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Gauhati High Court · body

2000 DIGILAW 16 (GAU)

Thainga Mog v. State of Tripura

2000-01-10

M.L.SINGHAL

body2000
Three accused persons, namely, Thainga Mog, Mou Mog @ Akrai and Lebrasai Mog have been convicted under section 376 (2) (g) of the Indian Penal Code and each of them has been sentenced to 10 years RI and fine of Rs.5,000 and further to suffer rigorous imprisonment for (2) two months in default of payment of fine. All the three accused persons are appellants before this Court. 2. The prosecution story is that in the night of 19th January, 1994720th January, 1994 at about 1.20 AM, the three (3) accused persons, namely, Thainga Mog, Mou Mog and Lebrasai Mog first went to the house of Apangshi Mog, PW 2 who was sleeping with her husband and committed rape on her. Thereafter, all the three accused persons at about 2.30 AM went to the house of Khalow Mogini, PW 1 and out of the three accused only one accused Thainga Mog committed rape on her. A written FIR about the occurrence was lodged by Khalow Mog, PW 1 in the next day evening at 18.15 hours at Baikhora PS after covering a distance about 7 KMs. 3. All the three accused persons pleaded not guilty and claimed to be tried. The prosecution examined the prosecutrix Khalow Mogini PW1, Apangshi Mog PW 2, Smti Machinda Mogini PW 3, Chalow Mog PW 4, Santosh Deb PW 5, Kejari Mog Choudhury PW 6, Mangshi Mog PW 7, Dr. Subrata Paul PW 8, Bhaba Sankar Pal PW 9, IO Shri Ratan Bhowmik PW 10, and IO Shri Swapan Dey PW 11. The two prosecutrix namely, Khalow Mogini PW 1 and Apangshi Mog PW 2 though have deposed about the rape alleged to be committed by the accused persons but none of the witnesses nor the medical evidence adduced in the case has corroborated the prosecution story. In the medical examination of Khalow Mogini PW 1 held on 21st January 1994, the Medical Officer Shri Subrata Pal PW 8 though found two abrasions - one abrasion on the lower part of the elbow and another abrasion on right thigh and left ankle but has not found any injury on the private parts of the prosecutrix. In his medical examination report Dr. In his medical examination report Dr. Subrata Pal PW 8 has stated that the injuries found by him might be due to struggle of the victim with the assailant conversely, these cannot substantiate that she had violent sexual intercourse/gang rape within 24 hours of the occurrence. In medical examination of Apangshi Mog PW 2, the Medical Officer Dr. Subrata Pal found one bruise on the lateral aspect of middle part of right thigh of the prosecutrix but no injury was found on the private parts of the prosecutrix. The Medical Officer has given opinion that there was no positive sign of violent sexual intercourse/gang rape. As stated above Apangshi Mog PW 2 was having pregnancy of about six months. Had she been gang rape by three persons there must have been abortion or earlier termination of the pregnancy. Medical examination report does not support the theory of rape/gang rape taken by the prosecution. Kejari Mog Choudhury, PW 6 is the Pradhan of the village. It is alleged that in the next morning all the three accused persons were brought at the house of the Pradhan Kejari Mog Choudhury PW 6 and there the accused persons confessed their guilt before the Pradhan of the village and the villagers. The alleged confession is Ext P4/1. The alleged confession Ext P4/1 simply speaks of misdeeds of the accused persons and do not speak about the theory of rape. 4. Kejari Mog Choudhury PW 6 - Pradhan of the village has admitted in his cross examination that some rivalry exists between the husband of the informant and the accused persons relating to the dispute over some landed property though PW Khalow Mogini refuted the same. Smti Machindra Mogini PW 3 has deposed in her examination-in-chief that a dacoity was committed in the house of Khalow Mog PW 1 and on the following morning. Khalow Mog told her that the three accused persons committed dacoity in her house. Chalow Mog PW 4 has deposed that Khalow Mog PW 1 told her that the three persons dragged her from her house and took her on Paticherri Kalashi Road and pushed her flat on the road and thereafter the accused Thainga Mog committed rape under her. On the contrary in his cross examination he stated that the prosecutrix PW 1 did not state to him that she was raped by Thainga Mog. On the contrary in his cross examination he stated that the prosecutrix PW 1 did not state to him that she was raped by Thainga Mog. Sontosh Deb PW 5 has also deposed that on the date of the occurrence Khalow Mog PW 1 came to her house and told her that the three accused persons assaulted her and committed dacoity. She also did not state about the theory of rape. Though the witnesses have been declared hostile by the prosecution but the law is well settled that the mere fact that a witness is declared hostile by the party calling him and is allowed to be cross examined does not make him as unreliable witness so as to exclude his evidence from consideration altogether. So, even if the witnesses have been declared hostile, their evidence cannot be excluded from consideration. 5. In view of the discussion made above, it is clear that the theory of rape/ gang rape deposed by the two prosecutrix is not supported by the medical evidence or by the evidence of any of the witnesses. It is true that the statement of the prosecutrix requires no corroboration, if her statement is corroborated by medical and other evidence and circumstances of the case. But in the present case the e statement of the two prosecutrix is not corroborated by the medical evidence or other circumstances of the case. The learned Sessions Judge was therefore not justified in recording the conviction of the three accused persons under section 376 (2) (g) of the IPC. 6. The judgment dated 11.1.1996 under appeal is hereby set aside. The three accused persons, namely, Thainga Mog, Mou Mog @ Akrai and Lebrasai Mog are acquitted of the charge under section 376 (2) (g) IPC. All the accused persons are in jail, they shall be set at liberty from jail forthwith. Both the appeals succeed.