Tripura High Court
Shri Montiv Das @ Monti Das vs The State Of Tripura on 9 August, 2019
Equivalent citations: AIRONLINE 2019 TRI 133
Author: Arindam Lodh
Bench: Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
Crl. A. (J) 37 of 2019
Shri Montiv Das @ Monti Das
S/o Late Mukul Das,
Resident of Ram Kirshna Para
P.S. Panisagar,
District-North Tripura.
----Appellant(s)
Versus
The State of Tripura
----Respondent(s)
For Appellant(s) : Mr. HK Bhowmik, Adv.
For Respondent(s) : Mr. S Ghosh, Special PP.
HON'BLE MR. JUSTICE ARINDAM LODH
Judgment and Order (Oral)
09.08.2019
This appeal under Section 374 of the CrPC is
directed against the judgment and order of conviction and sentence dated 13.06.2019 passed in ST12(U/K)2018 (T-1) by the learned Sessions Judge, Unakuti Judicial District, Kailashahar, Tripura whereby and whereunder the learned Sessions Judge has convicted the appellant under Section 376(1) of IPC and sentenced him to suffer RI for seven years and to pay a fine of Rs. 20,000/- in default of payment of fine money, to suffer further RI for six months.
2. Heard Mr. HK Bhowmik, learned counsel appearing for the appellant as well as Mr. S Ghosh, learned Special PP appearing for the respondent-State.
3. Considering the nature of the case, I have taken up the matter for hearing at the time of consideration of the suspension petition.
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4. Shorn of unnecessary details, I propose to refer to the facts relevant to decide the instant criminal appeal. One Kabita Chakma lodged an FIR to the Officer-in-Charge, West Agartala Women PS stating inter alia, that one Montiv Das @ Monti has been residing as tenant in the house of her father, namely, Karmasuk Chakma at Pecharthal and while residing as such, love affairs were developed between Montiv Das @ Monti and her sister, the victim girl (name withheld) who is a deaf and dumb. On 25/26 May, 2017 while her mother came to her house at Agartala leaving her deaf and dumb sister alone at their house at Pecharthal, Montiv Das, i.e. the appellant herein, made promise to marry her sister, i.e. the victim girl and on the basis of such promise he induced the prosecutrix to cohabit with him forcibly. When her sister resisted the cohabition, Montiv Das assaulted and threatened her, that if she disclosed the matter, he would kill her. In the result, the victim girl and her parents got shocked and afraid and so they shifted the victim to Agartala.
5. The above complaint was registered as zero FIR vide No. 2017WAW000 dated 03.07.2017 under Section 376(1)417/323/506 IPC in the West Agartala Women PS and forwarded to the Officer-in-charge of Pecharthal PS for necessary action, as the place of occurrence of the incident was fallen under the Pecharthal PS.
6. The Officer-in-charge of Pecharthal PS received the zero FIR from the West Agartala Women PS along with the complaint on 04.07.2017 at about 12.07 hrs and registered Page 3 of 14 Pecharthal PS case No. 2017PTL015 under Sections 376/417/323/506 IPC against the accused Montiv Das @ Monti and the case was assigned to SI Ranjit Choudhry (PW17) for investigation.
7. On completion of investigation, the IO of the case, filed charge-sheet dated 31.03.2018 for the offence punishable under Sections 376/417/323/506 IPC against the appellant. Being committed, charge was framed against the appellant under Sections 376/417/323/506 IPC.
8. In order to substantiate the charges, the prosecution examined as many as 17 witnesses. The prosecution also introduced some documents which were admitted in evidence, such as complaint petition (Exbt.1), FIR in prescribed form (Exbt.3/1 to 3/2), the statement of the victim girl under Section 164(5) CrPC and medical report of the prosecutrix (Exbt.5/1 and 5/2), expert opinion report (Exbt.6), Hand Sketch Map and Index of place of occurrence (Exbt.7 &
8).
9. After closure of the recording of the prosecution evidence, the appellant was examined under Section 313 CrPC when he denied the charge and further denied to adduce any evidence on his behalf.
10. After hearing the arguments of both sides the learned Sessions Judge, Unakoti Judicial District, Tripura, Kailashahar has convicted the accused-appellant and declared the judgment and order of conviction and sentence dated 13.06.2019 to suffer imprisonment, as afore-stated. Page 4 of 14
11. Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence dated 13.06.2019, the accused-appellant has preferred the instant appeal.
12. Mr. HK Bhowmik, learned counsel appearing for the appellant has invited my attention to the statement of the informant, Kabita Chakma who deposed before the learned trial court as PW1. She has stated that the victim prosecutrix was deaf and dumb, but, the family members used to communicate with her by expression of signs. On 25/26 May, 2017 her mother visited her house at Melarmath, Agartala keeping her sister (prosecutrix) at her father's house situated at Kamalpur under Pecharthal PS. At that time, her father, her younger brother and his wife were also there in the said house.
13. She has further stated that after a few days, her mother returned back to her father's house at Pecharthal and probably on 15th June, 2017 the victim (PW11) came to her house at Melarmath and during her stay, she expressed by signs that one Mantiv Das, who used to reside in her father's house giving assurance of marriage committed rape upon her, in her father's house, while her mother was at Agartala from 25/26 May, 2017. The prosecutrix also informed her that Mantiv threatened her not to disclose the incident to anybody else. Even the prosecutrix was physically assaulted by Mantiv, and her sister informed her that Mantiv committed rape upon her on 5/6 occasions. Hearing that fact from the victim, the complainant informed her mother over phone. Page 5 of 14
14. As per request of her mother, on the next day her husband visited her father's house and met with the maternal uncle of Mantiv to know whether Mantiv would marry her sister but they refused and sought for long time for settlement. After about a month, PW1 visited her father's house at Pecharthal when the maternal uncle of Mantiv was also called in their house, to know whether Mantiv would marry the prosecutrix or not, but, he again sought for further time.
15. Thereafter, on her return to Agartala, the informant PW1, lodged the written complaint with the Officer-in-charge of the West Agartala Women P.S. on 03.07.2017 which was identified by her as Exbt.1 and her signature was marked as Exbt.1/1. She also identified the appellant in the dock.
16. From her cross-examination, it is revealed that in her father's house, besides her parents, her brother and his wife along with her sister prosecutrix used to reside in the same mess. It has been further revealed that cooking was done by her sister (victim) and wife of her brother. When her attention was drawn, she has stated that she did not mention in the FIR that on 15/16 June, 2017 the victim visited her house at Agartala. She has further stated that she did not mention in the FIR that on 15.06.2017 her sister informed her by signs that she was raped by Mantiv Das in her father's house on 25/26 May, 2017 or that she was raped on 5/6 occasions.
17. PW1 has further stated that she did not mention in her FIR that hearing the above incident of rape, she did not Page 6 of 14 inform the same to her mother over phone. She also did not mention in the FIR that her husband visited her father's house on the request of her mother and met with the uncle of Mantiv and inquired whether Mantiv was ready to marry the prosecutrix and the Uncle of Mantiv had sought for time by refusing performance of marriage. She also did not mention in the FIR that in the month of June, 2017 on her visiting her father's house she also contacted with the Uncle of Mantiv and at that time he sought further time. She also did not mention in her FIR that on her return to home at Agartala from her father's house, she lodged the complaint.
18. To dis-believe the evidence of the same witness (PW1), Mr. Bhowmik, learned counsel for the appellant has drawn my attention to the evidence of PW11, the victim girl. The learned Judge has recorded the statement of the girl (PW11) being satisfied with her intelligence, and her deposition was recorded with the help of an interpreter who could understand the sign language.
19. In her deposition, in course of trial, PW11 (victim) has stated that one day in the morning after making meal her house inmates went out and she was alone in her house. A person who used to reside in their house, at that time, embraced her forcibly and also assaulted her physically and touched her breasts. Thereafter, she went to bed with him and he threatened not to disclose the same to anybody else. Thereafter, he opened her wearing apparels and at that time, Page 7 of 14 she closed her eyes and realized that the said person was committing some wrong with her.
20. Thereafter, the said person left the house. In that way, on some other days, the said person committed wrong at night and at day time also. The appellant was identified by the victim. On furnishing her statement recorded under Section 164(5) CrPC she identified her signature which was marked as Exbt.4/1. In course of her examination, she has stated that a boy who used to reside in her house at that time did the said wrong with her and she stated it before the Magistrate.
21. When her attention was drawn, she has stated that she did not state to the Magistrate that one boy forcibly poured liquor in her mouth and forcibly raped her. She has further stated that she stated to the Magistrate that the person who used to reside in their house embraced her forcibly and assaulted her and also touched her breasts. Thereafter, she went to bed with her and he threatened her not to disclose the same to anybody else.
22. She has further stated that she did not state to the Magistrate that at that time she closed her eyes and realized that he was committing some wrong with her. In her cross examination, she has categorically stated that she does not know the name of the person.
23. The statement of the victim girl has a close similarity to the statement of the Magistrate who recorded her statement under Section 164(5) of the CrPC. The learned Magistrate (PW14) in her cross-examination stated that PW11 Page 8 of 14 (victim girl) did not state to her that the boy who used to reside in their house committed wrong with her. Further, the Magistrate has stated that the girl stated to her that the boy gave some alcohol and thereafter, forcibly raped her. The Magistrate has further stated that the victim girl (PW11) did not state to her that the person who used to reside in their house embraced her forcibly and also tortured her physically and touched her breasts. The Magistrate volunteered that the prosecutrix stated to her that the boy physically assaulted her. The Magistrate has further stated that the victim girl did not state to her that the boy went to bed with her, and neither she said anything about opening her wearing apparels nor stated to her that at that time she closed her eyes and realized that the boy was doing something wrong with her. The Magistrate has further stated that the prosecutrix did not disclose the name of the boy.
24. Dr. Montoshi Chakma, PW15, has stated that on 09.07.2017 a deaf and dumb girl (the prosecutrix), was produced to the hospital with a history that about one month back one Mantiv Das committed rape on the girl in her house at Pecharthal on several occasions giving assurance to marry her. As per requisition of police, she examined the girl in presence of one Kabita Chakma (PW1), who was the elder sister of PW11. As per information given to her, her last date of menstruation was 01.07.2017. She found no marks of injury on her whole body. Vaginal swab, nail cutting and nail scrapping, blood and urine were collected and those were given Page 9 of 14 to the police constable and ultimately, she opined in her report that sexual act can neither be affirmed nor excluded. On identification, the report and the signatures were marked as Exbt. 5/1, 5/2 and 5/3.
25. In her cross-examination, the doctor has stated that whatever information she gathered, was from the elder sister of the victim girl. She has further stated that she did not put any question to the prosecutrix in the form of question and answer.
26. Dr. Sabyasachi Nath, PW16, the Senior Scientific Officer-cum-Asst. Chemical Examiner has stated that he did not find any abnormality in the private parts of the prosecutrix.
27. SI Ranjit Choudhury, PW17 is the Investigating Officer of the case, who has stated that after being endorsed with the case, he has recorded the statement of the victim girl, arranged for recording her statement under Section 164(5) CrPC by the Magistrate and also arranged to produce her in the hospital for medical examination. In his cross-examination, the IO has stated that he has not recorded the statement of any of the relatives of the appellant. He also did not examine any Uncle of the appellant and did not collect any rent receipt as proof of tenancy of the appellant in the house of the victim prosecutrix. Significantly, on a meticulous scrutiny of the evidence, he has confirmed the statements of the witnesses which they did not state to him in course of the investigation.
28. PW2, Kanaklata Chakma; PW3, Karmasuk Chakma; PW4, Supratim Chakma; PW5, Jarija Chakma and PW6, Page 10 of 14 Mangaldip Chakma are all relative witnesses. PW7, Gita Chakrborty, is the woman police constable who recorded the statement of the victim girl with the help of speech education/teacher of Deaf and Dumb School, Abhoynagar. PW8, Kalilaxmi Debbarma is the staff nurse of RGM Hospital who collected blood sample of accused Mantiv Das. PW9, Suman Acharjee, is the recording officer. In his cross- examination, he has stated that nothing was mentioned in the column No.8 of the prescribed form about the reason for delay in lodging the complaint for registration of FIR. PW10, Nagendra Tripura is a mere seizure witness of blood sample of accused Mantiv Das.
29. I have meticulously and carefully scrutinized the evidence of PW1, Kabita Chakma; PW11, (the victim girl) PW14, Chhandita Debnath; PW15, Dr. Mantoshi Chakma; PW16, Dr. Sabyasachi Nath and PW17, Ranjit Choudhury. PW11, the victim girl, is the most vital witness as she is allegedly the victim of the circumstances. After appreciating her evidence, a question arises in the mind of the court, as to why she did not disclose the name of the person who raped her on the promise of marriage, assaulted her and also threatened her not to disclose the said incident to anyone? Curious enough, even she did not disclose the name of the person when her statement under Section 164(5) was recorded by the Magistrate. The suspicious circumstance again arises from the fact that after the first occurrence of alleged rape, she did not disclose it, neither to her father and brother nor to the wife of Page 11 of 14 her brother, though all of them were in the house on 25/26 May, 2017. She has stated that she was assaulted by the person but she did not disclose the same to any of her family members present in the house at that time. It is not the case of the prosecution that at the relevant point of time no family member was present in the house.
30. From the statement of PW1 it is found that there are other tenants also in the same house. Question arises, in presence of so many persons in the house, in the day time, how the incident occurred?
31. From the statement of PW1, it is further revealed that her mother returned back to Pecharthal after a few days and even then the victim girl did not disclose the said fact to her mother. Even assuming that she was not too friendly with her father, brother and sister-in-law, why she did not disclose such heinous crime to her mother? Ordinarily, a girl is always very friendly to her mother and if anything happens to her chastity, it is very natural that she would disclose the same at least to her mother.
32. Another interesting point that has struck the mind of this Court is that had she been assaulted by the appellant, then, there must have been some marks or symptoms available on her person, and due to such assault she also would have cried but none of the inmates had heard the sound of crying nor they noticed any sign or symptom of assault on her person.
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33. PW1 has stated that probably on 15.06.2017 the victim visited her house at Agartala. This also creates serious suspicion in the mind of the court because of the fact that the parents of a deaf and dumb girl would not allow their daughter to visit the house of their elder daughter alone at Melamath, Agartala which is at a distance of about 200 kms from their residence at Kamalpur under Pecharthal P.S. The evidence of PW1 being scanned carefully, it is found that she has improved her version substantially in course of trial.
34. Mr. Ghosh, learned Special PP has submitted that there is a distinction between omission and improvement. It is true, but when the complaint has been solely written by the complainant on the basis of the facts which is known to him/her, there is no question of any omission. In terms of Section 162 of the CrPC, the complainant is to inform the actual facts of the incident, even if some facts are missed out, then, there is ample scope to narrate the incident in detail in her statement under Sections 161 and 164 (5) CrPC. The relevant incriminating materials must remain in the earlier statements which may be made at the stage of filing the complaint or at the stage of recording the statement under Section 161 or under Section 164 CrPC.
35. The purpose of recording statement under Section 161 or 164 CrPC is for contradiction or corroboration. So, a criminal trial is to be decided on the basis of the evidence deposed in course of trial which conform the previous Page 13 of 14 statements made by witnesses without any exaggeration and improvements.
36. Further, Section 157 of the Evidence Act clearly states that in order to corroborate the testimony of a witness, any former statement made by the said witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. So, to prove a case there must be correlation between the earlier statements and the statements made in course of trial.
37. In view of the aforesaid provisions of law, in my opinion, the nature of the statements made in course of trial by the prosecutrix as well as by PW1 are exaggerated, improved, not trustworthy at all and not inspiring too.
38. Another material aspect to be considered in this case is that the incident, according to PW1 and PW11, occured on 25/26 May, 2017 but complaint was lodged on 03.07.2017 and that also at Agartala, though, the place of occurrence was within the jurisdiction of Pecharthal P.S. and from the deposition of PW9, Suman Acharjee it is evident that there was no explanation for the cause of delay in lodging the complaint. Most significant part of this case is that the learned Magistrate has disapproved the statements made by the victim prosecutrix, PW11. The Magistrate has stated that in course of recording of statement, that PW11 did not divulge the name of the person who has raped her. What PW11 has stated in her deposition in course of trial was not stated before the Page 14 of 14 Magistrate in course of recording of her statement under Section 164(5) CrPC.
39. The learned Special PP has submitted that the victim girl surrendered her chastity to the appellant being allured by him and on the specific promise of marriage to her. I have given my anxious thought to the said submission but, I find that in the deposition of the prosecutrix, she has never made such statement in course of trial that she was ever assured or allured or promised by the appellant to marry her.
40. In the light of the above analysis, in my opinion, the prosecution has failed to prove its case beyond reasonable doubt, that the appellant had committed the offence as charged against him and accordingly, the judgment and order of conviction and sentence dated 13.06.2019 passed in ST12(U/K)2018 (T-1) by the learned Sessions Judge, Unakuti Judicial District, Kailashahar, Tripura is hereby set aside.
41. Accordingly, the appellant is acquitted from the charges levelled against him and he is directed to be released forthwith, if not wanted in connection with any other case.
42. In the result, the instant appeal is allowed.
Send down the LCRs.
JUDGE lodh