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Tripura High Court · body

2015 DIGILAW 222 (TRI)

Ratneswar Datta v. State of Tripura

2015-04-29

S.TALAPATRA, U.B.SAHA

body2015
JUDGMENT S. Talapatra, J. 1. This is an appeal under Section 374(2) of the Cr.P.C. by the convict, hereafter referred to as the appellant, questioning the judgment of conviction dated 15.12.2011 delivered in ST 18 (ST/B) of 2011 by the Addl. Sessions Judge, Belonia, South Tripura. By the said judgment, the appellant has been convicted under Sections 448 and 376(1) of the I.P.C. As consequence of that conviction, the appellant has been sentenced to suffer rigorous imprisonment for a period of one year for committing the offence punishable under Section 448 of the I.P.C. and rigorous imprisonment for 10(ten) years and to pay a fine of Rs.50,000/- with default sentence of 3(three) years for committing the offence punishable under Section 376(1) of the I.P.C. 2. The complaint dated 30.06.2001 filed by the prosecutrix (name withheld for protecting her identity) disclosed that the appellant with intention to commit offence entered in their house and against her will and on applying force, the appellant violated her person in the afternoon at about 3.50 pm committed rape. On hearing her groaning, when her father ‘broke open the door’ of a room situated in the varandah where the prosecutrix was pushed inside, the appellant fled away. 3. Based on the said complaint, Baikhora Police Station Case No.27 of 2001 under Section 376(1) of the I.P.C was registered and taken up for investigation. On completion of the investigation, the police filed the final report chargsheeting the appellant under Sections 448/376(1) of the I.P.C. 4. As the case was exclusively triable by the court of Sessions, it was committed to the court of the Addl. Sessions Judge, South Tripura, Belonia who framed the charge against the appellant distinctly under Sections 448 and 376(1) of the I.P.C. which the appellant categorically denied and claimed to face the trial. 5. In order to substantiate the charge, the prosecution adduced as many as 10(ten) witnesses including the prosecutrix, her father, the investigating officer and the Medical Officer, who conducted the medical examination. In addition to the oral evidence, the prosecution introduced as many as 5(five) documentary evidence Exbts.1 to 5 including the statement of the prosecutrix recorded under Section 164 of the Cr.P.C., medical examination reports and the complaint. In addition to the oral evidence, the prosecution introduced as many as 5(five) documentary evidence Exbts.1 to 5 including the statement of the prosecutrix recorded under Section 164 of the Cr.P.C., medical examination reports and the complaint. After the evidence by the prosecution was recorded, the appellant was examined under Section 313 of the Cr.P.C., when he denied the incriminating materials surfaced in the evidence as false and beyond his knowledge. In response to question No.13, the appellant has stated that he has been implicated in the case for a land dispute and for the reason that he had love affairs with the prosecutrix which was not liked by her parents. 6. Mr. P.K. Biswas, learned senior counsel assisted by Mr. P. Majumder, learned counsel appearing for the appellant has submitted that there is no legal evidence to return the finding of the conviction. Emphatically he has laid that the best evidence in proof of age of the prosecutrix has been withheld. In this regard, the statement of the prosecutrix cannot be believed as after 10 years of the alleged occurrence when her statement was recorded in the trial, she has stated that on that day her age was 21 years whereas in the complaint she disclosed her age to be 15 years. Even when her statement under Section 164 of the Cr.P.C. was recorded she had stated her age to be 16 years. Mr. Biswas, learned senior counsel has referred to the statement of PW-9, Sri Naresh Chandra Ghosh, who investigated the case where he has admitted that the age of the victim was between 14 to 16 years as per the ossification report. Mr. Biswas, learned senior counsel has also pointed out that the Radiologist has observed that on the day of examination, her age was below 17 years. Having referred thus, Mr. Biswas, learned senior counsel has contended that the finding as returned that the victim was below 16 years is perverse. 7. Further Mr. Biswas, learned senior counsel has submitted that the testimony of the prosecutrix cannot be believed if her statements are meticulously scanned alongside the previous statement recorded by the investigating officer. The prosecutrix admitted that she did not make any such statement that she could not raise any cry as her mouth and neck were pressed by the appellant. Further Mr. Biswas, learned senior counsel has submitted that the testimony of the prosecutrix cannot be believed if her statements are meticulously scanned alongside the previous statement recorded by the investigating officer. The prosecutrix admitted that she did not make any such statement that she could not raise any cry as her mouth and neck were pressed by the appellant. She has even admitted that she did not make any such statement even to the Magistrate when her statement was recorded under Section 164(5) of the Cr.P.C. The prosecutrix has also admitted that she did not make any statement to the Magistrate that she had tried to resist the appellant from committing rape. Mr. P.K. Biswas, learned senior counsel has also laid that the prosecutrix has stated when her father entered in the room, the accused was in the cot and she was sitting on that cot. It shows that even if there had been sexual intercourse that had been consensual in nature. At the last lap of his submission, Mr. Biswas, learned senior counsel has submitted that the prosecutrix nowhere stated that she had disclosed how the occurrence took place to her father, Sri Dulal Chowdhury (PW-2). What PW-2 had seen that the appellant was sitting with her daughter on the cot and on seeing him, the appellant tried to hide under the cot. Even her father did not raise any alarm under such abnormal circumstances. The appellant escaped from the place of occurrence. From the sequential analysis, according to Mr. Biswas, learned senior counsel, the episode of sexual intercourse without consent cannot be believed by a reasonable man. 8. From the other side, Mr. R.C. Debnath, learned Addl. P.P. appearing for the State has contended that the impugned judgment is well reasoned inasmuch as the prosecutrix has given the sequence of the sexual act committed by the appellant. Having been attracted by the cries of the prosecutrix, PW-2 reached the spot when the appellant fled away. Apart that, the testimonies of Smt. Mina Chowdhury (PW-3), Sri Manik Koloy (PW-4) and Sri Parimal Chandra Das (PW-5) are of materials importance as they were informed immediately after the occurrence. Mr. Debnath, learned Addl. P.P. has submitted that the sexual intercourse committed by the appellant has been proved to have been committed without consent of the prosecutrix. Apart that, the testimonies of Smt. Mina Chowdhury (PW-3), Sri Manik Koloy (PW-4) and Sri Parimal Chandra Das (PW-5) are of materials importance as they were informed immediately after the occurrence. Mr. Debnath, learned Addl. P.P. has submitted that the sexual intercourse committed by the appellant has been proved to have been committed without consent of the prosecutrix. Even absence of consent can be presumed since the prosecutrix was below the age of 16 years, when the prosecutrix has stated in the trial that she did not give consent. The court shall presume that she did not give consent, in terms of the provisions of Section 114-A of the Evidence Act. According to Mr. Debnath, learned Addl. P.P. consent has been well proved by the prosecution and hence, no interference is called for in the impugned judgment. 9. For appreciating the rival contentions as laid by the counsel representing the parties, it becomes incumbent on this Court to re-appreciate the evidence both oral and documentary. No doubt, the complaint (Exbts.1 and 3) is cryptic in nature and it does not provide the transaction in the appreciable detail. Immediately, after filing of the complaint dated 30.06.2001, the statement of the prosecutrix was recorded under Section 164(5) of the Cr.P.C. by the Sub-Divisional Judicial Magistrate, South Tripura, Belonia where the prosecutrix has given some more details stating that when she was thrashing paddy sitting on the varandah of her room, the appellant appeared there and pressed her throat and pushed her inside a room in the varandah and forcibly opened the panty on her wearing. Thereafter, the appellant committed the sexual intercourse laying her on the chowki (the wooden cot) in that room. At that time, there was none in the house. On hearing her groaning, her father came and called her. Then the appellant tried to hide him under the said chowki in order to conceal his presence. Her father ‘bolted the door’, but the appellant broke open the door and fled away. She has categorically stated in that very statement that dispute ‘existed’ between Ratneswar and her father from before. The said statement has been admitted in the evidence as Exbt.2 though the Judicial Officer was not examined. There is no infirmity in such admission. 10. Her father ‘bolted the door’, but the appellant broke open the door and fled away. She has categorically stated in that very statement that dispute ‘existed’ between Ratneswar and her father from before. The said statement has been admitted in the evidence as Exbt.2 though the Judicial Officer was not examined. There is no infirmity in such admission. 10. When the prosecutrix made her statement in the trial as PW-1 she almost replicated her statement made under Section 164(5) of the Cr.P.C. but she has added that she could not raise any alarm properly as the appellant pressed her mouth and neck but her father (PW-2) heard her groaning and he arrived at the place of occurrence. The appellant tried to hide him under the cot. Then she has stated that ‘my father’ closed the door but the appellant fled away opening the door. She narrated the incident to her father. Thereafter, they being joined by her mother, went to the office of a political party and arranged writing of the complaint. She has admitted that she was examined by the Judicial Officer. In the cross-examination, she has admitted that she was studying in the Kusharghat Primary School. At the time of incident, she has admitted that she was living with her 4(four) brothers and sisters. She has further admitted that she did not state in the complaint that the appellant pressed her mouth and neck for which she could not raise cry properly. However, she has volunteered that she made such statement in her statement before the Magistrate. But when confronted she could not find such statement in the said statement recorded by the Magistrate. Then she has admitted that she did not specifically state to the Magistrate or in the complaint ‘that I tried to resist the accused from committing rape. While my father entered the room, the accused was below the cot and I was only sitting on the cot. But he saw the accused with me on the cot before this.’ She has further admitted that ‘while narrating the complaint I did not state that my father entered the room. I narrated in my complaint that seeing my father, the accd. Ratneswar Datta went below the cot.’ Attention of the prosecution was drawn to the complaint when she has admitted that such statement was not there. I narrated in my complaint that seeing my father, the accd. Ratneswar Datta went below the cot.’ Attention of the prosecution was drawn to the complaint when she has admitted that such statement was not there. But she has claimed to have stated to the Magistrate that her age was 16 years at the time of recording of the said statement. However, she has denied her intimacy with the appellant and also resisted all suggestions in conflict to her statement as to the commission of rape. 11. Sri Dulal Chowdhury, the father of the prosecutrix while deposing as PW-2 has stated that hearing groaning of her daughter, he arrived near the varandah and found her crying sitting naked on a tool. He found legs of a person below the cot. When he tried to close the door, the appellant forcibly opened the door and fled away. Then his daughter had stated that the appellant forcibly took her to that room pressing her mouth and thereafter, laying on the cot removed her panty and committed rape upon her. In the evening his wife, Mina Chowdhury (PW-3) returned home and thereafter, they met Sri Makhan Lal Chakraborty (PW-7) who wrote the complaint. Her daughter was sent to Jolaibari hospital initially but for non-availability of the Medical Officer, she was taken to Muhuripur hospital for her medical examination. In the cross-examination, he has stated that ‘when I reached the varandah, I found the door of the room open in which the rape was committed. Hearing the groaning sound of (name withheld) I did not raise cry initially. Reaching the varanda, I did not ask (name withheld) as to what had happened. Seeing the accused I was taken aback and was short of words as to what should I ask. As the accused fled away, I asked my daughter about the incident.’ He did not accede to the suggestions contrary to his statement. 12. PW-3, Smt. Mina Choudhury has simply stated that she was away from the home on the relevant time. When she returned home at about 5 pm, she learnt from her husband (PW-2) that around 3 pm, the appellant committed rape on her daughter taking her from the varandah pressing her mouth and neck. 12. PW-3, Smt. Mina Choudhury has simply stated that she was away from the home on the relevant time. When she returned home at about 5 pm, she learnt from her husband (PW-2) that around 3 pm, the appellant committed rape on her daughter taking her from the varandah pressing her mouth and neck. When she was confronted during the cross-examination, she has admitted that no such statement was there in her previous statement that the appellant had pressed the mouth of the prosecutrix. 13. PW-4, Sri Manik Koloy, PW5, Sri Parimal Chandra Das have stated that immediately after the occurrence PW-2 informed them that sometimes back the appellant committed rape on her daughter. 14. PW-6 Matilal Datta is the recording officer and identified the FIR form(Exbt.3) and his signature over that. He has stated that he endorsed the case for investigation to Naresh Ghosh, a Sub Inspector posted at that time at Baikhora P.S. 15. PW-7, Sri Makhan Lal Chakraborty has stated that he had scribed the complaint as stated by the prosecutrix 16. PW-8, Dr. Abhijit Dasgupta examined the prosecutrix on 30.06.2001 at Muhuripur P.H.C. On examination, he found the following features and symptoms: (i) Tenderness over hip joint. One nail mark on the lateral side of neck over thyroid gland. No other mark of violence found over any part of the body. (ii) Breast- well developed. No mark of injury or violence. Thigh- No mark of violence. Genital- Labia major & minor developed. No mark of injury over the genital organ, but blood stain found over the labia major on both sides. No foreign body was found. Pubic hair was present & it was less. Hymen Ruptured. Vagina- Healthy. One figure could be introduced and it was painful and tendered. Some blood clot was found on vagina. There was no active bleeding. White discharge was found which was semen in nature by smell. Discharge was collected for laboratory examination. Uterus- Normal size and it was in mid-position. Axilla- Axillary hairs were there. Teeth there were 28 Nos. of teeth as described in the report. Menstruation history – According to the patient, her menstrual period was irregular & her first day of last menstruation was 19th June, 2001 & it lasted for three days. Discharge was collected for laboratory examination. Uterus- Normal size and it was in mid-position. Axilla- Axillary hairs were there. Teeth there were 28 Nos. of teeth as described in the report. Menstruation history – According to the patient, her menstrual period was irregular & her first day of last menstruation was 19th June, 2001 & it lasted for three days. Clothes- As per statement of the patient, she were a panty at time of attack & it was torn by accused & it was not brought at the time of examination. She wore a cotton frock which was not torn. No stain was found in the cloth. Vaginal swab examination – Plenty of spermatozoa detected which were dead. According to findings found the victim girl, an opinion could be given that there was signs of recent sexual intercourse. I gave a report in this regard on 21.07.2001. This report bearing my signature, Exbts.4 & 4/1. In the cross-examination, Dr. Dasgupta (PW-8) has admitted that he did not mention whether the rupture in the hymen was fresh or old. ‘So it cannot be said that it was fresh.’ He has also opined that ‘in case of forcible rape inflammation and redness may be there in the vagina’. He has admitted that he did not go for any investigation to ascertain whether the blood clot or stain thereon was due to menstruation or for other reason. On examination, he had admitted that he did not find any symptom of forcible rape. He has further admitted that even though there was a laboratory report as to the existence of the spermatozoa but that report is not a part of his report. 17. PW-9, Sri Naresh Ghosh, who investigated the case has stated in brief how he conducted the investigation including his preparation of the site map (Exbt.5) and producing the prosecutrix before the Chief Judicial Magistrate for recording her statement. Even though he has stated that he collected the school certificate of the prosecutrix on 05.07.2001 but the said certificate has not been admitted in the evidence and no explanation for such non-production has been extended. After collecting the medical examination reports including the report of the ossification test, he submitted the charge-sheet on 21.10.2001. In the cross-examination, he has admitted that he has not reflected the neighbourhood houses in his site map. After collecting the medical examination reports including the report of the ossification test, he submitted the charge-sheet on 21.10.2001. In the cross-examination, he has admitted that he has not reflected the neighbourhood houses in his site map. He has further admitted that he did not seize the wearing apparels of the prosecutrix. However, he has denied the suggestion that even though he had seized the wearing apparels but those were not produced as the evidence. He has admitted that the prosecutrix did not state to him that she could not raise cry as the appellant pressed her mouth and neck. No such statement according to him is also available in the prosecutrix statement recorded under Section 164(5) of the Cr.P.C. 18. PW-10, Dr. Roychand Saha examined the prosecutrix radiologically for determining her age. Exbt.6 is the report of the said ossification test. According to that test, the age of the prosecutrix was between 14-16 years. 19. After revisiting the evidence having regard to the contention raised by the learned counsel appearing for the parties, the following questions have emerged to be responded to: (i) whether the prosecutrix was a person below the consenting age of 16 years in terms of Section 375, in the 6th description, of the I.P.C.? (ii) whether the defence has been able to rebut the statutory presumption liable to be drawn under Section 114-A of the Evidence Act? (iii) whether the evidence led by the prosecution cleanses the reasonable doubt for returning the finding of the conviction? 20. Except the repot of the ossification test, there is no other material except the statement of the prosecutrix as to her own age even though her father (PW-2) and mother (PW-3) were examined. According to the statement of the prosecutrix made before the Chief Judicial Magistrate, she was 16 years of age when the statement was recorded. She has confirmed that in the trial. In her statement recorded in camera, the trial court has recorded her age to be 21 years, from her disclosure. The said statement in the trial was recorded after more than 10 years of the occurrence. Hence, if that statement is believed she was treated to be below 11 years of age at the time of occurrence. Hence, her statements are so irreconcilable those cannot be relied at all. The said statement in the trial was recorded after more than 10 years of the occurrence. Hence, if that statement is believed she was treated to be below 11 years of age at the time of occurrence. Hence, her statements are so irreconcilable those cannot be relied at all. Moreover, the best evidence that could have been produced by the prosecution even though was collected but has been withheld. The birth certificate, collected from the school where she was studying as stated by PW-9 has not been produced in the trial. From the report of the ossification, Exbt.6 it appears that her age has been determined in between ‘14 & 16 years’. Even if the ossification report is entirely believed, it cannot be held that the prosecutrix was below the consenting age. As such, finding of the trial court that the prosecutrix was below the consenting age cannot be sustained. 21. Section 114A of the Evidence Act provides that in a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (g) or sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. The words, ‘shall presume’, appearing in Section 114-A of the Evidence Act has to be construed in terms of the interpretation provided under Section 4 of the Evidence Act which reads as under: “Shall presume– Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.” 22. Now it is to be examined whether the defence has discharged that onus of disproving the existence of the fact which has to be statutorily presumed. The defence has attempted to construct their case for discharging that onus on the basis of the oral testimonies of the prosecution witnesses. PW-1 has stated in the complaint that the appellant ‘closed the door and raped me’. The defence has attempted to construct their case for discharging that onus on the basis of the oral testimonies of the prosecution witnesses. PW-1 has stated in the complaint that the appellant ‘closed the door and raped me’. In her statement made under Section 164(5) of the Cr.P.C. she did not support that statement but state that the appellant pushed her in that room and ‘tore open the panty’ on her wearing. The said wearing apparel was not seized even though the complaint was lodged on the same day of occurrence without much delay. She has nowhere stated that the appellant made her completely ‘naked’. What she has stated is that the appellant ‘forcibly tore open the pant on my wearing’. Even in the trial she has only stated that the appellant ‘removed my panty’. She has further stated that her father after entering into the roomhad closed the door and the appellant fled away after opening the door. But most surprisingly her father (PW-2) has stated that ‘I arrived near the varandah and found her crying sitting naked on a tool (cot). I found the legs of a person below the cot. As I tried to close the door, he came out, who was Ratneswar Datta. He forcibly fled away opening the door.’ Having closely scrutinized the seriously varying statements, it appears to the Court that the defence has probablised that the sexual intercourse even if had taken place was not without consent rather it was a consensual sex. It further appears that the appellant has categorically taken a stand that there had ‘a love affair with the prosecutrix’. It is well settled law that presumption under Section 114-A of the Indian Evidence Act is rebuttable. In this case for probablising a case of consensual sex and the age of the prosecutrix not below the consenting age, it cannot be held on presumption that there had been no consent and the appellant has committed the rape. 23. It is well settled law that presumption under Section 114-A of the Indian Evidence Act is rebuttable. In this case for probablising a case of consensual sex and the age of the prosecutrix not below the consenting age, it cannot be held on presumption that there had been no consent and the appellant has committed the rape. 23. The prosecutrix has clearly stated that her father had dispute with the appellant in her statement recorded under Section 164(5) of the Cr.P.C. In this backdrop and having regard to the decision of the apex court in Amar Bahadur Singh vs. State of U.P., reported in 2011 AIR SCW 1823 this Court has to appreciate the entire evidence to scale the down the probability of cooking up a story of rape for protecting her from onslaught from the society. In Amar Bahadur Singh vs. State of U.P., it has been observed that: We find that under the circumstance the possibility that rape could have been committed on her in the presence of so many members in a small house is difficult to believe. On the contrary the findings of the High Court that the prosecutrix was a consenting party appear to be correct and it was perhaps when the accused and the prosecutrix had been caught red-handed that the story of rape had been cooked up, to salvage some of the family honour. 24. It is by now well settled that absence of injuries on the private parts or even the opinion of doctor that there was no evidence of sexual intercourse or rape may not be sufficient to disbelieve the accusation of rape. But in such cases, the court must bear in mind that the false charges of rape are not rare and therefore, the other circumstantial evidences such as injuries on the person of the prosecutrix have to be carefully correlated to arrived at the finding that the sexual intercourse has been committed without consent. In Radhu vs. State of Madhya Pradesh, reported in 2007 Cri.L.J. 4704, it has been observed that: The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case. In the case in hand, this Court did not come across any other physical injury even the wearing apparel (the panty) which according to the prosecutrix was torn apart by the appellant has been withheld. PW-2 has not stated truthfully when he has stated that he found her daughter ‘naked’ inasmuch as the prosecutrix herself did not state that she was made ‘naked’ by the appellant. Apart that, the episode of closing the door by the appellant as stated in the complaint, as it appears, has been drowned to make it probable that the prosecutrix’s father can figure to enter the room without hindrance and see the appellant and the prosecutrix in that state. These are not minor defects or the insignificant discrepancy. These are the indicators whether the statements are truthful or not. 25. Having regard to all these aspects, this Court is of the view that the evidence of the prosecutrix when read as a whole, appears full of discrepancy and does not inspire confidence to rely upon for purpose of returning the finding of conviction. Those gaps and the several discrepancies in the evidence alongside the other circumstances make it highly improbable that the sexual intercourse, even if had taken place was without consent. As such, the benefit must go to the appellant. 26. Having held so, the impugned judgment is set aside and the appellant is acquitted from the charge on benefit of doubt inasmuch as, unless the intention to commit any offence couched with house trespass is proved nobody can be convicted under Section 448 of the I.P.C. In the result, the appeal stands allowed. Send down the LCRs forthwith.