Gauhati High Court
Manik Debnath vs State Of Tripura on 25 November, 1998
Equivalent citations: 1999CRILJ607
JUDGMENT P.C. Phukan, J.
1. This is an appeal directed against the judgment and order dated 14-5-1997 passed by the learned Assistant Sessions Judge No. 1, West Tripura at Agartala in case No. ST (WT/A) 113 of 1996 convicting the accused-appellant under Section 376, IPC and sentencing him thereunder to simple imprisonment for 8 (eight) years.
2. On the night of 17-5-1993 at 1-20 a.m. an FIR was lodged at East Agartala Police Station by Smt. Anita Saha to the effect that around midnight at about 12-30 a.m. the accused Manik Debnath jumped on her, gagged her mouth with cloth and raped her forcibly. Although she raised alarm, due to heavy shower no one could hear her alarm. She informed her neighbours about the incident soon after the accused left the place after committing rape on her. On receipt of the FIR, the police registered a case under Section 376, IPC against the accused and on completion of investigation charge-sheeted him under Section 376, IPC. The learned Magistrate committed the case to the Court of Session under the said Section of law.
3. In the Court of Session, a charge under Section 376, IPC was framed, read over and explained to the accused to which he pleaded not guilty and claimed to be tried. In the trial, the prosecution examined six witnesses. The accused was examined under Section 313, Cr. P.C. He pleaded innocence and declined to adduce any evidence. The defence case was one of total denial After considering the evidence on record and hearing the prosecution and the defence, learned Sessions Judge convicted and sentenced the accused as stated above.
4. I have considered the record of the case and have heard Mr. A. K. Debnath, learned counsel for the accused-appellant and also Mr. A. Ghosh, learned Public Prosecutor appearing for the respondent-State.
5. When the criminal chooses the victim, the hour, the place and the situation to strike, the evidence of the victim must naturally figure most prominently in the judicial search for the truth. Here the victim is a frail woman in her mid twenties unable to resist, the hour is mid-night when all were fast asleep, the place is neighbour's hut with bamboo door easily breakable, and the situation husband away from home leaving the victim unprotected with two kids and heavy downpour of rain when neighbours could not hear the victim's scream. The victim PW Smt. Anita Saha told the Court that on the date of occurrence her husband, an employee in a restaurant, was away and she was sleeping with her two years' old daughter and seven months' old son. Around mid -night her next door neighbour accused Manik Oebnath entered into her hut by breaking the bamboo door, forcibly undressed her and raped her. She raised hue and cry. It was then raining cats and dogs and nobody came to rescue her, After committing rape on her, the accused ran away and she rushed to her neighbours and reported the whole matter to them. They accompanied her to the hospital and then to East Agartala Police Station where one of her neighbours PW. 2 Pranab Sarma wrote the FIR Ext. PI as dictated by her, Ext, P1/1 being her signature, Medical Officer of the Hospital examined her. When her husband returned home next day, she narrated the incident before him. He deserted her. ,
6. The above evidence of PW. 1 has been fully corroborated by her neighbours PW. 2 Pranab Sarma, PW. 3 Smt Bani Chowhan and PW. 4 Smt Sabita Saha. PW. 4 is her sister. PW. 2 and PW. 3 are not related to her. All of them (PWs. 2, 3, 4) in one voice and with complete unanimity said that soon after the occurrence around midnight PW. 1 went to their respective residences and reported to them that the accused Manik forcibly entered into her hut and raped her and that they all accompanied her to the hospital and then to East Agartala Police Station. PW. 2 added that in the Police Station as per her dictation he wrote the FIR Ext. P. 1, Ext. P1I2 being his signature as scribe, PW. 2 corroborated PW. l's statement that her husband deserted lies: after this incident of rape. PW. 3 and PW. 4 confirmed that at the time of occurrence around mid-night it was raining cats and dogs.
7. The evidence of PW. 6 Pran Krishna Das, the Investigating Police Officer, reveals that within an hour of the occurrence during the night itself the victim PW. I lodged the FIR Ext. P.I narrating the incident and specifically naming the accused Manik showing that his implication was not an afterthought. In any case, there is no question of PW. 1 making any mistake as regards the identity of the accused, for, he was her next-door neighbour known to her since before the occurrence. AH the prosecution witnesses were cross-examined by the defence, but nothing material has been elicited to discredit their evidence. I accept their evidence as substantially true. It is dear from their evidence that what the accused did with PW. 1, he did against her will and without her consent.
8. Now, I address myself to the question whether what the accused did amounted to rape or an attempt to commit rape. The Explanation to Section 375, IPC says, "Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." On the question of penetration, I would have liked to see the medical examination report. The Investigating Police Officer PW. 6 deposed that he sent PW. I to the hospital for medical examination. PW. 1 also said that she was examined by a Medical Officer. But during the trial, this Medical Officer was away from the country in Libia and hence could not be examined, as a witness. Another Medical Officer PW. 5 Pijush Kanti Das came to the witness box and said that the then Medical Officer Ashim Dutta examined PW. 1, but did not depose from the record of the examination report of Dr. Dutta nor exhibited that report. PW. 5 exhibited a report Ext. P. 3 made by pathology department of the hospital saying that no spermatozoa was found in the vaginal swab. In view of the above, the offence of rape cannot be said to have been proved. However, the facts that around mid-night the accused entered into the hut where PW. 1 was sleeping by breaking the bamboo door, and used criminal force to undress her and she raised hue and cry have been amply proved. The evidence of the victim PW. 1 coupled with other evidence on record leaves no room for doubt that the accused attempted to commit rape on her. In State of Maharashtra v. Chandraprakash Kewalchand Jain reported in 1990 Cri LJ 889 : AIR 1990 SC 658 Supreme Court observed (at page 895 of Cri LJ) :-
To insist on corroboration except in the rarest of the rare cases is to equate woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood.
XX XX XX XX Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity.
XX XX XX XX The Court must not be oblivious of the emotional turmoil and the psychological injury that a prosecutrix suffers on being molested or raped. She suffers a tremendous sense of shame and the fear of being shunned by society and her near relatives including her husband....
9. In the instant case, it is on record that the husband of the victim P.W. 1 deserted her after this incident.
10. In the result, the conviction of the accused-appellant Under Section 376, IPC is converted into one Under Section 376/511, IPC, and the sentence awarded to him to eight years' simple imprisonment Under Section 376, IPC is modified into four years' rigorous imprisonment Under Section 376/511, IPC.
The appeal is allowed in part as indicated above.