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2007 DIGILAW 12 (GAU)

Ashutosh Das v. State of Tripura

2007-01-04

R.B.MISRA

body2007
JUDGMENT R.B. Misra, J. 1. Heard Mr. M. Nath, learned senior counsel assisted by Mr. K.L. Paul and Mr. P. Nath, learned Counsel for the appellant. Also heard Mr. D. Sarkar, learned Public Prosecutor assisted by Mr. A. Ghosh, learned Counsel for the State-respondents. 2. The present criminal appeal has been preferred against the judgment and order dated 17-8-2002 passed by the learned Additional Sessions Judge, West Tripura. Khowai in Sessions Trial No. 31 (WT/K)/ 2002 convicting the accused-appellant Shri Ashutosh Das under Section 376, IPC for a term of 10 (ten) years rigorous imprisonment and sentencing him to pay a fine of Rs. 50,000/- and in default to pay the fine, to suffer further rigorous imprisonment for a period of 5 (five) years. 3. The prosecution case as revealed from the FIR and from the evidences on record is that while victim, a student co-villager of Ashutosh Das was going to the house of her neighbour Subal Debnath on 28-7-2000 at about 3.30 p.m. to witness T.V. programme, she was called by the accused Ashutosh Das from his shop on the pretext to know how much she has answered in her examination paper. As soon as Archana Bhowmik entered into the shop of accused Ashutosh Das he gaged her mouth and bolted the door and took the victim on the other side of the partition wall of the shop, undressed her by force, fell her on a bench and committed rape on her. At the time of commission of rape accused bit the cheek, breast and other parts of the body of victim however the victim could not raise any alarm as accused person gagged her mouth. After commission of rape the victim cried and on hearing her cry her mother (P.W. 1) who was returning home from the house of Swapan Debnath, entered into the shop of accused person and found her victim daughter weeping. On being asked her, she told her mother (P.W. 1) that she was going to the house of her friend to witness T.V. programme and at that time accused Ashutosh Das called her inside the shop and committed rape on her, P.W. 1, the mother of victim, called some villagers and narrated the incident to them. On being asked her, she told her mother (P.W. 1) that she was going to the house of her friend to witness T.V. programme and at that time accused Ashutosh Das called her inside the shop and committed rape on her, P.W. 1, the mother of victim, called some villagers and narrated the incident to them. The said villagers also heard the incident from the victim and as per advice of the said villagers parents of the victim took her to Tellamura P.S. where the victim lodged an ejahar. 4. On the basis of ejahar of the victim Teliamura Police registered Teliamura P.S. Case No. 72/2000 under Section 376 of IPC and after making investigation and submission of charge-sheet, the case being triable by the Court of session was committed to the Court of session. 5. To bring home the charge, the prosecution examined as many as seven witnesses. On the other hand, the accused did not adduce any evidence in his defence but from the trend of cross-examination of the witnesses and from the examination of the accused under Section 313 of Cr.P.C. it appears that the defence case of the accused is of total denial of the prosecution case. 6. P.W. 1 Smti Sandhyabala Bhowmik, the mother of the victim, in her deposition has stated that about two years back on certain Friday when her daughter was going to the house of Swapan Debnath, her friend to witness T.V. programme, she was called by accused Ashutosh Das from his shop and when the victim went inside the shop of accused Ashutosh Das, she was taken inside and he by force undressed the victim and committed rape on her. The witness also stated that after return from the house of Swapan Debnath she has seen her victim daughter in the shop of Ashutosh Das and at that time victim was weeping. On her query the victim told her mother that she was raped by Ashutosh Das inside his shop. The witness also stated that she has seen her daughter in naked condition. She has also seen nail mark on the cheek and back of her daughter. This witness then called Subhash Deb, Pradip Das and Ramesh Das on the spot, who advised her to take shelter of law. The witness also stated that she has seen her daughter in naked condition. She has also seen nail mark on the cheek and back of her daughter. This witness then called Subhash Deb, Pradip Das and Ramesh Das on the spot, who advised her to take shelter of law. In cross this P.W. 1 has stated that she has heard the cry of her daughter when she came in front of the shop of accused Ashutosh Das. P.W. 2 Sital Bhowmik. the father of the victim, in his deposition has stated that about two years back on a certain evening he was called by his wife and asked him to go near to the shop of Ashutosh Das. He rushed there and found his daughter weeping. On his query the victim told him that she was raped by accused Ashutosh Das inside his shop and physically assaulted as well. The P.W. 2 also observed mark of violence on the cheek of his daughter. The P.W. 2 informed the matter to the village elders, namely, Ramesh Debnath, Pradip Das and Subhas Deb who advised him to take shelter of law. P.W. 3 Jnan Chandra Datta in his deposition has stated that about one year six months back on a certain evening mother of victim called him, from his house in front of the shop of accused Ashutosh Das. He went there and found the victim weeping. On his query the victim told him that she was raped by accused Ashutosh inside his shop. P.W. 4 the victim of this case, in her deposition has stated that on a certain Friday at about 3/3:30 p.m. when she was going to the house of Subal Debnath to witness T.V. programme, the shop of the accused Ashutosh Das is situated by the side of the house of Subal Debnath she was called by the accused Ashutosh Das from his shop on the pretext to know how much she has answered in her examination paper. As soon as she entered into the shop of accused Ashutosh Das, he gagged her mouth and bolted the door and took her on the other side of the partition wall, forcibly undressed her, fell her on a bench and committed rape on her. She also stated that he bit her cheek, breast and other parts of her body. As soon as she entered into the shop of accused Ashutosh Das, he gagged her mouth and bolted the door and took her on the other side of the partition wall, forcibly undressed her, fell her on a bench and committed rape on her. She also stated that he bit her cheek, breast and other parts of her body. She also stated that she could not raise any alarm as accused gagged her mouth but after commission of rape she cried and on hearing her cry her mother came to the shop. She also stated that her mother brought other villagers who advised her mother to report the matter to the police. She thereafter went to the Teliamura P.S. along with her parents and lodged ejahar. The victim in her deposition has also stated that on the following day of the incident police produced her before a Judicial Magistrate at Khowai where she made a statement disclosing everything to the Magistrate. She also stated that after recording her statement she was produced before the medical officer of Khowai Hospital where she was examined by the said medical officer. P.W. 5 Dr. Sarajit Debbarma who examined the victim, in his deposition has stated that on examination of victim he found multiple bruises on the back of trunk, one linear scratch mark over the tip of right shoulder, another bruise mark over right superior quadrant of right breast and those injuries were about 24 hrs. old. He also stated that on examination of genital organ of the victim girl he found bleeding from vagina (menstruate blood), her hymen was found intact and insertion of two fingers in the vagina produced discomfort. He also stated that on examination of vaginal swab no spermatozoa was found. He stated that after examination of the victim girl he came to the conclusion that recent sign of sexual intercourse could not be detected. P.W. 6 Subhas Deb is a co-villager of the victim was declared hostile by the prosecution however, has stated in his examination-in-chief that parents of victim called him in their house and stated him that their daughter was raped by accused Ashutosh Das. P.W. 7 Debabrata Gope is the investigating officer who after investigation of the case submitted charge-sheet against the accused Ashutosh Das for commission of offence punishable under Section376 of IPC. 7. P.W. 7 Debabrata Gope is the investigating officer who after investigation of the case submitted charge-sheet against the accused Ashutosh Das for commission of offence punishable under Section376 of IPC. 7. It has been argued by the learned senior counsel for the accused/appellant that the incident was allegedly occurred at 3:30 p.m. on 28-7-2000 but the ejahar was lodged by the informant on that date at 8:15 p.m. though the Police Station from the house of the victim is about 4 (four) km. only as such since the delay in lodging the ejahar was not explained, therefore, the prosecution case was not to be believed. In that respect, learned Sessions Judge has dealt with the point of delay and has rightly analyzed that in the facts and circumstances of the case a little delay in lodging the FIR is not fatal on the prosecution. In respect of the submission of the learned senior counsel for the appellant that the medical evidence does not support the version of the prosecution. From the testimony of victim as well as investigating officer it reveals that the victim was produced before the medical officer on 29-7-2000. On the following day of the incident she was produced before a Judicial officer wherein she made a statement and after recording her statement by the Judicial Magistrate she was produced before a medical officer at Khowai hospital on 29-7-2000 and same version was reiterated in cross-examination. On perusal of the medical evidence it reveals that the victim put the date under her signature as 29-7-2000 and the medical officer also put the date under his signature on 29-7-2000 which shows that the medical officer examined the victim on 29-7-2000. 8. On perusal of the report of the medical officer it reveals that the medical officer after examination has found scratch mark on the tip of her shoulder, he found multiple bruise marks over the back of trunk and also found bruise mark over superior quadrant of right breast. The aforesaid injuries according to the medical officer was caused within 24 hrs. It is true that the medical officer did not find any spermatozoa in the vaginal swab of the victim but it is pertinent to note that the victim was examined after about 24 hrs. The aforesaid injuries according to the medical officer was caused within 24 hrs. It is true that the medical officer did not find any spermatozoa in the vaginal swab of the victim but it is pertinent to note that the victim was examined after about 24 hrs. and during that period the victim might have washed herself and if victim washes herself spermatozoa may not be found in her vaginal swab. According to the learned senior counsel for the accused/appellant the medical examination report of the accused was not produced before the trial Court therefore, the accused/appellant should get the benefit of Section114(g) of the Evidence Act for lack of non-production of the examination report of the accused. In this respect, learned Sessions Judge has rightly observed that for any loop holes in the investigation the accused shall not get any benefit in the present case in the light of the observation made by the Supreme Court in AIR 1995 SC 2472 : where it was observed that in a case of offence of rape defective investigation keeping loopholes in investigation with a view to help the accused at the cost of prosecutrix, the accused cannot be acquitted solely on that ground and if an accused person is acquitted on such defective investigation it would be adding insult to the injuries of the victim girl. 9. From the testimony of the victim it is clear that she was called by the accused with a pretext to know how much she had answered in her examination and as soon as the victim entered into the shop of the accused bolted the door and committed rape on her. Just after the occurrence when the victim girl was weeping her mother came to the spot and found the victim inside the shop of the accused person. The victim told her mother that she was raped by the accused person inside the shop of accused person. Mother of the victim not only saw mark of violence on her cheek and back, but called also her husband P.W. 2 and Jnan Ch. Datta P.W. 3, P.W. 2 and P.W. 3 in their respective testimonies have specially stated that victim told them that she was raped by accused Ashutosh Das in his shop. The victim girl was produced before the learned Sub-Divisional Judicial Magistrate, Khowai. Datta P.W. 3, P.W. 2 and P.W. 3 in their respective testimonies have specially stated that victim told them that she was raped by accused Ashutosh Das in his shop. The victim girl was produced before the learned Sub-Divisional Judicial Magistrate, Khowai. On the following day i.e. on 29-7-2000 to whom she made similar statement. The version of the victim has been materially corroborated by P.W. 1, P.W. 2 and P.W. 3 who stated that just after the occurrence the victim has stated to them that she was raped by accused Ashutosh Das. P.W. 1 & P.W. 2 saw the marks of violence on the person of victim. Presence of mark of violence on the person of victim has also been corroborated by the medical officer who in his report has specifically stated that he has seen bruise mark over the trunk, shoulder tip and right breast of the victim. 10. Learned senior counsel for the accused/appellant has submitted that there is no witness of the occurrence as the witnesses are hearsay. Learned senior counsel also stated that the victim while deposing before the Court did not identify the accused as her rapist and as such the accused person cannot be convicted in this case. This submission of the learned senior counsel cannot be accepted. Since accused is very much known to the victim, as just after the occurrence she told her mother and other witnesses that she was raped by the accused Ashutosh. The mother and the other witnesses clearly identified the accused in the dock however, in the peculiar circumstances, due to lapse on the part of the Additional Public Prosecutor the accused person could not be identified by the victim but for that reason alone the version of the victim girl was not to be disbelieved and benefit of doubt could not be given to the accused/appellant as it was not the defence case that the accused was totally unknown to the victim girl. The victim girl was found inside the shop of the accused person: by her mother, She called P.W. 2 and P.W. 3 in front of the shop of the accused person while the victim herself said that she was raped by accused Ashutosh Das and the said, accused was identified by P.W. 1, P.W. 2 and P,W. 3 in the dock and as such only for non-identification of accused Ashutosh Das in the dock by the victim was not fatal. 11. In respect of the stand of learned senior counsel for the accused/appellant that he has been fasely implicated in this case. In this respect also it is suffice to say that there is no evidence on record that there was any enmity between the accused and the victim or between any family members of the victim and the accused. Therefore, the allegation of false implication, of the accused is completely ruled out. 12. On the analysis and appraisal of the evidences record and on the; testimony of the victim/prosecutrix and on finding material corroboration with the testimony of the victim girl with that of other prosecution witnesses including medical evidence, the learned Session Judge has rightly believed the testimony of the rustic young girl who had given vivid description about the incident of rape by the accused and learned Session Judge has rightly observed that it is not believable that a rustic young girl; the victim will stake her reputation by making a false charge, against someone concerning her chastity unless she was really been raped by accused Ashutosh Das. 13. In 2000 CriLJ 2205 State of Rajasthan v. N.K. the Hon'ble Supreme Court has observed that in case of offence of rape, the testimony of prosecu-trix should be appreciated on the basis of probabilities like testimony of any other witness and conviction can be based solely on such testimony. In 2003 CriLJ 910 Vimal Suresh Kamble v. Chaluverapinake Apal S.P. the Hon'ble Supreme Court has held that conviction of an accused for the offence under Section 376 of IPC on the basis of the testimony of the prosecutrix alone is permissible, provided the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. In 2003 CriLJ 910 Vimal Suresh Kamble v. Chaluverapinake Apal S.P. the Hon'ble Supreme Court has held that conviction of an accused for the offence under Section 376 of IPC on the basis of the testimony of the prosecutrix alone is permissible, provided the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. In present facts and circumstances, the evidence of prosecutrix, P.W. 4, was natural and inspires confidence as the evidences of P.W. 1, P.W. 2 and P.W. 3 have also supported the prosecution version, therefore, in view of the decision of Vimal Suresh Kamble 2003 Cri LJ 910 (supra) in the facts and circumstances, the conviction of the accused even on the sole testimony of the victim/prosecutrix could be justifiable. 14. In 2004CriLJ1 Bhupider Sharma v. State of Himachal Pradesh the Hon'ble Supreme Court has observed that the evidence of victim in reference to offence under Section 376/34 of IPC is not insisted to be corroborated by other evidences as corroboration is not the sine qua non for conviction in a rape case. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes the judicial mind as probable. The fact of rape of victim by accused appellant is corroborated by P.W. 1, P.W. 2 and P.W. 3. 15. In 2004 CriLJ 19 Ratansinh Dalsukhbhai Nayak v. State of Gujrat the Hon'ble Supreme Court while dealing with the evidence of a child of tender age in reference to Section118 of the Evidence Act has observed that the conviction on the basis of the child witness is permissible if such witness is found to testify and if it has; intellectual capacity to understand questions and give rational answers thereto and the Court after careful scrutiny of its; evidence about the quality and reliability can record conviction. In the present case, the victim/prosecutrix was undoubtedly of minor age, however, there was no evidence that she was tutored and also there was no material against her that she was not competent to testify and understand the gravity of the incidence and was not having sufficient intellectual capacity to understand questions and give rational answers thereto. In the present case, the victim/prosecutrix was undoubtedly of minor age, however, there was no evidence that she was tutored and also there was no material against her that she was not competent to testify and understand the gravity of the incidence and was not having sufficient intellectual capacity to understand questions and give rational answers thereto. As such on careful scrutiny of the sole evidence of the child victim/prosecutrix, I am of the considered view that her evidence is convincing as it carries quality and adequate reliability. 16. In 2004 CriLJ 4232 State of H.P. v. Shree Kant Shekari the Hon'ble Supreme Court has held that the testimony of victim in reference to the offence under Section 376of IPC could be treated as reliable and can be acted upon without corroboration in material particulars. However, if the Court of facts finds it difficult to accept the version of the victim on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony and assurance, short of corroboration, as understood in the context of an accomplice, would suffice. Even filing of F.I.R. by inordinate delay based on satisfactory explanation and in any event delay per se in that respect is not a mitigating circumstance for the accused when accusations of rape are involved. In case of offence under Section 376 of IPC, the question of consent is a matter of defence by the accused and for that purpose materials was to be produced by the accused/defence to show that there was consent and it was not for the victim to show that there was no consent. More so, when the victim/prosecutrix is of minor age at the time of commission of offence, even the question of consent of victim/prosecutrix is of no consequence. It was held by the Hon'ble Supreme Court in Shree Kant Shekari (supra) as below: Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of woman, i.e. her dignity, honour, reputation and not the least her chastity. 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. It is a crime against basic human rights, and is also violative of the victim's most cherished of the fundamental rights, namely, the right to life contained in Article 21. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized Judge is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos. In the present case, the accused who was a teacher gratified his animated passions and sexual pleasures by having carnal knowledge of his student, a girl of tender age. Such offenders are a menace to civilized society. 17. The Hon'ble Supreme Court in 2005 CriLJ 3117 State of M.P. v. Babbu Barkare while explaining the meaning of 'rape' has indicated that legislative intent is to curb with an iron hand. In AIR 2005 SC 203 Deelip Singh v. State of Bihar the Hon'ble Supreme Court has occasioned to deal with the consent in reference to the offence under Section375 of IPC and has also explained the consent under Section 90 of IPC and has indicated that the burden on prosecution to prove absence of consent from attendant circumstances, for that purpose evidence should be scanned carefully. Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in? Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her? Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her? These are the questions which have to be answered on an analysis of the evidence and the question as to whether the promise to marry, if made by the accused, was false to his knowledge and belief from the very inception and it was ever intended to be acted upon by him. In that case the burden is on the prosecution to prove that there was absence of consent. Of course, the position is different if the case is covered by Section 114-Aof the Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides. Whether on the basis of the evidence adduced by the prosecution, it is reasonably possible to infer the lack of consent on the part of the prosecutrix is the ultimate point to be decided. 18. In 2005 CriLJ 331 State of U.P. v. Pappu the Hon'ble Supreme Court has held that there is no rule of law that testimony of victim/prosecutrix of rape cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of accomplice, would do. 19. In AIR 2005 SC 2132 Kamalanantha v. State of T.N. and 2005 CriLJ 4375 State of M.P. v. Dayal Sahu it was held by the Hon'ble Supreme Court that once statement of the prosecutrix inspires confidence and the same is accepted by the Court, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration of her testimony is required unless there are compelling reasons which necessitate the same. It was also held that the accused having dominion or control over prosecutrix physically, mentally and spiritually and many of them believed him to be God. It was also held that the accused having dominion or control over prosecutrix physically, mentally and spiritually and many of them believed him to be God. In such circumstances, it was held by the Hon'ble Supreme Court in Kamalanantha AIR 2005 SC 2132 (supra) that there was no reason why prosecutrix should depose falsely against the accused. Therefore, conviction based on the sole evidence of victim/prosecutrix can be justifiable. 20. The Hon'ble Supreme Court in 2003 CriLJ 2548 Visveswaran v. State Rep by S.D.M. has given a guideline regarding approach and duty of Courts while appreciating evidence in the cases of offences under Sections 376, 346 and 366 of IPC and has indicated that any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. It was also held by the Hon'ble Supreme Court as below: The approach required to be adopted by Courts in rape cases has to be different. The cases are required to be dealt with utmost sensitivity. Courts have to show greater responsibility when trying an accused on charge or rape. In such cases, the broader probabilities are required to be examined and the Courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. 21. From the ejahar it reveals that the victim has come forward to divulge about the rape committed by the accused/appellant and in her testimony as well as in her statement recorded under Section164 of Cr.P.C. also clearly divulged the manner by which she was raped. The incident of rape on the victim girl has been corroborated by the testimony of P.W. 1, P.W. 2 and P.W. 3 who had occasion to reach on the spot just after the occurrence where the victim girl disclosed the commission of rape to her. In her deposition, the victim girl has also divulged that the accused bit her cheek, breast and other parts of her body. Such marks of violence on the cheek, breast and other parts of the body of the victim were also witnessed by P.W. 1 and P.W. 2. In her deposition, the victim girl has also divulged that the accused bit her cheek, breast and other parts of her body. Such marks of violence on the cheek, breast and other parts of the body of the victim were also witnessed by P.W. 1 and P.W. 2. The medical officer, during examination of the victim has, found multiple bruises over the back of trunk, one linear stretch mark over the tip of right shoulder, bruise mark over right superior quadrant of right breast. The testimony of the victim girl inspires confidence and is reliable. The testimony of the victim girl is also corroborated by other reliable witnesses and there is no shadow of doubt that the victim was not (sic) raped by accused Ashutosh Das. In these circumstances, the findings and conclusion arrived at by the learned Sessions Judge is correct and there is no scope of any interference in the same. In the facts and circumstances of the case the accused/appellant is held guilty of the offence under Section 376 of IPC and the conviction and sentence dated 17-8-2002 awarded by the learned Additional Sessions Judge, West Tripura, Khowai in Sessions Trial No. 31 (WT/K)/2002 is affirmed. 22. On the basis of the materials on record the learned Sessions Judge has rightly convicted the accused/appellant finding him guilty of the offence under Section 376 of IPC and has correctly awarded sentence to suffer rigorous imprisonment for 10 years with a fine of Rs. 50,000/- (fifty thousand), in default to suffer further rigorous imprisonment for 5 (five) years. 23. The criminal appeal is accordingly dismissed. Lower Court record is to be relegated back.