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2011 DIGILAW 641 (GAU)

State of Tripura v. Rahim Miah

2011-08-01

C.R.SARMA, UTPALENDU BIKAS SAHA

body2011
JUDGMENT U.B. Saha, J. 1. The instant appeal is directed against the judgment and order of acquittal, dated 30.9.2010, passed by the learned Additional Sessions Judge, Belonia, South Tripura in S.T. 45(ST/B) 2010 whereby and whereunder the learned Addl. Sessions Judge considering evidences on record acquitted the accused respondent from the charges levelled against him under Sections 376(1)and 302 IPC. 2. Heard Mr. D. Sarkar, learned P.P appearing for the State appellant. None appears for the accused respondent. 3. Upon going through the records and as proposed by this Court and as agreed to by Mr. Sarkar, learned P.P., the instant criminal appeal is taken up for final disposal at this order stage. 4. Brief facts of the prosecution case are as under: One Biru Meah (P.W. 3), a resident of Karmi Bazar, P.S. Shantir Bazar, South Tripura lodged an FIR on 22.11.2009 to the Officer In-charge of Santirbazar P.S, alleging, inter alia, that, on 21.11.2009, his sister went with a cow for grazing in the nearby area of his house, but thereafter she was found missing. Ultimately, at around noon on the following day i.e. on 22.11.2009, her dead body was found lying in the Sal plantation which is at a distance of about one kilometer from his house. 5. Upon receipt of the said information, the police arrived there and after completion of formalities sent the dead body for post mortem examination. From the information received, the accused Rahim Miah was suspected to the fact that his proposal for marrying the sister of the informant was turned down by the informant. Accordingly, the police registered Shantirbazar police station case No. 98 of 2009 and filed charge sheet against the accused respondent for committing offence under Sections 376(1), 302 and 201 IPC. 6. On the basis of the said charge sheet, the accused respondent was put on trial. The learned Trial Court upon receipt of the case on commitment framed charges, against the accused respondent under Sections 376(1) and 302 IPC which run as under: Firstly, that you any time in between 10.30 hours of 21.11.09 and 12.30 hours of 22.11.2009 at Karmi Bazar under Shantir-bazar Police Station did commit rape on Smti Parula Begam and that you thereby committed an offence punishable under Section 376(1) of the Indian Penal Code and within the cognizance of this Court. Secondly, that you on or about the same date, time and place did commit murder by intentionally, causing the death of Smt. Parula Begam and that you thereby committed an offence punishable under Section 302 of the Indian Penal Code and within the cognizance of this Court. 7. The prosecution in support of its case examined as many as fifteen witnesses including the official witnesses and also exhibited certain documents including the post mortem examination report, seizure list of clothes of the deceased as well as accused. 8. On the other hand, the accused respondent examined none in his favour and also did not produce any documents. His case is of total denial of the prosecution case. The accused respondent was examined under Section 313 Cr. P.C wherein also he denied the allegations made against him by the prosecution witnesses. 9. The prosecution tried to place its case mainly relying on the evidence of P.W 3,7 and 8. The salient features of the evidences of those witnesses are reproduced hereunder: P.W 3 Biru Miah, the informant, stated in his deposition that on 21.11.2009 around 5 p.m. when he returned home, his mother informed him that his sister went for grazing the cow on the northern side of their house, but she did not return home. Then he along with others searched, but he did not find her. On the following day around 12.50 p.m. her dead body was found lying in the Sal Plantation of one Ramani Reang. He noticed a block spot on her neck. He immediately informed the same to his uncle Jaju Miah (PW 2) who with others reached the spot. After sometime, police arrived and he narrated to the police officer about the incident who reduced it into writing whereupon he put his signature. The accused Rahim Miah is his uncle who wanted to marry his sister, but he cautioned him not to approach in this regard. In his cross, he told that his sister went to graze the cow in the field of Sabita Pal. Other people also went there with cows and it is not a fact that accused did not want to marry his sister and a false case was filed by him against the accused respondent. 10. In his cross, he told that his sister went to graze the cow in the field of Sabita Pal. Other people also went there with cows and it is not a fact that accused did not want to marry his sister and a false case was filed by him against the accused respondent. 10. P.W 7 Mafia Khatoon, in her evidence stated that about 9 months back, one evening around 7 p.m. the victim came to her house for taking lesson from her and after some time the accused Rahim also came there and talked to the victim outside her house. When victim's sister Rahima saw the accused talking to the victim, he left. On the following morning, the accused came to her house and remained till around 10.30 a.m. and thereafter, he left saying that he was returning home. At that time, she saw the victim standing by the side of the road nearby the rubber plantation. She cannot say where they went thereafter. Around 1.30 p.m. she saw the accused returning to his home after having bath. But she did not see the victim who appeared to her missing and she noticed some irregular behaviour in the accused. She also saw the accused restless after victim's missing. The dead body of the victim was recovered from the Sal Plantation on the following day, Sunday, around noon. The victim and the accused had love affairs. 11. In her cross, she stated that on the Saturday morning when the accused went to her house, the victim was not in her house. She was standing alone when she saw her. She cannot say where the accused took bath. She saw the victim standing near the rubber plantation after the accused left her house. The victim went to the field for feeding the cow around 11 a.m., but she did not return. She also stated that it is not a fact that she did not notice the restlessness of the accused and the victim did not go to her house for taking lesson. This witness voluntarily told that the victim being her sister in law used to come to her. It is also not a fact that the accused never visited her house. 12. P.W 8 Litan Miah stated in his deposition that the victim was his aunti who was his adjacent neighbor. This witness voluntarily told that the victim being her sister in law used to come to her. It is also not a fact that the accused never visited her house. 12. P.W 8 Litan Miah stated in his deposition that the victim was his aunti who was his adjacent neighbor. On 21.11.2009 around 10.30 a.m. when he was returning home from the house of his maternal uncle, Jahangir Ala, on the way, he saw the accused talking to victim and seeing him, they stopped talking and he returned home. In the evening, he learnt from the informant that the victim was missing. On the following day, around noon, the dead of the victim was found lying at the Sal Plantation. The accused was identified by him. 13. In cross, he stated that seeing him, the accused stopped talking and went away to some distance and he returned home. He did not see that the accused was coming back. He did not know whether there was any talk of marriage between the victim and the accused. During the search, nobody could say where the victim went. It is not a fact that he did not see the victim and the accused talking near rubber plantation. It is also not a fact that the dead body of the victim was not found at Sal Plantation. 14. Relying upon the evidence of those witnesses, the prosecution urged the learned Trial Court that the behavior of the accused respondent was not normal just after the incident. Further the forensic examination report has proved that the blood group of the accused matches with the semen blood group which was collected from the panty of the victim. Thus, the chain of circumstances establishes the guilt of the accused for commission of offence of rape as well as murder. 15. Before the learned Trial Court, the defence while resisted the prosecution case contended that from the deposition of P.W 7 and 8, it can be said that the victim and the accused went together and even if considered that both of them were seen together at one point of time, but there is a long gap between the alleged last seen together and the recovery of the dead body of the victim. Thus last seen theory cannot form the basis of conviction. Thus last seen theory cannot form the basis of conviction. It is also urged that from the cross-examination of P.W 13, it appears that there was a defective collection of the sample and the time spent from the date of its alleged collection to the date of the test. Therefore, the test result cannot be accepted to be correct. 16. Learned trial Court upon considering the submission of the learned Counsel of the parties and taking note of the evidence on record came to the conclusion that the place where the victim went for grazing cow, other people also went there with cow. Not only that, the forensic examination test even if is accepted to be correct only establishes that the blood group of the semen collected from the panty of the deceased was 'O' positive and that the blood group of the accused is also 'O' positive. The blood group 'O' positive being a very common blood group, it cannot be said emphatically that the semen collected from the panty was that of the accused. With the aforesaid observation, the Trial Court acquitted the accused respondent from the charges levelled against him. 17. We are of the considered opinion that as the collected semen belonged to a person who is having blood group of 'O' positive and being the accused respondent is also having blood group of 'O' positive, the prosecution tried to establish that the accused respondent is guilty of commission of offence under Section 376(1) IPC. Solely because the blood group of the victim was 'O' positive, the same by itself is not conclusive proof of commission of rape by the accused person. To prove the offence under Section 376(1), the prosecution is to prove the requirement of Section 375 IPC which reads as follows: 375. Rape.--A man is said to commit "rape" who, except in the case hereinafter expected, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First-Against her will Secondly - without her consent Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - with or without her consent, when she is under sixteen years of age.. 18. In the criminal jurisprudence, assumption and presumption has no place except the case relating to circumstantial evidence for which a Court can take note of Section 114 of Evidence Act. It appears from the prosecution case that the prosecution case is based on some suspicion. The learned Trial Court also considered the last seen theory and noted that the links of the chain has to be established in a case of circumstantial evidence which are missing in the instant case and the gap of time between the last seen together the victim and the accused and the recovery of the dead body of the victim after a long period does not inspire confidence to form the basis of conviction. 19. In state of U.P. Vs. Satish: AIR 2005 SC 1000 , the Apex Court held that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The aforesaid views of the Apex Court also get seal again by the Apex Court in Mohd. Azad @ Samin Vs. State of West Bengal: AIR 2009 SC 1307 . 20. The aforesaid views of the Apex Court also get seal again by the Apex Court in Mohd. Azad @ Samin Vs. State of West Bengal: AIR 2009 SC 1307 . 20. In the instant case, it is the admitted position that the accused respondent was allegedly last seen with the victim/deceased alive in the morning on 21.11.2009 and the dead body of the victim/deceased was recovered around noon on the 2nd day of her missing in the Sal plantation at a distance of about 1 K.M. from the house of the victim as well as informant, P.W.3 where other villagers also normally went for grazing the cows and it cannot be ruled out that except the accused respondent, some other persons might be there. 21. By this time, it is settled by the Apex Court that in a case based wholly on circumstantial evidence, the prosecution has to establish its case beyond reasonable doubt and cannot be benefited in any way from the witness of the defence put up by the accused and the prosecution has also to prove all the links in the chain of circumstantial evidence and that has to be complete themselves from which no other conclusion of guilt can be drawn up except the conclusion that it is only the accused and no other persons committed the guilt/offence. 22. In the instant case, the prosecution case even not suggested to create a presumption regarding involvement of the accused respondent with the alleged offence except the hypothesis of having the blood group of the semen collected from the panty of the victim was 'O' positive which matches with the blood group of the accused respondent. 23. If this argument has to be accepted, then the golden theory of the criminal jurisprudence has to be by-passed by a Court of law and only on the basis of presumption, a person is to be convicted which according to us would be a dangerous proposition. 24. There is no doubt that the offence committed upon the victim deceased is serious in nature and against the society, but even the offence is serious in nature, a Court is handicapped when there is no evidence before it to convict a person against whom the prosecution lodged information on suspicion. 25. Mr. 24. There is no doubt that the offence committed upon the victim deceased is serious in nature and against the society, but even the offence is serious in nature, a Court is handicapped when there is no evidence before it to convict a person against whom the prosecution lodged information on suspicion. 25. Mr. Sarkar, learned P.P though initially tried to defend the case of the State appellant, but ultimately conceded with the views of this Court as stated supra. 26. By this time it is also settled that when two views are possible, then the Court should accept the views which favours the accused. More so, in an appeal against the order of acquittal, the Apex Court should interfere with the judgment impugned only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process that would be a compelling reason for interference. (See Ram Das Vs. State of Maharashtra : (1977) 2 SCC 124 , Joseph Vs. State of Kerala : (2003) 1 SCC 465 , Devatha Venkataswamy @ Rangaiah Vs. Public Prosecutor, High Court of A. P.: (2003) 10 SCC 700 , State of Haryana Vs. Shibu @ Shiv Narain & Ors. : AIR 2008 SCW 5400 ). 27. In the instant case, according to us, the trial Court did not commit any wrong while acquitting the accused respondent from the charges levelled against him. It would be unsafe to convict a person for an offence of rape only on the basis of matching of blood group of the accused with the blood group of semen found in the panty of the deceased. Therefore, the learned Trial Court rightly did not rely on that count of evidence. As there is no material on record regarding the involvement of the accused respondent, we are of the opinion that no interference is called for so far as the order of acquittal passed by the trial Court is concerned. 28. In the result, the appeal is dismissed. L.C. records be sent to the concerned Court.