the respondent, to which he pleaded not guilty and claimed to be tried. The defense case, as evident from the cross-examination of prosecution witnesses and the accused examination U/s 313 CrPC is that the respondent performed the puja at the request of the prosecutrix, but when the baby died, she became furious and proceeded to lodge the complaint. The trial court framed the following points for consideration:
"1. Whether the accused person (respondent) committed rape on the victim Puspa against her will forcefully (forcibly?) through deceitful means by obtaining her consent on the promise that her sick baby will be cured by delivery of her chastity?
2. Whether the accused committed offences punishable under Section 376(1)/417 IPC."
The prosecution examined 14 witnesses and exhibited three documents to substantiate its case. No evidence was, however, adduced by the respondent, who was defended by a legal aid counsel. At the conclusion of the trial, the learned Sessions Judge passed the impugned judgment acquitting him of the offence punishable U/s 376(1) IPC and convicting him only U/s 417 IPC. Aggrieved by this, this appeal has been preferred by the State.
4. For appreciation of evidence, we will come straight to the evidence of the prosecutrix, who was examined as PW-3. In her testimony, she stated that she has been married for eight years and that her three children had already died in the past, but her fourth child also got sick suffering from fever. The respondent assured CRL. APP. NOs.16, 29 & 30/2014 Page 3 of 21 her that he would cure her daughter from her illness if puja was performed. The respondent was known to her earlier; he is her uncle in relation. To perform the puja, she accompanied by her husband and her child went to the house of her father on 24th Bhadra (Tuesday). She was then taken to the jungle by the respondent with mumbati and dupkhati. The respondent was known as quack doctor (Baidya). He then performed puja in the jungle and commanded her to remove her dress for the satisfaction of Devta. When she refused to do so, he warned her that the baby would die. Thereafter the respondent forcibly undressed her, made her to lie down and then raped her. The respondent warned her that her baby would die if she disclosed the incident to other; she, for the sake of her daughter, accordingly did not do so. However, on the next day evening on Wednesday, her baby died whereupon she disclosed everything to her husband, her father and others. A village meeting was called, but the matter could not be settled whereupon she lodged the written complaint, which was written by Thaliang Mog (PW-9) and upon which she put her thumb impression. During investigation, her statement was recorded by the Magistrate and she managed to sign there. The written complaint was exhibited as Exhibit P-4/1. Interestingly, the statement of the prosecutrix with respect to the taking of her by the respondent in jungle, of commanding her to undress, and of forcibly undressing her were not denied by the respondent in his cross-examination. All that the cross-examiner did was to deny that the respondent raped her. In our opinion, the evidence of PW-3 is on the whole credible, inspires confidence and can alone form the basis for convicting the respondent. However, to seek reassurance, we may also refer to the evidence of some other witnesses.
5. PW-2 is the husband of the prosecutrix and testified that four children were born from his wedlock with the prosecutrix and that out of which, three died, but the one who survived also got sick. He then deposed that he consulted the respondent, the village Baidya, who then volunteered to perform puja. To perform puja, he along with his wife and the baby went to the house of his father-in-law. After a while, the respondent took the prosecutrix to the jungle for chanting hymns, while he remained at the house of his father-in-law. His wife was taken to the CRL. APP. NOs.16, 29 & 30/2014 Page 4 of 21 jungle by the respondent between 7 PM and 8 PM of Tuesday of the last Bhadra, 24. The prosecutrix returned the next day, but the baby died. After the death of the baby, the prosecutrix broke down and told him that the respondent undressed her and raped her in the jungle. When the village panchayat could not do justice to them, the prosecutrix filed the case against the respondent. In the cross- examination, PW-2 stated that the baby died on Wednesday and the prosecutrix disclosed to him on Thursday the incident to him. The cross-examination of PW-2, however, could not shaken the truthfulness of the evidence of PW-2. On the contrary, PW-2 fully corroborated the statement of the prosecutrix on the material particulars such as the fact of his taking her and their baby to the house of his father-in-law, of the respondent taking the prosecutrix to the jungle for chanting 'mantra' and of her telling him about the forcible removal of her dress and of the commission of rape upon her by the respondent.
6. PW-1 is the father of the prosecutrix and deposed, among others, that when the fourth child of the prosecutrix also got sick, she and her husband were worried and ultimately consulted the respondent, whom she called her uncle, who offered to perform puja in the night. He also corroborated the statements of PW-3 and PW-2 on the performance of puja in the month of Bhadra, Tuesday at about 7.30 PM in the jungle for which the prosecutrix alone had to go with the respondent on the latter's instruction. He further corroborated the statements of PW-3 and PW- 2 on the death of the baby the next day whereupon she disclosed to him that the respondent whom he called jheta had sexual intercourse with her by force and of the matter being reported to the village elders for justice, which proved futile. Leaving aside the evidence of relative witnesses, we may refer to the evidence of PW- 6, who was a member of Suknachari Panchayat at the time of the incident. He deposed that one woman informed her that she was taken to the jungle by the respondent to perform puja and was raped by him. He deposed that she was present in the Bichar Sabha held at Hajacheri School. This then takes us to the evidence of PW-11, who was also allegedly once upon a time the victim of the respondent. She testified that she knew the prosecutrix and the respondent and that after the prosecutrix was raped, her husband also asked her and she then told CRL. APP. NOs.16, 29 & 30/2014 Page 5 of 21 him that on the pretext of performing puja, she was also taken by the respondent to the jungle where he raped her. She further testified that the prosecutrix was also taken to the jungle for the puja and was then raped, but the child also died. No tangible result came out from the cross-examination of this witness by the defence, which can destroy the core of the prosecution. In our opinion, the prosecution has proved beyond reasonable doubt that the respondent had on the promise of curing the sick child of the prosecutrix managed to have sexual intercourse with her, but contrary to his promise, the child still died. At this stage, it may be noted that from the evidence of PW-13, who was the doctor examining the prosecutrix, the prosecution has proved that the respondent was capable of performing sexual act. There is no dispute on this issue.
7. Both Mr. R.C. Debnath, the learned Additional Public Prosecutor appearing for the State, and Mr. H. Debbarma, the learned legal aid counsel, were heard at length. The only question to be determined, on the proved facts and circumstances of the case, is whether the respondent can be held guilty of the offence punishable under Section 376(1) IPC in addition to Section 417 IPC, for which he was already convicted by the trial court. It is the contention of the learned Additional Public Prosecutor that when, on the pretext of performing puja, the respondent took the prosecutrix to the jungle, forced her to remove her dress and when she disagreed, he warned her that the baby would die if she refused to follow his instruction whereupon she had sexual intercourse with hem, this is a clear case of rape under Section 375, thirdly, IPC. He submits that the approach of the trial court is totally wrong in holding that there is no proof of sexual intercourse against the will of the prosecutrix or without her consent or that there is no proof that she was in fear of death or hurt, which compelled her to have sexual intercourse with the respondent. On the other hand, Mr. H. Debbarma, the learned legal aid counsel for the respondent, supports the impugned judgment and submits that the trial court rightly acquitted the respondent of the charge of Section 376(1) IPC. According to the learned legal aid counsel, the proved facts clearly established a case of cheating and the trial court correctly held that the respondent is guilty of CRL. APP. NOs.16, 29 & 30/2014 Page 6 of 21 the offence punishable under Section 417 IPC and not under Section 376(1) IPC. Both submissions are given our anxious consideration.
8. Before proceeding further, it may be apposite to refer to Section 375(1), thirdly, of the Indian Penal Code, which reads thus:
"375. Rape.-- A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person;
or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions--
First.--Against her will.
Secondly.--Without her consent.
Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.--With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.--With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.--With or without her consent, when she is under eighteen years of age.
Seventhly.--When she is unable to communicate consent.
CRL. APP. NOs.16, 29 & 30/2014 Page 7 of 21 Explanation 1.-- For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.--Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.-- A medical procedure or intervention shall not constitute rape.
Exception 2.-- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape." _______________________________________________________________________ (Underlined for emphasis)
9. Consensual sexual intercourse with a girl above 16 years of age is not rape. But third clause of Section 375 IPC provides that when such consent has been obtained by putting her in fear of death or of hurt either to herself or to one she is interested in, it is rape. Consent of a woman over eighteen years of age to sexual intercourse obtained by putting her in fear of death or hurt is, therefore, held to be not a valid defense and Section 376 is, therefore, attracted. Though a number of decisions have cited by the learned counsel appearing for both the parties, for the sake of brevity, suffice it to refer to Satpal Singh v. State of Haryana, (2010) 8 SCC 714, which, we think, has propounded the correct position of law in this behalf. Paras 30, 31 and 32 of the report are important and the same reads thus:
"30. It can be held that a woman has given consent only if she has freely agreed to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. An act of helplessness in the face of inevitable compulsions CRL. APP. NOs.16, 29 & 30/2014 Page 8 of 21 is not consent in law. More so, it is not necessary that there should be actual use of force. A threat of use of force is sufficient.
31. The concept of "consent" in the context of Section 375 IPC has to be understood differently, keeping in mind the provision of Section 90 IPC, according to which a consent given under fear/coercion or misconception/mistake of fact is not a consent at all. Scheme of Section 90 IPC is couched in negative terminology. Consent is different from submission. (Vide Uday v. State of Karnataka21, Deelip Singh v. State of Bihar22 and Yedla Srinivasa Rao v. State of A.P.23)
32. In State of H.P. v. Mange Ram24, this Court, while considering the same issue, held as under:
"13. ... Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent."
10. Thus, a woman can be said to have given her consent only if she has freely agreed to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. An act of helplessness in the face of inevitable compulsions is not consent in law. What the section says is that her consent obtained by putting her or any person in whom she is interested in fear of death or of hurt. In other words, it can never be said that she consented to the sexual intercourse with the accused if she or any other person in whom she is 21 (2003) 4 SCC 46 22 (2005) 1 SCC 88 23 (2006) 11 SCC 615 24 (2000) 7 SCC 224 CRL. APP. NOs.16, 29 & 30/2014 Page 9 of 21 interested are being threatened with death or even hurt. In the instant case, to recapitulate the proved facts, the prosecutrix was desperate to get her baby cured from her illness as she had already lost three children earlier due to illness. She was vulnerable and could be exploited by any mischievous character like the respondent. It was a diamond opportunity for sexual pervert like the respondent to satisfy his sexual lust. When informed him about the plight of the prosecutrix and her husband, he took this to be another godsend opportunity to once again indulge in his sexual adventure. He promised her that he would cure her baby from her illness and managed to convince her and her husband to let him to take her alone to the jungle in the night. To earn her trust, he first performed puja by chanting 'mantra'. The next thing he did was to command her to remove her clothes. When she refused to do so, he warned her that her baby would die if she did not surrender to his lustful desire. It is common knowledge based on human experience that people in vulnerable and desperate conditions can do even bizarre things, and cannot at times also act rationally. The prosecutrix had already lost her three children earlier and could not afford to lose another. For fear of hurt being caused to her sick baby, she could not resist his advance and succumbed to the lustful demand of the respondent. From the evidence of PW-10, who was also the victim of the lustful adventure of the same respondent, it is quite possible that the act complained of in this case is not a solitary act. The misadventure of the respondent in this case reminds us of the story of the notorious Rasputin in the court of the last Czar of Russia in the early 20th century. In our opinion, the sexual intercourse the prosecutrix had with the respondent on that fateful night could not be, and was not a consensual sex, but a case of rape pure and simple falling within the mischief of the thirdly of Section 375 IPC. In the view that we have taken, the impugned judgment in so far as it acquitted the respondent U/s 376(1) IPC cannot be sustained in law and the respondent shall have to be convicted under Section 376(1) IPC. His conviction U/s 417 IPC shall remain undisturbed.
11. The offshoot of the foregoing discussion is that this appeal succeeds. The impugned judgment of acquittal passed by the learned Sessions Judge, Udaipur is hereby set aside. The accused-respondent is, therefore, convicted under both CRL. APP. NOs.16, 29 & 30/2014 Page 10 of 21 Section 376(1) IPC and Section 417 IPC. Consequently, he is sentenced to rigorous imprisonment for a period of seven years with a fine of `50,000/-, which shall be paid by him to the prosecutrix within two months, failing which, he will undergo another rigorous imprisonment for six months. Both the sentences will run concurrently. It may be noted that sentence hearing in this case is not found necessary as the minimum statutory imprisonment is seven years, for which no discretion is given by the Criminal Law (Amendment) Act, 2013, which came into force with effect from 3-2-2013; the incident in this case occurred on 25-9-2013. The accused-respondent shall surrender forthwith before the learned Sessions Judge, Udaipur to serve out the sentences imposed upon him herein. Needless to say, the period already undergone by him in custody as an under trial prisoner and as a convict shall stand set off against the sentences imposed herein. If the accused does not surrender forthwith, the trial court shall take all necessary measures including coercive measures to take him to custody. Transmit the L.C. record forthwith.
Criminal Appeal No. 29/2014
12. The related appeal is directed against the judgment dated 24-4-2014 passed by the learned Sessions Judge, South Tripura in S.T. No. 10(ST/S) of 2014 acquitting the respondent of the offence charged against him under Section 376(1) IPC and convicting him under Section 417 IPC and sentencing him to rigorous imprisonment for one year.
13. The case of the prosecution is that on 3-10-2013, the prosecutrix lodged a written complaint with the Officer-in-Charge, Silachari Police station stating that after the birth of a child in the family, it used to fall sick continuously. According to the prosecutrix, she came to learn from her neighbors that the respondent having a magical power as well as supernatural strength, a resident of Hajachari used to cure their illness if puja was performed by him. Believing this story, they called on him. On 12-7-2013 at around 8 PM, they were detained by the respondent at his house by applying magical power and reciting 'mantras'. At night, he took her alone to a tilla land named Subhash Tripura adjacent to the village under a big tree. The CRL. APP. NOs.16, 29 & 30/2014 Page 11 of 21 respondent then told her, "You have to put off all your wearing apparels and nothing should be worn." As per his instruction, she had to remove her wearing apparels as she had faith in him. The respondent for some times chanted mantras by lighting a candle and incense sticks. After a while, he told her, "You have to make contact with me sexually by doing organ union". To which, she replied that she would not be able to do such thing. He then warned her that he would not be able to save her child if she refused to cooperate. Even then, he started to touch parts of her body and then committed rape upon her. As she was alone, she did not raise alarm out of shame. After raping her, he told her not to divulge the matter to anyone, and if she disclosed it, that would be inauspicious to her son. It was only due to her desperation to save her son that she was forced to have sex with him. However, her son was not saved and died. Under such circumstances, she prayed to the Panchayat Committee to do justice for the rape committed by the respondent. Having failed to get justice, she lodged the complaint.
14. On the basis of the complaint, the Officer-in-Charge of Silachari Police Station registered a regular case being SLC Police Station Case No. 26/13 U/s 376/417 IPC. After investigation of the case, the police submitted the charge sheet against the respondent U/s 376(1)/417 IPC to stand the trial. The learned Sub- Divisional Judicial Magistrate, Sabroom thereafter took cognizance of the offences and after fulfilling all the formalities, committed the case to the learned Sessions Judge for trial. The learned Sessions Judge, having found a prima facie case against the respondent, framed the charge against him U/s 376(1)/417 IPC, to which he pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined as many as 11 witnesses and exhibited 2 documents to prove its case. No evidence was, however, adduced by the defense. The case of the defense is that of total denial of the offences charged against him. As he was undefended, he was defended by a legal aid counsel. At the conclusion of the trial, the trial court passed the impugned judgment acquitting him of the offence punishable U/s 376(1) IPC and convicting him U/s 417 IPC and sentencing him to undergo rigorous imprisonment for one year.
CRL. APP. NOs.16, 29 & 30/2014 Page 12 of 21
15. Before proceeding further, it may not be out of place to reproduce below the findings of the trial court:
"11. In order to constitute an offence under Section 376 of Indian Penal Code, the prosecution is to establish that the accused committed rape on the victim and while committing rape, he inflicted injury, applied force. That the accused penetrates his private part against her will without her consent or with the consent which was obtained by putting her in fear of death or hurt. In the instant case, sexual intercourse is established from the appreciation of the evidence on record. But it is not proved that such intercourse was against her will without her consent. There is nothing in the evidence to show that she was kept under fear of death or hurt at the time of taking the consent. The evidence on record established that the victim lady was cheated and on the hope of cure of the child, she consented to have a sexual relation. Therefore, the offence of rape not established against the accused.
In order to constitute an offence under Section 417 of the Indian Penal Code, prosecution is to establish the following ingredients. Firstly, accused voluntarily, dishonestly induced the victim. Secondly, he did so for delivery of some property either to the accused or some other person. Thirdly, he intentionally induced the victim to do this thing which he would not do or omit to do. Fourthly, such act caused was likely to cause some damage or harm to her body, mind, reputation or property.
In the instant case, the accused dishonestly induced the victim lady to have a sexual relation with him for the safety and life of her male child. So, for the safety and life of her son, she agreed to deliver her chastity to the accused. The accused intentionally induced the woman to deliver her chastity which she would not do unless the assurance of cure of the child is not given. On such assurance, she had given her chastity, precious property. It caused harm or damage to her body, mind, reputation or CRL. APP. NOs.16, 29 & 30/2014 Page 13 of 21 property. The accused thus committed an offence punishable under Section 417 IPC.
Point No. 2 is also decided accordingly.
12. In view of my above findings and decision over the 2 points, it is established that accused Sathang Mog committed the offence punishable under Section 417 IPC. Accordingly, he is convicted under Section 417 IPC."
16. The above findings on facts and of law left much to be desired. Therefore, we decide to re-appreciate the evidence but not on the law points which we have already discussed in the foregoing case. PW-1 is the prosecutrix, who deposed that about 8 months earlier, her husband consulted the respondent as her son was very sick and would not survive. The respondent agreed to perform puja for the safety of her child. He accordingly performed puja in their house, drew the Laxman Rekha restraining her husband and her other relatives not to cross it and then took her to the jungle where he performed puja with bati and dhupkathi. After sometime, he undressed her, demanded sexual intercourse with her for the safety of her son and raped her. She did not disclose their sexual acts out of shame and as he warned her that on such disclosure, her son would die. After the death of her child, there was an outcry, which prompted her to disclose the incident. She thereafter filed the FIR by putting her thumb impression, which was written by PW-2. According to her, she did not go to the villagers or council, but verbally informed Angiya Mog about the incident whereupon he called the meeting. A meeting was convened for two times without tangible result. PW-2 is the scribe who wrote the complaint and confirmed that on 2-10-2013, he wrote the complaint and explained the same to her. In our opinion, the evidence of PW-1 is conspicuous by the absence of details/particulars such as the time and date of the incident and, therefore, does not inspire confidence. Moreover, the incident allegedly took place on 12-7-2013, yet the complaint was lodged only on 4-10-2013. The only explanation of the delay appears to be that she was shy of lodging the complaint and thought it proper to CRL. APP. NOs.16, 29 & 30/2014 Page 14 of 21 disclose the incident only after similar complaint was lodged by the victim in Crl. App. No.16 of 2014. This can hardly be satisfactory explanation of delay. Delay in filing the complaint can be sometime fatal to the prosecution case. If any authority is needed, we may conveniently cite the decision of the Apex Court in Dilawer Singh v. State of Delhi, (2007) 12 SCC 641. This is what the Apex Court said:
"9. In criminal trial one of the cardinal principles for the court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.
10. In Thulia Kali v. State of T.N.1 it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.
11. In Ram Jag v. State of U.P.2 the position was explained that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for implicating the accused and/or when plausible explanation is offered for the same. On the other hand, prompt filing of the 1 (1972) 3 SCC 393 2 (1974) 4 SCC 201 CRL. APP. NOs.16, 29 & 30/2014 Page 15 of 21 report is not an unmistakable guarantee of the truthfulness or authenticity of the version of the prosecution."
17. Coming now to the evidence of PW-3, who is the husband of the prosecutrix, it is his evidence that he knew the respondent, and as his son was sick, he discussed with him for his cure and safety as he was acting as Baidya. On his advice, puja was performed at his house. The respondent then told him to stay at his house with the child for his safety while he went out to the jungle with his wife. In the jungle, he raped her and then returned. His wife did not divulge the incident as the respondent warned her that her son would die if she did so. According to PW-3, after another incident of rape involving Mrs. X (the prosecutrix in Crl. A. No.16/14) whose son also died even after performing puja, she disclosed the rape committed upon her by the respondent. The prosecutrix told him that she was raped by the respondent in the jungle. The matter was reported to the village elders, but not being satisfied with the village proceeding, the prosecutrix was compelled to lodge the complaint with the police.
18. To demonstrate that the respondent is a serial rapist, the prosecution examined the husband of another victim as PW-4, who testified that eight months before the date of his deposition, he asked the respondent to perform puja at his house as his son was ill and that he performed the puja, took his wife, Mrs. Y (name not disclosed) to the jungle where he raped her. She did not confide to him about the incident for sometime, but disclosed the same when another victim (the prosecutrix in the previous case) disclosed to the public the rape committed upon her by the respondent. Another victim was examined as PW-8, who testified that one year earlier, the respondent performed puja at her house, told her to follow him to the jungle where he undressed her and raped her. Another victim, Mrs. X was also examined as PW-9 (the victim in Crl. App. No.16 of 2014), who testified that the respondent was her jetha, who raped her in the jungle in the name of performing puja. According to PW-9, she talked to Mrs. Y (PW-1 and the victim in Crl. Appeal No.29 of 2014) and Mrs. Z (the prosecutrix in Crl. Appeal No.30 of 2014 and her name not disclosed), both of whom told her that they were also raped by CRL. APP. NOs.16, 29 & 30/2014 Page 16 of 21 the respondent in the same way after performing puja to cure their children. The statements of these witnesses shall have to be taken with a pinch of salt inasmuch as they did not even bother to say when, where and under what circumstances PW- 1 and the said Mrs. Z told her that they were also raped by the respondent in the same way. Conviction cannot be based on such sketchy statements. It is always the duty of the prosecution to prove its case beyond reasonable doubt. PW-7 is the younger sister of the prosecutrix and her evidence was tendered to corroborate the statement of the prosecution to the extent that she saw the respondent performing puja at the house of the prosecutrix. Though the respondent was convicted under Section 376(1) IPC on the basis of the statement of Mrs. X in Crl. Appeal No. 16 of 2014, the evidence established by the prosecution for the conviction of the respondent in that case cannot be used to convict him in this case inasmuch as the evidence tendered here are not satisfactory. In our judgment, the unreliable evidence of PW-3, PW-4, PW-7, PW-8 and PW-9 in this case cannot be used to corroborate the equally unreliable evidence of PW-1 of this case. The following principles laid down by the Apex Court in State of Punjab v. Parveen Kumar, (2005) 9 SCC 769 must always be kept in mind while appreciating the credibility of the evidence produced by the prosecution:
"10. While appreciating the credibility of the evidence produced before the court, the court must view the evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declarations. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. The two dying declarations, however, in the instant case stand by themselves and there is no other reliable evidence on record by reference to which their truthfulness can be tested. It is well settled that one piece of CRL. APP. NOs.16, 29 & 30/2014 Page 17 of 21 unreliable evidence cannot be used to corroborate another piece of unreliable evidence. The High Court while considering the evidence on record has rightly applied the principles laid down by this Court in Thurukanni Pompiah v. State of Mysore1 and Khushal Rao v. State of Bombay2.
(Underlined for emphasis)
19. In our opinion, the evidence adduced by the prosecution does not establish the commission of any crime by the respondent. As already noticed, the evidence adduced by the prosecution in Crl. Appeal No.16 of 2014 cannot also be roped in to convict the respondent in this case, which must succeed on its own strength and independently. It is quite possible that the respondent is a serial rapist or could be our very own Rasputin using his hypnotic power to bed with desperate and vulnerable women by making false promise of magical cure to their children, but then the well-settled law in our criminal jurisprudence is that suspicion, howsoever strong it may be, cannot take the place of proof. Under the circumstances, we hold that the prosecution has failed to prove the guilt of the respondent for the offences punishable U/s 376(1)/417 IPC beyond reasonable doubt. Therefore, it is very difficult to sustain the conviction of the respondent even under Section 417 IPC. Even though no appeal is filed by the respondent, considering the fact that the prosecution is unable to prove his guilt beyond reasonable doubt, we are the view that this is a fit case for invoking Section 482 CrPC for setting aside his conviction.
20. The result of the foregoing discussion is that the impugned judgment cannot be sustained in law. The acquittal of the respondent of the charge U/s 376(1) IPC is correct and need not be interfered with. However, the conviction and sentence of the appellant U/s 417 IPC be and is hereby set aside. The respondent is, therefore, set at liberty forthwith. The respondent need not surrender to his bail- bonds. Transmit the L.C. record.
Criminal Appeal No. 30/2014 1 AIR 1965 SC 939 2 1958 SCR 552 CRL. APP. NOs.16, 29 & 30/2014 Page 18 of 21
21. In this appeal, the State is aggrieved by the judgment dated 24-4-2014 passed by the learned Sessions Judge, South Tripura in the related S.T. No. 11(ST/S) of 2014 acquitting the respondent of the offence charged against him U/s 376(1) IPC and convicting him U/s 417 IPC.
22. The case of the prosecution, in a nutshell, is that on 17-6-2013, the respondent who is a quack doctor, arranged puja by taking a fee of `500/- from the victim and after performing the puja, he asked her to accompany him to the jungle area at Choto tilla. After they reached the tilla, he commanded her to remove her clothes. After chanting hymns, he touched the different parts of the body of the victim and then proposed to have her sexual intercourse. He warned her that if she refused to do so, her baby would not be cured. This forced her to have sexual intercourse with him, but she did not disclose the incident immediately as per the instruction of the respondent. But, after a few days, she revealed the incident to her husband, who then enquired from other small quacks and respected villagers whether they used to do what was done by the respondent to his wife. When they answered in the negative, she, after taking permission from her husband, approached the Panchayat through the Pradan to do justice to her. The pradhan of the village asked her to remain silent and offered to pay her `1,000/-, but when she refused to accept the offer, the meeting was called off. This compelled her to lodge the complaint with the Officer-in-Charge of Silachari Police Station for appropriate action. The case was registered as Silachari P.S. Case No. 25/13 U/s 376/417 IPC. After completion of the investigation, the police charge-sheeted the respondent U/s 376(1)/417 IPC to stand the trial.
23. On receipt of the charge sheet, the learned Sub-Divisional Judicial Magistrate, Sabroom, took cognizance of the offences and after completing the formalities, committed the case to the learned Sessions Judge, South Tripura for further proceedings. The learned Sessions Judge, after hearing both the appellant and the respondent, framed the charges against the respondent U/s 376(1)/417 IPC, to which the respondent pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined nine witnesses and exhibited three CRL. APP. NOs.16, 29 & 30/2014 Page 19 of 21 documents to substantiate the charges against the respondent. At the conclusion of the trial including examination of the respondent U/s 313 CrPC, the learned Sessions Judge acquitted him of the charge U/s 376(1) IPC and rather convicted him U/s 417 IPC and sentenced him to undergo R.I. for one year. The period of sentence was also set off against the period already undergone by him in jail and during investigation.
24. PW-1 is the victim, and has deposed that the complaint was written by PW-2 under her dictation. She put her signature on the complaint after PW-2 read over and explained the same to her. She testified that she knew the respondent. She also knew Mrs. X (the prosecutrix in Crl. App. No. 16 of 2014). She was taken to the Magistrate and made her statement. According to her, the father of Mrs. X asked her whether she had taken the help of the accused-respondent for the safety of her daughter. She further deposed that the respondent also raped her by taking her to the jungle on the pretext of performing puja. She further testified that after taking information from her by Mrs. X, her father called the respondent to their house for chanting mantra in order to save her child. Mrs. X told the villagers in the village meeting held that she was also raped by the respondent in the jungle. She also deposed that Mrs. Y was also raped by the respondent. In the cross- examination, she revealed that the respondent performed puja on 18th Sravana the year before and that her child did not die after puja. In this case, it is seen that no whisper of statement was made by Mrs. Y that her child died even after performing puja by the respondent. Be that as it may, her evidence lacks detail particulars. For example, she did not even mention the time, date and place of occurrence of the incident. To corroborate her story, both Mrs. X and Mrs. Y were also examined as PW-7 and PW-3, who testified before the trial court as to how they were also duped by the respondent. However, the statement of PW-7 and PW-3, who are not ocular witness to the incident complained of by PW-1, cannot come to her rescue - zero multiplied by 100 is still a zero. According to both the witnesses, PW-1 was alleged to have told them of her experience, but then such statement is only hearsy evidence, which cannot be acted upon. It is not known as to whether the information was given to them by PW-1 just after the incident or after how many CRL. APP. NOs.16, 29 & 30/2014 Page 20 of 21 days or months. If it has been proved by the prosecution that such information was given by PW-3 and PW-7 to PW-1 just after the occurrence, the same could have been relevant U/s 6, Evidence Act. In our opinion, the prosecution is unable to prove that the respondent had sexual intercourse with PW-1 as charged. Therefore, the question as to whether PW-1 was a consenting party to any sexual intercourse with the respondent has become immaterial and irrelevant. Nor is there any satisfactory evidence to show that the respondent ever deceived PW-1 for having sexual intercourse with her. The respondent is, therefore, entitled to the benefit of doubt. The trial court has rightly acquitted the respondent and has, however, misdirected itself in convicting the respondent U/s 417 IPC, which warrants our interference to this extent. Even though no appeal is filed by the respondent against his conviction U/s 417 IPC, we are of the view that this is a fit case for invoking Section 482 CrPC for setting aside his conviction for want of sufficient evidence.
25. The net effect of the foregoing discussion is that the impugned judgment of acquittal stands. The appeal is, accordingly, dismissed. However, the judgment of conviction and sentence U/s 417 IPC is bad in law, cannot stand and is, therefore, set aside. The respondent need not surrender to his bail bonds and is set at liberty forthwith. Transmit the L.C. record.
JUDGE CHIEF JUSTICE
Sukhendu
CRL. APP. NOs.16, 29 & 30/2014 Page 21 of 21