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Tripura High Court · body

2014 DIGILAW 24 (TRI)

Babul Laskar v. State of Tripura

2014-01-21

S.C.DAS

body2014
JUDGMENT S.C. Das, J. This criminal appeal under Section 374 of Cr.P.C., is directed against the judgment and order of conviction and sentence dated 28.11.2008, passed by learned Addl. Sessions Judge, Belonia, South Tripura District, in Sessions Trial No. 29(ST/B) of 2008, where-under learned Addl. Sessions Judge found the accused-appellant guilty of committing offence punishable under Section 376(1) of IPC and sentenced him to suffer R.I. for 7(seven) years and to pay a fine of ` 25,000/- (twenty fine thousand) in default of payment of fine, to suffer further S.I. for 1 (one) year. Fact of the case gathered from the records may summerised thus:-- 1.1. On 02.11.2006 'Aparna' (actual name kept concealed), P.W.1 (herein-after called as victim-prosecutrix), a married woman, aged about 27 years lodged an FIR in writing before the O.C. of Baikhora P.S. alleging inter alia, that on the previous day i.e. on 01.11.2006 in the evening she went out of her house to find out/search a calf which was missing. At that time, she found the accused-appellant Babul Laksar on the road and Babul asked her as to what she was looking for, to which she told Babul about the missing of the calf. Babul told her that a calf was kept tied in their cattle shed and she may go and see whether that calf belonged to her or not. Accordingly, she went to the house of the accused and except accused there was none else in the house at that time. She entered the cattle shed and accused also entered the cattle shed but the accused closed the door, caught her forcibly, assaulted and outraged her modesty. The accused threatened her not to disclose the fact to anybody and assuring that she will not disclose it to anybody else, she somehow came out of the hut and returned home. She reported the incident to her husband and thereafter her husband reported it to the guardian of the accused and to village Panchayat but the Panchayat did nothing. Therefore, on the following day she lodged the FIR. 1.2. O.C., Baikhora P.S. accordingly registered Baikhora P.S. Case No. 85/06, under Section 376 read with Section 511 of IPC and Section 506 of IPC. S.I. Jaharlal Debbarma was entrusted with the charge of investigation and in course of investigation she was produced before the Medical Officer for her medical examination and accordingly, medical examination was done. 1.2. O.C., Baikhora P.S. accordingly registered Baikhora P.S. Case No. 85/06, under Section 376 read with Section 511 of IPC and Section 506 of IPC. S.I. Jaharlal Debbarma was entrusted with the charge of investigation and in course of investigation she was produced before the Medical Officer for her medical examination and accordingly, medical examination was done. Her vaginal swab was also collected and was examined in the Forensic Laboratory and report was collected and placed on record. She was also produced before the Judicial Magistrate 1st Class, Belonia and her statement was recorded under Section 164 of Cr.P.C. on 03.11.2006. The accused was also arrested from his house and was medically examined and the medical report of the accused was also placed on record. 1.3. On completion of investigation, I.O. submitted charge sheet against the accused for commission of offence punishable under Sections 376 and 506 of IPC. Cognizance was taken on the basis of the police report and on commitment of the case to the Court of Sessions, learned Sessions Judge framed charges under Section 376(1) and Section 506 of IPC to which the accused pleaded not guilty and claimed to be tried. 1.4 Prosecution examined 12 witnesses to prove the charges and also proved the FIR, seizure list of wearing apparels of the victim-prosecutrix and some of the previous statements of the witnesses who were declared hostile by the prosecution. Medical examination report, vaginal swab examination report, medical examination report of the accused though were placed record but those were not proved and the Medical Officers were also not examined. 1.5 After closure of the prosecution evidence, accused was examined under Section 313, Cr.P.C. and in his turn accused declined to adduce any defence evidence. Defence case is the denial of the prosecution case and it is further stated at the time of cross examination of the prosecution witnesses that out of enmity accused has been falsely implicated. 1.6 Learned Addl. Sessions Judge found the accused guilty of the charge framed against him under Section 376(1) of IPC and sentenced him as stated hereinbefore. He has, however, acquitted the accused from the charge under Section 506 of IPC. 2. Hence the present appeal. 3. Learned counsel, Mr. 1.6 Learned Addl. Sessions Judge found the accused guilty of the charge framed against him under Section 376(1) of IPC and sentenced him as stated hereinbefore. He has, however, acquitted the accused from the charge under Section 506 of IPC. 2. Hence the present appeal. 3. Learned counsel, Mr. Sankar Lodh appearing on behalf of the appellant has submitted that according to the prosecution, the incident occurred on 01.11.2006 in the evening time but the FIR was lodged on 02.11.2006 at about 12-10 hours. The delay has not been explained and therefore adverse inference may be drawn against the prosecution. The next argument advanced by learned counsel, Mr. Lodh is that in the FIR, lodged by the prosecutrix herself, there is no allegation of rape. She only stated that the accused caught hold her and assaulted her and therefore, O.C., P.S. registered the case under Section 376 read with Section 511 of IPC. In her statement recorded by I.O. under Section 161 of Cr.P.C., she stated about outrage of modesty. But in her statement recorded under Section 164 of Cr.P.C. for the first time she stated that she was raped by the accused. While the victim-prosecutrix made different statements at different stage about the alleged rape, the trial Court was supposed to disbelieve the victim-prosecutrix and record an order of acquittal and would give the accused benefit of doubt. It is also submitted by learned counsel, Mr. Lodh that all other witnesses are hearsay witnesses who were alleged to have reported about the occurrence by the victim-prosecutrix and her husband (P.W.3) and out of the other witnesses P.Ws. 6 and 9 were declared hostile. P.W.11 simply stated about the outrage of modesty alleged to have reported to him. While prosecution evidence itself is fractured with contradiction and inconsistencies, the trial Court arrived at a wrong finding of guilt of the accused. It is again contended by learned counsel, Mr. Lodh that prosecution purposely did not examine the medical officer whereas medical examination report, vaginal swab examination report of the prosecutrix clearly reveals that there was no case of rape. Vaginal swab collected was examined pathologically and no spermatozoa was found. It is again contended by learned counsel, Mr. Lodh that prosecution purposely did not examine the medical officer whereas medical examination report, vaginal swab examination report of the prosecutrix clearly reveals that there was no case of rape. Vaginal swab collected was examined pathologically and no spermatozoa was found. The wearing apparels of the victim i.e. her blouse and petty coat were sent to the State Forensic Science Laboratory and the report was collected and placed on record and the forensic report shows that there was no seminal stain or spermatozoa of human origin in those wearing apparels of the victim which according to the prosecution, the victim prosecutrix was wearing at the time of occurrence. In view of the inconsistencies and defects in the prosecution case, in the statement of the prosecutrix as well as other witnesses, learned counsel prayed for an order of acquittal. 4. Learned Public Prosecutor, Mr. Ghosh on the other hand, has submitted that the prosecutrix is a married woman and she narrated the fact of alleged sexual assault. It is quite unusual that an illiterate village woman of the stature of the prosecutrix will come up to make a false allegation touching her chastity. Mr. Ghosh, learned P.P. fairly admitted that there are some inconsistencies about the allegation of rape and that at the first instance in the FIR she did not allege about rape but she alleged about brutal assault and in her subsequent statement recorded by the Magistrate, she stated about the rape committed on her. The allegation of rape has not been supported by the medical evidence, still if the victim is believed, basing on her sole statement, an order of conviction may be recorded. Learned trial Judge placed implicit reliance on the statement of the victim and arrived at a conclusion of guilt of the accused and since there is evidence on record in support of coming to the conclusion of guilt, such finding of the trial Court may not be disturbed in appeal. In the alternative, it is also submitted by learned Public Prosecutor that if the charge of rape is not believed, at least the charge of outrage of modesty cannot be disbelieved and the accused in that event may be held guilty of committing the offence of outrage of modesty. 5. Out of the 12 witnesses altogether examined by the prosecution, P.W.1 is the prosecutrix herself. 5. Out of the 12 witnesses altogether examined by the prosecution, P.W.1 is the prosecutrix herself. P.W.2 is her elder brother-in-law (husband's elder brother) and P.W.3 is her husband. Out of the rest witnesses P.Ws. 5 and 8 are seizure witnesses of wearing apparels of the victim i.e. the seizure of petty coat and blouse. P.Ws. 4, 6, 7, 9 and 11 are all neighbourers and out of them P.W.6 and 9 were declared hostile by the prosecution and they did not support the prosecution case. Their previous statements recorded by I.O. under Section 161, Cr.P.C. have been proved as Exbt. P/6 and Exbt. P/7 respectively. P.W.10 is the I.O. of the case. 6. According to the prosecution, the accused and the victim prosecutrix are the residents of the same neighborhood. In her cross examination the victim prosecutrix stated that there were about 25 houses in between her house and the house of the accused. Defence in course of cross examination advanced some suggestion that out of enmity and ill relation the accused has been falsely implicated by the prosecutrix and her husband in a false case. 7. Rape is a most hated crime. It is a crime against basic human rights of a woman. It violates her right to life. It is an offence committed mostly in isolation from the sight of others and eye witness is seldom available in cases of rape. The evidence of a prosecutrix is considered at par with an injured witness whose presence at the spot is probable. If her sole evidence inspire confidence and not shaken in cross examination or otherwise, it is enough to arrive at a conclusion of guilt. 8. There is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix if there is absence of circumstances which mitigate her veracity. 9. In the case of State of Punjab Vrs. Gurmit Singh & Ors. reported in: (1996) 2 SCC 384 , the Supreme Court has observed thus:-- Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. Gurmit Singh & Ors. reported in: (1996) 2 SCC 384 , the Supreme Court has observed thus:-- Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember 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 his 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, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. 10. In the case of Ranjit Hazarika v. State of Assam reported in: (1998) 8 SCC 635 the Supreme Court again observed thus:-- The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. 11. In the case of Bodhisattwa Gautam v. Miss Subhra Chakraborty reported in AIR 1996 SC 922 , the Supreme Court had the occasion to observe that-- Rape is not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. 12. In the case of Rajoo & Ors. v. State of M.P. reported in AIR 2009 SC 858 , a case of gang rape, the Supreme Court had the occasion to observe that the evidence of the prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication. 13. We may gainfully refer here paragraph 9 of the judgment which reads as follows:-- 9. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. Reference has been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined. 14. In the case at hand, the prosecutrix lodged the FIR on the following day of the date of occurrence. It was scribed by P.W.12, Netai Biswas. The prosecutrix in her examination-in-chief stated that Netai Biswas wrote the complaint petition at her dictation and she signed the complaint petition when it was read over to her and she proved the complaint as Exbt. P-1/1. Contents of FIR, therefore, is presumed to have proved. Admittedly in the FIR, the prosecutrix did not make any allegation of rape. On 03.11.2006 she was produced before the Judicial Magistrate 1st Class, Belonia and for the first time before the Magistrate she alleged that she was raped by the accused. The accused and the victim prosecutrix are co-villagers. According to the prosecutrix her house and house of the accused were intervened by about 25 more houses. Prosecution examined several neighbourers of the prosecutrix but no witness examined to show that anybody found the prosecutrix going house to house to search her calf. In her deposition prosecutrix stated that she entered 2/3 houses to search her calf but could not find out it. None of those house holders examined. Not even a passerby found the prosecutrix searching the calf in the village at evening time. In her deposition prosecutrix stated that she entered 2/3 houses to search her calf but could not find out it. None of those house holders examined. Not even a passerby found the prosecutrix searching the calf in the village at evening time. No witness examined to show that the accused was found in front of his house on the road and the victim prosecutrix entering in the house of the accused along with the accused. No witness also examined to show that the prosecutrix coming out of the house of the accused. The prosecutrix also raised no alarm while she came out of the house of the accused. It might happen that the prosecutrix at the outset, out of shy did not raise alarm. But immediately thereafter she came to her house and reported her husband. According to the prosecutrix and her husband (P.W.3), they went to the Panchayat Members and the father of the accused, but no Panchayat Member or father of the accused to whom the incident alleged to have reported have been examined. This inconsistency in the prosecution story creates a doubt about the authenticity of the prosecution case. 15. The prosecutrix was a married woman. It may be presumed that she was well accustomed in sex with her husband. It was, therefore, natural for her to say as to whether she was raped or not at the first instance. While the prosecutrix at the first instance did not say about rape, her subsequent statement about rape generally creates a suspicion and therefore her sole statement on the principle that she should be placed at par as an injured witness cannot stand and therefore, some sorts of corroboration requires. The best corroboration in such case is the medical evidence. The prosecutrix was produced before the medical officer and she was examined by the medical officer of Jolaibari PHC and the report was collected by the I.O. but neither the report is exhibited nor the medical officer examined by the prosecution. It was the duty of the prosecution to examine all the prosecution witnesses including medical officer for fair ends of justice. It was the duty of the prosecution to examine all the prosecution witnesses including medical officer for fair ends of justice. Since the medical reports were placed on record and those are lying with the L.C. record, at the instance of the defence, have a glimpse to the medical report wherein the doctor clearly mentioned that there was no sign of violence externally or internally in the private parts or any other parts of the body. The medical report clearly rules out the allegation of rape. The vaginal swab was examined by a medical officer (Pathologist) of Tripura Sundari District Hospital, Udaipur, and no spermatozoa found in the vaginal swab. The victim prosecutrix was wearing a petty coat and a blouse and according to her, Exbt. M.O.1 series, i.e. petty coat and blouse she was wearing at the time of occurrence, she produced the same to the I.O. which was seized and was sent to State Forensic Science Laboratory to find out evidence of rape and the report which is admissible in evidence under Section 293 of Cr.P.C. shows that the Scientific expert found no seminal stain or spermatozoa in the wearing apparels. The accused was arrested immediately after the FIR was lodged and he was also medically examined on 03.11.2006 and no injury mark was found on his body. The victim prosecutrix in her evidence stated that she resisted and scuffled with the accused. Had there was any incident of resistance and scuffling between the accused and the victim prosecutrix, both of them would sustain at least scratch mark like minor injuries in the cowshed. There is no such evidence on record and at least the medical examination report of both the prosecutrix and the accused does not support of any such injury. It is, therefore, extremely doubtful as to whether any such incident occurred as alleged by the prosecutrix. Learned Addl. Sessions Judge lost sight of all those inconsistencies and deficiencies in the evidence on record. 16. Learned counsel, Mr. Lodh also drawn my attention to the examination of the accused under Section 313, Cr.P.C. It is found that learned Addl. Sessions Judge resorted to put combined questions taking into account the evidence of all the witnesses which is not permissible in law. 16. Learned counsel, Mr. Lodh also drawn my attention to the examination of the accused under Section 313, Cr.P.C. It is found that learned Addl. Sessions Judge resorted to put combined questions taking into account the evidence of all the witnesses which is not permissible in law. Section 313 of Cr.P.C. provides that in every enquiry or trial for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court question him generally on the case. It is the duty of the Court to put questions on each and every facts and circumstances generally. A combined question consisting of the statement of all the witnesses can in no way facilitate the accused to give answer to the circumstances appeared against him in the evidence on record. The trial Court is advised to follow the guidelines time to time given by the Apex Court and this Court at least in the following case laws:-- i. Hate Singh Bhagat Singh v. State of Madhya Pradesh AIR 1953 SC 468 ); ii. Parichhat and others v. State of Madhya Pradesh AIR 1972 SC 535 ) iii. Sharad Birdichand Sarda v. State of Maharashtra AIR 1984 SC 1622 ); iv. Kuldip Singh v. State of Delhi AIR 2004 SC 771 ); v. Janak Yadav & Ors. v. State of Bihar (1999) 9 SCC 125 }; vi. Parsuram Pandey & Ors. v. State of Bihar AIR 2004 SC 5068 ); vii. Ranbir Yadav v. State of Bihar (2009) CrI.L.J. 2692; viii. Manu Sharma v. State (NCT Delhi) (2010) 6 SCC 1 ; ix. C. Ronald & Anr. v. U.T. of Andaman & Nicobar Island (2011) 12 SCC 428 }; x. V.K. Sasikala v. State rep. by Superintendent of Police: (2012) 9 SCC 771 ; xi. Ratanlal Banik v. State of Tripura (2012 (2) GLT 252; xii. Suraj Gupta & Ors. v. State of Meghalaya 2010 (3) GLT 225; xiii. S.H. Lalsangzuala v. State of Mizoram - 2011 (1) GLT 47; xiv. Basavraj R. Patil v. State of Karnataka & Ors. 2000 CrI. L.J. 4604); xv. Sajjan Sharma v. State of Bihar 2011 CrI. L.J. 1169); xvi. Sanatan Naskar v. State of W.B. (2010) 8 SCC 249 )} & xvii. Naval Kishore Singh v. State of Bihar (2004) 7 SCC 502 }. 17. The FIR was lodged on 02.11.2006. Basavraj R. Patil v. State of Karnataka & Ors. 2000 CrI. L.J. 4604); xv. Sajjan Sharma v. State of Bihar 2011 CrI. L.J. 1169); xvi. Sanatan Naskar v. State of W.B. (2010) 8 SCC 249 )} & xvii. Naval Kishore Singh v. State of Bihar (2004) 7 SCC 502 }. 17. The FIR was lodged on 02.11.2006. It is stated in the FIR itself that the incident was reported to the Panchayat but Panchayat did not render justice and therefore, the FIR was lodged on the following day. The prosecutrix and her husband narrated the same fact in their deposition. So regarding delay in lodging FIR, I find no merit in the argument advanced by learned counsel, Mr. Lodh. 18. The sole evidence of the prosecutrix in the given facts and circumstances of the present case are not enough to record a conviction. She was also not supported by the medical evidence. Let us now see the other evidence on record. 19. P.W.2 is the brother-in-law of the prosecutrix. He stated that on 01.11.2006 in the evening his brother reported him about the incident. If it was so that he was reported about rape by the accused, in that case on the following day, when the FIR was lodged, the prosecutrix would definitely say that she was raped by the accused. So, no reliance can be placed on the deposition of this witness. Further in his cross-examination, his attention was drawn to the previous statement wherein the allegation of rape was not there. I am constrained to observe that learned Addl. Sessions Judge taken an easy course of just drawing attention of the witnesses and the contradiction has not been recorded according to the provisions prescribed in Section 162 of Cr.P.C. and Section 145 of the Evidence Act. Learned trial Judge is advised to follow the law laid down by the Apex Court in the case of Tahasilder Singh v. the State of U.P. reported in AIR 1959 SC 1012 , Md. Badaruddin Ahmed v. State of Assam reported in 1989 CrI. L.J. 1876, Gautam Das & Anr. v. State of Tripura & Anr. reported in 2008 (3) GLT 625, Ranjit Sarkar v. State of Tripura reported in 2013 (1) GLT 709 and in the case of Jitendra Shome v. State of Tripura reported in 2012 (3) GLT 879. 20. Badaruddin Ahmed v. State of Assam reported in 1989 CrI. L.J. 1876, Gautam Das & Anr. v. State of Tripura & Anr. reported in 2008 (3) GLT 625, Ranjit Sarkar v. State of Tripura reported in 2013 (1) GLT 709 and in the case of Jitendra Shome v. State of Tripura reported in 2012 (3) GLT 879. 20. Similarly, P.W.3 the husband of the prosecutrix stated that his wife reported her about the rape alleged to have committed by the accused in the cowshed. If on the evening of occurrence itself it was stated by the prosecutrix that rape was committed, that would definitely reflect in the FIR lodged by the prosecutrix on the following day. 21. Out of the other witnesses, P.W.4 stated that on 01.11.2006 he was in the shop of father of accused Babul Laskar and at that time, the prosecutrix and her husband went to his shop and complained to the father of Babul that the prosecutrix was raped by Babul. This witness nowhere stated that he was reported by the prosecutrix or her husband. This witness also cannot be said to have corroborated the prosecutrix since the prosecutrix herself did not state about rape in the FIR lodged in the following morning. Out of the other witnesses, P.Ws. 6 and 9 were declared hostile and their previous statement which has been proved as Exbt. P-6 and P-7 shows that they were reported about outrage of modesty and no allegation of rape was made. P.Ws. 11 clearly stated that he was reported after 3 days of the occurrence that the accused had scuffled with the prosecutrix and pulled her and she managed to escape. The witness clearly stated that she did not clearly tell him about any rape. Under such circumstances it is very difficult to believe the prosecutrix about the allegation of rape. 22. Learned Public Prosecutor submitted that if the charge of rape is not believed at least the accused should be punished for outrage of modesty of the prosecutrix. I cannot agree with the submission of learned Public Prosecutor on that score. If the allegation of rape cannot be believed, on the single of fact which the prosecutrix alleged, it is very difficult to arrive at a conclusion that modesty of the prosecutrix was outraged by the accused. I cannot agree with the submission of learned Public Prosecutor on that score. If the allegation of rape cannot be believed, on the single of fact which the prosecutrix alleged, it is very difficult to arrive at a conclusion that modesty of the prosecutrix was outraged by the accused. There is no room to separate the facts in different compartments and to separate the grains from chaffs. If the allegation of rape is doubtful and cannot be believed, in the given facts and circumstances, no other allegation on the same bundle of facts can be believed. The allegation so far made by the prosecutrix as a whole is doubtful for the reasons discussed above and hence, I think it is a fit case where the accused-appellant should be given the benefit of doubt. 23. Accordingly, the judgment and order of conviction and sentence dated 28.11.2008, passed by learned Addl. Sessions Judge in ST 29(ST/B) of 2008 is set aside. 24. The convict-appellant is given the benefit of doubt and accordingly he is acquitted of the charge and set at liberty. 25. The Appeal accordingly stands disposed of. Send back the L.C. records along with the copy of this judgment.