Tripura High Court
Suraj Miah vs The State Of Tripura on 16 September, 2019
Equivalent citations: AIRONLINE 2019 TRI 132, (2019) 204 ALLINDCAS 425
Author: Sanjay Karol
Bench: Sanjay Karol
Page 1 of 13
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl. A(J) No. 16 of 2018
Suraj Miah, son of Sri Mamtaj Miah, resident of Village-
Induria, P.S. Sonamura, District- Sepahijala, Tripura, Pin-
799131.
.....Appellant(s)
-V E R S U S-
The State of Tripura.
..... Respondent (s)
B_E_F_O_R_E
HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL
For Appellant(s) : Mr. Kohinoor N. Bhattacharjee, Advocate.
For Respondent(s): Mr. A. Roy Barman, A ddl. P.P.
Date of hearing : 01.05.2019
Date of judgment : 16.09.2019
Whether fit for reporting : Yes No
√ x
JUDGMENT
The present accused-appellant stands convicted under Section 4 of the Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as the POCSO Act). Consequently, he stands sentenced to undergo rigorous imprisonment for a period of 7(seven) years and also pay fine of `20,000/- (rupees twenty thousand) and in default thereof, simple imprisonment for a period of 6(six) months. [2] Brief facts of the case being that on 20.04.2017, at about 8.30 am, minor daughter of the informant, aged about 12 years and two other minor children were returning home from a secluded place i.e. at the burial ground. Accused, Suroj Miah Page 2 of 13 illegally detained the prosecutrix and forcibly took her to a nearby tilla land (small hillock) whereby after pressing her mouth with his hand committed an act of rape. She was threatened not to disclose the incident to anyone. However, seeing her condition, when queried, she disclosed the incident to her mother, who in turn disclosed the same to her husband, i.e. the informant. After consulting local headmen, a report was lodged with the police.
[3] On receipt of such complaint, Srikanta Chakraborty, (PW-10), Sub-Inspector, Sonamura, registered P.S. Case No. 23 of 2017 dated 20.04.2017 under Section 376 (2)(i) of IPC and Section 4 of POCSO Act, against the accused and entrusted the investigation to SI Drabajoy Reang (PW-11). Police arrested the accused who along with the prosecutrix was medically examined. Prima facie finding the accused to have committed the crime, prosecution presented the charge-sheet in court for trial.
[4] Accused Suroj Miah, was charged for having committed an offence punishable under Section 376(2)(i) of IPC and also under Section-4 of the POCSO Act. To establish the same, prosecution examined as many as 12(twelve) witnesses and proved 12 (twelve) documents. The accused stands convicted.
[5] This Court is thus called upon to examine the correctness of findings and the judgment passed by trial court with respect to conviction of the present appellant, Suroj Miah in Page 3 of 13 case No. 23 of 2017, titled as the State of Tripura vs. Suroj Miah arising out of FIR No.0023/2017 dated 19.04.2017 registered at Police Station Sonamura under Section-4 of POCSO Act. [6] The appellant through this criminal appeal is trying to invite attention of this Court primarily on the four issues; (i) that the trial court had overlooked the variations/contrasting statement of prosecution witnesses (who were also eye witnesses) as to the account of the incident; (ii)that the trial court had failed to consider the contradiction (omission amounting to contradiction) in the statements of the material witnesses particularly in the statement of the prosecutrix and her sister; (iii) that Dr. Shatabdi Paul (PW-12) in her testimony and the medical report, opined that there were sign of sexual intercourse but the report of the Scientific Officer Smt. Rupali Majumder (PW-7) contained nothing to suggest that the accused had committed the sexual assault upon the prosecutrix and (iv) the trial court ignored the motive element behind the filing of FIR i.e. bad blood/animosity between the appellant and the family of the prosecutrix.
[7] Also, appellant brings to the attention of this Court, of his understanding that the evidence was wrongly appreciated. The appellant intends to assail the conviction which was found on the basis of perverse appreciation of evidence. [8] It is therefore, duty of Court of appeal to determine as to whether reasoning adopted and conclusion arrived at by Page 4 of 13 the trial court, emanate from correct and complete appreciation of material placed by the parties or not.
[9] For establishing the prosecution's case, testimony of prosecutrix (PW-1), her sister (PW-4), her father (PW-2), her mother (PW-3) and independent witnesses, (PWs 5 and 6) needs to be examined.
[10] Unequivocally, prosecutrix does state that the accused, whom she identifies and about which fact there is no dispute, caught her and pressed her mouth with his hands and then dragged her to the ground. There he forcibly undressed her and committed rape by lying her on the ground. After committing the act, he threatened her not to disclose the incident, else her parents would be killed. [11] This Court does not find such statements to have been self-contradicted. Also from the cross-examination part of her testimony, it cannot be said that credit of the witness stands impeached. Though she is a child, yet she fully understands as to what she is deposing. She distinctly remembers the sequence of events and the incident and confidently narrates them in the court. Her father corroborates such version, as also her mother and sister.
[12] One cannot forget that parties hail from rural background they are tribal people and easily do not have access to the authorities. It is in this backdrop, father reported the matter to the elected representative of ADC village, namely, Sri Bishumani Tripura, PW-5 and another person, namely, Sri Jagat Page 5 of 13 Chand Tripura who is the husband of an elected representative. The incident was brought to their notice as early as it could be. It is only thereafter, FIR came to be lodged. [13] It is true that scientific evidence did not reveal any tell tale signs of crime. It is also true that scientific analysis and the samples collected of the private part of the parties, did not link the accused to the crime, but then, there is an explanation for the same. Prosecutrix had already had her bath and medical examination was carried out much after the incident. In any event, this Court finds testimony of the prosecutrix to be absolutely inspiring in confidence.
[14] The learned counsel for the appellant-accused has pointed out some omissions/contradictions in the statement of the prosecutrix and other witnesses for discrediting the prosecution version.
[15] Purported contradiction in the statement of the prosecutrix (PW-1) and her sister (PW-4) about the incident of sexual assault is highlighted.
PW-1 stated as below (Page 8 of Paper Book) ".......on 19.04.2017 at about 8.30am myself along with my two sisters, namely Rakhi Tripura and Mangalpati Tripura on the way myself found Suraj Miah of our village who was sitting near the roadside. At that time he threatened my cousin sister Rakhi Tripura and Mangalpati Tripura and also asked them to leave that place and accordingly out of fear they left that place....." PW-4 stated as below (Page 18 of Paper Book) Page 6 of 13 "......After a while when we were returning back to our house, on the way one Suraj Miah told us to stop at that time of out of fear myself and my younger sister ran away while Suraj Miah restrained my cousin sister Anjana Tripura." [16] Bare perusal of above extracts do not reflect any inconsistency. This Court does not find, both in essence and substance, any difference, whatsoever, in the statements made by them. Both statements clearly state that accused Suraj Miah restrained PW-1 and threatened away PW-4 and her sister from the scene. Such behavior implies nothing but that he had an evil eye with an intent of executing the same.
[17] Further, learned counsel tries to discredit the prosecutrix by posing as to why she did not leave the spot along with her sister. To the understanding of this Court, learned counsel erred in appreciating that as per statement of PW-1 and PW-4, accused Suraj Miah had restrained the prosecutrix, hence, she could not flee away. Moreover, all of them (PW-1, PW-4 and her sister) were of young age and not mature enough to have reacted in the way the learned counsel expects of an adult person.
[18] As regards the question of not raising hue and cry or reporting the matter/incident by the cousin sisters or other relatives of the prosecutrix, the appellant accused must understand that at the time he hushed away the minor sisters from the scene, he had not exhibited his desire of causing sexual assault. After all parties were not strangers. Page 7 of 13 [19] The learned counsel has highlighted that statements made by the prosecutrix in her testimony that "the accused undressed himself and forcibly undressed myself" that "at the place of occurrence there was some bushes", that " after the incident I stated such facts to my cousin sister" that "I also stated to Darogababu that after such incident my father went to the house of the Suraj Miah and after a while returned and inform that he did not find the Suraj Miah and his father" (page 9-10 of paper book) are not there in her statement recorded under Section 161 or Section 164 of the Cr.P.C., as the case may be. He, further, pointed that cousin sister of the prosecutrix (PW-4) in her testimony had said that "I had stated to the Darogababu that on that day Anjana was crying while returning home and told that Suraj Miah committed misdeed with her" , but no such statement is found in her statement made under Section 161 of Cr.P.C. Similarly, the statement made by the father of the prosecutrix (PW-2) that " I had stated to Darogababu that after hearing about such incident from my wife I asked my daughter about such incident when she also disclosed such fact to me" and that "I also stated to Darogababu that after hearing such incident form my daughter I went to the house of Suraj Miah to inform such incident to his parents but found them absent and subsequently told his younger son to tell his parents to meet with me when they returned back to their house" are found omitted in his statement made under Section 161 Cr.P.C. (Page-12 of the Paper Book).
Page 8 of 13[20] The learned counsel for the appellant-accused has emphasized that these omissions made by witnesses are contradictions for the purpose of Section 162 of Cr.P.C. [21] What is the meaning of contradiction in the context of Section 162 Cr.P.C. has been aptly explained by the Apex Court in Shashidhar Purandhar Hegde and Another v. State of Karnataka (2004) 12 SCC 492 (two Judge Bench), reads as under:
"12. The word 'contradiction' is of a wide connotation which takes within its ambit all material omissions and under the circumstances of a case a court can decide whether there is one such omission as to amount to contradiction. [(See State of Maharashtra v. Bharat Chaganlal Raghani and Ors., Raj Kishore Jha v. State of Bihar. The Explanation to Section 162 of the Code of Criminal Procedure, 1973 (in short the 'Code') is relevant. 'Contradiction' means the setting of one statement against another and not the setting up of a statement against nothing at all. As noted in Tahsildar Singh v. State of U.P., all omissions are not contradictions. As the Explanation to Section 162 of the Code shows, an omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant or otherwise relevant having regard to the context in which the omission occurs. The provision itself makes it clear that whether any omission amounts to contradiction in the particular context is a question of fact."
[22] In the considered view of this Court, discrepancy has to be distinguished from contradiction. It is true that major and material contradiction in the statement of witness is fatal for the Page 9 of 13 prosecution case, but minor discrepancy/variation in evidence would not make the prosecution case to be doubtful. In order to ascertain as to whether discrepancy pointed out was minor or not or that it amounted to a contradiction, it is required to be proved from the circumstances of the case by keeping in view the age, social status and the environment in which such witness was making their statement.
[23] Whether and to what extent inconsistencies in statements made by witnesses affect credibility of witness has been deliberated upon by Hon'ble Apex Court in the past. The Apex Court in Rammi v. State of MP, (1999) 8 SCC 649(two Judge Bench) held as under:
"When eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
25. It is a common practice in trial courts to make out contradictions from previous statement of a witness for confronting him during cross- examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Page 10 of 13 Evidence Act provides scope for impeaching the credit of a witness by proof of inconsistent former statement. But a reading of the Section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the Section is extracted below:
155. Impeaching credit of witness.- The credit of a witness maybe impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him.
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.
26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be contradicted would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to contradict the witness the cross- examiner is enjoined to comply with the formality prescribed therein. Section 162 of Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose, i.e. to contradict the witness.
27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness, (vide Tahsildar Singh and anr. vs. State of U.P., 1995 Crl. LJ 1231)".
Emphasis supplied] Page 11 of 13 [24] Further the Apex Court in Pawan Kumar v. State of U.P, (2015) 7 SCC 148, (two Judge Bench) while quoting Rammi (supra) stated as follows:
"When a witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. [see Rammi v. State of M.P. (1999) 8 SCC 649]. There is no doubt that when two views are possible, the one which favours the accused should be taken and the accused should be acquitted by giving the benefit of doubt. But in the instant case, the evidence on record is trustworthy and consistent, and there is only one view, which points to the guilt of the accused. Though the learned counsel for the appellant sought to point out minor discrepancies in the evidence of the witnesses, but in the light of the above judgment of the court, we are of the considered opinion that such minor discrepancies should not come in the way of the other strong circumstantial evidence, cumulatively taken together, forms a complete chain of events, pointing towards the guild of the accused in the commission of the crime."
Similar view was taken by the Apex Court in Yogesh Singh v. Mahahbir Singh, (2017) 11 SCC 195 (two Judge Bench).
[25] In the present case it is true that in the earlier statements, there are some omissions in the version of prosecution witnesses particularly that of evidence of PW-1 Page 12 of 13 (who is a minor aged about 12 years). But, the omissions as highlighted by the appellant-accused are not significant and are merely trivial in nature. These are not material exaggerations or embellishments. In our considered opinion such discrepancies in the version of prosecution no way impeaches her credit, rendering her statement to be false, untrue, cooked up or unbelievable, or in any manner fatal to the prosecution case. Insofar as the presence of the victim & the accused, as also incident is concerned there is neither any variation nor exaggeration.
[26] It has come on record through the testimony of Dr. Shatabdi Paul (PW-12), that after the occurrence of incident, prosecutrix was got medically examined. On perusal of medical evidence i.e. the statement and the medical examination report of the prosecutrix (Exhibit-11) it is clear that she was subjected to sexual assault. It is true that in the forensic report no foreign material was found on her body (Exhibit-12). But it is also true that the doctor on examination found the hymen of the prosecutrix ruptured and it is nobodies case that prosecutrix, a child, was of a loose moral character or had previously indulging in any sexual activity or that such rapture was a result of and cause of any other natural activity.
[27] Past hostility between the families of the accused and victim on the ground that cattle of family of the prosecutrix had damaged crop (paddy) of the accused and PW-5 had advised her father to settle the matter of such dispute is presumed as a circumstance of false implication. On perusal of testimony of Page 13 of 13 PW-5 (page 20 of the Paper Book), this court finds that the advice to settle the dispute was related to sexual assault upon the prosecutrix and not over the damage caused to the paddy. This Court does not find presence of past hostility to be a motive to lodge a false complaint against the accused as it has not been adequately substantiated to attract any significant attention.
[28] For all the aforesaid reasons, this Court finds no reason to interfere with the judgment passed by the trial court. Trial Court has fully and correctly appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or complete appreciation of the material so placed on record by the parties. [29] The appeal against the impugned judgment of conviction and sentence dated 30.01.2018 in case No. Special (POCSO) 02 of 2017, titled as the State of Tripura vs. Sri Suraj Miah passed by learned Special Judge, Sonamura, West Tripura, stands dismissed. Pending application(s), if any, also stands disposed of Send down the lower court records forthwith.
CHIEF JUSTICE A.Ghosh