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2002 DIGILAW 293 (GAU)

State of Tripura v. Samirshel

2002-07-12

B.B.DEB

body2002
B.B. DEB, J.— The State of Tripura preferred this Criminal appeal against the judgment / order dated 30.1.1997 of acquittal recorded by the learned Additional Sessions Judge, West Tripura, Agartala in Session Trial No. 5 (W.T./S) of 1995. 2. Three accused persons, namely, Shri Dulal Chandra Debnath, shri Samir Shil and Shri Dulal Ghosh were tried on the charge under Section 3667.376 (2) (g) of the Indian Penal Code. The allegation against them was that on 21.5.1991 at about 10/11 p.m. (night) while the prosecutrix was asleep in her house, six miscreants trespassed into her house, pressed her mouth with cloth and forcibly dragged her out in a vacant place adjacent to the western side ofher house and committed rape one after another. Miscreant further threatened her not to divulge the incident to anybody otherwise she would be killed. She was able to identify three of the miscreants as they were previously known to her. On the basis of F.I.R. the case was registered and the statement of the prosecutrix got recorded under Section 164 Cr. P.C. by Judicial Magistrate, 1st Class and after completion of investigation charge sheet was filed, trial commenced and concluded on acquittal. Hence, this appeal. The prosecution examined as many as 12 P.Ws while the defence none. Unfortunately, the prosecutrix could not be examined during trial as she already died before the commencement of trial. The cause of death of the prosecutrix was not brought on record during trial nor was there any allegation that the death of the prosecutrix was any way connected with the incident of alleged rape. 3. No eye witness was available and normally at such dead hours of night availability of the eye witness could not be expected in the remote village. Only the F.I.R. Ext. P/5 as had been made by the informant and the medical evidence of Dr. P. W. 11 appear to be material in the present case. F.I.R. was lodged by the prosecutrix herself. She made oral allegation to the Police officer on the following day and the Police Officer recorded the same and the prosecutrix put her left hand thumb impression. In the F.I.R. description of the incident remain recorded and the name of the three accused persons are also available. F.I.R. was lodged by the prosecutrix herself. She made oral allegation to the Police officer on the following day and the Police Officer recorded the same and the prosecutrix put her left hand thumb impression. In the F.I.R. description of the incident remain recorded and the name of the three accused persons are also available. The learned trial court held that the F.I.R. being not a substantive piece of evidence, none could be convicted on the basis of the F.I.R. itself. 4. The learned Public Prosecutor, Tripura referred the illustration (a) of Section 32 of the evidence Act and submits that the F.I.R. Exbt. P/5 should have been treated as dying declaration being substantive piece of evidence. It is correct that under certain circumstances enumerated under Clause (1) to Clause (8) of Section 32 of the Evidence Act. "the statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts. "The clause (1) deals with the statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death; under clause (2) operates when the statement was made by such person in the ordinary course of his business; clause (3) deals with the statement made by such person against the pecuniary or proprietary interest of himself; clause (4) deals with the statement given by a person regarding existence of any public right or custom etc, while clause (5) deals with the existence of relationship by blood, marriage etc. of the person concerned, clause (6) deals with the statement made in will or deed relating to family affairs; Clause (7) deals with document relating to transaction mentioned in Section 13 (a) of the Evidence Act which pertains to any transaction by which right or custom in question was created, claimed, modified, etc. and the last clause (8) pertains to statement made by the number of persons expressing their feelings or impressions on their part relevant to the matter in question. 5. and the last clause (8) pertains to statement made by the number of persons expressing their feelings or impressions on their part relevant to the matter in question. 5. Admittedly, neither of the contingencies mentioned under Clause 1 to 8 of Section 32 of the Evidence Act covered the present case. The death of the prosecutrix was not a question in issue to be decided in the case. Perhaps, she died a natural death but in any event the death of the prosecutrix had never been related with the alleged incident of rape. 6. The learned Public Prosecutor Mr. D. Sarkar, having referred a decision in Rajindra Kumar, Appellant Vrs. The State of Punjab, respondent, reported in AIR 1960 Punjab 310, submits that the statement made by the prosecutrix who was subsequently found dead should have been treated as substantive piece of evidence in view of illustration (a) of Section 32 of the Evidence Act. On perusal of the afore cited decision it appears that one Din Dayal was kidnapped by the miscreants and he was repaid Rs. 2007- by the miscreants. The miscreants severaly assaulted said Din Dayal and left him un-cared for. The kidnapped was rescued and brought to hospital. He made statement to the I.O. Subsequently after long gap of time he died and in that case the cause of death of Din Dayal was attributed to the injuries sustained by him in transaction of kidnapping and the Hon'ble Punjab High Court rightly accepted the statement made by Din Dayal during investigation being declaration % made by him as to the cause of his death. But, in the present case. There is no allegation that prosecutrix died of the injuries she sustained in the transaction of the incident of rape nor the cause of death is an issue in the present case and, as such I cannot share with the submission made by the learned Public Prosecutor that the F.I.R. Exbt P/5 should be treated to be a substantive piece of evidence in view of illustration (a) of Section 32 of the Evidence Act. It is not the case of the prosecution that she died as a result of infection she sustained during the course of commission of rape. It is not the case of the prosecution that she died as a result of infection she sustained during the course of commission of rape. For better appreciation, the statutory illustration as appended to Section 32 of the Evidence Act is reproduced below: "Illustration: a) The question is, whether A was murdered by B. or A dies of injuries received in a transaction in the course of which she was revised. The question is whether she was ravished B, or The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts." 7. In the present case, the prosecution did not put forward any allegation that the prosecutrix died of the injuries received by her in the transaction wherein shawas ravished and, as such, the statutory illustration is under Section 32 of the Evidence Act cannot lawfully be pressed into service by the prosecution. 8. A profitable reference can be had on that score to a decision of the Hon'ble Apex Court in Sukhar, Appellant Vrs. State of Uttar Pradesh, Respondent, reported in 2000 CRI, L.J. p-29 9. It is settled proposition of law by catena of decision of the Hon'ble Apex Court, that the First Information Report could only be used for the purpose of corroboration or contradiction of the maker. It could be used as a supporting evidence to corroborate the substantive piece of evidence. There is no evidence on record oral or circumstantial substantive in nature to be corroborated by the contents of the F.I.R. I paid anxious look to the deposition of the medical evidence of Doctor, P. W. 11, available in the paper book to ascertain whether the prosecutrix divulged the name of any of the assailants to the Doctor at the time of her examination, but, hopelessly I found nothing. The Doctor, P. W. 11 examined her on 21.6.1991 itself. He found multiple natural mark injury on the prosecutrix back, bottom of various size and length. But the Doctor also failed to give a definite opinion as to the incident of rape. The Doctor, P. W. 11 examined her on 21.6.1991 itself. He found multiple natural mark injury on the prosecutrix back, bottom of various size and length. But the Doctor also failed to give a definite opinion as to the incident of rape. Among others the below quoted version of the Doctor is available in his deposition sheet recorded by the learned trial court: "However, I concluded my opinion by stating that the main ingredients of the offence of rape on the person of were not present and it was difficult for me to ascertain whether she was raped as she has already washed her private parts and clothing used at the time of alleged rape, (name of the prosecutrix has been deliberately avoided.)" 10. The prosecutrix did not disclose the name of any of the assailants to the Doctor nor even she disclosed how she sustained some injuries on her person. 11. The learned Public Prosecutor, submits that the prosecutrix made on oath statement before the learned Judicial Magistrate and that was recorded under Section 164 Cr. P.C. The statement recorded by the Judicial Magistrate during investigation under Section 164 Cr. P. C. undoubtedly is admissible in evidence unlike the statement recorded by the police officer under Section 161 Cr. P.C. But the character of the evidence so recorded under Section 164 Cr. P. C. cannot be classified to be a substantive piece of evidence. The Division Bench of our own High Court in the case of Gurnam Singh and Ratan Roy Vrs. State of Assam, reported in!996(I) GLT476, unambiguously held that the statement recorded by the Judicial Magistrate under Section 164 Cr. P.C. during investigation cannot be treated to be substantive piece of evidence, that can be used for constricting or corroborating the maker, that can also be used as aiding the piece of evidence to strengthen the substantive evidence already available. But in the present case, there is no piece of substantive evidence brought on record. The statement of witness recorded under Section 164 of the Cr. P. C. during investigation can not be termed to be an evidence substantive in character in view of the statutory definition given under Section 3 of the Evidence Act. But in the present case, there is no piece of substantive evidence brought on record. The statement of witness recorded under Section 164 of the Cr. P. C. during investigation can not be termed to be an evidence substantive in character in view of the statutory definition given under Section 3 of the Evidence Act. The characteristic of the oral evidence made by the witness before the competent Court during trial or enquiry into offence can only be treated to be substantive oral evidence in view of the statutory definition of oral evidence available under Section 3 of the Evidence Act and, as such, the oral statement of the prosecutrix recorded by the Judicial Magistrate, P.W. 12, during the investigation of the case, cannot be admitted to be a substantive piece of evidence. 12. Under the aforesaid discussion, it appears from the record of the trial Court that since there is no substantive piece of evidence, oral or circumstantial, the learned Trial Court rightly recorded his finding of acquittal in the impugned judgment which requires no interference. No compelling reason has been put-forward by the appellant prosecution, no perversity in the impugned judgment could be detected and, as such, the view taken by the learned trial Court acquitting the accused persons deserves not to be disturbed in the present appeal against acquittal. 13. In the result, the appeal fails and is hereby dismissed.