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2009 DIGILAW 169 (GAU)

Rafal Chakma v. State of Tripura

2009-03-09

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. Heard Mr. H. Debnath, learned Counsel appearing for the accused-Appellant and Mr. A. Ghosh, learned Additional Public Prosecutor appearing for the Respondent. 2. This appeal is directed against the judgment and order dated 29.06.2006 passed by the learned Assistant Sessions Judge, South Tripura, Udaipur in Case No. S.T. 81 (ST/A) of 2006 convicting the accused-Appellant for commission of the offence under Section 350/376 of the Indian Penal Code (here-in-after referred to as "IPC") and thereby sentencing him to suffer rigorous imprisonment (for short "RI") for 8 (eight) years for the offence under Section 376(1) of IPC and to pay a fine of Rs. 10,000/-, in default to suffer RI for another period of 6 (six) months and also to suffer RI for 5 (five) years for the offence under Section 450 of IPC and to pay a fine of Rs. 1,000/-, in default to suffer RI for 1 (one) month. 3. The prosecution case, in brief, as disclosed from the records is that on 17.06.2005 at about 3.30 p.m. when the victim girl was alone in her kitchen, the accused-person entered into the kitchen and forcefully committed rape on her. An FIR was lodged with the police and police registered a case. At the close of the investigation, police submitted charge-sheet against the accused-Appellant, for the offence under Section 448/376 of IPC. 4. The case being exclusively triable by the Court of Sessions, it was committed to the Court of learned Sessions Judge, South Tripura, Udaipur and the learned Sessions Judge, South Tripura, Udaipur transferred the case to the file of the learned Assistant Sessions Judge, Udaipur, South Tripura for trial. 5. Learned Assistant Sessions Judge, South Tripura, Udaipur framed charges under Section450/376(1) of IPC to which the accused pleaded not guilty and claimed to be tried. 6. In order to bring home the guilt of the accused, prosecution examined as many as 13 witnesses including the Medical Officer, who examined the victim girl and the Investigating Officer. At the close of the evidence for the prosecution, the accused-Appellant was examined under Section 313 of the Code of Criminal Procedure (for short "Cr.P.C."). Denying the allegations, the accused-Appellant declined to adduce any defence evidence. 7. After hearing both the sides and on the basis of the materials on records, the learned Assistant Sessions Judge convicted and sentenced the accused-Appellant in the manner aforesaid. 8. Denying the allegations, the accused-Appellant declined to adduce any defence evidence. 7. After hearing both the sides and on the basis of the materials on records, the learned Assistant Sessions Judge convicted and sentenced the accused-Appellant in the manner aforesaid. 8. Being aggrieved by the said judgment and order of conviction and sentence, the accused-Appellant has preferred this appeal challenging the legality of the impugned judgment and order. 9. From the records it appears that the prosecution has examined 2 (two) eye witnesses including the victim girl. The victim girl deposing as P.W.1 stated on oath that on the date of occurrence at about 3 p.m. while she was working alone in the kitchen, the accused-Appellant forcefully entered the kitchen, grabbed her and committed rape on her. She further stated that one Mr. Harendra Chakma saw the occurrence. 10. Mr. Harendra Chakma, who was examined as P.W.10, supporting the evidence of P.W.1. clearly stated that when he was going by the side of the house of P.W.1, he entered into the house of Sukumar Chakma for the purpose of taking a glass of water and saw the accused committing rape on the victim girl. 11. P.W.1 and P.W.10 were duly cross-examined on behalf of the defence but nothing material could be elicited to render their evidence unbelievable. Carefully examining their evidence it is found that there is sufficient corroboration in favour of the evidence rendered by P.W.1. P.W.1 in her evidence further stated that due to the rape committed upon her, she sustained some minor injuries on her hand, back side and chest. The Medical Officer, who examined the victim girl, was examined as P.W.3. He stated that he found abrasion on the right wrist and left forearm and some scratch marks in the midline of the back of chest of the victim girl. The Medical Officer, who opined that the victim girl would be 14 to 16 years of age, could not definitely state as to whether there was rape or not. He stated that he found no injury in the private parts of the victim girl and that he sent the vaginal swab of the victim girl for chemical examination. The medical evidence regarding the injury on the hand and the back of the chest supports the evidence of P.W.1 that she sustained the injuries during the commission of the rape. He stated that he found no injury in the private parts of the victim girl and that he sent the vaginal swab of the victim girl for chemical examination. The medical evidence regarding the injury on the hand and the back of the chest supports the evidence of P.W.1 that she sustained the injuries during the commission of the rape. The nature of the injuries sustained by the victim girl indicates that those injuries (sic) might have been sustained due to the alleged offence committed on her. 12. P.W.2 Smti. Karma Das Chakma stated that the father of victim girl had informed her on the date of occurrence itself that the accused had committed rape on the victim girl. 13. P.W.5 Shri Manmohan Tripura who was a teacher of Nijachandrapara Junior Basic School wherein the victim girl studied stated that the date of birth of the victim girl was 02.04.1991. Considering the medical evidence given by P.W.3 and the evidence of P.W.5, it appears that the victim girl was a minor at the time of occurrence. 14. P.W.6 Salakya Chakma, a neighbourer of the victim girl stated that on the date of occurrence itself Harendra Chakma told him that the victim girl was raped by the accused-Appellant. 15. P.W.7 Shri Gobinda Das is a Judicial Officer who recorded the statement of the victim girl and the P.W.10, Shri Harendra Chakma. He exhibited the statements. 16. P.W.8 Shri Sukramani Chakma, the father of the victim girl stated that during his absence the accused-Appellant committed the alleged offence and that on his return his daughter informed him that the accused-Appellant had committed rape on her. He further stated that the wearing apparels of his daughter were found to be torn. He has exhibited the FIR as Ext.-6 which was lodged with the police. 17. P.W.9 Smti. Dhanapati Chakma, the mother of the victim girl also stated that when she was in the paddy field, her daughter was alone in their house and the accused-Appellant committed rape on her. According to this witness, on her return from the place of work she found her daughter weeping and that her daughter was wearing (sic) torn apparels. She stated that, on being asked, her daughter told her that accused-Appellant had committed rape on her. 18. According to this witness, on her return from the place of work she found her daughter weeping and that her daughter was wearing (sic) torn apparels. She stated that, on being asked, her daughter told her that accused-Appellant had committed rape on her. 18. P.W.11 Shri Jatindra Talukdar, the scribe of the FIR stated that he had written the FIR at the request of the father of the victim girl. P.W.12 Shri Biswa Ranjan Majumder was the Investigating Officer. He investigated the case but could not complete the investigation. P.W.13 Shri Jatindra Das is another police officer who stated that he submitted the charge-sheet. 19. The learned defence counsel submitted that the absence of any injury in the private parts of the victim belied the story of rape and that the conviction of the accused was not lawful. Admittedly the Medical Officer did not find any injury in the private parts of the victim. 20. In a catena of decisions it has been settled by the courts that absence of injury on the private parts does not negate the commission of rape. Moreover the report of the Medical Officer indicates that there was laxity of vaginal orifice permitting two fingers without any tenderness. In view of the above, absence of any injury in the vagina cannot be sufficient to disbelieve the oral evidence of P.W.1. 21. The victim girl was duly cross-examined by the defence and nothing could be elicited to render her evidence unbelievable. She very clearly stated that the accused had forcefully committed sexual intercourse on her. P.W.8, father of the victim girl stated that when he was working in the field on the day of occurrence Mr. Herendra (P.W.10) had informed that the accused had raped his daughter and on being so informed when he returned home his daughter was weeping and she told him that she was raped by the accused P.W.9 i.e. the mother of the victim also supported the evidence of P.W.8. In view of the above, it is found that there is sufficient corroboration in the evidence of P.W.1 to believe that she was raped by the accused. 22. The principle and the law regarding appreciating the evidence in a rape case has been settled by the Hon'ble Apex Court in the cases of State of Punjab v. Ramdev Singh (2004) 1 SCC 421, Dharma v. Nirmal Singh @ Bittu and Anr. 22. The principle and the law regarding appreciating the evidence in a rape case has been settled by the Hon'ble Apex Court in the cases of State of Punjab v. Ramdev Singh (2004) 1 SCC 421, Dharma v. Nirmal Singh @ Bittu and Anr. (1996) 7 SCC 471 , State of Punjab v. Gurmit Singh and Ors. (1996) 2 SCC 384 and State of Rajasthan v. N.K. The Accused (2000) 5 SCC 30 . 23. In the light of the settled principle, the evidence of a rape victim is to be appreciated on the basis of probabilities and if her evidence is found not reliable than assurance of her testimony can be sought by way of corroboration. Chastity is the greatest possession of a female. It is to be kept in mind, in dealing with a case of rape victim, that no self respecting woman would come forward to speak falsely that she was raped by a person and thereby bring stigma to herself as well as to her family. In the present case, the victim who was a teen aged girl, clearly stated that she was raped by the accused. There is nothing on record to find that she had any reason to falsely implicate the accused. Hence her evidence appears to be reliable and trustworthy. In view of the above, even in the absence of any injury on her private parts, her sole testimony was sufficient to hold the accused guilty. 24. From the evidence on records as discussed above I find that there is sufficient corroboration in the evidence of the victim girl to believe that she was raped by the accused-Appellant. In the light of the above, there is no merit in this appeal warranting in interference with the impugned judgment and order. Therefore, I am not inclined to hold that the learned Assistant Sessions Judge committed any illegality by convicting the accused-Appellant under Section 376(1) and 450 of the IPC. Learned defence counsel has submitted that the accused-Appellant is a very poor person and that the fine of Rs. 10,000/- and Rs. 1,000/- would be too excessive considering the punishment of rigorous imprisonment awarded against him. As the accused-Appellant has already been directed to serve sentence of eight years rigorous imprisonment under Section 376(1), I am of the considered view that some leniency may be shown regarding payment of fine. 10,000/- and Rs. 1,000/- would be too excessive considering the punishment of rigorous imprisonment awarded against him. As the accused-Appellant has already been directed to serve sentence of eight years rigorous imprisonment under Section 376(1), I am of the considered view that some leniency may be shown regarding payment of fine. Accordingly the sentence of fine of Rs. 1000/- under Section 450 of IPC and the sentence of fine of Rs. 10,000/- under Section 376(1) of IPC are modified to Rs. 500/- and Rs. 5000/- respectively thereby requiring the accused-Appellant to serve further period of 3 (three) months RI for default of payment of fine of Rs. 5000/- under Section 376(1) of IPC and to suffer R.I. for one month for default of payment of fine of Rs. 500/- under Section 450 of IPC. 25. With the above modification, the conviction and sentence awarded against the accused-Appellant are affirmed and upheld. The appeal stands dismissed. Return the Lower Court Records.