Tripura High Court
Convict vs The State Of Tripura on 14 December, 2018
Author: A. Lodh
Bench: Sanjay Karol, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
CRL.A (J) NO.8 OF 2014
Sri Raju Bhowmik
S/o- Sri Sadhan Bhowmik,
Of - vill. Sadhu Tilla
P.S.- East Agartala
Dist.- West Tripura
......... Convict Appellant
Versus
The State of Tripura
.... Respondent
For Appellant(s) : Mr. Ratan Datta, Adv.
Mr. K. Paul, Adv.
For Respondent(s) : Mr. B. Chowdhury, P.P.
Date of hearing : 23.11.2018
Date of Delivery of
Judgment and order : 14/12/2018
Whether fit for reporting : YES
HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL
HON'BLE MR. JUSTICE ARINDAM LODH
Judgment & Order
A. Lodh, J.
This appeal under Section 374 of Cr.P.C. is directed against the judgment and order dated 07.08.2012 passed by the learned Assistant Sessions Judge, Court No.2, West Tripura, Agartala in Case No. S.T.03 of 2012, whereby the appellant has been convicted under Section 376 and Section 506 of IPC and sentenced him under Section 376 of IPC to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-, in default of payment of fine to undergo further Page 2 of 27 simple imprisonment for six months and further sentenced him under Section 506 of IPC to suffer rigorous imprisonment for two years and both the sentences shall run consecutively.
1) Facts of the prosecution case in a nutshell are:-
1.1. On 28th day of July 2011 at about 1130 hours one Smt. Mamata Bhowmik, W/o Sri Sadhan Bhowmik of Village Sadhutilla, Indira Colony, P.S. East Agartala lodged a written FIR to the Officer-in-Charge of Agartala Women P.S. against accused Raju Bhowmik, S/o Sri Sadhan Bhowmik, the appellant herein, stating inter alia that on 24th day of July, 2011, Sunday, at about 3.00 p.m., the victim-prosecutrix (name withheld), the minor daughter of the informant, was alone in their house and at that time, the appellant Raju Bhowmik, who is the step son of the informant forcibly committed rape upon the said minor daughter of the informant. On their return to the house, the prosecutrix narrated the incident to the informant.
They tried to amicably settle up the matter locally, but the appellant was not found for four days compelling her to lodge the complaint, which was registered as FIR. 1.2. On the basis of the complaint the investigation was started, statements of all the witnesses were recorded and on the same day Raju Bhowmik, the accused-appellant herein, was arrested from Sadhutilla itself. During investigation police has seized the birth certificate of the prosecutrix, statement of Page 3 of 27 the victim girl under Section 164(5) of Cr.P.C. was also recorded and after being prima facie satisfied the investigating officer submitted the charge-sheet.
1.3. After commitment the learned Assistant Sessions Judge framed charge on 17.01.2012 against the accused- appellant under Section 376 of IPC and under Section 506 of IPC.
1.4. During the course of trial, the learned trial judge has examined as many as nine witnesses and exhibited some documents viz. FIR in prescribed format along with written complaint (Exbt-6, Exbt-1 & Exbt-1/1), seizure list (Exbt-2), statement under Section 164(5) of Cr.P.C. (exbt-3), medical examination reports (Exbt-4 and Exbt-5),hand sketch map along with its index (Exbt-7 and 8) and another seizure list (Exbt-9). After completion of recording of prosecution evidence, the accused was examined under Section 313 of Cr.P.C. to which he pleaded not guilty and claimed to be tried. 1.5. The learned Trial Judge, after considering the evidence on record, has held that the prosecution has been able to prove both the charges framed against the accused- appellant and convicted and sentenced Raju Bhowmik as aforestated.
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Being aggrieved by the said conviction and sentence vide judgment dated 07.08.2012, the accused-appellant has preferred this appeal before this Court.
2. Analysis on evidence:-
2.1 Exbt. 1 is the complaint which was written by a co-
villager, Sri Dulal Debnath (P.W.-5), according to the dictation of the informant-mother Smt. Mamata Bhowmik, (P.W.-1). The contents of the complaint are marked as Exbt.1/1. In the complaint the informant has categorically stated that on her return to house on the date of incident i.e., on 24th July, 2011, her daughter, the victim girl herein has narrated the incident to her. She adduced herself before the trial court as P.W.-1. During her examination-in-chief she has stated that on that date and time, accused Raju Bhowmik suddenly embraced her daughter and pressed her breast, made her naked and forcibly committed rape on her. After that incident accused-appellant left the house and was absconding for four days. She has further stated that as the incident had occurred amongst the members of same family they waited for four days with a view to settle the matter amicably, but when accused Raju Bhowmik did not come to their house, she lodged a written FIR in Police Station which was written by P.W.-5. Most importantly, during her examination she has stated that on the day of occurrence her daughter did not disclose anything to them as accused Raju Bhowmik threatened her not to disclose the incident of rape to anyone. Subsequently, on the following day the prosecutrix Page 5 of 27 disclosed the incident to her. It was also informed to her that Raju Bhowmik threatened her daughter to kill and also to conceal her dead body in jungle if she disclosed the fact to anyone.
During her cross-examination, she has stated that on the relevant day (Sunday) she returned to her home from the place of her work at 8.00 P.M and after her return she got her husband, daughter and son available at home. She has further stated that the dwelling house of Smt. Prava Sutradhar is situated at Sadhutilla adjacent to their dwelling house and every word uttered in the dwelling house of Smt. Prava Sutradhar is audible from her dwelling house. During her cross examination, the defense has tried to make out a story that previously accused Raju Bhowmik used to reside in the matrimonial house of his sister and that about three months prior to the date of occurrence, the accused Raju Bhowmik came to their residence i.e. the resident of P.W.1 and started to reside permanently. Her further statement is that her husband and accused-Raju Bhowmik used to stay together in a separate room and she herself along with her son and daughter used to stay in another room of the same residence.
2.2. P.W-2, the victim girl, who is aged about 16 years has stated in her evidence that about 10 months back one day at about 3.00 P.M, she was alone inside her residence and was sleeping when suddenly she felt some body was squeezing her breast and touching her private parts, instantly she woke up Page 6 of 27 and saw accused Raju Bhowmik committing such illegal activities with her, then the accused Raju Bhowmik forcibly made her naked and committed sexual intercourse inserting his private organ into her private part. She has further stated that she could not raise alarm as accused Raju threatened her to kill and conceal her dead body in nearby jungle. Subsequently, the accused Raju Bhowmik fled away from their house. After that, she could not disclose the incident to her family members on the same day out of fear. On the following day, she informed the incident first to her maternal grand-mother, Smt. Gita Rani Saha (P.W.-3), and thereafter, she also narrated the incident to her mother. She was medically examined and voluntarily made statement to a Judicial Officer.
In her cross examination, she has admitted that there are other houses, which are very adjacent to their house and from some of those houses every word uttered inside their houses is audible. She has specifically answered during her cross examination that on the relevant date and time, she did not disclose anything to her family members on the same day. 2.3. P.W-3 is the grand-mother, Smt. Gita Rani Saha, who has stated in her evidence that at the relevant time she used to reside in the house of her son-in-law, Sri Sadhan Bhowmik, where the incident had occurred, but she was not at home at the relevant point of time as she was busy at her professional work outside and returned home at about 8.00 P.M. She has specifically stated that her grand-daughter, i.e., Page 7 of 27 P.W.-2, did not disclose anything to her on the day of occurrence out of fear of accused Raju Bhowmik. She has further stated that on the day of occurrence, the accused Raju was available in the house of her son-in-law. She supported the version of P.W.-1 about the reasons for delay in lodging the FIR. She has further stated that the incident of rape was narrated by P.W.-1 to her when she found the accused Raju Bhowmik was missing from the house.
2.4. P.W-6, Smt. Rita Debnath is a neighbor who has narrated a significant aspect of the story of the incident that she came to learn from one Smt. Sabita Das that on the relevant date at about 3.00 P.M. when Sabita Das visited the residence of the informant, Smt. Mamata Bhowmik, at that time she saw the daughter of the informant sleeping on a cot inside their dwelling house and at the same time Smt. Sabita Das also saw the accused Raju Bhowmik to put his hand inside the wearing panty of the prosecutrix. She has further stated that thereafter Smt. Sabita Das reported the matter to the informant and her other family members.
2.5. We have taken note of the statement of the prosecutirx under Section 164(5) of the Cr.P.C. where she has stated that on the relevant date and time while she was sleeping Raju Bhowmik had tweaked her chest pressing her breast and at that time her said step brother had penetrated his private part through her vagina. She tried to raise alarm but Page 8 of 27 Raju Bhowmik threatened not to disclose the fact to anyone otherwise, the accused would cut her taking to the jungle. She has further stated in her statement under Section 164(5) Cr.P.C. that after completion of works while her parents came back to the house, then, at first she divulged the matter to the grandmother and thereafter, the parents came to know about the fact of the incident. Her statement under Section 164(5) Cr.P.C. was recorded on 29th July 2011 in Bengali which is marked as Exbt-3 along with the identified signature (Exbt- 3/1).
2.6. We have carefully perused the medical examination report of the victim girl as well as evidence of Dr. Ranjit Kumar Das, P.W.-4. He has stated that after receipt of the vaginal swab examination report from the forensic laboratory, he gave his opinion to the effect that although result of vaginal swab examination is negative for semen/seminal stain/spermatozoa of human origin, however, there was sign of vaginal penetration and the signs were consistent with the history given by the victim. He has further stated that at the time of incident the victim was above 14 years but below 16 years. 2.7. P.W.-9 is the investigating officer, who has submitted the charge-sheet has stated that she recorded the statement of all the available witnesses. In her cross examination she has stated that she did not make any inquiry about the cause of delay in lodging the FIR. She has Page 9 of 27 volunteered that she did not try to enquire about the cause of delay as there was an explanation for the delay.
3. On the basis of the above facts and evidence, Mr. Ratan Datta, learned counsel appearing for the accused- appellant has submitted that no reasonable explanation is found to justify the four days delay in lodging the written compliant which is fatal to the prosecution case. He further submits that from the analysis of the evidence it is clear that the witnesses of the incident have contradicted themselves which has raised serious suspicious circumstances about the commission of any offence by the accused-appellant. The learned counsel has tried to project a case and strenously argued that the informant being the step-mother did not like the accused-Raju Bhowmik staying at the same residence along with them as Raju Bhowmik spent maximum years of life in the matrimonial house of his sister and only after his staying of about three months, problems have erupted as the informant wanted to drive the accused-Raju Bhowmik away from their house vis-a-vis the valuable company of her husband who is also the father of the accused-Raju Bhowmik. 3.1 Inviting our attention to the examination of the accused recorded under Section 313 of Cr.P.C, the learned counsel has tried to persuade this Court that medical report cannot be used against the accused because of the fact that no specific question was put to the accused about the medical Page 10 of 27 report and in view of that the medical report has to be discarded in its entirety. In support to this learned counsel has placed reliance on the decision of the Apex Court in Raj kumar Singh Vs. State of Rajasthan reported in (2013) 5 SCC
722. 3.2. Defending the judgment passed by the learned Trial Court, Mr. B. Chowdhury, learned P.P., has contended that the incident of rape is well proved and the offence of rape is a heinous crime not only to the victim girl but also to the society at large and the punishment as returned by the learned Asst. Sessions Judge is appropriate and does not call for interference.
4. Discussions and decisions:-
4.1 After analyzing the entire statement we find that the learned counsel for the appellant has tried to get benefit of some contradiction in the statements made by the victim as well as her mother, Smt. Mamata Bhowmik, (P.W.-1) pertaining to the initial disclosure of the incident that Raju Bhowmik, the appellant-accused, committed rape upon the prosecutrix.
4.2. P.W-3, Smt. Gita Rani Saha, also deposed that her granddaughter, i.e., the prosecutrix, did not disclose anything to them on the day of occurrence out of fear of accused-Raju Bhowmik, but on the following day, her grand-daughter narrated the incident of rape to her and others.Page 11 of 27
4.3. In course of trial and hearing of the case, the appellant has tried to project a case that P.W.1, Smt. Mamata Bhowmik was not interested to allow her step son Raju Bhowmik i.e., the appellant, to stay with them permanently.
4.4. At this juncture, we have given our thoughtful consideration to the statement of the accused-appellant, which he made in his examination under Section 313 of Cr.P.C. It is found that a specific question was put to the accused that whether he had anything to say in connection with this case.
His specific answer to this question was "I have nothing else to say‖. The appellant could have easily explained that since his step-mother was not comfortable of his stay at the company of his father along with them, he was implicated falsely. So, we repel this submission of Mr. Datta, learned counsel that P.W.-1 did not want the appellant-Raju to stay with them in the same house.
4.5. We have conjointly perused the statement of the prosecutrix which she made under Section 164(5) of the Cr.P.C. as well as her evidence she laid in course of trial. It appears that she is very firm in narrating the entire facts and circumstances of rape which we discussed in detail in the preceding paragraphs. After evaluation of her evidence in totality we find nothing to disbelieve her version. Minor discrepancy in disclosing the incident at the first instance will Page 12 of 27 not brush aside material description of the incident in regard to rape.
4.6. In her deposition as P.W.-2, she has made similar statement that she disclosed the incident first to her maternal grandmother, Smt. Gita Rani Saha, (P.W.3). P.W.-3 also has corroborated the said statement of the prosecutrix. 4.7. P.W.-1, the informant also has corroborated the statement made by the prosecutrix that she was raped by her step brother Raju Bhowmik, the accused-appellant herein and on the basis of her statement P.W.-1 lodged the written complaint to the police. In course of the examination, she has stated that she came to learn about the incident first of all from her sister-in-law, Smt. Sabita Das. In her examination-in-chief she has categorically stated that her daughter disclosed the incident to her on the following day. So, there is no contradiction in the disclosure of the statement that on the following day of the incident the prosecutrix had divulged to her mother and grand-mother that the accused-appellant had caused rape to her. We find no cogent reason to disbelieve the statement of the prosecutrix that she was raped by the accused-appellant and the statement of prosecutrix has got substantial support by both ocular and medical evidence and the statement of prosecutrix has got substantial support by both ocular and medical evidence.
Page 13 of 274.8. Further, P.W.1 has explained the reason why the delay was caused in lodging the written FIR. She has stated that the matter happened within their family members and they tried to mitigate the matter amicably, but, when the accused- appellant did not turn up to their house, she ultimately lodged the FIR.
4.9. P.W.-4, Dr. Ranjit Kumar Das, has opined that the vaginal swab examination is negative for semen/seminal stain/spermatozoa of human origin but there is sign of vaginal penetration and the signs were consistent with the history given by the victim. So, medical examination report and the evidence of Doctor also suggest that there was incident of rape committed to the prosecutrix.
4.10. Furthermore, the prosecutirx in her statement made under Section 164(5) of Cr.P.C. as well as in her deposition before the Trial Court has categorically stated that the accused- appellant had threatened that if she disclosed the incident to anyone then she would be killed in the jungle. She narrated the said fact to her mother as well as her grandmother who have also corroborated the said statement of the prosecutrix in her deposition before the trial court. Thus, it has been proved that the prosecutrix was criminally intimidated by the accused- appellant and thereby attracts Section 506 of Indian Penal Code.
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5. We have given our due consideration to the submission of learned counsel for the appellant that the accused was not questioned regarding the medical examination of the victim girl in his examination under Section 313 of Cr.P.C. He has placed reliance upon the decision of the Rajkumar Singh vs State of Rajastan reported in (2013) 5 SCC 722.
6. We have carefully gone through the decision of Raj Kumar Singh(Supra). In the case of Raj Kumar Singh(Supra) the Apex Court has found that the prosecution case was full of contradictions/improvements/embellishments in the deposition of the witnesses and the chain of links connecting the appellant with the crime appeared to be inconclusive. As such, the said judgment will not come to the rescue of the appellant in the facts and circumstances of the present case in hand.
7. It is strenuously argued by the learned counsel appearing for the appellant that since the attention of the appellant in regard to the medical examination report was not specifically drawn, the entire prosecution case has become untrustworthy, and the conviction and sentence imposed on the appellant is liable to be set aside.
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The said submission of the learned counsel for the appellant takes us to Section 313 of the Cr.P.C., which is reproduced hereinbelow:-
― Power to examine the accused.- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case;
Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause(b) (2) No oath shall be administered to the accused when he is examined under sub-section(1) (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answer to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answer may tend to show he has committed (5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court permit filing of written statement by the accused as sufficient compliance of this Section.‖
8. The main object and purpose of examining the accused under Section 313 of Cr.P.C. is to provide him all reasonable opportunities, so that he can sufficiently answer and explain to all the incriminating materials found against him in course of trial. In other words, the accused is put to examination under Section 313 of Cr.P.C. to meet the requirements of principles of natural justice. Page 16 of 27
But it is no more res integra that the statement of an accused under Section 313 of Cr.P.C. is not a substantive piece of evidence.
9. Under Section 313 of Cr.P.C the accused has been provided with a right even to put forward his defence.
In Ramnaresh and ors. Vs. State of Chattisgarh, reported in (2012) 4 SCC 257, the Supreme Court at para 52 held as under:-
―It is settled principle of law that the obligation to put material evidence to the accused under Section 313 Cr.P.C. is upon the court. One of the main objects of recording of a statement under the provision of Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail the opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 Cr.P.C. insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequence in law.
In the present case, we reiterate that he was given an opportunity to put forward his defence but he did not avail.
10. Even, if a question in regard to the medical examination of the prosecutrix would have been put to him and whatever the answer he would have given then also his answer could not be treated as a piece of substantial evidence within the meaning of Section 3 of the evidence Act, 1872. Page 17 of 27
11. In the present case at hand, in his examination made under Section 313 of Cr.P.C. he was specifically asked to explain the evidence led by P.W.1 in respect of the fact that the accused-appellant Raju Bhowmik suddenly impaired the prosecutrix, pressed her breast, and made her naked and committed rape on her. The only answer was that "I am innocent" Further his attention was specifically drawn to the statement that when P.W.2 was alone and sleeping suddenly she felt somebody was squeezing her breast and touching her private parts and that when P.W.2 woke up and saw the accused-Raju committing such illegal activity and thereafter forcibly made her naked and committed successful intercourse inserting his penis into the vagina of the P.W.-2. Against those factual aspects, in his answer, has only replied that "I am innocent".
After careful scrutiny of the question put to the accused under Section 313 of Cr.P.C., it is revealed that his attention was drawn to the medical examination report of the victim as well as the capability test report of the appellant from the concerned medical officer on the basis of which the charge- sheet was submitted against the appellant but he replied that he was innocent.
12. In our considered view, medical examination report is the consequence of the incident of committing rape and on analysis of the medical reports (Exbts. 4 & 5) as well as the evidence of the prosecution witnesses we don‟t find any Page 18 of 27 discrepancy or inconsistency in the statement of the prosecutrix.
13. It is settled proposition of law that while appreciating the evidence the Court must not attach undue importance to minor discrepancy rather must consider broad spectrum of the prosecution version. The Apex Court in a catena of decisions has held that "the discrepancy may be due to the normal error of perception or observation or due lapses of memory or due to the faulty or stereotype investigation ".
14. In our considered view, in the case at hand, minor omission, for argument sake, in putting a question in regard to medical examination report of the victim prosecutrix, did not touch or shake or in any way affect the case of the prosecution. In course of proceeding the appellant never urged that he could not fully understand the evidence of doctor, P.W.-4 and never raised a plea that he was prejudiced in any manner at any stage of trial. In absence of any such plea, we are not persuaded to hold that the appellant suffers any prejudice and there is any violation of principles of natural justice. More so, Section 315 of the Code of Criminal Procedure,1973 provides statutory right to an accused to stand as a witness in his defence and may give evidence on oath in disproof of the charges made against him. But despite that right conferred upon him, the appellant has preferred to skip away of this valuable right.
Page 19 of 2715.1 Further, to do complete justice to the appellant as well as the prosecutrix we like to deal with this aspect of argument advanced by the learned counsel for the appellant and proceed with the question, what would be the consequences, if the attention in regard to the medical examination report of the prosecutrix was drawn to the accused at the time of his examination under Section 313, Cr.P.C. To answer this question, at the outset, according to us, the ocular testimony has always a greater evidentiary value unless and until the medical evidence makes the ocular evidence wholly improbable. The status of expert and relevance of its evidence has been subject of detailed discussion in a case of Dayal Singh & Ors. Vrs. State of Uttaranchal, reported in (2012) 8 SCC 263 where the Apex Court held:
―35. This brings us to an ancillary issue as to how the Court would appreciate the evidence in such cases. The possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour the accused. Of course, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused. The Courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. In Kamaljit Singh v. State of Punjab [2004 Cri.LJ 28], the Court, while dealing with discrepancies between ocular and medical evidence, held:Page 20 of 27
― 8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out.‖
36. Where the eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive.
―34 ...,The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by [examining] the terms of science, so that the court, although not an expert, may form its own judgment on those materials after giving due regard to the expert's opinion, because once the expert opinion is accepted, it is not the opinion of the medical officer but [that] of the Court. Madan Gopal Kakkad v. Naval Dubey [(1992) 2 SCR 921
37. Profitably, reference to the value of an expert in the eye of law can be assimilated as follows:
―The essential principle governing expert evidence is that the expert is not only to provide reasons to support his opinion but the result should be directly demonstrable. The court is not to surrender its own judgment to that of the expert or delegate its authority to a third party, but should assess his evidence like any other evidence.
If the report of an expert is slipshod, inadequate or cryptic and the information of similarities or dissimilarities is not available in his report and his evidence in the case, then his opinion is of no use. It is required of an expert whether a government expert or private, if he expects, his opinion to be accepted to put before the court the material which induces him to come to his conclusion so that the court though not an expert, may form its own judgment on that material. If the expert in his evidence as a witness does not place the whole lot of similarities or dissimilarities, etc., which influence his mind to lead him to a particular conclusion which he states in the court then he fails in his duty to take the court into confidence. The court is not to believe the ipse dixit of an expert.
Indeed the value of the expert evidence consists mainly on the ability of the witness by reason of his special training and experience to point out the court Page 21 of 27 such important facts as it otherwise might fail to observe and in so doing the court is enabled to exercise its own view or judgment respecting the cogency of reasons and the consequent value of the conclusions formed thereon. The opinion is required to be presented in a convenient manner and the reasons for a conclusion based on certain visible evidence, properly placed before the Court. In other words the value of expert evidence depends largely on the cogency of reasons on which it is based.‖ [See: Forensic Science in Criminal Investigation & Trial (Fourth Edition) by B.R. Sharma]
38. The purpose of expert testimony is to provide the trier of fact with useful, relevant information. The overwhelming majority rule in the United States, is that an expert need not be a member of a learned profession. Rather, experts in the United States have a wide range of credentials and testify regarding a tremendous variety of subjects based on their skills, training, education or experience. The role of the expert is to apply or supply specialized, valuable knowledge that lay jurors would not be expected to possess. An expert may present the information in a manner that would be unacceptable with an ordinary witness. The common law tried to strike a balance between the benefits and dangers of expert testimony by allowing expert testimony to be admitted only if the testimony were particularly important to aiding the trier of fact. Even in United States, if the helpfulness of expert testimony is substantially outweighed by the risk of unfair prejudice, confusion or waste of time, then the testimony should be excluded under the relevant Rules, and State equally balanced. Expert testimony on any issue of fact and significance of its application has been doubted by the scholars in the United States. Even under the law prevalent in that country, the opinion of an expert has to be scientific, specific and experience based. Conflict in expert opinions is a well prevalent practice there. While referring to such incidence David H. Kaye and other authors in ‗The New Wigmore: A Treatise on Evidence - Expert Evidence' (2004 Edition) opined as under :
―The district court opinion reveals that one pharmacologist asserted ―that Danocrine more probably than not caused plaintiff's death from pulmonary hypertension,‖ but it describes the reasoning behind this opinion in the vaguest of terms, referring only to ―extensive education and training in pharmacology‖ and an unspecified ―scientific technique‖ that ―relied upon epidemiological, clinical and animal studies, as well as plaintiff's medical records and medical history...‖ Page 22 of 27 The nature of these studies and their relationship to the patient's records is left unstated. The district court incanted the same mantra to justify admitting the remaining testimony. It asserted that the other experts ―similarly base their testimony upon a careful review of medical literature concerning Danocrine and pulmonary hypertension, and plaintiff's medical records and medical history.‖ The court of appeals elaborated on the testimony of two of the experts. The physician ―was confident to a reasonable medical certainty that the Danocrine caused Mrs. Zuchowicz's PPH‖ because of ―the temporal relationship between the overdose and the start of the disease and the differential etiology method of excluding other possible causes.‖ Yet the ―differential etiology‖ here was barely more than a differential diagnosis of PPH. The causes of PPH are generally unknown and it appears that the only other putative alternative causes considered were drugs other than Danocrine. It is not at all clear that such a ―differential etiology‖ is adequate to support a conclusion of causation to any kind of a ―medical certainty.‖ The pharmacologist, not being a medical doctor, testified ―to a reasonable degree of scientific certainty . . . [that] the overdose of Danocrine, more likely than not, caused PPH. . . .‖ He postulated a mechanism by which this might have occurred: ―I) a decrease in estrogen; 2) hyperinsulinemia, in which abnormally high levels of insulin circulate in the body; and 3) increase in free testosterone and progesterone . . . that . . . taken together, likely caused a dysfunction of the endothelium leading to PPH.‖ In sum, plaintiff's experts did not know what else might have caused the hypertension, and they offered a conjecture as to a causal chain leading from the drug to the hypertension. This logic would be more than enough to justify certain clinical recommendations--the advice to Mrs. Zuchowicz to discontinue the medication, for example. But is it enough to allow an expert not merely to testify to a reasonable diagnosis of PPH, or ―unexplained pulmonary hypertension,‖ as the condition also is known, but also be able to propound a novel explanation that has yet to be verified, even in an animal model?‖
39. The Indian law on Expert Evidence does not proceed on any significantly different footing. The skill and experience of an expert is the ethos of his opinion, which itself should be reasoned and convincing. Not to say that no other view would be possible, but if the view of the expert has to find due weightage in the mind of the Court, it has to be well authored and convincing. Dr. C.N. Tewari was Page 23 of 27 expected to prepare the post mortem report with appropriate reasoning and not leave everything to the imagination of the Court. He created a serious doubt as to the very cause of death of the deceased. His report apparently shows an absence of skill and experience and was, in fact, a deliberate attempt to disguise the investigation.‖ 15.2 In the instant case, as referred to here-in-above, we already observed that the ocular testimony of the prosecutrix and other witnesses corroborates each other. The medical evidence (Exbt.4 and 5) clearly reveal that hymen is ruptured and there is sign of penetration of male private organ into the private part of the prosecutrix. Absence of vaginal swab or semen or spermatozoa in the private part of the prosecutrix was due to the fact that she was put under medical examination after a considerable period of 4 days i.e. the incident was occurred on 24.07.2011 at 12:45 pm and by that time it was very natural to wash off that particles from the body of the prosecutrix.
15.3 The present case before us is not a case of complete contradictions or inconsistencies between medical evidence and the ocular evidence as well as between the statements of the prosecution witnesses. Having so observed, the ocular evidence in the case at hand being cogent, credible and trustworthy and absence of vaginal swab or semen or spermatozoa, supported by the medical evidence is not of any consequence. As we hold that medical evidence does not suffer from any infirmity and at the same time, it confirms the penetration, even drawing the Page 24 of 27 attention of the accused person to the medical examination report would be of empty formality.
16. In the present case, the direct evidence that the prosecution vividly described hereinabove remains unshaken and the mere omission of not drawing the attention of the accused to the medical report of the prosecutrix will not be enough to brush aside the entire evidence and materials on record.
17. The ticklish issue has been taken into account by Hon‟ble Apex Court which has consistently taken the view that except where it is totally irreconcilable with the medical evidence, oral evidence has primacy: (2010) 10 SCC 259.
18. We have given due consideration to the submission of learned counsel of the appellant that the medical examination report of the victim girl did not find the presence of semen or seminal matter and on the basis of such negative report, it would not be safe to convict and sentence the accused appellant for committing offence under Section 376 of the IPC.
19. Further, the presence of semen or spermatozoa and even emission of semen are not sine qua non to constitute the offence of rape. It is not necessary that there should be complete penetration of the penis with emission of semen and Page 25 of 27 more so it is the penetration to the extent of any slightest degree and not the ejaculation is sine qua of the offence of rape.
20. In Bhupendra Sharma vs. State of Himachal Pradesh reported in (2003) 8 SCC 553 at para-10, the Supreme Court has held as under:-
"The offence of rape occurs in Chapter XVI IPC. It is an offence affecting the human body. In that Chapter, there is a separate heading for 'Sexual offence', which encompasses Sections 375, 376, 376-A, 376-B, 376-C, and 376-D. 'Rape' is defined in Section 375. Sections 375 and 376 have been substantially changed by Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act, i.e. 376-A, 376-B, 376-C and 376-D. The fact that sweeping changes were introduced reflects the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will. 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. Litt. 123-B); or as expressed more fully, 'rape is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will' (Hale PC 628). The essential words in an indictment for rape are rapuit and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape; [1 Hon.6, 1a, 9 Edw. 4, 26 a (Hale PC 628)]. In the crime of rape, 'carnal knowledge' means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation (Stephen's 'Criminal Law "9th Edn. p.262). In 'Encyclopoedia of Crime and Justice' (Volume 4, p. 1356) it is stated".... even slight penetration is sufficient and emission is unnecessary'. In Halsbury's Statutes of England and Wales (4th Edn.) Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence Page 26 of 27 of the private person of a woman-an-outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order.
21. Further, corroboration is not sine qua non for conviction. However, we should not say that corroboration is not at all needed to convict an accused of offence of „rape‟ but we must say that the necessity of corroboration may be needed in the rarest of the rare cases. Why should the evidence of the girl or the women who complains of „rape' or „sexual molestation' be viewed with the birds eye to find out doubt, disbelieve or suspicion. In this regard, the observation of Vivian Bose, J. in Rameshwar S/o Kalyan Singh vs. State of Rajasthan reported in AIR(39) 1952 SC 54; AIR .57, (para-19) appears to be very significant and relevant in the perspective of the present case, which reads as follows:-
"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge.............................‖
22. The Apex Court in a catena of decisions has held that the physical scar may heal up, but the mental scare will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and necessity of corroborative evidence even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable.
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23. With the above observation and discussion, we affirm and upheld the judgment and order of conviction and sentence dated 07.08.2012, passed in ST 03 of 2012, by the learned Assistant Sessions Judge, Court No.2, West Tripura, Agartala with the slight modification that the sentences shall run concurrently instead of consecutively.
The appeal is accordingly dismissed with the above terms.
Send back the L.C. record along with a copy of this judgment.
(ARINDAM LODH),J (SANJAY KAROL),CJ. suhanjit