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2009 DIGILAW 382 (GAU)

Bijoy Deb @ Kutu @ Dayal Hari v. State of Tripura

2009-06-03

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order dated 30.11.2007 passed by the learned Additional Sessions Judge, West Tripura, Khowai in S.T. (WT/K) 71 of 2007. By the impugned judgment aforesaid, the Appellant has been convicted for the offence under Section 376(2)(f) of the Indian Penal Code (herein after called 'IPC') and sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 10,000/- in default to suffer R.I. for 1 year. 2. The prosecution case, in brief may be stated as follows: On the night of 06.11.2006 at about 4 O'clock when the victim girl, aged about 9 years, was sleeping with her grand mother in the house of Shri Fulu Deb, who was the landlord of the father of the victim girl, she was removed from her bed by the Appellant who committed rape on her. As there was bleeding, the victim girl was taken to Khowai Sub-Divisional Hospital and thereafter, she was referred to G.B. Hospital for treatment. The F.I.R. was lodged by Sri Nepal Das, father of the victim girl, informing the O.C., Khowai Police Station and the same was registered as Khowai P.S. Case No. 48 of 2006 under Section 376(2)(f) IPC. During the investigation, police examined as many as 12 witnesses including the Medical Officers and collected the medical report. At the close of the investigation, police submitted charge-sheet against the accused for the offence under Section 376(2)(f) IPC and forwarded him to the Court to stand trial. The offence being exclusively triable by the Court of Sessions, the same was committed to the Court of learned Additional Sessions Judge, West Tripura, Khowai. During the course of trial, the prosecution examined as many as 12 witnesses including medical officers. At the close of the evidence for the prosecution, the accused was examined under Section 313 Code of Criminal Procedure. The accused denied the allegations and declined to adduce defence evidence. The learned Sessions Judge framed charge under Section 376(2)(f)IPC. Having heard both sides and perusing the materials on record, the Additional Sessions Judge held the accused guilty and accordingly, convicted him for the offence under Section 376(2)(f) IPC and sentenced to suffer Rigorous Imprisonment for 10 years and to pay a fine of Rs. 10,000/- in default to suffer Rigorous Imprisonment for one year. 3. Having heard both sides and perusing the materials on record, the Additional Sessions Judge held the accused guilty and accordingly, convicted him for the offence under Section 376(2)(f) IPC and sentenced to suffer Rigorous Imprisonment for 10 years and to pay a fine of Rs. 10,000/- in default to suffer Rigorous Imprisonment for one year. 3. Being aggrieved by the said judgment and order of conviction, the Appellant, who is undergoing imprisonment has preferred this appeal. 4. Mr. H. Debnath, learned Counsel on being appointed by the High Court Legal Service Committee has appeared for the Appellant, Mr. A. Ghosh, learned Additional Public Prosecutor has represented the State. 5. I have heard the learned Counsels for the parties and carefully examined the evidence on record. 6. Mr. Debnath, learned Counsel appearing for the Appellant, taking me to the evidence on record, has submitted that there is no sufficient evidence to believe that the victim was below 12 years of age and that there is no evidence regarding commission of the offence under Section 376(2)(f) IPC. Mr. A. Ghosh, learned Additional Public Prosecutor drawing the attention of this Court to the FIR, the statement of the victim girl and the medical report has submitted that there is sufficient evidence to show that the victim girl was below 12 years age and that the victim girl herself categorically stated that the accused had committed rape on her. 7. In order to appreciate the evidence, I would like to, briefly reproduce the evidence as follows: The PW 2 i.e. the victim girl in her evidence given before the Court clearly stated that while she was steeping with her grand mother, the accused took her to his bed and committed rape on her by gagging her mouth and that there was bleeding from her private parts. She further stated that she was taken to hospital and that she had informed the matter to her mother. This witness was duly cross-examined on behalf of the defence. Nothing could be revealed to render her evidence disbelievable. While deposing as PW 2, she gave her age was 10 years. No suggestion was made to her indicating that she was above 12 years of age. There is nothing on record to find that this minor girl had any reason or grudge to falsely implicate the accused, in whose home she was sleeping. While deposing as PW 2, she gave her age was 10 years. No suggestion was made to her indicating that she was above 12 years of age. There is nothing on record to find that this minor girl had any reason or grudge to falsely implicate the accused, in whose home she was sleeping. Hence her evidence appeared to be reliable and cogent. Mr. Nepal Das, father of the victim, who deposed as PW 1, stated that he was residing in the house of Fulu Deb i.e. the father of the accused as a tenant and that on the factual night for want of accommodation, his minor daughter and his mother (sic) slept in the house of the said landlord and that at about 4 O'clock the accused had taken his daughter to his room and committed rape on her. He further stated that as there was bleeding from the private parts of his daughter, she was taken to hospital. This witness was duly cross-examined on behalf of the defence, but no contradiction could be brought to discredit his evidence. Smt. Purnima Das was the mother of the victim as PW No. 3. Supporting the evidence of her husband and her daughter, this witness stated that she noticed bleeding from the private parts of her daughter, who was crying. Facing such situation, she raised alarm and on being advised by the people from the neighbourhood her daughter was taken to hospital. She further stated that on way to the hospital, her daughter had told her that at about 4.00 P.M. the accused had raped her by dragging her mouth. Though the defence had duly cross-examined this witness, no contradiction could be brought to disbelieve her evidence. In view of the above, evidence of the prosecutrix as well as her parents, it is clearly found that on the factful night, while the prosecutrix was sleeping with her grand mother in the house of the accused, the accused had raped the minor girl. Chastity is the proud possession and a matter of honour for a woman. No woman or parents would falsely implicate any person and bring dishonour to the lady as well as her family. Chastity is the proud possession and a matter of honour for a woman. No woman or parents would falsely implicate any person and bring dishonour to the lady as well as her family. PW 4, a person from the neighbourhood appeared in the house of Fulu Deb after hearing alarm raised by the prosecutrix's mother and this witness was told by the mother of the victim that there was bleeding from the private parts of her daughter. Accordingly, she advised her to take her daughter to hospital. This witness further stated that in the afternoon, she came to know that the accused committed rape on the said minor. PW 5, Anr. person residing in the same locality stated that in the afternoon she came to know that the accused had committed rape on the victim girl. PW 6 stated that police had seized blood soaked garments of the victim girl in his presence vide seizure list. He has exhibited the seizure list as Exhibit 3/2. PW 7, a medical officer working in the Khowai Sub-Divisional Hospital stated that on 06.11.2006 at about 7.00 A.M., the minor girl, i.e. the victim, aged about 9 years was brought to the Emergency Block by her parents with complaint of bleeding per vagina and severe pain in urinal area from the early morning. The victim girl was taken to the labour room for examination, but due to non-cooperation and restlessness, she could not be examined. This witness found that there was bleeding per vagina along with perennial tear. He stated that stitch and other investigation could not be done due to non-cooperation and restlessness of the girl and severe tenderness in her vaginal area. The medical officer aforesaid referred the victim girl to G.B. Hospital for further and better treatment. He further stated that the parents of the girl were giving history of rape on their daughter. He has exhibited his report as Exhibit 4 and his signature as Exhibit 4/1. From the evidence of the PW 7, it is found that on the next morning i.e. at about 7.00 A.M., the victim girl was brought to him with bleeding injury from her vaginal and perennial tear along with complaint of rape. This circumstantial evidence lends support in favour of the prosecution case. Dr. From the evidence of the PW 7, it is found that on the next morning i.e. at about 7.00 A.M., the victim girl was brought to him with bleeding injury from her vaginal and perennial tear along with complaint of rape. This circumstantial evidence lends support in favour of the prosecution case. Dr. Shekhar Chakraborty, who was working in this Khowai Sub-Divisional Hospital deposing as PW 8 stated that he examined the accused, aged about 19 years and found that he was capable of performing sexual intercourse. Therefore, it appears that the accused had the capability to commit the offence of rape. The victim girl clearly stated that she was raped by the accused. The circumstance that there was bleeding from her vagina with tear injury has corroborated the evidence of the victim girl (PW 2). PW 9, Smt. Sibani Nath Sharma stated that she heard that the accused had committed rape on the victim girl. In her cross-examination, she stated that at about 5.30 A.M., the mother of victim girl told her that the victim girl, while going out to collect betel nut sustained leech bite resulting bleeding. She denied the suggestion that it was not a fact that she did not hear about the alleged rape. This indicates that she heard about alleged rape. PW 10, Dr. Jahar Lal Baidya, Assistant Professor of G.B. Hospital deposing as PW 10 stated that, on 06.11.2006 at about 9.55 A.M., he examined the victim girl aged about 9 years under anesthesia. This witness stated that the girl was found to be pale and that the under garments were found soaked with blood. He also stated that during examination, her hymen was not found intact and that second degree perennial tear was found, which was sutured in layer. He has exhibited his report as Exhibit 7 and his signature there on as Exhibit 7/1. In his cross-examination, the medical officer stated that he did not give opinion regarding rape as because he was asked to submit the injury report. On being asked, he further stated that in case of leech bite there could not be any perennial tear or rupture of hymen, but there might be little bit of bleeding. In view of the said evidence, it is clearly found that the hymen of the victim was ruptured with second degree perennial tear and there was bleeding from her vagina. In view of the said evidence, it is clearly found that the hymen of the victim was ruptured with second degree perennial tear and there was bleeding from her vagina. This injury supports the victim's evidence that she was raped by the accused. The PW 10 has ruled out the proposition of leech bite. In view of the said medical evidence and the circumstances that the minor was sleeping in the house of the accused, that the accused had the capability to have sexual intercourse, that there was bleeding with perennial tear and that the hymen of the minor was not intact are sufficient circumstantial evidence which corroborate the evidence of the victim girl. PW 11, the scribe of the FIR stated that on 06.11.2006, he wrote the complaint as narrated by the complainant i.e. Nepal Das. He has exhibited the complaint as Exhibit No. 1. The Investigating Officer was examined as PW 12. He has exhibited the FIR, the sketch map etc. This witness was duly cross-examined on behalf of the defence and no material contradiction could be brought out to discredit the evidence of the prosecution witnesses, more particularly, the evidence of the prosecutrix, her parents and the medical officers, who examined the victim girl. 8. It is settled law that the solitary statement of a rape of victim, if found to be reliable and trustworthy is sufficient to base the conviction. In our present case in hand, the prosecutrix i.e. the victim girl clearly stated that she was raped by the accused. There is nothing on record to show that the victim girl on her parents had any reason or grudge to falsely implicate the accused. In the light of the above evidence on record, it appears that the prosecution could prove beyond all reasonable doubt that the accused had committed the alleged offence. Therefore, I find no sufficient ground to interfere with the impugned judgment and order. Accordingly, the impugned conviction is upheld. 9. The learned Counsel appearing for the accused Petitioner-Appellant submitted that the Appellant, who had no previous criminal track record, being a young person, who had just crossed the age of 18 years was tempted by the presence of the victim girl in his house and as such, he deserves to be considered leniently. Admittedly, the accused was just above 18 years of age at the time of commission of offence. Admittedly, the accused was just above 18 years of age at the time of commission of offence. There is nothing on record to indicate that he had any criminal history. Considering the age of the accused, it cannot be ruled out that the Appellant probably could not control his desire and thus was tempted to commit the alleged offence. 10. In view of the above, considering the age of the Appellant as well as the victim girl and the circumstance under which the offence was committed, I am of the considered view that this is a fit case where the relief provided in the proviso to the Section 376(2)(f) can be granted and the sentence can be reduced. Accordingly, the sentence is modified requiring the accused-Appellant to suffer Rigorous Imprisonment for 7 (seven) years instead of 10 (ten) years and to pay a fine of Rs. 1,000/- (Rupees One thousand) instead of Rs. 10,000/- (Rupees Ten thousand) in default to undergo Rigorous Imprisonment for additional period of 3 (three) months. The period of detention already undergone shall be treated as set off under Section 428 Code of Criminal Procedure. 11. With the above modification, this appeal is disposed of. 12. Send back the Lower Court records.