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2015 DIGILAW 382 (TRI)

Ranjit Malakar v. State of Tripura

2015-06-18

S.C.DAS

body2015
JUDGMENT 1. This criminal appeal is directed against the judgment and order of conviction and sentence dated 26.11.2011 passed by learned Addl. Sessions Judge, West Tripura, Agartala in Sessions Trial Case No.130 of 2010. 2. Heard learned counsel, Mr. Ratan Dutta for the appellant and learned P.P., Mr. A. Ghosh for the State respondent. 3. Prosecution case is that on or around 26.04.2005, the informant, i.e. the victim prosecutrix(name kept withheld), being very poor, went to local FCI go-down with a view to collect some rice from the floors of the go-down and at that time some young people and labourers forcefully took her on the backside of the godown and committed rape on her. Out of them she could identify one Ranjit Namasudra and she could not identify the others. She did not disclose the fact to anybody because of shame and ignorance. Subsequently, she became pregnant and delivered a female child in the month of December. Her guardians enquired about the matter and tried to settle it. She took shelter of a Family Counseling Centre and thereafter on their advice she lodged the FIR on 17.02.2006. 3.1. On the basis of that FIR Agartala Women P.S. Case No.16 of 2006 under Section 376(2)(g) of IPC was registered and after investigation police submitted charge sheet against accused Ranjit Malakar. 3.2. Cognizance was taken on the basis of the police report and the case was committed to the Court of Sessions. Learned Addl. Sessions Judge(Court No.3), Agartala on 10.01.2011 framed charge against the accused under Section 376(1) of IPC to which the accused pleaded not guilty and claimed to be tried. 3.3. In the course of trial, prosecution examined nine witnesses and also exhibited the FIR, ossification test report, medical examination report of accused, memorandum of T.I. parade, hand-sketch map, etc. Out of the witnesses PW8 is the victim-prosecutrix and is the star witness of the prosecution. PW9 is the mother of the prosecutrix. PWs 6 and 7 are the police officers, who investigated the case. PWs 4 and 5 are the medical officers who examined the accused about his sexual potentiality and examined the victim about her age respectively. PW1 is a local person who was declared hostile and he stated nothing incriminating. PWs 2 and 3 also stated nothing incriminating. PWs 6 and 7 are the police officers, who investigated the case. PWs 4 and 5 are the medical officers who examined the accused about his sexual potentiality and examined the victim about her age respectively. PW1 is a local person who was declared hostile and he stated nothing incriminating. PWs 2 and 3 also stated nothing incriminating. After closure of the prosecution evidence accused was examined under section 313 of CrPC and in his turn defence examined two witnesses, i.e. DW1, the Judicial Magistrate, 1st Class, who recorded the statement of the victim prosecutrix under Section 164 of CrPC and the report has been marked as Exbt.A. DW2 is the O/C of the PS who registered the case on receipt of the FIR and the printed form of the FIR marked as Exbt.B. Defence case is that of denial of the prosecution case. 3.4. Learned Addl. Sessions Judge at the conclusion of trial found the accused appellant guilty of the charge framed against him and sentenced him to suffer RI for five years and to pay a fine of Rs. 5,000/-, in default of payment of fine to suffer RI for three months. 3.5. Felt aggrieved, the convict filed the present appeal. 4. It is contended by learned counsel, Mr. Dutta for the appellant that the incident alleged to have occurred on 26.04.2005 but the FIR was lodged on 17.02.2006, i.e. almost about after ten months. The delay has not been explained. It was out and out a false FIR lodged against the accused appellant. He has further submitted that the FIR was lodged by the victim herself but her deposition is completely different to that of the allegation made in the FIR. She made a different statement under Section 164 of CrPC before the Judicial Magistrate which has been marked as Exbt.A. So, implicit reliance on the statement of the victim prosecutrix cannot be placed to record a conviction. 5. Learned P.P. on the other hand has submitted that if the victim prosecutrix is reliable her sole evidence is enough to record conviction against the accused. It is, however, submitted by learned P.P. that the victim prosecutrix made different statement at different stage but it is a fact that she was raped by somebody and as a result she got pregnant and delivered a female child. It is, however, submitted by learned P.P. that the victim prosecutrix made different statement at different stage but it is a fact that she was raped by somebody and as a result she got pregnant and delivered a female child. Since she made a statement that the accused committed the offence her statement cannot be thrown away and she may be believed to that extent. 6. FIR has been proved by DW2. The allegation made in the FIR is that on a day in the month of April, probably 26.04.2005, the victim prosecutrix went to the local FCI go-down to collect some rice from the floor of the go-down and at that time a group of young people/labourers took her on the backside of the go-down and committed rape on her. Out of those miscreants she could identify one Ranjit Namasudra, a resident of Siddhi Ashram under Amtali P.S. Thereafter, she got pregnant and delivered a female child. In her deposition she stated that about five years ago on a day the accused person in the dock had undergone sexual intercourse with her for one week against her will and consent in a jungle area within the FCI go-down. He continued sex with her in everyday for about one week. Before sex with her the accused also assaulted her. She submitted one written complaint to Agartala Women P.S. which was written by a club secretary of M.B. Tilla as per her statement. The accused put off her pant and had sex with her. She was taken to Central Jail where she identified the accused who was also present in the dock. Because of the intercourse she got pregnant and delivered a female baby. She was brought to the Court and she gave statement under Section 164(5) of CrPC. Her statement recorded under Section 164 of CrPC has been proved by DW1. That statement shows that she was examined by the Magistrate on 15.03.2006 and her statement was recorded. DW1 stated that she recorded the statement as per version of the witness and the statement marked as Exbt.A. In that statement the victim prosecutrix stated that long days ago on one day in daytime when she went to the go-down of M.B. Tilla, one boy having black complexion had taken her to the jungle. There he asked her to put off her pant. She did not agree to that. There he asked her to put off her pant. She did not agree to that. Thereafter, he had put off her pant forcibly and penetrated his penis into her vagina. Subsequently, he had done such act for many times. Whenever she used to go to the go-down just then he used to do such act forcibly. As a result she gave birth of one girl about two months ago. 7. The above statements of the victim prosecutrix i.e. the statement of allegations made in the FIR, her deposition before the Court and her statement recorded under Section 164 of CrPC by the Magistrate clearly show that she made different statement at different stage. In her deposition what she stated has got no corroboration of her earlier statements recorded under Section 164 of CrPC as well as the FIR lodged by her. So, implicit reliance on the statements of the victim prosecutrix alone cannot be given. She gave no explanation about the delay in lodging the FIR in her deposition before Court. In the FIR she stated that on the advice of the Family Counseling Centre she lodged the FIR. It might happen that the poor illiterate prosecutrix could not lodge the FIR immediately after the occurrence because of ignorance or because of shame but it appears from her cross-examination that she gave birth of two children and the statement does not show that she was married in the meantime. She appears to be a consenting lady in the sexual intercourse and as a result of which she got pregnant. PW5, the medical officer deposed that she was aged about 16-18 years at the time of alleged occurrence. Her evidence does not show that she was minor. In the FIR she did not disclose her age. Her mother, i.e. PW9 also did not state anything about her age. So, only evidence is of the evidence of PW5 about the age which shows that she was aged about 16-18 years at the time of occurrence. Therefore, it is apparent that she was above sixteen years at the time of occurrence and therefore she was a consenting party to the sexual intercourse. In the FIR and in her deposition though she named the accused but in her statement before the Magistrate she did not state the name of the accused. Therefore, it is apparent that she was above sixteen years at the time of occurrence and therefore she was a consenting party to the sexual intercourse. In the FIR and in her deposition though she named the accused but in her statement before the Magistrate she did not state the name of the accused. Therefore, the involvement of the accused in the commission of the offence is doubtful. No doubt, in a case of sexual offence the evidence of the victim prosecutrix is of immense importance but while her own evidence is shrouded with suspicion some corroboration or other supporting evidence is required to record a conviction. In the case at hand, neither the statement of the victim prosecutrix is absolutely reliable nor any other evidence on record to hold the accused guilty of the charge framed against him. The accused, therefore, is entitled to get benefit of doubt and accordingly the judgment and order of conviction and sentence dated 26.11.2011 passed by learned Addl. Sessions Judge is set aside and the accused appellant is acquitted on benefit of doubt and set at liberty. 8. Send back the L.C. records along with a copy of the judgment.