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2014 DIGILAW 68 (TRI)

Suku Ch. Debbarma v. State of Tripura

2014-02-11

DEEPAK GUPTA, S.TALAPATRA

body2014
JUDGMENT Deepak Gupta, C.J.:- This appeal by the convicted accused Suku Ch Debbarma is directed against the judgment, dated 11.01.2012, passed by the learned Assistant Sessions Judge, West Tripura, Agartala in case No. S.T. 46 of 2008 whereby the learned trial Court convicted the accused of having committed offences punishable under sections 354 and 307 of I.P.C. For the offence under section 354 of I.P.C. the appellant was sentenced to undergo rigorous imprisonment(RI) for 2(two) years and for the offence under section 307 of I.P.C. he was sentenced to undergo RI for 10 years. Both the sentences were ordered to run consecutively. 2. On 10.10.2007, the prosecutrix filed a written complaint to the Officer-in-Charge of Mandai Police Station alleging therein that on 5.10.2007, at about 9.15 a.m. when she and her father-in-law were alone in the house, her father-in-law i.e. the accused Suku Ch. Debbarma caught hold of her and embraced her from behind and thereby tried to commit rape upon her. She somehow saved herself. After a while her father-in-law told her to fetch a bucket of water and soap from the well. When she went to collect water, her father-in-law came from behind and threw her into the water and during this scuffle her glass bangles broke. She raised an alarm and then her father-in-law also stepped inside the well and tried to kill her. On hearing her cries, one Sri Swarna Kr. Debbarma came and rescued her. 3. According to the complainant, the delay in lodging the complaint is because she was undergoing treatment. On the basis of the complaint Ext. 1, FIR Ext. 2 was lodged and, thereafter, the police investigated the matter and the accused was charged with having attempted to outrage the modesty of the prosecutrix and also having attempted to murder her. The accused pleaded not guilty and claimed trial. After trial he has been convicted as aforesaid. Hence the present appeal. 4. The prosecutrix stepped into the witness box and stated that the accused was her father-in-law. According to her, on 05.10.2007, at about 9.15 hrs., she was alone in the house. The accused asked her to serve rice and also asked her to get water from the well. He embraced her from the waist and thereby attempted to commit rape upon her. According to her, on 05.10.2007, at about 9.15 hrs., she was alone in the house. The accused asked her to serve rice and also asked her to get water from the well. He embraced her from the waist and thereby attempted to commit rape upon her. When she went to the well to bring water, then he came from behind and tried to make her fall in the well. She raised an alarm but he pushed her inside the well. In the meantime, the neighbouring people came and rescued her. She also states that her father Sena Rai Debbarma came and took her to his house. She narrated the incident to her parents who took her to Takarjala hospital. She also stated that during this incident her bangles were broken. She lodged the complaint on 10.10.2007. She has been cross-examined by the appellant and has been confronted with the FIR in which there is no mention that her father came and she was taken to Takarjala hospital. Even in her statement, recorded under section 161 Cr. P.C. there is no such mention. She admits that in the house of her in-laws her mother-in-law who was aged about 55/56 years also resides. Her husband, who was employed in the Assam Rifles, was in Kolkata at the relevant time. She admits that her husband has three sisters and the eldest sister is Sampari. She also admitted that the husband of Sampari was residing in the same house as 'Gharjamai', another sister Mandamukhi was unmarried and also residing in the same house. The third sister Rakhi along with her husband also used to stay in the same house. She however denied the suggestion that all the above persons were present at the time of the occurrence in the house. 5. PW. 1 Swarna Kr. Debbarma is a neighbour who came immediately to the place of occurrence on hearing the cries of the prosecutrix and rescued the prosecutrix from the well. According to him the prosecutrix was first unconscious and water had to be pushed out from her belly. Thereafter the prosecutrix regained her senses. According to this witness, Kishore Debbarma was also present when he rescued the prosecutrix. By that time, some other villagers had also arrived. Prosecutrix said that she had been pushed into the well by the accused. According to him the prosecutrix was first unconscious and water had to be pushed out from her belly. Thereafter the prosecutrix regained her senses. According to this witness, Kishore Debbarma was also present when he rescued the prosecutrix. By that time, some other villagers had also arrived. Prosecutrix said that she had been pushed into the well by the accused. Before pushing her into the well, her father-in-law had also caught hold of her body. In cross examination, this witness states that the prosecutrix was taken to the hospital on the date of incident itself. According to this witness, the prosecutrix was taken to the Mandai hospital and he had walked about half of the distance to the Mandai hospital. He also states that Mandai Police Station is adjacent to the Mandai hospital. This witness further states that from the hospital the prosecutrix came back to her in-laws' house. 6. PW. 8 is Kishore Debbarma. He states that he heard a hue and cry of the villagers and rushed to the house of accused Suku Ch Debbarma. He saw that the prosecutrix had been pulled out from the well by PW. 1 Swarna Kr. Debbarma. The prosecutrix was in an unconscious condition. After some time, the prosecutrix regained senses and stated that the accused pushed her in the mud well which had water therein. In cross-examination, this witness states that when the prosecutrix was pulled out from the mud well then PW. 1 and one Manik Debbarma were present. It was raining at that time. He also admits that both he and PW. 1 Swarna Kr. Debbarma are the supporters of the CPI(M) party whereas Suku Ch. Debbarma is the supporter of INPT party. 7. Manik Debbarma was examined by the defence as DW. 1. He stated that he knew the prosecutrix as well as the accused. According to him, some incident took place in the house of accused Suku Debbarma involving the prosecutrix at about 9/9.15 a.m. in the morning. On that day he heard the sound of a woman 'Bachao Bachao' in Kokborok language. He rushed to the house of Suku Debbarma and there was a mud well there. He saw PW. 1 Swarna Kr. Debbarma trying to rescue the prosecutrix from the well. The prosecutrix was conscious. On that day he heard the sound of a woman 'Bachao Bachao' in Kokborok language. He rushed to the house of Suku Debbarma and there was a mud well there. He saw PW. 1 Swarna Kr. Debbarma trying to rescue the prosecutrix from the well. The prosecutrix was conscious. Subsequently the three daughters of Suku Debbarma also visited the place and took the prosecutrix to their home and later the prosecutrix was taken to Mandai hospital for treatment. This witness has also stated that the relationship between the accused and the families of PWs. 1 and 8 were not very cordial. 8. PW. 3 is the father of the prosecutrix. According to him, he was to visit the house of his daughter but made a phone call that he could not go, but then PW. 1 informed him that his daughter had fallen into a well. He then came to the house of his daughter and she was lying in a room. He told the accused that he would take his daughter for treatment to his house. Thereafter his daughter narrated the facts to him and the case filed. He has been confronted with the statement recorded under section 161 Cr. P.C. wherein there is no mention that he was supposed to go to his daughter's house or that he had telephoned her that day. In the said statement there is no mention that PW. 1 informed him on telephone that his daughter had fallen in the well. He was also confronted with the statement recorded under section 161 Cr. P.C. in which there was no mention that he had told the accused that he would take his daughter to his house to get her medically treated. 9. PW. 5 is the mother of the prosecutrix. She states that on 05.10.2007 PW. 1 Swarna Kr. Debbarma gave a telephonic call to them after he had pulled out the prosecutrix from the well. Thereafter her husband PW. 3 went to the house of the daughter and brought her back. They both reached her house at about 8.00 p.m. That time the prosecutrix told her about the incident. Her statement is in the nature of hearsay. In cross-examination she has been confronted with the various portions of this statement recorded by the police under section 161 Cr. P.C. 10. PW. They both reached her house at about 8.00 p.m. That time the prosecutrix told her about the incident. Her statement is in the nature of hearsay. In cross-examination she has been confronted with the various portions of this statement recorded by the police under section 161 Cr. P.C. 10. PW. 4 Malin Debbarma is the scribe of the ejahar and he states that he wrote the complaint as stated by the prosecutrix. PW. 6 Ajoy Mohan Chakma is the person who received the written complaint and lodged the FIR. PW. 7 Dr. Radha Debbarma states that she examined the prosecutrix at her chamber situated at Krishnanagar, Agartala. PW. 9 is the Investigating Officer (I.O.). He states that he visited the place of occurrence on 10.07.2007 at about 6.30 p.m. and prepared the hand sketch map and recorded the statements of the witnesses. He thereafter arrested the accused person. He states that he found no other witnesses acquainted with the facts of the case. On 29.11.2007, he visited Mandai PHC and examined the concerned medical officer, namely, Dr. Radha Rani Debbarma, who had attended the prosecutrix in the same hospital and he also recorded her statement under section 161 Cr. P.C. On the basis of this evidence the learned trial Court convicted the accused. 11. Sri H.K. Bhowmik, learned counsel appearing for the appellant urges that there is a great delay in lodging the FIR. He also submitted that there are many contradictions in the statements of the witnesses and for these reasons, the statement of the prosecutrix should not be relied upon in the present case. He also submits that there is no medical evidence worth the name which would indicate that any crime has been committed. 12. At the outset we may notice that the FIR has been lodged after more than 5 days of the occurrence. The delay of 5 days has not been explained at all. In the complaint it is stated that the delay was caused since the prosecutrix was undergoing treatment but other than the statement of PW. 7 Dr. Radha Debbarma who states that she examined the victim in her chamber on 06.10.2007 no other evidence has been lodged with regard to any treatment. Even Radha Debbarma has not given any details of the nature of injuries, if any, found on the prosecutrix or of the treatment which she had been administered. 7 Dr. Radha Debbarma who states that she examined the victim in her chamber on 06.10.2007 no other evidence has been lodged with regard to any treatment. Even Radha Debbarma has not given any details of the nature of injuries, if any, found on the prosecutrix or of the treatment which she had been administered. Therefore, there is definitely unexplained delay in lodging the FIR. However, we are also taking into consideration the fact that in Indian society a woman may be hesitant to lodge an FIR against her father-in-law but this fact has not been stated by the prosecutrix or her parents. Delay by itself will not mean that the accused is entitled to acquittal. All it means is that the statement of the prosecution witnesses has to be scrutinized with greater care and caution and if there are inconsistencies in the statements of the prosecution witnesses then the benefit of same will have to be given to the accused. 13. In this case, the FIR was lodged after 5 days and, therefore, the prosecutrix had an opportunity to file a detailed FIR after due thought and deliberation. In the FIR, it was stated that when she was alone in her room the accused embraced her from behind. After some time her father-in-law asked her to fetch a bucket of water and soap from the mud well closed by. When she went to the well her father-in-law pushed her inside. While appearing in the witness box the version given by the prosecutrix is slightly different. Here she states that firstly her father-in-law asked her to serve rice and also asked her to bring water from the well. He then embraced her from the waist and tried to commit rape upon her. When she went to the well to bring water then he came from behind and pushed her into the well. We fail to understand that if the accused had caught hold of the prosecutrix, embraced her and tried to rape her why would the prosecutrix on the asking of the accused go to the well to fetch water for him? It is also important to note that PW. 2 states that her three sister-in-laws and the husbands of the two of the sister-in-laws as well as the mother-in-law live in the same house. It is also important to note that PW. 2 states that her three sister-in-laws and the husbands of the two of the sister-in-laws as well as the mother-in-law live in the same house. There is nothing in the statement of the prosecutrix as to where these six persons had gone at the time when the incident took place. The occurrence is stated to have taken place at 9/9.15 in the morning and normally the family members would be expected to be in the house. 14. PW. 1 states that she rescued the prosecutrix from the mud well and when she asked the prosecutrix how she had fallen, the prosecutrix stated that she had been pushed into the well by the accused. She also states that the prosecutrix told them that before pushing her into the well her father-in-law caught hold of her body. This witness does not state that the prosecutrix told her that when the prosecutrix was alone in her room her father-in-law had tried to embrace her from behind or in any other manner outraged her modesty. Most importantly, whereas the prosecutrix in her statement has stated that after she was rescued, her father came and took her to her parental village Gabardi and that she was then taken to the Takarjala hospital, this witness states that the prosecutrix was taken to the Mandai hospital and that this witness went half of the way. This witness also states that from Mandai hospital the prosecutrix came back to the house of her in-laws. 15. There is an inherent contradiction in the statement of the two witnesses because the prosecutrix has not said a word that she was treated at Mandai hospital. The father, who appeared as PW. 3, states that PW. 1 informed him that his daughter had fallen into a well. If the prosecutrix had told PW. 1 that she had been pushed into the well by the accused then at the time when PW. 1 gave information to the father of the prosecutrix she would have told him about this fact also. According to this witness, when he came to the house of his daughter he found his daughter lying in the room. He did not rebuke the accused Suku Debbarma, who was present but only took away his daughter to his own house and thereafter the daughter narrated the facts to him. According to this witness, when he came to the house of his daughter he found his daughter lying in the room. He did not rebuke the accused Suku Debbarma, who was present but only took away his daughter to his own house and thereafter the daughter narrated the facts to him. This story does not appear to be correct because if the prosecutrix had been physically assaulted by the accused then she would have told her father immediately when he came to meet her about the occurrence. This witness has been confronted with the statement under section 161 Cr. P.C. in which there is no mention that he went to the house of his daughter. He also admits that he stated to the police that on receiving information he went straight to the Mandai hospital from Gabardi and saw that his daughter was under treatment and then from the hospital he took her to his own house. Therefore, this witness has given conflicting statements before the police and the Court. As far as the statement of the mother is concerned no reliance on the same can be placed. The same is immaterial. Similar the statement of Malin Debbarma is also not reliable. 16. The prosecution has not placed any material on record to show where the prosecutrix was given medical treatment. The prosecutrix in her statement in Court states that her parents took her to Takarjala hospital. No record of this hospital has been produced. PW. 1 states that the prosecutrix was taken to Mandai hospital. PW. 3, the father also admitted that he had stated to the Police that on receipt of the information from PW. 1 he had gone to the Mandai hospital. No record from this hospital has been produced. The only doctor produced is Dr. Radha Debbarma. All she states is that on 06.08.2007 she examined one patient i.e. the prosecutrix in her chamber at Krishnanagar in Agartala. Therefore, this doctor had not examined the prosecutrix either at Mandai hospital or at Takarjala hospital. This witness has not produced any record of treatment and we fail to understand how without any record she could state on 01.07.2010, about 4 years after the examination that the prosecutrix had visited her on a particular date. As far as PW. Therefore, this doctor had not examined the prosecutrix either at Mandai hospital or at Takarjala hospital. This witness has not produced any record of treatment and we fail to understand how without any record she could state on 01.07.2010, about 4 years after the examination that the prosecutrix had visited her on a particular date. As far as PW. 8 Kishore Debbarma is concerned, he states that the prosecutrix on regaining senses after she was pulled out from the mud well stated that she had been pushed into the well by the accused. However, he does not say a word that the prosecutrix also stated that the accused had tried to outrage her modesty. 17. Both the witnesses relied upon by the prosecution cannot be stated to be independent witnesses as they belonged to rival political parties. Many other villagers were present but nobody else was examined. The prosecution has made no effort to find out where the other family members were at the relevant time. Here it would be pertinent to mention that even though we may not fully rely upon the statement of PW. 1, he does state that after the prosecutrix was rescued from the well she was taken to the Mandai hospital for treatment and that she was being looked after by the sisters-in-law. 18. It is true that normally this Court would believe the statement of a prosecutrix. However, in this case there are many factors which make us doubt her testimony. She has accused her father-in-law of outraging her modesty and also of attempting to kill her. As far as outraging her modesty is concerned, she states that her father-in-law caught her from behind. As pointed out above, Kishore Debbarma has not supported the prosecution in this regard though admittedly he reached the spot almost at the same time as PW. 1. With regard to her being pushed into the well there are different versions. At one time she stated that she was pushed into the well and at other time she stated that her father-in-law also came into the well and tried to drown her. We may point out that when we asked the counsel they said that the said well was not a deep well but like a small pond only. In case the father-in-law had tried to drown the prosecutrix and as stated by PW. We may point out that when we asked the counsel they said that the said well was not a deep well but like a small pond only. In case the father-in-law had tried to drown the prosecutrix and as stated by PW. 1 water had to be pushed out of her belly then she would have definitely suffered some injuries. There is no record of any such injury. Suggestions have been put to the prosecutrix that her relations were strained because she had an affair with somebody else. There is no explanation by the prosecutrix why she kept quiet for five days from 5th October to 10th October. Even if the family members and the prosecutrix had not gone to the police they would have in usual course complained about the incident to the local Gram Panchayat, senior members of the village and the community. No witness has been examined in this regard. Therefore, we are unable to believe the prosecutrix. 19. In view of the above discussion, we allow the appeal, set aside the judgment of conviction and the sentence passed upon the accused. He is directed to be released forthwith unless wanted in any other case.