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2014 DIGILAW 275 (TRI)

Pallab Debnath v. State of Tripura

2014-07-11

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 07.06.2012 passed by the learned Additional Sessions Judge, Belonia, South Tripura in Sessions Trial Case No. S.T. 16 (ST/B) of 2012. 2. Heard learned counsel, Mr. D.C. Saha, for the appellant and learned Additional P.P., Mr. R.C. Debnath, for the respondent. 3. The prosecution case, in short, is that on 18.05.2011 at about 23.30 hours the informant, victim prosecutrix 'Jayanti' (actual name kept concealed) lodged an FIR in writing before the Officer-in-charge, Santirbazar P.S. alleging that on 17.05.2011, Tuesday, during night time she was in her hut with her nine years' old son and her husband was away to Silchar for his treatment from 13.05.2011. At about 03.30 am of the night the accused-appellant, Pallab Debnath, who is a ill reputed person of the locality, aged about 24/25 years, in a naked condition trespassed in her hut by opening the wooden door of bamboo fencing room and started scuffling with her and thereby outraged her modesty. Her conch, bangles were broken because of scuffling. In the process the accused torn her blouse, sari etc. and also assaulted her giving fists and blows causing injuries. She raised alarm and when the neighbours approached in her house, the accused fled away. 4. On the basis of that FIR, Santirbazar P.S. Case No. 37/2011 under Sections 447/354/323 of IPC was registered and an investigation was taken up. In course of investigation, the I/O arranged for examination of the victim prosecutrix by the Medical Officer of Santirbazar hospital and I/O also seized the wearing apparels of the victim prosecutrix by preparing a seizure list in presence of witnesses and the seized sari, petticoat and blouse were sent to State Forensic Science Laboratory for chemical examination. I/O also prepared the hand sketch map of the place of occurrence, examined the material witnesses and collected medical report of the victim prosecutrix. She was also produced before the learned Sub-Divisional Judicial Magistrate, Belonia, South Tripura on 20.05.2011 for recording her statement under Section 164 of Cr.P.C. and accordingly, her statement was recorded. After completion of investigation, I/O submitted charge sheet against the accused under Sections 447/376(1)/323 of the IPC. 5. She was also produced before the learned Sub-Divisional Judicial Magistrate, Belonia, South Tripura on 20.05.2011 for recording her statement under Section 164 of Cr.P.C. and accordingly, her statement was recorded. After completion of investigation, I/O submitted charge sheet against the accused under Sections 447/376(1)/323 of the IPC. 5. On commitment of the case to the Court of Sessions, the learned Additional Sessions Judge, Belonia, South Tripura on 01.03.2012 framed charges against the accused-appellant for commission of offences punishable under Sections 456, 376(1) read with Section 511 of IPC and Section 323 of IPC to which the accused pleaded not guilty and claimed to be tried. 6. In course of trial, the prosecution examined nine witnesses, out of them P.W. 2 is the victim prosecutrix and is the star witness of the occurrence. P.W. 3 is the minor son of the victim prosecutrix and he corroborated his mother, P.W. 2. P.W. 5 is the husband of the prosecutrix and he was reported about the occurrence by the victim prosecutrix on his return from Silchar on 18.05.2011 and thereafter the FIR was lodged by the victim prosecutrix. P.W. 4 is a very material witness, a close neighbour of the victim prosecutrix and she rushed to the house of the victim prosecutrix after hearing her alarm at the time of occurrence. P.W. 1 is the scribe of the FIR. P.Ws 6 and 9 are the Investigating Officers of the case. P.W. 7 is the Medical Officer, who examined the victim prosecutrix and submitted the medical report. P.W. 8 is the Scientific Officer of the State Forensic Science Laboratory and he examined the wearing apparels of the victim prosecutrix and submitted his report. 7. The prosecution witnesses were cross-examined on behalf of the accused and after closure of the prosecution witness, the accused was examined under Section 313 of Cr.P.C. and in his turn the accused declined to adduce any evidence. The defence case is bare denial of the prosecution case. 8. 7. The prosecution witnesses were cross-examined on behalf of the accused and after closure of the prosecution witness, the accused was examined under Section 313 of Cr.P.C. and in his turn the accused declined to adduce any evidence. The defence case is bare denial of the prosecution case. 8. At the conclusion of trial, the learned Additional Sessions Judge by the impugned judgment found the accused guilty of committing offences punishable under Sections 456/354/323 of IPC and after hearing the accused on the question of sentence, sentenced him to suffer R.I. for one year for commission of offence punishable under Sections 456 and 354 of IPC and for commission of offence punishable under Section 323 of IPC he was further sentenced to suffer R.I. for six months. For the conviction under Section 456 of IPC, he was also sentenced to pay a fine of Rs. 5,000/-, in default of payment of fine to suffer R.I. for three months. It was also directed that the substantive sentence of imprisonment shall run concurrently and the fine money, if realized, shall be paid to the victim as compensation. 9. Aggrieved, the convict preferred the present appeal. 10. Learned counsel, Mr. Saha, appearing for the appellant has submitted that the prosecutrix made different statement at different stages about the occurrence. The FIR was lodged on 18.05.2011 after about 19 hours of the occurrence and in consultation with her husband, but no allegation of rape was made in the FIR. On 18.05.2011 itself she was examined by the police officer but she stated nothing that she was raped. Subsequently, on 19.05.2011 for the first time she disclosed that she was raped by the accused. She was produced before the learned Magistrate for recording her statement under Section 164 of Cr.P.C. on 20.05.2011 and before the learned Magistrate also she did not make any specific statement that she was raped by the accused. So, while the victim prosecutrix herself makes different statement at different stages, her evidence cannot be accepted as a gospel truth to arrive at a conclusion that the accused outraged her modesty and the finding of the learned Additional sessions Judge, therefore, is wrong and is liable to be interfered with. 11. Learned Addl. So, while the victim prosecutrix herself makes different statement at different stages, her evidence cannot be accepted as a gospel truth to arrive at a conclusion that the accused outraged her modesty and the finding of the learned Additional sessions Judge, therefore, is wrong and is liable to be interfered with. 11. Learned Addl. P.P., on the contrary, has submitted that the victim prosecutrix is an illiterate village woman and she specifically stated that out of shy she did not disclose the incident of rape initially, but later on, she narrated the fact of rape. She made consistent statement about the occurrence that she was with her minor son in her house and her husband was away from his house and the accused trespassed in her house during night hours at about 03.30 am and outraged her modesty. The accused also assaulted her with fists and blows, which has got corroboration by the evidence of P.W. 7, the Medical Officer. She is corroborated by her minor son, P.W. 3 and also corroborated by P.W. 4, the neighbour, who hearing her alarm rushed to her house and found a person fleeing away from the house of the victim prosecutrix and she found the victim prosecutrix with torn clothes. Her husband also corroborated her about the occurrence and so, the learned Additional Sessions Judge separated the grains from the chaffs and acted upon the grains and there is nothing wrong in the process. Learned Additional P.P., therefore, prays for maintaining the judgment and order of conviction and sentence. 12. I have meticulously gone through the evidence on record. P.W. 2, the victim prosecutrix 'Jayanti', made a very consistent statement about the occurrence. She stated that on 17th Jaistha about a year ago, a Tuesday, she was in her house with her nine years old son and her husband was away at Silchar. Around 03.30 am she got awaken, when she felt that someone had pressed her mouth and a person started scuffling with her and thereafter mounted on her and committed rape on her. When she resisted the accused assaulted her giving blows. At the time of resistance her conch, bangles were broken. The accused was Pallab Debnath of her village. He had torn down her Sari, blouse and petticoat while committing rape. She could recognize him in the light of lantern, which was in the hut. On her cries, Smti. When she resisted the accused assaulted her giving blows. At the time of resistance her conch, bangles were broken. The accused was Pallab Debnath of her village. He had torn down her Sari, blouse and petticoat while committing rape. She could recognize him in the light of lantern, which was in the hut. On her cries, Smti. Pranati Debnath and Smti. Anjali Debnath arrived and at that time the accused fled away. After two days of the incident on 19th Jaistha, she filed the complaint at Manpathar Outpost and it was reduced into writing by one Sri Bappi Chakraborty (P.W. 1) as narrated by her. She duly put her signature in the FIR. She was produced before the learned Magistrate at Belonia and she narrated the incident. She put her signature in the statement marked as Exbt.-2. She also stated that her wearing apparels were torn. She proved her signature in the seizure list, marked as Exbt.-3 and wearing apparels were marked as Exbt.-M.O. 1 series. In her cross-examination she stated that she did not mention in the complaint that she identified the accused in the light of the lantern. She had shown the lantern to the I/O when the I/O seized her clothes, but the I/O did not seize the lantern. She also had shown her broken conch bangles to the I/O. Her husband accompanied her to the house of Sri Bappi Chakraborty (P.W. 1). She did not narrate to the local people that she was raped by Pallab Debnath being ashamed. She narrated the entire incident to her husband when he returned home on 18.05.2011 including the commission of rape on her. None else was there except her husband when the complaint was written. She stated in the complaint that Pallab Debnath outraged her modesty. While making statement to the police on 18.05.2011 she stated that the accused outraged her modesty. In her second statement to the I/O on 19.05.2011 she stated that the accused raped her. She denied the suggestion that because of the enmity of the accused with her husband, as per her husband's advice, she made a false complaint. She also stated that she did not specifically stated to the learned Magistrate that the accused committed rape on her. She did not narrate to the ladies, who assembled in her house that the accused committed rape on her. She also stated that she did not specifically stated to the learned Magistrate that the accused committed rape on her. She did not narrate to the ladies, who assembled in her house that the accused committed rape on her. She denied the suggestion that the incident was false and that she had undergone intercourse with her husband and, therefore, there was semen stain in her petticoat and that was handed over to the police. 13. P.W. 3, the child witness, corroborated the victim prosecutrix (P.W. 2). P.W. 4, the neighbour of the victim prosecutrix, stated that about a year ago on a certain night she was sleeping in her hut. At about 03.30 am she was awaken after hearing the cries from her adjacent house and she immediately rushed to her courtyard and at that time she found a person fleeing away. The victim prosecutrix was there and she informed her that the person was Pallab Debnath and he had tortured her physically. She found the wearing apparels of the victim prosecutrix torn. There is nothing in her cross-examination. 14. P.W. 7, the Medical Officer found black injuries on the left eye, bruise below right eye and nail scratch abrasion on the ventral aspect of right forearm which were 2-3 days' old. 15. The evidence of the prosecution witnesses as I find was carefully noted and appreciated by the learned trial Judge. Since the victim prosecutrix did not make any allegation of rape in the FIR which was lodged after arrival of her husband from Silchar and since she did not disclose the incident of rape even in her first statement to the I/O recorded on 18.05.2011 and to the learned Magistrate on 20.05.2011, the learned Additional Sessions Judge disbelieved the allegation of rape. It is also discussed by the learned Additional Sessions Judge that medical evidence did not support the allegation of rape. No doubt, the scientific expert (P.W. 8) found mark of semen in the petticoat. But there is no evidence as to whether the semen, so found was of the accused or not. Since the victim prosecutrix was a married woman, she might have undergone intercourse with her husband and, therefore, marks of semen may be available in her petticoat and the learned Additional Sessions Judge, therefore, rightly considered that the evidence is not supporting the case of rape. 16. Since the victim prosecutrix was a married woman, she might have undergone intercourse with her husband and, therefore, marks of semen may be available in her petticoat and the learned Additional Sessions Judge, therefore, rightly considered that the evidence is not supporting the case of rape. 16. On going through the judgment passed by the learned Additional Sessions Judge, I find that he has correctly appreciated the evidence in paras 12, 13 and 14 of the judgment and the same are quoted here as follows :- 12. From the evidence as extracted above, the complaint and statement of the victim recorded under sec. 164 of Cr.P.C., following position emerges :- P.W. 3, son of the victim has not corroborated her on the point of commission of rape or attempt thereof upon her and victim did not state to P.W. 4 who immediately arrived at her house that night that the accused committed rape on her or made an attempt in that regard. From the statement of the victim and her husband as deposed and the complaint itself, it is evidence that the incident took place on 17.5.11 around 0330 hours i.e. in fact on 18.5.11 according to English calendar and that husband of the victim returned home in the morning on 18.5.11 and on that night around 2205 hours the complaint was lodged at the Outpost wherein it was stated that accused outraged her modesty and the case was accordingly registered under section 354 IPC amongst others. In the statement recorded under section 164 of Cr.P.C. on 20.5.11, the victim did not specifically state that accused committed rape on her or made attempt in that regard which she has admitted in her cross examination. Subsequently, she stated to the I.O. that she was being raped by accused. While deposing she has given the explanation that while narrating the incident to Bappi Chakraborty i.e. P.W. 1, she did not state this fact being ashamed. It is being recorded in her cross-examination that while narrating the incident to the I.O. on 18.5.11, she stated that the accused outraged her modesty and in her second statement made on 19.5.11, she stated that accused committed rape on her. She has also admitted that she narrated to her husband that accused committed rape on her and that when she narrated the incident to the scribe except her husband, none was present. She has also admitted that she narrated to her husband that accused committed rape on her and that when she narrated the incident to the scribe except her husband, none was present. On the point, it is being argued by learned prosecution counsel that for a rustic lady it is not unnatural if she was hesitant while narrating the incident to a male person that she was being raped by the accused. But subsequently, shrugging off her hesitance, she narrated the incident to the I.O. Reply of the learned defence counsel on the point is that evidence of such a lady who constantly changes her statement cannot be believed at all. 13. Argument of the learned prosecution counsel may be true. It may also be true that accused committed rape on her or at least made an attempt in this regard. But if the lady while making the complaint for the purpose of seeking redress after about 19 hours of the incident and after having deliberation with her husband omits to say the actual incident and if she even omits to do so while making the statement to the I.O. and even to the learned Magistrate, she does so to her peril. In this regard, it is also to be borne in mind that she even did not disclose about this to P.W. 4 who immediately reached the spot. That being the circumstances, it would be risky for the court to conclude that accused made an attempt to commit rape upon her. At the same time, circumstances what emerges beyond any doubt is that on the night in question, accused took precaution selecting the wee hours of night to enter the hut of the victim to conceal his entrance from the victim so that he is not obstructed in his act. It is also proved that he jumped into the bed of the victim, scuffled with her and torn her petticoat, blouse and saree and that he was naked at that time. That he entered into the hut is corroborated by P.W. 3 and by the independent witness P.W. 4 who on arrival found someone fleeing away and the victim confirmed that it was the accused. This evidence of the victim and P.Ws 3 and 4 could not be shaken in the cross examination. That he entered into the hut is corroborated by P.W. 3 and by the independent witness P.W. 4 who on arrival found someone fleeing away and the victim confirmed that it was the accused. This evidence of the victim and P.Ws 3 and 4 could not be shaken in the cross examination. The seized wearing apparels which were found to be torn further corroborate the statement of the victim. The evidence of P.W. 7 i.e. doctor confirms that in the process of scuffling with the victim, the accused caused the injuries to her. The defence case that a false complaint was lodged against the accused for difference with the husband of the victim relating to business matter is not proved at all. It is not even proved that they had no business relation whatsoever. 14. From the discussion made above and excluding all doubtful circumstances, it is clearly proved that on the night in question, accused committed lurking house trespass in the house of the victim and outraged her modesty. The victim has deposed that as she resisted, accused gave her blows. P.W. 7 has deposed that the injury on the left eye and right cheek of the victim could have been caused due to direct blow and abrasion on the right forearm might be caused due to pinching with the finger nails. That being the circumstances, the charge under Sec. 323 of IPC is also proved against the accused. Accordingly, accused is convicted under section 456, 354 and 323 of IPC. 17. I am in full agreement with the above finding of the learned Additional Sessions Judge in the given facts and circumstances of the case. It is a settled proposition of law that because of some inconsistency in the evidence the entire should not be rejected. If the truth can be separated from the falsehood by applying theory of "separating the grains from the chaffs", the Court can rely upon the grains and reject the chaffs. 18. In the case at hand, the learned trial Court has separated the grains from the chaffs and acted upon the grains. There is nothing in the evidence on record, except a suggestion of enmity. I find nothing else as to why the victim prosecutrix will come out with a false allegation touching her chastity. 18. In the case at hand, the learned trial Court has separated the grains from the chaffs and acted upon the grains. There is nothing in the evidence on record, except a suggestion of enmity. I find nothing else as to why the victim prosecutrix will come out with a false allegation touching her chastity. It is not natural that a woman even if married will come out with a false allegation against a person without any reason. 19. In the given facts and circumstances of the case, I find no reason at all to interfere in the judgment passed by the trial Court. In respect of punishment the learned Additional Sessions Judge has already taken a very lenient view and I find nothing to interfere with it. The appeal, therefore, stands rejected. The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Belonia, South Tripura is affirmed. 20. Send back the lower court records along with a copy of this judgment.