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2012 DIGILAW 786 (GAU)

Pulin Bihari Roy v. State of Tripura

2012-06-26

SWAPAN CHANDRA DAS

body2012
JUDGMENT S.C. Das, J. 1. This appeal under Section 374 of the Criminal Procedure Code, 1973(for short, Cr.P.C.) is directed against the judgment and order of conviction and sentenced dated 15.09.2005, passed by learned Additional Sessions Judge, Belonia, South Tripura, in Sessions Trial No. ST. 20(ST/B)/2005. Learned Additional Sessions Judge has found the accused appellant guilty of committing offence punishable under Sections 448 and 354 of IPC and sentenced him to suffer RI for six months under Section 448 of IPC and again sentenced him under Section 354 of IPC to suffer RI for one year and to pay a fine of Rs. 30,000/-, in default of payment of fine, to suffer further SI for six months. Heard learned counsel, Mr. A. Bhowmik for the appellant and learned P.P., Mr. D. Sarkar, assisted by learned counsel, Mr. R.C. Debnath for the State respondent. 2. Brief facts, leading to the trial of the criminal case in hand, may be noted thus: Smt. Sachi Dey (PW. 1) lodged a written FIR with the Officer In-charge, Belonia P.S. on 26.08.2004 at about 1505 hrs., alleging that on 24.08.2005, a Tuesday, at about 8.00 pm, she went to the house of her neighbour, Alo Rani Das (PW. 3), on family affairs and returned home at about 8.45 pm along with Alo Rani and found her daughter, the prosecutrix (name kept withheld), aged about 15 years, lying on the bed and was weeping. She and her neighbour Alo enquired with her daughter about the reason of her weeping, to which her daughter disclosed that her co-villager, Pulin Roy, S/O Kumud Roy, forcibly trespassed into their hut, tied mouth of her daughter with a napkin, torn out the panty of her daughter and, thereafter, committed rape on her. Her daughter tried to resist but failed. Thereafter, the accused fled away. She, then, informed the incident of her village-elders, namely Dhananjoy Tripura, Gouranga Bhowmik, Ratan Sutradhar and many others. The village-elders assured her of a settlement of the matter but the accused and his father did not attend the compromise meeting, and therefore, on the advice of the village-elders, she lodged the FIR. The Officer In-charge, Belonia P.S. registered Belonia P.S. case No. 64/2004 under Sections 448/ 376 of IPC and SI Chandi Kr. Chakma was entrusted with the charge of investigation. The Officer In-charge, Belonia P.S. registered Belonia P.S. case No. 64/2004 under Sections 448/ 376 of IPC and SI Chandi Kr. Chakma was entrusted with the charge of investigation. In course of investigation, the Investigating Officer (IO), on the date of lodging the FIR itself, arranged medical examination of the prosecutrix, examined material witnesses and recorded their statements, visited the place of occurrence, prepared hand-sketch map of the place of occurrence, seized the panty which the prosecutrix alleged to have wearing at the time of occurrence and arrested the accused on that day itself. On the following day, he forwarded the accused to the Court and also arranged medical examination of the accused. On completion of investigation, I.O. submitted charge sheet for commission of offence punishable under Sections 448/ 376 of IPC against accused Pulin Roy. Cognizance was taken on the basis of the police report and in course of trial, learned Addl. Sessions Judge framed charges against the accused for commission of offence, punishable under Sections 448 /376 of IPC, to which he pleaded not guilty and claimed to be tried. In course of trial, prosecution examined as many as 13 witnesses, namely PW. 1 Smti. Sachi Dey, PW. 2 Shri Sankar Datta, PW. 3, Smti. Alo Rani Das, PW. 4 Smti Pranati Dey, PW. 5 Shri Gouranga Bhowmik, PW. 6 Shri Ratan Sutradhar, PW. 7 Shri Gouranga Roy, PW. 8 Shri Gopal Ch. Kar, PW. 9 Dr. Debasish Roy, PW. 10 Shri Amitabha Majumder, PW. 11 Shri Milan Ch. Datta, PW. 12 Chandi Kr. Chakma and PW. 13 Dr. Makhan Lal Baidya. Out of the witnesses, PW. 4 is the victim-prosecutrix and is a star witness of the prosecution. PW. 1 is the mother of the prosecutrix and is the maker of the FIR. PW. 3 is the neighbor of the prosecutrix and she accompanied PW. 1, the mother of the prosecutrix, and they first came to know about the occurrence from the prosecutrix on return to the house of the informant. PWs. 2, 5 and 6 are the neighbours and village-elders, to whom the informant, alleged to have reported the occurrence. Out of them, PWs. 2 and 6 were declared hostile by the prosecution. PW. 7 is the grandfather of the prosecutrix, who was in the house at the relevant time of occurrence. PW. PWs. 2, 5 and 6 are the neighbours and village-elders, to whom the informant, alleged to have reported the occurrence. Out of them, PWs. 2 and 6 were declared hostile by the prosecution. PW. 7 is the grandfather of the prosecutrix, who was in the house at the relevant time of occurrence. PW. 8 is the Judicial Magistrate, who recorded the statement of the prosecutrix under Section 164 of Cr.P.C. PWs. 9 and 13 are the medical officers. Out of them, PW. 13 medically examined the prosecutrix and the accused and the medical reports were marked as Exbt. 9 & 10 respectively. PW. 9 is the Pathologist, who examined the vaginal swab of the prosecutrix and submitted report, which was marked as Exbt. 8. PW. 10 is an advocate, who scribed the FIR. PWs. 11 and 12 are the police officers, who registered and investigated the case respectively. 3. Learned counsel, Mr. Bhowmik, in course of his argument, has submitted that the prosecution case is extremely doubtful. Evidence of PW. 4, the prosecutrix, does not inspire confidence. The facts and circumstances and the contradictions in the statements of the prosecutrix and her mother made it clear that with a view to compel the accused to marry the prosecutrix a false FIR was lodged against the accused, and the prosecution case, as a whole, is not believable. He has further submitted that while the trial Court did not believe the allegation of rape, on the same bundle of facts, the Court would not punish the accused for offence under Section 354 of IPC. No ingredients of offence punishable under Section 354 of IPC are made out from the statement of the prosecutrix, and therefore, the accused should be acquitted. It has also been argued that in the facts and circumstances of the case, the allegation of criminal house trespass cannot be believed since the sole evidence of the prosecutrix, having not corroborated by any other cogent evidence, cannot be the basis of punishment of house trespass. Learned counsel, therefore, prayed for an order of acquittal. Learned P.P., Mr. It has also been argued that in the facts and circumstances of the case, the allegation of criminal house trespass cannot be believed since the sole evidence of the prosecutrix, having not corroborated by any other cogent evidence, cannot be the basis of punishment of house trespass. Learned counsel, therefore, prayed for an order of acquittal. Learned P.P., Mr. Sarkar, on the other hand, in his usual fairness, has submitted that the punishment under Section 354 of IPC for the alleged outrage of modesty, as inflicted by the trial Court, cannot sustain in view of the acquittal of the accused from the charge of rape, especially in the circumstances where no appeal was filed by the State, challenging the finding of acquittal from the charge under Section 376 of IPC. But, according to him, the charge under Section 448 of IPC for criminal house trespass has been proved and the punishment inflicted by the learned trial Judge shall sustain. 4. Rape is considered to be a most hated offence. It is an offence against basic human right of a woman i.e. her right to life and dignity. The Supreme Court, in the case of State of Punjab Vs. Gurmit Singh & Ors., reported in (1996) 2 SCC 384 , has held that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault, it is often destructive of the whole personality of the victim. A murderer destroys the physical body of a victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature. The apex Court further held that if the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of the statement in material particulars. 5. In the case at hand, the trial Court disbelieved the prosecutrix in respect of the allegation of rape and acquitted the accused from the charges framed against him under Section 376 of IPC. 5. In the case at hand, the trial Court disbelieved the prosecutrix in respect of the allegation of rape and acquitted the accused from the charges framed against him under Section 376 of IPC. The finding of the trial Court has not been challenged. Learned P.P., in course of his argument, conceded that punishment under Section 354 of IPC does not stand good in view of acquittal of the accused from the charge under Section 376 of IPC. 6. Let us, however, go through the evidence on record to see whether there is any evidence to hold that the accused, in the process, as alleged, outraged the modesty of the prosecutrix or not. The contents of the FIR have already been reproduced at the very inception of the judgment. It shows that the incident occurred in between 8.00 pm to 8.45 pm on 24.08.2004 in the residential hut of the informant. The prosecutrix was alone in the residential hut and her grandfather, PW. 7 was in the kitchen room, situated a few cubits away from the living room of the prosecutrix and informant. The prosecutrix in her deposition stated that accused Pulin Roy was her private tutor from the time she was reading in Class-VI. The accused used to propose her to marry him and to have a love affair with her but she did not agree and turned down the proposal. On 24.08.2004, in the evening time, she was prosecuting her studies and at that time the accused suddenly entered into her room, tied her mouth with a napkin and she could not raise cry. Thereafter, he took her on the cot, tore her pant forcibly, and thereafter, raped her. After rape, he told her that since she did not agree to his proposal, therefore he raped her. Hearing the sound of coming of her mother, the accused left the place. She was weeping on the bed. Her mother (PW. 1) and Alo Rani Das (PW. 3) entered into her room and saw her weeping. She told them about the fact of rape by the accused. Thereafter, her mother went to the house of accused Pulin and she also went to the house of the accused later. Her mother informed the fact to the parents of Pulin but they got no suitable response from the parents of the accused. Her mother informed the Pradhan and Members of the village. Thereafter, her mother went to the house of accused Pulin and she also went to the house of the accused later. Her mother informed the fact to the parents of Pulin but they got no suitable response from the parents of the accused. Her mother informed the Pradhan and Members of the village. Village elders could not adjudicate the matter and advised them to go to the police station. Thereafter, her mother went to the police station and lodged the FIR. She also stated that the police officer seized her pant, which she was wearing at the time of occurrence. She was also produced before the Magistrate and she narrated the occurrence. In cross-examination, she stated that she did not state the Magistrate that the accused was his private tutor from Class-VI to half yearly examination of Class-VIII. She further stated that after one and half month of the occurrence, police officer recorded her statement. Her grand-father Gouranga Roy (PW. 7) was in the kitchen room at the time of occurrence. Kitchen room was about 15 cubits away from their living room. Door of her hut was closed putting a wooden 'piri', The accused entered into the hut by opening it. She resisted the accused at the time when her mouth was tied with napkin. She pushed him and did not bite him or scratch him by nail. Her hands and legs were open. The accused did not bite on her face or breasts but tore her frock. The accused was wearing a 'lungi'. It was her first sexual intercourse and some blood also came out after penetration. She removed the blood and semen by her pant. She told the villagers about the occurrence on the next day in the morning. The villagers suggested them to go to the police station and thereafter her mother lodged the complaint on 26.08.2004. Darogababu took her to the hospital and she was examined. She denied the suggestion that the allegation of rape was false. 7. The prosecutrix made a definite allegation of rape by the accused with discharge of semen and stated that it was her first sexual intercourse. Admittedly, the FIR was lodged on 26.08.2004 at 1505 hrs. The incident occurred, as alleged, on 24.08.2004 in between 2000 hrs. to 2045 hrs. She denied the suggestion that the allegation of rape was false. 7. The prosecutrix made a definite allegation of rape by the accused with discharge of semen and stated that it was her first sexual intercourse. Admittedly, the FIR was lodged on 26.08.2004 at 1505 hrs. The incident occurred, as alleged, on 24.08.2004 in between 2000 hrs. to 2045 hrs. She was produced before the medical officer on 26.08.2004 i.e. on the date of lodging the FIR itself at about 4.30 pm and the Medical Officer (PW. 13) Dr. Makhan Lal Baidya in his deposition stated that on examination he found no injury in the body of the prosecutrix. There was no vaginal injury. Hymen was found absent. No recent sign of rape was found. No semen was also found in her vagina. Vaginal swab was also collected and that was examined by PW. 9 at the District Hospital at Udaipur, who has found no spermatozoa in the vaginal swab. The accused was arrested on the date of lodging the FIR itself and he was produced before the learned Magistrate on 27.08.2004. On that day, at 9.30 am, he was also medically examined by PW. 13 and PW. 13 stated that the accused was having with capacity of sexual intercourse and in the medical report of the accused PW. 13 stated that there was no injury mark on his person or his genital parts and there was no sign of committing rape within twenty four hours. The medical evidence is completely negative to the allegation of rape. 8. The prosecutrix in her deposition stated that the accused left her house while he heard the sound of her mother, coming to home. PWs. 1 and 3 stated nothing that they found the accused going out from the house of the prosecutrix. There is no other evidence that anybody found the accused going away from the direction of the house of the prosecutrix at the relevant time while, admittedly, the house of the accused is half kilometer away from the house of the prosecutrix. PW. 1, the informant and PW. 3 Alo Rani, together went to the house of the prosecutrix and stated that they found the prosecutrix was weeping. According to the prosecutrix, she narrated the occurrence to both of them but PW. 3 stated that the prosecutrix told that the accused did bad things with her. PW. 1, the informant and PW. 3 Alo Rani, together went to the house of the prosecutrix and stated that they found the prosecutrix was weeping. According to the prosecutrix, she narrated the occurrence to both of them but PW. 3 stated that the prosecutrix told that the accused did bad things with her. The words, 'bed things' may infer that some unusual acts were committed. While the prosecutrix and PW. 1 stated about the rape, PW. 3 had no reason to say, otherwise, had the prosecutrix said to her that she was raped by the accused. According to the prosecution, PW. 7 was in the kitchen room at the time of occurrence. In his deposition, he stated that he heard the cries of the prosecutrix but the prosecutrix made definite statement that she did not raise any cry since her mouth was tied by a napkin. According to PW. 1 she reported the incident to PWs. 2, 5 and 6. Out of them, PWs. 2 and 6 stated nothing incriminating against the accused and they were declared hostile by the prosecution. PW. 5 simply stated that on 24.08.2004 at about 8.30 pm, PW. 1 went to his house and complained that accused Pulin Roy caught hold her daughter when she was sleeping. So, according to this witness, no allegation of rape was made to him on the evening on 24.8.2004 when he was reported by PW. 1. The witness further stated that on the following day in the meeting, the prosecutrix told them that the accused raped her. Might be the story of rape was subsequently manufactured and, therefore, PWs. 3 and 5, on whom the prosecution relied did not say about the rape at the very inception when they were alleged to have reported about the occurrence. PW. 1 and the prosecutrix (PW. 4) stated that immediately after the occurrence, in the same evening they went to the house of the accused which seems to be quite unnatural at least for the prosecutrix is concerned. The prosecutrix also stated that the accused proposed to marry her and also proposed to have love with him but she refused. PW. 1 stated nothing about such proposal/approach by the accused. Such statements of the witnesses coupled with other discrepancies made the total case doubtful. There are other minor discrepancies, which may not be attached with so much of importance. Learned Addl. PW. 1 stated nothing about such proposal/approach by the accused. Such statements of the witnesses coupled with other discrepancies made the total case doubtful. There are other minor discrepancies, which may not be attached with so much of importance. Learned Addl. Sessions Judge, considering the evidence on record, has rightly held that the allegation of rape was doubtful and that the evidence of the prosecutrix does not inspire confidence for recording a conviction under Section 376 of IPC. 9. The learned trial Judge, while disbelieved the charge of rape, suddenly, came to the conclusion that the accused committed an offence of outrage of modesty punishable under Section 354 of IPC. But the Court assigned no reason while coming to the finding of an offence under Section 354 of IPC. Section 354 of IPC prescribes thus: 354. Assault or criminal force to woman with intent to outrage her modesty.--Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. To constitute an offence of outrage of modesty punishable under the above penal section, prosecution is to prove the ingredients of assault as defined in Section 351 of IPC or of criminal force as defined in Section 350 of IPC. Prosecution led no evidence to prove the ingredients of assault or criminal force with a view to establish the charge under Section 354 of IPC. No separate charge was also framed for commission of offence punishable under Section 354 of IPC. The victim prosecutrix made a simple statement that the accused entered into her hut while she was prosecuting her studies, caught her, tied her mouth with a napkin, laid her on the cot, tore and put off her panty and committed rape on her. While these bundle of facts were disbelieved and/or did not inspire confidence of the Court to record punishment on the charge under Section 376 of IPC, based on the same allegations, in the facts and circumstances of this case, the accused cannot be punished for outrage of modesty of the prosecutrix. 10. Section 22 of Cr.P.C. prescribes thus: 222. While these bundle of facts were disbelieved and/or did not inspire confidence of the Court to record punishment on the charge under Section 376 of IPC, based on the same allegations, in the facts and circumstances of this case, the accused cannot be punished for outrage of modesty of the prosecutrix. 10. Section 22 of Cr.P.C. prescribes thus: 222. When offence proved included in offence charged.- (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charge with it. (2) When a person is charge with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (4) Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied. Illustrations (a) A is charged under section 407 of the Indian Penal Code (45 of 1860) with criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did commit criminal breach of trust under section 406 of that Code in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under the said Section 406. (b) A is charged under section 325 of the Indian Penal Code (45 of 1860), with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under section 335 of that Code. The above illustration makes it clear that Section 354 cannot be regarded as a minor offence to that of an offence under Section 376 of IPC. He proves that he acted on grave and sudden provocation. He may be convicted under section 335 of that Code. The above illustration makes it clear that Section 354 cannot be regarded as a minor offence to that of an offence under Section 376 of IPC. Where the allegation of rape fails, under the circumstances, on the same bundle of fact, the accused cannot be punished for outrage of modesty, unless the ingredients thereof as to the commission of assault or use of criminal force, by the accused, on the prosecutrix, with the intention of outrage of modesty or knowing it to be that he will thereby outrage her modesty, is established. The Supreme Court in the case of Shamnsaheb M. Multtani V. State of Karnataka reported in (2001) 2 SCC 577 , in paragraph 16 observed thus-- 16. What is meant by "a minor offence" for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis--vis the other offence. Composition of offence under Section 354 of IPC is different from the formation of the offence under Section 376 of IPC and hence, the former cannot be regarded as a minor offence vis--vis the latter. The conviction and sentence under Section 354 of IPC, is therefore, liable to be interfered. 11. The charge under Section 448 of IPC is also liable to fail in the facts and circumstances of the case, since the foundation of the allegation has shaken. Prosecution case is that the accused committed house trespass with a view to commit offence of rape. The allegation of rape has failed, which is not challenged. The conviction and sentence for outrage of modesty also does not stand good in the facts and circumstances of the case. Under such circumstances, the allegation of house trespass, based on the same bundle of fact, also, liable to be shrouded with suspicion and the charge is liable to fail. The allegation of rape has failed, which is not challenged. The conviction and sentence for outrage of modesty also does not stand good in the facts and circumstances of the case. Under such circumstances, the allegation of house trespass, based on the same bundle of fact, also, liable to be shrouded with suspicion and the charge is liable to fail. The evidence of the prosecutrix, since does not inspire confidence as a whole, a part of it, cannot be believed to hold the charge under Section 448 of IPC. The accused-appellant, in the circumstances, is entitled to get the benefit of doubt. 12. Accordingly, appeal is allowed. The accused is acquitted on benefit of doubt and he be set at liberty at once. Send back the L.C. record along with a copy of the judgment. Appeal allowed