Tripura High Court
Sri Dhananjoy Reang vs The State Of Tripura on 22 May, 2020
Equivalent citations: AIRONLINE 2020 TRI 353
Author: Arindam Lodh
Bench: Akil Kureshi, Arindam Lodh
Page 1 of 18
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl. A(J) No. 11 of 2017
Sri Dhananjoy Reang, son of Lt. Bikramjoy Reang
of Vill: Claster Village, East Ananda Bazar, P.S.
Ananda Bazar, District: North Tripura.
.....Appellant
-V E R S U S-
The State of Tripura.
..... Respondent
B_E_F_O_R_E HON'BLE THE CHIEF JUSTICE AKIL KURESHI HON'BLE MR. JUSTICE ARINDAM LODH For Appellant(s) : Mr. A. Nandi, Advocate.
For Respondent(s) : Mr. Sumit Debnath, Addl. P.P.
Date of hearing : 11.03.2020
Date of judgment
& order : 22.05.2020
Whether fit for
reporting : YES
J_ U_ D_ G _E_M_ E_ N_ T & O R D E R
(Arindam Lodh, J)
Heard Mr. A. Nandi, learned counsel appearing for the appellant. Also heard Mr. Sumit Debnath, learned Addl. P.P. appearing for the State-respondent.
[2] The present appeal is directed against the judgment and order of conviction dated 19.03.2014 passed by the learned Additional Sessions Judge, North Tripura, Dharmanagar, whereby and whereunder, the appellant has been sentenced to suffer RI for his entire life till death along Page 2 of 18 with a fine of Rs. 20,000/- only for the offence committed under Section-376(2)(f) read with Section-376(2)(n) of the IPC with default stipulation.
[3] Briefly stated, prosecution case is that Smti. Jugerung Reang, wife of the accused-appellant lodged an FIR with the Officer-in-charge, Anandabazar Police Station to the effect that for the last 5/6 months her husband i.e. the appellant herein, has been trying to cohabit with his own daughter namely 'X' [name is withheld] but, 'X' did not agree. So, the accused assaulted her and threatened her. The wife, the informant herein, tried to pacify her husband, but failed. On 06.04.2013 at about 12.00 hours at night, on 25.04.2013 at about 10.00 pm at night and on 01.05.2013 at about 01.00 hours at night the accused being father forcefully raped his daughter by tearing off her wearing apparels in front of the informant. When the informant raised objection, the accused assaulted the informant and also threatened to kill her. Initially, she did not disclose anything to anybody out of fear but as there was recurrence of the same, she and her daughter took shelter to a safer place out of fear of her husband.
Page 3 of 18[4] On receipt of the ejahar(Exbt.1), the Officer-in- charge of Anandabazar Police Station had registered an FIR (Exbt.3) as ABR P.S. Case No. 08 of 2013 under Sections 376(2)(f)(i)(n)/323 of IPC and endorsed it to S.I Nanda Dulal Saha (PW-6) for investigation. On completion of investigation, the I/O submitted charge sheet against accused person Dhananjoy Reang under Section-376(2) (f)
(i)(n)/323/506 of IPC. On receipt of charge-sheet, the case being committed, trial was commenced in the Court of the learned Addl. Sessions Judge, North Tripura, Dharmanagar. In course of trial, prosecution side had examined as many as 8(eight) witnesses, and in his defence, the appellant had also produced 3(three) witnesses including him and introduced some documents.
[5] After completion of the recording of evidences, the appellant was examined under Section-313 of Cr. P.C., where he denied the charges and the incriminating materials levelled against him by the prosecution witnesses. Having heard the learned counsel for the parties, learned trial Judge convicted the appellant and sentenced him as aforestated. Hence, this appeal.
Page 4 of 18[6] We have heard the learned counsel appearing for the parties to the lis and perused the records. Mr. Nandi, learned counsel appearing for the appellant had laid much emphasis on the delayed registration of the FIR i.e. after two days of the incident. He further submitted that both the wife and the daughter had a dispute with the appellant and on ill advise of one Surendra Reang, the instant FIR was lodged by the wife of the appellant(PW-4). Learned counsel further argued that the victim had failed to mention the date and time when she was raped. He further argued that in a rape case, delay to lodge the information is fatal. Mr. Nandi, learned counsel had pressed into service the following decisions: Prakash Chand v. State of Himachal Pradesh, reported in AIR 2019 SC 1037; Kishan Chand & Others v. State of U.P. reported in AIR 2008 SC 133; Anwar Hossain Maishan v. The State of Tripura, Crl. A(J) No. 31 of 2016; Rai Sandeep alias Deepu v. State (NCT of Delhi) with Hari Singh v. State (NCT of Delhi), reported in (2012) 8 SCC 21; Anjan Kumar Sarma and Others v. State of Assam reported in (2017) 14 SCC 359 and Ram Jag and Others v. The State of U. P., reported, AIR 1974 SC 606.
[7] On the other hand, Mr. S. Debnath, learned Addl. P.P. appearing for the State-respondent has submitted that Page 5 of 18 the prosecution case was fully established. Both the informant-wife, PW-4 and the victim, the daughter of appellant, were found to be trustworthy and carried enough credence. Their depositions are supported by the medical evidence. He further argued that the appellant had failed to give any explanation as to why his own wife and daughter implicated him with such heinous crime and such non- explanation would lead this Court to draw adverse inference against the appellant. Learned P.P. had drawn our attention that in course of investigation the investigating officer had arranged the recording of statements of both the victim and her mother by the judicial Magistrate under Section-164(5) of Cr. P.C. and during their respective depositions, they did not shift from their earlier statements which they made before the Judicial Magistrate. Learned P.P. had urged to maintain the conviction and sentence as declared by the trial court. [8] Keeping in mind the aforesaid submissions of the learned counsel appearing for the parties, we have made a survey of the evidence of the witnesses recorded by the learned trial Court.
[9] The informant, Smt. Jugerung Reang (PW-4) in her deposition being the mother of the victim has stated that Page 6 of 18 the incident took place on 3 days i.e. 06.04.2013 at about 10 pm, on 25.04.2013 at about 9.00 pm and on 01.05.2013 at the very dead of the night. Those unfortunate incidents were occurred at their own hut and the informant was the eye- witness to those incidents when her husband, the appellant herein, had committed rape on her daughter (PW-5). This witness has stated that she tried to resist but the appellant did not listen to her, rather, he assaulted her. She has further deposed that after the complaint was lodged, police came and she handed over the wearing 'pant' of her daughter to the police in the house of Niranjoy Reang. [9.1] In her cross-examination she was asked how she sustained injuries. In reply, she has stated that she sustained injuries due to assault on her person by her husband by a stick and also by an iron stick and this stick and the iron rod were still in their house, but, police did not seize those articles. Further, she stated that she did not attend any medical officer for the injuries she sustained. She has further stated that she reported the incident to Jalendra Reang, Surendra Reang and Niranjoy Reang and another. She reported the matter on the very night i.e. on 01.05.2013. She has stated that when she raised objection, her husband threatened her to kill. She has stated that she did not lodge Page 7 of 18 the complaint instantly after commission of the offence as she was threatened by her husband. She has denied the suggestion that she had no intention to live with her husband and for that reason, she has falsely deposed against her husband. The Court had observed that PW-4 appeared before the Court along with a kid of less than 2 years. [10] Next vital witness is PW-5 i.e. the victim herself. In her deposition she has deposed that she was a student of Class-V. We have noticed that her age was mentioned as 13 years. She has stated that she had no idea about the exact dates and time but the incident took place at their house. Her father i.e. the appellant had committed rape on her forcefully on 3 days in presence of her mother. Her mother had raised objection but her father did not listen to her. She has further stated that the police officer had arranged for her medical examination and later on, she also made her statement before the Magistrate.
[10.1] In her cross-examination she has stated that her father committed rape upon her, and her mother i.e. PW-4 had tried to resist him so that her father could not commit rape upon her. She has further stated that after the incident her mother and father had a quarrel among them. She has Page 8 of 18 stated that while committing the offence, her father also had torn her wearing apparels.
[11] Next, we have taken note of the medical evidence. PW-7, Dr. Santosh Chakma, deposed that there was no sign of external injury at her private parts but her hymen was found ruptured having access of two fingers. He further stated that though his report was silent about the fact of whether the girl was raped or not but, on the basis of the report he said that she being minor, the possibility of rape of the victim, in recent days could not be ruled out as he found her hymen was ruptured. He has further deposed that non- mentioning of such statements in the report was his mistake. He has stated that the appellant was capable of sexual intercourse and his report was marked as Exbt.10 on being identified by the witnesses.
[12] PW-1, Jalendra Reang, deposed that he scribed the FIR as per the version of PW-4.
[13] PW-2, Sri Niranjoy Reang, the village Mattabbar (leader) has deposed that the informant told him that the appellant committed rape upon her daughter in her presence. He has further stated that during investigation police had seized one 'black pant' belonging to the victim in her Page 9 of 18 presence and that was marked as Exbt.MO.1. No material contradiction was found in the statements made by PW-2 in his cross-examination.
[14] PW-3, Sri Raj Kumar Jamatia, had registered the FIR being the Officer-in-charge of Anandabazar Police Station.
[15] PW-8, Sri Sruendra Reang, who was the Vice- Chairman and at the relevant point of time he was residing at Shantipur, Anandabazar. He has deposed that about 4 months back one day in the early morning PWs 4, 5 & Niranjoy Reang (PW-2) had visited his house but at that time, he was absent. However, subsequently, they came in the afternoon and reported that Dhananjoy Reang, the appellant herein, forcefully used to cohabit with his own daughter. Then he advised the informant i.e. the PW-4 to take shelter of law.
[15.1] In cross-examination this witness has stated that both the informant and the victim told him that the appellant used to forcefully cohabit with the victim. [16] PW-6, Sri Nanda Dulal Saha, the investigating officer has deposed that being endorsed, he started investigation and during investigation he recorded the Page 10 of 18 statements of available witnesses, made seizure of wearing apparels(Exbt.MO.1), arranged medical examination of the victim and thereafter collected the sample of vaginal swab and being satisfied he filed the charge-sheet against the appellant.
[17] The appellant was examined as DW-1. He deposed that he had some disputes with his wife and daughter due to family affairs. He also scolded and physically assaulted them as a result of which his wife had left his house along with her daughter and started to live in the house of one Surendra Reang. He has further deposed that one of his fellow persons had seen them in the house of one Surendra Reang and he had rushed to that house to bring his wife, but, his wife did not return, rather in the afternoon, she lodged complaint against the accused-appellant. According to him, Surendra Reang had provoked his wife to lodge the instant complain. [17.1] In cross-examination, he stated that he did not lodge any GD Entry or any missing information to the police station.
[18] DW-3 did not say anything material in favour of the appellant DW-1.
Page 11 of 18[19] From the above witness, the following facts have been surfaced viz (i) the victim was aged about 13 years at the time of commission of the crime; (ii) she was raped on three days as aforestated (iii) her mother PW-4 is the eye witness to the incident; (iv) the hymen of the victim was found to be ruptured having access of two fingers, and (v) all efforts on the part of her mother (PW-4) to prevent the appellant from doing such nefarious act and conduct, had failed.
It is pertinent to mention here that we have gone through the decisions referred to by the learned counsel appearing for the appellant but in the context of the case, we find no relevance.
[20] Out of fear, the informant mother had left the company as well as the house of the accused-appellant to a safer place and took shelter in a house of the same village. The day, the appellant went to bring them from the house of one Surendra Reang, PW-4 had lodged an FIR against the appellant.
[21] The present case is one of the rarest cases where a father had committed rape upon his own daughter. As such, it is necessary to examine and evaluate the evidence of Page 12 of 18 the victim as well as the evidences of other witnesses minutely.
[22] PW-5 being aged about 13 years, according to us, is capable to understand what actually happened to her. She has categorically stated that her father committed rape upon her forcefully on three days in presence of her mother. Her mother had raised objection and tried to resist the acts and conduct of the appellant, but, she could not succeed. [23] Having found the recurrence of the incidents, the helpless mother had to leave the house of her husband and preferred to stay at a safer place. No wife would tolerate such nefarious acts of her husband and in the instant case, that was happened towards her own daughter and that too in her presence. So, it is not unnatural that the mother at least would try to save her daughter by any means. It is also not unnatural that when a minor daughter is raped and that too by her own father, everyone related to such victim would think twice/thrice before lodging any complaint against her own husband or her own father, considering the future of the victim.
[24] Moreso, in villages, particularly, in tribal areas people generally inform the village Mattabbars/leaders about Page 13 of 18 any illegal acts committed against them and they abide by the advice of such village leaders. In the instant case, what has happened to the victim as well as the complainant is undoubtedly a shameful act, not only towards the said victim and the mother but also towards the society. [25] Here, the conduct of the informant-mother is very natural. Initially, she has not lodged any complaint against her husband, perhaps out of fear or shame, rather, she has preferred to stay separately with her victim daughter in a place which could save her daughter.
[26] From the deposition of the appellant it reveals that having learnt that his wife and daughter were residing in a house of one Surendra Reang, he immediately had rushed to there to bring them back, when they refused to return back with him. According to us, in the context of the case and having given our thoughtful consideration to the deposition of the appellant, we are of the opinion that such conduct of the appellant had compelled the mother to lodge the complaint against the appellant as a last resort to save themselves. We are not in a position to treat this period of three days as a cause of unreasonable delay to lodge the FIR against the appellant. As such, we repel the submission of the learned Page 14 of 18 Counsel for the appellant that the delay caused in lodging the FIR, in the instant case, is fatal to the prosecution case. [27] Next, it is found there is clinching corroborative evidence of rape upon her by her own father, the appellant herein. PW-4, the mother of the victim girl has stated that the incident had happened infront of her and she failed to resist her husband from doing such unpleasant nefarious act. She reported the matter to the village Mattabar (leader) and this fact of information has also been confirmed by the oral testimony of PWs-2 and 8. The medical examination of the victim girl has revealed that there was history of sexual intercourse and the hymen was ruptured having access of two fingers. There is no evidence that the victim had any affair with any other person which may give some indication that she may have some sexual intercourse out of that relation. Here, the appellant has adduced some evidence but, he could not explain anything how the hymen of his daughter was ruptured having access of two fingers. In "Modi's book of Medical Jurisprudence and Toxicology, 24th Edition, it is stated that "In girl under 14 years of age, the vaginal orifice is usually so small that it will hardly allow the passage of the little finger through the hymen. It is often difficult to distinguish between an indentation in a fimbriated hymen and Page 15 of 18 a tear, unless the hymen is stretched by a finger tip, glass rod."
[28] Having taken into account the above analogy we find no discrepancy in the medical examination report of the victim girl and the deposition of the doctor who examined the said victim. The evidence of the doctor PW-7 is very clear and specific where he has categorically deposed that possibility of rape upon the victim girl cannot be ruled out in recent days since she is minor. We further have held that non-mentioning of this fact in the medical report will not destroy the prosecution case. The appellant has adduced evidence in his defence. Further, the doctor was subjected to cross- examination. The appellant side could easily put question to the doctor for more clarification or the appellant could explain and contradict the doctor's evidence to draw a different analogy.
[29] Here, it would be apposite to refer the judgment of the Apex Court in State of Sikkim v. Padam Lall Pradhan, reported in (2000) 10 SCC 112 where the prosecutrix gave a vivid account of how she was subjected to sexual harassment and intercourse on several occasions even Page 16 of 18 in presence of the wife of the accused. The Apex Court has observed thus:
".......On going through the evidence of the aforesaid witnesses, we have no manner of doubt that the prosecutrix PW-3 has truthfully narrated the entire episode and there is no reason as to why it can be said that she tried to foist a false case on the accused. It is too well settled that in a case of rape the conviction can be based solely on the evidence of the prosecutrix, if the evidence of the said prosecturix is held to be reliable and a truthful one. The reasons advanced by the High Court in the impugned judgment to discard the evidence of PWs 2 and 3, to our mind cannot be held to be germane or good reasons for discarding their testimony. That apart, as stated earlier, the medical evidence did indicate that hymen of the victim girl had been ruptured and that the said girl was ravished and her virginity had been taken away. That evidence does corroborate the evidence of the prosecutrix PW-3, who has given a vivid account of the entire episode as to how the accused on several occasions had been sexually assaulting her, even in the presence of his wife. The High Court has gone by the theory of improbability insamuch as the learned Judge thought that it is not possible for a man to commit rape on a girl in the presence of his wife. We, however, do not appreciate the aforesaid approach of the learned Judge, particularly when there is not an iota of reason as to why a minor girl would, at all, falsely rope in the accused in such a heinous crime....."
Having held so, the Apex Court allowed the State appeal setting aside the order of acquittal passed by the High Court.
[30] In the instant case also, though, the accused appellant had adduced defence but he failed to project a case on his behalf as to why his wife and his minor girl had Page 17 of 18 implicated him with such heinous crime. The appellant in his deposition as DW-1 only says that "due to family affairs" he had a dispute with his wife and daughter. The appellant in his deposition has failed to explain the nature and character of family dispute, the fact of which was especially within his own knowledge and he ought to have explained such fact to meet the requirements of Section 106 of the Evidence Act. Furthermore, the victim girl is his own daughter. She was minor and attaining the age of 13 years only at the time of commission of the offence. In such situation the appellant, being her father is the best person to come out with a specific fact. Keeping in mind Modi's theory as reproduced here-in-above, according to us, a girl of 13 years is hardly capable of allowing the little finger because the vaginal orifice and the passage therein of a girl of this age is too small and narrow. In this position, in the case in hand, we find that the girl was subjected to "two fingers test" and it is found that the penetration of two fingers are allowed which is quite indicative of being involved in sexual intercourse with an adult male organ.
[31] On overall assessment of the evidence led on by the victim and her mother, sufficiently supported by the medical evidence that the hymen of the victim minor girl was Page 18 of 18 ruptured having access of two fingers and in the instant case, according to us, it was the appellant and the appellant only who committed rape upon the victim girl. Accordingly, we affirm and uphold the conviction as declared by the learned Addl. Sessions Judge.
[32] However, considering the age of the accused as 36 years on the date of his examination under Section-313 of Cr.P.C., without any other criminal antecedents, the sentence as declared by learned trial Judge to suffer rigorous imprisonment for the entire life till death is interfered with and modified to the extent that the appellant shall suffer rigorous imprisonment for 14(fourteen) years. However, the sentence to pay fine along with default stipulation shall remain unaltered.
[33] With the modification of the sentence of the appellant in the above terms, the instant appeal stands partly allowed and thus, disposed of. Pending applications, if any, also stand disposed of.
(ARINDAM LODH), J (AKIL KURESHI), CJ