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2013 DIGILAW 137 (GAU)

Sushma Das v. State of Tripura

2013-03-01

S.C.DAS

body2013
JUDGMENT S.C. Das, J. 1. Both the appeals, filed by the appellants, aforementioned, have been directed against the judgment and order of conviction and sentence dated 16.04.2008, passed by learned Sessions Judge, South Tripura, Udaipur in Case No. ST 49(ST/U)2007. Since the appeals are directed against same judgment of conviction and sentence, on the prayer of learned counsel of both sides, those are heard together and this single judgment shall govern both the appeals. Heard learned counsel, Mr. B. Debnath for the appellants and learned addl. P.P., Mr. R.C. Debnath for the State respondent. 2. Brief facts: 2.1 The victim prosecutrix, a minor girl, aged about 15/16 years namely "Bimala" (actual name kept concealed) was engaged as a maid servant in the house of Sanjit Kr. Das and Smt. Alo Rani Das (P.Ws. 5 and 2) at village Basantanagar, under P.S. R.K. Pur, South Tripura and was working in that house as maid servant. Sanjit Kr. Das, being a govt. servant used to reside at Dhalai in his place of posting, away from his residence. Alo Rani Das, W/o Sanjit Kr. Das, with her two minor children and the maid servant "Bimala" used to reside in the house. Alo Rani also being a govt. servant used to go out in the morning and return in the afternoon. "Bimala" being the maid servant used to stay in her master's house. Accused Tutan Das, Litan Das and their mother Sushama Das were the adjacent neighbour of Sanjit Kr. Das, the master of "Bimala". Accused Tutan gradually developed intimacy with "Bimala" and with the assurance of marriage undergone intercourse with her frequently, as a result she got pregnant. She (Bimala) disclosed her pregnancy to accused Tutan to which the accused threatened her not to disclose the fact to anybody and that the pregnancy should be terminated and thereafter he will marry her. The accused Tutan took her to a 'Quack' at Tulamura in a small medicine shop wherefrom she was taken to the house of that 'Quack' doctor and the 'Quack' doctor applied some herbal medicine in her vagina and thereafter, the accused Tutan sent her back to the house of her master's. "Bimala" did not disclose anything to her landlady since the accused threatened her that if she discloses the fact, he will not marry her. On the following day, she was feeling severe pain in her lower abdomen and started crying due to pain. The accused Tutan went away from house. 2.2 Seeing the condition of "Bimala", the accused Litan Das (elder brother of Tutan) took "Bimala" to G.B. Hospital where doctor advised to admit her in the hospital since her condition was serious. The accused Litan did not admit her in the hospital but brought her back to Tulamura at about mid night to the 'Quack' doctor, who had applied herbal medicine. The 'Quack' doctor took "Bimala" to his house and taken out the herbal medicine from her vagina and thereafter terminated her pregnancy. She was thereafter brought back after mid night to the house of the accused Litan and was kept in their house for the night. The landlady (P.W. 2) enquired about "Bimala", on her return from office, with accused Sushama Das to which Sushama told her that "Bimala" had been taken to the hospital for treatment since she was suffering from severe abdominal pain. 2.3 Alo Rani (P.W. 2) informed her husband Sanjit (P.W. 5) over telephone and as advised by her husband, she informed the facts to the village elders and the Panchayat Members of the locality and she got suspicious about the incident. On the following morning "Bimala" was sent back to her master's house to which the landlady, Alo Rani (P.W. 2) asked "Bimala" as to what happened to which "Bimala" narrated the fact in details of her pregnancy and termination thereof. Alo Rani again informed the facts to her husband and as advised by her husband, she reported the incident to the village elders and Panchayat Members and in the meantime, all local people came to know about the incident. 2.4 The accused Litan and Sushama approached the Village elders and Members of the Panchayat that they will arrange marriage of "Bimala" with accused Tutan immediately and sought for 7 days' time. A meeting was called and in presence of the village elders and Members of the Panchayat, "Bimala" was taken to the house of accused persons assuring that her marriage would be solemnized with Tutan. A meeting was called and in presence of the village elders and Members of the Panchayat, "Bimala" was taken to the house of accused persons assuring that her marriage would be solemnized with Tutan. Accused Litan and Sushama also assured parents of "Bimala" and others that they will arrange the marriage of "Bimala" with Tutan and they requested Usha Rani (P.W. 6), who worked as a middleman for employment of "Bimala" in the house of Sanjit, to keep "Bimala" in their house for a few days, till the marriage was arranged, but they did not agree. "Bimala" was kept in the house of the accused persons for 6(six) days and at that time, the accused persons proposed to give her money and tried to induce her to falsely name somebody else responsible for her pregnancy. "Bimala" could understand the foul play of the accused persons and therefore, on 02.09.2005 she lodged written FIR (Exbt. 1) with the O.C., Kakraban Police Out Post (under R.K. Pur P.S.) narrating the fact which was reduced into writing by P.W. 3 Subrata Dhar. 2.5 On the basis of that FIR, R.K. Pur P.S. case No. 269 of 2005 under Sections 376 /312 /417 of IPC was registered and an investigation was taken up. In course of investigation, the prosecutrix "Bimala" was produced before the Judicial Magistrate Ist Class on 03.09.2005 for recording her statement under Section 164 of Cr.P.C. and accordingly, her statement was recorded by P.W. 10, Judicial Magistrate Ist Class, Udaipur. She was medically examined at Tripura Sundari District Hospital, Udaipur, South Tripura by Dr. S.B. Chakraborty (P.W. 11) and he submitted the medical report (exbt. 3). "Bimala" was also produced before the Department of Radiology at GB. Hospital, Agartala for determination of her age and Dr. L.K. Sinha, the Head of Radiology, Department of G.B. Hospital submitted report after ossification test stating that "Bimala" was aged about 14 to 16 years on the date of her examination i.e. on 03.09.2005. In course of investigation, I.O. examined the material witnesses and recorded their statements under Section 161, Cr.P.C. 2.6 The prosecutrix, "Bimala" since neither kept in the house of the accused persons nor by her master's or her parents, therefore, she was given shelter in a protective home at Agartala. In course of investigation, I.O. examined the material witnesses and recorded their statements under Section 161, Cr.P.C. 2.6 The prosecutrix, "Bimala" since neither kept in the house of the accused persons nor by her master's or her parents, therefore, she was given shelter in a protective home at Agartala. On 23.08.2005 in course of investigation, she was brought from the Protective Home and on her examination by the I.O. she disclosed that she would be able to identify the accused 'Quack' who terminated her pregnancy and his medicine shop, as well as his house where her pregnancy was terminated. Accordingly, she led the I.O. in presence of other witnesses to Tulamura and identified the small medicine shop at Tulamura Bazar and the house of accused Bisweswar Majumder alias Bishu doctor, the 'Quack' who had terminated her pregnancy at the instance of the accused Tutan and Litan. She also identified the room in the house of the 'Quack' where her pregnancy was terminated. The accused Bisweswar Majumder was not available in the house at that time. 2.7 It may be mentioned here that the accused Bisweswar Majumder sought for anticipatory bail under Section 438 of Cr.P.C. and his bail was granted. In course of investigation, Bisweswar Majumder was not arrested by the I.O. and on completion of investigation, charge sheet was submitted for commission of offence punishable under Sections 376 /417 /312 /201 /506 of IPC against the accused appellants and 4(four) others including principal accused Tutan Das showing accused Tutan Das and Kamal Hossain as absconder. 3. Cognizance was taken on the basis of the police report and on commitment of the case to the court of Sessions, learned Sessions Judge on 12.11.2007 framed charges against accused appellants and two others for commission of offence punishable under Section 312 and 201 of IPC to which they pleaded not guilty and claimed to be tried. 4. To prove the charges, prosecution examined 12 witnesses namely:- P.W. 1: Smt. Kamali Sarkar, P.W. 2: Smt. Alo Rani Das, P.W. 3: Shri Subrata Dhar, P.W. 4: Smt. Mangalaxmi Debbarma, P.W. 5: Shri Sanjit Kumar Das, P.W. 6: Smt. Usha Rani Das, P.W. 7: Shri Shyama Charan Sarkar, P.W. 8: Shri Sachindra Das, P.W. 9: Smt. Rekha Sarkar, P.W. 10: Shri Gautam Sarkar, P.W. 11: Dr. S.B. Chakraborty & P.W. 12: Shri Saktipada Bhattacharjee. 5. Prosecution also proved the FIR (Exbt. S.B. Chakraborty & P.W. 12: Shri Saktipada Bhattacharjee. 5. Prosecution also proved the FIR (Exbt. 1), statement of victim prosecutrix "Bimala" recorded under Section 164 of Cr.P.C. (Exbt. 2), medical examination report of the victim prosecutrix (Exbt. 3), ossification test report (Exbt. 4), hand sketch map and index(Exbt. 6 and 7). 6. Out of the aforesaid witnesses, P.W. 1 is the victim prosecutrix and is the star witness of the case. P.Ws. 2 and 5 are the house owners i.e. the masters of "Bimala" where she was working as a maid servant. P.W. 3 was the Scribe of the FIR. P.W. 4 is a woman constable of Kakraban Police Out Post who accompanied the police party at the time of identification of the house of accused appellant Bisweswar Majumder by the victim prosecutrix. P.W. 6 is the middleman who brought the prosecutrix from her parental home and employed her in the house of P.Ws. 2 and 5. P.Ws. 7 and 8 are the residents of the locality where the victim prosecutrix was working as a maid servant and out of them P.W. 8 is the father of P.W. 5 who residing in a different house. P.W. 9 is the aunt of the victim. P.W. 10 is the Judicial Magistrate Ist Class who recorded the statement of the victim prosecutrix. P.W. 11 is the Medical officer and P.W. 12 is the I.O. of the case. 7. Defence cross examined the prosecution witnesses and after closure of the prosecution evidence, accused persons were examined under Section 313, Cr.P.C. In their turn, they declined to adduce any defence evidence. Defence case is nothing but a bare denial of the prosecution case. 8. Learned Sessions Judge, at the conclusion of trial, by the impugned judgment found the accused appellants guilty of committing offence punishable under Sections 312 and 201 of IPC and accordingly, sentenced accused appellant Bisweswar Majumder to suffer R.I. for 7 years and to pay a fine of Rs. 5000/- in default of payment to suffer R.I. for one year under Section 312 of IPC and also sentenced him to suffer R.I. for 1(one) year 6(six) months and to pay a fine of Rs. 1000/- in default of payment of fine to suffer R.I. for 6(six) months for commission of offence under Section 201 of IPC. 5000/- in default of payment to suffer R.I. for one year under Section 312 of IPC and also sentenced him to suffer R.I. for 1(one) year 6(six) months and to pay a fine of Rs. 1000/- in default of payment of fine to suffer R.I. for 6(six) months for commission of offence under Section 201 of IPC. The accused appellant Litan Das and Sushama Das were sentenced to suffer S.I. for 1(one) year 6(six) months and to pay a fine of Rs. 1000/- in de fault of payment of fine, to suffer S.I. for another 6(six) months. 9. On going through the records of the case, I am at a loss and quite surprised and astonished to see that the investigation as well as the prosecution of the case was done without attaching any importance to the gravity of the offence. I am extremely surprised to see that the learned Sessions Judge also has casually dealt with the case. The charge which ought to have been framed under Section 313 of IPC, but framed under Section 312 of IPC. 10. Let us first travel through the deposition of witnesses. P.W. 1 is the victim prosecutrix and is the star witness of the prosecution. In her deposition she stated that she is the informant of the case. The incident occurred two years ago (from the date of her giving deposition). At that time she was working in the house of Sanjit Kr. Das at Kakraban as maid servant. Sanjit Kr. Das used to reside at Dhalai in connection with his official duties. His wife along with two children had been residing in their Kakraban house at the relevant time of incident. The wife of Sanjit Kr. Das was also in govt. service. The house of accused Tutan was adjacent to the house of Sanjit Das. Tutan forcefully committed rape on her against her will and consent. He promised her that he will marry her and on that assurance she surrendered herself to his lust. Because of cohabitation she became pregnant. Thereafter Tutan had been pursuing her for abortion of her pregnancy. She did not agree to do so. Subsequently he had forced her to abort her pregnancy. She did not disclose the said fact to her landlady as the accused had threatened her that he will not marry her if she discloses it. Because of cohabitation she became pregnant. Thereafter Tutan had been pursuing her for abortion of her pregnancy. She did not agree to do so. Subsequently he had forced her to abort her pregnancy. She did not disclose the said fact to her landlady as the accused had threatened her that he will not marry her if she discloses it. The accused Tutan took her at Tulamura in a medicine shop, wherefrom, the son of the doctor took her to their residence. The doctor came to the residence after some time. He (doctor) put some herbal medicine in her vagina. Tutan sent her in her master's house by a vehicle and he returned home riding his motor bike along with the son of the doctor. On the following day, she was feeling pain in her abdomen and she was not in a position to sustain it and was crying. On seeing her condition, the accused Litan took her to G.B. Hospital by hiring a Maruti vehicle. At G.B. hospital, Litan was asked to admit her in the hospital but Litan brought her back to Tulamura to the said doctor who had put herbal medicine in her vagina. They reached the house of the doctor at mid night. On hearing about her condition, the doctor took her in a room and removed herbal medicine and then aborted her pregnancy. After completion of abortion, Litan took her to their house. On the next morning, Litan took her to the house of her landlady (master). On hearing everything, her landlady informed the entire matter to her parents/guardians and other responsible persons of the locality. She lodged written complaint before the O.C. of Kakraban Police Out Post. The ejahar was written by one Subrata Dhar on her dictation and it was read over to her and she put her signature admitting it to have correctly written. She duly proved the FIR(Exbt. 1) and her signature (Exbt. 1/1). She stayed in the house of accused Litan for a period of 6(six) days in total. The mother of accused Tutan and Litan accepted her as her daughter-in-law and she (accused) convened a meeting of the local people and intimated the matter of acceptance to them. The mother of accused Tutan and Litan subsequently had been pursuing her to tell the name of other persons, responsible for her pregnancy. The mother of accused Tutan and Litan accepted her as her daughter-in-law and she (accused) convened a meeting of the local people and intimated the matter of acceptance to them. The mother of accused Tutan and Litan subsequently had been pursuing her to tell the name of other persons, responsible for her pregnancy. Police Officer subsequently took her to Tripura Sundari District Hospital, V.M. Hospital and G.B. Hospital for examination. Police also produced her before a Magistrate and she narrated the entire matter to the Magistrate and proved her statement with her signature. She narrated the entire matter to the police officer. Thereafter, she led the police persons to Tulamura in the house of the doctor accused and showed them the house of the doctor and also showed the room where her pregnancy was terminated. She identified the accused doctor Bisweswar Majumder, Litan Das and Sushama Das in the dock. 10.1 In her cross examination she stated that she did not state to the Magistrate that she showed the house of the doctor and the place of abortion. She did not state to the Magistrate that the friend of Tutan namely Shyamal was present when she was taken to the medicine shop at Tulamura. She also did not state to the Magistrate that the son of the doctor had taken her to their house. She stated to the Magistrate and in the FIR that she would be able to identify the accused doctor and his house. Her attention was drawn to the FIR and her statement recorded under Section 164, Cr.P.C. but such statement was not found. She denied the suggestion that she did not show the house of accused doctor to the police. She also denied the suggestion that she visited the house of the doctor only twice. The accused Litan took her to G.B. Hospital on seeing her condition as they had knowledge about the incident. The accused Litan and Tutan were the next door neighbours of her landlady. She further stated that it was not possible for her to say the number of the vehicle and the name of the driver of the maruti vehicle by which accused Litan took her to G.B. Hospital. She denied the suggestion that she was not taken to G.B. Hospital by accused Litan and thereafter was not taken to Tulamura. She further stated that it was not possible for her to say the number of the vehicle and the name of the driver of the maruti vehicle by which accused Litan took her to G.B. Hospital. She denied the suggestion that she was not taken to G.B. Hospital by accused Litan and thereafter was not taken to Tulamura. She admitted that mother of accused Tutan enquired with her as to who was responsible for her conception. Initially she (accused Sushma) did not believe that accused Tutan was responsible for her pregnancy. She denied the suggestion that mother of Tutan did not call the Panchayat Members and that the accused persons did not take her to a medicine shop at Tulamura and she was not sent to the house of the doctor and the doctor did not apply any herbal medicine in her vagina. She also denied the suggestion that she did not know the accused doctor and that she has been held by the prosecution to identify the doctor. She also denied the suggestion that she was not aged 17 years on that date of her deposition and that she was aged about 20 years at that time. 11. P.W. 2 is another material witness, the landlady of the victim. In her deposition, she stated that the prosecutrix used to work in her house as a maid servant. The incident occurred on 24.08.2005. Prior to that day, prosecutrix was working in her house more than 1(one) and half years. Her husband had been residing at Dhalai in connection with his official duties. She used to reside in her house along with her two kids. She is also a govt. employee and used to go out of her residence at about 8 a.m. everyday. On the date of incident after returning from her duties at about 4-30 p.m. she did not find the prosecutrix in the house. She enquired about her. On her query, the mother of accused Litan told her that Litan had taken the prosecutrix to a doctor as she had been suffering from abdomen pain. After 8 p.m., she intimated the entire matter to her husband over telephone as the prosecutrix did not return home. On her query, the mother of accused Litan told her that prosecutrix will return very soon. After 8 p.m., she intimated the entire matter to her husband over telephone as the prosecutrix did not return home. On her query, the mother of accused Litan told her that prosecutrix will return very soon. As per advice of her husband she intimated the entire matter to the local respectable persons and Panchayat members. Prosecutrix did not return to her house in the night. In the next morning she found the prosecutrix was in the house of the accused Litan. She enquired about the matter to the prosecutrix and on her query prosecutrix narrated the entire matter to her. She (Prosecutrix) stated to her that accused Tutan had forcefully committed rape on her and subsequently he had promised her that he would marry her. Because of cohabitation she had become pregnant. He also threatened her that he will not marry her if she discloses the matter to anyone. Therefore, she (prosecutrix) did not disclose the matter to her earlier. Prosecutrix also stated to her that the accused Tutan had asked to abort her pregnancy else he will not marry her and accordingly, he had taken prosecutrix to a doctor at Tulamura who put some herbal medicine to her vagina. Prosecutrix also told that she had been suffering pain in her abdomen after herbal medicine was applied and therefore, the accused Litan had taken her to Agartala and had returned to the house of the said doctor at Tulamura who aborted her pregnancy. Thereafter, she intimated the entire matter to the Panchayat members and respectable persons of the locality. She also intimated the entire matter to Smt. Usha Rani Das who had brought the prosecutrix to her house. She requested Usha Rani to intimate the entire matter to the guardian/parents of the prosecutrix. Thereafter mother of the accused Tutan had approached the Panchayat members and requested them to give her 7 days time to settle the matter. She (mother of Tutan) further agreed that she would be giving marriage of the prosecutrix with her son Tutan since Tutan was responsible for the pregnancy. The local respectable persons allowed the time and accordingly the accused Sushama had taken the prosecutrix in their house. She came to know from the prosecutrix that after taking her in their house the accused persons had tortured her and tutored her to state names other person as responsible for her pregnancy. The local respectable persons allowed the time and accordingly the accused Sushama had taken the prosecutrix in their house. She came to know from the prosecutrix that after taking her in their house the accused persons had tortured her and tutored her to state names other person as responsible for her pregnancy. Accused Tutan had not married the prosecutrix. The prosecutrix thereafter lodged the written complaint before the Police officer. The prosecutrix since after the incident, had been residing in the Protective Home at Agartala. She was present when the accused Sushama had stated to the local respectable persons and Panchayat members that she would make necessary arrangement for marriage of the prosecutrix and her son Tutan. 11.1. Except denial, there is nothing material in the cross examination of the witness. 12. P.W. 5 materially corroborated P.W. 2 in respect of the information at the material time he got from his wife (P.W. 2) and in cross examination that part of the statement has not been shaken. P.W. 6, as already stated, engaged the prosecutrix in the house of P.W. 5 and P.W. 2 as maid servant, and she also corroborated the fact alleged by P.W. 1, the prosecutrix. Except suggestion, there is nothing in her cross examination. P.Ws. 7 and 8 also corroborated the fact that the prosecutrix got pregnant because of her cohabitation with Tutan and P.W. 7 accompanied the accused Litan to the house of P.W. 6 where Litan narrated the fact of termination of pregnancy of the prosecutrix. P.W. 8, father of P.W. 5 also stated that accused Sushama and Litan went to his house and requested him to save the accused Tutan and they told him that they would make necessary arrangement for marriage of Tutan with the prosecutrix. He advised them to approach the village Panchayat. He further told that the prosecutrix became ill because of termination of her pregnancy. There is nothing material in the cross examination of P.Ws. 7 and 8. P.W. 9, the aunt of the prosecutrix also corroborated the material fact as stated by the prosecutrix. 13. P.W. 11 examined the prosecutrix in the Tripura Sundari District Hospital on 02.09.2005 i.e. on the date of lodging the FIR itself and on examination he submitted a detailed report which was marked as Exbt. 3. 7 and 8. P.W. 9, the aunt of the prosecutrix also corroborated the material fact as stated by the prosecutrix. 13. P.W. 11 examined the prosecutrix in the Tripura Sundari District Hospital on 02.09.2005 i.e. on the date of lodging the FIR itself and on examination he submitted a detailed report which was marked as Exbt. 3. In the report, the age of the prosecutrix has been mentioned as 16 years, as stated by her. He also recorded the brief history thus- She was working as maid servant in a house at Kakraban. Owner's name Mr. Sanjit Das. One person staying nearby Mr. Tutan Das had regular sexual intercourse with her for 1 yr. In that case she became pregnant for 5 m, which was illegally induced by wild root by a quack at Tulamura & she had abortion of that pregnancy 10 days back. In the medical report he has also mentioned that the breast of the victim was lactating engorged with milk. He also observed that the examination was painful. In his opinion there were signs of recent vaginal delivery in her genitalia (lacerated with abortus lochial discharge of recent child birth, 10 to 12 weeks uterus with open OS. Breasts are engorged with milk. Stria over breast present. P.W. 11 was not cross examined on behalf of the accused persons in respect of the medical report submitted by him. Exbt. 4 is the ossification test report by doctor L.K. Sinha opining that prosecutrix was aged 14 to 16 years at the time of examination i.e. on 03.09.2005. 14. The first argument advanced by learned counsel, Mr. B. Debnath is that, charge under Section 201 of IPC was framed having no material at all. The conviction has also been given without any basis and not supported by evidence on record. Learned Addl. P.P., Mr. R.C. Debnath also fairly conceded that in the facts and circumstances of the case, charge under Section 201 of IPC is not tenable and he has nothing to argue to sustain the order of conviction and sentence on the charge under Section 201 of IPC. 15. I have meticulously gone through the evidence and materials on record. Section 201 of IPC prescribes punishment for causing disappearance of evidence of offence. 15. I have meticulously gone through the evidence and materials on record. Section 201 of IPC prescribes punishment for causing disappearance of evidence of offence. In the given facts and circumstances of this case, the accused Tutan, as alleged, committed rape and/or undergone intercourse with the prosecutrix with false assurance of marriage and as a result, she became pregnant and he first took her to the 'Quack' at Tulamura for termination of pregnancy giving further assurance that he will marry her after the pregnancy would be terminated and he threatened her not to disclose about the fact to anybody and if she disclose, in that case, he will not marry her. The 'Quack' applied herbal medicine in the vagina of the prosecutrix. On the following morning the prosecutrix was feeling abnormal pain in her abdomen and the accused Tutan had absconded. She was thereafter taken to G.B. Hospital and then to the 'Quack' at Tulamura by accused Litan and her pregnancy was terminated at the instance of accused Litan by the accused Bisweswar. There is nothing to arrive at a finding that the termination of pregnancy would in any way amount to disappearance of evidence of the offence of alleged rape and/or sexual inter-course by accused Tutan with false assurance. Therefore, in my considered opinion charge framed under Section 201 of IPC against the accused appellants and consequent order of conviction and sentence is based on no materials and/or evidence and is liable to be set aside and I did so accordingly. 16. Learned counsel, Mr. B. Debnath secondly argued that the principal accused Tutan has absconded. According to the prosecution he was responsible for the alleged pregnancy of the prosecutrix and also responsible for the alleged attempt of termination of pregnancy. The accused Litan only seeing that the prosecutrix was suffering from severe pain and was crying, as alleged by the prosecutrix, made an attempt to save her life and alleged to have taken her to hospital and then to the 'Quack'. Even if the prosecution story, as it is believed, the accused Litan cannot be held guilty of committing offence and/or abetting the commission of offence punishable under Section 312 of IPC. He has also submitted that there is no evidence that accused Sushama had taken part in any manner in the alleged termination of pregnancy of the prosecutrix. Even if the prosecution story, as it is believed, the accused Litan cannot be held guilty of committing offence and/or abetting the commission of offence punishable under Section 312 of IPC. He has also submitted that there is no evidence that accused Sushama had taken part in any manner in the alleged termination of pregnancy of the prosecutrix. Only evidence on record against Sushama is that she made a commitment to the Panchayat and local elders that she will make necessary arrangement to give marriage of accused Tutan with the prosecutrix but subsequently, she did not arrange it, rather, tried to pursue the prosecutrix to falsely name other people responsible for pregnancy. Learned counsel, Mr. Debnath, therefore, emphatically submitted that the conviction and sentence of accused Litan and Sushama under Section 312 cannot sustain. 17. Learned Addl. P.P., Mr. R.C. Debnath has submitted that there is no cogent evidence on record to involve accused Sushama in the allegation of termination of pregnancy but the evidence on record clearly established that accused Litan had taken the prosecutrix to G.B. Hospital for termination of pregnancy but when the doctor asked for admission of the prosecutrix, she was brought back at mid night to the house of accused 'Quack' Bisweswar Majumder and the pregnancy was terminated. The evidence on record since not shaken in any manner, clearly established that accused Litan participated in the process of termination of pregnancy of the prosecutrix taking her to the 'Quack' and thereby facilitated the 'Quack' to terminate the pregnancy without the consent of the prosecutrix. Therefore, the accused Litan has been rightly found guilty of the offence. 18. Learned Sessions Judge held both the accused Litan and Sushama guilty of committing offence punishable under Sections 312 and 201 of IPC and inflicted a single punishment as already stated herein-before. On going through the evidence on record, I find no cogent evidence to arrive at a conclusion that accused Sushama was responsible for the termination of pregnancy of the prosecutrix. I, therefore, find sufficient force in the submission of learned counsel, Mr. B. Debnath which is not disputed by learned Addl. P.P. and therefore, the judgment and order of conviction and sentence of accused Sushama under Section 312 of IPC is liable to be set aside. I, therefore, find sufficient force in the submission of learned counsel, Mr. B. Debnath which is not disputed by learned Addl. P.P. and therefore, the judgment and order of conviction and sentence of accused Sushama under Section 312 of IPC is liable to be set aside. It is firmly established and is evident in the deposition of the prosecutrix that accused Litan took her to G.B. Hospital first and thereafter to the 'Quack' doctor at Tulamura at mid night and arranged termination of the pregnancy. So, he has taken an active role in the process of the miscarriage and he was therefore, rightly found guilty of abetting the miscarriage by the 'Quack' doctor i.e. appellant Bisweswar Majumder. 19. Learned counsel, Mr. B. Debnath with all emphasis strenuously argued that the involvement of accused Bisweswar in the alleged miscarriage has not been established since he was neither arrested by the police nor any T.L. parade was held for his identification at the stage of investigation. He was first time identified in the court by the prosecutrix and such first time identification in the court itself is a week piece of evidence and relying such sole testimony of the prosecutrix, conviction of the appellant Bisweswar has caused gross miscarriage of justice. 20. Learned Addl. P.P., on the contrary, has submitted that the accused Bisweswar while was apprehending arrest, approached the court of Sessions and availed anticipatory bail. Therefore, he could not be arrested by the police and on the date the prosecutrix identified his house, he was absconding. There was no scope for holding a T.I. parade. He has admitted that there was defect in the investigation regarding identity of the accused Bisweswar at the investigation stage but for that defect, the prosecution case shall not suffer and in support of his contention, he relied on the Apex Court's judgment in the case of Dhanaj Singh Vs. State of Punjab reported in (2004) 3 SCC 654 and the case of State of Uttar Pradesh Vs. Hari Mohan reported in (2000) 8 SCC 598 . 21. The prosecutrix in her evidence clearly stated that accused Tutan first took her at Tulamura in a medicine shop wherefrom she was taken to the house of the 'Quack' doctor where 'Quack' doctor applied herbal medicine in her vagina. Hari Mohan reported in (2000) 8 SCC 598 . 21. The prosecutrix in her evidence clearly stated that accused Tutan first took her at Tulamura in a medicine shop wherefrom she was taken to the house of the 'Quack' doctor where 'Quack' doctor applied herbal medicine in her vagina. She stated that on the following day, she was taken back to the house of the doctor at mid night and the doctor terminated her pregnancy. She also stated that she along with the police went to the house of the doctor and identified the house as well the room in which the miscarriage was done by the 'Quack'. She had the occasion to see the doctor twice as stated by her. P.Ws. 4 and 5 corroborated the statement of P.W. 1 that the prosecutrix identified the house of the accused and the accused was not present in the house at that time and wife and son of the accused were present in the house. The evidence of P.Ws. 4 and 5 has not been shaken in any manner. The fact that 'Bimala' (victim/prosecutrix) identified the house of Quack in presence of police and other witnesses, has not been stated in the FIR or in her statement recorded under Section 164 Cr.P.C., since such identification was done subsequent to the lodging of FIR and her examination under Section 164 Cr.P.C. The FIR was lodged on 02.09.2005 and she was examined under Section 164 of Cr.P.C. by the Magistrate on 03.09.2005 and thereafter she was in the Protective home at Agartala wherefrom she was brought to P.S. on 28.12.2005 and the I.O. had taken her to Tulamura and she had identified the house and shop of the accused 'Quack' doctor who terminated her pregnancy. Since the statements were recorded much before the date of identification of the house there was no question of recording the statement either in the FIR or in the statement recorded under Section 164 of Cr.P.C. Even if the accused was released on anticipatory bail, I.O. would arrange T.I. parade of the accused. No attempt was taken by I.O. I.O. also could examine and record statement of local people of Tulamura including that of the wife and son of the accused but that was not done. Prosecution also did not take any step to examine any such witnesses except P.Ws. No attempt was taken by I.O. I.O. also could examine and record statement of local people of Tulamura including that of the wife and son of the accused but that was not done. Prosecution also did not take any step to examine any such witnesses except P.Ws. 4 and 5 regarding the identity of the house of accused Bisweswar by the prosecutrix. We are to be concerned about the quality of the evidence and not the quantity. The quality of the evidence of P.Ws. 1, 4 and 5 regarding identity of the house of the accused by the prosecutrix has not been shaken in the cross examination or otherwise. 22. The purpose of holding T.I. parade is to enable a witness to identify persons concerned in the offence who were not personally known to the witness. This serves to satisfy the I.O. of the bonafide of the witness concerned and to furnish further evidence to corroborate the testimony of the witness and the whole object behind such holding of T.I. parade is to find out whether or not the suspect is the real offender. T.I. parade is not a substantive piece of evidence. I find no justification in the argument of learned counsel, Mr. B. Debnath that the prosecution case is to be disbelieved as a whole regarding involvement of accused Bisweswar for not holding the T.I. parade. What is stated by a witness before the court is the evidence and unless it is shaken in the cross examination or otherwise, the court can rely on such evidence even regarding identity of an accused for the first time before the court. There is no rule of universal application that unless an accused is identified in T.I. parade, at the stage of investigation, such an accused cannot be identified by a witness in course of giving evidence before Court, or that such identification in the Court is a weak piece of evidence in each and very case. Every case should be decided taking into account the peculiar fact and circumstance of that case. There cannot be a general rule of rejecting the evidence for not holding the T.I. parade. Here, the 'Quack' was not previously known to Bimala, but she found the Quack very closely on two occasions and identified his shop and house without any hesitation. Every case should be decided taking into account the peculiar fact and circumstance of that case. There cannot be a general rule of rejecting the evidence for not holding the T.I. parade. Here, the 'Quack' was not previously known to Bimala, but she found the Quack very closely on two occasions and identified his shop and house without any hesitation. Her identification of the accused in the Court has not been shaken in any manner. It is not the case of the defence that the victim prosecutrix found the accused for a spurt of moment and it was not possible for her to keep in memory the appearance of the accused. She attended the accused Bisweswar twice in his house and medicine shop. The accused terminated her pregnancy and so she had the opportunity of seeing the accused closely and meticulously, therefore, her evidence deserves all credibility and I find no reason to discard the prosecution case as against Bisweswar on this ground alone. It is proved with overwhelming evidence that pregnancy of the prosecutrix was terminated. The doctor's evidence as already reproduced herein-above, which is not denied, makes it abundantly clear that the prosecutrix was having pregnancy of 5 months and it was terminated at Tulamura as stated by her by a 'Quack' and she identified the accused Bisweswar in the dock as the said 'Quack' who terminated her pregnancy. There is, therefore, a complete connectivity and sequence of events which has established the involvement of accused Bisweswar in the offence and there is no scope of having a second thought on the evidence regarding identity of the accused Bisweswar. 23. No doubt there was scope for the I.O. to arrange T.I. parade. Such non holding of T.I. parade cannot vitiate the cogent evidence otherwise established the identity of the accused. In the case of Dhanaj Singh (supra), the apex Court relying on the decision in the case of Karnel Singh Vs. State of Madhya Pradesh (1995) 5 SCC 518 ; Paras Yadav & Ors. Vs. State of Bihar (1999) 2 SCC 126 and Ram Bihari Yadav Vs. State of Bihar & Ors. (1998) 4 SCC 517 , has held that- The stand of the appellants relate essentially to acceptability of evidence. Even if the investigation is defective. In view of the legal principles set out above, that pales into insignificance when ocular testimony is found credible and cogent. State of Bihar & Ors. (1998) 4 SCC 517 , has held that- The stand of the appellants relate essentially to acceptability of evidence. Even if the investigation is defective. In view of the legal principles set out above, that pales into insignificance when ocular testimony is found credible and cogent. Further effect of non-examination of weapons of assault or the pellets etc. in the background of defective investigation have been considered in Amar Singh's case (supra). In the case at hand, no crack in the evidence of the vital witnesses can be noticed. 24. In the case of Harimohan (supra), the Supreme Court has held that the defective investigation cannot be made the basis of acquitting the accused if despite such defect and failures of the investigation, a case is made out against all the accused or anyone of them. In the present case though there are lot of pits and holes here and there in the investigation as well as in the prosecution of the case, I am of the considered opinion that in the given facts and circumstances of the case, if the culprit is not booked for the technical defects or the designed defect in the investigation, it will cause a serious miscarriage of justice. The prosecutrix was a helpless minor girl working as a maid servant in the neighbour's house of accused Litan, Tutan and Sushama. Accused Tutan, as alleged committed rape on her and frequently undergone intercourse thereafter with the assurance of marriage, as a result of which she got pregnant. In the FIR she stated that she was aged 15 years at the time of lodging the FIR i.e. on 02.09.2005. In her deposition which was recorded on 08.01.2008 she stated her age 17 years. P.W. 11 while examining the prosecutrix on 02.09.2005, recorded her age as 16 years. Exbt. 4, the ossification test report shows that she was aged 14 to 16 years as on 5.9.2005. It shows that the prosecutrix was minor at the relevant point of time when she was made pregnant by the alleged illicit intercourse and at the time of termination of the pregnancy. According to her own statement, the prosecutrix agreed to the termination of pregnancy since the accused Tutan threatened her that otherwise he will not marry her. It shows that the prosecutrix was minor at the relevant point of time when she was made pregnant by the alleged illicit intercourse and at the time of termination of the pregnancy. According to her own statement, the prosecutrix agreed to the termination of pregnancy since the accused Tutan threatened her that otherwise he will not marry her. The 'Quack' i.e. accused Bisweswar at the instance of accused Tutan applied herbal medicine in her vagina and her condition thereafter deteriorated and the accused Litan took her to G.B. Hospital and then back to the 'Quack' and pregnancy was terminated. It was, therefore, not a case of termination of the pregnancy to save the life of the prosecutrix in good faith rather, it was a voluntary termination of the pregnancy of the prosecutrix at the instance of the accused Litan by the accused Bisweswar. It is quite clear that the accused Bisweswar is not a medical expert. He has taken the task of terminating the pregnancy applying wild herbal plant for which the prosecutrix having 5 months pregnancy suffering abnormal pain but somehow got saved her life. The word "miscarriage" means premature expulsion of the child or foetus from the mother's womb at any period of pregnancy before the term of gestation is completed. Medically, three distinct terms i.e. abortion, miscarriage and premature labour, are used to denote the expulsion of a foetus at different stages of gestation. Thus, the term, abortion, is used only when an ovum is expelled within the first three months of pregnancy, before the placenta is formed. Miscarriage is used when a foetus is expelled from the fourth to the seventh month of gestation, before it is viable, while premature labour is the delivery of a viable child possibly capable of being reared, before it has become fully mature. "Quick with child" postulates peculiar sensations experienced by a woman about the fourth or fifth month of pregnancy. As stated by MODI in his Medical Jurisprudence, at the first perception of "quickening" or the foetal movement by the mother, she is said to be "quick with the child", and occurs at any time between 18-20 weeks. 25. "Quick with child" postulates peculiar sensations experienced by a woman about the fourth or fifth month of pregnancy. As stated by MODI in his Medical Jurisprudence, at the first perception of "quickening" or the foetal movement by the mother, she is said to be "quick with the child", and occurs at any time between 18-20 weeks. 25. In the present case, as observed by P.W. 11, prosecutrix was having pregnancy of 5 months and so, it should be presumed that she was 'quick with child' and the 'Quack' accused Bisweswar voluntarily caused the miscarriage while the prosecutrix was 'quick with child'. 26. Learned counsel, Mr. B. Debnath in support of his contention referred a case law of Hon'ble Orissa High Court in the case of Md. Sharif Vs. State of Orissa reported in 1996 CRI. L.J. 2826. On going through the fact of that case it appears that the fact is quite distinguishable to that of the fact of the present case. In that case the prosecutrix was an unmarried girl and because of her intrigue between her and the accused she got pregnant and being afraid of any social stigma she agreed and gave her consent to terminate her pregnancy. She made attempt to terminate her pregnancy through a village 'Quack' and there was profuse bleeding for which she was taken to the nursing home of P.W. 10 where P.W. 10 terminated the pregnancy to save her life. The fact of that case, therefore, is different than that of the fact of the present case. Here the accused Bisweswar himself applied the wild herbal as medicine in the vagina of the prosecutrix and thereby tried to terminate her pregnancy when she had fallen ill and thereafter accused Litan though took her to G.B. Hospital but did not admit her there and took her again to the 'Quack' to terminate the pregnancy and thereby, the accused Litan also was responsible and took part in causing miscarriage of pregnancy of the prosecutrix. The argument of learned counsel of Mr. B. Debnath, therefore, is not acceptable in the facts and circumstances of this case. 27. In view of the discussions made above, I find no merit in the appeal in respect of accused appellant Bisweswar Majumder and Litan Das. The argument of learned counsel of Mr. B. Debnath, therefore, is not acceptable in the facts and circumstances of this case. 27. In view of the discussions made above, I find no merit in the appeal in respect of accused appellant Bisweswar Majumder and Litan Das. However, taking into consideration the facts and circumstances, I think in respect of accused appellant Bisweswar Majumder, a sentence of Rigorous imprisonment for 3 years and a fine of Rs. 25,000/-, in default of payment of fine to suffer further R.I. for 1 year 6 months, shall meet the ends of justice. I find no reason to interfere in the sentence of accused appellant Litan Das. Fine money if realized be given to the prosecutrix. 28. Accordingly, accused Sushama Das is acquitted from the charges framed against her. 29. Accused Bisweswar Majumder shall suffer R.I. for 3 years and to pay a fine of Rs. 25,000/- in default of payment of fine to suffer further R.I. for 1 year 6 months. 30. The conviction and sentence of accused appellant Litan Das is maintained. 31. The appeals accordingly stand disposed of. Send back the L.C. records along with a copy of this judgment.