Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 524 (GAU)

Ruhin @ Rahim Debbarma v. State of Tripura

2011-06-15

UTPALENDU BIKAS SAHA

body2011
JUDGMENT U.B. Saha, J. 1. In this appeal, the challenge is the judgment and order, dated 25.3.2006, passed by the learned Sessions Judge, North Tripura, Kailashahar in ST 91 (NT/K)/2005 whereby and where under, the accused Appellant, Rahim Debbarma, was convicted under Section 376(1) of the Indian Penal code and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 7,000/-, i.d to suffer further rigorous imprisonment for one year. He was also convicted for committing offence under Section 417 IPC and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 3,000/-, i.d to suffer further rigorous imprisonment for three months. The sentences will run consecutively. 2. Heard Mr. S. Chakraborty, learned Counsel for the Appellant as well as Mr. A. Ghosh, learned Addl. P.P appearing for the State Respondent. 3. The prosecution case as revealed at the time of trial, in short, is as follows: Smt. Lata Mukhi Debbarma, (P.W. 1) lodged a complaint with the Kailashahar police station on 18.12.2004 at about 11.35 hours, alleging, inter alia, that her minor daughter, P.W. 2 ( hereinafter referred to as victim-X) while residing in a rented house of one Sri Sumit Malakar (P.W. 3), for preparation of her examination got acquainted with the accused Appellant being he was residing in the adjacent house and on 17.9.2004, on the day of Biswakarma Puja, her daughter was raped by the accused Appellant by gagging her mouth and forcibly tearing her dress. She further stated in the said First Information Report (FIR) that on the day of alleged commission of rape, the roommate of her daughter, namely, Smt. Dhanyamala Debbarma (P.W7) was not in the room as she went to her house. 4. It is also stated that the accused Appellant performed sexual intercourse in later times also with her daughter victim-X alluring to marry her and as a result of the said sexual intercourse, her daughter victim-X became pregnant. 5. At that circumstances, the accused Appellant took her to the doctor for examination and without her consent, Dr. Pradip Kr. Bardhan with the help of the accused and 4/5 of his associates terminated the pregnancy after making her senseless and when she regained her sense, the accused Appellant gave her the news of abortion. 6. 5. At that circumstances, the accused Appellant took her to the doctor for examination and without her consent, Dr. Pradip Kr. Bardhan with the help of the accused and 4/5 of his associates terminated the pregnancy after making her senseless and when she regained her sense, the accused Appellant gave her the news of abortion. 6. In the month of December, when P.W. 1, the informant, came to the rented house of her daughter in Kailashahar, the victim-X disclosed the facts of the said incident of rape to her mother, (P.W. 1). Thereafter, P.W. 1 sent message to her husband and the victim-X was examined by Dr. Debabrata Datta(P.W. 6). 7. On receipt of the said information, her husband (PW 5) came to Kailashahar on 10.12.2004 when she (P.W. 1) informed him about the aforesaid incident. 8. It is further stated that as the victim-X is a minor daughter, she did not inform regarding the aforesaid incident in proper time being afraid of social scandal and she (P.W. 1) also could not lodge the complaint with the police immediately after the incident. 9. According to the informant, the mother of the victim-X, at the relevant time of incident, her daughter was at the age of 17 years. 10. On receipt of the written complaint, Kailashahar P.S case No. 152 of 2004 was registered under Sections 376/318/506 IPC. Accordingly, investigation was taken up and charge sheet was submitted against the accused Appellant showing him as absconder. 11. The learned Chief Judicial Magistrate, North Tripura, Kailashahar after receipt of the charge sheet took cognizance of the offence and being the offence is triable by the Court of Sessions, committed the case in the Court of learned Sessions Judge, North Tripura, Kailashahar. 12. The accused Appellant surrendered before the Court after filing of the charge sheet and he was enlarged on bail. 13. The learned Sessions Judge upon receipt of the case records framed the charges against the accused Appellant which are reproduced below: (1) Whether the accused Ruhin Deb Barma on 17.09.2004 at about 2000 hours at Boulapassa under Kailashahar P.S had sexual intercourse with the victim girl, Smti Bishuka Deb Barma against her will and/or without her consent and thus, committed an offence of rape punishable under Section 376 IPC? (2) Whether the said accused after the date of 17-09-2004 had sexual intercourse with the victim girl, Smt. Bishuka Debbarma at Boulapassa for two other occasions giving her allurement of marriage and as a result, she became pregnant and subsequently the said accused denied to marry her and thus, committed the offence of cheating punishable under Section 417IPC? (3) If so, whether the accused Ruhin Deb Barma is guilty for committing the offence punishable under Section 376(1) IPC and/or under Section 417IPC and what should be the quantum of his punishment ? 14. To establish the charges leveled against the accused Appellant, the prosecution examined as many as nine witnesses. In defence, the accused Appellant pleaded not guilty to the charges leveled against him and claimed to be tried and adduced neither any oral evidence nor any documentary evidence. 15. Learned Judicial Magistrate, 1st Class, Kailashahar recorded the statement of the victim girl under Section 164(5) Code of Criminal Procedure and the trial Court also examined the accused Appellant under Section 313 Code of Criminal Procedure 16. After hearing the learned Counsel of the parties and considering the evidences on record, the learned Trial Court convicted the accused Appellant for the charges leveled against him and passed the order of sentences as stated supra. 17. Dissatisfied with, the accused Appellant has preferred the instant appeal against the impugned judgment of conviction and sentence. 18. Mr. Chakraborty, learned Counsel for the accused Appellant would contend that the impugned judgment is liable to be set aside only on the ground that the learned trial Court failed to properly appreciate the evidences of the prosecution witnesses, particularly, P.W. 1 and 2. Not only that the trial Court also travelled beyond the evidences on record while passing the order of conviction and sentence as would be evident from paragraph-8 of the judgment wherein inter alia stated .. "But it is categorically written in the Exhibit-1, the FIR/complaint that on 17.09.2004 on the night of Biswakarma puja at about 8 p.m. the accused Ruhin Deb Barma after entering into the rented hut of the victim girl, in absence of her roommate had committed rape on her. But, at the time of giving evidence before the Court she did not corroborate the same for the reasons unknown to this Court. But, at the time of giving evidence before the Court she did not corroborate the same for the reasons unknown to this Court. But as regard the contents of the complaint/FIR relating to the said incident of rape, nothing was asked by the defence in her cross examination for the reasons best known to the defence". 19. The learned Counsel also contended that when the prosecution witness, particularly, P.W. 1, mother of the victim, did not implicate the accused Appellant for the commission of offence under Section 376 IPC, in that case, the defence is not required to cross-examine her on the said point. 20. He further contended that the learned Trial Court passed the order of conviction and sentence mainly basing on the evidence of P.W. 1 and P.W. 2. Those witnesses specifically stated that not only on 17.9.2004, but even thereafter also allegedly there was sexual relation between the accused Appellant and the victim. Thus it can be easily said that the victim girl was a consenting party to the alleged sexual intercourse. 21. He also urges that the statement of the prosecution relating to termination of pregnancy cannot be believed as the doctor, namely, Pradip Kr. Bardhan was not produced and examined by the prosecution. 22. The learned Counsel again contended that the disclosure of story relating to the alleged rape after almost three months and consequent thereto lodging of FIR was at a belated stage, though according to P.W. 7 who stated in his deposition that the victim-X narrated to her the story of rape in the rented house immediately after her arrival which creates a doubt and when there is minimum doubt regarding the prosecution case, then the accused is entitled to get the benefit of such doubt. 23. Regarding the evidence of Dr. Debabrata Datta (PW 6), Mr. Chakraborty would contend that when the doctor himself stated in his evidence, inter alia , that no sorts of injury mark was found on her body and also opined, inter alia, that no conclusive opinion regarding commission of rape can be given by him, then how the learned trial Court came to the conclusion that the prosecution established its case. 24. 24. In a case of rape, mere oral statement of the victim should not be given more weight by completely ignoring the medical report in the circumstances of the case though it is the settled law that when there is a difference between the medical evidence and ocular evidence, the ocular evidence has to be accepted being medical report is an opinion evidence, the learned Counsel contends. According to him, when the doctor failed to give any conclusive opinion, it was not proper on the part of the trial Court to assume a fact which is not available in evidence putting his own explanation. 25. He further urges that even wearing apparels of the victim was not seized by the authority to prove the case of rape. Not only that, the medical report also does not support the case of prosecution as nowhere of the said report, it is stated that the victim was ever mentioned that her pregnancy was terminated. 26. Mr. A. Ghosh, learned Addl. P.P in his usual fairness submits that the whole prosecution case is based on P.W. 2, the victim-X only and if this Court believe the evidence of P.W. 2 as believed by the trial Court, then the appeal has to be dismissed. On query of this Court, Mr. Ghosh further submits that P.W. 1 in her evidence nowhere stated that her daughter was raped by the accused Appellant, rather she stated that her daughter victim-X told her that on the day of last Biswakarma puja celebrated in the month of September, 2011 in the evening, she had an altercation with the accused Appellant Ruhin and after hearing about the said incident, she sent information to her husband, P.W. 5 and who in turn came to the rented house of their daughter and accordingly, the said facts of quarrel with the accused Appellant was disclosed. Learned Addl. P.P further submits that based on P.W. 2 and on proper scrutiny of the evidences of the prosecution, it cannot be said that the prosecution case is totally flawless. 27. Learned Addl. P.P further submits that based on P.W. 2 and on proper scrutiny of the evidences of the prosecution, it cannot be said that the prosecution case is totally flawless. 27. As the prosecution case is mainly based on P.W. 1 and 2, it would be proper for this Court to reproduce the salient part of the evidence of those witnesses and accordingly, the same is reproduced hereunder: P.W. 1 stated in her deposition that her daughter, the victim-X used to reside in a rented house owned by one Sumit Malakar (PW 3) in the month of September, 2004 along with her one of the classmates, namely, Dhanyamala Debbarma (PW 7) to attend a coaching centre in order to take preparation for appearing in the Madhyamik examination in the year 2005. On 3.12.2004, when she came to take care of her daughter, her daughter informed her about an altercation with the accused Appellant in the evening on the day of last Biswakarma puja in the month of September, 2004. Thereafter, on her message about the said incident, her husband, the father of the victim girl, also came and they reported the matter to the authority of the coaching centre at Kailashahar where their daughter used to attend. Thereafter, a meeting was held among them to settle the dispute amicably, but failed. Consequently, on 18.12.2004, she lodged a written FIR at Kailashahar P.S narrating the said incident. Subsequent thereto, another meeting was also held and the dispute was amicably settled in between them. As a result, her daughter had no grievance against the accused Appellant. 28. P.W. 2 is the victim-X, who in her deposition stated that on 17.9.2004, the day of Biswakarma puja, she was alone in her rented house at about 8 p.m. when her roommate went to her house. At that time, the accused Appellant came to her rented house and forcibly committed intercourse with her on her bed after pressing her mouth with a handkerchief. Therefore, she could not raise alarm at the time of commission of rape and after that, the accused Appellant went away from her rented house. Out of shame, immediately after the occurrence, she did not disclose the said incident to anyone. Subsequently also, the accused Appellant came to her rented hut and committed sexual intercourse with her on two occasions giving allurement of marriage to her. Out of shame, immediately after the occurrence, she did not disclose the said incident to anyone. Subsequently also, the accused Appellant came to her rented hut and committed sexual intercourse with her on two occasions giving allurement of marriage to her. Out of the said sexual intercourse, she became pregnant and in the month of November, 2004 she was taken to RGM Hospital of Kailashahar and her pregnancy was terminated by a medical officer of that hospital after making her senseless as per instructions of the accused Appellant. On 3.12.2004 when her mother came, she narrated the said incident. 29. She also stated that she asked the accused Appellant to marry her but the Appellant refused to do so and she came to know that the Appellant was already a married person. She also went on to state that at the time of having sexual intercourse with her giving allurement of marriage, the Appellant told her that he was bachelor. 30. She also stated in her deposition that her mother lodged the FIR and after lodging FIR, the police officer sent her to the RGM Hospital of Kailashahar where she was examined by the M.O in that hospital. 31. In her cross-examination, she stated that she had not stated to the police officer that out of shame she did not disclose the incident to any person just after the incident and that the accused committed rape on 17.9.2004. 32. From the evidence of P.W. 1, the mother of the victim-X, it is evident that she was never informed regarding the alleged offence of rape by her victim daughter till she reached to the rented house of her daughter on 3.12.2004. Not only that, she also did not disclose regarding the said incident to her landlord, P.W. 3. 33. In the trial Court, the contents of the FIR was not exhibited, even the scribe was not examined. Only the signature of the informant in the FIR was marked as Exhibit-1 series. Therefore, the contents of the FIR cannot be used against the accused. Only the statement of P.W. 1 in Court can be treated as evidence and such statement can be used against the Appellant, but the P.W. 1 nowhere in her statement before the Trial Court stated anything regarding the alleged rape. 34. Therefore, the contents of the FIR cannot be used against the accused. Only the statement of P.W. 1 in Court can be treated as evidence and such statement can be used against the Appellant, but the P.W. 1 nowhere in her statement before the Trial Court stated anything regarding the alleged rape. 34. Though the P.W. 1 in her evidence before the Trial Court stated that she along with her husband, P.W. 5, narrated the said incident to the authority of the Coaching Centre of her daughter, but none of the members of the said coaching centre was examined to prove the said context as to whether there was a meeting regarding the said incident for amicable settlement of the dispute between the parties. 35. It also appears from the evidence of P.W. 2 wherein she stated that even after the first occasion, the accused Appellant committed sexual intercourse on her on two occasions giving allurement of marriage to her which proves that the victim was a consenting party to the alleged sexual intercourse. 36. By this time it is settled that when two adults go for sexual intercourse on consent, then that cannot come within the term of expression of rape, as defined under Section 375 IPC. In the instant case, the conduct of the victim-X shows that she is a consenting party. 37. In Surjan and Ors. v. State of M.P. 2004 SCC 471, the Apex Court held that " the inordinate delay in lodging the complaint before the police, i.e. 10 days, has not even 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 wherein six indicated 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 P.W. 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. 38. Looking at the testimony of P.W. 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. 38. In the instant case also, when the P.W. 2, victim-X, stated, inter alia, that the accused Appellant committed sexual intercourse with her on two occasions giving allurement of marriage, but she admittedly did not disclose the said facts to her mother P.W. 1. Had she done so, she would have disclosed the same to the Court. 39. In the case of State of Karnataka v. Mapilla P.P. Sopi, (2003) 8 SCC 202 , the Apex Court while considering an order of acquittal in a case of rape also held that, 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. 40. In K.P. Thimmappa Gowda v. State of Karnataka 2011 AIR SCW 2281, the Apex court while considering a case under Section 376 of the IPC, noted, inter alia, "We are of the opinion that the Appellant deserves the benefit of doubt because on careful consideration of the evidence on record, it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt. 41. In Kanchan Deb v. The State of Tripura Crl. A 79 (J) of 2005, in paragraph-20 of the said judgment and order dated 11.5.2011 of the Agartala Bench, this Court noted inter alia, that " it appears from the evidence on record that the persons who terminated the pregnancy of the prosecutrix 'X' were neither produced nor examined by the prosecution though one of them was examined under Section 161 of Code of Criminal Procedure 42. In the instant case also admittedly the doctor who alleged terminated the pregnancy of the victim-X was neither produced nor examined. In the instant case also admittedly the doctor who alleged terminated the pregnancy of the victim-X was neither produced nor examined. From the evidence of P.W.9, Sri Rahul Alam, I.O of the case, it appears that he had not done any investigation in respect of pregnancy and termination of the pregnancy of the victim-X, nor had he collected any document to ascertain the actual age of the victim-X on the date of occurrence whereas the victim-X herself stated in her statement that she was about 18 years of age at the relevant time. 43. Non-investigation in respect of pregnancy and termination of pregnancy itself prove that the story of pregnancy and termination is a doubtful one. 44. When the victim-X was also of 18 years of age on the relevant time, it cannot be overruled that the victim had sex with the Appellant with her consent. Hence there is no evidence under Section 376 IPC because sex with an woman about 16 years of age with her consent is not termed as rape as would be evident from the decision of the Apex Court in K.P. Thimmappa Gowda (supra). 45. This Court in various decisions stated that an offence under Section 376 IPC is serious in nature, but unless the said offence is proved, it would not be proper for the Court to convict a person merely on the basis of the oral statement of the prosecutrix unless the same is corroborated with the aid of the medical evidence and also generates full confidence on her statement. 46. In the instant case, neither the medical evidence nor the statement of victim-X supports the story of the prosecution. According to this Court, when the medical officer is not in a position to give his conclusive opinion regarding rape, the Court should not assume a fact contrary to the evidence by putting its own explanation that there was a rape. 47. In the instant case, there is no evidence available relating to the offence of rape and subsequent thereto, the pregnancy and the termination of pregnancy except the sole statement of victim-X which does not generate full confidence. According to this Court, prosecution has failed to prove its case beyond reasonable doubt. 47. In the instant case, there is no evidence available relating to the offence of rape and subsequent thereto, the pregnancy and the termination of pregnancy except the sole statement of victim-X which does not generate full confidence. According to this Court, prosecution has failed to prove its case beyond reasonable doubt. More so, when there is no foundation for the conviction of the accused Appellant either under Section 376 IPC or under Section 417 IPC, the order of conviction and sentence of the accused and order of compensation passed by the learned trial Court cannot, therefore, sustain and must be set aside. 48. In the result and for the reasons discussed above, this appeal succeeds. The impugned order of conviction and sentence as well as the order of compensation is hereby set aside. 49. The accused Appellant is on bail. His bail bond stands discharged. 50. Send down the L.C records.