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2016 DIGILAW 52 (TRI)

Sukumar Debbarma v. State of Tripura

2016-02-23

S.TALAPATRA, U.B.SAHA

body2016
ORDER : 1. This appeal under Section 374 of the Cr. P.C. has been filed by the appellant Sri Sukumar Debbarma against the judgment and order of conviction and sentence dated 10.12.2010 passed by the learned Addl. Sessions Judge, Agartala, West Tripura in S.T. 136 (WT/A) 2009 whereby and whereunder the appellant was convicted under section 376(1) of the IPC and sentenced to suffer rigorous imprisonment for 10 (ten) years and also to pay a fine of Rs.5,000/, i.d. to suffer further rigorous imprisonment for one year. 2. Briefly stated the prosecution story is that on 3.3.2009, the father of the victim girl, namely, Shri Dibananda Debbarma, (P.W. 7) lodged a complaint to the Officer InCharge, Radhapur P.S., Khomulwng, West Tripura that on 7.7.2008 at about 4 p.m., when her daughter (P.W. 8), who was a student of Class VI of Jambejoy Nagar High School, was returning home from her school, the accused appellant with a knife in his hand, allured his daughter on the way beside his house with the prospect of marriage, pulled her inside the jungle and committed sexual intercourse upon her by force. The accused appellant had also developed such physical relationship in this manner 4/5 times more thereafter. In the result, her daughter had become pregnant of eight months. The complainant, father of the prosecutrix, when he came to know about the said incident, informed to the villagers. He also went to the parents of the accused appellant. But he was threatened by them and also chased with dao and lathi with a view to killing him. On 8.2.2009, at about 1 a.m., the accused persons attacked the house of the complainant. Consequently, he along with his family members left his house at Alonga Mohan Para and went to Jaruilong under Teliamura P.S. 3. On the basis of the said complaint, a police case, namely, Radhapur P.S. Case No. 07 of 2009 was instituted on 3.3.2009 against the accused appellant, his parents and brother for committing offence punishable under Sections 376/506/34 IPC. 4. On completion of investigation, the I.O. of the case submitted charge sheet against the accused appellant under Sections 376/506/34 IPC, against the parents of the accused appellant, namely, Sri Sona Charan Debbarma and Smti. Bishu Rani Debbarma, and the brother of the accused appellant, namely, Sri Sudhir Debbarma under Sections 506/34 IPC. 5. 4. On completion of investigation, the I.O. of the case submitted charge sheet against the accused appellant under Sections 376/506/34 IPC, against the parents of the accused appellant, namely, Sri Sona Charan Debbarma and Smti. Bishu Rani Debbarma, and the brother of the accused appellant, namely, Sri Sudhir Debbarma under Sections 506/34 IPC. 5. After taking cognizance, the case was committed to the learned Session’s Judge as the case is exclusively triable by the Court of Sessions and the learned Sessions Judge registered the case as ST 136 (WT/A) 2009 and transferred the same before the learned Addl. Sessions Judge, Agartala, Tripura West, Court No. 3 for trial. 6. On perusal of the prosecution report and also after hearing the learned counsel on both sides, charge was framed against the accused appellant under section 376(1)/506 IPC and against Sona Charan Debbarma, Smti. Bishu Rani Debbarma and Sri Sidhir Debbarma under Section 506 IPC. 7. To prove the accusation, the prosecution examined 11 (eleven) witnesses and also exhibited some documents including the medical evidence. After examination of the witnesses, the accused persons were also examined under Section 313 Cr. P.C. The defence case is of complete denial to the allegations brought against them as it appears from the trend of cross-examination as well as examination of the accused appellant under section 313 Cr. P.C. 8. After hearing the learned counsel of both the parties, the learned Addl. Sessions Judge West Tripura, Agartala passed the afore-noted judgment imposing the conviction upon the accused appellant under Section 376(1) IPC and sentence to suffer rigorous imprisonment for 10 (ten) years and also to pay a fine of Rs.5,000/, i.d. to suffer further rigorous imprisonment for one year but acquitted the accused appellant from the charge under Section 506 IPC. The accused Sudhir Debbarma was also acquitted from the charge of this case. The accused Sri Sona charan Debbarma and Smti. Bishu Debbarma, parents of the principal accused, Sukumar Debbarma, were acquitted at the stage of hearing under Section 232 Cr. P.C. as there was no evidence found against them. 9. Aggrieved by and dissatisfied with, the accused appellant has preferred this appeal for setting aside the impugned order of conviction and sentence dated 10/12/2010. 10. Mr. Bishu Debbarma, parents of the principal accused, Sukumar Debbarma, were acquitted at the stage of hearing under Section 232 Cr. P.C. as there was no evidence found against them. 9. Aggrieved by and dissatisfied with, the accused appellant has preferred this appeal for setting aside the impugned order of conviction and sentence dated 10/12/2010. 10. Mr. Sarkar, learned counsel for the appellant has submitted that if the testimony of the prosecutrix is entirely believed, even then it cannot be held that the appellant had committed rape within the meaning of Section 375 of the IPC. Mr. Sarkar has also submitted that there was no misconception in extending consent to have the sexual intercourse with the accused appellant even though the prosecution has stated that on promise of marriage, she had developed the physical relation with the accused appellant. He has further submitted that there is no evidence to show that the accused appellant had intention from the beginning to deceive the prosecutrix assuring that he would marry her to have the sexual relation with her, perhaps she was in the hope that he would marry her as she allowed the accused appellant to have sexual intercourse with her for 4/5 times more after the first incident allegedly stated of committing rape upon her by force. 11. The learned counsel also contends that she had sufficient intelligence to understand the significance and moral quality of the act she was consenting to as she was a full grown girl aged about 17 years at the time of performing sexual intercourse with the accused appellant which would appear from the school certificate that her date of birth is 2.7.1991 and the alleged commission of rape occurred on 7.7.2008, though the P.W. 8 the father of the prosecutrix deposed that at the time of first incident her age was 15 years in contradiction of the evidence of the prosecutrix that according to the P.W. 8 she was reading in class VII while she stated in her deposition that she was a student of class VI. 12. Mr. Sarkar further contends that it is not clear as to why the prosecutrix kept her pregnancy secret as long as she could. The circumstances show that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant and her consent was not in consequence of any misconception of fact. 12. Mr. Sarkar further contends that it is not clear as to why the prosecutrix kept her pregnancy secret as long as she could. The circumstances show that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant and her consent was not in consequence of any misconception of fact. It is also not the case that she was not willing to have sexual intercourse with the accused appellant. The matter got complicated when the prosecutrix appeared pregnant of eight months. But in any event, it was not possible to know what was in the mind of the prosecutrix and why she continued to have sex on several occasions with the accused appellant after the first incident. After she became pregnant of about 8 months, she revealed the matter to her parents. Thereafter, the father of the prosecutrix approached the parents of the accused appellant to get married his daughter with the accused appellant. Disagreed thereto by the parents of the accused appellant, he also brought the same to the Panchayat, but of no avail. When all attempts failed, the father of the prosecutrix filed the complaint and the delay to lodge the FIR was stated that the accused appellant threatened the prosecutrix not to disclose the said incident to anybody and hence the prosecutrix did not disclose it even to her parents. This statement casts a doubt on her version as it is not a fact that she was subjected to sexual intercourse by the accused appellant in spite of her resistance for 4/5 times more even if it is believed that she was allegedly raped forcibly on the first occasion on the talk of marriage. Therefore, a close scrutiny of evidence of the prosecutrix would show that there being no other evidence which could throw a light that version of the prosecutrix is believable which accuses the appellant of forcible sexual indulgence on the first occasion, Mr. Sarkar submits. 13. He also contends that the place and time is very crucial so far as this case is concerned. The alleged first incident of alleged rape is said to have occurred in the afternoon on the side of the public road. If she had made any semblance of resistance or made any hue and cry, it would have attracted the people from the locality. The alleged first incident of alleged rape is said to have occurred in the afternoon on the side of the public road. If she had made any semblance of resistance or made any hue and cry, it would have attracted the people from the locality. It transpires from the cross of the P.W. 8 that he said that his house was at a distance of 200/250 yards from the CRPF camp at the time of incident. Further, first information report as already indicated was lodged after about seven months from the date of the first incident of alleged rape as the prosecutrix did not disclose it to anybody. But it is transparent from the evidence of the prosecutrix that she had sexual intercourse with the accused appellant 4/5 days more after the first incident of alleged rape and that also she did not disclose anybody even to her parents. She became pregnant and no where she stated that she ever told to the accused appellant about her pregnancy due to performance of sexual intercourse with the accused appellant and to marry her which the accused appellant refused. Therefore, all these circumstances cast some shadow of doubt on the prosecution case. Hence, the finding of the trial court in holding that the accused is guilty of committing offence punishable under Section 376 IPC is wholly unsustainable and the conviction and sentenced imposed on the appellant should be set aside, Mr. Sarkar further contends. 14. On the other side, Mr. A. Ghosh, learned P.P. appearing for the State has fairly submitted that there is no evidence in regard to misconception of facts within the ambit of Section 90 of the IPC. The consent as it appears was not given by the prosecutrix under fear of injury or under a misconception of fact. But from the evidence as led by the prosecution, it can be held that from the very inception, the accused appellant had an intention to deceive the prosecutrix and not keep promise of marrying her. He had the sexual intercourse deceitfully and causing harm to the reputation of the prosecutrix. Mr. But from the evidence as led by the prosecution, it can be held that from the very inception, the accused appellant had an intention to deceive the prosecutrix and not keep promise of marrying her. He had the sexual intercourse deceitfully and causing harm to the reputation of the prosecutrix. Mr. Ghosh further submits that it is apparent from the evidence that the accused appellant only wanted to indulge in sexual intercourse with her which is evident that he had sexual intercourse with the prosecutrix for 4/5 times more after the first incident of rape and was under no intention of actually marrying her. He made a false promise to her but never aimed to marry her. Thus, he is guilty of rape as defined under Section 375 of the IPC and is liable to be punished for the offence under Section 376 of the IPC. As such, no infirmity can be found in the findings of conviction returned by the trial court. 15. P.W. 7, Sri Dibananda Debbarma, is the father of the prosecutrix, who in his deposition stated that about two years back at about 4.00 p.m., when his daughter, the prosecutrix, was returning from her school to the house, on the way, his daughter was taken to a jungle by the side of the road by the accused Sukumar Debbarma who committed sexual intercourse upon her by force. He informed the parents of the accused about the incident but they did not give any response. The complainant was informed the Panchayet and a meeting was held in presence of the parents of the accused, but nothing was decided conclusively as the parents did not obey the decision of the meeting. After one month of the incident in one dead night Sudhir Debbarma, brother of the principal accused Sukumar Debbarma, came in front of the house of the complainant and threatened them with dire consequences and as a result all the family members of the complainant left Alanga Mohan Para and shifted to Teliamura. From Teliamura he lodged the complaint. At the time of incident, his daughter was aged about 15 years and student of Class-VII. The accused also threatened his daughter not to disclose to anybody, otherwise the consequence will be very bad and as suvh his daughter did not inform him. His daughter became pregnant due to the said incident. From Teliamura he lodged the complaint. At the time of incident, his daughter was aged about 15 years and student of Class-VII. The accused also threatened his daughter not to disclose to anybody, otherwise the consequence will be very bad and as suvh his daughter did not inform him. His daughter became pregnant due to the said incident. The complainant was cross-examined by the accused side, but nothing contrary appears to disbelieve his testimony. 16. P.W. 8 the prosecutrix, the daughter of the complaint, deposed that at the time of incident she was staying at Alanga Mohan Para with her parents and was a student of Class VI in Jammejoynagar School. At about 3.00 p.m. she started from school and she had to take about one hour to reach her house on foot. On the way the accused Sukumar Debbarma caught hold her, took her to jungle and committed sexual intercourse with her by force. The accused threatened her by showing a knife not to disclose anybody for which she did not inform to her parents. After about 6/7 months when her mother asked, she narrated the incident. Her parents also informed Panchayat and a meeting was held in their house in presence of the parents of the accused Sukumar Debbarma. Mother of the accused did not agree to arrange marriage of the prosecutrix with her son. She was only agreed for abortion of pregnancy. The prosecutrix did not inform her parents as she was threatened by the accused. The incident occurred on 07.07.2008. She became pregnant of 8 months at the time of filing of this case. The Panchayat advised to file case against the accused and on hearing this, Sudhir Debbarma brother of the accused came one night in front of their house and threatened there family with dire consequences. As a result, all the family members shifted to Teliamura on 01.03.2009 and on 03.03.2009 her father lodged this case. The delay was caused due to the threat of the accused person. In cross, she confirmed that the delay in filing the case was caused due to threat. 17. PW2, Dr. Manasree Debbarma, the medical officer deposed that he examined the victim girl at Jirania Rural Hospital in connection with this case who was aged about 16 years and carrying 8 months pregnancy. He gave his detailed report which was exhibited as Exbt.1. 18. PW5, Dr. 17. PW2, Dr. Manasree Debbarma, the medical officer deposed that he examined the victim girl at Jirania Rural Hospital in connection with this case who was aged about 16 years and carrying 8 months pregnancy. He gave his detailed report which was exhibited as Exbt.1. 18. PW5, Dr. K.P. Debnath, a Sonologist in the Department of Rediology in the G.B. Hospital, Agartala, deposed that on 04.03.2009 he examined the victim aged about 15 years to ascertain the age of the baby in her womb and after examination he found the baby was of 28 weeks approx. He gave detailed report which was exhibited as Exbt.4. 19. PW3, Kapil Das, is the police officer who registered the Radhapur P.S. Case No. 07 of 2009, under Sections 376/506/34 of IPC on receipt of the complaint from Dibananda Debbarma (PW7). 20. PW4, Surendra Debbarma, deposed that he has no knowledge about the incident. The complainant Dibananda Debbarma left the locality with his family about 2 years back. 21. PW6, Smt. Chandana Debbarma, the Head Mistress of Janmejoynagr High School deposed that on 21.03.2009 as per requisition of the police officer he issued a certificate relating to the date of birth of the victim girl who was a student of that school. According to the admission register, her date of birth was 02.07.1991. The certificate was exhibited as Exbt.5. 22. PW10, Sourasen Tripura, is the police officer who investigated the case, visited the place of occurrence, prepared hand sketch map, examine the witnesses, arranged medical examination of the victim, recorded her statement under Section 164 of the Cr.PC. collected birth certificate of the prosecutrix and submitted charge sheet the accused person. 23. PW11, Smt. Sudipta Chowdhury, the Judicial Magistrate, 1st Class, Agartala, West Tripura, deposed that on 04.03.2009 she recorded 164 Cr. PC statement of the victim. 24. The prosecution admitted in evidence some documentary evidence Exbt. 1 to Exbt. 7 series. Exbt. 1 is the medical report given by the Medical Officer, Jirania Rural Hospital wherefrom it reveals that the accused appellant was known to her. She stated to the medical officer that she was raped several occasions forcibly. But it is not clear as to why she did not report to anybody on any occasion after her forcible rapes. Therefore it can be held that the prosecutrix consented to have sexual relationship with the accused appellant willingly. She stated to the medical officer that she was raped several occasions forcibly. But it is not clear as to why she did not report to anybody on any occasion after her forcible rapes. Therefore it can be held that the prosecutrix consented to have sexual relationship with the accused appellant willingly. On the day of first time sexual intercourse with the accused appellant, the prosecutrix was not below the age of 16 years and she was able to know the consequences of having sexual intercourse with anybody. Even then she used to have sexual intercourse with the accused appellant after the first incident. 25. The prosecution’s case is based only on the complaint of the father of the prosecutrix having learnt that his daughter is pregnant of eight months on account of sexual intercourse with the accused appellant. But the prosecution failed to establish that the prosecutrix ever informed the accused appellant that she became pregnant out of their sexual intercourse barring her father approached the parents of the accused appellant. There is also nothing on record that the accused appellant had refused to marry her on being informed him that the prosecutrix became pregnant on account of their sexual intercourse. So there is also no failure on the part of the accused appellant to keep his promise to marry the prosecutrix. Therefore, we cannot uphold the finding of the trial court that the prosecutrix was raped forcibly on the first occasion. There was also no talk of marriage emerged from the mouth of the accused appellant. 26. In Ramdas and others v. State of Maharashtra, (2007) 2 SCC 170 : AIR 2007 SC 155 : 2006 AIR SCW 5657, the Apex Court held that the conviction in case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the Court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity. 27. In Vijayan v. State of Kerala, (2008) 14 SCC 763 : AIR 2008 SC (Supp) 1022, the complaint was made by the prosecutrix after the alleged commission of rape on her by the accused. At the time of making the case, the prosecutrix was pregnant for about seven months. The Apex Court did not place reliance on the sole testimony of the prosecutrix. At the time of making the case, the prosecutrix was pregnant for about seven months. The Apex Court did not place reliance on the sole testimony of the prosecutrix. The Apex Court noticed that flaw that no DNA test was conducted to find out whether the child was born out of the said incident and the accused was responsible for the said child. 28. K.P. Thimmappa Gowda v. State of Karnataka, (2011) 14 SCC 475 : AIR 2011 SC 2564 : 2011 AIR SCW 2281, was a case before the Apex Court, where the accused had assured the prosecutrix that he would marry her and had sexual affair, which was repeated on several occasions as well. But he did not marry and she became pregnant. That was a case where there was delay of eight months in filing the complaint. The accused was given the benefit of doubt holding that it would not be possible to conclude that the alleged sexual act was committed without the consent of the prosecutrix. 29. In Kaini Rajan v. State of Kerala, 2013 CRI. L.J. 4888, the aforesaid cases were mentioned and the Apex Court considering the facts of that case held: “We are, in this case, concerned with a situation where the incident alleged to have occurred at 8.30 am. in day light and at a place near the compound of one Karunakaran, not within the four walls of a house or a building. Accused was not a stranger. The prosecutrix had previous acquaintance with the accused or else in all probability she would have resisted forcefully, attracting passersby or people from the neighborhood. She has stated that she was threatened and made to believe that the accused would marry her. She later became pregnant and delivered a child, and the paternity of the child is disputed by the accused. She has stated that she was threatened and made to believe that the accused would marry her. She later became pregnant and delivered a child, and the paternity of the child is disputed by the accused. FIR was lodged after a period of 10 months from the date of incident.” “The version of victim, in rape commands great respect and acceptability, but, if there are some circumstances which cast some doubt in the mind of the court of the veracity of the victim’s evidence, then, it is not safe to rely on the uncorroborated version of the victim of rape.” And ultimately discussing the circumstances of the said case held that: “The Trial Court as well as the High Court has committed an error in holding that the accused is guilty of the offence punishable under Section 376, IPC. In such circumstances, we are inclined to allow this appeal and set aside the conviction and sentence imposed on the appellant and order accordingly.” 30. In the case of Pintu Malakar v. State of Tripura, Crl. A. (J). No. 14 of 2011, the appellant often cohabited with the prosecutrix of that case on promise of marrying her and she became pregnant and at the instance of the appellant, she had aborted the pregnancy. Later on, the appellant had refused to marry her. There had been social negotiations but that did not bring effective result. On appreciation of the evidence, the Addl. Sessions Judge, had convicted the appellant under Sections 376(1) and 417 of the IPC and acquitted him from the charge framed under Section 315 of the IPC and sentenced to suffer RI for 10 years and to a pay of fine Rs. 20,000/- in default to suffer another 6 months RI for the offence punishable under Section 376(1) of the IPC and the appellant was further sentenced to suffer 6 months RI for the offence punishable under Section 417 of the IPC. This court considering the facts and circumstances of that case held that “the alleged sexual intercourse cannot be brought within the definition of rape as the ‘consent’ cannot be held to be given by the prosecutrix under misconception of fact. As we have already discussed the testimony of the prosecutrix and we did find any statement the appellant ever denied to marry her. As we have already discussed the testimony of the prosecutrix and we did find any statement the appellant ever denied to marry her. As natural corollary of what has been observed, the conviction under Sections 367(1) and 417 of the IPC cannot be maintained.” And ultimately, the impugned judgment and order of conviction and sentence was set aside and the appellant was acquitted from the charge on benefit of doubt. 31. In the case in hand also, considering the evidence on record and after going through the impugned judgment, this court is of the considered opinion that the alleged sexual intercourse cannot be brought within the definition of rape as the consent cannot be held to have given by the prosecutrix under misconception of fact. We have already discussed the testimony of the prosecutrix and we are further of the considered view that the prosecution has miserably failed to prove the charge under Section 376(1) of the IPC. Therefore the conviction under Section 376(1) IPC cannot be maintained. 32. In the result, the impugned judgment and order is set aside. The appellant is acquitted from the charge on benefit of doubt. Consequently, the bail bonds furnished by the appellant are cancelled and the surety is discharged. Accordingly, the appeal stands allowed. Send down the L.C. Rs forthwith.