Tripura High Court
Shri Sushanta Banik vs The State Of Tripura on 29 September, 2021
Author: Arindam Lodh
Bench: Akil Kureshi, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J) 14 OF 2020
Shri Sushanta Banik,
S/o Sri Sanjib Banik,
R/o village Jatanbari, P.S. Natunbazar,
District-Gomati Tripura
----Appellant
Versus
The State of Tripura.
----Respondent
For the appellants : Mrs. Sarama Deb, Advocate
For the respondent : Mr. Sumit Debnath,
Additional Public Prosecutor
Argument heard on : 08.09.2021
Judgment & Order delivered on: 29.09.2021
Whether fit for reporting: Yes.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR.JUSTICE ARINDAM LODH
Judgment & Order
(Arindam Lodh, J)
In a sessions trial, the appellant was convicted and sentenced to suffer rigorous imprisonment for 10 years for committing offence under Section 4 of the Protection of Children from Sexual Offences (for short, „POCSO‟) Act along with a fine of `10,000/- and rigorous imprisonment for 3 years for committing offence under Section 354D of the Indian Penal Page 2 of 56 Code (for short, „IPC‟) along with a fine of `2000/- with default stipulations in connection with Case No. Special 3 (POCSO) of 2016. The appellant has been in jail w.e.f. the date of pronouncement of the judgment and order of conviction and sentence dated 17.12.2019.
2. Prosecution case, as reproduced by the learned Special Judge is as under:
"The prosecution case in a nutshell is that on 25.02.2016 Smt. "D" (name withheld to protect her identity), aged 16 years, daughter of Sri Mitrijoy Tripura of Gomtibari (Mandirghat), P/S Natunbazar, (residing in the Govt. quarter of her sister‟s husband), lodged a written ejahar with the Officer-in-Charge of Natunbazar Police Station alleging that on 22.02.2016, Monday, at about 8.00 p.m. she and her two classmates went out from the quarter to attend private tuition. When they reached near the Syndicate at Jatanbari, the son of Sanjib Banik namely, Sushanta Banik obstructed their way and drove away her two companions by threatening them with glass bottle. Thereafter, Sushanta took her behind the girls‟ hostel by grabbing her hand and committed rape on her. Thereafter, the accused threatened her that if she disclosed the incident to anybody he would kill her. After reaching the quarter, she did not disclose the incident to anybody out of fear and shame. On the next day i.e. 23.02.2016 at about 1.00 p.m. in the afternoon she was returning from her School towards her quarter and on the way said Sushanta Banik along with 3/4 unknown persons came with a Maruti Vehicle and asked her to board the vehicle. Seeing the accused and his partners she got scared and started running towards her quarter. After she reached the quarter the miscreants left after waiting for some time. The number of the said Maruti vehicle was TR-03-F-0589 and the door of the vehicle was open. It was further alleged in the ejahar that due to the fear of the accused persons it became impossible for her to come out on the road. She further stated in the ejahar that as the 3/4 partners of Sushanta were unknown to her they could be identified if Sushanta was arrested.Page 3 of 56
On receipt of the ejahar, the O/C, Natunbazar P/S registered NTB P/S FIR No.07 of 2016 under Sections 341/376 of IPC and Section 4 of the POCSO Act and endorsed the case to SI Ramendra Debbarma for investigation.
During investigation, the I/O arranged for recording of the statements of the victim and witness Smt. Jesmine Debbarma by the Magistrate under Section 164 of Cr.P.C. The I/O visited the P.O. and prepared hand sketch map with index and seized the material witnesses and recorded their statements under Section 161 of Cr.P.C. and also arranged for medical examination of the victim and collected the medical examination reports. The I/O also collected the FSL report. On completion of investigation, the I/O submitted charge-sheet against the accused person namely, Sushanta Banik under Sections 341/376/506 of IPC and Section 4 of the POCSO Act and added Section 354D(1)(i) of IPC and Section 3(xi) and 3(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and against accused persons namely, Tutan Das, Indra Bahadur Rai and Bhushan Das under Section 354D(1)(i) of IPC.
On receipt of the charge sheet cognizance of offence was taken on 14.06.2016 under the aforesaid Sections of law and the accused persons were supplied with copies of incriminating police papers."
3. With the commencement of trial, the learned Special Judge had framed charges against the accused Sushanta Banik under Section 4 of the POCSO Act, Section 354D(2)/506 read with Section 34 of IPC and Section 3(x)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act,1989.
4. Separate charge was framed against the accused persons namely Tutan Das, Indra Bahadur Rai and Bhusan Das under Section 354D(2) read with Section 34 of IPC. The contents of the charges were Page 4 of 56 read over and explained to the accused persons in Bengali to which they pleaded not guilty and claimed to be tried.
5. In course of trial, the prosecution had examined as many as 25 witnesses to substantiate its case. The witnesses included the victim, her father, relatives, forensic expert, medical officer, police officers and judicial officers who conducted T.I. parade and recorded statements of the victim under Section 164 of CrPC and on closure of prosecution evidence, the accused persons were examined under Section 313 CrPC in which they denied the veracity of the incriminating evidence against them and also declined to adduce any defence evidence.
6. The learned Special Judge had observed that the defence case of the accused persons which could be gathered from the trend of cross- examination and the examination of the accused persons under Section 313, CrPC was of simple denial and false implication.
7. We have heard Mrs. Sarama Deb, learned counsel appearing for the accused-appellant (here-in-after referred to as „accused‟) and Mr. S. Debnath, learned Addl. P.P. appearing for the State-respondent.
8. Mrs. S. Deb, learned counsel appearing for the accused has submitted that the learned Special Judge ought to have acquitted the Page 5 of 56 accused on the ground that there were several discrepancies and improvements as well as exaggerations as surfaced in the depositions of the prosecution witnesses. Learned counsel of the accused strongly argued before this court that the prosecution had miserably failed to establish the ingredients constituting an offence of „rape‟. She pointed out that the victim „D‟ appearing to depose as PW-19 stated that she did not disclose anything to her sister (PW-4) and others who were on search of her on that evening, though, the accused was just close to her. But PW-4 in her evidence had deposed that when she along with others on search on that evening found her victim sister and on being asked, her victim sister told that the said boy had raped her inside a pump house and also gave some slaps on her cheek. The learned counsel had tried to persuade us inviting our attention to the statements made by the victim girl (PW-19) before the Judicial Magistrate who recorded her statements under Section 164 of CrPC wherein she disclosed the name of the boy who raped her as 'Raj', but, that „Raj‟ was never prosecuted by the prosecution. According to her, there was no relation between the present accused and that of „Raj‟. The prosecution had failed to relate the accused Susanta Banik, the appellant herein with that of „Raj‟.
Page 6 of 568.1 Learned counsel further submitted that the medical evidence did not support the prosecution case. The wearing apparels were seized, but, there was no evidence of spermatozoa or any materials of human origin. Learned counsel for the appellant contended that the age of the victim girl had not been proved and at the time of the incident, she ought to have considered to have attained the age of majority. Further, according to learned counsel, the learned Special Judge in his judgment had wrongly considered the age of the victim „D‟ as 16 years as she never made any such statement during recording of her evidence. Learned counsel Mrs. Deb invited our attention to the cross-examination of Dr. Sourav Bhowmik (PW-24) wherein he stated that the victim girl was above 17 and below 25 years on the basis of the presence of 3 rd molar teeth on both right and left lower jaw.
9. Per contra, Mr. Debnath, learned Addl. P.P. strongly defended the judgment and order of conviction and sentence imposed by the learned Special Judge upon the accused. Learned Addl. P.P. submitted that during test identification parade the accused was identified by the victim „D‟ that he committed rape. Learned Addl. P.P. further submitted that PW-1 and PW-11 categorically deposed that the accused Sushanta Banik detained them on their way to the house of private tutor along with their friend Page 7 of 56 victim „D‟. They were threatened by the accused and then committed rape upon victim „D‟. Learned Addl. P.P. defended the finding of the learned Special Judge that the victim „D‟ was aged at 16 years at the time of the offence. Proceeding further, learned Addl. P.P. contended that both medical and forensic examinations had established sexual assault upon the victim „D‟. Learned Addl. P.P. emphasized that the evidence of victim girl regarding commission of offence of rape by the accused remained unshaken and inspired confidence.
10. We have given our thoughtful considerations to the rival submissions advanced by the learned counsels appearing for the parties.
11. To determine the validity and legality of the judgment and order of conviction and sentence, passed by the learned Special Judge against the accused, let us first analyze the relevant witnesses on the basis of whose evidence, the accused was held to be guilty of committing offence of rape upon the victim „D‟. According to us, it would be most useful to look into the evidence of victim „D‟, PW-19 at the outset. She deposed that on 22.02.2016 at about 8-00 pm, she along with her friends Bindu Rani Tripura (PW-1) and Sadhe Rani Tripura (PW-11) were going to take private tuition. On their way, the accused obstructed them and took her forcibly near the Ggirls‟ Hostel and her friends being threatened had left Page 8 of 56 the place. Thereafter the accused committed rape upon her. She further deposed that -"I did not tell this incident to anybody due to shame. At that time I was residing in the government quarters of my elder sister. I did not tell it to her also due to shame." Thereafter she deposed that on the next day i.e. 23.02.2016 while she was returning to house from school on foot along with PW-1 and PW-11, the accused along with other 3/4 persons approached them with a Maruti vehicle and asked her to stop. But, she did not stop and went to the house. She further deposed that she lodged the complaint after one month. However, she rectified herself that she lodged the complaint on 25th. She was examined by the doctor after filing the case. She gave statement to the Magistrate. She identified the ejahar which was written by another person. She also identified her signature in her statement recorded under Section 164 CrPC (Exbt.9/3). She also identified her signature in the memo of T.I. parade (Exbt.1/2). She deposed that she knew Sushanta Banik earlier.
11.1 Being confronted with cross-examination, PW-19 deposed that she gave statement to the Magistrate in Bengali, which was recorded in English and she was brought to the T.I. parade by the I.O. of the case when she specifically identified the accused person. She further stated that the I.O. was not with her but later on, she said that the I.O. was present at the Page 9 of 56 time of identification. She washed her clothes on the next day of the incident which was wearing at the time of incident. On being asked, in cross-examination whether she told the name of Sushanta Banik in the statement recorded under Section 164 of CrPC before the Magistrate, she took a long pause and did not say anything. However, on perusal of the statement the name of „Sushanta‟ was not found therein but one „Raj‟ is mentioned there. On being further asked and confronted with the cross- examination whether she told in 164 CrPC statement that two friends namely Bindu Rani Tripura (PW-1) and Sadhe Rani Tripura (PW-11) were present with her, she took a long pause and did not say anything. On perusal of the statement, it was found that there was no mention of two friends Sadhe Rani Tripura and Bindu Rani Tripura, but, it was mentioned as „other two friends‟. On being asked and confronted whether she told the names of her friends with whom she was coming, she again took a long pause during cross-examination and did not say anything. Further, it was mentioned in 164 CrPC statements as „when I was returning home‟. She denied the suggestion that her age was not 17 years or she was more than 20 years at the time of trial.
11.2 During cross-examination, PW-19 further stated that she could not say exactly what was written in the complaint she lodged before the Page 10 of 56 police station. She denied the suggestion put forth by the defence that she had identified the accused Sushanta as Sukanta on being influenced by her brother-in-law.
12. Next important witness is PW-1, Mrs. Bindu Rani Tripura. She deposed that the victim „D‟ was known to her and on 22.02.2016 at about 7:00 pm she along with her friend „D‟ and Sadhe Rani Tripura (PW-
11) was going to the house of private tutor, and at the back side of Jatanbari Hostel, Sushanta Banik appeared there with a motor cycle and took the victim „D‟ with him against her will. They tried to resist Sushanta, but, under threat they could not proceed further. She further deposed that she along with Sadhe Rani returned to their houses and then she informed the matter to the wife of her brother. Thereafter, the wife of her brother asked her to search for the victim. Then, she along with one Kalpa Mohan Tripura, PW-2(brother of the victim) and PW-1 went out to search victim. When they came out from their gate, they found Sushanta Banik was coming there with victim on foot. At that time, they asked the victim as to what happened, but, the victim did not tell anything to them and went to her home.
12.1 Deposing further, PW-1 stated that till the date of deposition, the victim did not disclose to her anything more. PW-1 further deposed that Page 11 of 56 on the following day, at about 12:00 pm, in the noon, she along with the victim and PW-11 were returning to their home from School and at that time the accused Sushanta Banik along with two other persons appeared near United Bank of India with a Maruti Van and obstructed their way. She deposed that the names of the other two persons were not known to her, but, she would be able to identify them by face. Then, she along with the victim and PW-11 returned to their respective houses running out of fear. She deposed that they did not know the name of Sushanta Banik earlier, but, on 23.02.2016 in the noon when they rushed to their home, at that time, the private tutor of nephew of PW-11 saw Sushanta Banik and told his name to them. After 3/4 days of the said incident, one day she was taken to Udaipur Jail by police and there she identified Sushanta Banik in a parade consisting of approximate 10 persons. Apart from Sushanta Banik, she could not identify any other accused there. She put her signature in a paper and on being shown by learned P.P., the witness identified her signature (Exbt.1) in papers of T.I. parade. After some days of the said incident, she was taken to Amarpur Court where she gave her statement to one Magistrate. Her statement was recorded accordingly. PW-1 identified her signature (Exbt.2) in her statement recorded under Section 164 of CrPC.
Page 12 of 5612.2 At that stage of deposition, learned P.P. had prayed for declaring PW-1 as hostile on the ground that she was deviating from her previous statement recorded under Section 161 of CrPC, which prayer was allowed.
12.3 She was cross-examined by the learned P.P. where her attention was drawn regarding the statements recorded under Section 161 CrPC that when they were on search of the victim and found her in front of Jatanbari Bank, the victim told to them that Sushanta had raped her taking her in a pump house in the backside of Jatanbari Hostel. She identified the accused. Being confronted with cross-examination on behalf of the accused Tutan Das and Bhushan Das, PW-1 stated that she did not tell the Magistrate that she would be able to identify the driver of the said Maruti Van by face. She denied the suggestion that driver of the Maruti Van was shown to her by police prior to the T.I. parade.
12.4 Facing cross-examination on behalf of the accused Sushanta Banik, PW-1 stated that there were many shops near Jatanbari Motor Syndicate and those shops remain open till 9/10 pm in the night. PW-1 further stated that there were many shops and quarters of both sides of the road which passed through their quarters. They generally pass through a road which runs nearby the motor syndicate. One market also was situated Page 13 of 56 near their quarters. She further stated that her statement was recorded by police in Bengali language and she had no sufficient knowledge in Bengali language. Police read over the contents of her statement which was recorded by the police. PW-1 further stated that during her statement before the police, she did not name the person who took away the victim by a motor cycle. She denied the suggestion that she deposed falsely. 12.5 In cross-examination, PW-1 categorically stated that before she identified the accused in the Udaipur Jail, police once showed Sushanta Banik to her at Natunbazar P.S. Her attention being drawn to the statement that she came to know the name of the accused from the nephew of her private tutor was found to be absent in her statement recorded under Section 161 CrPC. She admitted that such statement was absent therein.
13. Next relevant witness is PW-11, Sadhe Rani Tripura. She deposed in the same tune of PW-1. She identified the accused in the T.I. parade and her signature in the papers of T.I. parade was marked as Exbt.1/1. Her statement was also recorded under Section 164 of CrPC by the Magistrate. She identified her signature (Exbt.8) on the said recorded statement.
13.1 In course of cross-examination, PW-11 deposed that she stated to the police officer that she did not know the said Bengali boy. She also Page 14 of 56 did not state to the police that she came to learn the name of said boy as Sushanta Banik later on. PW-11 identified the accused in the court room. On being asked by the defence, PW-11 stated that she could not remember whether she stated to the Magistrate that the accused was known to her prior to the incident. She deposed that neither before the police nor before the Magistrate she stated the name of the boy as Sushanta Banik when her statements were recorded on 25.02.2016 (by police) and on 26.02.2016 (by Magistrate). PW-11 further deposed that she did not state to the Magistrate that when she along with PW-1 and the sister of the victim came out of their houses to search the victim, they found her near Jatanbari bank returning towards her house. Being confronted, she stated that she did not state to the police that the elder sister of the victim had accompanied them to search the victim in the night. To answer a question, she stated that there were many other Government quarters where they were residing at that time. She further stated that Jatanbari syndicate used to remain open upto 10:00 pm and in the night, many persons and vehicles were available there.
14. Next, we can come to the evidence of PW-2 who happens to be the brother of the victim „D‟. PW-2, Sri Kalpa Mohan Tripura deposed that he used to stay at the Government quarters of his borther-in-law namely, Khetrajoy Tripura (PW-5) along with victim „D‟ and on Page 15 of 56 22.02.2016 in the evening at about 8:30 pm her victim sister along with PW-1 and PW-11 went to their private tutor‟s house at about 8:00 pm situated at a little distance of Jatanbari market. At about 8:30 pm, PW-1 and PW-11 came to their quarters and informed them that when they were approaching to the private tutor‟s house, one boy had obstructed their way near Jatanbari Girls‟ Hostel and threatened them showing a bottle and also caught hold of the victim „D‟. Thereafter, they went to search the victim and ultimately, they found her near United Bank of India, Jatanbari Branch when the victim was found frightened and at that time one boy caught hold of her hand. Seeing them, the boy left the place and he took the victim in their quarters. On being asked, the victim told that the said boy obstructed her way, caught hold of her and tried to penetrate one broken bottle of wine into the stomach of the victim. PW-2 further deposed that the victim girl i.e. PW-19 did not tell him anything further. He continued to depose that no further incident had occurred thereafter on any occasion. PW-2 deposed that he did not know the name of the said boy who obstructed PW-19 (victim), but, his face was not known to him prior to the said incident. He further deposed that on 23.02.2016 he returned from the school at about 01:15 pm and after his return from school, victim told him that on that day when she along with PW-1 and PW-11 were returning from school, said boy with other three persons obstructed her way coming in a Maruti Van Page 16 of 56 and tried to catch hold of his sister and her friends out of fear had rushed to their house. In his deposition PW-2 stated that he would be able to identify the said boy by face in the court. Accordingly, he identified the accused- appellant in the court room.
14.1 Being confronted with cross-examination he stated that he did not state to the police that said boy tried to penetrate one broken bottle of wine into the stomach of his victim sister (PW-19). He also did not state to the police that when he along with PW-1 and PW-11 went out of home to search the victim, they noticed that the victim was frightened and one boy had caught hold of her hand and that seeing them the said boy had left the place. He denied the suggestion that on 22.02.2016 PW-1 and PW-11 had not visited their house. He denied all the suggestion put forth by the defence that he deposed falsely.
15. One of the vital and significant witnesses of the instant case is PW-4, Smt. Biramala Tripura being the elder sister of the victim „D‟ (PW-
19). PW-4 deposed that her victim sister used to reside with her at Forest Department Quarters at Jatanbari. On 22.02.2016 at about 8:00 pm, the victim along with her two friends PW-1 and PW-11 went to the house of their private tutor. At about 9:00 pm both PW-1 and PW-11 had returned, but, her victim sister PW-19 did not return. On being asked, PW-1 and PW- Page 17 of 56 11 informed that one boy had taken away PW-19 with him from the market area situated nearby the Syndicate Office and thereafter they went to search the victim and ultimately they found her victim sister near United Bank of India, Jatanbari Branch. They also found one boy near her sister, but, when PW-2, Kalpamohan had flashed his torch said boy left the place. Thereafter, the victim „D‟ returned home in a frightened condition and on being asked she told that the said boy had raped her inside a pump house and also gave some slaps on her cheek. On the following day at 12:00 noon when her victim sister was returning to home from school, the said boy along with 2/3 persons persuaded the victim girl by a vehicle had approached the victim girl, then, her sister along with her friends had rushed to the house. The incident of the second day was informed to her by her victim sister (PW-19). She deposed that she did not know the names of those persons and would not be able to identify them.
15.1 During examination by the court, she stated that there were so many adjacent quarters around her quarters. She also named the persons who used to reside in the said quarters at that time. She further stated that Jatanbari Police Out Post was situated at a visible distance from her quarters. She did not personally lodge any ejahar concerning the said incident. She denied all other suggestions.
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16. PW-5, Sri Khetrajoy Tripura deposed that the victim (PW-19) was the younger sister of his wife. He deposed that on 22.02.2016 at about 8:00 pm when the victim „D‟ was going to their private tutor‟s house along with PW-1 and PW-11, the accused-appellant took victim „D‟ to a pump house situated at the back side of a Government quarters behind the motor syndicate office at Jatanbari and raped her there. On the following day also the accused-appellant along with others tried to restrict movement of the victim „D‟ and PW-1 and PW-11, but, they had managed to return their house. He further deposed that after some days police had seized the wearing apparels of the victim by preparing seizure list where he put his signature (Exbt.3). He identified the accused-appellant at the court room. 16.1 Being confronted with cross-examination, PW-5 deposed that there were so many quarters in the complex which were occupied by the other officials. He stated that Jatanbari Police Outpost was about 1 km from his quarters and to go to his office, he used to pass the said Police Outpost. There were so many shops between his quarters and the Police Outpost. He stated that he personally did not lodge any ejahar concerning the said incident. PW-5 in his cross-examination stated that he did not state to the police that the accused-appellant had given a kick to the back side of the victim before commission of rape. He also did not state to the police that he Page 19 of 56 knew the accused prior to the said incident. During cross-examination, PW- 5 divulged that there were some shops nearby the syndicate office and to go to the school, victim „D‟ was required to cross the syndicate office.
17. PW-6, Sri Mitrijoy Tripura was the father of the victim „D‟. He deposed that he came to know from PW-5 that his daughter was raped by a Bengali boy while she was going to her private tutor‟s house. His son Kalpamohan Tripura (PW-2) also informed the said incident to him. 17.1 In his cross-examination, PW-6 stated that he did not state to the police that Khetrajoy i.e. PW-5 told him that the said miscreant was Bengali boy. Being questioned, PW-6 being the parent stated that he could not say the exact date of birth of the victim, but, her year of birth was 2000 A.D. He denied the suggestion that the victim was born in the year 1990.
18. PW-3 was declared hostile.
19. PW-7 being the stuff nurse at Natunbazar Rural Hospital deposed that Dr. Sourav Bhowmik had examined the accused Sushanta Banik in her presence. Seizure list was prepared. She identified her signature (Exbt.4) on the said seizure list.
20. PW-8 being the stuff nurse of Natunbazar Rural Hospital was also a seizure witness.
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21. PW-9 Sri Rajib Rudra Paul was a constable and the witness to seizure of the wearing apparels (Exbt.M.O.1/1 and Exbt. 1/8) of the accused-appellant i.e. one shirt, 2 T-shirts, one brief, one vest, two full pants and one belt.
22. PW-10, Sri Kamal Hossain was posted as constable and was a witness of seizure of the vehicular documents.
23. PW-12 was the private tutor. Nothing material came out of her deposition.
24. PW-13 being a constable was a witness of seizure of wearing apparels of the victim which were seized by S.I. Ramendra Debbarma by preparing seizure list. She identified her signature in the seizure list.
25. PW-14 was another constable who witnessed the seizure of wearing apparels of the accused-appellant by S.I. Ramendra Debbarma by preparing seizure list. He identified his signature in the seizure list.
26. PW-15, Sri Chitta Ranjan Das was posted as Headmaster of Ek Jatankumar High School where the victim girl used to study at Class-X. He issued a certificate (Exbt.12) stating the date of birth of the victim on 07.03.2000. He identified his signature in the seizure list of the said certificate as Exbt.12/1.
Page 21 of 5626.1 During cross-examination, he stated that police did not seize the admission register. He further stated that he was not posted at the said school when the victim girl got admitted. He further stated that he did not mention before the police authority that after consulting the admission register, said certificate was issued. He denied the suggestion that the date of birth of the victim in the certificate had been mentioned as per the request of police officer.
27. PW-16, Sri Sunil Kr. Singh, was a Judicial Magistrate 1st Class who recorded the statement of the victim girl (PW-19) as well her friends (PW-1 and PW-11) under Section 164 of CrPC. He read over the contents of the statement which was marked as Exbt.9/1 and he identified his signature as Exbt.9/2. He stated that he did not specifically mention that whether PW-1, PW-11 and PW-19 had given their statements voluntarily.
28. PW-7, a police constable was a witness to the seizure of the school certificate.
29. PW-18, the O.C. of the Natunbazar P.S.
30. PW-20 was the Scribe of the ejahar (Exbt.13/2). He deposed that he had written the ejahar.
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31. PW-21, S.I. Ramendra Debbarma had investigated the case. He deposed that he visited the place of occurrence, prepared hand sketch map with separate index of the places of occurrence. There were two places of occurrence, one near the bus syndicate and the other at the pump house behind the syndicate. He identified the maps of both the P.Os. (Exbt.15 and Exbt.16) respectively and he identified his signatures thereon (Exbt.15/1 and Exbt.16/1). Thereafter he deposed that he seized the wearing apparels of both the victim and the accused. He arranged medical examination of the victim girl and also sent them to the Judicial Magistrate for recording their statements under Section 164 of CrPC. He also collected the reports of the samples from the State Forensic Science Laboratory which were being sent by him for examination.
31.1 During his cross-examination, he stated that before lodging of the relevant FIR, there was no other information about the alleged incident. He further stated that there was no mention of index PO in the hand sketch map behind the Girls‟ Hostel.
31.2 PW-21 stated that there were shops and syndicate office which were to be closed at 7/7:30 pm. There were so many residential quarters. He further stated that in the 2nd map index „L‟ indicates the cowshed of Pradip Das which was in front of index „M‟, but, he did not examine Pradip Page 23 of 56 Das. He further deposed that in the FIR there was no mention that the victim was raped near the pump house. He stated that the alleged date of incident was Monday, but, he did not examine anybody from the pump house and BSNL office which were situated side by side. He further stated that he did not examine anyone from the index „M‟ i.e. the Girls‟ Hostel. PW-21 also did not examine the private tutor Sanjit Debbarma. He further stated that neither he seized the Attendance Register of the school as to whether the victim attended the school on that day nor he verified the same. He did not examine the Headmaster or any teacher of the school. He did not verify the nursery school records or any records prior to the existing school. He collected the school certificate through constable Kishore Karmakar. In his cross-examination PW-21 stated that he did not conduct any T.I. parade during his investigation.
31.3 During cross-examination, PW-21, the I.O. specifically stated that PW-1, Bindu Rani Tripura did not state to him that the private tutor of nephew of PW-11 told them about the name of the person who obstructed their way as Sushanta Banik. He denied the suggestion that identification of the accused was not correct.
32. PW-22, Smt. Mina Kumari Debbarma, Dy. SP, Gomati took over the charge of investigation while she was posted there on 16.03.2016. Page 24 of 56 She deposed that she examined the victim and other witnesses on 18.03.2016, but, did not record their statements under Section 161, CrPC as they disclosed the same which were recorded by her previous I.O. She further deposed that she arranged for T.I. parade on 21.03.2016 as per order of the court. She examined the scribe and submitted charge-sheet.
33. PW-23, Sri Saikat Das deposed that he was posted as Judicial Magistrate Ist Class at Udaipur on 21.03.2016 and conducted T.I. parade of two suspects namely Sushanta Banik at 3:20 pm in the District Jail, Udaipur. He deposed that during T.I. parade the witness identified the accused Sushanta Banik and two others namely Baban Das and Tutan Das by pointing finger upon them and by touching them. The communication between the victim and him were translated by one Pradip Kr. Tripura who was well conversant in Kokbarok and Bengali. PW-23 identified the report of the parade along with his signatures (Exbt.1/3). He also identified the certificate on oath marked as Exbt.18. He identified his signature on the said certificate as Exbt.18/1. The signatures of the victim and the witnesses in the report of T.I. parade were marked as Exbt.1/3 and he identified his signature which was marked as Exbt.1/4 in the said report. Page 25 of 56
34. In his cross-examination, PW-23 stated that he did not mention the age and physical stature of the participant inmates of the T.I. parade. But, it was mentioned in his report that they were of similar height.
35. PW-24, Dr. Sourav Bhowmik deposed that 25.02.2016 he was posted at Natunbazar Rural Hospital as medical officer. The victim was produced before him by a woman constable. The victim „D‟ narrated the incident to him. He examined the victim and on examination, PW-24 found the following injuries:-
"Description of the injury:-
1. One contusion present on the right cheek horizontally 2 cm away from the angle of the mouth over an area of 2cm X 0.5cm. Colour-
brown, age of injury 2 to 4 days.
2. One contusion present on the left cheek horizontally 3 cm away from the angle of the mouth (left) over an area of 0.5 X 05 cm, colour- brown, age of the injury 2 to 4 days.
3. Five linear contusion present over the left breast obliquely placed at the level of the fourth rib in the mid clavicular line over an area of 5 cm X 4 cm, colour-brown, age of injury-2 to 4 days.
4. One contusion present right side of the back at the level of the th 6 thorasic vertebra 8 cm away from the mid line over an area of 5 cm X 4 cm, colour-brown, age of injury- 2 to 4 days.
5. Four linear abrasion present on the right leg in the middle of the right leg in the inner side over an area of 2 cm X 1 cm, colour-dark brown, age of injury- 2 to 3 days.
6. One laceration present on the perineum outside the vagina below the fourchette in the mid line measuring 2 cm X 0.25 cm X skin depth, avulsion of the skin of the forchette occurred, blood stained serum Page 26 of 56 was coming out from the middle of the wound during examination, age of the injury-3 to 4 days.
The victim had 30 numbers of permanent teeth and she was well dressed. Hymen was torn and was oedematous and blood serum was coming out from the torn part, age of the tearing was 3 to 4 days. Cervix was nulliparous (not yet given birth) and WNL. Vaginal canal-no visible injury was found during examination. Vaginal orifice permits two fingers and it was painful."
After examination, PW-24 opined that there were signs of recent vaginal penetration or recent sexual intercourse and there were no signs of intoxication. On identification the report was marked as Exbt.19 and his signature was marked Exbt.19/1.
35.1 PW-24 further deposed that on the same day he also examined one Sushanta Banik, S/o Sri Sanjit Banik, aged 24 years, in connection with the same case and on examination, he opined that there was nothing to suggest that the above person is incapable of performing sexual intercourse. PW-24 identified his report dated 27.02.2016 as Exbt.22 and his signature on the said report was identified as Exbt.22/1.
35.2 During cross-examination, he stated that the age of the victim as recorded in the certificate was on the basis of oral information. There was no age proof document. In the history there was no mention of rape. He further stated that he had mentioned that no abnormality was detected in the labia minora or labia majora. The doctor further stated that he did not Page 27 of 56 send the victim for ossification test, but, he himself conducted the dental examination and further stated that "according to my report the 3rd molar teeth was present on both right and left lower jaw meaning thereby she was above 17 and below 25 years at the time of examination." He further deposed that he did not find any injury in the vaginal canal.
36. PW-25, Dr. Sabyasachi Nath, Sr. Scientific Officer of the State Forensic Science Laboratory deposed that he examined the exhibits under biology/serology division of our laboratory and on examination he opined as follows:-
"(i) No seminal stain/spermatozoa of human origin could be detected in the exhibits marked as Exbt.A(a), A(b), B(a), B(b), B4, C, D, E, F and G.
(ii) No blood stain/skin-like structure was detected in the Exbts.A3 and B3.
(iii) Pubic hair of human origin were detected in the Exbts.A2 and B2, but no opinion could be given regarding matching of the samples with each other."
PW-25 proved his report as Exbt.24 and his signature as Exbt.24/1.
37. ANALYSIS :
We are well conscious that cases of rape have to be dealt with utmost sensitivity. "The court should examine the broader probabilities of Page 28 of 56 a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of prosecutrix, which are not of a fatal nature to throw out and otherwise reliable prosecution cases".[State of Punjab Vrs. Gurmeet Singh, (1996) 2 SCC 384]. Keeping in mind the aforesaid principle, we shall re-appreciate and re-evaluate the evidence in order to determine the sustainability of the judgment and order of conviction and sentence passed by the learned Special Judge.
37.1 Learned Special Judge while convicting the accused held that the age of the victim below 18 years had been proved and the description of the rape had also been proved beyond reasonable doubt.
It is no more res-integra, rather, settled that conviction may be recorded on the sole testimony of a victim of rape, if, her evidence inspires confidence. To deal with a case of rape or sexually assault, we must be alive to our responsibility. It is also equally true that the evidence of a victim of rape stands almost on a par with the evidence of an injured witness and to an extent even more reliable. However, burden lies on the prosecution to prove the charge against the accused. Further, before returning a finding of guilt, the Courts also to keep in mind that life and liberty of a person is precious so that fundamental rights of a person Page 29 of 56 accused of an offence is not breached as enshrined under Article 21 of Constitution of India.
37.2 In the instant case, we should proceed cautiously and with utter sensitivity to decide whether the evidence of the victim and her two companions, PW-1 and PW-11 inspired confidence. According to us, the conduct of a victim of rape is also required to be scrutinized with sense of responsibility. Keeping in view the basic feature of our Constitution that right to life, live and liberty are the precious right to be enjoyed by the citizens of this country.
37.3 On careful reading of the evidence of all the witnesses, according to us, the most vital witnesses are PW-19, the victim herself; PW-1, PW-11, the two companions of the victim; PW-2, PW-4, the brother and sister of the victim and two doctors i.e. PW-24 and PW-25. On close scrutiny of the evidence of PW-19, we find that she deposed that she was forcefully taken away by the accused from a place near the Girls‟ Hostel. On being threatened, her two friends (PW-1 and PW-11) had left the place and thereafter taking her near the Girls‟ Hostel the accused committed rape upon her, but, she has categorically stated in her deposition that she did not divulge the incident to anybody out of shame though she used to stay along with her close relations i.e. her elder sister (PW-4) at her Page 30 of 56 quarters. She did not tell the incident even to her sister out of shame. During T.I. parade she identified the accused who committed the rape. In her deposition, she also stated that her statement was recorded by the Magistrate. It takes us to read her statement recorded under Section 164 CrPC. We have noticed that though the incident had occurred on 22.02.2016 at about 8/8:30 hours in the evening, PW-19 being the victim of the incident had lodged the complaint to the police station for the first time on 25.02.2016 at 16:09 hours and the statement of the victim „D‟ was recorded immediately thereafter i.e. on 26.02.2016. In the said statement, it transpires that she has mentioned the name of one "Raj" who restrained her on 22.02.2016 at 8:00 hours and forcibly took her to the back side of the Girls‟ Hostel of E.K. Jatanbari School. She further stated that the accused slapped and kicked her from back side. Thereafter, he forcibly committed rape upon her. On 23.02.2016 at about 1:00 pm, when she was returning to home from school at that time also the accused along with other 3/4 persons came closely to her by a Maruti vehicle and tried to restrain her, but, she managed to escape from their clutches. Her statement recorded under Section 164, CrPC may be reproduced hereunder, in extenso, for convenience:-
"On 22/02/2016 at about 2000 hrs when I along with two other friends were going to have tuition and on the way at JTB Syndicate one Raj restrained me and threatened to my friends to go from there.Page 31 of 56
Thereafter, he forcefully took me at the back side of girls‟ hostel of JTB and caused hurt by slapping and kicking me from back side. Thereafter, he forcefully committed rape on me and threatened me with dire consequence to kill me if I disclosed the matter to anyone. On 23/02/16 at about 1300 hrs. when I was returning to home from school at that time again he and along with 3/4 others persons by a Maruti vehicle tried to restrain me but I managed to escape from there clutches."
37.4 In course of trial, during her evidence, she never implicated „Raj‟, who according to her 164 CrPC statement restrained and committed rape upon her. She also did not relate Raj with Sushanta Banik, the accused herein. Prosecution has failed to relate Sushanta Banik, the accused with that Raj. Question, naturally arises in our mind when PW-19 at first her statement recorded under Section 164 of CrPC had implicated Raj as offender of the incident, then, why she had named Sushanta Banik later on. The matter would have been different if there was any indication or there was any evidence that Sushanta Banik himself was known as „Raj‟. None of the witnesses even the police witnesses had failed to relate Raj with Sushanta Banik, the accused. Even in course of hearing of this appeal, we posed question to the learned Addl. P.P. appearing for the State-respondent to justify link of Raj with the commission of crime, or how Raj was related to Sushanta Banik, the accused, but, he failed to show any such link or relation between Sushanta Banik and Raj.
37.5 Next, it is clear to us that the offender of rape was very much known to PW-19 (victim) and for that reason she identified the boy as „Raj‟ Page 32 of 56 in her recorded statement under Section 164 CrPC. Again, the question is, why she did not identify the person in the T.I. parade as Raj. We have noticed that the accused-appellant has been examined under Section 313(1)
(b) of CrPC as Sushanta Banik alias Tantu, but, not as alias Raj. 37.6 During her cross-examination, inviting attention to her statement recorded under Section 164 of CrPC she was asked whether she told the name of Sushanta Banik in her 164 CrPC statement before the Magistrate, but, it was observed by the learned Special Judge that PW-19 took a long pause and did not say anything. It appears to be surprising to us when she was given the opportunity to identify Raj as Sushanta Banik she remained silent, a mystery still looms large in our conscious consideration of her evidence. It is further revealed that she was noticed as to whether she disclosed the name of her two friends in her statement recorded under Section 164 of CrPC, but, at that time also she took a long pause and remained silent as observed by the learned Special Judge during recording of her evidence.
37.7 Another important aspect, we find in her evidence that she has specifically stated that she does not know the contents written in the complaint (ejahar). Question further arises that the victim did not divulge the incident of rape to anyone even not to her elder sister (PW-4) as Page 33 of 56 according to her deposition she did not tell the incident to anybody. Though, it is stated that out of shame she did not divulge the incident, but, we question ourselves, how far the said statement is true? There are other important factors that also require to be minutely scrutinized. From the evidence of the witnesses it comes to fore that there were so many adjacent quarters, shops and bus syndicate office wherefrom the victim was abducted i.e. it was a market area. PW-1, the friend of victim, PW-3, one private tutor (independent witness) have categorically stated that the shops and the syndicate office used to remain open till 9/10 pm. 37.8 From the evidences of PW-1, PW-2 and PW-4, it appears that they stated that after coming out of their house to search for the victim, when they reached near the bank, both the victim as well as the accused were coming on foot. PW-1 has specifically stated that being found them they asked the victim as to what happened, but, the victim did not inform them anything and went to her home. PW-1 further stated that till the date of her evidence before the trial court the victim did not tell her anything about the incident.
37.9 PW-2 being the brother of the victim has deposed that during search he found one hand of his victim sister and hand of one boy were clutched together and when he flashed his torch, the boy had fled away. Page 34 of 56 PW-11 corroborated the said statement in her evidence. Question is why the victim whose chastity and modesty was just ravished, if it was at all true, did not react? Was it not inconsistent with the normal human conduct of a girl who faced forceful rape with so many injuries. 37.10. In quite variations of these statements made by PW-1, PW-2 and PW-11, only PW-2, the brother and PW-4 the elder sister of the victim girl have stated in their evidences that being found her sister on search she divulged that the boy had committed rape upon her, but, yet again, it reminds us most reasonably that the victim „D‟ (PW-19) herself deposed that she did not disclose the incident to anybody who found them on search. It is unfortunate that both the investigating officers, Sri Ramendra Debbarma (PW-21) and Smt. Mina Kumari Debbarma (PW-22) did not take care to get more information regarding the true identity of the accused by questioning the informant and her companions (PW-1 and PW-11). One more issue, which strikes our mind is, the victim "D", neither in her recorded statement under Section 164 Cr.P.C. nor during the course of trial had supported this particular version of P.W.2 and P.W.4. Rather, she very specific to her deposition that she did not disclose anything to anybody on that night despite being asked as to what happened to her which would be Page 35 of 56 apparent from the statement of P.W.1 and P.W.11, the friends who also accompanied P.W.2 and P.W.11 during search.
37.11. Furthermore, from the deposition of P.W-2, an important circumstance has come to fore that P.W.19 and the boy were not clearly visible. P.W.2 flashed his torch and found their hand clutched together, when the boy fled away. This situation throws a light except P.W.19, it was not possible to easily identify the boy, and it was P.W.19. Being their clutched together is indicative to the fact that both P.W.19 and the boy were intimate to each other.
37.12. Further, the circumstances that the victim „D‟ was forcibly abducted by the accused-appellant from a place where there were many shops, and one bus syndicate office, particularly, when those shops were open as surfaced from the depositions of the prosecution witnesses i.e. PW- 1 and PW-3 (cross-examination), and that both the victim and the accused- appellant were found together, even the hand of the victim was being held by the accused, but, to utter surprise, the victim did never try to raise alarm and quite surprising to note that she never complained against the boy along with whom she was witnessed at about 8:30 pm. According to us, it is hard to digest that she was forcibly abducted and raped. Yet another strange circumstance, we find in the present case, that the victim was Page 36 of 56 further approached by the accused and his friends on the very next date while she was returning from school and she had rushed towards her house, but, even then, neither she nor PW-1 and PW-11 or any of her relatives had lodged any complaint to the police station which was not far away from their quarters. Furthermore, neither her elder sister (PW-4) nor his brother PW-2 had lodged any complaint and they lodged the FIR only on 25.02.2016. The prosecution has not come up with any explanations as to why FIR was not lodged on 22.02.2016 or at least on 23.02.2016. 37.13. Furthermore, we have noticed that none of the prosecution witnesses particularly, the witnesses who found the victim along with the accused has stated that any of the wearing apparels of the victim was found to be torn or any signs of injury in any parts of her body, particularly, the injuries in the cheek which were very much visible at her appearance before them. According to PW-24, the doctor who examined her on 25.02.2016 stated in his description of injuries that --"(1) One contusion present on the right cheek horizontally 2 cm away from the angle of the mouth over an area of 2cm X 0.5cm. Colour-brown, age of injury 2 to 4 days. (2). One contusion present on the left cheek horizontally 3 cm away from the angle of the mouth (left) over an area of 0.5 X 05 cm, colour- brown, age of the injury 2 to 4 days." But, there is no evidence as to who Page 37 of 56 caused these injuries and as to how. The prosecution has not made any attempt to unfold the fact as to how those injuries were caused. Again, it strikes our mind that if those injuries were caused PW-24 also has not said anything as to how those injuries in the cheek and other parts of her body have been caused. Deepening the mystery more, the victim herself remained silent all along regarding the cause of those injuries. The Doctor (PW-24) found the hymen of the victim was torn and blood stain serum was coming out from the torn part and such torn was caused 3/4 days prior to her examination. There were no visible injuries in the vaginal canal and ultimately, he opined that there were signs of recent vaginal penetration or recent sexual intercourse.
37.14. Now, after careful scrutiny and evaluation of the circumstances, we have discussed here-in-above, can we safely arrive at a finding that such intercourse was forceful or was made with the consent of the victim? According to our thoughtful consideration, it will not be safe for us to conclusively held that the accused is guilty of committing rape as defined under Section 375 of IPC, which reads as under:-
"375. Rape.-- A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or Page 38 of 56
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
First.Against her will.
Secondly.Without her consent.
Thirdly.With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.With or without her consent, when she is under eighteen years of age.
Seventhly.When she is unable to communicate consent.
Explanation 1.For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:Page 39 of 56
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.A medical procedure or intervention shall not constitute rape.
Exception 2.Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
On plain reading of the above definition of "rape" it is quite obvious to constitute an offence of rape a man has to penetrate his penis to an extent to the private parts of a woman against her will is without her lawful consent as enumerated in the second, third, fourth, fifth, sixth and seventh circumstances under Section 375 of IPC.
38.1 On plain reading of the above definition of „rape‟ it is quite obvious that to constitute an offence of rape a man has to penetrate his penis to an extent to the private parts of a women against her will i.e. without her lawful consent as enumerated in the second, third fourth, fifth, sixth and seventh circumstance under Section 375 IPC. 38.2. On a bird‟s eye view of the entire episodes, in our considered view, the oral testimony of the victim that she was forcibly taken away by the accused from a market area, and subsequently subjected to forceful rape, seemingly appear to be not inspiring to this court, and thus fail to attract the confidence of this court to believe the prosecution story. The entire circumstances starting from her taking away by the accused while Page 40 of 56 she was proceeding towards the house of her private tutor along with PW-1 and PW-11, her appearance along with the boy who was known to her as „Raj‟, touching with each other‟s hand, not raising alarm or without any cry, her silence after facing such atrocities towards her body and mind leads us to suspect whether she was forcibly abducted and raped against her will. It is equally true, if the age of the victim is considered as 16/17 years at the time of commission of offence, then, such consent would not be a lawful consent and in that case, the accused must be convicted. 39.3 Question, thus falls for consideration as to whether the prosecution has been able to prove the circumstance that at the time of commission of offence the victim was minor i.e. under 18 years. There was no ossification test, the school certificate has not been proved in accordance with the essentialities of Section 35 of the Indian Evidence Act. The father of the victim could not say the actual date of birth of the victim. Even the victim has not stated her date of birth during her evidence before the court, though the learned Special Judge has recorded in his findings that the victim girl had deposed during evidence that she was aged about 16 years at the time of commission of offence. In this circumstance, we find the Doctor (PW-24) after detecting the growth of 3rd molar teeth in both Page 41 of 56 right and left lower jaws came to a finding that the victim was above 17 and below 25 years at the time of examination i.e. at the time of incident. 39.4 Having regard to the plus minus two years, according to us, at the time of the incident the victim was attaining the age above 18 years, in other words, she was consenting age at the time of the incident. 39.5 Again we are to revert back as to the identification of the accused, whether, actually, the accused was „Raj‟ or „Sushanta Banik alias Tantu‟. PW-1 and PW-11 have stated in their depositions that they came to know about the name of the accused Sushanta Banik from a nephew of their private tutor, but, this statement has not been substantiated since the said nephew has not appeared before the witness box to corroborate this statement and the prosecution also has not made any endeavour to bring the nephew into the witness box.
39.6 Section 60 of the Evidence Act envisages that oral evidence must be direct. It reads as under:-
"60. Oral evidence must be direct.--Oral evidence must, in all cases whatever, be direct; that is to say--
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;Page 42 of 56
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection."
39.7 Approving the view of the Hon‟ble Gujrat High Court in the case of Kanbi Vaghji Savji v. State of Gujarat, (AIR 1968 Gujarat 11) the Apex Court in Bhugdomaul Gangaram & Ors. Vrs. State of Gujarat, (1984) 1 SCC 319 has held that under Section 60 of the Evidence Act, testimony of a witness based on information of another person would not be admissible in absence of examination of the informant as a witness. Similarly, where witness had no personal knowledge about the accused‟s role or his involvement in the crime, his testimony with the accused had committed a certain offence would be inadmissible in absence of examination of the accused as a witness in that regard. Page 43 of 56 39.8 In the case in hand, the oral testimony of PW-1 and PW-11 in regard to the name of the accused was supplied by a nephew of the private tutor, but, since the said nephew has not been examined to support this statement of PW-1 and PW-11, such of their testimony as per se hearsay and is inadmissible under Section 147 of the Evidence Act on the ground that the evidence of PW-1 and PW-11 regarding the name of the accused has not been corroborated by the informant nephew appearing as a witness.
40. In our considered view, mere a school certificate cannot form the basis of determining the age of a person unless and until it is corroborated by other reliable evidence as contemplated under section 35 of the evidence act. In the case in hand, PW-15 being the Headmaster of the school appeared in the witness box to prove the school certificate (Exbt.12). He has stated in his evidence that- "the said certificate was issued after consulting their admission register". But, strangely enough, the said admission register relating age of the victim girl has not been produced or proved in course of evidence. The Headmaster in his cross-examination has stated that the investigating officer did not seize the admission register. Even, the related witness, particularly, the father of the victim girl has not stated that the date of birth of his victim daughter was recorded as per his version. Rather, he has stated that "he has no knowledge about the date of Page 44 of 56 birth of his victim daughter". In that eventuality, we are more inclined to rely upon the evidence of doctor (PW-24) who has stated that at the time of incident the victim daughter was attaining age of 17 years and below 25 years and thus, we hold that the victim was above 18 years. We have noticed that the defence had put a suggestion to the victim that at the time of incident she was attaining age of more than 21 years.
41. Now, questions to be determined whether a conviction can be sustained on the basis of soul circumstance that the victim had indentified the accused in test identification parade.
41.1 The accused had been put to test identification parade. Facts identifying an accused are relevant under Section 9 of the Indian Evidence Act. Generally, test identification parade (for short, T.I. parade) is conducted during investigation stage primarily with the object to enable the witnesses to identify person or persons concerned for the offence, who were not previously known to them as held in the case of Budhsen & Anr. Vrs. State of U.P., (1970) 2 SCC 128 by the Apex Court. It is also held that the exercise of T.I. parade-"serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also furnish evidence to corroborate their testimony in court. Identification proceedings in their legal effect amount simply to this; that certain persons are brought to jail Page 45 of 56 or some other place and make statements either express or implied that certain individuals whom they recognize as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section 162 of the Criminal Procedure Code." 41.2 The Hon‟ble Supreme Court further held in Budhsen (supra) that- "the persons required to identify an accused would have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. The identification to be of value should also be held without much delay." Thereafter, the court held that "the evidence as to identification deserves, therefore, to be subjected to a close and careful scrutiny by the court." The ratio of the apex court in Budhsen (supra) has subsequently been followed in many decisions on this subject. 41.3 In the instant case, PW-1, PW-11 and PW-19 (victim) went to the jail to identify the boy, who according to them was not seen prior to the date of incident. Now, let us re-look the evidence of PW-1 which is relevant to T.I. parade. Being confronted with cross-examination, she categorically stated that before identifying Sushanta Banik in Udaipur Jail, she had seen the accused Sushanta Banik at Natunbazar PS at the instance of police. Her statement may be reproduced in verbatim hereunder: Page 46 of 56
"Before I identified Susanta Banik in the Udaipur Jail, Police once showed Susanta Banik to me at Natunbazar PS."
This Statement in cross-examination obviously proves that after commission of the crime on 22.02.2016 and before identification on 21.03.2016, accused Sushanta Banik was shown to P.W.1 by the police at the police station itself raises serious suspicious circumstances about the fairness in conducting the T.I parade organized by the investing officer for the purpose of indentifying the accused.
41.4. Further, during conduct of T.I. parade, PW-1 being asked by the Magistrate stated that she saw the accused persons including Sushanta Banik on 23rd of a month while she along with the victim (PW-19), and another were returning from their tutor‟s house. In her examination-in- chief, PW-1 stated that on 23.02.2016 Sushanta Banik along with two other persons obstructed their way while they were returning to their respective homes from school. She specifically stated that the names of the other two persons were not known to her, but, she would be able to identify them by face. It will be useful to extract her whole statement hereunder, for convenience:
Page 47 of 56
"On the following day at about 12 pm in the noon I along with victim „D‟ and Sadhe Rani Tripura were returning to our home from school and at that time near United Bank of India said Susanta Banik along with 2 other persons arrived there with a Maruti Van and obstructed our way. I do not know the names of said two persons but I will be able to identify them by face."
This very statement implies that Sushanta Banik was very much known to PW-1, but, other two persons were not known to her. Though, in later part of her examination-in-chief, she stated that she came to know the name of the accused as Sushanta Banik from the private tutor of nephew of PW-1 who knew Sushanta Banik, but, inviting her attention to this statement with her recorded statement under Section-161 Cr.P.C during her cross-examination it was found absent, which she also admitted. So, from the nature of evidence she led, we can easily come to the conclusion that the police themselves had once shown the accused to her at Natunbazar PS. Furthermore, the accused was very much known to her even prior to the incident, which she wanted to suppress for the reason best known to her, but; of course, left behind many questions in our mind regarding the reliability of her testimony.
41.5 PW-11 being produced during conduct of T.I. parade stated to the Magistrate that prior to the incident, she saw the accused Sushanta Banik near a pond at their locality. PW-19, the victim „D‟ being asked by the Magistrate during T.I. parade stated the same fact that she saw the Page 48 of 56 accused person, prior to the incident, near a pond at their locality and after that on one 23rd of a month when she was returning from her private tutor‟s house the accused Sushanta Banik pulled her by her hand. If we believe the statements of PW-11 and PW-19, we find that both of them had seen the accused Sushanta Banik prior to the incident, near a pond at their locality. The victim herself during T.I. parade stated that she saw the accused Sushanta Banik on 23rd of a month while she was returning from her private tutor‟s house and dragged her in a nearby jungle near the hostel where the accused forcibly disrobed the victim „D‟ and raped her. 41.6 From their statements, it transpired that both PW-11 and PW- 19 had seen the accused prior to the incident near a pond at their locality which is quite indicative that accused Sushanta Banik was known to both of them even prior to the incident. Curious enough, PW-19 (the victim) as a witness during the conduct of T.I. parade had mentioned the date of offence as on 23rd, but, neither the prosecution during course of trial nor the learned Special Judge had tried to clarify the discrepancy in mentioning the date of offence, which ought to have been made. We have seen the original copy of the memorandum of T.I. parade from the case docket and we find no variation in the original copy kept with the case docket. In a criminal trial, where the life and liberty of a person is involved, this type of discrepancy Page 49 of 56 should be dealt with seriously keeping in view that the Courts have to return a finding that the guilt of the accused has been proved beyond reasonable doubt. However, according to us, discrepancy in mentioning the date of offence as 23rd instead of 22nd as per the evidence let in by PW-19 during trial, we accept the date of offence as 22.02.2016 instead of 23.02.2016.
Question arises when the accused Sushanta Banik was known to PW-11 and PW-19 as they stated that they had seen him prior to the incident, near the pond of their locality, why they suppressed the name of Sushanta Banik in their statements recorded under Section 164(5) of CrPC. In our considered view, it will not be proper for us to forget the recorded statement of the victim (PW-19) that it was "Raj" who committed the offence and at the time of commission of offence, the offender was well known to her, but, thereafter, mysteriously, PW-19 never tried to level any charge against that "Raj" or to connect "Raj" with that of Sushanta Banik, the accused herein.
42. One more aspect needs to be highlighted that PW-2 and PW-4 specifically deposed. PW-2, Sri Kalpamohan Tripura, has deposed as under:
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"Debangshree Tripura is my own sister. Both myself and Debangshree stayed in a Govt. Quarters at Jatanbari which is allotted to my one brother-in-law namely, Khetrajoy Tripura. On 22.02.2016 in the evening Debangshree Tripura along with Bindurani Tripura and Sadherani Tripura went to their private tutor‟s house at about 8.00 pm situated at a alittle distance of from Jatanbari market. At about 8-30 pm or so, Bindu Rani Tripura and Sadherani Tripura came to our quarters and informed that when they were going to their private tutor‟s house at that time near the Jatanbari Girls‟ Hostel one boy obstructed their way and threatened them showing a bottle and also caught hold of Debangshree Triupra. Then I along with Sadherani Tripura and Bindurani Tripura went out to search Debangshree and ultimately, we found her near United Bank of India, Jatanbari Branch. Debangshree was found frightened and at that time one boy caught hold of her hand. Seeing us, that boy left the place and I took Debangshree in our quarters. On my asking, Debangshree told that said boy obstructed her way, caught hold of her and tried to penetrate one broken wine bottle into the stomach of Debangshree. She did not tell me anything further. No further incident occurred thereafter on any occasion. I do no know the name of said boy who obstructed Debangshree but I know his face but his face was not known to me prior to said incident. I was interrogated by police concerning the incident. On 23.02.2016 I returned from the School at 1-15 pm and after my return from school, Debangshree told me that on that day when she alongwith Saderani Tripura and Bindurani Tripura were returning from school, said boy with other three persons obstructed her way coming in a Maruti Van and that boy tried to catch hold of her again and my sister and her friends out of fear rushed to our house. I will be able to identify said boy by face today in the Court. the witness indentifies the accused Susanta Banik by face today in the Court to be the said boy."
42.1 Smti. Biramala Tripura (PW-4) has deposed as under:
"Debangshree Tripura is my younger sister. At the time of incident I and Debangshree would reside in the Forest Department Quarters at Jatanbari. On 22.02.2016 at about 8.00 pm Debangshree, Bindurani Tripuraand Sadherani Tripura went to the house of their private tutor. At about 9.00 pm only Bindurani Tripura and Sadherani returned to home but Dehangshree did not return. On asking, Bindurani and Sadherani informed that one boy had taken away Debangshree with him from the market area situated nearby the Syndicate Office. Thereafter, Sadherani, Bindurani and Kalpamohan Tripura went out of the home to search Page 51 of 56 Debangshree and ultimately, they got Debangshree near United Bank of India, Jatanbari Branch. They also found one boy near Debangshree but when Kalpamohan flashed his torch said boy left the place. Thereafter, Debangshree returned to home in a frightened condition and on asking, she told that said boy had raped her in side a pump house and also gave some slaps on her cheek. On the following day at about 12.00 pm in the noon when Debangshree, Sadherani and Bindurani were returning home from School, said boy alongwith 2/3 persons persuaded Debangshree by a vehicle and then Debangshree and her friends rushed to the house. The incident of the second day was informed to me by Debangshree. I do not know the names of those boys and will not be able to identify them."
43. We have given our thoughtful consideration as to how both PW-11 and PW-19 had seen the accused on a day prior to the incident, near a pond at their locality at a time together. This casts a serious doubt about the very integrity of PW-11 and PW-19. Furthermore, if the offender could be identified as "Raj" by the victim at the scene of crime itself, then, what was the justification of conducting T.I. parade, a question put to ourselves. In furtherance thereof, PW-1 has categorically stated that accused was shown to her by the police at Natunbazar PS. According to us, the conduct of T.I. parades suffers from very serious infirmities and irregularities, which, ultimately renders that T.I. parade meaningless and insignificant aimed at identifying the accused person. Yes, other two companions of the accused were unknown to PW-1, PW-11 and PW-19 as well, and for those two accused persons T.I. parade would have been conducted, but, these two accused persons have been acquitted as they were found to be not guilty of committing any offence. As such, we are not concerned about those two Page 52 of 56 acquitted persons to question the sustainability of the judgment and order of conviction and sentence passed by the learned Special Judge on the basis of the identification of the accused during T.I. parade.
44. According to us, the reliability of identification of the accused by the victim of any offence or by any witnesses to the offence will be governed by the circumstance that - (i) the victim or the witnesses must have seen the accused persons for the first time of the occurrence of the offence; (ii) the victim or the witnesses must not have an opportunity to see the accused during the intervening period of the date and time of occurrence on their production in the jail of any other place for the purpose of identification of the accused persons.
More importantly, accused Sushanta Banik was known to the witnesses of T.I. parade before its conduct, which according to us frustrates the conduct of T.I. parade.
45. As we said earlier, in the case in hand, accused was shown to PW-1 in the Natunabar PS by the police before she was produced in T.I. parade. The evidence of identification must be supported by other relevant and reliable corroborative evidence. It must be conducted at the earliest possible opportunity in absence of any reasonable cause of delay. Furthermore, it comes to fore that the accused Sushanta Banik had been Page 53 of 56 arrested on the same date the FIR was lodged i.e. on 25.02.2016, but, the T.I. parade was conducted on 21.03.2016. The prosecution has failed to explain as to why such delay was caused in conducting the T.I. parade after arrest of the accused on 25.02.2016. True it is, that delay in conducting the T.I. parade for identifying the accused may not be fatal in considering the evidence of identification in a T.I. parade. There may be some examples that after committing offence, the accused had fled away; it may be a case of robbery where most of the culprits fled away after the incident, here, in such cases TI parade is often delayed on account of the inherent difficulties which the prosecution naturally faces in such cases; or the investigating agencies may look for corroborative evidence like recovery of looted articles, weapon of offence.
46. In our opinion, where there is an unnecessary delay or inordinate delay in holding the T.I. parade, in spite of availability of the accused persons just after receipt of the complaint by the police, the court must adopt a cautious approach so as to prevent miscarriage of justice. Again, such delay may probabilise possibility of the accused having been shown to the witnesses, which actually happened in this case when the police had shown the accused Sushanta Banik to PW-1 during his custody at Natunbazar PS. Page 54 of 56
47. Considering the overall facts and circumstances, we are not in a position to place enough reliance to the evidence of T.I. parade. Therefore, the submission of learned Addl. P.P. as well as the finding of the learned Special Judge seemingly not appear to be acceptable to us. We should mention one of the most striking circumstances amongst the entire chain of circumstances that the hand of the accused was seen in the hand of the victim while returning to their home after commission of a heinous crime like rape, which entirely ravished chastity of a young girl. The victim was found along with the boy in that position by her relatives as well as her friends (PW-1 and PW-11), but, did not disclose anything to either of them, left with many questions to a prudent mind. The circumstances preceding to the rape or subsequent to the rape, or even after the incident that occurred on 23.02.2016 was not reported to anyone till the victim lodged the FIR throws serious doubt about penetration against her will. Another, astonishing feature is that, though, the victim‟s cheeks had suffered lacerated injuries, quite visible from outside but neither her brother (PW-2) nor her sister (PW-4) preferred to remain silent as to how those injuries were caused. Prosecution did not try to explain this circumstance to any of them when she had the opportunity to raise alarm and drawn the attention of the commuters, shop owners and other persons at that time. We question ourselves, is this a believable story?
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48. In furtherance thereof, the Doctor had detected so many injuries at various parts of her body, but, none of the witnesses during their depositions stated that they had witnessed any sign of injuries as noted by the Doctor when she was found at that night.
Conclusion:
49. Having given our thoughtful considerations to the entire chain of events after being juxtaposed from the first circumstance to the last, we are unable to link one circumstance with the next circumstance as emerged from the prosecution witnesses and there are huge gaps between each of the circumstances, which render the judgment and order of conviction and sentence unsustainable.
50. Lastly, we must say that prosecution has miserably failed to connect „Raj‟ whose name was first disclosed by the victim committing offence with the accused Sushanta Banik alias Tantu and curious enough no attempts have been made to link „Raj‟ with that of accused Sushanta Banik. More so, we already have arrived at a finding that at the time of intercourse the victim was attaining the consenting age.
51. In our ultimate analysis, the prosecution has failed to establish the charges levelled against the accused Sushanta Banik beyond reasonable Page 56 of 56 doubt. It is settled proposition of law that suspicion however grave cannot take the place of truth. In furtherance thereof, in our opinion, the victim as well as the boy, he may be "Raj" or Sushanta Banik alias Tantu, appellant herein are in hand in hand. Accordingly, the judgment and order of conviction and sentence passed by the learned Special Judge (POCSO) in Special 03 of 2016 (POCSO) shall stand set aside.
52. Accordingly, the appellant Sushanta Banik is acquitted of the charges levelled against him and he be set at liberty forthwith if not required in any other cases. Surety of the accused is also discharged from the liability of the bail bond.
53. The appeal, accordingly, stands allowed and disposed of. Connected application(s) if any, shall also stand disposed.
Send back the LCRs.
(ARINDAM LODH) J (AKIL KURESHI) CJ sanjay