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2008 DIGILAW 821 (GAU)

Dhaneswar Das v. State of Tripura

2008-11-27

UTPALENDU BIKAS SAHA

body2008
JUDGMENT U.B. Saha, J. 1. Accused Dhaneswar Das was tried in the court of learned Additional Sessions Judge, Belonia, South Tripura under Section 376(1) and 417 of the Indian Penal Code (IPC) for committing rape on a minor girl of 14 years and also for committing an offence of cheating and ultimately after trial, the learned trial court vide its judgment dated 14.2.2002 passed in Sessions Trial No. 22(STYB) of 2001 acquitted him from the charge under Section 417, IPC and convicted him under Section 376(1) of IPC and sentenced him to suffer Rigorous Imprisonment for ten years with a fine of Rs. 2,000, in default of payment of fine to suffer further R.I. for six months. Aggrieved by the aforesaid judgment and order of conviction as well as sentence passed by the learned trial court, the accused-Appellant preferred this appeal. 2. Heard Mr. A.C. Bhowmik along with Mr. D. Dutta, learned Counsel for the Appellant and Mr. R.C. Debnath, learned Spl. Public Prosecutor for the Respondent State. 3. In view of the observation of the Apex Court in the case of State of H.P. v. Shree Kant Shekari, (2004) 8 SCC 153 referring to the case of State of Karnataka v. Puttaraja, (2004) 1 SCC 475 , the name is not mentioned to disclose the identity of the victim girl against whom an offence under Section 376, IPC is alleged or found to have been committed and it is stated by the learned Counsel for the parties that before the trial of the case in hand the victim girl expired and also the convict Appellant got married. Therefore, the victim girl is described as Victim' in the judgment. 4. The prosecution case is that on 20.11.1997 the victim herself lodged a written complaint in the court of learned Sub-Divisional Judicial Magistrate, Belonia, South Tripura against the present Appellant to the effect that the house of the accused-Appellant is situated nearby the side of the informant victim. As there was none in the house of the present Appellant except the Appellant and his mother, the mother of the accused-Appellant occasionally used to call the victim to assist her in her household works and accordingly, the victim for last two years used to help the mother of the Appellant in household works occasionally. As there was none in the house of the present Appellant except the Appellant and his mother, the mother of the accused-Appellant occasionally used to call the victim to assist her in her household works and accordingly, the victim for last two years used to help the mother of the Appellant in household works occasionally. In the Bengali month of Magha 1403 BS corresponding to February 1996, one day the Appellant gave proposal to the victim to marry her, but she did not agree to that proposal initially. Thereafter on the, last part of the said month one day the Appellant in absence of his mother called the victim to his house and then forcibly intercourse with her in their hut and when the victim told the Appellant that she would inform the said incident of intercourse to her mother, the Appellant promised to marry her and he stated that he would reside with the victim as husband and wife. Assured by the Appellant, the victim agreed to the proposal for not disclosing the said fact of rape to anyone. Thereafter, they used to cohabit occasionally in absence of the mother of the Appellant. One day when in absence of the mother of the Appellant, the Appellant was cohabiting with the victim in their hut, the mother of the victim came there in search of her daughter (victim) and saw both the accused-Appellant and The victim in compromising condition. Seeing them in such a condition, when the mother of the informant victim raised objection and tried to raise her voice, the Appellant told her that he would marry her victim daughter. Fact relating to compromising condition of the Appellant and the victim was informed to father of the victim by her mother. Thereafter on being asked by the father of the victim, the Appellant denied to marry the victim. Then village meetings were called on 24th and 25th day of last Bengali month of Kartik. But the Appellant did not attend the said meeting, rather he fled away from the village. As the victim was raped by the Appellant on the assurance of marriage and ultimately the Appellant denied the same, the victim lodged a complaint before the learned SDJM, Belonia. But the Appellant did not attend the said meeting, rather he fled away from the village. As the victim was raped by the Appellant on the assurance of marriage and ultimately the Appellant denied the same, the victim lodged a complaint before the learned SDJM, Belonia. On receipt of the aforesaid complaint, learned SDJM examined the victim on oath and thereafter, on 20.11.1997 directed the O/C. of P.R. Bari Police Station to register the complaint as FIR and investigate the same. 5. In view of the aforesaid direction of the learned SDJM, the O/C. of P.R. Bari P.S. registered the complaint as P.R. Bari PS Case No. 42 of 1997 under Section 376, IPC against the present Appellant and started to investigate the same. On completion of the investigation, police submitted charge sheet against the Appellant under Section 376 IPC. 6. The learned SDJM took cognizance of the offence on the basis of the police report and thereafter committed the case to the court of sessions for trial. The learned Addl. Sessions Judge, Belonia framed charge against the Appellant for commission of offence punishable under Sections 376 and417 of IPC to which the Appellant pleaded not guilty and claimed to be tried. 7. During the course of trial, the prosecution examined as many as 11 fitnesses including PWs 2 and 6, the parents of the victim, co-villagers and other official witnesses and on examination of the witnesses, the learned trial court also exhibited certain documents and ultimately convicted the Appellant under Section 376(1) of IPC as stated supra. 8. It is urged from the side of the Appellant Dhaneswar Das that (i) the evidence adduced by the prosecution are not adequate for establishing that the Appellant had ever any sexual intercourse with the victim and even if it is accepted that the Appellant had sexual intercourse with the victim then also the offence contemplated under Section 376, IPC was not committed in this case as the victim was very much a willing and consenting party; (ii) that the whole prosecution case is to be disbelieved only on the ground that the alleged complaint/FIR was lodged by the victim almost one and half year after the date on which the alleged offence of rape was committed. 9. It is also urged that from the evidence of PW9 Dr. 9. It is also urged that from the evidence of PW9 Dr. Debasish Debnath it appears that there was no forceful intercourse or rape upon the victim girl and she was habituated in sexual intercourse with her male partner and she enjoyed sexual intercourse with consent as during his examination he found no resistance mark or any sort of marks in her body which is quite unnatural. 10. It is further urged from the side of the Appellant that the Appellant could not get the opportunity to cross-examine the victim as she died after the lodging of the complaint and before commencement of the trial and in absence of her admissible evidence, the court should not relied on the evidence of prosecution witnesses as none of those Witnesses is eyewitness of the alleged offence and there are some contradictions and exhortations in the evidence of prosecution witnesses on the basis of which no conviction can be sustained and as such the Appellant is entitled to be acquitted from the charge levelled against him and even if not clean acquittal then also undoubtedly he is entitled to acquittal of benefit. 11. It is also pointed out that even when the investigating agency went to the village of the victim she and her mother tried to keep themselves away from appearing before the I/O. of the case from which the court can take inference regarding the conduct of the victim. 12. Finally, it is urged that when the complaint was lodged before a court and the court also examined the complainant on oath, the court had no power to send the said complaint to the investigating authority for investigation. 13. At the end of the argument, learned Counsel for the Appellant submits that during trial as well as after conviction the Appellant was in jail for 8 months 27 days and by this time he got married and also gave a birth of a child and for the said reason, court may take a lenient view regarding his sentence if the court finds him guilty for committing the offence as alleged. 14. While resisting the submission of the learned Counsel for the Appellant, Mr. Debnath, learned Spl. 14. While resisting the submission of the learned Counsel for the Appellant, Mr. Debnath, learned Spl. Public prosecutor urged that by this time it is well settled by the Apex Court that merely because a victim is dead and consequently could not be examined can never be a ground to acquit an accused if there is evidence otherwise available proving the criminal act of the accused concerned. To support the aforesaid contention reliance is placed on the decision of the Apex Court in State of Karnataka v. Mahabaleshwar Gourya Naik, AIR 1992 SC 2043 . 15. It is also contended on behalf of the Respondent that Section 200, Code of Criminal Procedure empowers the court to send the complaint for investigation on examination of the complainant before taking cognizance. It is further urged that the learned trial Judge after taking into consideration the relevant facts, particularly the fact relating to the death of victim and non-availability of her statement due to her death ordered the conviction under Section 376(1), IPC relying on the evidence of other available witnesses to whom she made statement regarding the offence committed by the accused-Appellant. 16. It is urged that the prosecution proved its case not from the evidence of the victim but from the evidence otherwise available like the co-villagers before whom the victim before her death made statement, particularly in a village meeting implicating the present Appellant. Though the Appellant was called on in that meeting, he refrained himself from attending the same and left the village. 17. It is also urged that when the evidence of doctor contradicted the ocular evidence of the prosecution witnesses before whom the victim stated the facts relating to the rape committed by the Appellant on her in that situation the medical evidence has to be ignored and the ocular evidence has to be believed. 18. It is further urged that even there was no suggestion before the prosecution witnesses that either due to enmity or for other reason they fried to falsely implicate the Appellant with the alleged offence quoting the version of the victim. 18. It is further urged that even there was no suggestion before the prosecution witnesses that either due to enmity or for other reason they fried to falsely implicate the Appellant with the alleged offence quoting the version of the victim. It is also urged that even if the court considers that the victim was a consenting party then also the said consent cannot be treated as a consent as the victim was below 14 years of age at the time of the alleged offence as envisaged in Clause Sixthly of Section 375, IPC. It is further urged that when an accused commits sexual intercourse with a girl below 16 years of age inducing her to believe that he would marry her that would be rape as the consent of the girl cannot be treated as consent. 19. For proper appreciation of the contention of the learned Counsel for the parties, this Court feels it necessary to reproduce the relevant portion of the evidence of prosecution witnesses. 20. PW1, Samir Das who is a co-villager of the victim in his deposition stated that about four years back in one morning the father of the victim called everyone of their village to his house and accordingly, they about 30/35 village leaders including the Pradhan and other members of their Panchayat went to the house of the victim and in that meeting the Appellant and his mother were also invited. But the Appellant and his mother did not attend the meeting. In that meeting the victim infront of everybody narrated the incident of rape stating that she used to do the household works in the house of the Appellant and she developed a love affairs with him. She also told them that she used to lead life with the Appellant as husband and wife and due to sexual intercourse with the Appellant she became pregnant. PW1 also stated that he heard that after the said meeting the Appellant left his house. 21. PW2, Sridam Namah is the father of the victim who in his deposition stated that her daughter, the victim died in the last Bengali month of Poush out of illness. About four years back his daughter used to work in the house of accused-Appellant Dhaneswar Das as maid-servant. At that time she was 14 years of age. 21. PW2, Sridam Namah is the father of the victim who in his deposition stated that her daughter, the victim died in the last Bengali month of Poush out of illness. About four years back his daughter used to work in the house of accused-Appellant Dhaneswar Das as maid-servant. At that time she was 14 years of age. One day about four years back his wife Smt. Arati Namah (PW6) told him that she found the Appellant in compromising condition with their daughter in the house of the Appellant. She also told him that the Appellant had given assurance to her that he will marry their daughter, the victim. After about 3/4 days this PW called a meeting of all village elders in his house and accordingly, all the village elders including the Pradhan (PW3) and members came to his house. He also called the Appellant to attend the said meeting, but he did not appear in the meeting and on the following day he again called meeting, but on that also the Appellant did not attend the meeting and left his house. 22. PW3, Shri Phanindra Das, Pradhan of, the village Panchayat in his deposition corroborated the evidence of PW2, father of the victim. He also stated that he advised PW2 to call a meeting in his (PW2) house and accordingly, a meeting was called in the house of PW2 and he along with others attended the said meeting and as the Appellant was not present, no decision was taken by them and on the following day another meeting was called in the house of PW2.and he (PW3) requested the mother of the Appellant to attend the said meeting, but she did not attend the same. He also identified the accused-Appellant in the dock. 23. PW4, Nabadwip Das in his deposition did not say anything though he identified the Appellant in the dock and in his cross he stated that there was no maid-servant in the house of the accused-Appellant at that time. 24. PW5. Ajit Sutradhar, another co-villager while corroborating the evidence of PWs 2 and 3 that the Appellant did not attend the meeting stated in his deposition that the Appellant left his house and remained absent for about 1/2 years and in the meeting the victim told them that she used to help the mother of the accused-Appellant in the household work occasionally. She also told them that the Appellant assured her that he would marry her. In cross, a suggestion was given to this witness that some villagers in collusion with PW2 tried to arrange forceful marriage in between the victim and the Appellant, but the said suggestion was denied by him. 25. PW6, Smt. Arati No. 6, mother of the victim in her deposition stated that one day at noon when he came back to her house, she found that her daughter, the victim was not available in the house. Thereafter, in search of her daughter, she went to the nearby house of the accused-Appellant and saw the Appellant and her daughter in compromising condition in the dwelling hut of the accused-Appellant. On her query Appellant told her that he would marry her daughter and there was nothing to be worried and on her further query, her daughter, the victim told her that she had sexual relation with the Appellant for about 2/3 months and that since the Appellant assured her that he would marry her, she did not disclose anything about the sexual intercourse. She (PW6) also narrated the story of the aforesaid incident to her husband (PW2) and after about four days her husband called a meeting in their house and accordingly, the neighbours including the Pradhan and members of their Panchayat attended the said meeting. In cross PW6 deposed that she stated to Daragababu that she saw the Appellant in compromising condition with her daughter, the victim. But when her attention was drawn to her earlier statement recorded under Section 161, Code of Criminal Procedure, it was found that there was no such statement to the effect that she found the' accused-Appellant in compromising condition with her daughter, the victim. The defence also gave a suggestion to her that her daughter, the victim was a girl of bad reputation of their village and she used to go here and there on her sweet will without any permission from her or her husband, which she denied. 26. PW9, Dr. Debashis Debnath the Medical Officer who examined the victim as produced before him by the Investigating Officer, PW10, Adhir Chakraborty, O/C. of P.R. Bari Police Station. 26. PW9, Dr. Debashis Debnath the Medical Officer who examined the victim as produced before him by the Investigating Officer, PW10, Adhir Chakraborty, O/C. of P.R. Bari Police Station. He deposed that on examination of the victim, he did not find any recent sign of sexual intercourse or rape as well as sign of pregnancy and in his opinion, there was no forceful intercourse or rape upon the victim and she was habituated in sexual intercourse with her male partner and she enjoyed sexual intercourse with consent as during examination he found no resistance mark or any sort of marks in her body which is quite unnatural. In cross, he did not say anything except the fact that the victim enjoyed sexual intercourse with her male partner on successive three nights at her own house. 27. PW11, Jagadish Ch. Debnalh, Headmaster of a Govt. school where the victim studied up to Class-IV in his deposition stated that the date of birth of the victim girl is 27.2.1983 and he issued a school certificate on 15th November, 1999 as per the application of the victim. He also stated that the school certificate was issued by him on the basis of the information available in the admission register retained in the school vide volume No. 4, Sl. No. 62/89. He also identified the said certificate. Further, he identified the documents and the admission register when the same were placed before him in the witness box. The school certificate was also exhibited as Exbt.5. In cross, when suggestion was given to this witness that the certificate issued by him all her fabricated, he denied the same. In his cross he also stated that at the time of admission of the victim, no birth certificate or horoscope was produced. 28. PW10, Adhir Chakraborty, I/O. of the case in his deposition stated about the investigation and recording of the statement of the witnesses under Section 161, Code of Criminal Procedure. He stated that initially the victim and her parents used to conceal themselves on getting information about his arrival in the area of their house for which he could not record the statement of the victim before 13.11.1999 and ultimately he examined the victim. Ho also stated that PW6, mother of the victim during her examination did not state to him that she found the accused-Appellant in compromising condition with her daughter, the victim. 29. Ho also stated that PW6, mother of the victim during her examination did not state to him that she found the accused-Appellant in compromising condition with her daughter, the victim. 29. This Court has given anxious consideration to the submission of the learned Counsel for the parties as well as the materials available on record and has also gone through the impugned judgment of conviction and sentence. 30. It appears from the judgment impugned that the learned trial court took into consideration almost all the points raised by the accused-Appellant before this Court and the learned that court also referred to the decision of the Apex Court in Mahabaleshwar Gourya Naik (supra) wherein the Apex Court held that merely because victim is dead and consequently could not be examined can never be a ground for acquittal it there is evidence otherwise available proving the criminal act of the accused concerned and according to the learned trial court the victim initially on oath stated before the learned SDJM, Belonia regarding the fact of rape as well as her pregnancy on the basis of which the learned SDJM directed PW10, I/O. of the case to investigate the matter. Though the said statement cannot be used against the accused-Appellant, but the other evidence available from the prosecution witnesses and the conduct of the accused-Appellant clearly prove that he committed the offence of rape. 31. Though the said statement cannot be used against the accused-Appellant, but the other evidence available from the prosecution witnesses and the conduct of the accused-Appellant clearly prove that he committed the offence of rape. 31. The appellate court though is to examine the impugned judgment, but at the same time it is also the responsibility of the court to assess the evidence of the prosecution witnesses independently and on going through the evidences of the prosecution witnesses, particularly the villagers and the Headmaster of the school, this Court can come to a conclusion that those witnesses stated the actual fact within their knowledge and when the victim has already died those witnesses were not going to gain anything materially by maligning the accused-Appellant or implicating him falsely with the alleged offence and there was no scope for them also to force the Appellant to marry the victim as she is no longer in the world and there was also no suggestion even from the defence that there was any enmity between the parents of the victim as well as the villagers and the accused-Appellant and it is also not the case of the Appellant that the victim or the members of the family had any particular reason for charging the Appellant with the offence complained off. It appears to this Court that the attempt from the side of the defence to discredit the evidence of prosecution witnesses failed miserably. It was sought to be established by the evidence of PW9, medical officer that the victim was a consenting party to the alleged rape and also there was no sign of pregnancy. 32. Attempts was also made to establish that the conduct and character of the victim was not good. This Court is not in a position to accept the contention of the Appellant that due to non-availability of the victim for cross-examination, the entire prosecution story is to be brushed aside as it is settled by the Apex Court in Mahabaleshwar Gourya Naik (supra) that merely because a victim is dead and consequently could not be examined can never be a ground to acquit the accused if there is evidence otherwise available proving the criminal act of the accused concerned. In the instant case, the prosecution proved the fact that the victim in presence of the villagers narrated the story of forceful sexual intercourse with her by the accused-Appellant and also she stated to her mother regarding the commission of rape as well as her pregnancy and that statement of PW6, mother of the victim, remained as it is even after cross and prosecution also established by way of producing the certificate and examining PW11 Jagadish Ch. Debnath, the Headmaster of the school where the victim studied up to Class-IV, the age of the victim, who, at the relevant time, was about 14 years of age and she was a minor on the date of alleged occurrence. 33. The statement of the doctor (PW9), inter alia, that there was no forceful intercourse or rape upon the victim and she was habituated in Sexual intercourse with her male partner and she enjoyed sexual intercourse with consent as during examination he found no resistance mark or any sort of mark in her body which is quite unnatural, would not help the accused-Appellant on the ground that it is not possible to get any mark of resistance in the body or the victim after a long time of 2/3 years of the alleged occurrence of rape and it is evident from the report of the doctor (PW9) that the victim herself stated to him that the man came to her and embraced her. She offered resistance to this act, but she was forced down to bed and then tortured. Then she was raped by him. 34. In our Indian society normally a girl does not allow anybody to question her chastity unless she is actually raped or molested by any person. As it is evident that the victim was a minor at the time of the alleged occurrence, even if her consent was obtained, as contended by the Appellant before this Court, has no value under law and that cannot be treated as consent. 35. The prosecution failed to prove that the victim became pregnant due to the sexual intercourse with the accused-Appellant. Therefore, the learned trial court has rightly acquitted the accused-Appellant from the charge of Section 417, IPC as the victim was not cheated by the accused-Appellant. 36. 35. The prosecution failed to prove that the victim became pregnant due to the sexual intercourse with the accused-Appellant. Therefore, the learned trial court has rightly acquitted the accused-Appellant from the charge of Section 417, IPC as the victim was not cheated by the accused-Appellant. 36. For the reasons stated supra, this Court is of the considered view that the Appellant has been rightly convicted by the learned trial court under Section 376(1) of the IPC and as such no interference is called for by this Court. 37. Now, question remains whether under the facts and circumstances of the present case, this Court can interfere with the quantum of sentence as awarded by the learned trial court to the Appellant for committing offence under Section 376(1), IPC. 38. There is no doubt that the offence, of rape is heinous in nature and normally the court has no cower to award sentence less than 7 years as prescribed by the Legislature except on special reasons as mentioned in proviso to Section 376(1) that the court may, for adequate reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. 39. In the instant case/the ground that the incident of rape had occurred a decade ago cannot be considered to be a special ground. But the victim who sought justice before the court is no longer in the world and by this time the accused-Appellant also settled his life with another girl having a minor child and as submitted by the learned Counsel for the Appellant his old aged mother is also living with him and as such if he is sent to custody then that would affect the livelihood of the dependents. Keeping these circumstances in mind and taking into note the decision of this Court in the case of Sri Khireswar Saikia and Anr. v. The State of Assam 1990 (1) Crimes 77 wherein His Lordship Justice B.L. Hansaria, the then considering the case of Phul Singh v. State, AIR 1980 SC 249 , Kakoo Ram v. State, AIR 1976 SC 1991 and Sheoji Ram v. State, 1981 Cri. v. The State of Assam 1990 (1) Crimes 77 wherein His Lordship Justice B.L. Hansaria, the then considering the case of Phul Singh v. State, AIR 1980 SC 249 , Kakoo Ram v. State, AIR 1976 SC 1991 and Sheoji Ram v. State, 1981 Cri. LJ 1131 and considering the age of the offenders in that case at the relevant time observed in para 5 of Khireswar Saikia (supra) "Keeping in view the aforesaid pronouncements, the aforesaid mitigating factor and the age of the two offenders at the relevant time a sentence of imprisonment for 9 months would meet the ends of justice according to me; and so I reduce the sentence to 9 months", this Court is or the view that it is a fit case where the power vested in it under the proviso to Section 376, IPC can be exercised and accordingly, exercising the said power, the sentence of 10 years' R.I. with a fine of Rs. 2,000, in default of payment of fine further R.I. for six months awarded by the learned Additional Sessions Judge, Belonia, South Tripura vide impugned judgment to the Appellant is reduced to the period that Appellant has already undergone during trial and after conviction, i.e., 8 months 27 days. The accused-Appellant shall pay an amount of Rs. 50,000 (Rupees fifty thousand) as compensation to the parents of the victim within a period of two months from today as their minor unmarried daughter, the victim, was raped by the accused-Appellant and she is no more in the world to see the result of her complaint. It the Appellant fails to pay the said amount within the stipulated time, the same shall be recovered as per the procedure prescribed under Section 431, Code of Criminal Procedure and be paid to the parents of the victim. 40. With the above observations and directions, this appeal is partly allowed.