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2005 DIGILAW 125 (GAU)

Tapan Das v. State of Tripura

2005-02-11

A.B.PAL

body2005
JUDGMENT A.B. Pal, J. 1. Four appellants having been convicted under section 376(1) IPC and three of them also under section 354 IPC on the charge of committing rape and outraging modesty in Sessions Trial No. 147 (WT/A) of 1999 have challenged in this appeal their conviction and sentence imposed by the learned Addl. Sessions Judge, West Tripura, Agartala by the impugned judgment dated 10-12-2001. 2. The facts as set in by the prosecution is that on 9-6-98 at about 6 PM when the victim Saraswati Das, an unmarried girl aged about 20 years was returning home from her brother's shop, the appellants getting her alone on the road suddenly swooped on her, dragged her in a nearby bush and while appellant Tapan Das committed rape on her the other 3 appellants aided him by pressing her down to the earth. She managed to raise cry which attracted some villagers including one Sarma of the Tripura State Rifles (TSR) who rescued and brought her to her house. The victim immediately narrated the incident to her mother and they went to the Bishalgarh Police Station where she lodged complaint at 9 PM. On the same night, she was examined by the Medical Officer who found live spermatozoa on her private parts and scratches on her breasts and other part of her body. The Police took up investigation and in due course submitted the chargesheet against all the 4 appellants. The trial court examined 10 witnesses and found all the appellants guilty. While appellant Tapan Das was convicted under section 376(1) IPC and sentenced to 7 years Rigorous Imprisonment, the other 3 appellants Umesh Das, Benu Das and Sanjit Das were convicted under section 376 IPC read with section 109 IPC and sentenced to suffer RI for 3 years. They were also convicted under section 354 IPC and sentenced for RI for 1 year. No fine was imposed as the victim admitted that she was given Rs. 15,000/- later. Against this conviction and sentence, the present appeal has been filed. 3. While convicting the appellants after a full dressed trial, the trial court mainly relied on impeccable deposition of the victim (PW 1) supported by her mother (PW 2) and Medical Officer (PW 5). The appellants are the residents of the same village, namely, Sukanta colony where the victim also resides with her parents and other family members. 3. While convicting the appellants after a full dressed trial, the trial court mainly relied on impeccable deposition of the victim (PW 1) supported by her mother (PW 2) and Medical Officer (PW 5). The appellants are the residents of the same village, namely, Sukanta colony where the victim also resides with her parents and other family members. It is alleged that the relatives of the appellants had earlier raped her elder sister Lakshmi Rani Das and in this connection a case was pending at the time of present occurrence. The mother (PW 2) stated that appellant Tapan Das was her next door neighbour and that her daughter used to complain to her that whenever she was alone Tapan used to disturb her. However, the victim in the FIR which was lodged three hours after the occurrence disclosed the names of all the four appellants leaving no scope for defence to allege embellishment or false implication, as observed by the trial court. The Medical Officer (PW 5) examined her at 10 pm on the same night and found scratch marks on her right axilla, whitish materials around her private parts where he found live spermatozoa. Though the Medical Officer was of the opinion that there was no signs of penetration, the trial court held that penetration partial or full was not necessary for the purpose of rape. The presence of spermatozoa was enough to show that the rape was actually committed, though there was no penetration. This decision of the trial court has support in several decisions of the Apex court. The prosecution case having thus been proved mainly by these three witnesses, which could not be dislodged or discredited by defence, the trial court convicted the appellants mainly under section 376 IPC. As Tapan had committed the actual rape while other 3 aided him, the trial court held that other 3 appellants were liable to be convicted under section 376 IPC read with 109 IPC and for touching her body they were also liable to be convicted under section 354 IPC. Though Tapan was also liable for the same offence, but there is no such separate conviction and sentence on him. 4. In the appeal, the several grounds have been taken, the main two being withholding of TSR personnel Mr. Sarma and the statement of victim's brother that she could not identify the miscreants due to darkness. 5. Though Tapan was also liable for the same offence, but there is no such separate conviction and sentence on him. 4. In the appeal, the several grounds have been taken, the main two being withholding of TSR personnel Mr. Sarma and the statement of victim's brother that she could not identify the miscreants due to darkness. 5. I have heard Mr. H. Debnath, learned counsel for the appellants and Mr. A. Ghosh, learned PP-in-Charge for the State respondents. 6. Mr. Debnath submits that the alleged time of occurrence being at 6 pm, it was not possible for the victim to identify the miscreants and because of that reason, she could not disclose their names to her brother. Referring to the deposition of PW 4, the brother of the victim, Mr. Debnath submits that there is no reason to disbelieve this faithful witness who clearly stated that his sister stated to him that she could not identify the miscreants. He was, however, confronted by the prosecution declaring hostile and when he admitted that he made a statement to the Police that the appellants had committed rape on his sister. Mr. Ghosh submits that this witness being a rustic person should not been given much importance when the victim herself as well as her mother clearly stated the names of the miscreants immediately after the occurrence. The occurrence had taken place at 6 pm and the FIR was lodged at 9 pm at interval of 3 hours only stating the names of the appellants. This apart, it is noticed that occurrence took place on 9-6-98, which was the month of June and 6 pm was not dark enough to make difficult for the victim to identify the appellants who were her next door neighbours. Therefore, the submission of Mr. Debnath on the question of identification has no merit. 7. The next contention of Mr. Debnath is that PWs 2, 3 and 4 being mother, father and brother of the victim are interested witnesses and so should not be given much credence. Mr. Therefore, the submission of Mr. Debnath on the question of identification has no merit. 7. The next contention of Mr. Debnath is that PWs 2, 3 and 4 being mother, father and brother of the victim are interested witnesses and so should not be given much credence. Mr. Ghosh, on the other hand, submits that as there was no story of enmity and rape was proved, it stands to no reason why an unmarried girl, her parents and brother should unnecessarily implicate the appellants risking the reputation, dignity and future of the victim girl, particularly in a society which looks down upon a raped victim and hesitates to rehabilitate her. It is a settled legal position that relations cannot be the ground to disbelieve the witnesses. 8. As regards withholding of important witness like Sarma, the trial court rightly held that it is not necessary to parade all the people who rushed to the place of occurrence hearing her cry. There cannot be any eye witness in the given facts and circumstances of this case, particularly when she was alone, the appellants grabbed her and dragged her to the nearby bush for committing rape. She was the only eye witness and her statement in the FIR and before the court stood the test of veracity. The settled law has been discussed by the trial court that even the statement of the victim girl in a rape case, if generates confidence, alone can be the basis for conviction. 9. The trial court discussed several decisions of the Apex court to bring home the seriousness of a case of this nature when an innocent girl is taken a prey by the vultures only to satisfy their sexual last and in an unkind and unreasonable society which punishes the victim blaming her for the offence committed. In State of Punjab v. Gurmit Singh reported in, the Apex court observed that a rapist not only violates the victim's privacy and personnel integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of the victim, a rapist degrades the very soul of the helpless female. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of the victim, a rapist degrades the very soul of the helpless female. In Bodhisattawa Goutam v. Subhra Chakraborty reported in, the Apex court held that rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. While Mr. Debnath submits that from the deposition of father and brother inconsistencies are to be noticed it cannot be overlooked at the same time that the victim who was certainly in grave emotional crisis immediately after the occurrence could not say everything to her father or brother what she could say to her mother. Inconsistency as referred to by Mr. Debnath are no doubt minor contradictions about which the Apex court in State of Andhra Pradesh v. Gangula S. Murthy reported in held that in trying the accused on charge of rape, the trial court should show great sensitivity and examine broader probabilities instead of getting swayed by minor contradictions. 10. After careful consideration of the rival submissions and the grounds taken in the memo of appeal, I am of the considered view that the grounds are not strong enough to take a different view from what the trial court has taken. As regard the submission of Mr. Debnath for showing mercy, I have given my anxious consideration to the facts and circumstances of the case and I find no ground to consider this aspect in view of the alarming rise in the rate of offences against women. It is high time for the court and the society to come down heavily on the mindless and senseless beasts and vultures who are constantly at work to take away the right to live with dignity of our women. 11. For the aforesaid discussions, this appeal is found to be devoid of any merit and is dismissed. No cost. Appeal dismissed.