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Tripura High Court · body

2015 DIGILAW 176 (TRI)

Swapan Paul v. State of Tripura

2015-04-17

DEEPAK GUPTA, U.B.SAHA

body2015
JUDGMENT These two appeals by the accused are directed against the judgment dated 25.01.2012 passed by the learned Chief Judicial Magistrate, North Tripura, Kailashahar in GR Case No.28 of 2006 whereby he convicted the accused of having committed offences punishable under Sections 452, 354, 385 and 506 r/w Section 34 I.P.C and sentenced them to imprisonment as follows : “Accordingly, the convicts namely Asit Das and Swapan Paul are sentenced to suffer rigorous imprisonment for 7(seven) years under Section 452 read with 34 of the Indian Penal Code. They are also sentenced to pay fine of Rs.5,000/- (Rupees five thousand) each only under Section 452 read with 34 of the Indian Penal Code and in default, they shall have to suffer simple imprisonment for 2(two) months. The convicts are also sentenced to suffer rigorous imprisonment for 2(two) years under Section 354 read with 34 of the Indian Penal Code. They are also sentenced to pay fine of Rs.5,000/- (Rupees five thousand) each only under Section 354 read with 34 of the Indian Penal Code and in default, they shall have to suffer simple imprisonment for 2(two) months. Further, the convicts are sentenced to suffer rigorous imprisonment for 2(two) years under Section 385 read with 34 of the Indian Penal Code. They are also sentenced to pay fine of Rs.5,000/- (Rupees five thousand) each only under Section 385 read with 34 of the Indian Penal Code and in default, they shall have to suffer simple imprisonment for 2(two) months. Lastly, the convicts are sentenced to suffer rigorous imprisonment for 2(two) years under Section 506 read with 34 of the Indian Penal Code. They are also sentenced to pay fine of Rs.5,000/- (Rupees five thousand) each only under Section 506 read with 34 of the Indian Penal Code and in default, they shall have to suffer simple imprisonment for 2(two) months. All the sentences of imprisonment shall run consecutively.” 2. The prosecution story briefly stated is that the accused persons trespassed into the house of the informant in furtherance of common intention and outraged the modesty of the informant and also made an attempt to extort money and threatened her with dire consequences in case the incident is brought to the notice of the police or the public. 3. The prosecution story briefly stated is that the accused persons trespassed into the house of the informant in furtherance of common intention and outraged the modesty of the informant and also made an attempt to extort money and threatened her with dire consequences in case the incident is brought to the notice of the police or the public. 3. On the complaint of the informant (name withheld) FIR No.4 of 2006 was registered with Police Station Manu on 7th February, 2006 at about 4.35 p.m. It would be pertinent to mention that the FIR was registered on the basis of a complaint made to the Chief Judicial Magistrate, North Tripura and in this complaint it was mentioned that on 18.01.2006 the husband of the complainant had gone out in connection with his work. Only the complainant, her sister and 4 year old minor son were at home. On 21.01.2006 in the evening Bhagyajoy Reang, a relative and friend of the complainant’s husband and a government employee, came to the complainant’s house for some work. He stayed back the night and arrangements were made for him to sleep in a separate room of the same hut. 4. At about 11.00 p.m. a knocking sound was heard on the door and the persons knocking on the door introduced themselves as police personnel of Manu Police Station. The complainant switched on the light and opened the door. In the meantime the younger sister of the complainant woke up Bhagyajoy Reang and brought him from the adjacent room. The complainant saw the ‘name plate’ on the chest of the ‘darogababu’ and with the help of the light identified him as S.I., Asit Das(accused). He was accompanied by two armed personnel of Manu P.S namely, Swapan Paul and Mr. Amit Dey. S.I., Asit Das wanted to know what Bhagyajoy Reang was doing in the house of the complainant and started slapping and gave him feast blows questioning how Bhagyajoy Reang was spending the night in the house of the complainant. He then took out his gun and threatened to kill Bhagyajoy Reang. The complainant raised objection and resisted and at that moment, the S.I., Asit Das slapped her and threatened her by pointing the gun at her and told her that he would kill her if she raised an alarm. He then took out his gun and threatened to kill Bhagyajoy Reang. The complainant raised objection and resisted and at that moment, the S.I., Asit Das slapped her and threatened her by pointing the gun at her and told her that he would kill her if she raised an alarm. Thereafter the complainant and Bhagyajoy were forcibly made to sit down and later lie down on the bed and indecent photographs were taken. Then their signatures were obtained on two blank sheets of paper. The police officials snatched the mobile phone of Bhagyajoy having number 9436134751 and demanded that Rupees one lakh be given by 25.01.2006 or else they would implicate Bhagyajoy in a false case and send both of them to jail. They also threatened that Bhagyajoy would lose his job. Asit Das then pushed Bhagyajoy and handed him over to other police personal who took Bhagyajoy outside the room after kicking him. 5. Thereafter the accused Asit Das was with the complainant alone in the room. He forcibly made the complainant lie down on the bed, tore her blouse, climbed on top of her and kissed her. He threatened her with the gun and stated that if she raised alarm he would also kill the child who was sleeping at that time. The complainant then started crying. The accused Asit Das also gave his mobile number to the complainant and told her that she should satisfy him before 25.01.2006 or else she will suffer. Next day the complainant narrated the entire incident to her relatives and sent news to her husband. After her husband came, the names of other armed police personnel were found out from the Police Station and complaint was lodged at the police station but the police did not lodge the FIR and therefore, she approached the Court. After the matter was referred to the police by the Court, the FIR was registered and after completion of the investigation, charge sheet was filed against the three accused i.e. the S.I. and two police personnel and they were charged with having committed offences punishable under Sections 452, 354, 385 and 506 read with Section 34 of I.P.C. After trial the trial Court convicted the accused as aforesaid. Hence this appeal. 6. The main ground raised by Mr. Hence this appeal. 6. The main ground raised by Mr. P.K. Biswas, learned senior counsel for the appellants is that there are contradictions in the statement which are (i) that the FIR is highly delayed and there is no explanation as to why the FIR was not lodged immediately after the occurrence and (ii) that there is material contradiction in the statement of the witnesses especially with regard to the date on which occurrence had taken place. In this behalf he submitted that whereas as per the complainant the occurrence took place on 18.01.2006, the charge was framed with regard to the incident having taken place on 21.01.2006 and, therefore, it is submitted that the conviction of the appellants is liable to be set aside. He further submits that there is no evidence of demand of rupees one lakh. It is also argued that there is no proper identification of the police officials. It is also submitted that the complainant has failed to prove as to how Bhagyajoy Reang who was not at all a relative was permitted to stay in the house of the prosecutrix in absence of her husband. 7. At the outset we shall deal with the objection that the complaint is highly belated. The occurrence took place on late in the night of 21.01.2006 and may in fact have ended in the early hours of the morning on 22.01.2006 at 2.30 a.m. The complainant was at home with her younger sister and her minor son and Bhagyajoy Reang. It may be mentioned that there is a document Exbt.3 on record which is a hand written complaint of the complainant addressed to the Sub-Divisional Police Officer(SDPO), Longtharai Valley Sub-Division, Manughat, Dhalai, Tripura and it appears to have been entered at Sl.No.366 on 23.01.2006. It has been forwarded to the Superintendent of Police(RSV), Dhalai for favour of kind information and further instructions on 23.01.2006 itself but it is not clear who had forwarded this document. Therefore, the first complaint was lodged on 23.01.2006. Unfortunately, because the accused were police officials, no action appears to have been taken on the complaint Exbt.3, forcing the complainant to approach the Court and only thereafter FIR was lodged. In my view, there is no delay because the occurrence took place on 21/22nd January, 2006. Therefore, the first complaint was lodged on 23.01.2006. Unfortunately, because the accused were police officials, no action appears to have been taken on the complaint Exbt.3, forcing the complainant to approach the Court and only thereafter FIR was lodged. In my view, there is no delay because the occurrence took place on 21/22nd January, 2006. The victim must have been traumatized of an attack by the police officials who are supposed to protect the citizens and therefore, the delay cannot be said to be unexplained. Furthermore, in the first complaint itself it is mentioned that the police officials had threatened the complainant and Bhagyajoy Reang that if they made the matter public they would suffer. It would be pertinent to mention that what is stated in Exbt.3 is identical to what has been stated in the complaint on all material particulars. Therefore, there is virtually no delay in filing the complaint and in fact, it is more than apparent that the officials in the Police Station were trying to protect their colleague and therefore, the F.I.R was not being lodged. 8. Coming to the evidence of the case I find that the victim-complainant has fully supported her case. However, in the first line it is mentioned that the occurrence took place on 18.01.2006. Otherwise her version is identical to what is stated in the earlier complaint to the SDPO as well as to the Court. She has clearly stated that she noticed the name of Asit Das from his name plate which fact is also stated in the earlier two complaints. She again states that the accused Asit Das was concerned as to how Bhagyajoy was staying in her house in absence of her husband. She has clearly stated that the police official entered her house and slapped Bhagyajoy and slapped her also. Thereafter the constables on the instructions of Asit Das forcibly made the complainant and Bhagyajoy lie together and took some photographs and a sum of rupees one lakh was demanded from Bhagyajoy, otherwise these photographs would be shown to the husband of the complainant. Then the constables took Bhagyajoy and her sister outside the room where after Asit Das remained inside the room and molested the complainant. He also gave telephone mobile number 94361**751. The victim stated that she had forgotten the two digits. Then the constables took Bhagyajoy and her sister outside the room where after Asit Das remained inside the room and molested the complainant. He also gave telephone mobile number 94361**751. The victim stated that she had forgotten the two digits. It would, however, be not out of place to mention that even in Exbt.3 addressed to SDPO, Longtharai Valley on 23.01.2006 the number given was 9436134751. Even in the complaint made to the Magistrate this number is given. It would be pertinent to mention that in the statement of this witness recorded before the Magistrate it was mentioned that her husband was out of the house from 18.01.2006 to 22.01.2006. From the trend of cross-examination it is apparent that the victim stated that she had visited the Police Station on 23.01.2006 to lodge the complaint about the incident which took place on 18.01.2006. 9. PW.8 is Bhagyajoy Reang. He is posted as Junior Engineer in Water Resources under Public Works Department at Manughat. According to him, in the month of January, 2006 he had gone to the house of Joy Bahadur Reang, a contractor and stayed the night in the house of Joy Bahadur in his absence. The victim, who is the wife of Joy Bahadur and her sister were in the house. According to him, they gossiped till late at night and then he spent the night there since it was already dark. He further states that a partition was created in the big room and he slept on the other side of the partition. At about 11.00 p.m. there was knocking on the door, the victim opened the door and police officials entered and one of them was identified as Asit Das. He has otherwise fully supported the version of the victim that both of them were beaten up and forced to lie down on the bed and indecent photographs were taken by the police. He also states that later the victim told him that Asit Das had tried to commit rape with her and had outraged her modesty. The cross-examination is of total denial. 10. PW.4 is the sister of the victim. She is also aged about 18/19 years old and according to her, the incident took place on 21.01.2006. She has stated that her brother-in-law had left the house two days earlier and she was staying with her sister. The cross-examination is of total denial. 10. PW.4 is the sister of the victim. She is also aged about 18/19 years old and according to her, the incident took place on 21.01.2006. She has stated that her brother-in-law had left the house two days earlier and she was staying with her sister. Late at night after 10.00 p.m. police people knocked at the door. The complainant opened the door and then three police personnel entered the house. According to her, she was standing in the partition door and was watching everything. In her presence the police personnel slapped Bhagyajoy and also caused hurt to her sister. The police officials also forced Bhagyajoy and her sister to be photographed in obscene postures. They also obtained signatures of Bhagyajoy and her sister on two blank sheets of paper. The witness identified Swapan Paul. She also states that after the police officials left, her sister told her that Asit Das had behaved in a bad manner and had touched her body and kissed her face and had torn her wearing apparel. According to her, the incident took place on 21.01.2006. 11. The husband appeared as PW.3 and his statement is only relevant to the extent that he states that he came back to the house and learnt from his wife that Bhagyajoy had stayed in the night and thereafter the police officials had come and acted in the manner as mentioned. This witness has clearly stated that he and his wife had lodged a complaint with the SDPO. In my view it is not relevant to refer to the other evidence. 12. True it is that the victim has given the date of occurrence as 18.01.2006 in her statement but as rightly held by the learned trial Court this will make no difference to the case. Merely because the victim has given a wrong date is not by itself sufficient ground to discredit her entire testimony when it is supported by other ocular and documentary evidence. The facts of the case have to be appreciated by taking all the evidence and material on record. In the FIR as well as in the complaint to the SDPO, the date is rightly mentioned as 21.01.2006. In the statement, the date was mentioned as 18.01.2006. The facts of the case have to be appreciated by taking all the evidence and material on record. In the FIR as well as in the complaint to the SDPO, the date is rightly mentioned as 21.01.2006. In the statement, the date was mentioned as 18.01.2006. In fact, it was the duty of the Presiding Officer of the Court and the Public Prosecutor to have got this date clarified from the victim at that very moment. Unfortunately, this was not done. One cannot lose sight of the fact that many times citizens get overawed by the atmosphere of the Court. The victim is a mere housewife. She is a tribal lady. She has undergone an experience of the most traumatizing nature. Her modesty has been attacked by those persons who are supposed to be her protectors. Allegations of immorality have been made against her. She was threatened with dire consequences. She had the courage to file a written complaint before the police as well as with the Court. Unfortunately, the police officials did not take any action till the Court sent the matter to the police. Her statement has to be appreciated in this context and as rightly held by the trial Court who had the benefit of observing the demenour of the witnesses, the statement of the victim inspires confidence. Her statement was recorded two and half years after the incident and the accused cannot be let free only on the ground that there is a mistake in giving the date. 13. At this stage it would be pertinent to mention that in the complaint filed initially on 23.01.2006 the phone number of accused Asit Das was given. PW.7, who initially investigated the matter, seized the torn wearing apparels of the informant and a piece of paper containing the mobile number 9436135745. This number is of accused Asit Das. It may not have been proved that this number was written by S.I., Asit Das but it is clear that this phone number is his. How the victim knew the number of Asit Das because it is no body’s case that the victim and Asit Das were known to each other prior to the occurrence. It may not have been proved that this number was written by S.I., Asit Das but it is clear that this phone number is his. How the victim knew the number of Asit Das because it is no body’s case that the victim and Asit Das were known to each other prior to the occurrence. At this stage it would also be pertinent to mention that the investigation has proved on record two GD entry reports one in GD entry No.990 made by Asit Das on 21.01.2006 wherein it was mentioned that Asit Das went on foot patrolling duty at 10.30 p.m. along with Constable Swapan Paul and SPO Amit Dey and another in GD entry No.993 dated 22.01.2006 at 2.30 a.m. when they returned back. Therefore, it stands fully proved that S.I., Asit Das accompanied by the other two accused Swapan Paul and Amit Dey had gone on patrolling duty and returned early the next morning. 14. In view of the above discussion, we are clearly of the opinion that the version put up by the victim supported by Bhagyajoy Reang, her sister and husband is absolutely correct. The police officials had no business of entering the house of any citizen that too in the late hours without having a search warrant and even if there is no time to obtain a search warrant, there should be some reason why they should enter the house of any citizen. The police force is not a moral police force. What was Bhagyajoy Reang doing in the house of the victim is of no concern to the police. Therefore, we are clearly of the view that the police officials entered the house of the victim with criminal intent in mind. The victim has been molested and the offence under Section 354 I.P.C is proved. It is also proved that there was extortion and therefore, we have no hesitation in dismissing the appeals filed by the appellants. 15. On behalf of Swapan Paul and Amit Dey it was argued that these two accused have not been properly identified and no Test Identification Parade was done and the sentenced imposed upon them is very harsh. It is true that in the first two complaints these two police officials were not identified. It is also true that normally a ‘Test Identification Parade’ should have been conducted. It is true that in the first two complaints these two police officials were not identified. It is also true that normally a ‘Test Identification Parade’ should have been conducted. However, this Court cannot lose sight of the fact that from the materials on record it is apparent that the police officials were trying to protect the accused and for fault of the police in investigating matters against its own police officials the victim and society should not suffer. It is Swapan Paul and Amit Dey who accompanied Asit Das as per the general diary register and they both came back along with Asit Das next morning. Therefore, there could have been none other with Asit Das but the aforesaid two officials. These officials have also been identified by the victim and other witnesses in Court. In our opinion, no mercy can be shown in the present case because the protectors of the law themselves have violated the law. 16. A copy of this judgment shall be sent to the Director General of Police(DGP) who shall inquire as to why no FIR was registered on receipt of the written complaint Exbt.3 which is addressed to the Sub-Divisional Police Officer, Longtharai Valley Sub-Division, Manughat, Dhalai and forwarded by him to the Superintendent of Police (RSV) Dhalai probably on 23rd January, 2006 itself. The DGP shall conduct an inquiry and shall ensure that appropriate action is taken against the concerned police officials. However, before initiating inquiry the DGP will verify the facts and submit a report to this Court on or before 5th May, 2015. The Registrar General is directed to send a copy of this judgment along with a copy of Exbt.3 which is on pages 30 and 31 of the trial Court’s file. Send down the LCRs forthwith.