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2015 DIGILAW 714 (TRI)

Rakesh Sarkar @Pintu v. State of Tripura

2015-10-16

S.TALAPATRA, U.B.SAHA

body2015
ORDER : This is an appeal filed by the convict, herein after referred to as the appellant, under Section 374(2) of the Cr. P.C. against the judgment of conviction dated 24.01.2011 delivered in S.T. 122 (WT/A) of 2006 by the Addl. Sessions Judge, West Tripura, Agartala, Court No. 3. By the said judgment dated 24.01.2011, the appellant has been convicted under Section 376(2)(f) of the IPC for committing offence of rape and as consequence thereof he has been sentenced to suffer rigorous imprisonment for 10(ten) years and to pay a fine of Rs. 5000/-and in default to suffer further rigorous imprisonment for one year. 2. In a nutshell the prosecution cae is that by filing a complaint, one Smti. Pratima Barman(PW-5) disclosed that her daughter, name withheld for protecting her identity, aged about 5½ years was raped by the appellant on 19.08.2005 around 7.30 p.m. The appellant is a distant relation of the informant. On 19.08.2005, at about 5.00 in the afternoon the appellant came to attend the invitation in the residence of the father of the informant. At about 7.30 in the evening, she noticed both her daughter and the appellant were missing. She immediately started search her daughter. When she arrived at her home, she found the appellant trying her daughter to sleep. On her sight, the appellant tried to make a slip. That time the informant confronted the appellant asking why he had taken out her daughter without allowing her to take food. At about 1 0'clock at night when her daughter rose from the sleep and went for passing the urine, she expressed that she was having painful sensation in her private part. On query of the informant, her mother, she, the minor, indicating to the appellant has stated that he had took off her panty and the appellant, he had done 'something'. In the morning, the informant informed the entire episode to the relatives of her father's house and she forced the appellant to rise from his bed. She scolded him by stating that the victim was his niece and how he could do such 'thing' with her. He remained silent. Thereafter, the informant revealed that episode to the villagers and they advised her to go to the police and accordingly she filed the written ejhar at 10.55 in the morning on 20.08.2005. 3. She scolded him by stating that the victim was his niece and how he could do such 'thing' with her. He remained silent. Thereafter, the informant revealed that episode to the villagers and they advised her to go to the police and accordingly she filed the written ejhar at 10.55 in the morning on 20.08.2005. 3. On the basis of that written ejhar, Bishalgarh P.S. case No 125 of 2005 was registered under Section 376(2)(f) of the IPC and taken up for investigation. On completion of the investigation, the final police report chargeshetting the appeallant was filed. The police papers were committed to the court of the Sessions Judge, West Tripura, Agartala. Having the police papers transferred, the Addl. Sessions Judge, West Tripura, Agartala, Court No. 4 framed the charge under Section 376(2)(f) of the IPC against the appellant, to which he pleaded innocence and claimed to face the trial. 4. To substantiate the charge, the prosecution adduced as many as 10(ten) witnesses including the Medical Officers who examined the victim and the appellant, the Investigating Officer, the informant and the victim. The prosecution has also adduced documentary evidence including the medical examination report of the victim (Exbt.2), the potency examination report of the appellant (Exbt.1) and the statement of the victim under Section 164 (5) of the Cr. P.C. (Exbt.8). After the prosecution evidence was recorded, the appellant was examined under Section 313 of the Cr.P.C when he reiterated his plea of innocence by denying the incriminating materials those surfaced in the evidence. On appreciation of the evidence on record, the trial court by the impugned judgment has returned the finding of conviction holding that the prosecution has been successful to prove the charge under Section 376(2)(f) of the IPC. 5. Ms. On appreciation of the evidence on record, the trial court by the impugned judgment has returned the finding of conviction holding that the prosecution has been successful to prove the charge under Section 376(2)(f) of the IPC. 5. Ms. R. Purakayastha, learned counsel appearing for the appellant has raised two pronged objections for questioning the impugned judgment of conviction: (i) There is no evidence of penetration and as such it cannot be held there had been sexual intercourse within the meaning of Section 375 of the IPC for constituting rape and (ii) The victim’s testimony cannot be read in the evidence as while examining PW-9 the provisions of Section 118 of the evidence Act were not at all observed and as such her statement cannot be relied on as absence of any material, to be satisfied with, that she was competent to testify or she had that understanding of replying a question put to her or to give the response or to give rational answers to those questions despite her tenderness of age. 6. Thus, she has prayed for effacing the testimony of PW-9 from the record of evidence. However, in the form of alternative submission, she has contended that there is no evidence of rape. In particular, there is no evidence of penetration or sexual intercourse within the meaning as provided under Section 375 of the IPC. Ms. R. Purakayastha, learned counsel has referred to the medical examination report and the testimony of the doctor. According to Dr Pradip Kumar Roy (PW2) who examined the victim in the IGM hospital, there was a lacerated wound on the upper part of the labia majora which was of recent origin and blood was oozing out on touch on the injured part. According to Ms. Purakayastha, learned counsel these evidence do not support incidence of penetration. She has further referred that there was no signs of external violence on any part of the body of the victim. At least there was no such observation in the medical examination report dated 17.11.2005. PW-2 has confirmed that he has given a report on 17.11.2005 with definite observation. On the medico-legal examination, it appears from the record (Exbt.-3) that no spermatozoa was found in that swab. 7. Dr. Asim Saha (PW-3) received the sample of vaginal swab of the victim from the Gynaecology Department of the IGM hospital, as collected by Dr. PW-2 has confirmed that he has given a report on 17.11.2005 with definite observation. On the medico-legal examination, it appears from the record (Exbt.-3) that no spermatozoa was found in that swab. 7. Dr. Asim Saha (PW-3) received the sample of vaginal swab of the victim from the Gynaecology Department of the IGM hospital, as collected by Dr. Pradip Kumar Roy (PW-2). It is to be noted that the appellant was found to be potent and capable of committing sexual intercourse by Dr. Jayanta Shankar Chakraborty (PW-1). 8. According to Ms. Purakayastha, learned counsel, there is no sign of penetration beyond the orifice. If the testimony of PW-9 is disbelieved, the charge under Section 376(2)(f) of the IPC would fall apart. As such the appellant deserves to be acquitted for the charge. However, Ms. Purakayastha, learned counsel, has contended that the offence committed by the appellant may indicate to attempt of rape punishable under Section 376 read with Section 511 of the IPC. To strengthen such contention Ms. Purakayastha, learned counsel has relied on a decision of this court in Dinesh Debbarma vs. State of Tripura reported in (2014) 1 TLR 690 where it has been observed as under: “The evidence on record makes it abundantly clear that the accused dragged the victim prosecutrix from the road to the lunga land in the jungle, undressed her and thereafter made attempt to commit rape, penetrate his penis inside her vagina. The victim prosecutrix being an unmarried virgin might have thought that the accused already committed rape on her. It might happen that the accused ejaculated semen over the private parts of the victim and she washed it. The total evidence of the prosecutrix and the prosecution case, as a whole, cannot be thrown away on the ground that there was no positive sign of rape. The presumption that the accused might have made an attempt to commit rape has a support in the medical report where the medical officers opined that they inserted two fingers and on insertion of fingers slight tenderness and mild tenderness on the forchette and posterior wall of vagina were found which supposes that the accused might (sic) rub his penis in the posterior wall of the vagina and might (sic) discharge semen thereafter and there was no visible penetration as alleged.” 9. Ms. Ms. Purakayastha, learned counsel has succinctly drawn attention of this court to the apparent incongruities between the ejhar and the statement made by the informant in the trial and to the statement made by the victim under Section 164(5) of the Cr. P.C. and her statement in the trial. That apart, Ms. Purakayastha, learned counsel has submitted that the narrative in the written ejhar was not supported by the victim as the victim's statement as made in the trial is entirely different. There is fabrication, for which those statements by PW-5 and PW9 cannot be relied on for returning the finding of conviction. 10. From the other side Mr. R. C. Debnath, learned Addl. Public Prosecutor appearing for the state has seriously resisted the proposition of Ms. R. Purakayastha, learned counsel appearing for the appellant. Mr. Debnath, learned Addl. P.P. has categorically submitted that if the testimonies of PW-2, PW-5 and PW-9 are cumulatively read it would lead to the irresistable inference that the appellant has committed the rape. According to Mr. Debnath, learned Addl. P.P. penetration into labia majora is sufficient to constitute rape within the meaning of 375 of the IPC. In support of his contention he has relied on a few decisions. In Nani Gopal Sarkar v. State of Tripura reported in 2013 CRI. L. J. 702, this court has held that: 9. The next point raised by learned Counsel, Mr. Majumder is that the medical officer (PW 9), who examined the victim did not give a definite opinion that the prosecutrix was raped and that the grandmother of the prosecutrix applied some herbal medicine, which might have caused abrasions in the private parts of the victim. Under such circumstances of the evidence, it was wrong for the trial Court to arrive at a conclusion that the prosecutrix was raped by the accused. Learned Addl. P.P., on the other hand, has submitted that the abrasions found in the upper part of vulva and in the perineum were positive sign of rape and, therefore, the trial Court arrived at a correct finding, which does not deserve interference. I have gone through the oral evidence of the prosecutrix and the medical evidence of PW 9. The prosecutrix is a minor girl aged about 7/8 years at the time of occurrence. No sexual character, naturally, developed in her. I have gone through the oral evidence of the prosecutrix and the medical evidence of PW 9. The prosecutrix is a minor girl aged about 7/8 years at the time of occurrence. No sexual character, naturally, developed in her. What vile act, the accused had committed with her, she categorically narrated it in Exbt. 7, i.e., the statement made by her before the Magistrate and in her deposition before the Court. The Court in a single word recorded it as rape committed by the accused. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape as explained in Section 375 of IPC. The victim categorically stated that the accused raped her. The question, which automatically arises, is what amounts to penetration. The earlier outlook in this regard was that the private parts of the accused enter into the person of the victim woman, that is, some part of the virile member of the accused must be within the labia of the pudendum of the woman, no matter how little and even if there was no actual seminal emission. Where there was no actual penetration but merely superficial application of force of the male organ to the private parts of the prosecutrix, the accused would be convicted under Section 376/ 511 for an attempt to commit rape. The modern outlook on the question is different. Mere vulval penetration without any vaginal penetration is sufficient to constitute rape. Thus where the accused forcibly commits rape, say, in a standing position, and in course of that act the accused discharged semen on the private parts of the woman, it would constitute rape within the meaning of Section 376, no matter whether there was any injury or not on her private parts or her hymen was found to be intact. Thus even an attempt at penetration is quite sufficient to constitute 'penetration' for invoking Section 376. Where the accused made himself naked, taken out is male organ and with a view to penetrate it in the female organ of the victim, pushed it and it touches the vulva, in my considered opinion, it amounts to rape. In the present case, PW 9 has stated that on examination of the victim he found the following: (i) Victim conscious, oriented and vitals and stable. (ii) The public and auxiliary hair were not developed. (iii) Vulva was not well developed. In the present case, PW 9 has stated that on examination of the victim he found the following: (i) Victim conscious, oriented and vitals and stable. (ii) The public and auxiliary hair were not developed. (iii) Vulva was not well developed. (iv) Healed abrasion mark is seen on the upper part of the vulva measuring 2.5 x 0.5 C.M. size. (v) Healed abrasion is seen on the right side of perineum. (vi) Hymen-not ruptured. (vii) Vaginal orifice admit 1 finger with discomfort. (viii) White discharge present per vagina. No other injury except above found on her body. No foreign particle is found on her private parts. The doctor has opined thus: a) Rape upon the victim could not be ruled out. b) There was no positive finding found on the Genitalia. From the Physical/Dental, and Radiological examination-I found, the age of the victim was ranging from 5 to 8 years. This is my report marked Exbt. 4 and my signature on the report (two in number) are marked Exbt. 4/1 series. Abrasion marks on the private parts of the victim may be the positive sign for sexual intercourse. But it may also happen if the victim touches with sharp nails and for infection also it may so happen. After about 12 days of the incident I examined the victim. Defence cross-examined the witness and in cross-examination he stated- ‘It is very difficult to commit sexual intercourse by an adult of 40 years upon a minor girl of 8 years without injury. Here in the instant case the hymen of the victim was found intact but not ruptured. I am not definite in the instant case in view of the above position whether the accused committed rape upon the victim. Generally, out of excitement somebody may enjoy even without penetration. I did not find any injury mark on the penis of the accused.’ A careful reading of the above evidence of the medical officer shows that there was abrasion in the private parts, which might have occurred because of the penetration alleged to have made by the accused. The prosecutrix has admitted in her cross-examination that here grandmother applied some herbal medicine while her private parts were etching. On some earlier occasions also some herbal medicine was applied. The doctor did not find any infection in the vagina of the prosecutrix. He only found healed abrasion. The prosecutrix has admitted in her cross-examination that here grandmother applied some herbal medicine while her private parts were etching. On some earlier occasions also some herbal medicine was applied. The doctor did not find any infection in the vagina of the prosecutrix. He only found healed abrasion. In cross-examination also nothing reveals that because of any infection, which might have caused before the alleged occurrence of rape, the victim might have suffered abrasion. Under such circumstances, the evidence of the doctor has to be read positively in favour of the version of the prosecutrix and not otherwise. No doubt, medical evidence is very important in a trial for rape, as, without medical examination of the victim no Court will possibly infer that intercourse has taken place in that particular vagina. If the medical officer who has examined the victim fails to do what he is expected to do, the defence may seriously urge rejection of the said medical opinion. If the medical opinion does not support the story of the commission of rape, defence may very well rely on it. If no sign of rape is detected by the doctor, it certainly speaks in volume in favour of the defence plea of not guilty and the task of the prosecution thereby becomes more onerous. But medical opinion cannot be the final say in the matter in either way. Rape is not a medical diagnosis, it is a legal definition. The only statement that can be made by the medical officer is that there is or is no evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion to be drawn by the Court and not by a medical opinion. Even where the opinion of the medical officer is that no rape appears to have been committed, the Court can hold otherwise where the other evidence, especially of the prosecutrix is cogent and trustworthy. The modem outlook in the matter of evaluating the statement of a prosecutrix has also undergone a sea-change. She is no more considered to be an accomplice, rather the evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Seeking corroboration of her statement before relying upon the same amounts to adding insult to injury. She is no more considered to be an accomplice, rather the evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Seeking corroboration of her statement before relying upon the same amounts to adding insult to injury. The Court, while appreciating the evidence of a prosecutrix, necessarily looks for some assurance of her statement to satisfy its judicial conscience and that is why medical opinion is invariably sought for in every case. In the present case, where the doctor has found some positive signs of rape, which could not be destroyed in cross-examination or otherwise, the trial Court rightly arrived at a conclusion that there was penetration and, therefore, the accused was rightly held guilty of rape. 10. While there is no evidence on record in respect of animosity between the informant and other witnesses and the accused, I find nothing to doubt the prosecution case. There is nothing to draw an inference that the prosecutrix was falsely planted by the witnesses to make a false charge of rape against the accused. It is an undisputed fact that the destitute prosecutrix has now been sheltered in an orphanage where she is prosecuting studies. Defence has suggested that to get the prosecutrix admitted in the orphanage, a false case was made out. Such suggestion deserves no consideration at all in the facts and circumstances of the case. [Emphasis added] 11. In State of U.P. v. Munesh reported in 2013 CRI. L.J. 194, the apex court while dealing with absence of spermatozo a has observed as under: “The primary concern both at national and international level is about the devastating increase in rape cases and cases relating to crime against women in the world. India is no exception to it. Although the statutory provisions provide strict penal action against such offenders, it is for the Courts to ultimately decide whether such incident has occurred or not. The Courts should be more cautions in appreciating the evidence and the accused should not be left scot-free merely on flimsy grounds. In the instant case, the accused had committed rape, which repels against moral conscience as he chose a girl of 11 years to satisfy his lust and subsequently murdered her.” 12. Mr. Debnath, learned Addl. The Courts should be more cautions in appreciating the evidence and the accused should not be left scot-free merely on flimsy grounds. In the instant case, the accused had committed rape, which repels against moral conscience as he chose a girl of 11 years to satisfy his lust and subsequently murdered her.” 12. Mr. Debnath, learned Addl. P.P. has also relied on a note of case reported as 2011 CRI. L.J. (NOC) 445 (BOM.) where it has been noted that: “ If no cross-examination has done it has to be held that the defence as accepted the statement and they cannot be allowed latter on to deny the effect of the statement.” 13. On the face of the records and contentions as raised by the learned counsel for the parties, this court is required to visit the evidence. It has been admitted that the entire prosecution is based on the medical examination report as introduced by PW-2 and the oral testimonies of PW-5 and PW-9. The survey of evidence is not required to be expansive. The prosecution case is structured on the oral testimonies of PW-2, PW-5 and PW-9, the forensic reports and the medical examination report. Hence, appreciation by this court would be confined to the testimonies of PW-5 and PW-9 in as much as the testimony of PW-2 has already been discussed. Before entering into that exercise, it would be appropriate to make reference to the statement as made by the victim under Section 164(5) of the Cr.P.C.(Exbt.5). She had categorically stated: “One night uncle took me too the jungle. Taking off my panty there, uncle's penis was connected with my vagina. I felt severe pain. Thereafter my uncle took me on the lap and dropped me at home.” [ As translated] 14. PW-5, namely Smti. Pratima Barman, the informant and the victim's mother has stated in the trial that at her dictation the written ejhar was prepared and she had put her signature having been satisfied that the same was properly written. She has mostly replicated what she has stated in the written ejhar . But she has added on querry that, the victim told her that the uncle who came to the house of her parents had taken her in a jungle, put off her panty and committed sexual intercourse with her. She has mostly replicated what she has stated in the written ejhar . But she has added on querry that, the victim told her that the uncle who came to the house of her parents had taken her in a jungle, put off her panty and committed sexual intercourse with her. On the next date she went to her parents' house when her daughter had shown the appellant as the person who committed the sexual intercourse with her. In the cross-examination, the suggestions denying that the appellant had not taken the victim to a jungle or he did commit sexual intercourse with her daughter, fell flat. 15. PW-9, the victim has stated that about five years back when she went to her uncle's house along with her mother, the appellant, whom she called uncle took her to a jungle from her uncle's house on the pretext that he would give her biscuit. The appellant then had put off her panty and tried to penetrate to her vagina by his male organ, for which she sustained injury. Thereafter her uncle brought her to their house in that night. She was crying in her house. When her mother came, she narrated the incident to her. She has admitted that she also gave statement in the court. In the cross-examination she denied the suggestions contrary to her narrative of rape. 16. It is true that the statement of the victim and the transaction as narrated in the written ejahar do not fit perfectly. But it cannot be denied that when the victim was allegedly traumatized she was only 5½ years old and when the statement in the trial was recorded, she was aged 12 years. With maturing in age, she realized what and how that happened to her. There is propensity to give the details of the transaction without realising that those details that may in the latter stage become counterproductive. To appreciate the true character of such aberration the fundamental test that is followed in the criminal jurisprudence is that whether the grain of the allegation has been substantively altered or what was being presented in the trial is the grain with chaff. The duty therefore of the court is to seperate the chaff from the grain, not to throw out the entire evidence, as in India we do not follow the principle of falsus in uno, falsus in omnibus. The duty therefore of the court is to seperate the chaff from the grain, not to throw out the entire evidence, as in India we do not follow the principle of falsus in uno, falsus in omnibus. Even though, PW-5 has expanded a little bit and which has to a greater extent invited a circle of suspicion about her statement, but at the same time, Mr. Debnath, learned Addl. Public Prosecutor is absolutely right when he has asserted that if the statements of PW-2, PW-5 and PW-9 are read together with the forensic opinion there cannot be any amount of doubt that there was an sexual intercourse. Now we are to consider whether that sexual intercourse would come within the purview of the Section 375 of the IPC. It is now well settled, as held by the apex court in Tarakeswar v. State reported in (2006) 8 SCC 560 , State v. Babulal reported in (1994) 6 SCC 39 and Aman Kumar v. State reported in (2004) 4 SCC 379 , that offence of rape is complete where there was penetration of the male organ into the labia majora or the valva or pudenda with or without any emission of semen or even an attempt of penetration into the victim's completely, partially or slightly. Proof of rupture of hymen is unnecessary. Having regard to the medical examination report (Exbt.2) where it has been clearly observed that there was irregular lacerated wound in the left upper part of labia majora, which was of recent origin and blood was oozing out on touch of that injury. There was no other external injury. It is clear from the medical evidence that the male organ or by other element there was penetration into the labia majora of PW-9. 17. PW.9, has categorically stated how she was violated by the appellant. The objection as raised by Ms. R. Purakayastha, learned counsel as to absence of the test of capability of giving rational answer or understanding of the duty of speaking the truth in the court, may not dismember her testimony. No doubt, there is some substance in the submission, but it is not the end of all matters. The objection as raised by Ms. R. Purakayastha, learned counsel as to absence of the test of capability of giving rational answer or understanding of the duty of speaking the truth in the court, may not dismember her testimony. No doubt, there is some substance in the submission, but it is not the end of all matters. It has been held by the apex court in catena of decisions that for absence of such deficiency of the trial court, the entire testimony cannot be technically thrown out for technical reasons rather there shall be an attempt to understand whether the statements made by the witness of tender age in particular, is rational or tainted by tutoring or it is out of the context. This court has taken that exercise and is entirely satisfied that the core of her statement made under Section 164(5) of the Cr. P. C. has not been mutilated. She had given some details which may not have been in her statement, recorded under Section 164(5) of the Cr.P.C. But those details cannot be treated as improvement by way of omission, which would amount to contradiction. As the apex court in State of U.P. v. Munesh has stated that the court should be more cautious in appreciating the evidence in rape cases and cases relating to crime against women and the accused should not be scot free merely on flimsy grounds. This court is of the considered opinion that the hypertechnicality cannot be allowed to be dominant in this case, in the context that the appellant is a distant relative and he had access to the victim for enjoying the trust being a relative. He had exploited that confidence for taking the victim out to a secret place beyond the sight of the other people. There is no reason to disbelieve both PW-5 and PW-9. Having held so, this court is not inclined to interfere with the finding of conviction. 18. In the result, the appeal stands dismissed. Send down the LCRs forthwith.