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2010 DIGILAW 767 (GAU)

Pallab Das v. State of Tripura

2010-09-28

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. I have heard Mr. S. Talapatra, learned senior counsel assisted by Mr. D. Bhattacherjee, learned Counsel for the revisional Petitioner and also heard Mr. A. Ghosh along with Mr. P. Bhattacherjee, learned Addl. P. P. appearing on behalf of the State of Tripura. 2. This criminal revision petition filed under Section 397 read with Section 401 of the Code of Civil Procedure, 1973 is directed against the judgment and order dated 30.01.2008 passed by the learned Addl. Sessions Judge, South Tripura, Udaipur in Criminal Appeal No. 11 (2) of 1999 affirming the judgment and order dated 06.05.1999 passed by the learned Asstt. Sessions Judge, South Tripura, Udaipur convicting the Petitioner under Section 376 IPC convicting and sentencing him to suffer R. I. for 7 years in ST 45 (ST/S) of 1998. 3. The prosecution story, in brief, is that in the evening of 10.10.1997, on the Nabami day of Durga Puja, PW-1 Smti. Swapna Das, D/o Rabindra Das of Manik Ganj, P.S.-Sabroom, District-South Tripura, along with her cousin, PW-3 Miss Arati Das, went out of their houses to visit Durga Puja pandals. When they reached Sabroom Motor Stand area, her cousin sister Miss Arati Das impressed upon Smti. Swapna Das to purchase channachur. Accordingly, Smti. Swapna Das along with her cousin came to the shop of the accused Petitioner, namely, Shri Pallab Das to purchase channachur. After purchasing channachur she handed over the same to her cousin and paid its price. When she was receiving the balance, the accused Petitioner dragged her into his shop and poured liquid substance of bitter test (probably liquor) into her mouth forcibly. The accused Petitioner raised the volume of the tape recorder that was being played in his shop and took off the wearing apparels of the victim and made her naked. The accused then forcibly entered his penis into her private parts and repeatedly committed rape on her. In this process, semen fell on her frock and got it a dirt look. Having got the information, the grandmother (PW-2) and aunt (PW-4) of the victim rushed to the shop of the accused and asked the accused Petitioner to get the victim (PW-1) out of his shop. But he denied the presence of the victim in his shop. In this process, semen fell on her frock and got it a dirt look. Having got the information, the grandmother (PW-2) and aunt (PW-4) of the victim rushed to the shop of the accused and asked the accused Petitioner to get the victim (PW-1) out of his shop. But he denied the presence of the victim in his shop. Then PW-2 and PW-4 warned the accused that unless the victim was let out of his shop, they would call police immediately. Being frightened, the accused let the victim out of the shop and then fled the spot. Learning about the fact of commission of rape on the victim by the accused they took the victim to police station who made an oral complaint which was reduced to writing by the Officer-in-Charge of Sabroom Police Station. On an FIR lodged by the victim with the Officer-in-Charge of Sabroom Police Station, a case was registered being Sabroom P. S. Case No. 68 of 1997 under Section 376 IPC. The Officer-in-Charge of the Police Station endorsed the case to S. I. Shri Indrajit Sinha for investigation. 4. During the course of investigation, the I.O. visited the place of occurrence and prepared site plan (Exhibit-12 series). Thereafter he sent the victim to Sabroom Hospital for medical examination. The I. O. seized one green coloured towel, one hair-band, three empty bottles of liquor (Exhibits-M.O. 2, M. Order 3 and M. Order 4 series) from the spot of incident in presence of witnesses by drawing seizure list. The I. O. also examined the available witnesses and recorded their statements under Section 161 Code of Criminal Procedure. On the prayer of the I. O., the statement of the victim (PW-1) and Miss Arati Das, (PW-3) were recorded judicially. On 12.10.1997, the I.O. seized the panties (Exhibit. M. Order 1) of the victim in presence of witnesses by drawing seizure list. On 20.10.1997, the I.O. arrested the other charge sheeted accused namely, Shri Samir Bosak suspecting him to be involved in the commission of the offence of rape on the victim and he was placed at T. I. Parade on 24.10.1997. 5. After completion of investigation, charge sheet was laid by the I. O. under Section 376(2)(g) IPC against the Petitioner and co-accused Shri Samir Bosak. The case was committed to the Court of Sessions. 5. After completion of investigation, charge sheet was laid by the I. O. under Section 376(2)(g) IPC against the Petitioner and co-accused Shri Samir Bosak. The case was committed to the Court of Sessions. South Tripura, Udaipur and accordingly charge was framed under the aforesaid section against both the accused persons. Subsequently on 05.09.1998 on the prayer of the learned P.P., the learned Sessions Judge altered the charge to Section 376 IPC read with Section 114 IPC against Shri Pallab Das. The case was transferred to the Court of learned Assistant Sessions Judge, South Tripura, Udaipur, for disposal in accordance with law. On completion of trial, the learned trial Court acquitted the co-accused Shri Samir Bosak on benefit of doubt and held the present accused Petitioner guilty under Section 376 IPC and sentenced him therein as indicated earlier. 6. Mr. Talapatra, learned senior counsel places the evidence of prosecution witnesses particularly, PW-1, victim girl and also PW-3, Miss Arati Das, cousin sister of PW-1. According to him, the evidence of victim girl is full of exaggeration and serious contradictions. Her evidence is inconsistent, unreliable and unbelievable besides being fanciful and artificial and on the basis of such evidence no conviction can be imposed. It was stated by the victim girl that she was forcefully taken inside the shop of the accused-Petitioner in presence of her cousin sister, PW-3. But from the evidence of PW-3, no such statement is found corroborating the evidence of the victim. Placing the medical report, it has been submitted that there was no sign of rape not to speak of penetration of penis of the accused Petitioner in the vagina of the victim girl. To quote from relevant portion of the medical report- ...On examination no injury mark is seen anywhere in her body including her private parts. Hymen found intact. No injury mark on her labia majora and labia minora. No foreign material is seen in her private parts except scattered sticky white discharge, which is seen around the vaginal introitus, and her public hairs were matted with the same discharge. Two Nos. vaginal swabs has been taken (one from vaginal introitus and one from outside vaginal orifice). Both the swabs are examined under microscope which shows plenty of dead and few alive spermatozoa along with few epithelial cells indicating of recent sexual intercourse. 7. According to Mr. Two Nos. vaginal swabs has been taken (one from vaginal introitus and one from outside vaginal orifice). Both the swabs are examined under microscope which shows plenty of dead and few alive spermatozoa along with few epithelial cells indicating of recent sexual intercourse. 7. According to Mr. Talapatra, learned senior counsel appearing for the accused Petitioner, medical evidence does not support the prosecution case and as such, the conviction and sentence as recorded by the learned trial Court and upheld by the lower appellate Court are liable to be set aside. However, it has been fairly submitted by Mr. Talapatra that the accused Petitioner may be held guilty under Section 354 IPC i.e. the offence of assault or criminal force to woman with intent to outrage her modesty for which the accused is liable to punishment with imprisonment of either description for a term which may extend to two years or with fine, or with both. By this time, according to the learned senior counsel, the accused Petitioner is serving the sentence for last 2 years 8 months 29 days. The conviction of the accused Petitioner may be converted to one under Section 354 IPC and he may be set at liberty forthwith as he has served sentence for a period of more than 2 years in jail. 8. I find this submission of the learned senior counsel for the Petitioner is quite reasonable and acceptable in the facts and circumstances of the case and evidence on record. I am in agreement with him and I have no hesitation to accept the same. The learned Additional Public Prosecutor, Mr. Ghosh, has also shown his fairness in sharing our view. 9. In view of the above submissions, the conviction and sentence under Section 376 IPC as awarded by the learned trial Court and upheld by the learned lower appellate Court against the present accused Petitioner stands converted to one under Section 354 IPC treating the period of sentence already undergone as under Section 354 IPC. The accused Petitioner be set at liberty forthwith if his further detention is not required in connection with any other case. 10. The petition accordingly stands disposed of. 11. Send down the LCR to the Court below forthwith.