Tripura High Court
Sri Hiralal Roy @ Tinku vs The State Of Tripura on 9 July, 2020
Equivalent citations: AIRONLINE 2020 TRI 247
Author: S.G. Chattopadhyay
Bench: S. Talapatra, S.G. Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
Crl. A (J) 70 of 2019
BEFORE
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Sri Hiralal Roy @ Tinku,
son of Sri Dilip Roy,
Resident of-Jamircherra, P.O & PS: Manu
District- Dhalai Tripura.
---- Appellant(s)
Versus
The State of Tripura,
---- Respondent(s)
For Appellant(s) : Mr. S. Lodh, Adv.
For Respondent(s) : Mr. S. Debnath, Addl. P.P.
Date of hearing : 17.06.2020
Date of pronouncement : 09.07.2020
Yes No
Whether fit for reporting :
Judgment
[Per S.G. Chattopadhyay, J]
This appeal under Section 374(2) Cr.P.C. is directed against the judgment and order of conviction and sentence dated 27.06.2019 passed by the learned Special Judge, Dhalai Judicial District, Ambassa in case number (POCSO) 09 of 2016 whereby the convict appellant, Hiralal Roy @ Tinku was convicted and sentenced to Page 2 of 38 rigorous imprisonment for 10 [ten] years and a fine of Rs.15,000/- with default stipulation under Section 4 of the Protection of Children from Sexual Offences Act, 2012, in short, POCSO Act.
[2] Victim's father [PW-2] lodged the written information to the Officer-in-Charge of Manu Police Station in Dhalai judicial district on 29.09.2015 at about 06.40 pm alleging inter alia that on 8th February, 2015 at about 10 o'clock in the morning, his 12 [twelve] years' old daughter [victim] went to the nearby river for taking bath. While she was returning home after taking bath, 24 [twenty four] years' old appellant caught hold of her daughter and dragged her into the jungle where he committed rape on her and framed a video of his overt act by his mobile. After the incidence, the appellant threatened the victim that in case she divulged the incidence to anybody, he would kill her and her parents. In fear of the appellant, the victim remained silent for a long period. After the obscene video was circulated by the appellant, the informant and his wife came to know about the occurrence from their neighbors. When they asked their victim daughter about the incidence, she shared the details with her parents.
Page 3 of 38[3] Based on such information, Manu PS case number 021 of 2015 under Section 376(2)(i) read with Section 506, IPC and Section 4 of the POCSO Act, 2012, and Section 67B of the Information Technology Act, 2000, was registered against the appellant.
[4] Initially, the investigation was taken up by Sri Babul Das [PW-14], Inspector of Police and Officer-in- charge of Manu Police Station. During his part of the investigation, he examined the victim and her parents and came to know from their statements that on the date of occurrence the victim had gone to the river nearby her home for taking bath and while she was returning home, the appellant, having found her alone committed rape on her in the nearby jungle. He also shot her nude photographs and recorded an obscene video of the rape scene and after committing the offence he threatened the victim that he would kill her and her parents if it is disclosed to anyone by her. After the father [PW-2] of the victim heard the people in his neighborhood whispering about the incidence, he made a query to his victim daughter. She, then, unfolded the entire incidence to her parents. The accused appellant came to be arrested from his house on 29.09.2015.
Page 4 of 38[5] The statement of the victim [PW-3] was got recorded under Section 164(5) Cr.P.C. before the Sub- Divisional Judicial Magistrate at Kamalpur on 30.09.2015. Her statement is reproduced here under:
"About six to seven months ago, on a certain day in the morning at around 09- 09.30 hours, I went to the river side for bathing. On completion of bathing, I was returning to my house. During that time Tinku suddenly appeared on my way and gagged my mouth with his handkerchief and forcibly took me towards the road side jungle. After that he committed rape upon me. He threatened me not to disclose the matter to anyone, else he would kill my parents like anything. After committing rape, Tinku took photograph of my naked body and also recorded the video with his mobile phone. In addition, subsequently on several occasions he made attempt to allure me by showing money of 500 notes and 1000 notes and asked me to go to the jungle of river side for sexual intercourse. On refusal he again caused threat to me that he would attack and kill my parents. While going to my school he frequently disturbed me and proposed me for further sexual intercourse. His original name is Hiralal Roy."
[6] Sri Debasish Saha [PW-12] carried out the last part of the investigation and on completion of investigation, he filed charge sheet under Section 173 Cr.P.C against the accused appellant in the court of learned Special Judge, Kamalpur for having committed offences punishable under Sections 376 (2)(i) and 506, IPC, Section 4 of the POCSO Act, 2012 and Section 66 E of the Information Technology Act, 2000. But, the learned Special Judge framed charges against the accused Page 5 of 38 appellant only under Section 376 (2)(i) and Section 4 of the POCSO Act, 2012.
[7] Though the appellant was accused of violating the privacy of the victim by capturing the image of her private area and transmitting the same to other viewers by his mobile and even though after investigation of the case charge sheet was also filed against him for having committed offence punishable under Section 66 E, IT Act, 2000, the learned trial court framed no charge under Section 66 E, IT Act against the appellant. [8] The charges framed by the learned trial court against the appellant are as follows:
"Firstly, that you on 08-02-2015 at 10 a.m at Jamircherra under Manu Police Station committed rape on the victim [name withheld], a child aged 12 years and that you thereby committed an offence punishable under Section 376 (2) (i) of Indian Penal Code and within the cognizance of this court.
Lastly, that you on the above mentioned, date, time and place committed penetrative sexual assault on the victim, a child under the age of 18 years and that you thereby committed an offence punishable under Section 4 of Protection of Children from Sexual Offences Act, 2012 and within the cognizance of this Court.
And I do hereby direct that you be tried on the said charges."
[9] In order to bring home the charges against the accused appellant as many as 14 [fourteen] prosecution witnesses [PW1-PW14] were examined and Page 6 of 38 15 [fifteen] documents [Exbt.1-15] were relied upon by the prosecution. At the conclusion of prosecution evidence, statement of the accused appellant was recorded under Section 313 Cr.P.C. In answer, he pleaded innocence and false implication. Despite the opportunity having been afforded to him, no evidence was led on behalf of the appellant.
[10] On the culmination of trial, the learned trial judge having appreciated the evidence on record and the attending facts and circumstances of the case, found the appellant guilty of the charge of offence under Section 4 of the POCSO Act, 2012 and after conviction sentenced him to RI for 10 [ten] years and fine of Rs.15,000/- with default stipulation.
[11] Feeling aggrieved with this judgment and order of conviction and sentence, the appellant has challenged the findings of the learned trial court before us.
[12] We have heard Mr. S. Lodh, learned counsel appearing for the appellant and Mr. S. Debnath, learned Addl. P.P for the State respondent.
[13] The main contention raised by Mr. Lodh, learned counsel of the appellant is that the FIR of the case was filed by the father of the victim almost after 8 Page 7 of 38 [eight] months of the occurrence and the delay in lodging the FIR has not been explained properly. According to Mr. Lodh, learned counsel, such delay in filing the FIR has been fatal to the prosecution and the learned trial court has committed an error in not considering this matter. [14] Further contention on behalf of the appellant is that the age of the victim has not been proved and the conviction of the appellant under Section 4 of the POCSO Act without proof of the age of the victim is erroneous. According to Mr. Lodh, learned counsel, the age of the victim should have been proved in terms of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. In support of his contention he has referred to the decision of the Apex Court in Jarnail Singh Vs. State of Haryana reported in (2013) 7 SCC 263 wherein the Apex Court vide. Para 23 has held that even though the provision in Rule 12 is strictly applicable for determination of age of children in conflict with law, the rule should also be the basis for determination of age even of a child who is a victim of crime because there is hardly any difference, in so far as the issue of minority is concerned, between the child in conflict with law and a child who is a victim of crime.
Page 8 of 38[15] According to learned counsel of the appellant, in view of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and the principles of law enunciated by the Apex Court, in the case of Jarnail Singh (Supra), the prosecution should have proved the date of birth of the victim by producing the school certificate and only in absence thereof her birth certificate [Exbt.8] could have been proved. It is therefore, argued by the learned counsel of the appellant that trial court has committed an error by relying on Exbt.8 for determination of the age of the victim and as such the findings of the learned trial judge holding the appellant guilty under Section 4 of the POCSO Act, without legal proof of the age of the victim is grossly erroneous and unsustainable. [16] It is further argued by the learned counsel of the appellant that the victim, nowhere in her statement [Exbt.2(2)] made before the Sub Divisional Judicial Magistrate nor in her deposition recorded at the trial gave any specific date of occurrence whereas her father, [PW- 2], in his FIR [Exbt.11], has mentioned a specific date of occurrence. Learned Counsel of the appellant, therefore, urges us for not relying on the evidence of PW-2. [17] With regard to the medical evidence of Dr. Smt. Saheli Debnath [PW-13], it is argued by Mr. Lodh, Page 9 of 38 learned counsel of the appellant that the Doctor [PW-13] could not give a fair and unbiased opinion because the video contents allegedly seized by police was shown to the medical officer before she examined the victim. As such, she gave a report with a pre conceived mind. It is therefore, argued by learned counsel that the trial court should have discarded the medical report [Exbt.9] of PW-
13. [18] Further argument on behalf of the appellant is that the love affair between the elder sister of the victim and the appellant has been proved and it has also been proved that in order to prevent the elder sister of the victim from associating with the appellant, the parents of the victim kept her elder sister away from home at Ambassa and her enraged parents later entangled the appellant in a false case for avenging their grudge against him.
Learned counsel, therefore, contends that the trial court should have considered these facts and disbelieved the prosecution case.
[19] Finally, it has been contended by learned counsel that the accused has been implicated in a false and fabricated case and prosecution could not produce any neighbor of the victim or any independent witness Page 10 of 38 other than her parents and the official witnesses to support the prosecution version. Learned counsel therefore, urges us to allow the appeal by setting aside the judgment and order of conviction and sentence of the appellant.
[20] Mr. S Debnath, learned Addl. P.P representing the State respondent on the other hand has contended that the trial court's judgment is based on cogent evidence and sound reasoning which does not call for any interference in appeal.
[21] According to Mr. S. Debnath, learned Addl. P.P, it has been proved that the appellant committed rape on the victim and thereafter subjected her to persistent fear of injury to be committed to her and her parents which prevented the victim from disclosing the incidence for a quite long period of time. Further contention on behalf of the prosecution is that the parents of the victim and the victim herself has given a plausible explanation about the delay in lodging the FIR which was accepted by the trial court and as such the submission of the learned counsel of the appellant that the delay in lodging the FIR is not properly explained by the prosecution does not gain ground.
Page 11 of 38[22] Further contention of learned Addl. P.P is that the testimony of the victim corroborated by her statement recorded under Section 164 (5) Cr.P.C is absolutely clear and consistent which is further corroborated by the evidence of her parents, medical evidence and also the evidence of police investigator. Furthermore, she was subjected to a lengthy cross examination which could not impeach or embellish her evidence. According to learned Addl. P.P., the learned trial court after proper appreciation of evidence has rightly convicted and sentenced the appellant. [23] Mr. S. Debnath, learned Addl. P.P further contends that conviction in rape cases based on the sole testimony of the victim is not impermissible under the law and court may look for corroboration only when the court, in view of the given circumstances, finds that a conviction on the sole testimony of the victim without corroboration would be unsafe.
[24] Further argument on behalf of the prosecution is that in the Indian social setup no women would come out with a false allegation of rape as she is fully aware of its implications. In support of his contention, Mr. Debnath, learned Addl. P.P., has also relied on the decision of the Apex Court in Wahid Khan Vs. State of Page 12 of 38 Madhya Pradesh reported in AIR 2010 SC 1 wherein the Apex Court vide. Paragraphs 20 & 21 has held as follows:
"20. In this regard, the most celebrated observations of Justice Vivian Bose in the case of Rameshwar v. State of Rajasthan may be quoted :
"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge...."
21. It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom.
Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are.
[25] Under the premises aforesaid, learned Addl. P.P urges us for dismissing the appeal and maintaining the conviction and sentence imposed on the appellant by the learned trial court.
[26] We have noted above that the learned trial court after appreciation of evidence and considering the submissions of learned counsel representing the parties convicted and sentenced the appellant under Section 4 of Page 13 of 38 the POCO Act, 2012 which is under challenge before us. Therefore, the only issue to be decided in this case is whether, in view of the evidence on record and the attending circumstance of the case, the appellant can be held to be guilty of the offence punishable under Section 4 of the POCSO Act, 2012.
[27] Before dealing with the rival contentions of the parties, a brief discussion of the evidence of the prosecution witness would be appropriate. [28] We shall at the outset, discuss the evidence of the first informant of the case. PW-2 is the father [name withheld] of the victim who lodged the first information report at the Police Station. It is apparent on the face of the record that the PW is an illiterate day labourer who got his ejahar [Exbt.11] written by one Sri Prasenjit Das of Jamircherra in Manu and filed it at the Police Station after affixing his thumb impression thereon. During trial, he appeared in the witness box on 21.11.2017 and asserted in his examination in chief that about 2 [two] years back at about 09.30 am on a day, his victim daughter went to Manu river at 5 [five] minutes walking distance from their house for taking her bath. When she was returning home after taking bath, the appellant had forcibly taken her to the nearby jungle and Page 14 of 38 committed rape on her and owing to the persistent threat of the appellant his victim daughter never disclosed the incidence to the PW until he came to know about the incidence from his neighbors and enquired with his daughter about the truth of it. Having came to know about the overt act of the appellant committed to her daughter, the PW immediately lodged the complaint at the police station. About the age of his daughter he deposed that on the day of his deposition in court, she was 16 years old and a student of class VIII.
In his cross examination a suggestion was put to the PW that his elder daughter had love affair with the accused and when the PW came to know about the relationship of his elder daughter with the accused he sent his elder daughter to Ambassa and instigated her to file a false case against the accused and when his daughter refused to implicate the appellant in a false case the present case was filed by the PW against the appellant involving her younger daughter. The suggestion was denied by the PW. He also denied the suggestion that his daughter never told him that she was raped by the appellant.
We are of the view that evidence of PW-2 could not be shaken in cross examination and on a whole Page 15 of 38 his evidence appears to us to be very consistent and trustworthy.
[29] The victim [name withheld for protecting her identity] has been examined as PW-3. She deposed at the trial on 21.11.2017 and as stated by her on that day she was a student of class VIII in Bijoy Giri Dewan Para School at Manu where she studied from class I. She gave a very detailed description of what happened to her. It would be appropriate to produce the relevant extract of the assertion made out by her in her examination in chief which is as under:
"In the year 2015 in the month of February on a certain day at around 9 am I was coming back from the Manu river nearby our house after taking bath. At that time accused Hiralal @ Tinku dragged me to the jungle nearby the road after pressing my mouth with a handkerchief. I became senseless but I regained my sense after about 5 minutes. He removed my dress and took vide of my nude figure. He penetrated his penis in my private part. He also made videograph of the said scene. He threatened me that if I disclosed the incident to my parents he would kill my parents and me. I came back to the house but I did not disclose the same to my parents due to threat by the accused. Accused uploaded the scenery of rape in the internet. After a few days when my father came to know about the upload of incident in the net my father asked me about the said incident and I disclosed the same to him and my mother.
My father lodged the case and thereafter the police brought me in the court of Kamalpur for giving my statement. I narrated the incident to the Ld. Magistrate in the court and I put my signature in the statement recorded by the Ld. Magistrate.Page 16 of 38
The witness identified her signatures on the statement recorded by Ld. SDJM, Kamalpur on 30.09.2015 which are marked Exbt.2 and Exbt.2(1). The police also sent me in the hospital at Manu and the doctor examined me. After the incident the accused gave me threat showing a knife and told that he would kill me if I disclose the incident to anybody."
During the course of her deposition, the learned trial judge also asked her about her age and in answer to the query, the PW told the court that at the time of the incident she was a student of class VI and she was 13 years old at that time.
The PW was confronted with an incisive cross examination. The same question which was asked to her father [PW-2] about the relationship of her elder sister and the accused appellant was also put to her. She straightaway replied that she had no knowledge about any kind of relationship between her elder sister and the accused. She also told that her sister stayed at Ambassa for a considerable period of time to complete her study. It was however, admitted by the PW that she used to go to the house of the appellant to meet his sister Manasha but she stopped going there after the incidence had occurred to her. She also denied the suggestion that she once borrowed Rs.100/- from the accused and after she refused to refund the money, the accused had torn her Page 17 of 38 school bag. She also denied the suggestion that she was tutored by the police to give false statement before the Magistrate.
Having gone through her evidence, we have found that this young girl never submitted to the cross examiner. She boldly faced the cross examination and the statement made out in her examination in chief could not be shaken to any extent in her cross examination. Her statement appears to be very truthful inspiring our confidence therein.
[30] PW-4 is the mother of the victim. She [name withheld] gave her statement before the learned trial court on 21.11.2017 and she told that on the day on which she testified before the trial court, her victim daughter was a student of class VIII and she was 15 years old on that day. She gave corroborative support to the evidence of her husband [PW-2] and her victim daughter [PW-3]. She deposed that one day when her husband after returning from the market told her that he heard the local people whispering that the appellant had committed rape on her daughter and the video of the rape scene was uploaded in internet. She then asked her victim daughter about the incident. Her daughter then told her that the accused committed rape on her while Page 18 of 38 she was returning home after taking bath in the nearby river. The PW also asked her daughter as to why she did not disclose the incidence to her. In reply, she told that the appellant put her under threat that if she disclosed the incidence he would kill her and her parents. Thereafter her husband reported the matter to police.
In her cross examination, a suggestion was put to the PW that her family had inimical relationship with the family of the accused and it was denied by her. She was also asked the same question about the relationship between her elder daughter and the appellant which was also asked to her husband [PW-2]. She denied such relationship of her elder daughter with the appellant. She also denied the suggestion that her daughter did not tell her about the rape committed upon her by the accused.
It has appeared to us that the appellant made an abortive attempt to impeach her evidence in cross examination but he failed to shake her evidence to any extent. Nothing against the prosecution could be extracted from the PW. Rather, she strongly supported the prosecution case by a very consistent and bold statement. All the suggestions put to her on behalf of the accused were denied by her.
Page 19 of 38[31] Sri Nripesh Das [PW-5] had a tea stall at Manu. According to him on 29.09.2015 i.e. the day on which the FIR was filed, the PW attended Manu health centre to visit his wife who was admitted there. At about 9/10 pm on the day, blood sample of the victim was collected in his presence and his signature was obtained in the seizure list to make him a seizure witness. The PW told that he did not have any personal knowledge about the incidence which occurred to the victim.
His cross examination was declined on behalf of the appellant.
[32] Sri Rajib Nayek [PW-6] states in his examination in chief that he exchanged his mobile of Intex brand with his friend Sri Latush Tripura [PW-7]. Later Sri Latush Tripura sold out that mobile to one Sri Dipankar Chakma [PW-1]. Following the order of police, he collected the mobile from Sri Dipankar Chakma and it was seized by police in his presence vide. Seizure list [Exbt.1]. His signature [Exbt.1/1] was also procured on the seizure list.
In his cross examination, the PW asserted that he had came to know from the local people that elder sister of the victim had love affair with the appellant which was not liked by her parents. The PW, however, Page 20 of 38 failed to name the people from whom he had heard about the love affair of the appellant and elder sister of the victim. He also stated in cross examination that elder sister of the victim used to stay at Ambassa in the house of her maternal uncle.
[33] Sri Latush Tripura [PW-7] supported the evidence of Sri Rajib Nayek [PW-6] and asserted in his examination in chief that Rajib exchanged his Intex model mobile with him and subsequently he sold out the mobile to Sri Dipankar Chakma [PW-1] which was later seized by police. The PW identified the mobile at the trial and on his identification it was marked as Exbt.MO1. The PW also asserted in examination in chief that he came to know from his friend Sri Rajib Nayek [PW-6] that there was a rape scene video in his mobile.
In his cross examination the PW denied the suggestion that he did not sell the mobile to Dipankar and he also denied the suggestion that no rape scene was loaded in the mobile.
[34] The said Sri Dipankar Chakma who is stated to have purchased the mobile from Sri Latush Tripura has been examined as PW-1. He has admitted that he purchased the Intex model mobile from Sri Latush Tripura [PW-7] for Rs.600/-. Later on, on 01.10.2015, police Page 21 of 38 seized his mobile and prepared the seizure list [Exbt.1]. The PW also identified the mobile [Exbt.MO1] at the trial.
In cross, he denied the suggestion that his mobile was not seized by police.
[35] PW-8 is the maternal uncle of the victim who came to know from the father of the victim that the victim was raped by the appellant. Father of the victim sought for his advice after he came to know about the occurrence. The PW then advised him to report the matter to police. Both of them came to Manu police station and lodged the FIR against the appellant.
In his cross examination, the PW denied the suggestion that the father of the victim did not tell him that his daughter was raped by the appellant. [36] Sri Sumit Sinha [PW-9] is a neighbor of the victim. He deposed at the trial on 22.11.2017 and stated in his examination in chief that about one and half years back he came to know that the appellant had sexual relationship with the victim which occurred near Manu river.
In his cross examination, the PW was suggested that he did not hear any incident of rape. It was denied by the PW.
Page 22 of 38[37] Sri Tapan Debbarma [PW-10] was the Sub Divisional Judicial Magistrate at Kamalpur on 30.09.2015 and on that day, he recorded the statement of the victim [PW-3] under Section 164 (5), Cr.P.C. On his identification the statement of the victim was taken into evidence and marked as Exbt.2(2).
The PW was not subjected to any cross examination.
[38] Sri Newton Jamatia [PW-11], a Sub Inspector of Police, stated in his examination in chief that he received one memory card from the Investigating Officer of this case and he developed a CD from that memory card in connection with the present case against the appellant. The CD contained obscene photographs of the appellant and the victim which was later seized from him by the Investigating Officer.
In his cross examination, he admitted that he did not certify that he developed the CD. He, however denied the suggestion that the CD was not developed by him from the memory card and that it was not seized from his possession.
[39] Sri Babul Das [PW-14], who carried out the first part of investigation of the case stated in his examination in chief that as the Officer-in-Charge of Manu Page 23 of 38 police station, he received the FIR from PW-2 and registered the case on 29.09.2015. During his part of the investigation he examined the victim and recorded her statement under Section 161, Cr.P.C. and also arrested the accused from his house on the same day. He also seized the mobile phone from the possession of the appellant. During his part of the investigation he also got the victim medically examined and got her statement recorded under Section 164 (5), Cr.P.C. After collecting the biological samples from the victim as well as from the accused in hospital he sent the same to State Forensic Science Laboratory for Forensic examination and thereafter he handed over the case docket to his successor investigator Sri Debasish Saha [PW-12]. [40] Sri Debasish Saha [PW-12] has stated in his examination in chief that he carried out the last part of the investigation and submitted the charge sheet against the appellant. During his part of the investigation the PW seized the birth certificate [Exbt.8] of the victim which indicated that age of the victim on the day of the occurrence was only 11 years 11 months and 16 days. He had also procured the video footage containing the rape scene from the mobile seized by his predecessor IO [PW- 14] and on identification of the same by the victim in Page 24 of 38 presence of her mother he gave it to PW-11 to get the video footage transferred to a CD. After the CD was developed by PW-11 he seized the CD from PW-11 which was marked on his identification as Exbt.MO1.
The PW was cross examined on behalf of the accused and in his cross examination he stated that PW- 11, Sri Newton Jamatia who developed the CD did not issue any certificate under Section 65 B of the Evidence Act. He was suggested by the cross examiner that his investigation was perfunctory which was denied by the PW. Nothing more could be extracted from the PW during his cross examination.
[41] Dr. Smt. Saheli Debnath [PW-13] is the medical officer who examined the victim in Manughat health centre on 29.09.2015. On examination of the victim, the PW found that her hymen was ruptured. No injury in her sexual organ was found by the PW. She gave the following opinion in her report [Exbt.9]:
"Her hymen is ruptured. It has been found that sexual intercourse might be done".
In her cross examination, the PW denied the suggestion that she submitted a mechanical report. [42] Now, We shall first deal with the submission of learned counsel of the appellant with regard to the age of the victim. Undoubtedly in the given context, the age is Page 25 of 38 very relevant because the appellant has been convicted and sentenced under Section 4 of the POCSO Act, 2012. Therefore, it has to be proved that she was a child in terms of Section 2(d) of the POCSO Act on the date of occurrence. Having considered her birth certificate [Exbt.8], the learned trial judge held that the victim was 12 years' and 17 days' old when the offence was committed to her and as such she was considered to be a child in terms of clause (d) of Section 2 of the POCSO Act, 2012. The relevant extract of the findings of the learned trial judge is as under:
"PW 2 (the father of the victim and the informant of this case) deposed that victim was 16 years and she was reading in Class-VIII (on the date of his deposition). PW 3 is the victim of this case. During her examination she deposed that her age was 16 years.
PW 4 (mother of the victim) also deposed that victim was 15 years old at the time of her deposition. On perusal of the evidence of PW 12 (the 2nd I/O) it appears that he seized one Birth Certificate of the victim girl issued by the Additional District Registrar (Birth & Death), Longtharai Valley Sub-Division, Chailengta, District- Dhalai (Exbt.8) wherein it revealed that the Date of Birth of the victim is on 22-02- 2003. The birth certificate was issued by the Additional District Registrar (Birth & Death), Longtharai Valley Sub-Division, Chailengta, District-Dhalai is a public document and relevant under Section 35 of the Indian Evidence Act, 1872. The defence did neither dispute regarding the authenticity of the aforesaid Birth Certificate (Exbt.8) nor the date of birth of the victim girl mentioned in the aforesaid Birth Certificate. So, we may rely upon the date of birth mentioned in the Birth Certificate (Exbt.8) issued by the Page 26 of 38 competent authority. On perusal of the record it reveals that the occurrence was taken place on 08-02-2015 and as per the Birth Certificate (Exbt.8) the date of birth of the victim girl is on 22-02-2003. On calculation of her age it appears that on the date of occurrence she was 12 years and 17 days of age. Certainly the victim girl is under the age of 18 years and therefore, she was child as defined U/S. 2(d) of the POCSO Act, 2012."
[43] As we have noted above, learned counsel of the appellant has challenged the above finding of the learned trial judge on the ground that Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 was not considered by the learned trial judge for determination of the age of the victim and as such his finding about the age of the victim is erroneous. Learned counsel of the appellant has relied on the decision of the Apex Court in the case of Jarnail Singh (Supra) in support of his contention wherein the Apex Court on the issue of determination of age has viewed that even though Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 is strictly applicable only for determination of the age of a child in conflict with law, the provision of Rule 12 should also be the basis for determination of age, even of a child who is victim of a crime, because there is hardly any difference, in so far as the issue of minority is concerned, between the child in conflict with law and a child who is a victim of crime. Page 27 of 38 [44] We have considered the submission of learned counsel and the evidence on record in the light of the law enunciated by the Apex Court in the judgment cited above. Rule 12 does not prohibit the court from considering the birth certificate for determination of age. Sub rule (3) of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, has prescribed three types of documents in order for preference under clause a(i), a(ii) and a(iii) to be considered by the court or the juvenile justice board, as the case may be, for determination of age of a juvenile in conflict with law. In the case in hand, the victim did not reach upto the matriculation stage. Therefore, the question of relying on her matriculation certificate as in clause a(i) of sub rule (3) of Rule 12 for determination of her age does not arise. In the prescribed order of preference under sub rule (3) of Rule 12, the next document which comes for consideration under clause a(ii) is the school certificate containing date of birth. In absence of such school certificate, court may rely on the birth certificate given by a Corporation or Municipal Authority or Panchayat as in clause a(iii) of sub rule (3) of Rule 12. In this case, prosecution has not produced any school certificate issued from the school of the victim containing her date Page 28 of 38 of birth and instead of it her birth certificate [Exbt.8] issued by a statutory authority viz. the Additional District Registrar (Birth and Death) of Longtharai Valley Sub- Division has been adduced as proof of the age of the victim which is a public document in terms of Section 74 of the Indian Evidence Act and the entry therein with respect to the age of the victim is relevant under Section 35 of the Evidence Act. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 does not debar the court from relying on such birth certificate in absence of a certificate issued from the school. [45] Moreover, the mother of the victim who appeared in the trial court on 21.11.2017 for giving evidence as PW-4 categorically stated that her daughter was 15 years old and a student of class-VIII on the date of her deposition i.e. on 21.11.2017. The evidence of the mother [PW-4] thus, corresponds to the date of birth of the victim recorded in her birth certificate [Exbt.8]. [46] It goes without saying that there cannot be better evidence than the evidence of the mother about the age of her child and where the mother supports the age of the victim as recorded in her birth certificate [Exbt.8] there cannot be any doubt about the reliability of the document. Moreover, the evidence of the mother Page 29 of 38 [PW-4] with regard to the age of her daughter is not also disputed in her cross examination.
[47] Had it been a certificate issued from her school instead of the birth certificate issued by the Registrar (Birth and Death), in all probability the same date of birth would have been recorded in the certificate because the source of entry of the information with regard to the age of the victim would have been the same. It would have been either the mother or the father of the victim. The father [PW-2] in his evidence told that the victim was 16 years old and a student of class VIII on 21.11.2017 on which the PW gave evidence in court. Even, if we go by the evidence of PW-2, the victim was a minor on the date of occurrence and near to the age recorded in her birth certificate. In these circumstances we find no merit in the submission of learned counsel of the appellant and hold that the learned trial court correctly decided the victim to be a child on the basis of her birth certificate [Exbt.8] supported by the evidence of her parents.
[48] As regards the contention raised by Mr. Lodh, learned counsel of the appellant, about the delay in lodging the FIR, we are of the view that the delay has been properly explained by the prosecution witnesses as Page 30 of 38 the victim girl was under persistent threat to be killed by the appellant. In her examination in chief, the victim [PW-3] has categorically asserted that the appellant after committing rape on her threatened her that if she disclosed the incident to her parents he would kill her and her parents. Moreover, as stated by the victim [PW-3], the appellant also terrorized her by showing her a knife. Obviously, she was at a very tender age and she must have felt terrorized by such threatening of the appellant. Only when her parents after knowing about the incidence from some of their neighbors asked her about the incident, she shared the details of her trauma right from the date of the occurrence with her parents and on that very day the father of the victim reported the matter to police and a case was registered against the appellant. [49] It assumes a great importance that the testimony of the victim in this regard is absolutely free from exaggeration and embellishment. Her father [PW-2] has also given a plausible explanation as to why the FIR was lodged belatedly. The Apex Court in Harbans Kaur & Anr. Vs. The State of Haryana reported in (2005) Cri.LJ 2199 has held that even long delay can be condoned if the witnesses are found to have no motive of implicating the accused and have given a plausible reason of belated Page 31 of 38 reporting. In the case of Harbans Kaur & Anr. (Supra) the Apex Court has held as follows:
"7.............There cannot be any generalization that whenever there is a delay in lodging the FIR, the prosecution case becomes suspect. Whether delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case, would depend upon the facts of each case. Even a long delay can be condoned if the witnesses have no motive of implicating the accused and have given a plausible reason as to why the report was lodged belatedly. In the instant case, this has been done. It is to be noted that though there was cross- examination at length, no infirmity was noticed in their evidence. Therefore, the trial Court and the High Court were right in relying on the evidence of the prosecution witnesses."
[50] In the given case, accused appellant made an abortive attempt to confuse the mind of the trial court by projecting a defence case of inimical relationship between the appellant and the victims' family resulting from the love affair between the appellant and the elder sister of the victim. The victim and her parents had straightaway denied such relationship between the elder sister of the victim and the appellant. Their evidence have falsified the defence story. No animosity of the victims' family towards the appellant suggesting a false and fabricated FIR stands established. In these circumstances, we are unable to accept the contention of the learned counsel that unexplained delay in lodging the FIR has thrown a cloud of suspicion on the prosecution case. In our considered Page 32 of 38 view, the delay has been reasonably explained without impairing the prosecution case.
[51] The next issue for our consideration is whether the accused committed penetrative sexual assault on the victim [PW-3] and thereby committed an offence punishable under Section 4 of the POCSO Act, 2012.
[52] The victim [PW-3] has given a very clear, consistent and cogent evidence in support of the prosecution version. We have already discussed her evidence in the preceding paragraphs. She has categorically asserted in her examination in chief that when she was returning home after taking bath in the Manu river, the accused caught hold of her and dragged her into the nearby jungle by gagging her with his handkerchief. Thereafter, he disrobed her and videographed her nude pictures. Then, he penetrated his genital organ into her private part and also videographed the scene on his mobile. She was threatened to be killed by the accused in case the incidence was divulged by her to her parents. The tender aged girl having been terrorized by the appellant did not open her mouth in fear for long time. Only after the obscene video was circulated by the appellant, her parents came to know about the Page 33 of 38 incidence and asked her about the truth of it. She then shared the details with her parents. Immediately her father reported the matter to police and thereafter she was taken to hospital for her medical examination. She was also taken to the Magistrate [PW-10] for recording her statement under Section 164 (5), Cr.P.C. [53] We have noted that, the appellant had projected a very inconsistent defence case. While cross examining the victim, the appellant tried to project that the victim had borrowed Rs.100/- from him and since she did not refund the money the accused had torn her school bag. The appellant wanted to indicate that this incidence enraged her and prompted her to give false evidence against him.
[54] Again, from the trend of cross examination of the mother [PW-4] of the victim it has come to light that the appellant tried to make out an altogether different defence case that he had love affair with the elder sister of the victim and the parents of the victim did not like it and in order to prevent their daughter from associating with the appellant, they had to send her to Ambassa and subsequently they filed a false case against the accused to teach him a lesson out of their grudge against him. Similar case was projected during the cross examination Page 34 of 38 of the father [PW-2] of the victim. But, the appellant did not stick to this defence version in his examination under Section 313, Cr.P.C. His statement recorded under Section 313 Cr.P.C demonstrates that he had chosen the mode of complete silence and simply pleaded innocence and false implication. From the stand taken by the appellant it is crystal clear that he tried to get absolved from the guilt by stating falsehood and resorting to contrivances which is a clear indication of his guilty mind. [55] We have also noticed that immediately after the matter was reported to police, the victim was produced before the learned Sub Divisional Judicial Magistrate [PW-10] at Kamalpur. The tender aged girl gave before the Magistrate a very vivid description of what happened to her and it is quite remarkable that she gave her statement before the Magistrate under Section 164 (5), Cr.P.C on 30.09.2015 which has minutely corroborated her deposition made before the trial court at a lapse of 2 years. It proves that she was so deeply scarred by the horrifying incident that it had left an everlasting impression in her mind. Her evidence is so convincing that it is enough for drawing up the conclusion about the guilt of the accused. However, additional assurance is lent to the truthfulness of the prosecution Page 35 of 38 version by other witnesses by way of providing corroborative support to her evidence.
[56] The medical examination of the victim was done by Dr. Saheli Debnath [PW-13] on 29.09.2015 immediately after the matter was reported to police and on medical examination Dr. Debnath [PW-13] found that the hymen of the victim was ruptured and according to her the ruptured hymen supported the probability of sexual intercourse with her. It had been argued on behalf of the appellant that her report was not free from bias because she subjected the victim to medical examination after police had shown the video footage of the rape scene to her which according to learned counsel of the appellant must have biased the medical officer and prevented her from giving true and fair report. There is no merit in the submission of learned counsel because her finding about the ruptured hymen had no connection with the showing of the video footage to her. This visible bodily injury of the victim would have been same and reflected in her report, even if the video footage was not shown to her.
[57] As we have noticed, the evidence of the victim is absolutely clear, consistent and trustworthy and free from any kind of exaggeration and embellishment. Page 36 of 38 Her unembellished deposition made at the trial corroborated by her statement [Exbt.2(2)] recorded by PW-10 under Section 164 (5) of the Cr.P.C has convinced us about its trustworthiness. The medical evidence of PW- 13 also supports the case of penetrative sexual assault on this tender aged girl because her hymen was found ruptured and no other probable cause of ruptured hymen was brought to light except the penetrative sexual assault.
[58] Parents of the victim [PW-2 and PW-4] whose evidence, we have already discussed in detail, have also supported the fact that their victim daughter had shared with them the details of the incident which occurred to her. Both of the PWs have stated that while their daughter was returning home after taking bath in Manu river, the accused caught hold of her and committed rape on her. Initially, they did not know anything but when the neighbors were found whispering on the issue, the father [PW-2] asked his daughter about the incidence and came to know everything from his daughter. PW-4 also supported the evidence of her husband [PW-2]. Their evidence could not be impeached in cross examination to the slightest extent. The delay in reporting the matter has also been properly explained by the witnesses. The Page 37 of 38 defence which has been taken by the accused appellant is absolutely lame and improbable. His case that the parents of the victim falsely implicated him because he maintained a love affair with the elder sister of the victim against their consent does not stand to reason because it is quite unbelievable that the parents would have exposed their tender aged daughter to sexual scandal putting her future at stake by lodging a false case. No vengeance or animosity of the victim's family towards the appellant has been proved. Rather, it has been proved that the victim used to go to the house of the appellant to meet his sister Manasha who was her friend and after the occurrence she stopped going there. This is a very natural statement of the victim [PW-3] and it is quite difficult to disbelieve such statement. Moreso, because the statement was not disputed in cross examination of the victim. [59] A close analysis of the evidence on record and the attending facts and circumstances has unequivocally established the guilt of the appellant. We are of the considered view that the learned trial court after careful consideration of the case and proper appreciation of evidence held the appellant guilty of the offence punishable under Section 4 of the POCSO Act, 2012 and on his conviction appropriately sentenced him for the Page 38 of 38 offence after hearing the convict and assigning adequate reasons. Resultantly, the appeal stands dismissed. [60] Before parting with the case, we consider it appropriate to add a note of appreciation for the learned trial judge who did not forget to award compensation to be paid to the victim under the State Victim Compensation Scheme in terms of Section 357A, Cr.P.C. The District Legal Services Authority, Dhalai Judicial district will recommend adequate compensation for payment to the victim within the parameters of the said Scheme within a period of 1 (one) month from today, unless such recommendation is already made. For this purpose, a copy of this judgment be sent to the Member Secretary, Tripura State Legal Services Authority from the Registry of the High Court immediately.
Send back the LC record.
JUDGE JUDGE Rudradeep