Tripura High Court
Shri Suranjoy Reang vs The State Of Tripura on 28 September, 2020
Equivalent citations: AIRONLINE 2020 TRI 323
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J) 32 of 2018
Shri Suranjoy Reang,
son of Shri Jatramani Reang,
resident of West Gachiram Para,
PS: Anandabazar, District: North Tripura
----Appellant(s)
Versus
The State of Tripura
represented by the Secretary,
Government of Tripura,
Home Department, Agartala
---- Respondent(s)
For Appellant(s) : Mr. A. Nandi, Adv.
For Respondent(s) : Mr. Ratan Datta, PP
Date of hearing : 12.06.2020
Date of pronouncement : 28.09.2020
Whether fit for reporting : YES
HON‟BLE MR. JUSTICE S. TALAPATRA
HON‟BLE MR. JUSTICE S.G CHATTOPADHYAY
Judgment & Order
(S. Talapatra, J)
This appeal under section 374(2) of the CrPC by the convict, hereinafter as referred to the appellant, has questioned the legality of the judgment and order of conviction and sentence dated 15.05.2018 delivered in case No. Special(POCSO)9 of 2015 by the Special Judge, North Tripura, Dharmanagar. By the said judgment, the appellant has been convicted under Sections Page 2 of 33 341 and 366 of the IPC and under Section 5(g) of the Protection of Children from the Sexual Offences Act, 2012, (in short, POCSO Act). Pursuant to the said conviction, the appellant has been sentenced to suffer rigorous imprisonment of 10 years and to pay fine of Rs.5000/- with default stipulation for committing offence punishable under Section 366 of the IPC. The appellant has been further sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/-with default stipulation for committing offence punishable under Section 5(g) of the POCSO Act which is punishable under Section 6 of the said Act. Further, the appellant has been sentenced to suffer simple imprisonment for one month and to pay fine of Rs.500/- with default stipulation. Being aggrieved thereof, this appeal has been preferred.
[2] The genesis of the prosecution can be located in the complaint (Exbt-12) filed by one Pingtlaia Reang (PW-2) revealing that his daughter, aged about 14 years (the name of the victim is withheld in order to protect her identity), was coming back to home at Hajacherra Refugee camp on foot from Gachiram Bazar along the Anandabzar - Dasda Road in company of Tairai Reang, Dekhia Reang and Smt. Ramgaia Reang at about 9 o‟ clock at night. During that time, four unknown tribal youth at one point chased them and attempted to assault them. All of Page 3 of 33 them ran away out of fear, but his daughter failed to flee to a safe zone. Three tribal youth had taken his daughter to south Gachiram para jungle and raped her there. Thereafter, they left her in the place of occurrence. Somehow, the victim came to her place of stay and on her version, the complaint was filed on 28.05.2013 to the Officer-in-Charge Anandabazaar Police Station. The victim was vulnerable. Based on the said complaint, Anandabazaar PS case No. 13/2013 under Sections 376(2)(1)/ 376 (d) of the IPC was registered and taken up for investigation. [3] On completion of the investigation, the final report was submitted by the police chargesheeting the accused namely Suranjoy Reang (the appellant) Pranay Kanti Reang, Rajkumar Reang and Nanjirai Reang. After taking cognizance, the charge under Section 341 read with section 34 of the IPC, Section 366A read with Section 34 of the IPC and Section 376(2)(g) read with Section 34 of the IPC was framed on 27.05.2012. That apart, one alternative charge was framed under Section 5(g) of the POCSO Act, punishable under Section 6 of the said Act read with Section 34 of the IPC. The appellant having pleaded innocence, denied the charge and claimed to be tried. It may be noted at this place that the accused persons namely (1) Pranay Kanti Reang (2) Nanjirai Reang and (3) Rajkumar Reang could not be brought to trial as they were absconding. However, they were declared as Page 4 of 33 the proclaimed offenders by the Special Court on 16.04.2017. Therefore, the trial was confined in part to the appellant. [4] In order to substantiate the charge as many as 21 witnesses were examined by the prosecution and as many as 32 documentary evidence (Exbts-1 to 26 and Exbt C-1 to Exbt C-6) were admitted including the school certificate (Exbt-6), the report of Tripura State Forensic Science Laboratory (SFSL) (Exbt-14), the medical examination report of the victim girl (Exbt-20). After recording the prosecution evidence, the appellant was examined under Section 313(1)(b) of the CrPC for having his response to the incriminating materials those surfaced in the trial. The appellant reiterated his plea of innocence. As no evidence was adduced by the defence, having heard the respective pleas of the prosecution and the defence, the said finding of conviction has been returned by the special judge by holding inter alia as follows:
"12. In totality of the evidence on record, I find that the victim as PW 12 has stated that on the day of the incident she went to Tlangsang School but during return she did not get any vehicle and so she was returning on foot and along with her two boys namely Tiyarai Reang, Demoiya Malsui and one girl namely Naiomi Reang were also proceeding on foot and while they reached in the western side of Gachiram Para four boys belonging to Reang community tried to detain then and out of fear Taiyrai Reang, Demoiya Malsu and Naiomi Reang and she herself tried to escape but though three of them managed to escape but she could not and that four boys took her in the jungle and by removing her clothes they one by one committed forceful intercourse with her taking her at different places and while they were committing forceful rape due to their torture she became senseless.Page 5 of 33
The IO as PW 20 has also stated that in this case he also arranged for TI parade for identifying the accused persons and the victim identified all the accused persons in the TI parade.
PW 21, Dipankar Bhusan Debbarma, Medical Officer has stated that on examination of the victim he found her hymen was ruptured and there was possibility of sexual assault on the victim.
PW 13, Pingtlaia Reang, the father of the victim has stated that he came to know about the incident when his victim daughter disclosed the fact to him and he informed the fact to the scribe and accordingly ejahar was prepared."
[5] Mr. A. Nandi, learned counsel appearing for the appellant has submitted that identification of the appellant as the perpetrator of the crime for which the charge were framed has not been established beyond reasonable doubt. On the contrary, how his identity was „disclosed‟ to the police is still under shadow. According to Mr. Nandi, learned counsel in the judgment of conviction that aspect of the matter has not been reflected. Moreover, the companions of the victim namely Tiyarai Reang, Dekhia Reang and Smt. Ramgaia Reang were not produced in the trial. Those three witnesses were withheld by the prosecution, but the trial court did not even examine that aspect of the matter. PW-12 (the victim) has suddenly stated that she could identify the appellant and other three accused persons but on the day of her deposition the other three accused persons, for the reason as noted before, were not in the trial. Only the appellant was present and the appellant was identified by PW-12 (the victim). It Page 6 of 33 is already on record that after hearing the occurrence PW-13, the father of the victim, lodged the complaint in the police station but in the said complaint the father has categorically stated that the perpetrators were four "unknown tribal youth". According to Mr. Nandi the said statement of PW-13 in the trial does seriously discredit the statement of the victim in respect of the identity of the perpetrators. Moreover, identification for the first time in the court cannot on the face be relied without corroboration. It has been admitted by the prosecution that there had been no procedure followed for establishing the identity of the perpetrators, even though at one point of time, all the four accused persons were arrested by the police. The investigating officer (PW-20) has completely failed to shed light how he could gather knowledge in respect of identity of "four unknown tribal youth".
[6] Mr. Nandi, learned counsel has further asserted that the testimony of the victim has been visited by serious contradictions. It appears from the testimony of PW-21 that when the victim was being examined by him on 20.08.2013, a day after the occurrence, the victim had informed him that "she was raped on 19.08.2013 at night at about 10-11 pm. according to her, she was raped by four persons and „their faces were covered by clothes‟. According to her three men out of four did sexual Page 7 of 33 intercourse with her and then, they left the place. This statement, according to Mr. Nandi, learned counsel, was not considered by the trial judge causing miscarriage of justice. Mr. Nandi, learned counsel thereafter has submitted that if the identity of the accused persons including the appellant is not satisfactorily established in conformity to the established canons, the other evidence which might surface in respect of commission of offence, may not be of any utility for securing conviction. At this juncture, Mr. Nandi, learned counsel has submitted that the evidence as relied by the trial judge does not satisfy those two requisites.
[7] Mr. Nandi, learned counsel appearing for the appellant has also seriously questioned the inference as drawn by the trial judge in respect of age of the victim. Even, the inference as drawn on the victim is untenable. Mr. Nandi has referred the observation of the trial judge in respect of age of the victim and contended that this is without any evidence inasmuch as the school certificate (Exbt-6) was completely relied on by ignoring the apex court decision in Narbada Devi Gupta vs. Birendra Kumar Jaiswal reported in (2003) 8 SCC 745. In para 16 of the said report, the apex court has observed as follows:
"16....The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that Page 8 of 33 is, by the „evidence of those persons who can vouchsafe for the truth of the facts in issue."
[8] Based on the said decision and a decision of this court in Nukul Sharma vs. State of Tripura (the judgment dated 02.08.2016 delivered in Crl.A(J) 29 of 2016) has contended that the date of birth mentioned in the admission register (the scholars register) has no evidentiary merit unless the person who made the entry or who gave the date of birth is examined. Mr. Nandi, learned counsel while closing his submission has quite robustly submitted that the conviction of the appellant is based on surmise and conjecture and therefore is unsustainable in law. [9] In defence of the judgment dated 15.05.2018, Mr. R. Datta, learned PP has appeared for the state. He has quite categorically stated that the first time identification in the trial as valuable as identification by the other procedure. Mr. Datta, learned PP has submitted that in this regard the trial court has recorded the reasons why the identification has been accepted by the court. According to the trial court, PW-20, the investigating officer, placed the suspects „in the test identification parade‟ and the victim had identified all the accused persons. When queried by the court, Mr. Datta, learned PP has fairly admitted that neither the victim nor the Judicial Magistrate came forward to state of such TI parade. What the victim has stated is that she Page 9 of 33 saw the faces of the accused persons after they were arrested. No Magistrate has been examined in the trial in order to prove the TI parade. The law has been developed that the test identification parade be preferably conducted by a Magistrate in order to enhance the probative value of the evidence relating to the TI parade.
[10] Mr. Datta, learned PP has also fairly admitted that the memorandum of the TI parade has not been placed with the final report nor has it been introduced in the trial by the prosecution. So far the age of the victim is concerned, Mr. Datta, learned PP has stated that the father of the victim (PW-13) did not state in the trial the age of the victim at the time of commission of the said offence. Even the victim did not make any statement, save and except, giving the information relating to her age in the trial while her description in the form of recording deposition was being recorded by the court. But Mr. Datta learned PP has submitted that Exbt-6, the school certificate cannot be disregarded as the same has been issued on the basis of the school admission register. Mr. Datta, learned PP has quite emphatically submitted that the offence of rape on the minor victim has been well established from the victim‟s statement in the trial as well as from the medical report of the examining doctor (PW-21). There is no reason why the victim should Page 10 of 33 unnecessarily implicate the persons who had even no acquaintance with her. Mr. Datta, learned PP has candidly submitted that the prosecution case did get support from the report of the State Forensic Science Laboratory (SFSL) in as much as in the vaginal swab (Exbt-A, marked by the SFSL) seminal strain of human origin could not be detected. Mr. Datta, learned PP has therefore submitted that the trial court did not commit any error by relying on the testimony of the victim. [11] In the rejoinder, Mr. Nandi, learned counsel for the appellant has contended that the inference as drawn by the trial judge is based on no evidence. This court may as the appellate court reappreciate the evidence and may not necessarily be guided by the inference drawn by the trial judge. The proof of rape cannot be the piece of evidence to involve the appellant with the crime, unless either by the substantive circumstances or by the direct evidence, it is proved that the appellant alone or the appellant with his companions had committed rape on the victim. In this regard, he has referred to a decision of the apex court in Khujji Surendra Tiwari vs. State of Madhya Pradesh reported in AIR 1991 SC 1853. According to Mr. Nandi, learned counsel, even in State of Punjab vs. Gurmit Singh and Others reported in (1996) 2 SCC 384, the apex court had occasion to observe that the victim being not accomplice to the crime has to be believed Page 11 of 33 and if the victim‟s statement instills confidence in the court on the basis of her solitary statement, the conviction can be returned. It has been further observed that the court while appreciating the evidence of the victim should not throw out her testimony unless there are compelling reasons for looking for corroboration of her statement.
[12] It has been immediately observed thereafter that the court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy the judicial conscience. But there is no requirement of law to insist corroboration. There is no controversy that the evidence of the victim of sexual assault stands at par with the evidence of an injured witness and to an extent it can even be placed on the higher category for reliance. Mr. Nandi, learned counsel has stated that the fact of identification is so seriously shrouded that what the victim has stated in the court cannot be accepted unless on the record of evidence there is corroborating evidence in this regard. In the present case, there is no such evidence. For the same purpose, reliance has been placed on the decision of the apex court in Rai Sandeep @ Deepu vs. State of NCT of Delhi (the judgment dated 07.08.2012 delivered in Criminal Appeal No. 2486 of 2009).
Page 12 of 33[13] A decision of this court in Anwar Hossain Maishan vs. State of Tripura (the judgment dated 04.11.2019 delivered in Crl.A.(J) 31 of 2016 has been pressed in the service. This court had occasion to observe in the said report that unless the court is of the view that the testimony of victim is wholly reliable and truthful, the statement of the victim should not be acted upon unless such statement is further corroborated by the legal evidence. Mr. Nandi, learned counsel has relied on a decision of the apex court in Vaikuntam Chandrappa and others vs. State of Andhra Pradesh reported in AIR 1960 SC 1340 where it has been held as follows:
6. The main question canvassed before us by the learned counsel for the appellants is that even if the matter is approached in the manner in which the High Court had approached it, there was no corroboration of the evidence of the driver (P. W. 3) in so far as two of the accused, namely, Vaikuntam Chandrappa (A-3) and Nabi Sab (A-4) were concerned. We shall first examine this contention with respect to Accused 3. He is one of the three brothers who were the leaders of Kamma group. He has been named by P. W. 3. The corroboration on which the High Court relied in his case is the statement of P. W.
1. This witness did not know any of the assailants from before. Therefore, after the arrest of the assailants, seven of them (except Vaikuntam Narayana) were put up for identification by him. These seven were mixed with thirty-nine other persons. P. W. 1 picked out three out of seven suspects and also picked out six out of the remaining thirty-nine. Thus, in effect, he made three correct identifications and made six mistakes at the identification parade. It was urged that in the circumstances, the identification by this witness, even though he was disinterested, was unreliable and could not be used as corroboration of the evidence of the driver. If this identification is left out of account, the circumstantial evidence against this accused would not be sufficient to corroborate the statement of the driver as to the presence of this accused at the time of the incident. It has, therefore, to be seen whether the identification by this witness is reliable in spite of the fact that he was a disinterested person. The first Page 13 of 33 circumstance in that connection that stares one in the face is that this witness while picking out three out of the seven suspects picked out double that number out of those mixed with the suspects. The first report was made by this witness in which he gave the number of assailants as about 8 or 9. The impression which one gets from this identification by him is that he was prepared to identify the maximum number of the assailants, namely, nine which he had given in the first report, without being sure whether he was picking out persons whom he had really seen at the time of the incident. Further the identification looks as if he was bent on picking out nine persons irrespective of his being certain that he had seen them at the time of the incident. It seems to us that in these circumstances no reliance can be placed on such an identification even of a witness who is disinterested. The second circumstance in connection with this identification is that in a parade of this kind consisting of 46 persons in all in which there were seven suspects and in which nine persons were picked out, the probability is that even if a person who had not seen the murder were to pick out suspects he would by mere chance be able to place his finger on one or two of the suspects. In these circumstances, the conclusion cannot be escaped that the three suspects might have been picked out by this witness by mere chance. It is true that when he came to give evidence in court, the witness did point out to the same three accused as having been seen by him at: the time of the murder. It is also true that the substantive evidence is the statement in court; but the purpose of test identification is to test that evidence and the safe rule is that the sworn testimony of witnesses in court as to the identity of the accused who are strangers to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding. There may be exception to this rule where the court is satisfied that the evidence of a particular witness is such that it can safely rely on it without the precaution of an earlier identification proceeding; But in this case we are not prepared to consider P. W. 1 as a witness of that exceptional kind. Further when a test identification has taken place, as in this case, its effect on the evidence of the witness in court must always be assessed; and in the circumstances of this case we are not prepared for reasons already given to rely upon the identification of P. W. 1 in court. In the result, therefore, the evidence of P. W. 1 as to the identification of the accused is such that it must be rejected in spite of the fact that he is a disinterested witness. Once it is rejected it cannot be used as corroboration of the evidence of P. W. 3. Thus so far as this accused is concerned one is left only with the testimony of P. W. 3 and the circumstantial evidence. We have already said that the circumstantial evidence by itself is not such as to make certain the presence of this witness at the time of the murder. The High Court convicted this accused mainly because it was of the opinion that the evidence of! P. W. 1 could be used as corroboration. Once, however, that evidence is Page 14 of 33 rejected, there is no corroboration and on the principle laid down by the High Court that there should be no conviction on the uncorroborated testimony of P. W. 3 this accused must be given the benefit of doubt in the same way as the fifth person acquitted by the High Court."
[Emphasis added] [14] Thus, it surfaces that the following three questions are of paramount importance for determining this appeal:
(1) Whether the identification of the strangers who committed the rape has been established by the legal evidence?
(2) Whether the age of the victim has been determined by the legal evidence to bring the offence under Section 6 of the POCSO Act? and (3) Even if, the commission of rape is proved whether by any evidence the appellant has been linked with the commission of offence?
[15] Before this court embarks on to reappraise the evidence as recoded in the trial, it will be pertinent to note that by the medical report (Exbt-20), the report of the SFSL (Exbt-14) and the testimonies of the victim (PW-12) and the medical officer (PW-21), this court may safely come to a conclusion that the victim was subjected to „rape‟ or penetrative sexual assault, inasmuch as, the sexual intercourse has been proved and the victim in the trial has categorically stated that the said sexual intercourse had taken place without her consent. The consent will be immaterial if the age of the victim is proved to be above eighteen years. Mr. Nandi, learned counsel, however, did not Page 15 of 33 challenge the finding of commission of rape as returned by the trial court, but has pointed out to the medical examination report whereby the examining medical officer has indicated to a possible inference by stating as under:
"There is a possibility of sexual assault with the girl"
[16] It is to be further noted that the witnesses namely Shri Udairam Reang (CW-1), the victim (PW-1), Pingtlaia Reang (PW-2) Bajuban Reang (PW-3), Mujib Kumar Reang (PW-4), Smt. Rexona Reang (PW-5), Shri Kameshwar Reang (PW-6), Shri Sabasyachi Nath (PW-7) and Shri Kamalakanta Jamatia (PW-8) were examined under Section 299 of the CrPC but later on they had testified in the trial that commenced in presence of the appellant and their statements had been recorded elaborately. For purpose of determining the appeal, the testimonies as recorded in the regular trial would be referred. [17] PW-1, Khau Roiti the mother of the victim, has stated in the trial that one day her daughter went out to ration shop for procuring ration but on that day she did not return. On the following day she returned home and disclosed of the occurrence to her. When the police came, she was examined by the police and she had disclosed that on the way back to home "three persons detained her and she was taken forcefully in different areas". She was raped by them but she did not disclose the Page 16 of 33 names of those persons. There was no cross examination by the defence.
[18] PW-2, Dal Milton Reang turned hostile by stating that he did not know anything of the case. he had denied to make any statement to the police (Exbt-1). As he was declared hostile, the prosecution was allowed cross examine him, but the defence did not cross-examine him.
[19] PW-3, Dasnarun Reang did not have any personal knowledge about the occurrence but at his initiative a meeting was convened in the locality to discuss the said occurrence. He has testified that even though the suspects were invited in the said meeting, they did not attend and hence no decision could be taken. The said witness has been declared hostile at the instance of the prosecution for not supporting his statement as recorded under Section 161 of the CrPC. Thereafter, the said witness was allowed to be cross examined by the prosecution. From the statement as recorded by the police under Section 161 of the CrPC, it revealed inter alia as under:
"Then at about quarter to 4.00 pm I met with Nanjirai Reang and Rajkumar Reang at Kanchanpur market. Then both of them in my presence narrated the entire incident and admitted that Nanjirai Reang, himself along with Rajkumar Reang, Pranoykanti Reang and Suranjoy Reang totaling 4 persons committed rape on the girl and both of them requested me to arrange for exemption from the liability of the case and thereafter, police officer of Anandabazar came and arrested Nanjirai Reang and Rajkumar Reang. (On being drawn attention to his 161 statements the witness denied the fact of Page 17 of 33 alleged confession made by Nanjirai Reang and Rajkumar Reang and narration of the incident to him but admitted that he stated to the police that he met with Nanjirai Reang and Rajkumar Reang in Kanchanpur market and claimed that he produced them to Kanchanpur PS."
But PW-3 has categorically denied to have made such statement even he has denied that Nanjirai and Rajkumar had admitted in his presence they along with Pranoykanti Reang and Suranjan Reang had committed rape on the Reang girl. He has also denied that he had produced them to the Kanchanpur PS. [20] PW-4, Shri Narodmani Reang being the Chowdhury of that locality, was present in the meeting called for discussing on rape of the Reang girl. He has stated that in that meeting Nanjirai Reang and Rjumar Reang did not appear. Thereafter, he has made the following statement:
"Since they were not present we concluded that they might have committed the offence and we decided that should be apprehended and should be handed over to the police. Thereafter, we apprehended them and handed over to Kanchanpur PS."
PW-4 was also declared hostile at the instance of the prosecution for not supporting his statement that he made to the police officer during investigation. In his previous statement as recorded under Section 161 of the CrPC and as shown in the trial, PW-4 had purportedly stated as follows:
"At about quarter to 4.00 pm I met with Nanjirai and Rajkumar Reang. Then both of them disclosed the entire facts in my presence and confessed that Nanjirai, himself along with Rajkumar Reang, Pranoykanti Reang and Suranjoy Reang totaling 4 persons collectively committed rape on that girl and both of them requested Page 18 of 33 us to arranged for exempting them from the liability of that case."
PW-4 has categorically denied to have made such statement when his attention was drawn to the said statement. He has also denied he had been deposing falsely in the trial. [21] PW-5, Mahendra Reang, a villager from the same village where the incident took place has testified in the trial and stated that on the following day of the occurrence she was called at Ananadabazar Police Station as the village leader. In his presence, one girl had complained that she was raped when she had been returning home through Gachiram para by four persons. Out of them, three persons were named. They are Nanjirai Reang and Rajkumar Reang and Suranjoy Reang. The victim did not state so in the trial. Thus, the statement is hit by the hearsay rule.
PW-5 was also declared hostile at the instance of the prosecution on showing his statement made to the police officer during the investigation. He was cross examined by the prosecution. In the statement as recorded by the police officer, PW-5 had purportedly stated that he came to learn the incident on the night of occurrence itself as Pranoykanti Reang and Suranjoy Reang visited his house. They wanted to know from him what kind of punishment would ensue for rape. Suranjoy Reang Page 19 of 33 also had asked him if he would marry a girl whether he could get rid of punishment. Thereafter, PW-5 had purportedly stated as under:
"Thereafter, they left. Thereafter, on 25.08.2013 in the morning again Pranoy Kanti Reang and Suranjoy Reang came before me and confessed the incident stating that on 19.08.2013 in the evening at about 7.00 pm Nanjirai Reang and Rajkumar Reang were present in a library shop of Gachiram Para market and then after some time two refugee girls with two boys came and there he also met with Nanjirai Reang and Rajkujmar Reang. The refugee two boys and two girls were started to go home on foot by not getting any vehicle and when they reached at South Gachiram Para they forcefully detained one girl and committed rape on her."
During the cross-examination as carried out by the prosecution PW5 has clearly stated that he had stated so to the police officer. But in the cross examination, PW-5 has as well made the following statement"
"I did not state specifically to the police that in the PS I met with Reang victim girl where the said female named Suranjoy Reang. (Witness volunteers) as that statements was made in presence of police."
Thus, the statement of PW-5 is found incohesive and inconsistent.
[22] PW-6, Priyanka Reang was posted as Lab Assistant at Kanchanpur Sub-Division Hospital on 25.09.2013 and in her presence, dry blood sample of Suranjoy Reang , dry blood sample of Nanjirai Reang , dry blood sample of Rajkumar Reang and dry blood sample of the victim were seized by the police in her presence. She has admitted in the trial to have signed the seizure list (Exbt-4).
Page 20 of 33[23] PW-7, Sri Debasish Dasgupta is also witness to the seizure of those blood samples, seized by means of the seizure list (Exbt-4). He has admitted that seizure in the trial. [24] PW-8, Charmila Reang is the seizure witness of vaginal swab in one sealed plastic container by the seizure list (Exbt-5). [25] PW-9, Rouckhuah Kima Royte, had issued the school certificate on 16.12.2013 as the teacher-in-charge of Tlanmgsang Para High School, Jampui, North Tripura in respect of the victim. She got admission in the school in the year 2013 at class VIII and her date of birth was recorded as 01.08.1997. He has admitted that he wrote that certificate in the plain paper (Exbt-6). But he has admitted that he did not bring the admission register. He has claimed that he could say the serial number where the name of the victim had been recorded. Her name was at serial No.66. He has admitted the said certificate (Exbt-C) and the seizure list (Exbt-7) [26] PW-10, Jyotishmoy Das was tendered by the prosecution.
[27] PW-11, Debaki Reang a woman constable had escorted and introduced the victim to Anandabazar PHC for her medical examination. In her presence Kamalakanta Jamatia the investigation officer (PW20) had seized the containers of vaginal Page 21 of 33 swab and perennial swab. She had identified her signature on the seizure list (Exbt-5).
[28] PW-12, the victim is the „sterling‟ witness in the prosecution case. She has stated that in the year 2011 on 19th August at about 9 pm she went Tlangsang School but on her way to return she did not get any vehicle and she was returning on foot along with two boys namely Tiyarai Reang, Demoiaya Malsui and one girl namely Naiomi Reang. When they reached the western side of Gachiram Para two boys tried to detain them. Out of fear three of her companions as named managed to escape but she could not. Those four boys belonging to Reang community took her inside the jungle and by removing her clothes they one by one committed forceful intercourse with her. She was taken to different places. Failing to bear, she became unconscious at one point of time. When she regained senses, she had proceeded to reach home at wee hours of night, she did reach home. It may be noted, at this juncture that PW-1 mother of the victim has stated in the trail that she went to ration shop for bringing ration and on that day she did not return. On the following day, the victim returned. At the dead hour of night, when she returned home she was wearing her top and jeans made cloth, but she could not collect her bra, panty, stalking and one jeans made half sleeve frock. She has stated, thereafter, as follows: Page 22 of 33
"I was totally ashamed of and shocked after the incident and going home I did not disclose anything to anybody and out of grief I was weeping during sleeping. In the early morning, my aforesaid friends came to my home and inquired me about the incident and thereafter, I narrated the incident to my friends and then ultimately my parents also came to know about the incident. My friends actually gave information to the police. Then police went to my house. Police obtained ejahar from my father subsequently, I had seen the faces of the accused persons after they were arrested. At a place I was brought by police to identify them. I identified all the four accused. Out of the accused persons today one accused namely, Suranjoy Reang is present."
[29] She has also stated in the trial that she could have indentified the other three persons if they were present in the court. When PW12 was testifying her demeanour was recorded by the trial judge. She was trembling with tears. She has identified her statements (Exbt-8) as recorded under Section 164(5) of the CrPC. She has further submitted that the police recovered her panty from Gachiram para by preparing a seizure list (Exbt-9). Her stalking and jeans frock were also seized by the police by preparing the seizure list (OExbts-10 and 11 respectively). The only suggestion that was made to her was denied by stating that it was not a fact that she could not identify the appellant either at the police station or at any other place.
[30] PW-13, Pingtlia Reang the father of the victim who had lodged the complaint, identified the complaint (Exbt-2). In the trial and stated that according to his dictation, the complaint was drawn up. He lodged the complaint of gang rape of her daughter (the victim) by „four unknown accused person‟. He was also the Page 23 of 33 witness to the seizure of the victim‟s panty one stalking and her wearing frock. He has identified the seizure lists being marked as Exbts-9, 10 and 11. There had been no cross-examination by the defence.
[31] PW-14, Bajuban Reang did not tell anything of material importance.
[32] PW-15, Sri Kushokrai Reang was also declared hostile as he did not support the prosecution cause vis-à-vis the statement as recorded under section 161 of the CrPC. The prosecution was allowed to cross examine, but in that cross examination, he had clearly stated that Nanjirai Reang had stated to him that he and his fellow persons namely Pranay Reang, Suranjay Reng and Rajkumar Reang had committed a „bad work‟. On his query, Nanjirai had also disclosed that they had committed rape. In the same cross-examination, he had denied that Nanjirai disclosed the offence of rape and the names of the co-accused. He has categorically stated that he did not make any statement to the police. There was no effective cross- examination.
[33] PW-16, Sri Kameswar Reang who is a carpenter by profession, has testified in the trial that on the following day of the occurrence he had reported for his work to Nanjirai Reang. He came to know that one Reang girl of Hazacherra camp was Page 24 of 33 raped at Gachiram Para. One day the police came and the local boys were called by the police. Nanjirai Reang and Suranjoy Reang did not come. It has been asserted by PW-16 that Nanjirai Reang and Suranjoy Reang were not the resident of south Gachiram Para. However, the police arrested them in connection with the said occurrence. There was no effective cross examination.
[34] PW-17, Sri Mujib Kr Roy has testified in the trial that on 09.08.2013 he had given lift to two males and two females in his alto vehicles to reach Gachiram para. On the following day, he came to know, one of the females was raped by some persons at Gachiram Para. No cross examination was done by the defence. [35] PW-18, Smt., Rexona Reang, could not make any statement in the trial, because she was not at all conversant in Bengali. We are saddened to note the translator‟s service was taken for recording testimonies. However, the defence did not raise any objection to that irregularity.
[36] PW-19, Sri Sabyasachi Nath, a forensic expert, has testified that on 28.09.2013 he had received some materials [Exbt A to Exbt-I] on reference. After the forensic examination of those materials including the vaginal swab of the victim, the forensic experts opined that the speciman sample of the blood of the victim and the accused persons were not useful to be sent to Page 25 of 33 the DNA division. Therefore, no further detail in respect of the report (Exbt-14) is required to be referred inasmuch as no further utility can be churned from that report. In Exbt-14, the result of the forensic examination including a note can be noticed. For purpose of reference, relevant part of the report is extracted hereunder:
12.Results:
(i) Seminal stain of human origin could be detected in the exhibit marked as A.
(ii) Blood stain could be detected in the exhibits marked as A and B; but their origin and blood group could not be determined.
(iii) No seminal stain could be detected in the exhibits marked as A-1, B, C, D, E, F, G and H.
(iv) No blood stain could be detected in the exhibits marked as A-1, C, D, E, F, G and H. Notes: (1) Results relate only to exhibits tested (2) Since no seminal stain/blood stain could be detected in the exhibits marked as A-1, C, D, E, F, G and H, and since the blood group of the exhibits marked as A and B could not be determined due to presence of only a trace of stain in each, determination of blood group of the exhibits marked as I, I-1, I-2, I-3 and I-4 have been dispensed with and not sent for DNA profiling, (3) After examination the remnants of exhibits have been sealed with the seal impression given below.
[37] PW-20, Sri Kamala Kanta Jamatia, had carried out the investigation. He has narrated how he had conducted the investigation after the case was registered on the basis of the complaint filed by PW-13. He has also proved the seizures.
In the cross-examination, he has stated that the victim did not give any description of the accused persons but stated they were all tribal people. He did not make arrangement for ossification test of the victim girl. Finally, he has denied to Page 26 of 33 have taken the victim to the police station or to have introduced the accused persons including Suranjoy Reang before the TI parade. He has also stated in his cross-examination that he had sent the vaginal swab and blood samples of the accused persons along with the wearing apparel of the accused person and the wearing apparel of the victim to SFSL. After forensic examination, no definite finding was received by him. Surprisingly enough, the previous statements of PW-2 (Exbt-1) PW-3 (Exbt-2), and PW-4 (Exbt-3) were not shown to him to ascertain that he had recorded those statements or not as a specific denial was made by those witnesses. Even there was no question as regards the testimony of PW-5.
[38] PW-21, Dipankar Bhushan Debbarma, had medically examined the victim and the accused persons. He has categorically stated that the possibility of rape cannot be ruled out. All the accused persons were produced before him. They were found to be sexually potent and capable of doing the sexual intercourse. From the report (Exbt-20), as introduced by PW-21, it appears that the victim girl had stated to the medical officer (PW-21) when she was produced for her medical examination as follows:
"As she has been raped, according to her on 19.08.2013 night around 10-11 pm. According to her she has been raped by 4 unknown persons, and their faces were covered by clothes. According to her 3 men out of 4 Page 27 of 33 did sexual intercourse with her and then they left that place."
[Emphasis added] [39] In the report PW-21 has opined of the possibility of the sexual assault. The victim‟s hymen was found ruptured and signs of mild bleeding found inside the vagina. All the persons produced by the police as the perpetrators were found to be capable of doing sexual intercourse.
(1) Whether the identification of the strangers who committed the rape have been established by legal evidence? [40] The persons who could have identified the perpetrators are the victim and her companions. Her companions were not examined in the trial. The victim (PW-12) in her testimony has stated that the perpetrators were from the Reang Community. Thereafter, she has stated that she had seen faces of the accused persons after they were arrested at a place she was brought by the police to identify them. According to her, she had identified all the accused persons. Even in the court, she had identified the appellant. If this statement is read with the statement of the informant (PW-13), father of the victim who on the basis of narration of the victim lodged the complaint in the police station and stated there, inter alia, that four unknown tribal youth had chased them (the victim and her companies) and as the other companions had fled and the victim could tell only that she was raped by three tribal youth in South Gachiram Para Page 28 of 33 jungle, it would be apparent that the tribal youths were not known to the victim. Even in the trial, PW-12 has stated that the victim had disclosed the facts to him and he had informed the said facts to the police. At this juncture, the testimony of PW-20 is of immense assistance. He has stated that the victim did not give description of the accused persons but had stated that they were all from the tribal community, even though the victim has claimed that after the arrest she was shown the faces of the accused persons, but that part of the statement has clearly been contradicted by the investigating officer. PW-20 has also stated that the statement of the victim was recorded under Section 164(5) of the CrPC (Exbt-8). The said statement has been admitted in the evidence by PW-12. For purpose of taking a judicial notice of the said statement, the said statement can be noted. But there she has stated that she could be able to identify the perpetrators, if they were produced before her. It has been indicated by PW-20 that there had been a test identification parade (TI parade) but he has not stated anything about the outcome of the said parade. No memorandum of the test identification parade has been produced in the trial. Therefore, inference would be adverse to the prosecution case. But the victim has made a revealing statement that after arrest of the accused persons, she saw the faces of the accused persons. Page 29 of 33 Thereafter, she was taken to a place to identify them (the accused persons) and she had identified them. There had been no evidence, apart these for identification of the accused persons. During the investigation, it appears that the investigating officer had relied heavily on the extra judicial confession made by the appellant to PWs2 ,3 ,4 and 5. Out of those witnesses PWs 2, 3 and 4 turned hostile and denied to make any statement to say least of the extra-judicial confession to the investigating officer taking responsibility of rape by the accused persons or anyone of them. PW-5 was also declared hostile, however, during the cross examination by the prosecution, he has stated that she had stated of the accused persons to the police officer. Even, in the cross examination, she had denied that she met the victim when she had, if at all, stated the name of the appellant. The court cannot rely on such witness who changed his or her mind within a fraction of a minute. In the examination in chief, she had testified as follows:
"One girl complained that she was raped when she was returning home through Gachiram Para by four persons and out of them she named 3 (three) namely Nanjirai Reang, Suranjoy Reang and Rajkumar Reang."
How she could identify the accused persons by name, when they were unknown to her? There no evidence to break this riddle.
Page 30 of 33[41] Even the purported confessional statements made to him requires to be critically examined inasmuch as there is no details whether such statements were made to them. It appears that these witnesses had visited the police station and there, the Reang girl (the victim) had stated about involvement of the appellant. It is well settled that the extreme caution has to be applied on relying on extra-judicial confession particularly, in the case where the investigating officer (PW-20) did not state that he had recorded the said statement of PW-5. Whether the identification by the victim girl for the first time in the trial after about four years (the occurrence took place on 19.08.2013 and the identification of the appellant as perpetrator was made by the victim in the trial on 09.08.2017. Such identification unless supported by the record of identification immediately after the occurrence cannot safely be relied by any court, inasmuch as the occurrence took place at night about 9 o‟ clock. As stated earlier, the investigating officer had denied to have shown the accused persons to the victim after their arrest, as claimed in the trial by the victim. Regarding the TI parade, no memorandum of procedure or its outcome has been placed by the investigating officer. Hence, in our considered opinion, such identification having regard to the circumstances, made first time in the trial by the victim cannot safely be relied for purpose of conviction. Page 31 of 33
(2) Whether the age of the victim has been determined by legal evidence to bring the offence under Section 6 of the POCSO Act?
In Birad Mal Singhvi vs. Anand Purohit reported in 1988 Supp SCC 604, the apex court has enunciated the law as follows:
"14.......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. .......Merely because the documents Exts. 8, 9, 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved Mere proof of the documents Exts. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth or the facts or contents of the documents. The truth or otherwise of the facts in issue, namely the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted."
[42] The apex court has in unequivocal term has underlined that the date of birth as mentioned in the documents including the scholar‟s register cannot form the substantive evidence unless the document could be proved "by admissible evidence"
meaning "by the evidence of those persons who could vouchsafe to prove the fact in issue. In this case, in the one hand, the written certificate on a plain paper recording the date of birth of the victim girl has been introduced in the trial and admitted (as Page 32 of 33 Exbt-6) at the instance of PW-9 but the original register was produced. PW-9 did not state anything about who vouchsafed the said date at the time of admission. The parents, therefore, are the persons to state about the age of the victim. PW-13 (the father) did not utter any worse about the age of the victim in the trial, but we have noticed that PW-1 (the mother of the victim) has stated in the trial in respect of the age of the victim, as follows:
"She is my 3rd daughter. About 20 years back we came at Tripura from Mizoram. She was born after one year when we came at Tripura."
[43] From the said statement of the mother, the year of birth can be gathered roughly and the age can be determined. The occurrence took place on 19.08.2013 and PW-1 had deposed in the trial on 05.07.2017. According to her on the year of deposing, their coming to Tripura completed twenty years. Thus, the tentative year of coming would roughly be 1996. She has categorically stated that after one year the victim was born. Thus, the victim was born sometime in 1997. Thus, when the said occurrence took place, the victim was about 16 years of age. Such assertion of PW-1 stands corroborated also by the school certificate. Thus, it is held by us that the age of the victim has been established by the prosecution to attract the provision of the POCSO Act.
Page 33 of 33
(3) Even if the commission of rape is proved whether by any evidence the appellant has been linked with the commission of offence?
[44] Except the testimonies of PW-5 and PW-12, there is no material to incriminate the appellant in the commission of rape etc. While giving response to the question, in respect of identification, of perpetrators we have elaborately given reasons why the testimonies of PWs 5 and 12 cannot be relied on for returning the finding of conviction. As such, the benefit should go the appellant.
In the result, the appellant is entitled to get acquittal from the charge as stated above on benefit of doubt. Consequently, the impugned judgment and order of conviction and sentence are set aside. The appellant be set at liberty forthwith, if not wanted in any other case.
For the aforesaid reasons, the appeal stands allowed. LCRs be sent down.
JUDGE JUDGE2 Dipak