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Tripura High Court · body

2014 DIGILAW 269 (TRI)

Prakush Debbarma v. State of Tripura

2014-07-09

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This criminal appeal, under Section 374 of Cr.P.C. is directed against the judgment and order of conviction and sentence, dated 14.09.2012, passed by learned Addl. Sessions Judge, Khowai in Sessions Trial Case No. ST 14(WT/K)2011, where-under, learned Addl. Sessions Judge found the accused-appellant guilty of committing offence punishable under Sections 451 and 354 of IPC and sentenced him to suffer R.I. for 2(two) years and to pay a fine of Rs.1000/- in default of payment of fine to suffer S.I. for 1 month under Section 451 of IPC and to suffer R.I. for 2(two) years and to pay fine of Rs.5000/- in default of payment to suffer S.I. for 5 months under Section 354 of IPC and further directed that the sentences shall run concurrently. 2. Having felt aggrieved, the convict-accused (appellant) preferred the present appeal challenging the judgment and order of conviction and sentence. 3. Heard learned counsel Mr. S. Sarkar for the appellant and learned Public Prosecutor Mr. A. Ghosh for the State-respondent. 4. Prosecution case is that, on 29.05.2010 at about 15-15 hours, the victim prosecutrix 'Sarala' (actual name kept concealed) lodged an FIR in writing before the O.C., Champahowar P.S. alleging that on 28.05.2010 at about 11-00 p.m., the accused-appellant entered in her house and asked her to give a glass of drinking water and when she offered the glass of water the accused caught hold her hand and dragged her away from the hut and committed rape on her. She raised alarm but nobody arrived there. At that time, the accused found her husband returning home and on seeing her husband, he fled away. 4.1 O.C., Champahowar P.S. accordingly registered Champahowar P.S. case No. 10 of 2010 under Sections 448 and 376 of IPC and an investigation was taken up. 4.2 In course of investigation, medical examination of the victim prosecutrix was arranged and her wearing apparels were seized. She was produced before learned SDJM, Khowai and her statement was recorded under Section 164 of Cr.P.C. I.O. also prepared hand sketch map of the place of occurrence and also seized the wearing apparels of the victim prosecutrix. Vaginal swab was collected at the time of medical examination and thereafter vaginal swab as well as the wearing apparels were sent to State Forensic Science Laboratory for chemical examination and the report was collected later on. Vaginal swab was collected at the time of medical examination and thereafter vaginal swab as well as the wearing apparels were sent to State Forensic Science Laboratory for chemical examination and the report was collected later on. I.O. also examined the material witnesses and recorded their statements and thereafter on completion of investigation submitted charge-sheet against the accused-appellant for commission of offence punishable under Sections 448 and 376 of IPC. 5. Cognizance was taken on the basis of the police report and thereafter on commitment of the case to the Court of Sessions, learned Addl. Sessions Judge on 26.08.2011 framed charges against the accused-appellant for commission of offence punishable under Sections 451 and 376 of IPC to which the accused pleaded not guilty and claimed to be tried. 6. In course of trial, to prove the charges, prosecution examined 8(eight) witnesses. Out of them P.W. 1 is the victim prosecutrix and is the star witness of the prosecution. P.W. 2 is the husband of victim prosecutrix and he found the accused dragging his wife pulling her hand and so is an eye witness of the occurrence. P.W. 3 is a neighbourer but is not a material witness. P.Ws 4 and 6 are the witnesses to the seizure of wearing apparels and vaginal swab respectively. P.W. 5 is a constable of police who collected the vaginal swab. P.W. 7 is the scribe of the FIR and P.W. 8 is the I.O. of the case. 7. Prosecution also proved the FIR, seizure list of wearing apparels and the vaginal swab and also proved the hand sketch map of the place of occurrence. 8. Defence cross-examined the prosecution witnesses. After closure of the prosecution evidence, in his turn, accused-appellant declined to adduce any defence evidence. Defence case is simply denial of the prosecution case and nothing else. 9. Learned counsel Mr. Sarkar argued that the victim prosecutrix made different statement at different stage. In the FIR she made the allegation of rape whereas in her subsequent statement recorded under Section 164 of Cr.P.C. by the Magistrate she did not state anything about rape whereas only made the allegation of pulling and dragging her by hand. While she made different statement at different stage, she cannot be believed at all and her statement since do not inspire confidence, is to be rejected as a whole. It is also submitted by Mr. While she made different statement at different stage, she cannot be believed at all and her statement since do not inspire confidence, is to be rejected as a whole. It is also submitted by Mr. Sarkar that except her husband there was no other witnesses to support the case of the prosecution and hence, prosecution case is liable to be disbelieved. 10. Countering the submission of learned counsel Mr. Sarkar, learned P.P. has submitted that the victim is an innocent tribal woman and she had no animosity with the accused. Her evidence what is stated before Court has not been shaken in any manner. The FIR was lodged by the victim prosecutrix and she proved her signature. Regarding the allegation made in the FIR, her attention was not drawn. So, what is stated in the FIR is not material, but what is stated before the court is material evidence which is not shaken in any manner and hence based on her statement, the finding of the trial court stands good and do not deserve interference. It is also submitted by learned P.P. that the incident occurred at about 11 p.m. of night in a remote village, where no other villagers were available and at least there is no such evidence that any other houses were available near the house of the victim. So, her husband was the only natural witness who came to the spot at the relevant point of time and found the accused dragging the victim prosecutrix by her hand. Since the evidence of P.Ws 1 and 2 has not been shaken in any manner, the judgment and order of conviction and sentence is liable to be maintained. 11. I have meticulously gone through the evidence on record. P.W. 1 the victim prosecutrix in her deposition before Court categorically stated that at about 11 p.m. of the night of occurrence she was in her house and at that time, the accused called her from outside and asked her to give him a glass of water. Her three children were sleeping. When she was about to give him a glass of water, the accused did not take it but caught hold her hand, pulled her out of hut and outraged her modesty but the accused failed to commit rape on her. At that time her husband was returning and on seeing her husband, the accused fled away. When she was about to give him a glass of water, the accused did not take it but caught hold her hand, pulled her out of hut and outraged her modesty but the accused failed to commit rape on her. At that time her husband was returning and on seeing her husband, the accused fled away. This statement of P.W. 1 has not been shaken in cross examination. Only there is a denial that she falsely made the statement against the accused. Why she would come to make a false statement against the accused, nothing to that effect. Therefore, the evidence of P.W. 1 remained unshaken and inspired all confidence. She has no reason to come out a false allegation against the accused touching her chastity. 12. The FIR has been proved by P.W. 7 as Exhibit 1/1. P.W. 1 proved her signature as Exhibit-1. P.W. 7 in his deposition stated that he wrote the FIR as per dictation of police officer and not as per any fact narrated by the victim prosecutrix. Once P.W. 7 has made such statement that he did not write the FIR as per statement of victim prosecutrix, what he wrote as per the statement of the police officer cannot be regarded as a statement alleged to have made by victim prosecutrix. Further, attention of the victim prosecutrix was not drawn to the statement made in the FIR in respect of allegation of rape at the time of her cross examination. The FIR is not a substantive piece of evidence. It is to be used for contradicting the maker. Since the statement made in the FIR has not been contradicted with the witness, what is stated in the FIR is of no relevance for consideration at the time of appreciation of evidence of the victim prosecutrix. The evidence of victim prosecutrix that the accused pulled and dragged her out from her hut and outraged her modesty has been sufficiently established from her statement itself which is corroborated by P.W. 2, her husband who had seen the accused pulling his wife with her hand. That statement of P.W. 2 also has not been shaken in cross examination. The evidence of victim prosecutrix that the accused pulled and dragged her out from her hut and outraged her modesty has been sufficiently established from her statement itself which is corroborated by P.W. 2, her husband who had seen the accused pulling his wife with her hand. That statement of P.W. 2 also has not been shaken in cross examination. P.W. 3 stated that he found a gathering in front of the house of the informant on the following day of the night of occurrence and also came to learn that the accused during night time went to the house of the victim prosecutrix and wanted a glass of water and something happened thereafter. Other witnesses are not the witnesses of fact. They are the witnesses to the seizure. So, from the evidence of P.Ws 1 and 2 itself it is clearly established that the accused entered in the house of victim prosecutrix and pulled her out of her hut with her hand and taken her outside the hut. 13. Learned counsel Mr. Sarkar also argued that the victim prosecutrix did not make any clear statement that the accused entered inside her hut and so punishment under Section 451 of IPC cannot sustain. 14. On perusal of the deposition of P.W. 1, I find that P.W. 1 clearly stated that the accused pulled and dragged her from her hut. If the accused not entered inside the hut, how he could pull or drag her pulling her hand from the hut? From the statement of the victim prosecutrix it is clear that the accused entered inside the hut pretending to take a glass of water and when the victim offered the glass of water, the accused caught hold her hand and pulled her outside the hut. Therefore, the ingredient of house trespass is established and the trial Court rightly arrived at a finding of conviction both under Sections 451 and 354 of IPC. 15. Considering the facts and circumstances, nature and gravity of the offence, I think the accused appellant should not be given the benefit of Section 360 of Cr.P.C. or that of the Probation of Offenders' Act. The punishment so far given by the trial Court commensurate to the gravity of the offence and therefore, no interference is called for. 16. The appeal, therefore, stands dismissed. 17. Send back the L.C. records along with the copy of this judgment.