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2014 DIGILAW 197 (TRI)

Rukan Miah v. State of Tripura

2014-05-28

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta; C.J.:- This appeal by the convict Rukan Miah is directed against the judgment dated 24.05.2008 delivered by the learned Sessions Judge, North Tripura, Kailasahar, whereby he convicted the accused of having committed offences punishable under Section 457/376(1) of the Indian Penal Code. The accused was sentenced to undergo seven years rigorous imprisonment and to pay fine of Rs. 5,000/- in respect of the offence punishable under Section 376(1) of Indian Penal Code and in default of payment of fine to undergo rigorous imprisonment for one year. With regard to the offence under Section 457 of Indian Penal Code, the accused was directed to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo rigorous imprisonment for six months. Both the sentences were ordered to run concurrently. Aggrieved by the said judgment, the appellant has filed this appeal. 2. The case was set in motion on the basis of a complaint lodged by the prosecutrix with the Police Station, Kailasahar, North Tripura on 14.01.2007 wherein she alleged that on the night intervening 11.01.2007 and 12.01.2007 at about 2.00 a.m. the accused Rukan Miah entered into her house by breaking open the bamboo door and, thereafter, kept a knife on the neck of her four month old minor child and then raped her. After she was raped the prosecutrix raised an alarm and her mother in law came running. Since her husband was not at home she did not file the complaint immediately. 3. On the basis of this complaint (Exbt. P-2), the FIR (Exbt. P-2/4) was lodged. Thereafter the prosecutrix was got examined by a doctor. Police carried out investigation and the accused was arrested and charged with having committed the offences, as aforesaid. He has been convicted and hence the present appeal. 4. 3. On the basis of this complaint (Exbt. P-2), the FIR (Exbt. P-2/4) was lodged. Thereafter the prosecutrix was got examined by a doctor. Police carried out investigation and the accused was arrested and charged with having committed the offences, as aforesaid. He has been convicted and hence the present appeal. 4. Sri Nath, appearing for the convict has raised the following nine contentions before me,- (i) that there is unexplained delay in lodging the FIR; (ii) that the story of the ’kupi batti’ is not mentioned in the FIR and there is no explanation as to how the prosecutrix recognized the aggressor; (iii) that whereas the prosecutrix states that her mother in law came immediately after the occurrence, in her statement in Court she has stated that she informed her mother in law about the occurrence next day in the morning; (iv) that the medical evidence does not support the story of rape; (v) that there is no injury on the person of the victim; (vi) that Section 164 Cr.P.C. statement admittedly recorded has not been proved and the Magistrate has not been examined; (vii) that the neighbours have not been examined and there are no independent witnesses; (viii) that the wearing apparel of the victim were not seized; (ix) that the door which was allegedly broken was not seized and no offence under Section 457 was made out. In the alternative, it is submitted that a lenient view of the matter be taken and the sentence be reduced. 5. The prosecutrix appeared in the witness box as PW-4. She repeated what has been stated in the complaint and stated that while she was asleep along with her two children. The accused entered into her house by cutting the bamboo door. She recognized him in the light of the burning ’kupi batti. According to her the accused kept a knife on the neck of her baby, aged about four months, and threatened the prosecutrix that if she raised any alarm he would kill the child. Thereafter he raped the prosecutrix. As soon as he had gone, the prosecutrix raised an alarm and started to cry. Then her mother in law came from her hut and she also raised an alarm. She then reported the matter to her mother in law and informed her that she had been raped by the accused. Thereafter he raped the prosecutrix. As soon as he had gone, the prosecutrix raised an alarm and started to cry. Then her mother in law came from her hut and she also raised an alarm. She then reported the matter to her mother in law and informed her that she had been raped by the accused. She also states that since her husband and father in law were not in the house, she did not go to the police station for lodging any complaint. After three days of the incident she went to lodge the complaint after she had talked to her father. According to her she talked to her father over telephone and on his advice lodged the complaint. 6. The law is well settled that conviction in a case of rape can be based only on the statement of the prosecutrix, so long as the story of the prosecutrix inspires confidence. If the story of the prosecutrix is trust worthy then even without any corroborative evidence, the accused can be convicted. 7. As far as the present case is concerned, there is admittedly delay of about three days is lodging the FIR. The prosecutrix has given an explanation for the delay. Her explanation is a plausible explanation and it cannot be rejected outright. Assuming that there is delay, the same by itself is not fatal to the prosecution. When there is a delay in lodging an FIR all that is required is that the prosecution evidence has to be scrutinized with greater care and caution because there is a probability of a false story having been concocted during this period. In case, however, nothing has changed and no prejudice has been caused then merely because there is delay is not a ground to acquit the accused. It is only a ground to scrutinize the evidence with greater care and caution. 8. One must remember that in Indian society no woman is willing to go to the police station to lodge a complaint of rape because sadly in Indian society it is the victim who suffers more than the perpetrator of the crime. It is the victim who is ostracized from society whereas the criminal continues to behave like a macho person. These are the hard realities of life and cannot be ignored by the Courts of law. It is the victim who is ostracized from society whereas the criminal continues to behave like a macho person. These are the hard realities of life and cannot be ignored by the Courts of law. The prosecutrix went to lodge the complaint only after her father advised her to do so and, therefore, in my view though there is delay, it cannot be said that it is a ground to acquit the accused. 9. Next comes the question of identification of the accused. It has been urged by Mr. Nath that there is no story of any lamp being lit in the FIR. That is correct. At the same time an FIR is not supposed to be an entire encyclopedia of the crime. Regrettably in the state of Tripura, this Court has observed time and again that the police do not record an FIR until the victim or some close relative of the victim lodges a written complaint. Illiterate people cannot know how a criminal complaint is to be drafted and they rely upon clerks of advocates or other semi-literate persons who help them. It is the job of the police to have recorded the complaint and to have ask relevant questions from the complainant when the complaint was recorded. 10. For the sake of deciding this case, this Court is starting with the presumption that no light was there. Even if there is no light, the victim of a rape can identify the accused especially when the accused is a neighbour and closely known to the victim. Admittedly the accused Rukan Miah is a neighbour running a shop close to the house of the prosecutrix. Even if in the dead dark of night a lady is raped by a person who is a neighbour she would be in a position to identify the accused. Therefore, whether there was a ’kupi batti’ or not since Rukan Miah was known to the victim much prior to the incident, her identification of the accused is without any doubt. 11. At this stage, it would be pertinent to mention that no suggestion has been put to the prosecutrix that there were any inimical relations between her and the accused. Why would the lady foist a false case upon the accused? 11. At this stage, it would be pertinent to mention that no suggestion has been put to the prosecutrix that there were any inimical relations between her and the accused. Why would the lady foist a false case upon the accused? If the defence had put some suggestions or brought on record some material to show that there was previous enmity or discord between the parties, such argument could have been accepted. However, when not even a suggestion in this behalf has been put, it is apparent that the defence has accepted the case of the prosecutrix that the relations prior to the incident were cordial. 12. Much reliance has been put on the statements of the prosecutrix in her cross examination that she informed her mother in law next day about the incident. Both in the complaint as well as in the examination in chief, the prosecutrix has clearly stated that immediately after she was raped and the accused went away, she raised an alarm and her mother in law came to the spot, then she informed her mother in law that she had been raped by the accused. In cross examination she has stated that on the following morning she reported the incident to her mother in law but in brackets it is written sister-in-law of father-in-law. The Court should have been more careful and should have clarified the names but it is apparent that the mother in law she is talking about the next day is not the real mother in law but her mother in law in relationship. Therefore, there are two mother in laws,-(i) the real mother in law who came to the spot immediately after the occurrence and (ii) the mother in law in relationship who was informed about the incident, the next day. 13. As far as the testimony of the doctor and the fact that there is no injury on the person of the prosecutrix are concerned, both these issues can be decided together. The prosecutrix is a married lady having two children. She was therefore obviously used to sexual intercourse and there would be no injuries on her person unless she could have resisted the attack on her. Her version is that the accused put a knife on the throat of her four month old child and threatened to kill her child. The prosecutrix is a married lady having two children. She was therefore obviously used to sexual intercourse and there would be no injuries on her person unless she could have resisted the attack on her. Her version is that the accused put a knife on the throat of her four month old child and threatened to kill her child. If she had resisted then her child would have been killed. One can imagine a situation that when a four month old child of a mother is being threatened then the woman would not be in a position to resist and there would obviously be no injuries when there is no resistance. As such the accused can get no benefit of this. 14. As far as the non-examination of the Magistrate is concerned, all that I can say is that the police has been very casual while investigating the matter and the prosecution has been equally casual while examining the witnesses. The question that arises is whether this testimony of the prosecutrix inspires confidence or not. She has withstood her cross examination and has consistently stated that she was raped by the accused. She has been supported by her mother in law who has stated that after the occurrence she was told by the prosecutrix that she had been raped by the accused Rukan Miah. Mere non examination of the Magistrate would not be a sufficient ground to acquit the accused especially when no reliance has been placed on the statement under Section 164 Cr.P.C. Similarly the non examination of the neighbours is not fatal since I am of the view that the statement of the prosecutrix is self-sufficient to convict the accused. 15. No doubt, as urged by Sri Nath, the wearing apparel of the prosecutrix should have been seized, vaginal swaps should have been taken and the clothes as well as the vaginal swaps should have been sent for forensic examination but this is a fault of the police. In case the police is totally negligent in conducting the investigation, justice cannot be denied to the prosecutrix. If there is sufficient material on record without this corroborative evidence to prove that the prosecutrix has been subjected to this heinous crime, the accused can be convicted. 16. The last submission of Sri Nath is that the door which was broken out was not produced. If there is sufficient material on record without this corroborative evidence to prove that the prosecutrix has been subjected to this heinous crime, the accused can be convicted. 16. The last submission of Sri Nath is that the door which was broken out was not produced. Again the police has been remiss in performing its duty. However, whether the door was broken upon or open, the accused had no business of entering the house of the prosecutrix at the dead of night and he had entered the house and committed the offence of larking house trespass at night with the intention of committing a crime. Therefore, whether the door was broken open or pushed open is immaterial and the accused has to be held guilty of having committed an offence punishable under Section 457 of Indian Penal Code. 17. In view of the above discussion, I uphold the judgment of the learned trial Court and dismiss the appeal. As far as quantum of sentence is concerned, I am not at all in favour of interfering in the same since the Court below has in fact imposed the minimum sentence which could be imposed upon him. 18. The criminal appeal is hereby dismissed. Send down the LCRs forthwith.