Tripura High Court
Jilal Uddin vs State Of Tripura on 4 February, 2019
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HIGH COURT OF TRIPURA
AGARTALA
Crl. A. (J) 43 of 2015
Jilal Uddin
S/o Md. Jamsed Ali
of Sakai Bari, PS Dharmanagar,
District: North Tripura, Agartala.
----Appellant (s)
Versus
State of Tripura
-----Respondent(s)
For appellant(s) : Mr. D Datta, Adv.
For Respondent(s) : Mr. Babul Choudhury, PP.
Fit for reporting : Yes
HON‟BLE MR. JUSTICE ARINDAM LODH
Judgment & Order (Oral)
04.02.2019
The present criminal appeal is directed against the judgment and order dated 25.08.2015 passed in case No. ST/T- 1/0000011/2014 by the learned Sessions Judge, North Tripura, Dharmanagar whereby the learned Sessions Judge convicted the appellant for committing offence punishable under Section 376(1) of IPC and sentenced him to suffer RI for a period of 7 years with a fine of Rs.3,000/- and in default of payment of fine money, to undergo further RI for three months.
2. Heard Mr. D Datta, learned counsel appearing for the appellant as well as Mr. B Choudhury, learned PP appearing for the State.
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3. The gravamen of the prosecution case is that the prosecutrix lodged a complaint stating inter alia, that she along with her sister went to celebrate the Fira Rath (return of chariot) celebration on 18.07.2013 AD at 5 O‟clock. While they were returning home at about 7 O‟clock at night and reached at Sutradhar para the accused-appellant obstructed their road and told her that he had some talks with her. She replied that if he had any talks with her he should go to her house. The accused immediately pressed her mouth with the threat of killing her and took her into the jungle beside the road and forcibly raped her against her will and escaped after committing the rape. She returned home in a helpless state from the place of occurrence and told her mother and others about the incident.
4. After receipt of the complaint, the Officer-in-Charge of the Dharmanagar Police Station, North Tripura registered case being Dharmanagar PS case No. 145/2013 dated 19.07.2013 under Section 341/376(1)/506 IPC. It is revealed that the time of lodging the FIR was at about 13.25 hrs on 19.07.2013. The investigation was carried on and the investigating agency, after being prima facie satisfied with the guilt of the accused, submitted charge sheet and after commitment, the learned Addl. Sessions Judge framed the charge in the following terms:
"I, Sri U. Choudhuri, Additional Sessions Judge, North Tripura, Dharmangar, do hereby charge you namely Md. Jilal Uddin is as follows:-
1stly, That on 18.07.2013 at about 7 p.m. at Sutradhar para under Dharmangar police station, you wrongfully restrained one Smt. Babita Hrishidas, a woman while she was going towards her house Page 3 of 26 with the intention of Kidnapping her and thereby committed an offence punishable U/S 341 of Indian Penal Code and within my cognizance.
2ndly, That on the aforesaid date, time and place you kidnapped Smt. Babita Hrishidas, a woman by mean of criminal intimidation, with intention that she might be compelled to illicit intercourse with you and thereby committed an offence punishable U/S 366 of Indian Penal Code and within my cognizance.
3rdly, That in the aforesaid date, time and place at Sutradhar para under Dharmangaar Police Station, you committed rape on Smt. Babita Hrishidas, a woman, nearby a jungle of said Sutradhar para and thereby committed an offence punishable under Section 376 of Indian Penal Code and within my cognizance, And I hereby direct that you be tried on the said charges."
5. In course of trial, as many as 21 witnesses including the victim prosecutrix were examined and cross-examined. After completion of recording evidence, the accused was put to examination under Section 313 CrPC where he denied his involvement with the alleged crime but was not inclined to adduce any defence witness in his favour. After hearing the learned counsel during the stage of argument, the learned Sessions Judge passed his judgment on 25.08.2018 whereby the appellant was convicted for committing offence punishable under Section 376(1) IPC and sentenced him as afore-stated.
6. Being aggrieved by and dissatisfied with the conviction and sentence, as stated above, the accused has preferred the instant appeal.
7. Mr. D Datta, learned counsel appearing for the appellant, inviting my attention to the evidence of the prosecutrix and other witnesses, has categorically stated that the proxecutrix Page 4 of 26 and other witnesses have been declared hostile. Even the prosecutrix and her sister have specifically denied the commission of offence of rape upon the prosecutrix by the appellant. Even the prosecutrix has stated that neither she nor her sister could identify the accused.
8. Learned counsel for the appellant has further submitted that the evidence of the Doctor is not conclusive as he in his evidence has stated that the injuries suffered by the victim at her vagina could have been caused to the victim even if it was not a forceful sexual intercourse.
9. Mr. Datta has emphasized on the word „could‟, which, according to him, is a clear indication that the Doctor (PW9) was not confirm in his conclusion whether the injury at the vagina was caused due to rape, allegedly committed by the appellant.
10. Per contra, Mr. B Choudhury, learned PP has submitted that the medical evidence as well as the evidence of the prosecution witnesses are enough to return the finding of guilt against the accused-appellant and according to him, the learned trial judge did not commit any wrong in returning the finding of conviction and sentence against the accused-appellant.
11. Having regard to the submission of both the learned counsel for the parties, I have examined the evidence of the prosecution witnesses as well as the medical evidence and other materials on record.
DISCUSSIONS:
12. The complaint was lodged before the Officer-in-Charge of the police station without any delay. The prosecutrix and her Page 5 of 26 sister returned to house at about midnight, explained the incident to her parents and other neighbours, and on the next day, at about 1.30 p.m. the FIR was recorded by the police. In her complaint, the prosecutrix has clearly stated that while she along with her sister were returning from the Fira Rath Jatra, (return of chariot celebration) the accused pressed her mouth with the threat of killing her and took her to the nearby jungle and forcibly raped her against her will and escaped after committing the rape. She also made statement under Section 164(5) CrPC (Exbt.5, 5/1), which is reproduced here-in-below:
"Statement of the alleged victim recorded U/S 164(5) of Cr.P.C.
"On 19/02/13 A.D. last at about 7 pm I was returning home from Dharmangar to my house located at Sakaibari after seeing the „Ulto rath (return chariot festival). My elder sister was also there along with me. At Sutradharpara on Thana road suddenly Jilal had forcibly taken my into a jungle and raped me against my will. After that I started towards my house. I found my sister on the road. Thereafter I formed the incident to all. This is my statement.""
13. I have taken note of her statement which she made under Section 164(5) CrPC, though, it is not a substantial piece of evidence, which has further led me to look into her evidence as PW16. It is as under:
"I cannot read and write. I cannot also sign my name. I went to see "Fira Rath" along with my sister Kabita Rishidas. I cannot remember the date exactly but it was about 2 years back. When I was returning along with my sister in the evening a person came from behind me and hugged me. I raised hue and cry. Then the person fled. After the occurrence I made statement before the Ld. Judicial Magistrate in court. After the occurrence police also took me to hospital for my examination and treatment."
The cross was declined.
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14. On analysis of her statement, as quoted above, it is found that she corroborates her statement which she made in her complaint that while she was returning from „Fira Rath‟ (return of chariot) celebration the accused appellant approached her and hugged her. She raised hue and cry when he left. Another important fact, that she admitted is that she made statement before the learned Judicial Magistrate in court. She has further admitted in her evidence that after the occurrence, police also took her to hospital for her examination and treatment which leads me to consider why the prosecutrix was taken to the hospital and with that process what kind of examination and treatment were conducted upon her.
15. PW17, Kabita Hrishi Das who happens to be the sister of the victim prosecutrix has adduced in her evidence that about two years back when she along with her sister were returning home from Fira Rath (return of chariot) celebration, Md. Jilal Uddin hugged her sister from the back and laid her on the ground at Sutradhar para. It was at 9 O‟clock in the night and there was none to help them.
In course of cross-examination, a specific suggestion was put to her in reply to which, she stated that "it is not a fact that accused Jilal Uddin did not come out with his vehicle at that day".
16. Therefore, what I get from the evidence of PW17 is that she confirmed the statement of the prosecutrix, and, to say, about the incident, that her sister was hugged by the accused- appellant being identified specifically by her. She further has Page 7 of 26 stated that the accused-appellant laid the prosecutrix on the ground.
17. PW18, Anjali Hrishi Das being the mother of the victim-prosecutrix has stated in her evidence that when she saw her daughters were not returning home till 12 O‟Clock in the night she became worried and informed the neighbours. At around 12.30 a.m. they returned home and started crying. The prosecutrix told her that while they were returning home a boy hugged her from her behind and took her to the nearby jungle and committed rape upon her. But, surprisingly, she skipped off naming the accused person.
18. Now, if her statement is read with the statement of the prosecutrix which she made in her complaint as well as under
Section 164(5) CrPC and the evidence she adduced at the stage of trial, then, it becomes apparent that the statement of the prosecutrix in the complaint that after returning home she narrated the incident of crime to PW18 is true and is well corroborated.
19. At this juncture, I take note of the medical examination report of the prosecutrix which is marked as Exbt. 5, 5/1. In „brief description of the report‟, it is stated that though the prosecutrix had changed her wearing apparels after returning home, but, she did not take bath. It is also revealed that with the change of wearing apparels she also washed her private parts. At column 12 under the caption, "local examination of genital parts", it is noted by the examiner that fourchette was torn. It is written as:
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"i)*******
ii) *******
iii) Fourchette Bleeding, tear: Thin tear present c is red and inflamed c slight oedema of the vaginal introitus.
......................"
20. At column 12 C, it reads that injury is fresh and tearing present at 1 O‟clock position. Margins are sharp and red. c bleed on touch (within 24 hours). The doctor has given her clinical opinion at column 15 of the prescribed format. It is noted as follows:
"15. Clinical Opinion After performing the above mentioned clinical examination the findings are:
a) consistent with recent sexual
intercourse/assault.
b) ********
c) ********
In my opinion sexual intercourse/ assault could not be ruled out. Signs of recent rape/intercourse found c is within 24 hours of examination."
21. The maker of the report was examined as PW9, Dr. Lipika Paul. She has stated that she examined the victim on 19.07.2013 at District Hospital, Dharmanagar. After careful examination she found that the margins of tear present in the vagina were sharp and red and it bleeds on touch and such injury could be related to sexual assault within the preceeding 24 hours. On the same date, she also held potency test of Md. Jilal Uddin, the accused, in connection with the same case and on her examination she found that the accused was capable of doing sexual intercourse. In reply to a query by the court, she has stated that the injuries which were found, i.e. tear on the vagina had no relation with her menstruation. Such injuries could have been caused to the victim even if it was not a forceful sexual intercourse but she has further explained that probability of such Page 9 of 26 injuries are more in cases where the sexual intercourse is forceful and resisted by the victim. Here, one significant aspect strikes my mind that immediately after the incident the accused was connected with the crime and even was put to medical examination. Natural presumption is that his name was immediately divulged by the victim of rape.
22. Mr. D Datta, learned counsel appearing for the petitioner has tried to persuade me about the innocence of the appellant by drawing my attention to the statement of Sri Dipak Chandra Nath (PW2) who happens to be the Laboratory Technician in Dharmangar District Hospital, in regard to the statement that he did not find any spermatorzoa in the vaginal swab.
23. It reminds me to take note of the statements of the prosecutrix that she washed her private parts after the incident and also passed urine thrice. So, according to me, under these circumstances, the absence of spermatozoa in the vagina cannot be brushed aside, more so, to hold a person guilty of committing offence of rape, absence of spermatozoa should not be the basis of his innocence, if other evidence is available to record his guilt.
24. From the SFSL report (Exbt.17) it is found that the panty and salwar of the prosecutrix were blood stained which are marked as Exbts D2 (salwar) and D5 (Panty). Since, the prosecutrix was under menstrual cycle at the relevant period, the blood stain in the panty may be a natural phenomenon, but, blood stain found in the salwar is unnatural and according to me, points towards the forceful undressing of panty (Exbt.D5) from Page 10 of 26 the body of the prosecutrix, in the circumstance, which resulted the Salwar (Exbt. D2) to be blood stained.
25. To constitute offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen. Partial or slightest degree of penetration with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of law. In furtherance thereof, there may be a case where there is no penetration, but, seminal discharge is made by way of ejaculation upon the body of the prosecutrix, then, also requirements of law to constitute rape is fulfilled. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genital or leaving any seminal stains. For the reasons, and law as enunciated hereinabove, I repel the submission of Mr. Datta that absence of spermatozoa makes the prosecution story as doubtful.
(emphasis supplied).
26. The judicial magistrate (PW2) who recorded the statement of the prosecurtix under Section 164(5) CrPC also was examined and confirmed the statement recorded on the basis of the statement made by the prosecutrix.
27. PW1, Subrata Debnath has deposed as the scribe of the complaint and he has stated in his deposition that he has written the complaint on the basis of the statement made by the prosecutrix. After being written, it was read over to the complainant and after the same being confirmed by the prosecutrix the scribe has put his signature on the Ejahar (Exbt.1, Exbt.1/1).
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28. He has stated that he has written the ejahar what was told to him by the prosecutrix wherein she divulged that she was raped by the accused Jilal Uddin. He has denied the suggestion that he has made any improvement in any of the statements in the ejahar.
29. PW3, Md. Litu Miah is the seizure witness of the wearing apparels who has stated that he has put his signature as a witness.
30. PW5, Swarna Debbarma is the Sub-Inspector of police serving at the Dharmanagar police station at the relevant point of time and on the request of the investigating officer he recorded the statement of the victim, in this case, under Section 161 CrPC. He has confirmed during his cross-examination that the statement of the victim was recorded in terms of the version of the prosecutrix who specifically connected the appellant with such heinous crime.
31. PW6, Ajit Hrishi Das is a neighbour. He has stated that during night he heard cry from the house of the prosecutrix. He went there when the victim-prosecutrix made statement in front of him and PW10 that when she was returning from „Fira Rath‟ along with her sister (PW17), a person pushed her from behind and laid her on the ground. They went to the police station and reported the matter to the police but skipped off naming the accused person.
32. PW10, Promode Lal Hrishi Das is a neighbour of the victim prosecutrix. He has stated that he heard the cry from the house of the prosecutrix and immediately he rushed to their Page 12 of 26 house. On his query, the mother of the prosecutrix (PW18) told that somebody tried to embrace her daughter-victim from the back and her daughter could not identify him. So, if I read the statements of PW6 and PW10 conjointly, then, it is confirmed that the prosecutrix told that a person pushed her from her behind and laid her on the ground. PW11 and PW12 have stated that they heard the cry from the house of the prosecutrix but they did not go to the house of the prosecutrix and thus, were declared hostile.
33. PW15, Partha Chakraborty is the IO who investigated the case and submitted the charge-sheet. He has stated that after the complaint was registered, the case was handed over to him to investigate, and during the course of investigation he recorded the statement of the prosecutrix, arranged for her medical examination and treatment and also arranged for recording statement under Section 164(5) CrPC before the Judicial Magistrate, 1st Class. He also confirmed the statements made under Section 161 CrPC by the prosecution witnesses, who were declared hostile in course of trial.
34. Now, if I scan the broad features of the evidence and the materials on record before this Court, then, the following facts emerge out:
34.1. The prosecutrix along with her sister was returning home at night from the Fira Rath (return of chariot) celebration and when they reached at Sutradhar Para he was hugged by a boy and laid her on the ground. She made complaint, was examined Page 13 of 26 medically and recorded statement under Section 164(5).
34.2. PW6 and PW10, though, were declared hostile but corroborated this part of the statement of the prosecutrix as stated above.
34.3. The sister, PW17, the most important witness, who was accompanying the prosecutrix at that time is very categorical to her statement that the accused Md. Jilal Uddin hugged her sister from her back and laid her on the ground at Sutradhar Para and it was around 9 O‟clock in the night, which, she also confirmed in her cross-examination against a suggestion put to her in regard to the identification of the accused.
34.4. The mother of the prosecutrix, PW18 is also very specific about her statement that while her daughters returned to home on that unfortunate night, the prosecutrix has stated that while they were returning home a boy hugged her from behind and took her to the nearby jungle and committed rape upon her. Albeit, she skipped off naming the name of person but the commission of rape is confirmed by the evidence of PW17 and PW18.
34.5. The medical evidence as discussed above is also enough to come to the conclusion that the prosecution was raped. Thus, what is discernible to me is that the prosecutrix was raped which is well Page 14 of 26 established in the medical examination report as corroborated by PW9 and PW18 and further, the accused appellant has been identified as Md. Jilal Uddin by the sister of the prosecutrix, PW17.
34.6. In regard to the question of identification of the accused-appellant, I am of the opinion that though the witnesses declined to name the accused, but, PW17 without any fear has specifically stated that it was Md. Jilal uddin who hugged her sister and laid her on the ground at Sutradhar para at 9 O‟clock.
34.7. Though, the statement recorded under Section 164(5) CrPC is not a substantive piece of evidence, but it can be used for the purpose of corroboration or contradiction. So, the statement recorded under Section 164(5) CrPC corroborates the statement of PW17 and PW18 regarding the commission of rape upon the prosecutrix.
35. In course of examination under Section 313 CrPC, the accused appellant did not say anything that he had any previous animosity with the complainant and, in particular, PW17 or any of her relatives. The accused-appellant simply denied that he is not involved in the crime as alleged against him. There is no explanation as to why he has been implicated with such a serious crime. The scribe has particularly stated that he has written the complaint in terms of the information as supplied by the prosecutrix and there was no improvement in his statement. The Page 15 of 26 defence could not demolish his statement. Further, the defence also failed to demolish the statement of PW17 and PW18, the sister and mother of the prosecutrix respectively. The independent witnesses, corroborate the statement of the prosecutrix as well as that of PW17 and PW18 to the extent that the prosecutrix was hugged from behind and was laid on the ground.
36. I am not oblivious of the rule of law regarding the role of advisability that corroboration should be present to the mind of a judge. But this rule may be dispensed with in a particular circumstance of a case if it is safe to do so. Further, in my considered view corroboration must not be essential for conviction in each and every case. As I say it, however, as a matter of prudence, the rule of corroboration ought to be kept in mind.
(emphasis supplied)
37. The rules of requirement of corroboration is lucidly expounded by Lord Reading in Baskerville's case [1916] 2 K.B. 658, 664 to 669 where the writer has said that it would be impossible, indeed it would be dangerous, to formulate the kind of evidence which should or would be regarded as corroboration. Its nature and extent must necessarily vary with circumstances of each case and also according to the particular circumstances of the offence charged.
38. In criminal jurisprudence, considering a particular circumstance all that is required is that there must be "some additional evidence rendering it probable that the story of the Page 16 of 26 accomplice (or complainant) is true and that it is reasonably safe to act upon it."
(emphasis supplied)
39. Again, it will not be safe, always, to say that there must be independent evidence to believe that a crime is committed but it must be such that in some way the evidence reasonably connect or tend to connect the accused with the crime by way of confirming in some material particular indicating the testimony of the complainant to the effect that the accused committed the crime.
40. Further, corroboration with regard to the identification of the accused must not extend to all the circumstances. All that is necessary is that there should be evidence of such a nature which will make it reasonably safe to believe the version of the witnesses that the accused is the one or among those, who committed the offence.
41. More so, corroboration need not always be direct evidence, that the accused committed the crime. It will be sufficient if it is nearly circumstantial evidence of his connection with the crime.
42. Here, I may read illustration (j) to Section 8 of the Indian Evidence Act, 1872, which says:
"8.(j) The question is, whether A was ravished. The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant......"
43. So, the conduct of the victim as emanated from the evidence and materials on record is indisputably a legal evidence Page 17 of 26 and relevant for deciding a case of this nature where a previous or subsequent conduct is relevant and is admissible in evidence. Here, again, it will be very gainful to refer to Section 157 of the Evidence Act, which reads as follows:
"157. Former statements of witness may be proved to corroborate later testimony as to same fact. - In order to corroborate the testimony of a witness, any former statement made by such 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."
44. So, from this provision of law it is manifest that the previous statement which is relevant and gets supported by other related evidence will make such statement admissible in evidence. In the case in hand, the prosecutrix herself lodged the complaint being written by the scribe who confirmed that it was written on the dictation of the prosecutrix and he put his signature after the statements were read over to her and the same being confirmed by the prosecutrix. The statement which the prosecutrix made in the complaint was corroborated by her to the extent that she was pushed from her behind, who hugged her and laid her down on the ground without naming the accused. This part of her statement was further corroborated by PW6 and PW10.
45. Now, the question remains, in course of trial, in her deposition she has stated that she could not identify the accused which statement was also in the deposition of PW 6 and PW10. But PW17, her sister who was accompanying her at the time of occurrence was very candid and spoke about the incident that her sister, i.e. prosecutrix was pushed from her behind and Page 18 of 26 hugged and was laid down on the ground by the accused appellant. This witness, i.e. the sister of the prosecutrix, was also very specific to name the accused appellant and stated that it was Jilal Uddin and only Jilal Uddin who hugged her sister and laid her on the ground.
46. The mother, PW18 has very candidly and categorically stated that after returning home the prosecutrix narrated the story of rape committed upon her but she skipped off naming the boy who committed rape upon her daughter. The part which was not stated by PW18 was stated by PW17, her daughter accompanying Pw16 and she deposed that after returning home the prosecutrix specifically told her that she was taken to a nearby jungle by a boy, hugged her and committed rape upon her.
47. At a first glance, it may appear that there is a gap as to the fact in issue about the silence of PW16 and PW18 to mention the name of the accused person, but, this gap, in my considered view has been filled up by the deposition of PW17 when she appears to be very consistent, even, in her cross- examination that it was Jilal Uddin who hugged her sister, PW16 and laid her on the ground.
48. In the case in hand, in the previous statement of the prosecutrix and her statements which she recorded under Section 164(5) CrPC and the subsequent statements of the witnesses as narrated above are very much relevant to arrive at a finding that the accused appellant is guilty of committing the offence of rape upon the prosecutrix.
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49. Recently, in the case of Hemudan Nanbha Gadhvi Vs. State of Gujarat, decided in Crl. A. No. 913/2016 dated 28.02.2018, the Supreme Court has dealt with a similar situation where the prosecutrix was turned hostile. The court observed as follows:
"6. We have considered the submissions on behalf of the parties. The records have also been perused including necessary translations into English from vernacular language. PW-1 and PW- 2 have acknowledged having gone to the hospital. On the day of occurrence. PW-9, the doctor has confirmed the sexual assault made on PW-2. The F.I.R. lodged by PW-1 on the same day stands proved by PW-12 the police Sub-Inspector who stated that it was recorded by him exactly as dictated by the witness. He also proved having forwarded the prosecutrix for medical examination, the seizure of exhibits and sending the same to the FSL. The prosecutrix was also confronted under Section 145 of the Evidence Act with her statement under Section 161, Cr.P.C. confirming the sexual assault on her after she turned hostile, contending that she had suffered injury in a fall. The nature of injuries on her person are well nigh impossible due to a fall. Any opinion of the doctor that such injury could be caused by a fall, does not establish the injury as due to fall, as a fact but remain a mere expression of an opinion."
50. In the case in hand, the prosecution witnesses have acknowledged having gone to the hospital within 24 hours of the occurrence. PW9, the Doctor confirmed the sexual assault made on PW16. The FIR lodged by PW16 within 24 hours of the incident stands proved by PW15, the SI of police who investigated the case being endorsed by the Officer-in-Charge of the police station. The scribe PW1 has clearly stated that he has written the FIR as dictated by PW16, the prosecutrix. He also proved having forwarded the prosecutrix for medical examination and treatment, the seizure of exhibits and sending the same to the TSFSL.
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51. PW6 and PW10 though have stated that on their arrival to the house of the prosecutrix she narrated the incident of rape to them committed on her by the accused-appellant, but they have restrained themselves to depose that it was Jilal Uddin who committed the rape upon the prosecutrix. They were confronted under Section 145 of the Evidence Act in regard to their statements under Section 161 CrPC where similar statements were found that the prosecutrix told them that Md. Jilal Uddin committed rape upon her against her will.
52. The prosecutrix (PW16) was not declared hostile though she deposed that she was pushed from behind and hugged by one boy without naming the appellant, but, it was her sister-PW17 who stated that it was Md. Jilal Uddin who hugged her from behind and laid her down on the ground near Sutradhar para. Her mother was very candid as already stated above, that on arrival at home the prosecutrix had narrated the incident that one boy hugged her from behind. The defence declined to cross- examine the said witness. The Doctor has confirmed the injury at the vagina of the prosecutrix and was very candid to depose that in all probability the injury was caused due to forceful sexual intercourse. Most importantly, PW6, PW10, PW11, PW14 who went to the house of prosecutrix and the incident of rape was narrated to them. The nature of injury at her private part, as is surfaced from the medical examination fortified by the Doctor‟s evidence, makes it quite impossible that such injury could be caused only due to hugging and by laying her down on the ground.
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53. The Supreme Court in Hemudan Nanbha Gadhvi (supra) relying on a decision in Prakash Vs. State of Karnataka, reported in (2014) 12 SCC 133 held as under:-
"16. .....Even so, the failure of a victim or a witness to identify a suspect is not always fatal to the case of the prosecution. In Visveswaran v. State it was held :
11. ...... The identification of the accused either in a test identification parade or in court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused.
The commission of a crime can be proved also by circumstantial evidence."
54. In the decision, as referred supra, the Supreme Court has again relied on a decision in State vs. Sanjeev Nanda, (2012) 8 SCC 450 where their Lordships have dealt with a situation where material witnesses are declared hostile, and has observed thus:
"101. .......if a witness becomes hostile to subvert the judicial process, the court shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal justice system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 IPC imposes punishment for giving false evidence but is seldom invoked."
55. In para 9 of Hemudan Nanbha Gadhvi (supra) the Supreme Court (Three Judges Bench) has held as under:
"9. A criminal trial is but a quest for truth. The nature of inquiry and evidence required will depend on the facts of each case. The presumption of innocence will have to be balanced with the rights of the victim, and above all the societal interest for preservation of the rule of law. Neither the accused nor the victim can be permitted to subvert a criminal trial by stating falsehood and resort to contrivances, so as to make it the theatre of the absurd. Dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses to turn hostile as a ground for acquittal, as observed in Zahira Habibullah Sheikh vs. State of Gujarat, (2006) 3 SCC 374 and Mahila Page 22 of 26 Vinod Kumari vs. State of Madhya Pradesh, (2008) 8 SCC 34. If the medical evidence had not confirmed sexual assault on the prosecutrix, the T.I.P. and identification therein were doubtful, corroborative evidence was not available, entirely different considerations may have arisen.
56. In para 10 of the said judgment, the Bench has observed:
"10. It would indeed be a travesty of justice in the peculiar facts of the present case if the appellant were to be acquitted merely because the prosecutrix turned hostile and failed to identify the appellant in the dock, in view of the other overwhelming evidence available. In Iqbal vs. State of U.P., (2015) 6 SCC 623, it was observed as follows:
"15. Evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject matter of dacoity and the alleged weapons used in the commission of the offence.""
57. In para 11, the Bench has further observed:
"11. The corroboration of the identification in T.I.P. is to be found in the medical report of the prosecutrix considered in conjunction with the semen found on the clothes of the prosecutrix and the appellant belonging to the Group B of the appellant. The vaginal smear and vaginal swab have also confirmed the presence of semen. A close analysis of the facts and circumstances of the case, and the nature of the evidence available unequivocally establishes the appellant as the perpetrator of sexual assault on the prosecutrix. The serologist report was an expert opinion under Section 45 of the Evidence Act, 1872 and was therefore admissible in evidence without being marked an exhibit formally or having to be proved by oral evidence."
58. The principle, what is discernable from the above authorities as aforestated is that identification of the accused is not a sine qua non to hold an accused guilty of committing an offence under the penal provisions in all cases. Page 23 of 26
(emphasis supplied)
59. The Apex Court in Bantu Vs. State of Uttar Pradesh, (2008) 11 SCC 113 has held that the principal fact or factum probandum may be proved indirectly by means of certain inferences borne from the evidentiary facts. In para 17, their Lordships held as under:
"17. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed."
60. After considering the entire evidence and facts and circumstances, I am of the opinion that the prosecution witnesses somehow were won over or induced by some extraneous consideration for which the prosecution witnesses could even be tried under Section 195 of the IPC for producing false evidence before the Court.
61. In the case in hand, starting point is the circumstance that the prosecutrix (PW16) along with her sister PW17 were returning to their house late at evening. On their way, from the evidence of PW16 it is revealed that she was hugged by a boy & PW17 has stated that her sister was hugged by Jilal Uddin from her back and laid her on the ground. PW18 has deposed that on their return to house, her daughter started crying and narrated Page 24 of 26 that a boy hugged her from her behind, took her to a nearby jungle and thereafter committed rape. PW6, PW10 and others corroborated the version to the extent the prosecutrix was hugged by a boy. Subsequent conduct of prosecutrix is well significant and relevant to the principal fact in issue. PW16 lodged complaint to police who arranged medical examination, PW9 being the doctor, examined her deposed that injury at her vagina due to forceful rape and confirmed her opinion that she found signs of recent rape/intercourse within 24 hours of examination. In column No. 9 of the „Prescribed Form of Medical Examination Report‟, the doctor also recorded the statement of the PW16 where she was very specific that she was subjected to "forceful sexual relationship" by Jilal Uddin. In his 313 CrPC examination, the acused Jilal Uddin was given opportunity to confront with the statement of PW17 that he hugged her sister and laid her on the ground, he only answered that „this is not true‟. Here, the accused-appellant could have explained as to why he was implicated by her in the incident.
62. On critical analysis of the aforesaid circumstances and evidence of various other facts which are closely associated with the fact in issue, if taken together, they form a chain of circumstances from which the existence of the principal fact can be inferred or presumed.
63. In view of the circumstances as emanated here-in- above, the court cannot shut its eyes to the realities. It is held by the Hon‟ble Supreme Court of India in State Tr. P.S. Lodhi Colony, New Delhi versus Sanjeev Nanda reported in 2012 Page 25 of 26 CRI.L.J. 4174 that, every effort needs to be made by the court to bring home the truth. In the said decision, the Apex Court has held as follows:
"99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people‟s faith in the system.
100. This court in State of U.P. v. Ramesh Mishra and Anr. [AIR 1996 SC 2766] held that it is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v.
Superintendent of Police and Anr. [AIR 2004 SC 524], this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty.
101. We cannot, however, close our eyes to the disturbing fact in the instant case where even the injured witness, who was present on the spot, turned hostile. This court in Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1] and in Zahira Habibullah sheikh v. State of Gujarat [AIR 2006 SC 1367] had highlighted the glaring defects in the system like non- recording of the statements correctly by the police and the retraction of the statements by the prosecution witness due to intimidation, inducement and other methods of manipulation. Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further Section Page 26 of 26 193 of the IPC imposes punishment for giving false evidence but is seldom invoked."
64. After considering all aspects and materials on record, I hold that the present case is an admixture of direct evidence as well as circumstantial evidence and when the direct evidence is brought under scrutiny with the chain of circumstances related to the principal fact in issue starting from taking away the prosecutrix to the nearby jungle at Sutradhar Para to the lodging of FIR and narration of incident to the neighbours and particularly, the mother (PW18), and the seizure of articles and above all, the evidence of the Doctor supported by the medical examination report of the prosecutrix only point finger of guilt towards the appellant and his complicity in commission of such a heinous crime. Broadly speaking, after culmination of evidence in its entirety it leads to draw no other hypothesis other than the guilt of the accused-appellant. Added to it, in absence of enmity against the accused, there is no reason why PW17 should implicate the accused-appellant falsely.
65. In view of the foregoing discussion, I find no merit in the appeal. It thus fails and is accordingly dismissed.
66. Hence, the conviction and sentence as returned by the learned Sessions Judge, Dharmanagar, North Tripura is hereby upheld and affirmed.
Send down the LCRs.
JUDGE lodh