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2011 DIGILAW 423 (GAU)

Anath Giri v. State of Tripura

2011-05-16

C.R.SARMA

body2011
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 19-8-05, passed by the learned Sessions Judge, West Tripura, Agartala, in case No. S.T. (WT/A) 164 of 2004. By the impugned judgment and order, learned Sessions Judge convicted the Appellant for the offence under Section 376 of the Indian Penal Code (for short, 'IPC') and sentenced him to suffer rigorous imprisonment for ten years. Aggrieved by the said judgment and order, the convict as Appellant has come up with this appeal. 2. I have heard Mr. S. Deb, learned Senior counsel assisted by Mr. S. Datta, learned Counsel appearing for the Appellant. Also heard Mr. R.C. Debnath, learned Special Public Prosecutor appearing for the Respondent. 3. The prosecution case, in brief, may be stated as follows: One evening, in the month of Phalgun, 1410 BS (corresponding to 15th February to 15th March, 2004 AD), the minor daughter (hereinafter referred to as 'the victim girl') of Smt. Minati Ghosh (PW 5) was sleeping alone in her house. Taking this opportunity of absence of the mother of the victim girl, who was away from her house in connection with her duty relating to Anganwadi school, her neighbourer Sri Anath Giri i.e. the Appellant, trespassed into the house, where the victim girl was sleeping and forcibly committed rape on her. After committing the said offence, the Appellant, by showing a dagger, had threatened her not to disclose the matter to anybody and on being so threatened the victim girl did not inform about the incident to anybody, including her mother i.e. PW 5 till her pregnancy was detected by the medical officer. After about 2 to 3 months of the said rape, the victim girl had fallen sick and she was taken to a private medical practitioner, who after examination, opined that she was pregnant. Upon receipt of such medical opinion, on being asked by her mother, the victim girl disclosed about the incident, involving the accused person and accordingly, PW 5 informed the neighbouring people, including the members of 'Routhkhala Youth club'. Accordingly, a meeting was held in the said club, wherein the Appellant had confessed his guilt. On being advised by the members of the club, the victim girl herself, on 19-7-04, lodged an FIR informing the police about the offence, committed by the accused person. Accordingly, a meeting was held in the said club, wherein the Appellant had confessed his guilt. On being advised by the members of the club, the victim girl herself, on 19-7-04, lodged an FIR informing the police about the offence, committed by the accused person. On receipt of the said FIR, police registered a case under Section 376/417IPC and launched investigation into the matter. At the close of the investigation, police submitted chargesheet under Section 376/506 IPC and forwarded the accused person to the court to stand trial. 4. The offence being exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, West Tripura committed the case to the Court of Sessions for trial. The learned Sessions Judge, considering the materials on record, framed charge under Section 376(1) IPC. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. 5. To prove their case, the prosecution examined as many as eight witnesses including two Medical Officers and the investigating police officer. At the close of examination of the prosecution witnesses, the accused was examined under Section 313 Code of Civil Procedure. He denied the allegations, brought against him and declined to adduce defence evidence. Considering the evidence on record, the learned Sessions Judge convicted and sentenced the Appellant, as indicated above. 6. Mr. S. Deb, learned Senior counsel, appearing on behalf of the Appellant, taking this Court through the evidence on record, more particularly, the evidence regarding the date of commission of offence and the period of pregnancy, has submitted that there are major contradictions and discrepancies pertaining to the date of occurrence and that the prosecution failed to establish the guilt of the accused, beyond all reasonable doubt. As it is the burden of the prosecution to establish the allegations, brought by them, the learned senior counsel has submitted that the contradictions found in the evidence on record raise serious doubt as to whether the pregnancy of the victim girl was the cause of the rape, alleged to be committed by the Appellant. It is also submitted that, in view of the inconsistency regarding the date of occurrence, the Appellant is entitled to benefit of doubt resulting his acquittal. 7. Mr. It is also submitted that, in view of the inconsistency regarding the date of occurrence, the Appellant is entitled to benefit of doubt resulting his acquittal. 7. Mr. R.C. Debnath, learned Special Public Prosecutor, controverting the said argument, advanced by the learned Senior counsel for the Appellant, has submitted that there is sufficient evidence, on record, to show that the accused person was responsible for the pregnancy of the victim girl and that it has been well established from the evidence on record that the accused person committed the alleged offence of rape. Mr. Debnath has submitted that the impugned conviction and sentence has been rightly awarded by the learned trial Judge requiring no interference by this Court. 8. In order to appreciate the arguments, advanced by the learned Counsel appearing for both the parties and to examine the correctness of the impugned judgment and order, I feel it appropriate to, briefly, scrutinize the evidence on record. 9. The victim girl, who deposed as PW 4, exhibited the FIR lodged by her. In the FIR lodged, on 19-7-04, it has been stated that the occurrence took place in the month of Phalgun of 1410 BS (corresponding to 15th February to 15th March, 2004). She could not mention the date of occurrence. In the FIR, it has also been stated that the accused person forcefully entered her room, wherein she was studying and that after committing rape he had threatened her saying that should she disclose the matter to others he would kill her as well as her mother. From the said FIR, it is found that when the accused had forcefully entered her room she was studying therein. Contradicting the said statement, made in the FIR, the victim girl in her evidence given as PW 4, stated that she was sleeping in her room after bolting the door from inside and that the accused, after trespassing into the room, had forcefully committed rape on her. She also stated that she did not disclose the matter due to the threat, given by the accused person, who was armed with a dagger and that after the occurrence she had given him slaps, twice, with her sandal. She also stated that after about 2/3 months of the said incident when she had fallen ill, she was examined by a private doctor, who opined that she was pregnant. She also stated that after about 2/3 months of the said incident when she had fallen ill, she was examined by a private doctor, who opined that she was pregnant. According to this witness, after detection of her pregnancy, she informed her mother and neighbouring people about the rape and lodged of the FIR. She has exhibited the FIR as Ext.4. A careful scrutiny of the FIR as well as her evidence lead to find one major contradiction. According to FIR, which was lodged, at the first point of time i.e. before deposing in the court, she was studying in her room at the time of entry of the accused into her room. This indicates that she was awake and, as such, she was aware of the entry of the accused person through the door. But, from her evidence, it is found that she was sleeping, after bolting the door from inside. This contradiction, as to whether she was studying or she was sleeping, raises serious doubt about the veracity of her evidence. If she had closed the door, by bolting the same from inside, there is nothing on record as to how the accused person could open the door. There is also no evidence to show that either the door or the bolt of the same was broken by the accused person. Therefore, the allegation of forceful entry of the accused person, into the room of the victim girl, is also not free from suspicion. 10. From the FIR as well as her evidence, it is found that the rape was committed two to three months prior to her examination by the Doctor. Dr. Shyamal Sarkar was the Medical Officer, who examined her, on 27-7-04, on being produced by police. He opined that the age of the victim girl was about 15/16 years and that she was pregnant for 28 weeks. He has exhibited the report, submitted by him, as Ext.1. His evidence that, on 27-7-04, the victim girl was found to be pregnant for 28 weeks i.e. about 7 months, remained uncontroverted. Therefore, from the said medical opinion, it appears that the pregnancy commenced sometime in the last part of January. He has exhibited the report, submitted by him, as Ext.1. His evidence that, on 27-7-04, the victim girl was found to be pregnant for 28 weeks i.e. about 7 months, remained uncontroverted. Therefore, from the said medical opinion, it appears that the pregnancy commenced sometime in the last part of January. But the victim girl herself, in her evidence given as PW 4, as well as in the FIR (Ext.1), clearly stated that she was raped two to three months prior to the lodging of the FIR (i.e. 19-7-2004). Therefore, according to her oral evidence, the incident of rape took place two to three months prior to 19-7-2004. This indicates that the rape was never committed in the month of Phalgun, because the month of Phalgun ends by 15th of March. That apart, according to PW 4, the accused person was armed with dagger and he threatened her not to disclose the matter. The prosecution version is that the rape was committed forcefully. Therefore, the evidence of PW 4 that she could give two slaps, with her sandal, to the accused, who was armed with dagger, is not believable. In her cross-examination, she admitted that there was quarrel between her brother-in-law and the accused person. She denied the suggestion that accused person did not commit rape, as alleged by her. She also denied that the accused did not confess his guilt before the members of the club. 11. The mother of the victim girl deposed as PW 5. She also, in her evidence, stated that the pregnancy of the victim girl was detected two to three months after the alleged rape and that she had informed the members of the club. According to this witness, on being advised by the members of the club, the police was informed. From her evidence also, it is found that the alleged rape took place sometime in the month of May or April. Therefore, her evidence does not inspire confidence to believe that the rape, which was the cause of the pregnancy, was committed in the month of Phalgun as stated in the FIR. 12. Sri Biswajit Saha, a member of the club, deposed as PW 6. He stated that, on 19-7-04, Smt. Minati Ghosh informed them that her daughter (PW 4) was raped by the accused person, two to three months ago, as a result of which she became pregnant. 12. Sri Biswajit Saha, a member of the club, deposed as PW 6. He stated that, on 19-7-04, Smt. Minati Ghosh informed them that her daughter (PW 4) was raped by the accused person, two to three months ago, as a result of which she became pregnant. According to this witness, the accused confessed his guilt and assured that he would marry the victim girl. He also stated that he had telephonically informed the police and that the police had rushed to the club, wherein the accused was detained. He further stated that the police had interrogated the accused in the club and thereafter advised the victim girl to lodge an FIR and accordingly, the FIR was lodged, which was written by him. He has exhibited the FIR as Exbt.4 and his signature, thereon, as Ext.4/2. From the evidence of this witness, it is found that, prior to the lodging of Ext.4, the police was telephonically informed about the incident and police had arrived in the club and initiated action on the basis of the said telephonic information. Therefore, the telephonic information being the first information, which moved the investigating agency, the FIR i.e. Ext.4, lodged by the informant was nothing more than a statement made under Section 161 Code of Criminal Procedure and the telephonic call was the FIR. In this case, the G.D. Entry regarding the said telephonic information on the basis of which the police apprehended the accused person has not been exhibited. Therefore, it is found that the original FIR i.e. the G.D. Entry regarding the said telephonic information has not been proved. Be that as it may, from the evidence of PW 6 also, it is found that the victim girl informed them that the rape was committed two to three months prior to 19-7-04 i.e. sometime in the month of April or May. 13. Sri Pradip Saha, Secretary of the said club, deposed as PW 7. He stated that, on 19-7-04, when he was in the club room, the mother of the victim girl had informed him that about one month ago, the accused had trespassed into her house and committed rape on her daughter by gagging her mouth with a muffler, as a result of which she became pregnant. He stated that, on 19-7-04, when he was in the club room, the mother of the victim girl had informed him that about one month ago, the accused had trespassed into her house and committed rape on her daughter by gagging her mouth with a muffler, as a result of which she became pregnant. He further stated that, on being so informed, he directed Biswajit Saha (PW 6) to fetch the accused and accordingly, the accused was brought to the club, wherein he confessed his guilt. He further stated that the police, on being informed, arrived in the club and detained the accused person. In his cross-examination, made on behalf of the accused, this witness denied the suggestion that the accused did not confess his guilt, in presence of the villagers in the club room. He clearly admitted that there was dispute between the parties regarding boundary and that he had settled the said dispute. From his evidence, it is found that the accused person and PW 5 i.e. the mother of the victim had a common boundary and this boundary dispute was settled in the Panchayat. From the evidence of PW 7, it transpires that he was reported, by the mother of the victim girl, that the rape was committed one month ago i.e. sometime in the month of June,2004. This evidence of PW 7 has not been controverted by the prosecution. Therefore, the prosecution is bound by the said evidence, given by PW 7. Thus, from the evidence of PW 7, it stands established that the alleged rape took place sometime in the month of June i.e. one month prior to 19-7-04. 14. PW 8 Sri Prasun Kanti Tripura is the investigating police officer. 15. Carefully perusing the entire evidence on record, I am of the considered opinion that the prosecution failed to establish the probable date of rape, if not the exact date, by adducing substantive and cogent evidence. According to the medical opinion, the pregnancy started sometime in the month of January, thereby meaning that rape was committed in the month of January, whereas according to the FIR, lodged by the victim girl, the rape was committed in the month of Phalgun i.e. some time during the period 15th of February to 15th of March. According to the medical opinion, the pregnancy started sometime in the month of January, thereby meaning that rape was committed in the month of January, whereas according to the FIR, lodged by the victim girl, the rape was committed in the month of Phalgun i.e. some time during the period 15th of February to 15th of March. On the other hand, the oral evidence, given by the victim girl (PW 4), her mother PW 5 and Biswajit Saha (PW 6), a member of the club to whom the mother of the victim girl had disclosed about the occurrence, the rape was committed sometime in the month of April or May. Surprisingly, as per evidence of PW 7, which remained unchallenged, the rape was committed in the month of June. 16. In view of the above, there is major contradiction regarding the date of occurrence. Therefore, the above discussed evidence does not inspire confidence to believe that the rape was committed in the month of Phalgun as alleged in the FIR i.e. Ext.4. Rather, the said discrepancy makes it unsafe to rely on the evidence of the said witnesses including the evidence of the victim girl. 17. In view of the above discussed contradiction, I have no hesitation in concluding that it is not safe to hold that the alleged rape was not the cause of the pregnancy, detected by the Medical Officer. There is no dispute that, in a criminal case, prosecution is required to establish its case, beyond all reasonable doubt and in the event of existence of two views i.e. one going in the favour of the accused person and other in favour of the prosecution, the benefit should always go in favour of the accused person. The law is well settled that, in a rape case, the solitary evidence, given by the raped victim, if found reliable and trustworthy can be the basis for conviction. As discussed above, I find sufficient contradiction in the evidence of the prosecution witness, more particularly, the evidence of victim girl, on material point. In my considered opinion, the contradictions, as discussed above, make it unsafe to rely on the evidence of the victim girl. 18. In view of what has been discussed above, I am inclined to hold that the prosecution failed to establish the case, beyond all reasonable doubt. Therefore, I find sufficient merit in this appeal requiring interference. In my considered opinion, the contradictions, as discussed above, make it unsafe to rely on the evidence of the victim girl. 18. In view of what has been discussed above, I am inclined to hold that the prosecution failed to establish the case, beyond all reasonable doubt. Therefore, I find sufficient merit in this appeal requiring interference. Accordingly, the appeal is allowed and the impugned conviction and the sentence are set aside and quashed. The Appellant is acquitted and he be set at liberty forthwith if not required in any other case. Lower court records be returned. Appeal allowed.