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2015 DIGILAW 118 (TRI)

Takhirai Debbarma v. State of Tripura

2015-04-01

S.TALAPATRA

body2015
JUDGMENT Heard Mr. N. Majumder, learned legal aid counsel appearing for the appellant as well as Mr. A. Ghosh, learned public prosecutor appearing for the state. 2. This is an appeal by the convict against the judgment of conviction dated 16.12.2011, delivered in S.T.14(NT/KMP)/2011, by the Addl. Sessions Judge, North Tripura, Kamalpur (now Unakoti Judicial District, Kamalpur), convicting him under Sections 457/376(1) of the IPC. As consequence of that conviction, by the order dated 17.12.2011, the appellant has been sentenced to suffer three years rigorous imprisonment alongwith fine of Rs. 1,000 with default sentence under Section 457 of the IPC and further the appellant has been sentenced to suffer rigorous imprisonment for seven years alongwith fine of Rs. 2,000 with default sentence under Section 376(1) of the IPC. 3. The genesis of the prosecution is rooted in the written ejahar filed by one Nirmal Deb (PW.1), husband of the prosecutrix, to the Officer In-charge, Ambassa police station, disclosing that on 12.01.2010 at about 9.00 pm, the appellant stealthily entered in their kitchen and forcibly raped her wife. On hearing her screams, people from the neighbourhood rushed to the place of occurrence. He has stated in the ejahar that, he himself saw the incident. 4. Based on the said written ejahar filed on 12.01.2010, Ambassa P.S. Case No.2/1010 under Sections 457/376 of the IPC was registered and taken up for investigation. Having completed the investigation, the final police report, chargesheeting the appellant, was filed by Smt. Shiuli Deb, Sub-Inspector of Police (PW.10), as from the police papers it appeared prima facie that the offence was committed by the appellant. Since the offence of rape is exclusively triable by the court of Sessions, the police papers were committed to the court of the Addl. Sessions Judge, North Tripura, Kamalpur. 5. On taking cognizance of the offence punishable under Sections 457/376(1) of the IPC, the Addl. Sessions Judge, North Tripura, Kamalpur, framed the charge against the appellant for committing those offences. The appellant however, pleaded total innocence and claimed to face the trial. 6. In order to substantiate the charge, the prosecution adduced as many as eleven witnesses including the victim (PW.5), the informant (PW.1), the medical officer who conducted the medical examination of both the appellant and the victim (PW.11) and the witnesses from the neighbourhood. The appellant however, pleaded total innocence and claimed to face the trial. 6. In order to substantiate the charge, the prosecution adduced as many as eleven witnesses including the victim (PW.5), the informant (PW.1), the medical officer who conducted the medical examination of both the appellant and the victim (PW.11) and the witnesses from the neighbourhood. It is to be noted that the victim was examined under Section 164(5) of the Cr.P.C. after ten days of the occurrence, on 22.01.2010. But, the prosecution has failed to introduce that statement as recorded under Section 164(5) of the Cr.P.C. in the evidence though the victim was examined in the trial. As a result, that report will be of no avail. 7. After recording the prosecution evidence, the appellant was examined under Section 313 of the Cr.P.C. for having his response to the incriminating materials those surfaced in the evidence. But the appellant reiterated that he has been falsely implicated in the case. 8. Mr. N. Majumder, learned counsel appearing for the appellant, has categorically stated that there is no legal evidence of rape as defined under Section 375 of the IPC. Moreover, he has submitted that if the transaction as surfaced from the prosecution evidence is keenly scrutinised, it would be apparent that both the victim and her husband have made mutually destructive statements or they stated in the trial, contrary to what they had stated to the police officer during the investigation. Mr. Majumder, learned counsel, has submitted that there was a dispute on account of realising a petty amount, for which the appellant had been insisting the informant (PW.1) and for harassing him, he had been implicated in that false case. He has continued to submit that the victim is a collaborator in his design and it may so happen that when the appellant visited the house of PW.1, his wife raised alarm for no cause and the persons from the neighbourhood rushed to the place of occurrence and they believed the version of the prosecutrix. 9. Appearing for the state, Mr. Ghosh, learned public prosecutor, has expressed his dismay, pointing out to this court that the informant himself turned hostile and did not support the prosecution case. Even the victim has made statements in contrast to what her husband has stated in the trial or to the Investigating Officer during investigation. However, Mr. 9. Appearing for the state, Mr. Ghosh, learned public prosecutor, has expressed his dismay, pointing out to this court that the informant himself turned hostile and did not support the prosecution case. Even the victim has made statements in contrast to what her husband has stated in the trial or to the Investigating Officer during investigation. However, Mr. Ghosh, learned public prosecutor, has strongly contended that, even if there is no evidence of rape to the satisfaction of the court, but from the evidence it has been established beyond any reasonable doubt that there had been attempt of rape on the prosecutrix and the appellant caused the criminal trespass with intent to commit the offence of rape. Thus Mr. Ghosh, learned public prosecutor, has contended that no interference is required so far the finding of conviction under Section 457 of the IPC is concerned. However, he has submitted that the charge as framed under Section 376(1) of the IPC may be held not proved. But, from the materials, which were placed even for the response of the appellant would unwaveringly show that the appellant committed the offence of attempting rape on the prosecutrix. Thus Mr. Ghosh, learned public prosecutor has urged this court to alter/convert the charge under Section 376(1) read with Section 511 of the IPC and to sentence the appellant accordingly. 10. Having regard to these rival contentions, this court has scrutinised the records thoroughly. It appears that even though the prosecutrix (PW.5), whose name has been withheld by this court for obvious purpose of protecting her identity, was produced before the Judicial Magistrate for recording her statement under Section 164(5) of the Cr.P.C. after ten days of the occurrence, when on the very night of the occurrence the written ejahar was lodged in the concerned police station and the case was duly registered immediately after filing of the written ejahar. The Investigating Officer has not come out with any explanation why she has made such delay in producing the prosecutrix before the court of the Judicial Magistrate who had recorded her statement under Section 164(5) of the Cr.P.C. That apart, the prosecutrix was produced before the medical officer, namely Dr. Sangita Reang (PW.11), at whose instance the medical report has been introduced in the evidence, as Exbt.10 series. 11. Dr. Sangita Reang (PW.11), at whose instance the medical report has been introduced in the evidence, as Exbt.10 series. 11. Dr. Sangita Reang, in the trial, has categorically stated that from the examination that she conducted on 12.01.2010, she did not find any sign of rape. However, she has stated that she collected the samples of vaginal swab of the prosecutrix and handed over those samples to the Investigating Officer in presence of the witnesses. It is also apparent from the record of evidence that the inner garments of the prosecutrix were seized by the Investigating Officer, where apparently there were some marks of dry spermatozoa. Both the wearing apparels and the samples of vaginal swab were sent to the State Forensic Science Laboratory under proper seal. The report of the State Forensic Science Laboratory has been placed in the evidence at the instance of the Investigating Officer, but no scientific officer from the State Forensic Science Laboratory was examined. 12. On going through the report of the State Forensic Science Laboratory, it appears that the experts of the State Forensic Science Laboratory have confirmed that there was presence of no spermatozoa in the vaginal swab collected from the prosecutrix. When an attempt was taken to match the spermatozoa, suspected to be present in the inner garment of the prosecutrix, the State Forensic Science Laboratory has categorically held that no inference can be drawn on matching. Thus both the medical examination report and the report of the State Forensic Science Laboratory did not support the alleged offence of rape as stated by the prosecutrix in the trial. 13. In this perspective, if the oral testimonies of the witnesses are considered, there appears three sets of witnesses, viz. (i) the prosecutrix and her husband who claimed to be present in the place of occurrence, (ii) the witnesses who rushed from the neighbourhood and detained the appellant and immediately heard from the prosecutrix (PW.5) that she was raped by the appellant and (iii) the technical witnesses, such as Dr. Jatileswar Debbarma (PW.9), Dr. Sangita Reang (PW.11) and Smt. Shiuli Deb (PW.11), the investigating Officer. 14. No doubt, the most vial witnesses are PW.1 and PW.5. Jatileswar Debbarma (PW.9), Dr. Sangita Reang (PW.11) and Smt. Shiuli Deb (PW.11), the investigating Officer. 14. No doubt, the most vial witnesses are PW.1 and PW.5. PW.1, Nirmal Deb, who filed the written ejahar (Exbt.2), disclosing commission of offence in his presence, turned hostile and did not support the prosecution case, as his statement in the trial completely is in contrast to what he had stated to the police officer that the appellant entered in their kitchen by breaking the back-side door, threatened him by showing a dao and out of fear he fled away from the house. Later on, he, with the support of the neighbouring people, who were named by him in the trial, could detain the appellant. He has, however, stated that his wife, the prosecutrix, told him that the appellant threatened her and also throttled her. The prosecution could not make him to state in the line what he had stated before the Investigating Officer. However, the prosecution has proved what he had stated in his statement before the Investigating Officer and what had been recorded under Section 161 of the Cr.P.C. 15. PW.2, Smt. Dipti Deb, who is the sister of the prosecutix, is a hearsay witness. She has simply stated that the prosecutrix told her that the appellant entered into their house and forcibly committed rape on the prosecutrix and also throttled her. She has further stated that she saw rice, dal etc., lying scattered in her hut. She also narrated about the medical examination of the prosecutrix. 16. PW.3, Ajit Deb, a witness from the village of PWs. 1 and 5, has stated that, on being asked the prosecutrix told him that the appellant committed rape on her and also throttled her. 17. Ashim Deb (PW.4), Samir Das (PW.6) and Rajesh Das (PW.7), who are the neighbouring witnesses, have stated in the trial in the same vein of PW.3. 18. PW.5, the prosecutrix herself, has stated in the trial as under : “Thakirai entered in my kitchen by breaking door and forcibly committed rape on me and at the time of committing rape he throttled me and pressed my mouth. At the time of incident my husband was not present in my house. He went to picnic spot which held on the occasion of “pous sankranti” by local people. At the time of incident my husband was not present in my house. He went to picnic spot which held on the occasion of “pous sankranti” by local people. I raised alarm, then local persons came to our house and my husband also came to the house with them. They caught red-handed Thakirai in my room. After a short-while Darogababu and Police staff also came to our house.” In the cross-examination, she has also introduced a new turn in the story by stating that the appellant gave her a dao blow and as a result of which her little finger of right hand was injured. 19. PW.8, Uttam Deb, another neighbouring witness, has also stated that he came to know from the persons present in the house of PW.1 that since the appellant entered the house of PW.1 forcefully, they detained the appellant. This witness was also declared hostile by the prosecution. His statement that, PW.5 stated to him that the appellant was in an inebriated condition raped the prosecutrix by covering her mouth so that she could not raise any alarm, has been placed in the record of evidence. 20. PW.9, Dr. Jatileswar Debbarma, who received the requisition from the Investigating Officer for collecting the sample of blood of the accused person, had collected the blood sample of the appellant and handed over the same to the Investigating Officer on 05.07.2010. 21. PW.10, Smt. Shiuli Das, the Sub-Inspector of Police, who investigated the case, has narrated in the trial how she conducted the investigation, seized the vital materials to unearth the truth and prepared the hand-sketch map to place the graphic representation in the trial about the position of the place of occurrence. She has introduced in the evidence, the report of the State Forensic Science Laboratory (Exbt.9). She has further stated in the trial that she forwarded the prosecutrix in the court of the Judicial Magistrate for recording her statement under Section 164(5) of the Cr.P.C. In the cross-examination, she has admitted that in the seizure list there was some mistake which had been later on corrected. 22. If the prosecution evidence as a whole is appreciated, it can be safely said that there is no evidence of rape though the prosecutrix has stated that she was forcibly raped by the appellant. 22. If the prosecution evidence as a whole is appreciated, it can be safely said that there is no evidence of rape though the prosecutrix has stated that she was forcibly raped by the appellant. But, the statement of PW.1, even PW.5 is perforated by exaggeration and turn-around by introduction of completely a new version at the time of trial. Moreover, the prosecutrix cannot be wholly believed in view of the medical examination report and the report of the State Forensic Science Laboratory. But, from the statement of the independent witnesses as referred and also from the statement of the prosecutrix, it appears that the appellant admitted to commit rape by criminally trespassing and entering the house of PWs. 1 and 5. There was scuffle and for that purpose the statement of PW.2 is of vital importance as she has stated that after she appeared in the place of occurrence, she saw rice, dal etc. were lying scattered inside the hut of PWs 1 and 5. As such, the evidence as led by the prosecution eloquently indicates to applying force on the prosecutrix. If this piece of evidence are juxtaposed with what the prosecutrix stated in the trial or to the police officer, it would transpire without any shred of doubt that the appellant was either under the influence of liquor or attempted to commit rape on the prosecutrix. 23. Thus, this court is in agreement with what Mr. Ghosh, learned public prosecutor has submitted that the materials on evidence clearly shows that the appellant attempted to commit rape on the prosecutrix(PW.5). As it has been held that the prosecution failed to admit adequate evidence beyond reasonable doubt to hold that the appellant committed rape within the meaning of Section 375 of the IPC, the appellant is entitled to acquittal from the charge under Section 376(1) of the IPC on benefit of doubt. However, having confronted with the materials as placed by the prosecution and responded by the appellant, this court is satisfied that the prosecution has established the charge under Section 376(1) read with Section 511 of the IPC. However, having confronted with the materials as placed by the prosecution and responded by the appellant, this court is satisfied that the prosecution has established the charge under Section 376(1) read with Section 511 of the IPC. Since the offence of attempting rape and rape are cognate to each other, this court, without framing formal charge, would convict the appellant under Section 376(1) read with Section 511 of the IPC for committing the offence of attempting rape on the prosecutrix (PW.5), in exercise of its power provided under Section 222 of the Cr.P.C. However, the finding of conviction as returned for committing the offence punishable under Section 457 of the IPC does not require any interference from this court. 24. Having observed thus, now it is incumbent on this Court to adequately sentence the appellant. Having regard to all aspects, aggravating and mitigating circumstances, this court is of the considered opinion that the appellant shall be sentenced to suffer 3(three) years rigorous imprisonment with fine of Rs. 5,000 (rupees five thousand), in default of payment of fine, he should suffer further rigorous imprisonment for 6(six) months for committing the offence punishable under Section 376(1) read with Section 511 of the IPC. It is ordered accordingly. The sentence as passed by the trial court for commission of the offence punishable under Section 457 of the IPC is hereby affirmed. It is to be noted here that both the sentences shall run concurrently. 25. It has been stated by Mr. N. Majumder, learned counsel appearing for the appellant that the appellant has been under detention during the investigation and trial i.e. w.e.f. 13.01.2010 to 05.03.2010 and from 25.04.2011 to 06.09.2011 (total 185 days), as reflected in para 31 of the impugned order of sentence. Apart that, the appellant is in jail since 17.12.2011 till date. Thus, the appellant has suffered the entire sentence in view of this judgment and order, even including the default sentence. Accordingly, the appellant shall be released from the jail forthwith if he is not wanted in any other case. 26. In the result, the appeal stands partly allowed. Send down the LCRs forthwith. Mr. N. Majumder, learned counsel, has volunteered that he will not charge any fees from the High Court Legal Services Committee for conducting the case on behalf of the appellant.