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2008 DIGILAW 712 (GAU)

Babul Sabdakar v. State of Tripura

2008-09-18

P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. Heard Mr. A.K. Bhowmik, learned Counsel for the Appellant. Also heard Mr. R.C. Debnath, learned Special Public Prosecutor for the Respondent. 2. This appeal is directed against the judgment and order of conviction dated 20.03.2002 passed by the learned Additional Sessions Judge, Kamalpur, North Tripura in Case No. S.T. 48(NT/KMP) 2001 whereby the Appellant was convicted Under Section 376(1) of the IPC and sentenced to suffer R.I. for 7 (seven) years and to pay a fine of Rs. 10,000 (Ten Thousand) only, in default of payment of fine to suffer further S.I. for 2 (two) years. 3. The prosecution case, in brief, is that one Girindra Sabadakar lodged a written complaint in the Court of learned Sub-Divisional Magistrate, Kamalpur on 19.10.2000 to the effect that one Sri Babul Sabdakar, Appellant herein, used to visit his house at Harer Khola during the period from October, 1999 to 30th September, 2000 in his absence and in the absence of his wife and taking advantage of their such absence the Appellant used to commit sexual intercourse with his minor daughter, Parbati Sabdakar. It is alleged in the written complaint that on 15.10.2000 his daughter Parbati informed him and his wife that due to cohabitation with the Appellant she had become pregnant and consequently she was taken to a doctor wherein the doctor opined that she was pregnant. On 17.10.2000 a village baithak was arranged in the house of Jagm Sabdakar in presence of the village Matabars at his instance wherein the matter being not settled, he lodged a written complainant on 19.10.2000. 4. The prosecution examined in all 13 witnesses including the victim girl (P.W. 3). According to P.W. 1 and P.W.2, the father and mother respectively of the victim girl they came to know about the fact of her daughter being raped by the Appellant only on 15.10.2000 and they informed the village Pradhan Shri Rabindra Baidya, P.W. 10 and there was a Panchayat Sabha to settle the matter and when the matter could not be settled, they filed a written complaint on 19.10.2000 before the learned Sub-Divisional Judicial Magistrate, Kamalpur, North Tripura. According to the evidence of P.W. 11 Dr. Narayan Paul the victim girl was brought before the Kamalpur Hospital on 29.10.2000 by the police for medical examination. On examination she was found pregnant of 26 weeks and it was confirmed by the ultra sonography. According to the evidence of P.W. 11 Dr. Narayan Paul the victim girl was brought before the Kamalpur Hospital on 29.10.2000 by the police for medical examination. On examination she was found pregnant of 26 weeks and it was confirmed by the ultra sonography. According to P.W. 3, the victim girl herself the accused Babul Sabdakar used to visit her house during the absence of her parents and used to cohabit with her as husband and wife assuring her that he would marry her and took to his house. The cohabitation, according to the victim girl, took place on various occasions and due to the intercourse her menstruation was stopped. P.W. 4, Smti. Namita Sabdakar deposed to the effect that the Appellant used to come to their house in absence of their parents and the Appellant used to offer chocolate etc. and they were sent out to play outside. 5. The fact of examination of the victim girl by P.W. 11 Dr. Narayan Paul and the report on her pregnancy is an admitted position. The Appellant has denied the charges of committing rape on the victim girl. However, it is a fact that the victim girl was an unmarried lady and she carried 6 (six) months pregnancy at the time of examination by the aforesaid doctor. The victim girl, on the other hand, categorically stated in her deposition that the Appellant used to cohabit with her promising to marry her. From the evidence of this victim witness it is clear enough that she consented to such cohabitation with the Appellant and normally in such case of cohabitation with consent, the offence Under Section 376 IPC will not attract. But there in this case, the victim girl and the parents had claimed that she was hardly 13 years of age at the time of commission of offence of rape and as such the offence of Section 376 IPC is attracted and the Appellant is liable to be punished. 6. P.W. 1, the father of the victim girl produced 2 (two) Certificates namely Ext. P/1 and Ext. P/2 to prove the date of birth vis-a-vis the age of the victim girl. Ext. P/1 is a Certificate dated 26.11.2000 issued by the Headmaster, Fulchari High School certifying that the date of birth of Parbati Sabdakar, the victim girl,' according to the Admission Register was 05.05.1988. P/1 and Ext. P/2 to prove the date of birth vis-a-vis the age of the victim girl. Ext. P/1 is a Certificate dated 26.11.2000 issued by the Headmaster, Fulchari High School certifying that the date of birth of Parbati Sabdakar, the victim girl,' according to the Admission Register was 05.05.1988. This Certificate has been discarded by the learned trial Court because it was obtained after the alleged occurrence. Ext. P/2 is a Certificate of Birth issued by the Additional District Registrar, Birth and Death, Kamalpur, North Tripura on 2.8.1994 certifying that her date of birth is on 5.5.1988 A.D. The learned trial Court has accepted this Certificate as a piece of evidence and put much reliance on it for conviction of the Appellant under Section 376 IPC. 7. Mr. A.C. Bhowmik, learned Counsel for the Appellant submits that the victim girl was above 16 years of age at the time of commission of the offence and, in fact, she had relation with third person and the Appellant was not al all connected with this offence. The theory of involvement of third party, could not be proved by any cogent material of evidence on record. Rather, there are sufficient corroborative evidence, particularly by P.W. 1, 2, 3 and 4 that it was the Appellant who used to visit the house of the victim girl frequently. The victim girl herself has categorically stated that it was the Appellant who committed the alleged offence on false promise of marriage. That being the position, I am not al all inclined to accept the theory of involvement of third person in this case and the same is rejected. 8. The most important factor to be considered in this case is about the age of the victim girl. Mr. Bhowmik, learned Counsel for the Appellant submits that the prosecution did not ask for any ossification test at any stage to determine the age of the victim girl. But it has relied on the Certificate issued the Addl. District Registrar, Birth and Death, Kamalpur i.e. Ext. P/2 which was obtained, admittedly on 26.11.1994 i.e. about 6 (six) years after her date of birth and that too without testing the veracity of the same by examining the issuing authority. This being the position, the said Certificate Ext. P/2 should not be relied upon as a piece of evidence for conviction of the Appellant. P/2 which was obtained, admittedly on 26.11.1994 i.e. about 6 (six) years after her date of birth and that too without testing the veracity of the same by examining the issuing authority. This being the position, the said Certificate Ext. P/2 should not be relied upon as a piece of evidence for conviction of the Appellant. The ossification test being not conducted, it is lapse on the part of the prosecution and the benefit must go to the Appellant. According to Mr. Bhowmik, the age of the victim girl was not determined scientifically although there was scope for conducting such test. Mr. Bhowmik also submits that the victim girl has given birth to a male child but the prosecution did not prefer to go for DNA test of the child to determine the biological parentage and such a scientific test being not conducted the prosecution cannot presume that the said male child was born out of the cohabitation by the Appellant. 9. On the other hand Mr. R. Debnath, learned Special Public Prosecutor submits that Ext. P/2 is a public document and it can be accepted as a pieace of evidence unless the same is challenged. The defence at no point of time challenged the said document and it remains as a valid piece of document which may be taken into account for conviction of the Appellant. 10. I have considered the rival submissions made by the learned Counsel for the Appellant and also the learned Special Public Prosecutor and also perused the records made available before this Court. In the case of offence Under Section 376 IPC the Court has to put maximum reliance on the evidence of the prosecutrix i.e. the victim girl. Here in this case, the victim girl has all through and consistently deposed before the court that the Appellant Babul Sabdakar used to come to her house in absence of her parents and had sexual relation with her giving a promise for marriage. There is no reason to disbelieve this victim girl and her evidence can be accepted as reliable and true. The only point to be decided is whether she was below 16 years of age at the time of commission of the offence. There is no reason to disbelieve this victim girl and her evidence can be accepted as reliable and true. The only point to be decided is whether she was below 16 years of age at the time of commission of the offence. While the victim girl was examined under Section 164 of Code of Criminal Procedure on 6.11.2000 stated that her age was 14 years and when she was examined on 28.11.2001 before the trial Court she stated that her age was 13 years. Again in her cross-examination she stated that her age may be 19/20 years. The victim girl has not been able to give her exact age during examination under Section 164 of Code of Criminal Procedure and during the examination-in-chief but during here cross-examination she had admit that her age might be 19/20 years. The witnesses sometime used to suppress the fact to serve his/her interest and it is the duty of the defence counsel to get the actual fact by cross-examining the witnesses and in this case the cross-examiner has been able to get the correct and true fact as regards the age of the victim girl during cross-examination. It has come from the mouth of the victim girl during cross-examination not being tortured or influenced by anybody and as such the age stated by her during cross-examination should be taken as correct. The victim girl was not reexamined by the prosecution during trial and the same remains as unaltered. 11. It is correct that the victim girl who belongs to a disadvantage class of society and to a poor family besides being half illiterate was taken by the false promise of marriage given by the Appellant and she consented herself to cohabit with him for a certain period of time. It is also not unnatural that she had been hoping that she would be married by the Appellant but when she was carrying 6 (six) months, she had to disclose the fact of cohabitation and false promise of the Appellant. There is no other material on records to come to other conclusion except that the Appellant giving false promise to the victim girl committed the offence and under such circumstances the Appellant should not go unpunished. There is no other material on records to come to other conclusion except that the Appellant giving false promise to the victim girl committed the offence and under such circumstances the Appellant should not go unpunished. However, it may not be Under Section 376 IPC taking into account that the victim girl herself stated her age to be about 19/20 years and she had a consent to such cohabitation with him. But there was element of offence under Section 417 IPC as it is well established against him. 12. The impugned conviction as recorded the learned trial Court is accordingly set aside and converted to Section 417 IPC. It is stated at the bar by Mr. Bhowmik, learned Counsel for the Appellant that the Appellant has been in jail custody for 32 days as under trial prisoner and after conviction he is in jail custody for 243 days with effect from 20.3.2002 till 18.11.2002. It is also stated at the Bar that the victim girl has got married and leading a happy marital life with her husband. The Appellant, according to Mr. Bhowmik learned Counsel for the Appellant, was aged about only 16 years at the time of commission of the offence and he has also got married and leading a happy family life. 13. Considering all these factors, I am of the considered view that it will meet the ends of justice if the Appellant is sentenced to the period already undergone by him during investigation, trial and pendency of appeal. 14. The appeal is partly allowed to the extent as indicated above. The Appellant Shri Babul Sabdakar be set at liberty. Send down the L.C. Records to the lower court with a copy of the judgment.