Tripura High Court
Hon'Ble Mr.Justice S.Talapatra vs The State Of Tripura on 9 September, 2020
Author: S.G.Chattopadhyay
Bench: S.Talapatra, S.G.Chattopadhyay
Page 1 of 41
HIGH COURT OF TRIPURA
AGARTALA
Crl.A(J)No.59 of 2019
BEFORE
HON'BLE MR.JUSTICE S.TALAPATRA
HON'BLE MR.JSUTICE S.G.CHATTOPADHYAY
Bipul@Bimal Bhowmik,
S/O Late Jagadish Bhowmik
Of Manaipathar,
P.S.-Jatrapur,
District-Sepahijala,
Tripura .............Appellant
Versus
The State of Tripura .........Respondent
For the Appellant(s) : Mr.P.K.Biswas, Sr.Adv.
Mr.P.Majumder,Adv.
For the Respondent(s) : Mr.S.Ghosh, Addl. PP
Date of hearing : 19.06.2020
Date of delivery of
Judgment & order : 09.09.2020
Whether fit for reporting : Yes No
JUDGMENT
[Per S.G.Chattopadhyay] The challenge in this appeal is to the judgment and order of conviction and sentence dated 20.08.2019 passed by the learned Sessions Judge of Sepahijala Judicial District, Sonamura in case No. ST(T-1) 7 of 2015 whereby the convict appellant Bipul@Bimal Bhowmik has been convicted and sentenced under Crl.A(J) 59/2019 Page 2 of 41 Section 376(2)(l) of the Indian Penal Code, in short IPC and sentenced to Rigorous Imprisonment [RI] for 10 years and fine of Rs.5,000/- with default stipulation. [2] The genesis of the prosecution case is rooted in the FIR lodged by Sri xxx[name withheld][PW-5] with the Officer in charge Jatrapur Police Station on 16.01.2015 at 2.45 p.m. alleging inter alia, that on 15.01.2015 at about 4 O'clock in the afternoon when his mentally retarded victim daughter was playing with 2 other girls of her village in the nearby paddy filed, the appellant had taken her to the nearby jungle and committed rape on her. Based on this information, Jatrapur P/S case No.004 of 2015 dated 16.01.2015 under Section 376 IPC was registered. Initially, the investigation of the case was conducted by Sri Jahar Debbarma [PW-21], Sub-Inspector of Police of Jatrapur Police Station. Thereafter, from 17th January, 2015 the investigation of the case was carried out by Smt. Ashalata Debnath, a woman sub-inspector of police [PW-19] and on completion of the investigation, Smt. Debnath submitted the charge sheet sending up the appellant for trial for having committed offence punishable under Section 376(2)(l), IPC. Crl.A(J) 59/2019 Page 3 of 41 [3] The learned Sub-divisional Judicial Magistrate, Sonamura vide his order dated 29.04.2015 received the charge sheet along with the case diary and on perusal of the prosecution papers had taken cognizance of offence punishable under Section 376(2)(l) IPC and vide order dated 05.08.2015 committed the case to the Court of learned Sessions Judge of the Sepahijala Judicial District. [4] On commitment of the case, the trial begun against the appellant with the framing of charge against him. The charge framed by the learned trial court against the appellant reads as follows:
"That you, on or about the 15th January,2015 at about 04:00 PM at Manaipathar forcibly committed rape upon (name withheld), aged 20 years who had been suffering from mental and physical disability and you have thereby committed an offence punishable under Section 376(2)(l) of the Indian Penal Code and within my cognizance.
And I hereby direct that, you be tried on the said charge by this court."
The appellant pleaded not guilty to the charge and desired to stand the trial.
[5] In order to substantiate the charge against the appellant as many as 24 witnesses [PW1 - PW24] were examined and 19 documents [Exhibit 1 - Exhibit- Crl.A(J) 59/2019 Page 4 of 41 19/1] were relied upon by the prosecution. During his examination under Section 313 Cr.P.C the appellant was given an opportunity to adduce evidence on his defence. He pleaded innocence in his examination under Section 313 Cr.P.C and claimed that the charge was foisted on him. He declined to adduce any evidence on his defence.
[6] The points arising for our consideration in the present appeal are as follows:
(i)Whether the victim was a mentally
retarded person when the offence was
committed on her.
(ii)Whether the appellant has committed rape on her and been guilty of offence punishable under Section 376(2)(l) IPC. [7] We have heard Mr.P.K.Biswas, learned Sr. Adv. appearing along with Mr.P.Majumder, learned Adv. on behalf of the appellant. We have also heard Mr. S.Ghosh, learned Additional PP, appearing for the State respondent.
[8] The main contention of Mr. Biswas, learned counsel of the appellant is that during medical Crl.A(J) 59/2019 Page 5 of 41 examination of the victim conducted by doctor Ipsita Majumder [PW-22] only day after the occurrence, no sign of rape was found and it was clearly opined by doctor Majumder in her report that there was no sign of recent sexual intercourse and no sign of struggle. It is, therefore, argued by Mr. Biswas, learned counsel that the finding of the learned trial judge is not based on proper appreciation of evidence and as such the judgment of conviction of the appellant is grossly erroneous and unsustainable. Further argument on behalf of the appellant is that in the vaginal swab of the victim no seminal stain or spermatozoa was detected in forensic examination which totally falsified the prosecution story of rape and as such the appellant deserves exoneration from the charge of rape. Further contention on behalf of the appellant is that Malin Noatia[PW-9] is stated to have witnessed the occurrence along with Kartik Noatia. But Kartik Noatia [PW-11] does not support the evidence of Malin Noatia [PW-9]. Moreover, it is stated by PW-9 that inspite of seeing the accused committing offence, he along with PW-11 did not make any attempt to restrain the appellant because the appellant had a Dao with him Crl.A(J) 59/2019 Page 6 of 41 which according to learned counsel is quite improbable. It is argued by learned counsel that in all probability the PWs would have at least raised hue and cry if they really witnessed such occurrence. It is contended by learned counsel that the leaned trial court committed an error by relying on their evidence. Finally it is argued by Mr.Biswas learned counsel that the evidence of the prosecution witnesses is full of contradictions on material points and conviction based on their evidence is not at all sustainable. Learned counsel, therefore, urges the court for setting aside the judgment of conviction and sentence of the appellant. [9] Mr.S.Ghosh, learned Additional PP representing the State Respondent on the other hand has contended that trial court's judgment is based on cogent evidence and sound reasoning which does not call for any interference in appeal. According to Mr. Ghosh, learned Addl. PP, it has been proved by the evidence of doctor Bhubaneswar Roy [PW-24] that the victim had been suffering from mental retardation with 90% disability and it has also been proved by cogent, consistent and persuasive evidence of the prosecution witnesses that the appellant taking the opportunity of Crl.A(J) 59/2019 Page 7 of 41 her disability had committed rape on the victim. It is contended by Mr. Ghosh, learned counsel that the victim and her two playmates have given a very natural and consistent evidence in support of the involvement of the appellant in the commission of the offence. Learned counsel, therefore, urges the court to maintain the conviction of the appellant by setting aside his appeal.
[10] Before dealing with the rival contentions of learned counsel of the parties, it would be appropriate to take stock of the evidence of the prosecution witnesses.
[11] PW-1, Smt. Manika Debbarma is a woman constable of police who accompanied the victim to Kathalia Community Health Centre on 16.01.2015 for her medical examination pursuant to the direction of the Officer-in-charge of the Police Station. According to the PW, Dr. Smt. Ipsita Majumder[PW-22] held her medical examination and thereafter handed over to the PW, four containers containing the body fluids of the victim for forensic examination. These containers were seized by the IO at the health centre in her presence and as a witness she signed the seizure list. Her cross Crl.A(J) 59/2019 Page 8 of 41 examination was declined by the prosecution. Her evidence, is, therefore, limited to the medical examination of the victim by PW-22 and seizure of the four containers containing the body fluids of the victim. [12] PW-2, Smt. Lalita Bhowmik(Debbarma)is another woman constable of police who accompanied PW-1 to the Community Health Centre on 16.01.2015 and witnessed the medical examination of the victim by Dr. Smt. Ipsita Majumder [PW-22] and seizure of the body fluids of the victim in 4 containers. Her cross examination was also declined by the prosecution. [13] PW-3, Smt. Dhanalaxmi Debbarma is another woman constable of police in whose presence woman Sub-Inspector Smt. Ashalata Debnath, the Second Investigating Officer of the case [PW-19] had seized the wearing apparels, blood sample etc. of the victim at the police station. The PW was not subjected to any cross examination.
[14] PW-4, Sri Rajesh Paul was also a constable of police at Sonamura police station on 17.01.2015. Smt. Ashalata Debnath, Second IO [PW-19] seized the wearing apparels, blood sample etc of the victim at Crl.A(J) 59/2019 Page 9 of 41 Sonamura PS by a seizure list in his presence. There was no cross examination of PW4.
[15] PW-5, Shri xxx[name withheld] is one of the most material witnesses of this case because he is the father of the victim and the first informant of this case. According to him, on the date of occurrence he was away from home along with his wife. He and his wife on that day had gone to the matrimonial home of their elder daughter leaving the victim at home. On the following day, when he returned home along with his wife, the two playmates of his victim daughter met him and told him that when they were playing together, the day before, the appellant entered into their dwelling house who after taking the victim in his lap, left for the ganja plantation nearby their home. These girls also informed the PW that immediately thereafter, they informed the matter to his son Amal Noatia[PW-12]. Then his son Amal along with Malin Noatia [PW-9] and Kartik Noatia [PW-11] went to the ganja plantation and witnessed the appellant committing rape on her daughter. They could not prevent the appellant because he was armed with a Dao. Seeing them, the appellant Crl.A(J) 59/2019 Page 10 of 41 fled away and his son rescued his daughter and brought her home.
The PW was subjected to a lengthy cross examination. The contradictions between his previous statement recorded by the IO under Section 161 Cr.P.C and the statement made before the court were pointed out by the cross examiner and lot of suggestions were also put to the witness all of which were denied by the witness. One of these suggestions was that his victim daughter had physical relationship with many people of his neighborhood which was denied by the witness. It was also suggested to him that having returned home day after the occurrence, he learnt that somebody had taken away the ganja plants which were planted by him and therefore, he filed a false case against the appellant. While denying the suggestions the appellant also denied to have any ganja plantation. [16] PW-6, the victim [name withheld] in her deposition told the court that on a day about a year back she was playing with two girls namely Hritukanya @Kasam [PW-10] and Hrishita[PW-14] of her village in an open place near her home. The appellant came Crl.A(J) 59/2019 Page 11 of 41 there and allured her with a biscuit. When she had gone to him for biscuit, the appellant had taken her to the nearby ganja plantation and committed rape on her. Her playmates Hritukanya @Kasam [PW-10] and Hrishita[PW-14] also followed them and saw the accused appellant committing rape on her. The victim also told the court that on the date of occurrence her parents had gone to visit her elder sister at Bhadrabari. She shared the details with her parents when they returned home on the following day.
The PW was subjected to cross examination. During her cross examination she was suggested that she being tutored by her parents made false statement before the court which was denied by her. It was also suggested to her that she gave false statement before the magistrate. It was also denied by her. Suggestions that the appellant did not allure her with biscuit and that he did not commit rape on her were also denied by the PW.
[17] PW-7, Smt. YYY[name withheld] is the mother of the victim. She has deposed at the trial that her victim daughter had been suffering from mental and physical disability and she was taken to many Crl.A(J) 59/2019 Page 12 of 41 doctors for her treatment who opined that there was no possibility of her recovery. It has been deposed by the PW that the occurrence took place in one afternoon when she along with her husband had gone to the matrimonial home of their eldest daughter at Bhadrabari. When they returned home on the following day, her neighbours, Malin Noatia PW-9 and Kartik Noatia, PW-11 met her at home and told her that after their departure from home, the day before, the appellant had taken her victim daughter to the ganja plantation and committed rape upon her. It has also been stated by the PW that Hritukanya@Kasam[PW-10] and Hrishita [PW-14] also met her and told the same incidence to her. When she asked her victim daughter about the occurrence she also narrated the incidence to her.
The PW was subjected to an incisive cross examination. In her cross examination the PW stated that Shyamal Noatia was her eldest son who used to reside in a separate house at Talmani Para along with his family. It was also stated by the PW in cross that when she returned home along with her husband day after the occurrence, her victim daughter was not at Crl.A(J) 59/2019 Page 13 of 41 home. She was subsequently brought from the house of her eldest son. During her cross-examination she voluntarily explained to the court that after the incidence, her victim daughter took shelter in the house of her eldest brother Shyamal Noatia because it was apprehended by her that she might be reprimanded by her parents for the occurrence. The PW also admitted in cross that her youngest son Amal Noatia[PW12] used to reside with her in the same house along with his wife. The PW denied the suggestion of the appellant that on the date of occurrence while going to the matrimonial home of her eldest daughter along with her husband they dropped their victim daughter in the house of their eldest son. The PW admitted that Malin Noatia [PW-9] was her nephew. The PW also denied that they had a land dispute with the appellant for which they falsely implicated him in the case.
[18] PW-8, Sri Laxmi Kumar Noatia is the neighbor of the victim. He deposed that the victim was known to him and according to him she is a mentally retarded person. It is stated by the PW that day after the occurrence police visited the house of the victim and the PW came to know that the appellant had Crl.A(J) 59/2019 Page 14 of 41 committed rape on the victim. In his cross-examination he stated that his house was situated near the house of the victim and PW-12, Amal Noatia, brother of the victim live in the same house with his parents along with his wife.
[19] PW-9 is Malin Noatia who is also stated to be the cousin brother of the victim. The PW has stated that on the date of occurrence at about 4 O'clock in the afternoon he was returning from Manaipathar market along with Kartik Noatia [PW-11]. On his way he noticed the appellant going towards a low land along with the victim and they were found entering into the ganja plantation. The PW and Kartik Noatia [PW-11] followed the appellant and found the appellant committing rape on the victim. The victim was found naked at that time. They could not restrain the appellant because he was armed with a Dao. They rushed to the house of the victim and narrated the incidence to her brother Amal Noatia [PW-12]. On the following day when the parents of the victim returned home from the house of their eldest daughter, the PW also narrated the incidence to them. During his cross- examination he told that subsequently he along with Crl.A(J) 59/2019 Page 15 of 41 Kartik Noatia[PW-11] rescued and victim and brought her home from the place of occurrence. He admitted in cross examination that the informant was his uncle. Suggestion was put to the PW on behalf of the appellant that he did not see the appellant committing rape on the victim and he did not rescue the victim from the place of occurrence which were denied by the PW.
[20] PW-10 is Miss Hritukanya@Kasam Noatia who was eight years old on the day when she came to court for giving evidence. It appears that the learned trial Judge tested her capacity before recording her evidence and after being assured that she was competent to give evidence, the learned trial Judge recorded her evidence. In her examination in chief the PW supported the prosecution case and asserted as follows:
"About one year back, one day in the afternoon myself and my elder sister Hrishita Noatia were playing a game namely, "Golla Chur" in a open place nearby our house at Manaipathar. At that time, the victim (name withheld) was observing our play by standing at a place on that playground. Suddenly, we saw accused Bimal (identified by witness in the dock) to call the victim from a nearby place. Thereafter, myself and my Crl.A(J) 59/2019 Page 16 of 41 sister saw accused Bimal to take the victim towards a lunga land wherein ganja was planted. Then and there, we went to the house of the victim and informed the matter to our uncle....."
In the cross-examination, a suggestion was put to her that she gave false statement as per the instruction of the father of the victim. She denied the suggestion. She also denied all other suggestions put to her by the appellant.
[21] PW-11, Sri Kartik Noatia deposed at the trial that on the material day, he along with Malin Noatia[PW-9] were going to the local market at Manaipathar. On the way when they reached near Nabakumar Chandra Para school, they saw the appellant proceeding towards a low land holding the hand of the victim. The PW came to market but Malin Noatia[PW-9] followed the appellant and the victim. Later on, the PW came to know that the appellant committed rape on the victim. The PW was declared as hostile to prosecution. The Addl. PP with the permission of the trial court, then cross examined the PW on the ground that he resiled from his previous statement recorded by the IO under Section 161 Cr.P.C. In his cross examination by the PP the PW stated that he saw Crl.A(J) 59/2019 Page 17 of 41 Hritukanya Noatia@Kasam[PW10] and Hrishita[PW-14] playing together on the play ground of Nabakumar Chandra Para school and at that time the appellant was taking the victim towards a low land in the area. He also stated that on the date of occurrence the parents of the victim were not available at home because on that day they had gone to the matrimonial house of the eldest sister. He denied to have received money from the appellant for giving false evidence against him.
In his cross examination on behalf of the appellant he stated that he gave statement before the Judicial Magistrate during the investigation of the case as per instruction of the father of the victim. The PW also stated that he gave statement before the police during investigation as per instruction received by him from the father of the victim[PW5] and Malin Noatia[PW9]. A suggestion was put to the PW that he did not see the appellant going towards the lunga land along with the victim when he and his cousin Malin Noatia [PW9] were going to the local market at Manaipathar. The suggestion was denied by the PW. [22] PW-12, Sri Amal Noatia is the elder brother of the victim. He stated in his examination in chief that Crl.A(J) 59/2019 Page 18 of 41 his victim sister was mentally and physically disabled since her childhood. On the date of occurrence he was at his home. At around 4.20 p.m Malin Noatia[PW9] and Kartik Noatia[PW11] met him at his home and told him that the appellant committed rape on his sister at a low land wherein the appellant planted ganja. The PW then asked his wife Smt. Milan Devi to go and see what happened to his sister. After his wife left, he along with his cousins Malin Noatia[PW9] and Kartik Noatia[PW11] also proceeded to the place of occurrence and saw the appellant leaving the place with a Dao in his hand. He did not find his sister there. Then the PW returned home and came to know from his wife that the appellant had committed rape on his sister. His wife also told him that after sharing the incident with her, the victim left for the house of her elder brother Shyamal Noatia at a distance of 1km. from there. His parents returned home on the following day at about 8 O'clock in the morning and brought back his victim sister from the house of his elder brother and after hearing the incident from his victim sister his father reported the matter to police.
Crl.A(J) 59/2019 Page 19 of 41 In his cross examination, it was suggested to the PW that the victim would have certainly raised alarm if any unknown person tried to take her to some where against her will. The PW admitted the suggestion. It was also suggested to the PW on behalf of the appellant that they planted ganja around their lake and when his father found their plantation damaged by somebody; his father suspected the appellant and lodged the false case against him. The suggestion was also denied by the PW. Rest of the cross examination of the PW only contains suggestions and denials of those suggestions.
[23] PW-13, Sri Asish Majumder is the scribe of the Ejahar [Exhibit-9] on the basis of which the case was registered. The PW identified the Ejahar which has been scribed by him and told that it was written by him according to the version of the first informant. [24] PW-14, Smt. Hrishita Noatia is another child witness who was allegedly playing with PW10, Hritukanya@Kasam when the occurrence took place. The learned trial Judge tested the capacity of the witness and after being assured that she was capable of giving evidence, the learned trial Judge recorded her Crl.A(J) 59/2019 Page 20 of 41 evidence. In her examination in chief the PW has asserted as follows:
"On the day of last 'Poush Parban' in the afternoon myself and my younger sister Hritukanya Noatia were playing on a vacant land nearby our home at Manaipathar. At that time, the victim(name withheld) was also observing us to play 'gula chur'. All on a sudden, myself and my younger sister saw accused Bimal of our locality to call the victim and as soon as the victim reached to accused Bimal, he took the victim towards a lunga land. Thereafter, myself and my younger sister returned home and narrated the incident to our uncle. The house of accused Bimal is situated adjacent to Naba Kumar Chowdhury para High School."
In her cross examination it was suggested to the PW that she did not see the appellant calling the victim towards a low land (lunga). The PW denied the suggestion.
[25] PW-15, Smt. Milan Debi Noatia is the wife of PW12, Amal Noatia and the sister in law of the victim. She stated at the trial that on the material day her father in law and mother in law had gone to the matrimonial home of their eldest daughter. In the afternoon, Malin Noatia and Kartik Noatia, cousins of her husband came to their house and informed that the appellant committed rape on her sister in law. By that time her victim sister in law also returned to her home. The PW came to know from the victim that the appellant had taken her to a low land (lunga) and Crl.A(J) 59/2019 Page 21 of 41 committed rape on her. When her father in law and mother in law returned home on the following day, the PW told them about the incidence. In her cross examination the PW stated that she along with her husband Amal Noatia, victim sister in law and her parents in law live in the same house in a common mess. It was also stated by her that on the date of occurrence they did not report the matter to police or anyone else. It was stated by the PW that on the following day the neighbouring people, relatives and the village panchayet were informed about the occurrence. Rest of her cross examination consists of various suggestions of the appellant and denials of those suggestions by the PW.
[26] PW-16, Dr. Sabyasachi Nath is the Senior Scientific Officer cum Chemical Examiner of the State Forensic Science Laboratory. He examined the vaginal swab of the victim and wearing apparels of the victim and those of the appellant at the Forensic Science Laboratory and during examination and analysis, the PW could not detect any seminal stain or spermatozoa of human origin on the exhibits.
Crl.A(J) 59/2019 Page 22 of 41 [27] PW-17 is Dulan Chandra Datta, Inspector of police who registered the case after receiving the written Ejahar [Exhibit-9] from the father of the victim. [28] PW-18, Doctor Smt. Sharmistha Das examined the appellant on 27.02.2015 at Sonamura Community Health Centre and subjected him to potentiality test and found the appellant capable of committing sexual intercourse. Her report has been proved as Exhibit-13.
[29] PW-19, Smt. Ashalata Debnath is a woman sub-inspector of police who examined the material witnesses of the case and recorded their police statement during her investigation. She also conducted raid in the house of the accused for arresting him but the accused was found absconding. She then engaged secret source for his arrest and later came to know that the accused had surrendered before the trial court on 04.02.2015. Since the victim was suffering from mental retardation she produced the victim before the Standing Medical board at AGMC and GBP Hospital at Agartala and the medical board after examination of the victim opined that she was suffering from 90% mental disability. The PW, on completion of Crl.A(J) 59/2019 Page 23 of 41 investigation submitted charge sheet against the accused appellant under Section 376(2)(i)IPC. It was suggested to the PW on behalf of the appellant that he delayed in recording the statement of Hritukanya@ Kasam [PW10] and Hrishita [PW14] because it took time for the prosecution to include these children in the conspiracy against the accused appellant. The PW denied the suggestion.
The PW also stated in cross that the victim did not tell her that when the appellant committed rape on her, Hritukanya@Kasam[PW10] and Hrishita [PW14] noticed the incident. It was further stated by the PW that the victim did not also tell her that she narrated the whole incident to her parents after they returned from the matrimonial house of their eldest daughter.
[30] PW-20, Hena Begam was a Judicial Magistrate at Sonamura who recorded the statement [Exhibit-10/1series] of Smt. Hrishita Noatia [PW14] under Section 164(5) Cr.P.C. The PW also recorded the statement of Smt. Hritukanya Noatia@Kasam[PW10] under Section 164(5) Cr.P.C. She further stated that on the same day she also recorded the statement of the Crl.A(J) 59/2019 Page 24 of 41 victim under Section 164(5)Cr.P.C [Exhibit-14]. Apart from their statement the PW also recorded the statement of Kartik Noatia [Exhibit-8] and the statement of Malin Noatia [Exhibit-4/1] under Section 164(5) Cr.P.C.
[31] PW-21, Sri Jahar Debbarma was an SI of Police at Jatrapur PS on 16.01.2015 who had carried out the initial part of the investigation of the case. Thereafter, he handed over the case docket to Smt. Ashalata Debnath [PW19] for concluding the investigation. During his part of the investigation, PW21 seized the wearing apparels of the victim and forwarded the same to State Forensic Science Laboratory for examination of the seized items. He also produced the victim girl at the hospital for her medical examination and collected the reports. During his part of investigation he also conducted raid in the house of the accused but he could not arrest the accused appellant because he was absconding. In cross examination he denied that his investigation was performtary. [32] PW-22 Doctor Smt. Ipsita Majumder clinically examined the victim at Kathalia CHC in Sepahijala District on 16th January, 2015. At the time of Crl.A(J) 59/2019 Page 25 of 41 examination she found the victim mentally retarded and therefore, she had procured consent of her mother before subjecting her to medical examination. According to the PW she found no sign of struggle and no seminal stain or any other stain in her private area. She did not also find any hair, fibre or grass present in her wearing apparels. No injury mark was also detained on her body. During her pre vaginal examination, the PW found that her hymen was torn but the rupture was old. After examination of the victim, she gave her opinion. She opined that there was no hymen; there was no sign of struggle and recent sexual intercourse. Her report has been proved as Exhibit-17. [33] PW-23 is Doctor Smt. Nabanita Banik. She used to work as a clinical psychologist at AGMC and GBP hospital at Agartala. According to the PW after the victim was produced before the Standing Medical Board of AGMC and GBP hospital she was referred to the PW for her IQ assessment. She made the assessment and submitted the report to the Standing Medical Board. According to the PW, the victim suffered severe mental retardation with 90% disability.
Crl.A(J) 59/2019 Page 26 of 41 [34] PW-24, Doctor Bhubaneswar Roy, Assistant Professor, Department of Psychiatry in AGMC and GBP hospital was a member of the State Medical Board on 16.02.2015. Police produced the victim before the Standing Medical Board for her examination. The victim was then referred to the Department of Psychiatry. After her examination the medical board came to the opinion that the victim was suffering from mental retardation with 90% disability. Their report has been proved as exhibit-19. The PW was cross examined on behalf of the appellant. In cross examination the PW made the following statement which is very significant in the context of the case:
"If the victim is produced for recording her statement she should give rational answer of any simple question put to her but she is not able to give any rational answer of critical question.
She is also able to give statement in respect of any past special event happened before 5 years."
In a voluntary statement made before the court, the PW stated that the victim would be able to recollect any special event.
Crl.A(J) 59/2019 Page 27 of 41 [35] In the instant case, the appellant has been charged with Section 376(2)(l) IPC which reads as under:
"376. Punishment for rape.--(1).......
(2)whoever,-
...................................................... ......................................................
(l)Commits rape on a woman suffering from mental or physical disability; or
(m)...............................................
(n)................................................
Shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine."
[36] Therefore, to establish the charge under Section 376(2)(l), IPC, it has to be proved that the victim had been suffering from mental and physical disability at the time of commission of rape on her. With regard to her mental disability, PW24, Dr.Bhubaneswar Roy, Assistant Professor of Psychiatry in AGMC and GBP hospital has deposed that the victim was produced before the Standing Medical Board to ascertain her mental disability. She was then referred by the Board to the clinical psychologist (PW23) for her IQ assessment. After the IQ assessment was done by Crl.A(J) 59/2019 Page 28 of 41 PW23, she was examined by the Board of psychiatry on 19.02.2015 and thereafter, by the Standing Medical Board on 26.02.2015 and the Standing Medical Board in their report [Exhibit-19] opined that the victim had been suffering from mental retardation with 90% disability. The appellant could not demolish the evidence of PW23 and PW24 in their cross-examination. Apart from the medical evidence of PW23 and PW24 the father of the victim also stated in his FIR [Exhibit-9] that his victim daughter was mentally retarded and he also supported his FIR statement regarding mental disability of his daughter while testifying at the trial as PW-5. The fact was also supported by PW-7, mother of the victim and other witnesses which was finally assured by the medical evidence. There is, therefore, no doubt that the victim was a mentally retarded person.
[37] With regard to the age of the victim there is no dispute that she was 21 years old at the time of occurrence. Though she was major in age at the time of occurrence, the consent factor is immaterial in the instant case because of her proven mental disability. The law is clear in this regard. Section 375 IPC, which Crl.A(J) 59/2019 Page 29 of 41 defines rape, clearly provides in the 5th description under it that if a person indulges in sexual intercourse with a woman even with her consent, when, at the time of giving such consent, she was unable to understand the nature and consequence of the act to which she gave consent by reason of her unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or wholesome substance, such sexual intercourse shall amount to rape. In the present context it has been clearly established that the victim was mentally retarded person and therefore, though she was adult in age, her consent was immaterial in view of the 5th description of Section 375 IPC. Now, the question which needs to be decided is whether the appellant had indulged in any sexual intercourse with the victim on the alleged date of occurrence at the alleged place. [38] The six material witnesses, who are the eye witnesses, can be said to be PW-6, the victim, PW-9, Malin Noatia, PW-10, Hritukannya Noatia@Kasam, PW- 11,Kartik Noatia, PW-12,Amal Noatia and PW-14, Hrishita Noatia whose statements need to be carefully appreciated.
Crl.A(J) 59/2019 Page 30 of 41 [39] It has surfaced on record that seven days after the occurrence, the victim was produced before the Judicial Magistrate First class at Sonamura for recording her statement [Exhibit-14] under Section 164(5) Cr.P.C wherein she stated as follows:
"On the date of occurrence the appellant offered me a biscuit and he had taken me into a small room in the nearby ganja plantation and committed rape on me."
[40] While testifying in court a year thereafter, she elaborated her statement and stated that she was lured away by the appellant by offering a biscuit and rape was committed on her by him in the nearby ganja plantation. She has also stated that Hrishita and Hritukannya @Kasam, her playmates also followed her and saw the accused committing rape on her. [41] But, her playmates Hrishita[PW14] and Hritukannya@Kasam[PW10] do not support her statement that they witnessed the accused committing rape on her. In this regard, Hritukannya Noatia@Kasam [PW10] supported the statement of the victim to the extent that when she was playing game with her elder sister Hrishita near their home, the victim was seeing Crl.A(J) 59/2019 Page 31 of 41 them playing from a nearby place. Suddenly the appellant came and took the victim away to the ganja plantation. Thereafter she and her sister went to the house of the victim and informed the brother of the victim about what they had seen. She never said that she witnessed the accused committing rape on the victim. Even when her statement [Exhibit-5/1 series] was recorded under Section 164(5) Cr.P.C. during investigation, she only stated that on the date of occurrence when the victim was seeing them playing, the appellant came and took her to the nearby low land (lunga).
[42] Similarly, her sister Hrishita Noatia[PW14] in her statement recorded under Section 164(5)Cr.P.C. [Exhibit-10/1 series] stated that when she was playing with her sister on the date of occurrence, the victim was seeing them playing and at that time the appellant being drunk came there and took away the victim. Then they returned home. Similarly, Hrishita [PW14] stated in court that they were playing and the victim was seeing them playing. Then the appellant came and took the victim towards a low land(lunga) and thereafter she along with her sister returned home. She did not Crl.A(J) 59/2019 Page 32 of 41 support the evidence of the victim that she witnessed the accused committing rape on her.
[43] Remarkable discrepancies and contradictions are noticed in the evidence of Malin Noatia[PW9] and Kartik Noatia [PW11]. PW9 Malin Noatia who is stated to be a cousin brother of the victim has stated that on the date of occurrence at about 4 O'clock in the afternoon when he along with Kartik Noatia [PW11] was returning home from Manaipathar Bazar, he saw the appellant accompanied by the victim going towards a low land(lunga). He followed them along with his cousin brother Kartik[PW11] and saw the appellant committing rape on the victim. According to the PW, they did not make any attempt to restrain the appellant from committing the offence because he was armed with a Dao. He then rushed to the house of the victim along with PW11 Kartik and informed her elder brother Amal Noatia[PW12] about the occurrence. Significantly, PW11 Kartik does not lend assurance to the evidence of PW9, Malin Noatia with regard to their witnessing the commission of rape on the victim. It is stated by Kartik[PW11] that when he was accompanying Malin Noatia[PW9] from Manaipathar Bazar, they saw the Crl.A(J) 59/2019 Page 33 of 41 appellant proceeding towards a low land(lunga) holding the hand of the victim. Then Kartik[PW11] left and Malin Noatia [PW9] followed the appellant. He does not say that he witnessed the appellant committing rape on the victim. Amal Noatia [PW12], elder brother of the victim, on the other hand, has stated that both Kartik and Malin met him in his house and informed him that his sister was raped by the appellant. He then sent his wife to enquire into the matter. Later he had gone to the place of occurrence along with Kartik and Malin and saw the appellant proceeding towards a tilla land (high land) with a Dao in his hand and they let him go. [44] We are not oblivious of the fact that the victim was suffering from mental retardation and she was not expected to recapitulate all minute details of the incident. But, in view of her vulnerability to tutoring, her evidence needs some assurance from other witnesses, particularly when there were other eye witnesses to the occurrence.
[45] Among the eye witnesses, Hritukannya Noatia@Kasam [PW10] is 8 years old and Hrishita Noatia[PW14] is 10 years old. Learned trial court recorded their statement after testing their capacity to Crl.A(J) 59/2019 Page 34 of 41 give evidence. None of those witnesses saw the appellant committing rape. Hritukannya said, when they were playing in the afternoon near their home the appellant came there and called the victim. Then, she saw the appellant taking the victim towards lunga (low land) whereas Hrishita said as soon as the victim reached to the appellant he had taken her to the lunga (low land). None of them saw the appellant alluring the victim with any biscuit as told by the victim or applying any force to her for taking her away from the playground. The appellant was no stranger to the victim. He used to live in the same neighbourhood. Therefore, even if she was seen going with the appellant, the charge of rape cannot be said to have been proved against the appellant unless there are cogent and reliable evidence in support of the charge. Though PW11Kartik Noatia was declared hostile, his evidence, in so far as presence of the victim and the appellant is concerned cannot be disbelieved. Presence of the victim with the appellant is also supported by the two child witnesses namely PW10 and PW14. But mere presence of the victim with the appellant is not enough to prove the charge of rape against the appellant. Crl.A(J) 59/2019 Page 35 of 41 [46] Apparently there are material exaggerations in the evidence of PW5 who is the father of the victim and first informant of the case. In the FIR[Exhibit-9] lodged by him, he stated that his victim daughter was playing with PW-10 and PW-14 in a paddy filed near their home when the appellant came and forcibly took away his daughter and raped her. But in his testimony at the trial he gave a different version where he stated that his daughter was lying on a cot inside his house from where the appellant had forcibly taken away his victim daughter in presence of PW10 and PW14 and committed rape on her at a nearby place. But PW10 and PW14 do not lend support to his evidence. PW5 kept saying that the two children (PW10 & PW14) who were playing inside his house then informed his son Amal Noatia[PW12] who along with PW9 and PW11 went to the place of occurrence and saw the appellant committing rape on the victim. According to PW5, they could not prevent the appellant because the appellant was armed with a dao.
[47] The story of PW5 that his son Amal Noatia[PW12] and his nephews PW9 and PW11 could not prevent the appellant from committing the offence Crl.A(J) 59/2019 Page 36 of 41 as appellant was armed with a dao does not stand to reason because PW12, PW9 and PW11 were all grown up men and moreover the victim was the own sister of PW12 and cousin sister of PW9 and PW11. It is quite improbable that the appellant would have committed rape on their sister in their presence. It is equally improbable that they would not have prevented the appellant from committing the overt act on their sister inspite of being together only in fear of a dao. Furthermore, it is no case of prosecution that the appellant in any way terrorized them with the weapon or threatened them that their sister would be harmed in case they try to prevent him. PW 10 and PW14 did not also see any dao with the appellant when they allegedly saw him taking away the victim in their presence. The evidence of PW 5 that his son and his nephews PW9 and PW11 had seen the appellant committing the offence is also demolished by the evidence of his daughter in law PW15 who stated that when PW9 and PW11 came to inform her husband about the occurrence, her victim sister in law had returned home. [48] As noted above, PW-9 Malin Noatia and PW- 11Kartik Noatia, are the other two eye witnesses who Crl.A(J) 59/2019 Page 37 of 41 allegedly saw the occurrence. They gave contradictory evidence. We have noticed that the discrepancies and contradictions appearing in their evidence are so significant that it has become unsafe to rely on their evidence. The reaction of Amal Noatia [PW12], the elder brother of the victim, after he came to know about the occurrence is more startling. Instead of rushing to the PO, the PW sent his wife for an inquiry and later when he went there along with Malin Noatia and Kartik Noatia, he saw the appellant and let him go without asking him anything which appears to be quite improbable.
[49] We have examined the prosecution story from the probability point of view. According to the father [PW5] of the victim, his daughter was lying on a cot inside the house when PW10 and PW14 were playing nearby. His son [PW12] and his daughter in law were also present in the house at that time. The appellant, a 50 years old man then came and forcibly took away the victim and committed rape on her at a nearby place and that too in presence of PW9, PW11 and PW12 in broad day light and PW9, PW11 and PW12, three brothers of the victim, could not prevent Crl.A(J) 59/2019 Page 38 of 41 the appellant because he was armed with a dao. The story as unfolded by PW5 at the trial is as follows:
"On the following day, at about 07.00 AM while myself and my wife returned home at that time two minor girls of our locality namely, Ritukanya Noatia and Hrishita Noatia met with me at my residence and told me that on the previous day, when myself and my wife left our home my youngest daughter [name withheld] was lying on a cot inside our dwelling house and those minor girls namely Ritukannya and Hrishita were playing together inside our home. But after expiry of few minutes, accused Bipul Bhowmik@Bimal entered into our dwelling house and forcibly took my youngest daughter [name withheld] in his lap and took my daughter to a nearby lunga land wherein accused Bipul Bhowmik @ Bimal made a ganja plantation. Thereafter, those minor girls informed the matter to my youngest son Amal Noatia and others when my son Amald Noatia along with Kartik Noatia and Milan Noatia rushed to the ganja plantation of accused Bimal Bhowmik and saw accused Biumal Bhowmik to commit rape upon my youngest daughter forcibly and at that time, accused Bipul Bhowmik was armed with a dao.
My son and his associates could not detain accused Bipul Bhowmik since he was armed with dao. However, accused Bipul Bhowmik fled away from that place leaving my youngest daughter thereat with serious injuries. Thereafter, my son and others took my injured daughter to our home from the place of occurrence. Subsequently, on being asked by me, my youngest daughter [name with held] also narrated the same story to me and my wife."
[50] On a careful examination of the evidence of PW5 in the background and context of other evidence Crl.A(J) 59/2019 Page 39 of 41 on record, the prosecution case, as a whole, appears to be very doubtful to us.
[51] Another infirmity appearing in the case is that before recording the evidence of victim PW6, the learned trial court did not test her capacity as to whether she was capable of giving rational answers to the questions put to her. This was necessary because she was reportedly suffering from serious mental retardation.
[52] It also assumes significance that even though the family members of the victim including her two elder brothers namely Amal Noatia and Shyamal Noatia had full knowledge about the occurrence, the matter was not reported to police. Police was informed only after the parents of the victim came back home from the matrimonial home of their eldest sister. The likelihood of afterthought and false implication cannot therefore, be ruled out.
[53] Assurance is not also coming from the medical evidence. PW22, Dr. Ipsita Majumder, examined the victim at Kathalia Community Health Centre on 16.01.2015 i.e. the day after the occurrence. Crl.A(J) 59/2019 Page 40 of 41 In her detailed report [Exhibit-18] the PW has opined that there was no sign of recent sexual intercourse. The doctor's evidence also goes to show that there was no genital injury except that her hymen was torn and that too was old. It goes without saying that absence of injury or sign of struggle cannot favour the accused particularly when the victim was a mentally retarded person. But, the medical evidence that there was no fresh rupture in the hymen and there was no other evidence of recent sexual intercourse assumes significance in the given context.
[54] The wearing apparels of the accused and those of the victim were also seized and subjected to forensic examination. The vaginal swab of the victim was also subjected to DNA profiling in State Forensic Science Laboratory. PW16, Dr. Sabyasachi Nath, Sr. Scientific Officer cum Assistant Chemical Analyzer of State Forensic Science Laboratory (SFSL) has stated that no semen/ seminal stain / spermatozoa of human origin could be detected in the exhibits examined by him.
Crl.A(J) 59/2019 Page 41 of 41 [55] In view of what is stated above, we are unable to accept the findings of the learned trial court with regard to the conviction and sentence of the appellant.
In the result, the impugned judgment and order of conviction and sentence are set aside. The appellant shall be set at liberty forthwith, if he is not wanted in any other case.
Thus, the appeal stands allowed.
Send back the LCRs forthwith.
JUDGE JUDGE Saikat Sarma Crl.A(J) 59/2019