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2011 DIGILAW 807 (GAU)

Sajal Datta v. State of Tripura

2011-09-26

C.R.SARMA

body2011
JUDGMENT C.R. Sarma, J. 1. Heard Mr. B.N. Majumder, learned Counsel appearing for the Appellant. Also heard Mr. R.C. Debnath, learned Special Public Prosecutor appearing for the State. 2. The judgment and order, dated 27-9-2003, passed by the learned Asstt. Sessions Judge, South Tripura, Udaipur in Sessions case No. 108(ST/U)/2002 is in challenge in this appeal. 3. The prosecution case, in brief, may be stated as follows: The mother of the victim woman lodged an FIR with Officer in-Charge, Radhakishorepur PS on 24-3-02 alleging that the Appellant used to have sexual intercourse with her daughter (PW 1) with the promise that he would marry her. As a result of the said sexual intercourse, the informant's daughter aforesaid became pregnant but the Appellant, on being approached, declined to marry her. In view of the above, the informant lodged the FIR against the Appellant. On receipt of the said FIR, police registered a case under Section 376 Indian Penal Code and launched investigation into the matter. During the investigation, police got the victim woman examined by the Medical Officer and recorded the statement of the witnesses. 4. At the close of the investigation, police submitted charge sheet under Sections 376/493 Indian Penal Code against the Appellant. The offence being exclusively triable by the court of Sessions, the same was committed to the court of Sessions. 5. The learned Asstt. Sessions Judge, South Tripura, Udaipur, framed charge under Section 376 Indian Penal Code against the Appellant. The charge was read over and explained to the accused, to which he pleaded not guilty. In order to prove its case, the prosecution examined as many as seven witnesses including the Medical Officer and Investigating police officer. After completion of the examination of the prosecution witnesses, the accused person was examined under Section313 Code of Criminal Procedure. He denied the allegations, brought against him. The learned Asstt. Sessions Judge, considering the evidence on record, held the Appellant guilty of the offence under Section 376 Indian Penal Code and convicted him under Section 376 Indian Penal Code. Accordingly, the learned Asstt. Sessions Judge sentenced the Appellant to suffer rigorous imprisonment for ten years for his conviction under Section 376 Indian Penal Code. Aggrieved by the said judgment and order, the convicted person, as Appellant, has come up with this appeal. 6. Mr. Accordingly, the learned Asstt. Sessions Judge sentenced the Appellant to suffer rigorous imprisonment for ten years for his conviction under Section 376 Indian Penal Code. Aggrieved by the said judgment and order, the convicted person, as Appellant, has come up with this appeal. 6. Mr. B.N. Majumder, learned Counsel appearing for the Appellant, taking this Court through the evidence on record, more particularly, the evidence of the victim woman, has submitted that there is no evidence to show that the Appellant committed the offence under Section 376 Indian Penal Code and, therefore, the learned trial Judge committed gross error by recording the conviction as indicated above. 7. Mr. R.C. Debnath, learned Special Public Prosecutor has fairly conceded that the evidence given by the victim woman (pw 1) does not reveal any ingredients of offence under Section 376 Indian Penal Code. 8. The informant (PW 2) i.e. the mother of the victim woman in the FIR (Ext. No. 1) clearly stated that the age of her daughter, at the relevant time, was nineteen years. She also stated, in her FIR, that the accused person had married her said daughter. 9. The victim woman deposing as PW 1 stated that she had eloped with the Appellant and became pregnant through him. She further stated that she was living with the accused and that a male child was born to her. In her cross-examination, she stated that the accused was her husband and that she had no quarrel with her said husband. From the evidence of PW 1, it is clearly found that the said victim woman has been peacefully living with the accused person as husband and wife and that a son was born out of the said wedlock. She did not whisper anything regarding rape. Therefore, from the evidence of PW 1, nothing substantive could be found to hold that the accused committed the offence under Section 376 Indian Penal Code. 10. The mother of the victim woman who deposed as PW 2 exhibited the FIR as Ext. No. 1. She stated that the FIR was lodged by a person on being dictated by her. In her cross-examination, she stated that the accused was her son-in-law and that the said couple was leading a happy life. PW 3 who was a Medical Officer, examined the victim woman. He stated that the victim woman was found to be pregnant. 11. She stated that the FIR was lodged by a person on being dictated by her. In her cross-examination, she stated that the accused was her son-in-law and that the said couple was leading a happy life. PW 3 who was a Medical Officer, examined the victim woman. He stated that the victim woman was found to be pregnant. 11. PW 4 was the scribe of the FIR. He has exhibited the FIR as Ext. No. 3. PW 5 was tendered by the prosecution and her cross examination was declined by the defence. PW 6 was the police officer who recorded the receipt of the FIR in the police station. PW 7 was the Investigating officer who sent the victim woman to the court for recording her statement under Section 164 Code of Criminal Procedure. 12. In view of the above discussed evidence, I find no evidence on record to believe that the accused person had committed rape on the victim woman. The learned Asstt. Sessions Judge, while recording the conviction, relied on the statement recorded under Section 164 Code of Criminal Procedure, which was not even exhibited. A statement under Section 164 Code of Criminal Procedure cannot be the substantive piece of evidence to convict a person, in the teeth of contrary evidence, given by the maker of the said statement. 13. In the light of the above, I have no hesitation in holding that the learned trial Judge committed gross error by recording the conviction and sentence as indicated above. Therefore, I find sufficient merit in this appeal. 14. Accordingly, the appeal is allowed. The impugned judgment and order of conviction and sentence, dated 27-9-03, recorded by the learned Asstt. Sessions Judge in S.T 108(ST/U) of 2002 are set aside. Consequently, the Appellant is acquitted and set at liberty. His bail bond shall stand discharged. Return the lower court records. Appeal allowed