Tripura High Court
Sri Dilip Debbarma vs The State Of Tripura on 9 September, 2020
Author: S. Talapatra
Bench: S. Talapatra, S. G. Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
CRL.APP(J) 09 of 2018
Sri Dilip Debbarma,
son of Shri Suku Charan Debbarma,
resident of Mohan Chandra Para,
PS: Jirania, District: West Tripura
----Appellant(s)
Versus
The State of Tripura,
represented by the Secretary,
Home Department,
Government of Tripura.
---- Respondent(s)
For Appellant (s) : Mr. R. Datta, Adv.
For Respondent(s) : Mr. S. Ghosh, Addl. PP.
Date of hearing : 01.06.2020
Date of pronouncement : 09.09.2020
Whether fit for reporting : NO
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY
Judgment & Order
(S. Talapatra, J)
This appeal by the convict is directed against the judgment and order of conviction and sentence dated 25.02.2016 delivered in Sessions Trial (T-1)39 of 2015 by the Addl. Sessions Judge, Court No.5, West Tripura, Agartala. The appellant has been convicted under Sections 366 and 376(2)(f) of the IPC and sentenced to suffer rigorous imprisonment for 5 Page 2 of 18 years with fine of Rs.5000/- with default stipulation for committing offence punishable under Section 366 of the IPC and to suffer rigorous imprisonment for 12 years and fine of Rs.10,000/- with default stipulation for committing offence punishable under Section 376(2)(f) of the IPC. It has been directed that the sentences shall run concurrently. [2] Genesis of the prosecution is rooted in the complaint filed by one Rabindra Debbarma (PW-2) disclosing that on 15.01.2008 around 7.30 to 8.00 pm, the appellant came to his house and forcibly took away his 7 years old daughter (the name withheld for protecting the identity of the victim) into a nearby jungle and raped her. At around 9 pm the appellant dropped his daughter at his house. When the daughter came back home, PW-2 and his wife noticed that blood was oozing from her private parts. On the basis of the said complaint dated 16.01.2008 (Exbt-3), Jirania PS case No.01/08 under Section 366(A)/376 of the IPC was registered and taken up for investigation by the police.
[3] On completion of the investigation, final report was submitted in the court sending up the appellant to face the trial. The said case was registered in the court of the Chief Judicial Magistrate, West Tripura, Agartala as GR 45 of 2008. Since the Page 3 of 18 offences disclosed in the police Report are exclusively triable by the court of Sessions. On taking cognizance, the police papers were committed to the court of the Sessions Judge. In the Sessions Court, the said case was reregistered as Case No.ST39 (Type-1) of 2015 and the same was transferred to the court of the Addl. Session Judge, Court NO.5 West Tripura, Agartala, herein after referred to as the trial court.
[4] The trial court on 11.09.2015 framed the charge against the appellant under Sections 366 and 376(2)(1) of the IPC for committing, kidnapping of the victim as the victim was aged about 7 years on the day of taking out her from the custody of the law guarding i.e. 15.01.2008 and for committing rape on the victim. The appellant pleaded innocence and claimed to face the trial.
[5] In order to substantiate the charge prosecution adduced 11 witnesses and introduced 9 documentary evidence including the medical examination report (Exbt-9). On completion of the recording of the prosecution evidence, the appellant was examined under section 313 of the CrPC to have his say on the incriminating material those surfaced in the evidence led by the prosecution. The appellant reiterated his plea of innocence and stated the evidence as brought against Page 4 of 18 him are fabricated. On appreciation of the evidence, the trial judge returned the finding of conviction by the impugned judgment having observed that from the evidence of the victim and her parents (PWs. 2 to 4) it has been established beyond reasonable doubt that on 15.01.2008 in the evening, the appellant took away the victim from the lawful custody of her parents and the victim was subjected illicit intercourse. Further, from the evidence of the victim, her parent and neighbours and also from the medical evidence, it has been established beyond reasonable doubt that the appellant had on 15.01.2008 committed rape on the victim who was a child at that time and thereby the appellant is liable to be convicted for committing an offence punishable under Section 376(2)(f) of the Indian Penal Code.
[6] The said finding of conviction has been challenged by the appellant broadly on the grounds that the said finding has emerged from improper appreciation of evidence inasmuch as appreciation has not been carried out by the established canons. It would have inferred that the prosecution story is unnatural, improbable and fabricated one. The evidence of PW-2, in particular, cannot inspire any confidence for the purpose of convicting the appellant. Thus, the charge having not been Page 5 of 18 proved beyond reasonable doubt. The appellant is entitled to acquittal from the charge by setting aside the impugned judgment and order. Alternatively, it has been reasoned that the appellant was not properly examined under section 313 of the CrPC, however, it has not been dilated in the memorandum of appeal how the examination under section 313 of the CrPC was defective. Finally, it has been contended that the sentence is disproportionate.
[7] Mr. R. Datta, learned counsel has quite robustly submitted that there has been no medical examination of the appellant after his arrest. That apart, PWs 2 and 4, respectively father and mother of the victim, did not state in the trial whether they were present in the place when their daughter was taken away by the appellant. Whatever they had stated was on the basis of what they had heard from the victim (PW-3) who was aged about 7 years, according to the prosecution. Thus, the entire prosecution narrative is founded on the testimony of PW-
3. Even the witnesses from the neighbourhood such as PWs-6 and 7 is hit by hearsay rule.
[8] Mr. Datta, learned counsel appearing for the appellant has stated that there is no sustainable evidence by which the appellant can be connected with the offence as Page 6 of 18 alleged, if the testimony of the victim is not wholly relied. In support of his contention, Mr. Datta, learned counsel has relied on a decision of Madras High Court (Madurai Bench) in Ramesh vs State as reported in (2018) 1 MadWN(Cri) 388 to buttress his point that since no report in respect of potency of the appellant was produced by the prosecution, it has to be held that the prosecution has failed to prove involvement of the appellant in the offence of rape. The passage as relied reads as under:
"24. As rightly submitted by the learned counsel for the appellant, as regards the offence of rape is concerned, neither PW20, who gave treatment the deceased nor PW15, who conducted Post-mortem on the dead boy of the deceased, have found symptom of rape on the body of the deceased. W21-Forensic Expert has stated in her examination that no semen and saliva were found on MO1-Lungi and MO3-Petticoat. Though the Accused was sent for Potency Test as per Exs.P18 and P19, no Report was produced on the side of the prosecution in order to show the involvement of the Accused in the offence of rape. Thus, the prosecution has absolutely failed to prove the charged under Section 376,IPC also.
25. In view of the foregoing discussion, this court is of the view that the prosecution has abruptly failed to prove the case beyond reasonable doubts and the conviction and sentence imposed by the Trial Court on the Accused are liable to be set aside."
[Emphasis added] [9] Mr. S Ghosh, learned Addl. P appearing for the state has at the outset submitted that the prosecution has established the charge with sufficient evidence and conforming to the standard. Mr. Ghosh, learned Addl. PP has submitted that age of the victim has not even been challenged by the appellant in any Page 7 of 18 manner. For this purpose, he has referred the cross examination carried out by the defence and contended that not a single question was put to PWs2 and 4 in that regard. PW-2 in particular has stated that at the relevant time his daughter was student of Class-I. PW-1, Dr Sudhir Debbarma who examined the victim on 16.01.2008 has clearly stated that "the victim was 7 years old. During examination of her private parts I found stain on her underwear. There was injury as well as blood on vulva and blood stain on clitoris. The vestibule was injured, fourchette was lacerated, posterior commissure was teared, labias had blood stain and angry looking. On pre-vaginal examination, I found that in vaginal orifice there was blood stain, hymen was teared, cervix presented blood stain, there was discharge of blood stain, vagina, mucous membrane was looking angry and blood stain was present, vaginal canal was teared and blood stain was present. After examination I opined that her private parts were raptured. She was raped. Period of injury was about 17 hours. Nature of injury was grievous." [10] Mr. Ghosh, learned counsel has pointed out that except the report PW-1 prepared on the basis of the medical examination of the victim, no part of the testimony of PW-1 has been contested in the cross examination. Mr. Ghosh, learned Page 8 of 18 Addl. PP has further contended that there cannot be any reason to disbelieve the victim inasmuch as the defence did not take any step to show that the victim (PW-3) had exaggerated or presented a tutored version in the trial. In response to the question that has been raised for absence of potency test and involvement of the appellant, Mr. Ghosh, has submitted that the report of Madras High Court cannot have any relevance in the present context inasmuch as nowhere the Madras High Court has held that in absence of the potency test the perpetrator of the offence cannot be convicted. Furthermore, Mr. Ghosh, learned Addl. PP has pointed out that the appellant was absconding immediately after the offence as would be evident from the testimony of PW-10 (the investigating officer) and the chargesheet which was filed showing the appellant as absconder. As such, the plea raised by Mr. Datta is of no substance inasmuch there has been no occasion for the investigating agency to produce him for the potency test.
For appreciating the submission to the counsel appearing for the appellant and the state, it would be apposite to make a meaningful survey of the evidence as recorded in the trial.
Page 9 of 18[11] PW-1, Dr Sudhir Debbarma had examined the victim on 16.01.2008 at Jirania Rural Hospital as the Medical Officer in connection with the aforesaid police case. The victim was examined following the proper protocol. His testimony has been extracted while recording the submission of Mr. Ghosh, learned Addl. PP. It is found that no cross-examination against his unambiguous statements was carried out.
[12] PW-2, Rabindra Debbarma being the father of the victim had lodged the ejahar and he has categorically stated that in the evening, the appellant took away his daughter from his house to a jungle along the Sankumarbari Road and committed rape upon her. After committing rape, the appellant came to their house with his daughter and PW-2 continued to say that the appellant had "assaulted me and my wife. Thereafter, fled away." His daughter was a student of Class- I. They took their daughter to the Jirania hospital on the following morning. Thereafter, he has testified in the trial that his daughter told him that the appellant after committing rape had inserted a bamboo stick in her vagina. On the following day, he had given the oral ejahar to the police officer of Jirania Police station which was reduced into writing at Jirania hospital by the said police officer. After the content of the said ejahar was read Page 10 of 18 over to him he put thumb impression thereon. He has further stated that the house of the appellant is adjacent to their house. There has been no meaningful cross-examination barring putting some suggestion to PW-2.Those suggestion were squarely denied by PW-2.
[13] PW-3, the victim testified in the trial and has categorically stated that she did know the appellant and the incident took place in certain year in the evening and on the day was Poushsankranti, but she could not tell exactly how many years ago, the incident took place. The victim has stated in the trial as follows:
"Accused by force took me in a jungle situated nearby our house. The accused tied my hands and legs, gagged my mouth and thereafter, committed rape upon me. After committing rape he brought me in my house and thereafter, he fled away. My grand father took me to the hospital at night time. The police brought me to Court and I narrated the incident to the Magistrate in the Court. I put my thumb impression in the said statement recorded by learned Magistrate. Police collected my wearing apparels. Accused Dilip Debbarma is present today in the Court. Witness identified the accused in the dock."
Except extending some suggestions which were denied by the victim, there had been no effort to confront the statement of the victim in a meaningful manner. [14] PW-4, Radha Rani Debbarma, mother of the victim has stated that in the evening of poushsankranit in certain year, the appellant took her daughter away into a nearby jungle and Page 11 of 18 committed rape on her. At that time, she was a student of Class-I. After sometimes, the appellant brought the victim to their house and fled away. After the appellant fled away, her daughter told her that the appellant committed rape on her. In the early morning of the following day, they took their daughter to the Jirania Hospital for treatment and the medical officer examined her during the time. As the witness of seizure, she identified the seized materials, panty, which was in the wearing of the victim at the time of commission of rape and the same was marked by the trial court as Exbt-M.O.1. During the cross- examination, only general suggestions were extended in respect of her statement in the trial. She has submitted that if hue and cry was raised that could be audible by the nearby houses. [15] PW-5, Sarat Debbarma has identified the appellant in the trial and stated that PW-4 had stated him that the appellant has committed rape on her daughter. In his presence, the panty(Exbt-MO.1)of the victim was seized and as a witness of seizure, he signed on the seizure list (Exbt-2). [16] PW-6, Sudhan Debbarma who was working as the Special Police Officer (SPO) in the Jirania Police Station stood witness to the seizure of Exbt-MO-1 and he signed the seizure list (Exbt-2). He had identified the panty (Exbt-MO-1) Page 12 of 18 [17] PW-7, Sukrai Debbarma, a witness from the neighbourhood came forward to state that in the evening of poushsankranti about 8 to 9 years ago, from the day of recording of his testimony i.e. 16.01.2016, he heard hue and cry of PW-2. He came out from his house and PW-2 told him the appellant had committed rape on his daughter. He saw blood oozing out from the victim's vagina. Thereafter, he has stated as under:
"I also noticed the bleeding injury on the vagina of the daughter of informant Rabindra Debbarma and I tried to stop the bleeding with napkin but failed. In the early morning we took her to the Jirania Hospital for treatment."
PW-7 identified the appellant in the trial. He had denied the suggestions as extended by affirming his statement he made in the examination-in-chief. But, he has admitted that he did not state to the investigating officer that PW-2 told him that the appellant had committed rape on his daughter. [18] PW-8, Pradip Bhattacharjee, a Sub-Inspector of police in Jirania Police on 16.01.2008 recorded the oral ejahar of PW-2 and he has testified in the trial that he read out the ejahar after writing and having satisfied to have been written correctly, PW-2 put his thumb impression on the said writing (Exbt-3). He had forwarded the said ejahar to the police station and the case was registered. He also identified by the FIR from (Exbt-4) filled Page 13 of 18 up by the Sub-Inspector, Ranjit Debbarma. But he could not provide GD entry No. based on which he reached to the Jirania Hospital.
[19] PW-9, Paloram Das an inspector police was the first investigating officer and he had visited the place of occurrence and the hospital where the victim was admitted. When he first met the victm, the victim was not found fit for making any statement but he had examined the parents of the victim (PWs 2 and 4) and recorded their statement on the day. He collected the vaginal swab and blood sample of the victim following the due process. On visiting the place of occurrence at Mohan Chandra Para, he prepared the site map with index (Exbts5-6). PW-9 has seized the panty which was in the wearing of the victim at the time of occurrence by preparing the seizure list (Exbt-2). He examined PWs 5 and 7. He had identified the seizure list (Exbt-7) by which the samples of vaginal swab and blood were collected from the hospital. He had sent those samples to the State Forensic Science Laboratory (SFSL), Narsingarh for examination on 28.01.2008. PW-9 had produced the victim before the Judicial Magistrate at Agartala for recording her statement under Section 164(5) of the CrPC. He had collected the medical examination report of the victim from Page 14 of 18 Jirania hospital on 06.02.2008. He has categorically stated that he conducted raid to arrest the appellant but the appellant was found absconding. For his transfer from the said police station, he had handed over the investigation records to the officer in charge.
[20] PW-10, Prabhat Shil took over the charge of investigation thereafter. He found from the case dairy that the appellant was not arrested. The medical report of the victim from the IGM hospital was yet to be collected. SFSL did not send their report. He had collected all those reports and made attempts to arrest the appellant but he was found absconding. He had identified the report of SFSL (Exbt-8 series) and the report of the medical examination of the victim but the said report was not admitted at his instance.
[21] PW-11, Dr. Subrata Kumar Pal was a medical officer in the IGM hospital on 16.01.2008 and was attached with the Department of Obstetrics and Gynecology of the said Hospital at Agartala. On that day, he had examined the victim who was referred from Jirania Rural Hospital. She was brought with history of rape committed around on 15.01.2008. After necessary examinations, she was admitted in the gynecology Page 15 of 18 ward for investigation and treatment. Thereafter, PW-11 has testified in the trail as follows:
"On examination I found (1)perineal tear (2) there was no active bleeding but there was presence of earlier bleeding clotted on the inner part of both thigh and perineum and (3) hymen was also found ruptured. I find no other external injury on her body and also no foreign body in her private parts. She was discharged from the hospital on 24.01.2008 with medical advice. This is the medical report prepared by me in my own hand writing which bears my signature. On identification the medical report is marked as Exbt-9 as a whole."
Surprisingly PW-11 has stated in the cross examination that the injury which was noticed by him may be caused other than rape also.
[22] The report of SFSL dated 04.02.2008 was taken on the evidence as it appears following the provisions of Section 293 of the CrPC and the defence did not raise any objection nor the defence had asked the court to call the forensic expert for examination. From the report dated 04.02.2008, it appears that on the panty (Exbt-B, marked by SFSL) a large dark stain area was noticed and that dark stain was blood. No seminal stain/spermatozoa of human origin could be found in the vaginal swab. From the serological report dated 04.0202008, it would appear Blood group of the victim was found to be "B" and the blood found in the panty was also human blood "B". On having scrutinized the medical examination reports(Exbt-1 series and Page 16 of 18 Exbt-9), it is found by this court that the testimonies of PW-1 and PW-11 have correctly reflected their respective opinion vis- à-vis their reports. To avoid repetition, the opinion of PWs 1 and 11 are not reproduced.
[23] Having appreciated the evidence, this court finds no difficulty in accepting the testimony of PW-3 inasmuch as by reading the evidentiary materials as a whole, it surfaces that she had the maturity and understanding in respect of duty of speaking the truth to the court. The plea as raised for the appellant that PWs 2 and 4 did not assert they had witnessed the appellant take away the victim is not acceptable for the reason that both PWs 2 and 4 have categorically stated that appellant brought the victim in the injured condition and after assaulting PW-2, he had fled from the place. The victim (PW-3) has categorically stated how he was taken away from her house by force to a jungle nearby and how the appellant had raped her and caused her further injuries by inserting a bamboo stick into her vagina. By the medical report, that statement has been corroborated. The reports have clearly observed that the vagina was brutally ruptured and injured. When the examination was carried out in the Jirania Rural Hospital, the wounds were bleeding. Even during the re-examination in IGM Hospital, Page 17 of 18 Agartala, the doctor found the clotted blood on those organs. Lebias were injured. Hymen was torn any angry (highly sensitive) and as such the medical reports have not only corroborated but also independently opined that the victim (PW-
3) was subjected to rape.
[24] The involvement of the appellant has been clearly established by PWs2, 3 (the victim) and PW4. No prudent person would disbelieve their testimonies inasmuch as those are so natural and corroborated by the testimonies of the witnesses from the negihbourhood. What Mr. Datta learned counsel had contended that for absence of potency test benefit must go to the appellant is without any substance inasmuch the appellant was absconding and he could not be arrested during the investigation. As such, he carrying out his potency test was not feasible, so far the case in hand is concerned. From the nature of the act, no less a beastial act, no prudent person would say that the appellant did not have potency to commit rape. So far the proof of kidnapping is concerned the evidence as laid down by the prosecution has clearly conformed to the requirement of section 361 of the IPC.
[25] It has been also proved that the victim was forced to have illicit intercourse. Thus, the ingredients of Section 366 of Page 18 of 18 the IPC are abundantly proved by the prosecution. When the victim was a child of 7 year of age at the time of occurrence, the question of consent is grossly irrelevant in the context of the case in hand. The victim of rape cannot be treated as accomplice. More so, in the present case, the victim was a child on the day of occurrence and she had been brutalized after taking away her from the lawful guardianship of her parents (PWs 2 and 4) . Thus, we do not find any reason to interfere with the finding of conviction and the order of sentence, even not on the ground of proportionality.
Having observed thus this appeal stands dismissed. The appellant shall serve out the remaining period of sentence.
Send down the LCRs forthwith.
JUDGE JUDGE Dipak