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2011 DIGILAW 107 (GAU)

Chittaranjan Roy v. State of Tripura

2011-02-09

A.C.UPADHYAY

body2011
JUDGMENT A.C. Updhyay, J. 1. I have heard Mr. S. Talapatra, learned senior counsel, assisted by Mr. B. Deb, learned Counsel, appearing for the Appellant and Mr. A. Ghosh, learned Addl. Public Prosecutor, appearing for the State-Respondent. 2. By the impugned judgment and order, dated 09.12.2010, passed by the learned Addl. Sessions Judge, North Tripura, Kailashahar, in S.T. No. 03(NT/K)/2008, the accused-Appellant stands convicted under Section 376(1) of IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.50,000/-, in default, to suffer further rigorous imprisonment for one year. 3. The prosecution case, unfolds to reveal that, on 12.12.2006, the victim as well as the informant of the instant case, lodged a court complaint, alleging therein that, on 27.10.2006, in the evening, at about 3.00 p.m., she was proceeding towards Kailashahar with a view to submit a job application in the office of the P.W.D. On reaching Auto-rickshaw stand at Kumarghat, accused-Appellant met her and enquired from her regarding her journey and also told her that he would be able to manage a job for her and requested her to accompany him. Accordingly, she got into an Auto-rickshaw together with the accused-Appellant and came to Kailashahar near the 'Sri Krishna Hotel'. The accused-Appellant booked a room in Srikrishna Hotel and told the prosecutrix to write her name in the hotel register as 'Rupa Roy' (not her real name). Thereafter, allegedly the accused-Appellant took the prosecutrix in the hotel room, on the plea that there was no separate room available in the hotel, for accommodation. Accordingly, the prosecutrix had to stay in the single room along with the accused-Appellant on that night. At about 9 p.m. at night the accused-Appellant entered into the hotel room, forcefully undressed her, throated her and threatened her not to raise any hue and cry. Accused-Appellant told her that she would be killed and she would not get any job. Thereafter, the accused-Appellant, raped her against her will several times on that night. Though the hotel man came to her room with police hearing the sound of scuffling, but the prosecutrix did not open her mouth and disclose anything to them, as the accused-Appellant had threatened to kill her. 4. Thereafter, police was informed by the owner of the hotel and, accordingly, both the prosecutrix and the accused-Appellant were taken to the police station. 4. Thereafter, police was informed by the owner of the hotel and, accordingly, both the prosecutrix and the accused-Appellant were taken to the police station. Subsequently, the prosecutrix was handed over to her brother by the police. Later on, the prosecutrix informed the incident to her father and brother. Though local meetings were held and the local leaders gave assurance to settle the matter, but ultimately they failed and accordingly, a complaint petition was lodged by the prosecutrix, before the learned Chief Judicial Magistrate, North Tripura, Kailashahar. 5. On receipt of the complaint petition as aforenoted, the learned Chief Judicial Magistrate, North Tripura, Kailashahar, forwarded it to the O/C, Kumarghat P.S, for treating it as F.I.R., and to proceed with the investigation of the case. The Officer In-charge, Kumarghat P.S., accordingly, registered a case under Sections 376/420 IPC and launched investigation. On completion of investigation, the investigating police officer submitted the charge sheet against the accused Appellant alleging commission of offence under Sections 376/420 IPC. 6. During trial, the learned Addl. Sessions Judge (Fast Track Court), Kailashahar, North Tripura, framed the formal charge under Section 376(1) IPC against the accused-Appellant. 7. In the trial, the prosecution side examined as many as 15 witnesses to prove the charge against the accused-Appellant. On conclusion of recording of the evidence of the witnesses, the accused-Appellant was examined under Section 313 Cr.P.C., wherein he took the stand of total denial. 8. On conclusion of the trial, the learned Addl. Sessions Judge, Fast Track Court, Kailashahar, North Tripura, convicted the accused-Appellant as aforesaid, giving rise to this appeal. 9. On conclusion of recording of the evidence of the witnesses, the accused-Appellant was examined under Section 313 Cr.P.C., wherein he took the stand of total denial. 8. On conclusion of the trial, the learned Addl. Sessions Judge, Fast Track Court, Kailashahar, North Tripura, convicted the accused-Appellant as aforesaid, giving rise to this appeal. 9. Before initiating the discussion on the findings recorded by the learned trial Court, it would be appropriate to note down, the salient points raised by the learned Counsel for the accused-Appellant, during the course of his arguments, which are as follows: (i) No medical examination report of the prosecutrix was produced in the Court; (ii) the FIR was lodged by the prosecutrix after 45 days from the date of alleged occurrences, without proper explanation of causing inordinate delay; (iii) the conduct of the prosecutrix, implies her tacit consent to stay with the accused-Appellant in the hotel room; (iv) the purpose of visiting the place with the accused-Appellant was not for submission of job application, since no date was found to have been fixed, for submission of job application in and around the place of occurrence by the P.W. Department; (v) the prosecutrix and the accused-Appellant were detained under Section41 Code of Criminal Procedure by the local police. The prosecutrix never made any statement against the accused-Appellant alleging rape, when the accused-Appellant was in custody and during the continuance of the proceeding under Section 41 Cr.P.C. The proceeding under Section 41 Cr.P.C. initiated against the accused-Appellant was finally dropped for want of evidence; (vi) apparently, the prosecutrix turned around the accused-Appellant to save her image before her relatives and friends when she was found with the accused in a hotel room together; 10. In order to appreciate the aforesaid arguments advanced by the learned Counsel appearing for the Appellant as well as the learned Public Prosecutor, it would be pertinent to extract herein below the core of the evidences of the prosecution witnesses. 11. According to PW.1 (informant), on 27.10.2006, she came to Kumarghat by Bus. She got down at the Kumarghat Auto stand since, the Bus in which she was travelling, had developed some mechanical disorder. She was waiting in Kumarghat Auto stand, for going to Kailashahar with a view to submit an application for interview in PWD. In the Motor stand, she met the accused-Appellant, whom she knew since her child-hood. She got down at the Kumarghat Auto stand since, the Bus in which she was travelling, had developed some mechanical disorder. She was waiting in Kumarghat Auto stand, for going to Kailashahar with a view to submit an application for interview in PWD. In the Motor stand, she met the accused-Appellant, whom she knew since her child-hood. The accused-Appellant wanted to know from her the reason of her waiting and, accordingly, she told him that she would proceed to Kailashahar for submitting a job application in the P.W. Department. According to PW.1, she along with the accused-Appellant, accompanied by a few other, came in an Auto rickshaw to Kailashahar from Kumarghat. On reaching Kailashahar at about 4.30 p.m., she told the accused-Appellant that, she would go to the house of her relative situated near the Forest Office at Kailashahar, but the accused-Appellant told her to stay in the hotel at Kailashahar on that night. Accordingly, the accused-Appellant took her to the 'Sri Krishna Hotel', Kailashahar and booked a room in the hotel and had also written something in the register book of the hotel and she signed her name as Rupa Roy in the said register book. PW.1 stated that, in the hotel room she was forcefully undressed and raped by the accused-Appellant. PW.1 further alleged that immediately after commission of rape, she heard knocking of the door and the accused-Appellant opened the door, but before opening the door, the accused-Appellant threatened her not to disclose the incident to any person. On opening the door, they found the owner of the hotel along with some police personnel. One Darogababu also entered into the hotel room and asked the accused-Appellant about their relationship. The accused-Appellant told them that his relationship with the prosecutrix is that of brother and sister and she accordingly approved the relationship as told by the accused-Appellant to police and confirmed before the police that the accused-Appellant was her 'kaku'(uncle). On the next morning, the police officer along with his staff, came to the hotel and took them to Kailashahar police station. 12. The PW.1, admittedly, did not disclose the alleged commission of rape out of fear at that time. On the same day, her brother came to the Kailashahar police station and, accordingly, the Officer In-charge of the police station allowed the prosecutrix to go with her brother. 12. The PW.1, admittedly, did not disclose the alleged commission of rape out of fear at that time. On the same day, her brother came to the Kailashahar police station and, accordingly, the Officer In-charge of the police station allowed the prosecutrix to go with her brother. PW.1 further stated that, she narrated the incident before her father, brother and some prominent persons of the locality including local MLA Mr. Bijoy Roy, and also in the office of the Department, where the accused-Appellant was serving. Without due explanation of their unnatural conduct it is absolutely unthinkable that the father and the brother of the victim would not inform the police immediately after having came to know about the rape of the prosecutrix more so, when a proceeding was initiated under Section 41 Code of Criminal Procedure against the Appellant for having stayed with the victim in the same hotel room. 13. Very surprisingly, in her cross-examination by the defence counsel, she stated that at the time of the alleged incident, she was a student of B.A. First Year and her relatives were residing in the Quarters near the Forest Office, Kailashahar, which is situated at about two furlong away from the said 'Sri Krishna Hotel'. PW.1 also stated, in her cross-examination, that many vehicles were available in the morning for proceeding towards Kailashahar and she along with the accused-Appellant had spent that night in the same room of the hotel, after the police personnel left the hotel. 14. It would be relevant herein to discuss the evidence of the hotel owner PW.7, who happened to visit the hotel room occupied by the accused-Appellant and the prosecutrix on the night of the alleged occurrence. Sri Subhash Ghosh, PW.7, owner of the 'Shri Krishna Hotel', stated that on 27.10.2006, in the evening, the accused-Appellant and prosecutrix came to his hotel and asked for a room in the hotel and accordingly, he allotted Room No. 10 to them. The accused-Appellant, who came with the girl in the evening, recorded his name and the name of the said girl in the hotel register, where both of them put their signatures in the appropriate column of the register book. They had shown their relationship as brother and sister. The accused-Appellant, who came with the girl in the evening, recorded his name and the name of the said girl in the hotel register, where both of them put their signatures in the appropriate column of the register book. They had shown their relationship as brother and sister. PW.7 also confirmed that, as per usual practice, he sent the list of boarders to the local police 9 station and on that night at about 11/11.30 p.m., Darogababu and police staff came to his hotel with the said boarders' list of the day, for routine inspection. P.W.7 accompanied the police officer to Room No. 10. On knocking the door of Room No. 10, both the accused-Appellant and the prosecutrix came out. According to PW.7, both of them i.e. the accused-Appellant and the prosecutrix behaved normally when he met them in the hostel room. Thereafter, the police officer left the hotel by saying that they should be allowed to stay in the hotel overnight, until arrival of the police personnel on the following day. Next morning, both the accused-Appellant and the prosecutrix were taken to the police station. The prosecutrix PW.1 did not come forward to reason as to why she had changed her name in the hotel register and why did she sign it. According to her own admission, there was no threat on her from the accused-Appellant for going to the hotel and booking a room in it. 15. When we scan the cross-examination of PW.7, we find that he had categorically stated, that the accused-Appellant and the prosecutrix signed their names, personally in the column of the register maintained in the hotel. PW.7, further, confirmed that neither did he hear any hue and cry from any room, whatsoever, during the stay of the accused-Appellant and the prosecutrix in his hotel nor he had ever informed the police about any untoward incident in his hotel on that day, nor did he find any unnatural condition of the accused-Appellant and the 10 prosecutrix, when he entered Room No. 10 of the hotel at night with the police officer. 16. Learned Counsel for the Appellant drew my attention to look into the evidence of PW.10, to ascertain with certainty as to whether the prosecutrix in fact had gone to Kumarghat for submission of job application form in the Public Works Department, as stated by her. 16. Learned Counsel for the Appellant drew my attention to look into the evidence of PW.10, to ascertain with certainty as to whether the prosecutrix in fact had gone to Kumarghat for submission of job application form in the Public Works Department, as stated by her. Diluting the plea of the prosecutrix that she had gone to submit job application form on the date of occurrence, PW.10, the police officer, who was the Officer in-charge of Fatikroy Out Post at the relevant time, clarified in his cross-examination that interview was scheduled to be held on 28.10.2006, for some posts, under the Public Works Department, Kailashahar, but not for filing any job application form. P.W.10 further confirmed in his cross examination by the defence that the prosecutrix did not produce any job application form, which she allegedly wanted to submit on the date of occurrence. Though PW.10 stated, that the prosecutrix was examined medically to ascertain the commission of rape on her, but such examination report was not produced in the Court. However, apparently even production of any such medical report of the prosecutrix carried out after about 45 days from the date of alleged commission of rape, possibly could have hardly, thrown any light in the prosecution case. 17. It would be pertinent and relevant to scan through, for the purpose of appreciation of the prosecution story, the evidence of police officer, who took the accused-Appellant and the prosecutrix to the police station, on the following day of the alleged occurrence. PW.12, Shri Bahadur Debbarma was the 2nd Officer of Kailashahar police station at the relevant time. PW.12, corroborating the testimony of PW.7, proved the G.D. Entry No. 1154, dated 28.10.2006, which reflected that ASI, Mr. M.K. Das (PW.9) had visited the hotel room on the date of occurrence. PW.12 further stated that, on 29.10.2006, he had forwarded the accused-Appellant for production before the Court of the learned Chief Judicial Magistrate, Kailashahar, North Tripura, in connection with G.D. Entry No. 1157, dated 28.10.2006, under Section 41 of Code of Criminal Procedure On the basis of the said G.D. Entry, a Criminal Misc. Case No. 294/06 was initiated and investigated against the accused-Appellant. 18. Case No. 294/06 was initiated and investigated against the accused-Appellant. 18. PW.12 further confirmed in his evidence that he investigated the matter and after thorough investigation, submitted a prayer before the learned Chief Judicial Magistrate, for discharging the accused-Appellant from the liability of the proceeding under Section 41 Cr.P.C, for want of incriminating materials against him. PW.12 also categorically stated that the prosecutrix did not complain before him anything regarding any incident of rape etc. whatsoever. 19. To appreciate the truthfulness a of the prosecution story, it would be essential to marshal the evidence of PW.13, Sri Ajoy Debbarma, SI of Kailashahar P.S., who had visited the hotel room and met the prosecutrix on the date of occurrence. According to P.W.13, when he met the prosecutrix in the hotel room she disclosed her name as Rupali Saha and informed him that the accused-Appellant was her uncle. In his cross-examination, PW.13 categorically ascertained that the prosecutrix did not make any complain before him, whatsoever, on the night of the occurrence in the hotel room, when he met her. 20. Surprisingly, the prosecutrix did not ever raise or express any kind of complain or dissatisfaction or anguish against the accused-Appellant before anybody during her stay with the accused-Appellant in the hotel. 21. Even when the police officer was present in the hotel room, she did not volunteer to express herself. This attitude and behaviour of the prosecutrix, without any valid explanation would create a doubt regarding truthfulness of the prosecution version. Mr. Talapatra, learned senior counsel, appearing for the Appellant, has strenuously submitted that the allegation of rape is an afterthought and the victim has falsely leveled charges against the Appellant, in order to save herself from the wrath of public ire, and for fear of being ostracized by her socially. The learned senior counsel further pointed out that the prosecution case must fail because of the inordinate delay in lodging the concocted FIR. Drawing the attention of the Court to the evidence of P.W.3 i.e., father of the victim-girl, the learned Counsel, appearing for the Appellant, submitted that the father of the victim could have verbally approached the police to lodge the information of alleged rape right earnest instead, it appears that after the incident PW.3 was busy trying to negotiate with the accused-Appellant to secure compensation for the alleged commission of offence. 22. 22. Though the prosecutrix stated that she was threatened by the accused-Appellant of dire consequences, but the sequence of events narrated by the witnesses signifies that ample opportunity was available to the prosecutrix to inform the police, when the police officer himself visited the hotel room at the dead of night and enquired about her comfort and well being in the said hotel room. On the top of it, the accused was arrested by the police under Section 41 Cr.P.C., which should have diluted all such fear she had from the accused-Appellant. Therefore, the evidence laid by the prosecutrix alleging threat and fear of being killed by the accused-Appellant apparently appears to be not at all trustworthy. 23. Though the evidence of the prosecutrix revealed that in some local meetings, organized at the village level, ML As and local villagers were informed about the incident and a 'mel' was organized to resolve the issue, but none of them were examined as witnesses to vousafe the truthfulness of the prosecution story. 24. The learned senior counsel, for the Appellant, referring to the decision of the Supreme Court in the case of Jinish Lal Sah v. State of Bihar, reported in 2003 SCC 395 , submitted that an inducement, threat by the accused-Appellant, can't be held to be reason of not divulging the information, when the prosecutrix is found moving together with the accused-Appellant without any resistance, from one place to another. Such behavior would indicate that there was no threat or inducement either in regard to her staying in the hotel or in regard to accompanying the accused-Appellant. 25. The relevant extract of the decision of the Supreme Court in Jinish Lal Sah (supra), read as follows: ...On the contrary, we notice she was with him from 30th April to 10th May, during which period she had travelled by train, tempo and stayed with the Appellant without there being any evidence of her having protested or having made any effort to seek help from others or even trying to run away. Apart from that from the record, it is seen that PW 6 in the FIR had stated that "I got information from my wife in the house that Geeta went away by taking clothes and a gold chain and she took Rs.500 in cash in total amounting to Rs.8500". Apart from that from the record, it is seen that PW 6 in the FIR had stated that "I got information from my wife in the house that Geeta went away by taking clothes and a gold chain and she took Rs.500 in cash in total amounting to Rs.8500". This evidence though subsequently resiled by PW 6 indicates that PW 1 had planned her departure from the house in advance and had willingly gone away with the Appellant which also indicates that there was no threat or inducement either in regard to her leaving the house or in regard to accompanying the Appellant. In such situation in the absence of any other material to show to the contrary, it will be difficult to accept the prosecution case that either there was a forcible marriage or rape as contended by the prosecution to find the Appellant guilty under Section 366 or 376 IPC. Since the courts below proceeded on the basis that PW 1 was a girl below the age of 18 on the date when she left the house they have not properly appreciated the evidence in regard to her consent which is a mandatory requirement before finding a person guilty under Section 366 or 376 IPC. 26. In yet another decision relied on by the learned Counsel, appearing for the Appellant in Surjan and Ors. v. State of M.P., reported in 2004 SCC 471, the Hon'ble Supreme Court, acquitted the accused person due to inordinate delay of 10 days in filing the complaint. The Supreme Court also laid emphasis on the fact that Court can't afford to act on the uncorroborated testimony of the prosecutrix unless the said evidence is wholly reliable. The relevant observation made by the Supreme Court in Surjan and Ors.(supra), reads as follows: 4. The inordinate delay in lodging the complaint before the police i.e. 10 days, has not even been attempted to be explained. Even when she was examined as a witness in the court, no question was put to her on that long delay. In a case where six indicted persons should be visited with a minimum sentence of 10 years' RI, the court cannot afford to act on the uncorroborated testimony of the prosecutrix unless the said evidence is wholly reliable. Even when she was examined as a witness in the court, no question was put to her on that long delay. In a case where six indicted persons should be visited with a minimum sentence of 10 years' RI, the court cannot afford to act on the uncorroborated testimony of the prosecutrix unless the said evidence is wholly reliable. Looking at the testimony of PW 1 from all the different angles highlighted above, we are unable to hold that the testimony is wholly reliable. In such a situation, materials for corroborating the testimony of PW 1 could not be obviated. But unfortunately there is none. 27. In State of Karnataka v. Mapilla P.P. Sopi, reported in (2003) 8 SCC 202 , the Hon'ble Supreme Court held that undue delay in lodging the FIR in the rape case without acceptable explanation, generates doubt in the prosecution case. The relevant portion of the decision of the Supreme Court in Mapilla P.P. Sopi (supra), reads as follows: 4. Undue delay in lodging the complaint without acceptable evidence has also contributed to the doubt in the prosecution case. Hence, the High Court was justified in allowing the appeal. 28. In Lalhmingchhuanga v. State of Mizoram, reported in (2010) 6 GLR 42, this Court observed that if the prosecutrix did not raise any hue and cry at the time of the occurrence, it would indicate that she was a consenting party. 29. In the instant case, admittedly the prosecutrix did not raise any objection at the time of alleged occurrence. However, she raised hue and cry after 45 days; obviously, this is too late in the day to lodge a complaint of alleged rape upon the victim. The story of the prosecution could not to inspire confidence due to belated action. 30. Because of what has been discussed above, it is apparent that, there was inordinate delay of 45 days in lodging the FIR. The explanation given by the prosecution in respect of delay occasioned is due to negotiation and discussions in the meeting organized to resolve the issue. Such kind of leisurely approach and lackadaisical attitude of the prosecutrix and her close relations in reacting to an issue like rape and thus selecting time for filing FIR, creates a doubt in the prosecution case. Finally the explanations given by the prosecution regarding delay in lodging the FIR does not inspire confidence at all. Such kind of leisurely approach and lackadaisical attitude of the prosecutrix and her close relations in reacting to an issue like rape and thus selecting time for filing FIR, creates a doubt in the prosecution case. Finally the explanations given by the prosecution regarding delay in lodging the FIR does not inspire confidence at all. Apparently, after having been caught red handed with the accused Appellant, the probability of the prosecutrix turning around with hostility to lay the entire blame upon accused Appellant as perpetrator of the crime, in order to save her skin in her society, cannot be ruled out. In such a situation, in my opinion, to put reliance on the belatedly revealed prosecution story of committing rape on the victim, to convict the accused Appellant, would not all be safe. Therefore, in the facts and circumstances, the accused-Appellant is entitled to benefit of doubt. 31. In view of the above, I am of the considered view that the prosecution miserably failed to prove the charges against the accused beyond all reasonable doubt and accordingly conviction and sentence of the accused-Appellant under Section 376(1) of IPC in connection with S.T. Case No. 03(NT/K) of 2008 is hereby set aside and the accused-Appellant is set at liberty forthwith. The bail bond furnished on behalf of the accused Appellant stands discharged. 32. Send down the Lower Court Records forthwith.