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2016 DIGILAW 40 (TRI)

Kanu Nath alias Shyamal v. State of Tripura

2016-02-17

DEEPAK GUPTA, S.C.DAS

body2016
JUDGMENT : DEEPAK GUPTA, J. This appeal by the two convicted accused is directed against the judgment dated 30th May, 2012 passed by a learned Assistant Sessions Judge, Dharmanagar, North Tripura delivered in Case No.ST.36(NT/D) of 2011 whereby the accused Sri Kanu Nath was convicted of having committed an offence punishable under Section 376(1) IPC and his wife Smt. Maya Nath was convicted of having abetted her husband in commission of such offence and has, therefore, been convicted under Section 376(1) read with Section 114 of the IPC. 2. This is a rather shocking and unusual case where a husband is charged with having raped a minor girl aged less than 18 years and his wife is alleged to have abetted him. This shows the level to which morals have fallen in our society. 3. The prosecution story, as set up in the FIR and also in the version of the victim during her evidence recorded as PW.1, is that on 20th December, 2010 at about 5.00 p.m. the accused Smt. Maya Nath(wife) came to the house of the victim and asked her mother’s permission to take the victim to their house. It is alleged that Maya Nath is related to the victim. She is married to the main accused Sri Kanu Nath. First Maya Nath took the victim to her own house and thereafter they both proceeded towards Shibbari located at Lalchara. They prayed at the temple and in the meantime, Kanu also reached there in a car. 4. According to the victim, at this stage she expressed her desire to return home but both the accused told her that there was no fuel in the car and therefore, they had to go to Dharmanagar for getting fuel. At Dharmanagar the car was refilled. Thereafter instead of returning to the village the accused husband and wife took the victim to a hotel ‘Maya Guest House’. According to the victim, she was compelled to stay for the night in the hotel. She has clearly stated that room No.9 was allotted to her and in this room she was to sleep along with her female relative Maya Nath and Kanu was to sleep in the other room being room No.10. After taking meals she had gone to sleep in the room. She has clearly stated that room No.9 was allotted to her and in this room she was to sleep along with her female relative Maya Nath and Kanu was to sleep in the other room being room No.10. After taking meals she had gone to sleep in the room. According to her, at about 11.00 p.m. the husband Kanu called out to his wife Maya to open the door and the wife opened the door and then the accused Kanu entered the room and touched the body of the victim. When the victim tried to resist, Maya accused pressed her mouth with a blanket and thereafter Kanu removed her wearing apparel. He also undressed himself. Then he committed rape upon the victim and during this period the mouth of the victim was covered with a blanket by Kanu’s wife Maya. She further stated that she was raped about five times. Next morning at 5.00 p.m. she was told not to disclose this fact to anybody and thereafter she was taken back near her village where she got down at Julaibasa, near the house of Kanu and Maya and from there she walked to her house. 5. Immediately on reaching her house she informed her parents and then they went to the Police Station at Kadamtala. However, there the police officials informed her and her brother that since the occurrence had taken place at Dharmanagar they should proceed to Dharmanagar Police Station. The victim and her brother then proceeded to Dharmanagar where the FIR was lodged. 6. The victim was thereafter taken to the Medical Officer. She was medically examined. Thereafter her clothes and wearing apparel as well as some bed sheets seized from the hotel were sent for forensic examination. In cross-examination of the victim the defence taken appears to be one of consent. It is not a case of denial because the questions put to the witness are that after lighting the candle at Shibbari she had come willingly though the victim says that she was forcefully brought to Dharmanagar. Suggestions have also been put to her that she did not tell anybody at the hotel or otherwise that she had been brought against her will. 7. This clearly indicates that the defendants took a plea that the victim had come of her own accord. Suggestions have also been put to her that she did not tell anybody at the hotel or otherwise that she had been brought against her will. 7. This clearly indicates that the defendants took a plea that the victim had come of her own accord. Even if we accept that to be correct, that is a consent only to accompany the relative Maya and her husband Kanu. This was not a consent to sexual intercourse. A young 16 or 17 year old girl was taken by a female relative and at the hotel she was put up in a room where she supposed to stay with the female relative. Why would she have any objection to that? Her objection really started after the husband of the relative tried to have forcible sexual intercourse with her. It is true that there are no injuries on the body of the victim but the statement of Dr. Pradyut Sen, Medical Officer, Dharmangar Hospital clearly supports the version of the victim and corroborates her statement. He stated that externally no mark of injury on her body was found but there is recent tear which is fresh in the hymen and according to the doctor, this type of injury of hymen is significant in a case of this nature. A victim girl aged about 16 years who was raped by the husband of her relative, while she was held back by her female relative would not be able to resist and there may not be injuries on the person. 8. The main issue is, whether we should rely on the statement of the victim or not. If we rely upon her statement then the conviction of the accused has to be upheld. The Apex Court has repeatedly held that conviction in a rape case can be based on the sole testimony of the victim as long as her version inspires confidence. In Indian society a victim of a rape is treated even worse than the perpetrator of the crime. Society ostracizes the victim. The perpetrator of the crime may be sent to jail but in society his position is not lowered. A young girl who is raped will have virtually no future. Her chances of getting married become bleak and society looks down upon her though she is totally innocent and not at fault. Society ostracizes the victim. The perpetrator of the crime may be sent to jail but in society his position is not lowered. A young girl who is raped will have virtually no future. Her chances of getting married become bleak and society looks down upon her though she is totally innocent and not at fault. Societal norms will change over time and the time has come when the Courts as well as society must stand up for these victims and help them. 9. A young girl would not come up with a false case unless there were some compelling reasons. The only defence is in the statement of the husband under Section 313 Cr.P.C where he stated that a false case has been lodged against him because he demanded land from the father of the victim. The wife does not support him in this regard and no such suggestion was put to the victim or her family members when they appeared in the witness box. Therefore, this is a story which has only been created at the stage of 313 statement and cannot be relied upon. 10. We have carefully gone through the statements and even without referring to the other statements, we are of the considered opinion that the statement of this 16 year old girl inspires confidence. She was not a consenting party to the rape. She is the unfortunate victim of a perverted and deprived couple where the husband rapes a relative with the aid of his wife. We, therefore, see no reason to show any mercy to the main accused i.e. Kanu Nath. We, therefore, reject the appeal of Kanu Nath both on the point of conviction and sentence. As far as the wife is concerned, she was an abettor and has definitely abetted the husband in the crime. We are not sure under what circumstances she abetted but we feel that she has already suffered enough because she has already spent more than 5 years and 2 months behind bars. We feel that she herself being a lady may have been a victim of her husband’s sexual immorality and therefore, as far as she is concerned, we feel that the sentence which has already been undergone by her of more than 5 years is sufficient to meet the ends of justice. We feel that she herself being a lady may have been a victim of her husband’s sexual immorality and therefore, as far as she is concerned, we feel that the sentence which has already been undergone by her of more than 5 years is sufficient to meet the ends of justice. Her appeal is allowed to the limited extent that though her conviction of abetting the rape is upheld, her sentence is reduced to the period of sentence already undergone. 11. In view of the above discussion, the appeal filed by the husband Sri Kanu Nath is dismissed and the appeal filed the wife Smt. Maya Nath is allowed to the limited extent of modifying her sentence only. The judgment passed by the learned Assistant Sessions Judge, Dharmanagar, North Tripura is modified accordingly. 12. We place on record our appreciation for the valuable assistance rendered by Mr. D C Roy, learned legal aid counsel. The appeal is disposed of in the aforesaid terms. Send down the LCRs forthwith.