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Tripura High Court · body

2013 DIGILAW 17 (TRI)

State of Tripura v. Tapan Banik

2013-07-19

S.C.DAS

body2013
JUDGMENT S.C. Das, J. 1. This is an appeal against acquittal filed by the State under Section 378 of Cr.P.C. challenging judgment and order, dated 8.4.2008, passed by learned Sessions Judge, South Tripura, Udaipur in case No. ST 24 (ST/S) of 2007. Heard learned Addl. P.P., Mr. R.C. Debnath for the State-appellant and learned counsel, Mr. Ratan Datta for the accused-respondent. 2. Prosecution case, in short, is that on 09.10.2006, a Tuesday, at about 10:00 p.m. (night), Krishna Mohan Das (P.W. 9) returned home from market and picked up a quarrel with his wife Chinu Das (P.W. 8) on domestic affairs. Apprehending that Krishna Mohan might assault his wife Chinu, their daughter "Ratna", P.W. 7 (actual name kept withheld) went out of the house for the house of accused-respondent. Tapan Banik to call him to come to their house to mitigate the quarrel of her parents. She reached the house of Tapan Banik and called him. While on way back to their house, Tapan Banik suddenly caught hold "Ratna", gagged her mouth and dragged her in the roadside jungle with a view to commit rape on her. He forcefully made her naked, laid her on the ground and thereafter tried to commit rape on her but she could somehow escape herself and fled away to her house and reported the incident to her parents. 2.1 On the following morning Chinu Das, P.W. 8 lodged an FIR before the O.C., Sabroom P.S. narrating the fact and accordingly, Sabroom P.S. Case No. 35 of 2006 was registered under Sections 341 and 376 read with Section 511 of IPC and an investigation was taken up. S.I. Tikendrajit Mog was entrusted with the charge of investigation. 2.2 On the very date of lodging FIR, the victim prosecutrix "Ratna" was produced before the medical officer (P.W. 6) at Sabroom Sub Divisional Hospital and her medical examination was done. To determine her age, the Dentist, Dr. Sugata Das (P.W. 11) also examined the prosecutrix and reported that the prosecutrix might be aged 13 to 16 years at the relevant time of examination. She was also produced before learned SDJM, Sabroom on 13.10.2006 and the learned SDJM recorded her statement under Section 164 of Cr.P.C. administering oath which has been proved as Exbt. 4. 2.3 I.O. also prepared a hand sketch map of the place of occurrence with separate index and those are proved as Exbts. She was also produced before learned SDJM, Sabroom on 13.10.2006 and the learned SDJM recorded her statement under Section 164 of Cr.P.C. administering oath which has been proved as Exbt. 4. 2.3 I.O. also prepared a hand sketch map of the place of occurrence with separate index and those are proved as Exbts. 8 and 9. FIR has been proved as Exbt. 1 and the medical report submitted by P.W. 6 has been proved as Exbt. 3, age determination report submitted by P.W. 11 proved as exbt. 6. I.O. recorded the statement of neighbouring witnesses and submitted charge sheet under Sections 341 and 376 read with Section 511 of IPC. 2.4 Cognizance was taken on the basis of police report and in due course the case was committed to the Court of Sessions. Learned Sessions Judged considering the materials on record and after hearing both side, on 13.07.2007 framed charges against the accused for commission of offence punishable under Sections 341 and 376 read with Section 511 of IPC to which the accused pleaded not guilty and claimed to be tried. 3. Prosecution examined 14 witnesses. Out of them, P.W. 7 is the victim prosecutrix (Ratna). P.Ws. 8 and 9 are the parents of the prosecutrix. P.Ws. 1, 3, 4 and 5 are the neighbours of the prosecutrix. P.W. 2 is the scribe of the FIR. P.Ws. 6 and 11 are the medical officers of Sub Divisional Hospital, Sabroom and out of them P.W. 6 has medically examined the prosecutrix and P.W. 11 made a dental examination to ascertain the age of the prosecutrix. P.W. 10 is the teacher-in-charge of Jalefa J.B. School and he proved the School certificate of the prosecutrix which is marked as Exbt. 5 wherein the date of birth of the prosecutrix has been shown as 21.05.1993. P.W. 12 is the SDJM, who examined the prosecutrix and recorded her statement under Section 164 of Cr.P.C. P.W. 13 is the O.C. of the P.S. who registered the case formally on receipt of the FIR P.W. 14 is the I.O. of the case. 4. After closure of the prosecution evidence, accused was examined under Section 313 Cr.P.C. and in his turn, the accused declined to adduce any defence evidence. 5. 4. After closure of the prosecution evidence, accused was examined under Section 313 Cr.P.C. and in his turn, the accused declined to adduce any defence evidence. 5. Defence case so far ascertained from the statement of the accused, made while examination under Section 313 Cr.P.C. and the evidence of prosecution witnesses, is that of denial of the prosecution case. It is the further case of the defence that the accused has a jewelry shop and that P.W. 5, the father of the prosecutrix had taken a loan from him and that loan amount was not re-paid by the father of the prosecutrix and on the date of occurrence, the accused rebuked the parents of the prosecutrix in filthy language for nonpayment of the loan amount and because of that enmity, a false case was instituted against the accused. 6. Learned Sessions Judge considering the evidence on record arrived at a conclusion that prosecution has failed to prove the case against the accused beyond reasonable doubt and therefore, acquitted him from the charges. 7. Having felt aggrieved, the present appeal is filed by the State. 8. Learned Addl. P.P., Mr. Debnath has submitted that the prosecutrix is an unmarried young girl and she made a clear statement that the accused tried to commit rape on her while she was on the way to her house from the house of the accused along with him, on the alleged date and time. Immediately, after the occurrence she reported the incident to her parents and her parents reported it to P.Ws. 1, 2, 3, 4 and 5. The victim prosecutrix has been corroborated by her parents and substantially corroborated by the neighbouring witnesses i.e. 1, 3, 4 and 5. There are some minor discrepancies in the statement of the witnesses which may be ignored for fair ends of justice. It is further submitted by learned Addl. P.P., that the prosecutrix simply alleged that the accused made her naked, laid her down and then tried to commit rape on her and under such circumstances; the medical evidence is of no importance. The prosecutrix was aged about 13 years at that point of time and it is quite unnatural that the parents of the prosecutrix will come to set a conspiracy to file a false case against the accused touching the future of the prosecutrix. The prosecutrix was aged about 13 years at that point of time and it is quite unnatural that the parents of the prosecutrix will come to set a conspiracy to file a false case against the accused touching the future of the prosecutrix. There is nothing in the evidence on record to draw an adverse inference about the nature and character of the prosecutrix and her parents and under such circumstances, submitted learned Addl. P.P., that the trial Court would rely on the evidence of the prosecutrix and her parents, corroborated by the evidence of other witnesses and would record an order of conviction. In support of his contention, learned Addl. P.P. referred the following case laws:- (i) Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat reported in AIR 1983 SC 753 ; (ii) State of Punjab Vs. Gurmit Singh & Ors. reported in (1996) 2 SCC 384 : AIR 1996 SC 1393 & (iii) State of Andhra Pradesh Vs. Gangula Satya Murthy reported in AIR 1997 SC 1588 9. Learned counsel, Mr. Datta appearing on behalf of the accused respondent, on the other hand, has submitted that the allegation made against the accused, is totally false which is apparently clear from the evidence of the prosecutrix, her parents and other witnesses. The prosecutrix herself made different statement at different stage. She was the source of the information about the offence alleged rape and based on her information her parents reported it to the neighbours and her mother lodged the FIR on the following morning. The information lodged by her mother, which has been proved as FIR, makes it abundantly clear that it is in total contradiction of what the prosecutrix stated before the Magistrate which has been recorded u/S. 164 Cr.P.C. and proved as Exbt. 4. There is no consistency in the statement of the witnesses. P.W. 3 made a clear and cogent statement that there was enmity between the accused and the father of the prosecutrix since the father of the prosecutrix took a loan from the accused and did not pay it and on the date of occurrence, the accused rebuked the parents of the prosecutrix with filthy language. It might happen, submitted learned counsel, Mr. Datta that because the accused rebuked the parents of the prosecutrix, with a view to retaliate, the parents of the prosecutrix made a false allegation against the accused. It might happen, submitted learned counsel, Mr. Datta that because the accused rebuked the parents of the prosecutrix, with a view to retaliate, the parents of the prosecutrix made a false allegation against the accused. He has also drawn attention to the medical evidence and the evidence of the I.O. According to the prosecutrix she was dragged inside the jungle forcefully after gagging her mouth. If it was so happened, the prosecutrix might sustain some injuries on her person while she was dragged inside the jungle by the accused with force whereas the doctor P.W. 6 who examined the prosecutrix on the following morning at 10:00 a.m. found no injury on the person of the prosecutrix. Under such circumstances, the prosecution case and the story stated by the prosecutrix proved to be improbable and unnatural and therefore, learned Sessions judge arrived at a conclusion that the prosecution case was doubtful and therefore given the benefit of doubt to the accused. It is contended by learned counsel, Mr. Datta that it was quite improbable for the prosecutrix, a young girl, to visit the house of the accused which was far away from the house of the prosecutrix while there were other houses very near to the house of the prosecutrix. At such hours of night, the prosecutrix went to the house of the accused to call him, seems to be quite un-natural and there is no evidence on record to show that anybody found the prosecutrix going towards the house of the accused or that they were found coming together towards the house of the prosecutrix at night All those circumstances cumulatively made the prosecution case as clearly doubtful and therefore, the finding of the learned Sessions Judge does not deserve any interference. It is finally contended by learned counsel, Mr. Datta that this Court need not re-appreciate the evidence since the judgment of the trial Court is clear and cogent and the statement of all the witnesses have been discussed and under such circumstances though it is an appeal against acquittal, the Court need not re-appreciate the evidence to arrive at a contrary finding to that of the finding recorded by the learned Sessions Judge. It is the submission of Mr. It is the submission of Mr. Datta, while the learned Sessions Judge arrived at a reasonable finding that the prosecution case is doubtful and given the benefit of doubt and when such a view was possible, taking into consideration of the evidence on record, the appellate Court need not disturb the finding of the trial Court. 10. Almost in all cases of sexual offence, the prosecutrix is the sole witness of the occurrence. If her evidence inspires confidence, a conviction can be recorded even without further corroboration. A victim of sexual offence cannot be treated as an accomplice. She should be treated at par as an injured witness, In the case of Gurmeet Singh (supra), the Supreme Court has observed that the testimony of the prosecutrix must be accepted in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with the case of sexual molestation. 11. In the case of Bharwada Bhoginbhai Hirjibhai (supra), the Supreme Court has observed that minor discrepancies in the statement of the prosecutrix and in the evidence of other witnesses, should be ignored if, such discrepancies do not touch the basic version of the prosecution witnesses. It is a settled principle of law that if the evidence of the prosecutrix inspires confidence, it must be relied upon without asking for corroboration in material particulars. It is quite rare in our society that an unmarried young woman will come out falsely to make an allegation touching her chastity which will have a great impact on her future. It is also rare that parents of such a young girl would come out easily to make a false allegation against a person through their daughter touching her chastity out of vengeance. Though it is rare but there are cases of false allegation of rape with a view to meet vengeance and enmity. The statement of the prosecutrix, therefore, requires to be closely scrutinized in the given facts and circumstances of a case and it is not at all a rule that whatever is stated by the prosecutrix, is to be accepted as a gospel truth. 12. The statement of the prosecutrix, therefore, requires to be closely scrutinized in the given facts and circumstances of a case and it is not at all a rule that whatever is stated by the prosecutrix, is to be accepted as a gospel truth. 12. In a case of appeal against acquittal, the appellate Court should always give proper weight and consideration to the finding of the trial Court Specially, it should consider the views of the trial judge as to the credibility of the witnesses, the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that, He has been acquitted at the trial, the right of the accused to the benefit of any doubt and the slowness of an appellate Court in disturbing the finding of feet arrived by a trial Judge who had the advantage of seeing the witnesses. Generally, an order of acquittal strengthens the presumption of innocence and it should not be interfered with lightly if there are two views on evidence which are reasonably possible. The High Court is not required to interfere merely because it feels that it would as a trial Court had taken a different view. The High Court will certainly interfere if it finds that the judgment is manifestly erroneous and that the trial Court has acted with material irregularity or its appreciation of evidence lacks coherence or it has made assumptions which are unwarranted or its evaluation of evidence is such as to shock the conscience of a prudent man and vitiate the sense of justice. The High Court in an appeal has full power to review at large, the evidence on which the order of acquittal has been founded and to reach the conclusion contrary to what has been arrived at by the trial Court. I cannot agree with the submission of learned counsel, Mr. Datta that the High Court is not required to re-appreciate the evidence since the trial Court has appreciated the evidence with detailed discussions. The High Court is to look into the evidence afresh with a view to arrive at a conclusion independently as to whether the finding of the trial Court is justified or that a contrary finding is required. The Supreme Court in the case of Bodh Raj Vs. The High Court is to look into the evidence afresh with a view to arrive at a conclusion independently as to whether the finding of the trial Court is justified or that a contrary finding is required. The Supreme Court in the case of Bodh Raj Vs. State of Jammu & Kashmir reported in 2002 CrI.L.J. 4664, observed that it is the settled principle that if two views are possible, the one in favour of the accused has to be preferred. But where the relevant materials have not been considered to arrive at a view by the trial Court, certainly the High Court has a duty to arrive at a correct conclusion taking a view different from the one adopted by the trial Court The Supreme Court has made it clear that in an appeal against acquittal, the paramount consideration of the Court would be to avoid miscarriage of justice, arising from acquittal of guilty which is no less man from conviction of an innocent. 13. Let us have a glimpse to the evidence of the prosecutrix. In her deposition she stated that on the date of occurrence, at about 9:00 p.m. her father after return from market started altercation with her mother. On seeing the same she went to the house of the accused to request him to come to their house and to solve the problem. While they (prosecutrix and the accused) had been returning towards her house, the accused in the mid way put his palm over her mouth and dragged her towards a tilla by the side of the road. The accused tore her wearing apparels and made her naked. The accused also made himself naked and tried to penetrate his penis in her vagina. She managed to escape from the clutch while the accused was busy and rushed to her house and narrated the entire matter to her parents. Thereafter her parents intimated the matter to the villagers. On the next day police officer came to their house and seized her wearing apparels. She proved her signature on the seizure list of the seized wearing apparels. The police officer produced her before the medical officer of Sabroom Hospital and she was medically examined by the medical officer. She was also produced before the Magistrate for recording her statement and accordingly, her statement was recorded by the Magistrate and she proved her signature in the statement. The police officer produced her before the medical officer of Sabroom Hospital and she was medically examined by the medical officer. She was also produced before the Magistrate for recording her statement and accordingly, her statement was recorded by the Magistrate and she proved her signature in the statement. In cross examination, she stated that she did not tell the Magistrate that she had managed to escape from the clutch of the accused forcibly. She also admitted that she did not state to the I.O. and the Magistrate that the accused dragged her from the midpoint of the road towards her house and that she told that the accused dragged her away near from their house gate. She denied the suggestion that she did not at all visit the house of the accused on the night and that no such incident occurred and that she made a false statement at the instance of her parents because of enmity on the loan issue. 14. Let us now have a glimpse to Exbt. 4, the statement of the prosecutrix recorded under Section 164, Cr.P.C. by the Magistrate. P.W. 12, learned SDJM proved the statement stating that statement was recorded as stated by the prosecutrix and it was read over and explained to her and she admitted to have correctly written. The statement was recorded on 13.10.2006. The prosecutrix stated on Monday last on 10 O'clock at night her father came to him and started scolding her as well as her brothers and sisters. Out of fear she went out of the house and went to the house of accused Tapan Banik who was known to them with a view to bring him to their house. She went and told him to come to their house. His mother forbade him from going out at night. Then she started for her home again and the accused Tapan followed her. When she reached almost the gate of her house, accused Tapan came from behind, gagged her mouth and dragged her towards the jungle. There the accused spread a napkin on the ground. Forcefully laid her down on the ground, removed her clothes and tried to insert his male organ in her vagina but since she offered resistance he could not commit rape. Thereafter the accused tied her to a tree with a napkin and also fastened her mouth with her scarf. There the accused spread a napkin on the ground. Forcefully laid her down on the ground, removed her clothes and tried to insert his male organ in her vagina but since she offered resistance he could not commit rape. Thereafter the accused tied her to a tree with a napkin and also fastened her mouth with her scarf. The accused continuously threatened her that she should not inform the incident to anybody else. After sometime the accused unfastened her and thereafter she went to her house and hide herself. Her mother then went out in search of her and met accused Tapan on the road. Thereafter when her mother returned home, she told her mother about the entire incident. 15. The above statement was recorded on oath by the Magistrate at the earliest opportunity which seems to be quite in contradiction what she stated before the Court in respect of the occurrence. In her cross, examination before the Court, she clearly admitted that she stated before the Magistrate as well as the I.O. that she was dragged away by the accused from a place near her house gate. Whereas, in her evidence she stated that from mid way she was dragged away by the accused. In her deposition, she stated nothing that the accused tied her with a tree in the jungle and that her mouth was fastened with her scarf and thereafter she was continuously threatened and then let her off and thereafter went to her house and hide herself and her mother went out in search of her and met Tapan on the road etc. Parents of the prosecutrix i.e. P.Ws. 8 and 9 simply stated about the quarrel between themselves and that the prosecutrix went to the house of the accused and on her return she reported about the occurrence. They stated that the prosecutrix informed them that she was dragged away by the accused while on mid way and that the accused tried to commit rape on her. Since the prosecutrix made different statement at different stage, her statement itself does not inspire confidence and it seems to be quite improbable what the prosecutrix has stated before the Court, if it is closely read with her previous statement recorded by the Magistrate under Section 164, Cr.P.C. 16. Further, as I find the medical evidence did not support the case of the prosecutrix in any manner. Further, as I find the medical evidence did not support the case of the prosecutrix in any manner. P.W. 6 examined the prosecutrix on the following day at about 10:00 a.m. i.e. within 12 hours of the alleged occurrence. The prosecutrix stated that she was dragged inside the jungle forcefully after gagging her mouth and she was forcefully laid down in the jungle and was made naked before the attempt made by the accused to commit rape. The Doctor submitted a detailed report which is marked as Exbt. 3. In his evidence he stated that he found no sign or symptom of sexual intercourse and there was no sign of any struggling over the body of the prosecutrix. No injury was found on her sex organ or other part of the body. If we have to appreciate the story of the prosecutrix that she was dragged inside the jungle and made naked and forcefully laid on the ground in the jungle, she would definitely suffer some sorts of injury while she was dragged in the jungle and while resisting the accused but absence of any injury on the person of the prosecutrix suggests that her statement might not be correct and it raises a reasonable suspicion about the authenticity of the allegation. 17. P.Ws. 8 and 9, the parents of the prosecutrix stated that they have informed the neighbours. According to them P.Ws. 1, 3, 4 and 5 were informed. P.W. 1 stated that on the night of the occurrence parents of the prosecutrix went to their residence and informed them that the accused had gone to their house and had forcefully tried to outrage the modesty of the prosecutrix. This statement of P.W. 1 is in total contradiction of what the prosecutrix and her parents stated. Prosecution did not controvert it in course of examination and hence, it makes out a different story than that what has been stated by the prosecutrix and her parents. P.W. 3 stated that on the night of occurrence at about 8:30/9:00 p.m. the parents of the prosecutrix went to her house and intimated that the accused Tapan had gone to their house and had rebuked her (informant) in filthy language. She did not give any statement to the police officer. Mother of the prosecutrix further stated that accused Tapan had forcefully tried to commit rape on the prosecutrix. She did not give any statement to the police officer. Mother of the prosecutrix further stated that accused Tapan had forcefully tried to commit rape on the prosecutrix. In cross examination she stated that the accused has a jewelry shop and that the husband of the informant had enmity with the accused Tapan as he (P.W. 9) did not repay the loan amount to Tapan. She also stated that the informant (P.W. 8) told her that on the same day the accused had rebuked them in filthy language for having the loan amount from them. The statement of P.W. 3 in her examination in chief is in total contradiction of what is stated by the prosecutrix and her parents rather, in her statement she clearly stated that the father of the prosecutrix took a loan from the accused and on that issue the accused rebuked the informant on the evening of the night of occurrence with filthy language. The defence case is, therefore, supported with the evidence of the prosecution witnesses and while such evidence is not controverted by the prosecution while the witness was in the witness box, the defence is entitled to get the benefit of such statement of prosecution witness. 18. P.W. 4 was tendered by the prosecution and there is nothing in his deposition. P.W. 5 stated that the parents of the prosecutrix went to his house and requested him to come to the house of Lilu Malakar (P.W. 1) and accordingly, he went to the house of Lilu Malakar and Lilu Malakar in presence of informant stated him that the accused tried to commit rape on the prosecutrix. P.W. 1 nowhere stated in her deposition that P.W. 5 went to her house and she told P.W. 5 about the occurrence. Under such circumstances, the evidence of P.W. 5 appears to be of no importance at all. 19. The evidence of the neighbouring witnesses, therefore, is in no way supporting the case of the prosecutrix. Might be, to set up a probable case, P.Ws. 8 and 9 went to the house of the neighbouring witnesses but the statements of neighbouring witnesses, does not support the case of the prosecution and hence, the accused is entitled to get the benefit of doubt. 20. There are some other intrinsic circumstances which need consideration regarding probability of the prosecution case. Exbt. 8 and 9 went to the house of the neighbouring witnesses but the statements of neighbouring witnesses, does not support the case of the prosecution and hence, the accused is entitled to get the benefit of doubt. 20. There are some other intrinsic circumstances which need consideration regarding probability of the prosecution case. Exbt. 8 and 9 are the hands sketch map and index prepared by I.O. In his evidence P.W. 14, the I.O. stated that the house of Ratan Das is the nearest house from the house of the prosecutrix. Hand sketch map shows the house of Ratan Das at point C and I.O. has recorded that it was about 200 cubits away from the place of occurrence. In his evidence I.O. stated that there were two more houses between the house of Ratan Das and the house of the prosecutrix. In the hand sketch map, the house of the accused has been shown at point 'G' and in the index of the map I.O. has clearly noted that the house of the accused was 1 K.M. away from the place of occurrence. It is quite improbable that the prosecutrix, a young girl, travelled the house of the accused alone 1 K.M. away, to call him to come to their house to mitigate the quarrel of her parents while the house of Ratan Das and other witnesses were adjacent to the house of the prosecutrix and none of them were informed. This circumstance made the prosecution case totally improbable and in the circumstances, learned Sessions Judge has rightly recorded an order of acquittal giving the accused the benefit of doubt. The presumption of innocence multiplies in the event an order of acquittal is recorded. The prosecution has failed to prove the case beyond reasonable doubt and hence, the order of acquittal recorded by the learned Sessions Judge does not deserve interference. 21. Accordingly, the criminal appeal filed by the State-appellant stands dismissed. 22. The judgment and order of acquittal passed by the learned Sessions Judge is affirmed. 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