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2009 DIGILAW 326 (GAU)

Narayan Majumdar v. State of Tripura

2009-05-15

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. A.K. Bhowmik, learned senior Counsel assisted by Mr. N. Majumder, learned Counsel appearing for the appellant and Mr. A Ghosh, learned Addl. P.P. appearing for the State-respondent. 2. This appeal has been preferred by the appellant under Section 374 of Cr.PC against the judgment and order of conviction and sentence dated 19.5.2007 passed by the learned Sessions Judge, South Tripura, Udaipur in connection with the case No. ST14(ST/U) of 2005 convicting the Appellant to suffer R.I. for 10 years and to pay a fine of Rs.2,000 and in default of payment of fine undergo further R.I. for 3 months for commission of offence punishable under Section 376 of IPC. 3. The prosecution story, in brief, is that one Pratap Chandra Lodh lodged a written complaint with the Officer-in-Charge of R.K. Pur P.S. against the accused Narayan Majumdar alleging that he committed rape on his minor daughter on 8.4.2004 in a deep jungle and prior to that the accused took his daughter from his house in a motor bike and after commission the offence of rape he left her at Taibandal Road and thereafter on seeing her, one Shyamal Majumder rescued her. Having reported by the girl, the complainant brought the matter to the notice of the local respectable persons and sought their help for resolving the matter but the attempt to resolve the matter was failed, for which the aforesaid complaint was lodged with the O.C., R.K. Pur Police Station. The police registered a case being R.K. Pur P.S. case No. 198 of 2002 under Section 376 of IPC. After completion of the investigation a charge sheet was filed against the appellant-accused. The learned Sessions Judge, South Tripura read out and explained to the accused the charge brought against him and framed charge under Section 376/511, IPC against him. The accused pleaded not guilty and stood trial. The Prosecution examined 14 witnesses including the victim girl where the defence examined 4 witnesses including the appellant-accused himself. On the basis of the materials made available and the evidence on record, the learned trial court convicted and sentenced the appellant-accused as stated above. 4. Mr. The accused pleaded not guilty and stood trial. The Prosecution examined 14 witnesses including the victim girl where the defence examined 4 witnesses including the appellant-accused himself. On the basis of the materials made available and the evidence on record, the learned trial court convicted and sentenced the appellant-accused as stated above. 4. Mr. Bhowmik, learned senior Counsel submits that the learned trial court committed serious illegality and irregularity in proceeding with the trial under Section 376 of IPC although at the time of consideration of the charges on 28.4.2008, it was explained to the accused that on 8.4.2004 at about 0200 hours at Buraghat in a deep jungle under P.S. R.K. Pur, Sub-Division Udaipur forcibly attempted to commit rape on the victim girl (name withheld) who was 16 years of age and in such attempt, the did certain acts towards commission of the said offence of rape. In this regard Mr. Bhowmik, learned senior Counsel has drawn attention of this Court to the statement of the victim girl recorded under Section 164, Cr.PC wherein she clearly stated before the Judicial Magistrate, 1st Class on 28.6.2004 that the accused Narayan Majumdar tried to commit rape but since she applied force he could not commit rape upon her. In view of such clear statement made by the victim girl herself before the Magistrate, according to Mr. Bhowmik, there was no scope for framing charge against the accused-appellant under Section 376 of IPC. 5. The victim girl while deposing before the learned trial court made statement to the effect that the accused forcibly tried to penetrate his male organ inside her vaginal passage but there was half penetration. According to Mr. Bhowmik, learned senior Counsel for the appellant, this is an afterthought and she deposed so on being tutored by her parents. Moreover, there are lot of contradictions in the evidence of prosecution witnesses particularly in the evidence of PWs 1 and 2 which render the evidence of these witnesses as untrustworthy and unreliable. The other aspect, as pointed out by Mr. Bhowmik is that the incident took place on 8.4.2004 but the FIR was lodged only on 14.6.2004, i.e., after a gap of two months and seven days without any acceptable explanation for such long delay. In view of the above, according to Mr. The other aspect, as pointed out by Mr. Bhowmik is that the incident took place on 8.4.2004 but the FIR was lodged only on 14.6.2004, i.e., after a gap of two months and seven days without any acceptable explanation for such long delay. In view of the above, according to Mr. Bhowmik, the impugned conviction and sentence as recorded by Unlearned trial court is not sustainable in the eye of law and the same are liable to be quashed. 6. I have closely perused the records of the case and also the evidence on record. Form the statement of the victim girl under Section 164, Cr.PC and her evidence, it is found that the victim girl although made allegation that the appellant was disturbing her on certain occasions she herself, on being proposed by the accused for marriage, went out to meet the accused-appellant after traveling a long distance and she, in fact, met the appellant at a specified place as planned earlier, from where they proceeded further. No force was applied by the appellant till she met him at Rabi Lodh, West Mirza. Even at the time of taking her from Rabi Lodh towards jungle there was no complaint of applying force by the appellant. She protested only when the appellant attempted to commit rape upon her. The case of attempt to commit rape has been improved by the victim girl while deposing before the trial court by saying that the appellant half penetrated his male organ inside her vaginal passage. 7. Admittedly there is a clear departure from the statement made before the Magistrate under Section 164 of Cr.PC and there is no consistency in her evidence inasmuch as she tried to make a case of rape before the court while giving her evidence. The evidence of the victim girl and her father PW2 clearly reveal that the accused used to come to their house frequently and the accused persuaded the victim girl to marry him. He made this proposal on several occasions including on 6.4.2004 and 8.4.2004. Although the victim girl stated initially that the accused used to disturb her, she never disclosed the same to her parents, not even to her relatives or friends. I could not persuade myself to accept the evidence of victim girl as so reliable and trustworthy to base conviction of the appellant-accused under Section 376 of IPC. Although the victim girl stated initially that the accused used to disturb her, she never disclosed the same to her parents, not even to her relatives or friends. I could not persuade myself to accept the evidence of victim girl as so reliable and trustworthy to base conviction of the appellant-accused under Section 376 of IPC. Law has been established by now that in rape case the court may record conviction and sentence on the basis of the sole evidence of the prosecutrix without even being corroborated, but her evidence must be consistent, trustworthy and inspiring confidence of the court. Reading the entire evidence of the victim girl, I do not find her evidence to be of such standard capable of inspiring confidence of the court. 8. It is also to be noted that the, learned trial court lost sight of the clear statement made by the victim girl before the Magistrate under Section 164, of Cr.PC that the appellant tried to commit rape and he could not commit the rape because of her resistance. The relevant portion other statement under Section 164, Cr.PC is quoted below: When I shouted Narayan Majumder kept my mouth pressed and all of a sudden forcibly opened my frock, pant. Thereafter bringing me down on the ground Narayan Majumder tried to commit rape (upon me). But since I applied force, he could not commit rape upon me. Later on, Narayan Majumder after leaving me at that place fled away. 9. This being the position the learned trial court ought not have framed charge under Section 376 of IPC, against the appellant. Learned trial court framed charge under Section 376/511, IPC, and proceeded the entire trial against the appellant-accused under Sections 376/511, IPC. But ultimately, the learned trial court convicted and sentenced the appellant under Section 376, IPC only. The charge under Section 376, IPC is a major offence compared to charge under Section 511 of IPC and unless a separate charge under Section 376, i.e., major offence is framed, the accused cannot be convicted and sentenced under Section 376 of IPC. 10. In view of the above, in my considered view, the conviction and sentence under Section 376, IPC, as handed down upon the appellant is not sustainable under the law. 11. 10. In view of the above, in my considered view, the conviction and sentence under Section 376, IPC, as handed down upon the appellant is not sustainable under the law. 11. In view of the aforesaid discussion and position of law the impugned Judgment and order dated 19.5.2007 passed by the learned Sessions Judge, South Tripura, Udaipur in connection with the case No. ST 14(ST/U) of 2005 convicting and sentencing the appellant to suffer R.I. for 10 years and to pay a fine of Rs.2000 and in default of payment of fine undergo further R.I. for 3 months for commission of offence punishable under Section 376 of IPC, is liable to be quashed and accordingly the same is quashed. The appellant shall be set at liberty forthwith if he is not wanted in connection with any other case. 12. Appeal stands allowed. Appeal allowed.