Tripura High Court
Sri Shyamal Das vs The State Of Tripura on 11 October, 2017
Bench: T. Vaiphei, S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
CRIMINAL APPEAL (J) NO.38 OF 2015
Sri Shyamal Das,
S/O. Sri Paresh Das,
Resident of Deb Bari (Nama Para), Amarpur,
P.O. - Birganj, P.S - Birganj,
District - Gomati, Tripura.
..... Appellant
-: Versus :-
The State of Tripura
..... Respondent
BEFORE THE HON'BLE THE CHIEF JUSTICE MR. T. VAIPHEI HON'BLE MR. JUSTICE S. TALAPATRA Counsel for the appellant : Mr. Sankar Bhattacharjee, Advocate, Counsel for the respondent : Mr. Subrata Sarkar, P.P. Date of hearing : 12-09-2017.
Date of Judgment & Order : 11-10-2017
JUDGMENT & ORDER
[T. Vaiphei, CJ ]
In this appeal, the appellant is questioning the legality of the judgment dated 9-7-2014 passed by the learned Sessions Judge, South Tripura, Udaipur in ST No. 64(ST/A) of 2013 convicting him under Section 376(1) IPC and sentencing him to undergo rigorous imprisonment for seven years with a fine of ₹10,000/-.
2. The case of the prosecution is that on 21-10-2012 at about 5 PM, one Ganga Nama invited the minor daughter of the informant to witness the Durga Puja, but when she did not return early, her mother (wife of the informant) became worried and went to look for her. In the course of her search, she found her daughter lying on the ground and her wearing apparel in a torn condition. The appellant, on seeing her, gave her a fist CRIMINAL APPEAL (J) NO.38 OF 2015 Page 1 of 15 blow on her head whereupon she collapsed on the ground and raised alarm. In the meantime, the informant was informed by Ganga Nama that his wife was lying on the ground. When he rushed there, he found his wife (PW-13) lying on the ground, but the prosecutrix was not there. On regaining her sense, PW-13 told him that after giving blow to her, the appellant took her daughter to the jungle. They then started to look for the prosecutrix. After making vigorous search, they found her daughter lying on the ground near JB School at Namapara. By this time, the people of their locality had come to see their daughter, who then disclosed to them that the appellant had raped her after tearing her wearing apparels. The informant (PW-12) then lodged the FIR with the Officer-in-Charge of Birganj Police Station, who registered a regular case being BRG PS Case No. 114 of 2012 U/s 376 IPC. On the basis of the FIR, the police swung into investigation and, after investigation, charge-sheeted the appellant U/s 376(1) IPC to face the trial. On commitment, the learned Sessions Judge framed the charge against the appellant U/s 376(1) IPC, to which he pleaded not guilty and claimed to be tried.
3. In the course of trial, the prosecution examined sixteen witnesses and exhibited eight documents to prove the charge framed against the appellant. The case of the appellant is that of total denial of the charge. After examining the appellant U/s 313 CrPC, the trial court convicted and sentenced the appellant in the manner stated earlier.
4. Mr. Sankar Bhattacharjee, the learned counsel for the appellant, attacks the impugned judgment by submitting that in the absence of medical evidence to substantiate the charge of rape, which is the case here, the trial court has erroneously convicted the appellant. He contends that when the material and independent witnesses have all turned hostile, the evidence of interested and related witnesses alone such as PW-12, PW-14 cannot be used to convict the appellant. Great emphasis was laid by the learned counsel on the non-examination of the said Ganga Nama, who is CRIMINAL APPEAL (J) NO.38 OF 2015 Page 2 of 15 alleged to have taken out the prosecutrix; withholding of this evidence alone, according to the learned counsel, is sufficient to render the entire case of the prosecution suspect and vitiates the conviction. In our opinion, we do not find any reason for interfering with the findings and conclusions of the trial in returning a verdict of guilty against the appellant. However, to allay the apprehension of the appellant that he was convicted without adequate evidence, we proceeded to re-appreciate the evidence of the victim, who was examined as PW-13. The age of PW-13 was recorded as 14 years at the time of taking her evidence, i.e. 21-2-2014. Since the incident took place in the year 2012, she must have been about 12 years old at the time of the incident. Therefore, it can be safely said that she had reached the age of discretion at the time of the incident. The trial court also carefully examined and tested her maturity and understanding and proceeded to take her evidence after fully satisfying itself that she was competent to give evidence.
5. It is the evidence of PW-13 that on the evening of Saptami Puja, she was returning home from the house of her maternal uncle when Gangamashi came to their house and invited her to visit/join the Puja. She agreed to accompany her and was then taken to Puja Mandap in the evening time. The said Ganga then told her to urinate and accompany her. They then went behind the Puja Mandap. At that time, the appellant turned up and both of them forced her to take a tablet with water. After that, the appellant gagged her mouth and took her towards the jungle. Ganga Mashi, however, sneaked out. After taking her to the jungle, the appellant removed her pant and frock, pushed her to the ground and then raped her. After sometime, her mother arrived at the scene and she caught hold of her, but the appellant gave a fist blow on her mother (PW-14), who then collapsed on the ground. Her mother became senseless. In the meantime, the appellant again took the prosecutrix to the jungle where he told her to sit CRIMINAL APPEAL (J) NO.38 OF 2015 Page 3 of 15 down by keeping silent. She was sitting there up to 12 midnight when she was recovered by the villagers. She first narrated the incident to her mother, who then apprised others. She was subsequently taken to the Magistrate to give her statement, which was recorded by him in which she put her signature which was exhibited as Exhibit-P/4/1.
5. The cross-examination of PW-13, instead of tearing down the same, rather strengthened the prosecution case by eliciting the information from her that the appellant gave a blow to her mother again and again; that she was taken to the jungle where the appellant told her to remain silent and that she was there (in the jungle) up to 12 PM, when she was recovered by the villagers. It may be noted that PW-13 made a statement U/s 164 CrPC before the Magistrate and the same is marked Exhibit-4/1. Some of the contents of this statement may be reproduced below:
"On 21-10-2012 AD last, Sunday at around 6.00 PM in the evening, my aunty named Ganga Nama had taken me to her house stating to visit the Durga Puja. Therefter, Ganga aunty made me administer a tablet with the water forcibly. I had made objection to it. Thereafter, stating to get urinate Ganga aunty had taken me to urinal point out of the room. Then one Shyamal Das of our village (appellant) came to the spot. Thereafter, the aunty had handed me over to Shyamal Das and had left the place of occurrence. Then Shyamal Das had dragged me away to the back side of Debbari Primary School. While I had raised alarm no one heard this owing to the loud sound of the sound box in the (Puja Pandal). Thereafter, Shyamal Das had opened my wearing pant forcibly and after putting off his pant he had committed rape upon me by way of pressing my mouth. After committing rape (he) threatened me and leaving me into the jungle, he (Shyamal Das) had fled away therefrom. Ganga aunty was also involved with this incident. After sometimes my mother had CRIMINAL APPEAL (J) NO.38 OF 2015 Page 4 of 15 rescued me at the time of searching. Then I had intimated to my mother about the fact of this incident. This is my statement."
6. On careful reading of the statement of PW-13 in Court and her statement made before the Magistrate U/s 164 CrPC in juxtaposition, one cannot fail to notice that there are streaks of similarities therein. True, the statement of a witness recorded U/s 164 CrPC is not substantive evidence but can only be used for corroboration. The evidentiary value of such statement is considered by the three-Judge Bench of the Apex Court in Dhanabal and anr. v. State of Tamil Nadu, (1980) 2 SCC 84 wherein it was held by their Lordships in the following manner:
"13. The second legal contention raised by the learned counsel was that the High Court was in error in taking into account the statements recorded from the witnesses under Section 164 of the Code of Criminal Procedure in coming to the conclusion that the evidence given by them in the committal Court could be relied upon. The High Court stated "we are satisfied having regard to 164 statements of PWs 1 to 3 and 5 that the statements given by these witnesses before the committing Court are true and could be relied on" and proceeded to observe "that as there are more statements admitted in evidence under Section 288 of the Code of Criminal Procedure than one, the evidence of one witness before the committing Court is corroborated by that given by others". Mr. Mulla, learned Counsel, submitted that a statement recorded under Section 164 of the Code of Criminal Procedure indicates that the police thought that the witness could not be relied on as he was likely to change and, therefore, resorted to securing a statement under Section 164 of the Code of Criminal Procedure. The statement thus recorded, cannot be used to corroborate a statement made by witness in the committal Court. In support of this contention the CRIMINAL APPEAL (J) NO.38 OF 2015 Page 5 of 15 learned counsel relied on certain observations of this Court in Ram Charan v. State of U.P.4 In that case, in a statement recorded from the witness under Section 164 of the Code of Criminal Procedure, the Magistrate appended a certificate in the following terms:
"Certified that the statement has been made voluntarily. The deponent was warned that he is making the statement before the 1st Class Magistrate and can be used against him. Recorded in my presence. There is no police here. The witness did not go out until all the witnesses had given the statement."
The Court observed that the endorsement made is not proper but declined to infer from the endorsement that any threat was given to those witnesses or that it necessarily makes the evidence given by the witnesses in Court suspect or less believable. The view of the Patna High Court in Emperor v. Manu Chik5, where observations made by the Calcutta High Court in Queen Emprees v. Jadub Das6, that statements of the witnesses obtained under this section always raises a suspicion that it has not been voluntarily made was referred to, was relied on by the learned counsel. This Court did not agree with the view expressed in the Patna case (supra) but agreed with the view of Subba Rao, J. (as he then was) in In Re Gopisetti Chinna Venkata Subbiah7, where he preferred the view expressed by Nagpur High Court in Parmanand v. Emperor8. It was observed that the mere fact that the witnesses' statement was previously recorded under Section 164 will not be sufficient to discard it. It was observed that the Court ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witnesses, it can be acted upon. During the investigation the police officer, sometimes feels it expedient to have 4 (1968) 3SCR 354: AIR 1968 SC 1270 5 AIR 1938 Pat 290 6 ILR (1900) 27 Cal 295 7 ILR (1955) AP 633-38 8 AIR 1940 Nag 340 CRIMINAL APPEAL (J) NO.38 OF 2015 Page 6 of 15 the statement of a witness recorded under Section 164 of the Code of Criminal Procedure. This happens when the witnesses to a crime are closely connected with the accused or where the accused are very influential which may result in the witnesses being gained over. The 164 statement that is recorded has the endorsement of the Magistrate that the statement had been made by the witness. The mere fact that the police had reasons to suspect that the witness might be gained over and that it was expedient to have their statements recorded by the Magistrate, would not make the statements of the witnesses thus recorded, tainted. If the witness sticks to the statement given by him to the Magistrate under Section 164, Code of Criminal Procedure, no problem arises. If the witness resiles from the statement given by him under Section 164 in the committal Court, the witness can be cross-examined on his earlier statement. But if he sticks to the statement given by him under Section 164 before committal enquiry and resiles from it in the Sessions Court, the procedure prescribed under Section 288, Code of Criminal Procedure, will have to be observed. It is for the Court to consider taking into account all the circumstances including the fact that the witness had resiled in coming to the conclusion as to whether the witness should be believed or not. The fact that the police had Section 164 statement recorded by the Magistrate, would not by itself make his evidence suspect.
14. Section 157 of the Evidence Act makes it clear that the statement recorded under Section 164 of the Code of Criminal Procedure can be relied on for corroborating the statements made by the witnesses in the committal Court. This Court has expressed its view that though the statements made under Section 164 of the Code of Criminal Procedure is not evidence, it is corroborative of what has been stated earlier in the committal Court vide State of CRIMINAL APPEAL (J) NO.38 OF 2015 Page 7 of 15 Rajasthan v. Kartar Singh3. The High Court was right in relying on the statement of the witnesses under Section 164 as corroborating their subsequent evidence before the committal Court. Equally unsustainable is the plea of the learned Counsel that a statement recorded under Section 288 of the Code of Criminal Procedure of one witness cannot corroborate the statement of another witness under Section 288. The statements are treated as substantive evidence in law and we do not see any flaw in treating the statement of one witness as corroborative of the other. The result is the questions of law raised by the learned counsel fail. The appeal of the first appellant is rejected and his conviction and sentence confirmed. The appeal of the second appellant is allowed and his conviction and sentence set aside. He is directed to be set at liberty forthwith."
7. Except for some minor variations here and there, we are satisfied that the statement of PW-13 recorded by the Magistrate U/s 164 CrPC has substantially corroborated her evidence in court. There would hardly be any witness whose evidence does not contain some amount of omissions or exaggerations or embellishments. There are two kinds of discrepancies, normal discrepancies and material discrepancies. Normal discrepancies are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. The courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so.─ See Syed Ibrahim v. State of AP, (2006) 10 SCC
601. In the instant case, whatever discrepancies found in the evidence of 3 (1970) 2 SCC 61 CRIMINAL APPEAL (J) NO.38 OF 2015 Page 8 of 15 the prosecutrix are no more than normal discrepancies which do not destroy the core of the prosecution case.
8. That apart, the statement of PW-13 in Court is also fully corroborated by the statement of her mother, PW-14, who deposed that on the previous Puja of the last Puja of the first day, she returned home with the prosecutrix (PW-13) from her father's house (maternal grandfather of the prosecutrix). Her neighbour, namely, Smt. Ganga Nama came to their house and invited the prosecutrix for viewing/joining the Puja in the evening. But when her daughter did not return home early, she went to look for her and when she asked Ganga the whereabouts of her daughter, she refused to give her any information about her daughter. She then went behind the school and saw the appellant raping her daughter in the jungle from behind the kitchen of the school. When she caught the appellant in the act, he gave a fist blow to her whereupon she fell down and lost her sense. When her husband (PW-12) came and poured water upon her, she regained her consciousness and then told him what had happened. Thereafter the prosecutrix was recovered from the jungle with the help of the villagers. When asked by her, the prosecutrix told her that Shyamal Das had taken her to the jungle and raped her and that Chitta Nama (PW-
9), Partha Nama and other villagers recovered her. Except for simple denial, there is nothing in her cross-examination to seriously impeach the credibility of PW-14. On the contrary, she appears to be a natural and truthful witness.
9. Coming now to the evidence of PW-12, who is the father of the prosecutrix, he corroborated the statements of PW-13 and PW-14 by on the following vital facts, namely, (i) the said Ganga Nama took her daughter out for viewing/participating the Durga Puja; (ii) his wife (PW-14) went to search for her; (iii) the said Ganga Nama informed him that his wife (PW-14) was lying behind the school; (iv) on her regaining her senses, PW-14 told CRIMINAL APPEAL (J) NO.38 OF 2015 Page 9 of 15 him that the appellant, after giving a fist blow to her, took the prosecutrix to towards the jungle and PW-14 told her that the prosecutrix was raped by him; (v) after searching, prosecutrix was recovered from the jungle after two hours and at that time, she was found in a naked condition and (vi) on his asking, the prosecutrix told him that the appellant after using pressure took her to the jungle and committed raped upon her. There is nothing in the cross-examination of PW-12 indicating any evidence of contradictions or discrepancies in the testimony of PW-13. It may be noted that from the evidence of PW-7, who was declared hostile witness by the prosecution, it has been revealed that he saw the mother of the prosecutrix going downwards in search of the prosecutrix and after sometime she saw the mother of the prosecutirx lying on the ground. On her asking, she told him that the appellant dealt a blow on her and he fled away, but he did not see the prosecutrix whereupon he was declared as hostile. However, in his cross-examination, he revealed that on recovery of the prosecutrix in the jungle, when her father asked her (the prosecutrix) in their presence, she told them that she had been raped by the appellant. Though PW-8 was also declared hostile by the prosecution, he, in his cross-examination, revealed that when the father of the prosecutrix asked the prosecutrix, she told him that she was raped by the appellant.
10. It is a settled proposition of law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In other words, the evidence of hostile witness cannot be discarded merely because he is declared hostile. However, the fact that a witness has resiled from the earlier statement made in the course of investigation puts the court on guard and cautions the court against acceptance of such evidence without satisfactory corroboration.─ See Ram CRIMINAL APPEAL (J) NO.38 OF 2015 Page 10 of 15 Swaroop and others v. State of Rajasthan, (2004) 13 SCC 134. In the instant case, the statements of PW-7 and PW-8 made in their cross- examination have been found to be consistent with and corroborated by the evidence of PW-12, PW-13 and PW-14. There is absolutely no reason to discard such evidence for bringing home the charge against the appellant.
11. PW-12, in his evidence, also deposed that they searched the prosecutrix and recovered her after two hours in the jungle in a naked condition and when he asked her, she told that the appellant after pressurising her took her to the jungle and raped her. In our opinion, these statements made by the prosecutrix to PW-7, PW-8 and PW-12 just after she was recovered from the jungle form a part of the res gestae under Section 6 of the Evidence Act. The principle of law embodied in Section 6 of the Evidence Act is explained by the Apex Court in Gentela Vijayavardhan Rao v. State of AP, (1996) 6 SCC 241 in the following manner:
"15. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient CRIMINAL APPEAL (J) NO.38 OF 2015 Page 11 of 15 enough for fabrication then the statement is not part of res gestae. In R. v. Lillyman1 a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time lapsing between the act of rape and the making of the statement. Privy Council while considering the extent up to which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. R.2 thus:
"The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement."
The correct legal position stated above needs no further elucidation."
12. In our opinion, even without considering the statements of PW-7 and PW-8 also, i.e. without relying on the principle of res gestae also, the case of the prosecution is adequately proved by the evidence of PW-13, PW-14 and PW-12 independently. Coming now to the evidence of PW-5, who is the Medical Officer and who examined the prosecutrix, she testified that as the prosecutrix took bath after the alleged sexual intercourse, she could not give any opinion whether she was raped or not. She, however, deposed that 1 (1896) 2 SCC 167 2 (1952) 2 All ER 447 CRIMINAL APPEAL (J) NO.38 OF 2015 Page 12 of 15 there was no fresh wound and the margin of the hymen was ragged (torn). In our opinion, the evidence of PW-5 (medical officer) can hardly demolish the case of the prosecution in the light of the weight of the ocular evidence of PW-12, PW-13 and PW-14. Moreover, the absence of fresh wounds on the person of the prosecutrix is hardly material since it is nobody's case that the prosecutrix resisted the attempted rape or struggled to free herself from the appellant as she was evidently drugged by the appellant before commission of the rape. The law in this field is now well-settled. If any authority is needed, we may cite the decision of the Apex Court in State of MP v. Dharkole alias Govind Singh and others, (2004) 13 SCC 308 wherein it was held:
"9. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the "credit" of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
13. It is, however, contended by the learned counsel for the appellant that the said Ganga Nama, who took the prosecutrix from her house, should have been examined or, in the alternative, she should have been CRIMINAL APPEAL (J) NO.38 OF 2015 Page 13 of 15 made co-accused and this act of omission has made the case of the prosecution suspect. There is some force in the contention of the learned counsel, but defect in the investigation cannot vitiate the conviction when there is adequate independent evidence to bring home the charge against the accused. It is not the number of the witnesses that counts; it is the quality of the witnesses that rather counts. When there is a ring of truth in the case of the prosecution, such defective investigation cannot affect the core of the case of the prosecution. In the view that we have taken, there is no infirmity in the findings of the trial court in concluding that the prosecution has clinchingly proved the charge against the appellant and in imposing an appropriate sentence, which do not call for our interference. In this context, the observations of the Apex Court in State of UP v. Krishna Master and others, (2010) 12 SCC 324 are instructive:
"47. It is a well-known principle of law that reliance can be placed on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. The courts are concerned with the merit and the statement of a particular witness and not at all concerned with the number of witnesses examined by the prosecution. The time-honoured rule of appreciating evidence is that it has to be weighed and not counted. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, where the court finds that the testimony of the solitary witness is neither wholly reliable nor wholly unreliable, it may, in a given set of facts, seek corroboration, but to disbelieve reliable testimony of a solitary witness on the ground that others have not been examined is to do complete injustice to the prosecution."
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14. The offshoot of the foregoing discussion is that there is no merit in this appeal, which is, accordingly, dismissed. The appellant shall serve out the remaining period of his sentence. The fine imposed by the appellant shall be paid to the victim if and when paid. Transmit the L.C. record forthwith.
JUDGE CHIEF JUSTICE
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