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2014 DIGILAW 243 (TRI)

Sujit Dey v. State of Tripura

2014-06-25

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta; CJ. 1. This appeal by the convict is directed against the judgment dated 09-01-2006 passed by the learned Additional Sessions Judge, West Tripura, Khowai in Case No. S.T. 22(WT/K) of 2005 whereby the appellant Sujit Dey was convicted for having committed offences punishable under Sections 366 and 376 of the Indian Penal Code (IPC) and was sentenced to suffer rigorous imprisonment for 5(five) years for commission of offence punishable under Section 366 of the IPC. He was further sentenced to suffer rigorous imprisonment for 7(seven) years and to pay a fine of Rs. 3,000/- (rupees three thousand) in default thereof to undergo simple imprisonment for 6(six) months with regard to offence punishable under Section 376 of the IPC. Both the sentences were directed to run concurrently. 2. Complaint was filed by Sri Braja Lal Chakraborty, father of the prosecutrix, with the Teliamura police station on 23-11-2004 to the effect that on 20-11-2004, the accused appellant had enticed the minor daughter (prosecutrix), aged about 14 years and taken her somewhere. On this basis, the case was registered, matter was investigated and finally, police report was filed against the present appellant and one Sri Sujit Das of having kidnapped the prosecutrix. A charge of rape was levelled against the present appellant and Sujit Das was accused of having abetted the present appellant in the commission of the offence. After charges were framed, the accused pleaded not guilty and claimed trial. Accused Sujit Das was acquitted whereas the appellant was convicted as detailed hereinabove. Hence, the appeal. 3. The statement of the prosecutrix is the most important piece of evidence. According to her, on 20-11-2004 she was sleeping at her house at about 1-30 p.m. in the afternoon. At that time, accused Sujit Das came to her house, woke her up and requested her to accompany him as he wanted to have an urgent talk with her. She accompanied Sujit Das who took her to a deserted house close by where the appellant Sujit Dey was waiting. Thereafter, Sujit Das asked her to go with Sujit Dey. She refused to do so, but then they forced her to go with the appellant. The appellant took her to a house at Tuichindrai and kept her there for a night. Next day, he took her to Champaknagar and kept her in the house of his maternal uncle for two days. She refused to do so, but then they forced her to go with the appellant. The appellant took her to a house at Tuichindrai and kept her there for a night. Next day, he took her to Champaknagar and kept her in the house of his maternal uncle for two days. Thereafter, they both went to Champamura where she stayed for 10/12 days. Her allegation is that during her stay the appellant committed rape on her on a number of occasions. On 02-12-2003 the appellant brought her to his sister's house at Teliamura where she stayed for the night. There she was tutored by Sujit Dey and the inmates of the house to make a statement to the police and the Magistrate. She then voluntarily accompanied the accused and one unknown person to Teliamura Police Station. She was produced before the Magistrate at Khowai on the same day. She gave a statement to the Magistrate as tutored by Sujit Dey and the inmates of the house of his sister. She admits that she signed the statement which is Exhibit-2. According to her, her age was 14 years. 4. If the statement of the prosecutrix made before the Magistrate is read, it is clear that she had stated that she had voluntarily gone with the appellant-accused. She states that nobody took her forcibly. She also states that she and the accused resided together as husband and wife for 12 days and had physical relationship on two of those dates. Though now the prosecution wants to make out a case that the prosecutrix was forcibly taken away and was subjected to rape, the fact of the matter is that the prosecutrix was never forcibly taken away or enticed. She went of her own accord. This is also obvious from the fact that she stayed in various houses at Tuichindrai, Champaknagar, Champamura and Teliamura. Her statement was recorded before the police. She states that it was a tutored statement. However, most importantly, she does not state that she was forced or threatened to give that statement. Before the Magistrate, she could have easily told the truth, but she preferred to make the statement in which she has stated that she went of her own accord with the accused and had physical relation with him. However, most importantly, she does not state that she was forced or threatened to give that statement. Before the Magistrate, she could have easily told the truth, but she preferred to make the statement in which she has stated that she went of her own accord with the accused and had physical relation with him. Therefore, in my view, there is no manner of doubt that the prosecutrix went voluntarily with the accused and the sexual relations were consensual in nature. 5. Having said so, now comes the question as to whether the prosecutrix was of the age at which she could give consent in respect of an offence under Section 376 of the IPC. As the law stood at the relevant time, the prosecutrix could not give consent to have sexual intercourse if she was below 16 years of age. In her statement in Court, she stated that she was 14 years. Even in her statement made before the Magistrate, she has stated that she was 15 years. Both the mother and father have stated that she was 15 years and there is no cross-examination with regard to her age. The evidence of the doctor also supports the version of the prosecutrix because he says that the age of the victim is between 14 and 16 years. On the basis of this evidence, I am clearly of the view that her age was above 15 years but below 16 years and hence, she legally could not have given consent. As such, the accused is definitely guilty of having committed the offences punishable under Sections 366 and 376 of the IPC. 6. Coming to the question of sentence, normally minimum sentence prescribed for an offence punishable under Section 376 of the IPC is 7 years, but as the law stood at the relevant time, the Court could grant a lesser sentence for special reasons. In the present case, from the material on record it is more than apparent that the accused and the prosecutrix had a love affair. It is also more than obvious that the prosecutrix went with the accused of her own accord. She was not enticed away with a view to her being kept secret or secretly confined. Therefore, I feel that this is a case where by way of exception the Court should propose a sentence lesser than 7 years. It is also more than obvious that the prosecutrix went with the accused of her own accord. She was not enticed away with a view to her being kept secret or secretly confined. Therefore, I feel that this is a case where by way of exception the Court should propose a sentence lesser than 7 years. Both the accused and the prosecutrix were young since the accused was also about 22 years at the relevant time. They were in love. The prosecutrix went wilfully with the accused and had sex with him. However, since she was below 16 years, an offence has been committed. 7. Keeping in view all the relevant factors and the fact that the occurrence took place in the year 2004 and the accused during trial was in judicial custody from 03-12-2004 to 03-05-2005, i.e. for a period of almost 5(five) months and after trial he has been in custody from 09-01-2006 till bail was granted by the High Court on 12-12-2007, therefore, the appellant has spent more than 2(two) years in jail and I am of the view that this sentence is sufficient for the offence committed by him. 8. In this view of the matter, the appeal is partly allowed and the sentence imposed upon the accused is reduced to the period of sentence already undergone by him and no fine is to be imposed. His bail bonds stand discharged. 9. The appeal is disposed of in the aforesaid terms. 10. Send down the lower court records forthwith.