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2019 DIGILAW 9 (TRI)

Raju Mog Sharma v. State of Tripura

2019-01-10

ARINDAM LODH

body2019
JUDGMENT : 1. Heard Mr. H.K. Bhowmik, learned counsel appearing for the accused-appellant as well as Mr. A. Roy Barman, learned Addl.P.P., appearing for the State-respondent. 2. The present appeal is directed against the judgment of conviction and sentence dated 27.06.2015 wherein the accused-appellant was convicted to suffer R.I for 5(five) years for committing offence under Section 376(1) of the IPC along with fine of Rs.2000/- and in default to suffer S.I for four months in connection with Sessions Trial Case No. S.T.49 (WT/K)/2009. 3. In a nutshell, the prosecution case is that on 06.06.2009, in the afternoon, at about 5.30 P.M., while the victim (name withheld to protect her identity) was taking bath in the Khowai river situated in the southern side of her house, the accused-appellant Raju Mog Sharma of her own village got down into the river and hugged her and when she cried out, the accused-appellant pressed her mouth by his one hand and took her to the river bed, torn her blouse, bra and committed rape upon her laying her on the earth against her will. She has further stated in the FIR that she tried to shout but the accused-appellant pressed her mouth by his hand. For about 10/15 minutes, the accused had committed rape upon her, thereafter, the accused-appellant Raju Mog Sharma had gone away by crossing the river. At that time, none was there. Returning back to her house, she disclosed the incident to her husband and her husband informed the villager about the facts of the incident who assured him that the matter would be discussed in a village meeting on the next morning but on the next day no meeting was held and aggrieved of that, she lodged an FIR to the Officer-in-Charge of the Teliamura Police Station. 4. On receipt of the complaint, the officer-in-charge of the police station registered an FIR and endorsed the case to the investigating officer. The investigating officer conducted the investigation and in course of his investigation, the victim lady was produced before the learned Judicial Magistrate, First Class for recording her statement under Section 164(5) Cr.P.C. Accordingly, her statement was recorded. The investigating officer also had examined some villagers, seized the wearing apparels and arranged for medical examination of the victim. 5. After the completion of the investigation, being prima facie satisfied, investigating officer submitted charge sheet against the accused-appellant. The investigating officer also had examined some villagers, seized the wearing apparels and arranged for medical examination of the victim. 5. After the completion of the investigation, being prima facie satisfied, investigating officer submitted charge sheet against the accused-appellant. On being committed, the learned Sessions Judge, has framed charge against the accused-appellant for committing offence punishable under Section 376(1) of the IPC. 6. In course of trial to substantiate the prosecution case as many as 11 witnesses were examined and the wearing apparels of the victim, medical reports and hand sketch map were taken into evidence. After recording the evidence, the accused was put to examination under Section 313 of CrP.C., where he pleaded innocence. 7. Mr. H.K. Bhowmik, learned counsel appearing for the appellant at the outset has drawn my attention to the judgment passed by a Bench of this Court wherein, this Court remanded the case after hearing substantially to examine the victim lady after the incident. Accordingly, the Doctor was examined as P.W.-11. Mr. Bhowmik, learned counsel submits that the entire case of the prosecution is false and the statement of victim does not inspire confidence and was not trustworthy. More so, the medical examination of the victim does not support the commission of rape. He submits that there are some independent witnesses to whom according to victim and her husband narrated the incident of rape on the same day but they did not support the version of the prosecutrix. The learned counsel appearing for the appellant has drawn my attention to the statements of P.W-1, P.W-2 and P.W-3 who are the independent witnesses and according to the prosecution, the husband of the victim has narrated the incident to these witnesses just after the incident. 8. P.W-1, Chailafru Mog Choudhury, in his evidence has stated that on 06.06.2009, in the evening, at about 7 P.M, Indra Kumar Malsum visited his house and reported that on that date while his wife was bathing in the khowai river one Raju Mog Sharma of their locality caused hurt to her when she was declared hostile. 9. P.W.2, Ogiyajoy Mog also has replicated the version of P.W.-1. 10. P.W.-3 did not say anything. 11. P.W.5 is the Judicial Officer to whom the confessional statement of victim was recorded under Section 164(5) of CrP.C. 12. I find there are lots of discrepancies in the recording of confession statement of the victim. 9. P.W.2, Ogiyajoy Mog also has replicated the version of P.W.-1. 10. P.W.-3 did not say anything. 11. P.W.5 is the Judicial Officer to whom the confessional statement of victim was recorded under Section 164(5) of CrP.C. 12. I find there are lots of discrepancies in the recording of confession statement of the victim. The Judicial Officer did not give any certificate to the effect that the statement of the victim was recorded before him, it was read over and explained with the same in Bengali. He has stated that he has recorded the statement after the same was translated into the English and in this regard also there is no certificate which is marked as Exbt-3. After going through the evidence of all the witnesses it appears to me that the evidence of victim and her husband as well as the medical report and the evidence of the Doctor, P.W.-11 is most important for decision of this Case. At the same time, I should not be oblivious to the fact that the evidence of P.W.8 and P.W. 9, i.e., the victim lady and her husband, also have to be read with the evidence of P.W.-1, P.W. 2 & P.W. 3 to whom the incident was narrated just after the occurrence. 13. Keeping in mind, all the aforesaid feature, let me discuss evidence of P.W.8 and P.W.9. 14. P.W.-8, in her evidence has stated that in the evening of the fateful day the victim was taking bath in her hut under a supply point but as it was stopped, she proceeded towards the river to take a bath. She has further stated that while she was taking bath in the river, the accused-appellant suddenly came from behind and embraced her. She cried out but the accused had shut her month by his hand and forcibly brought her to the sand shore of the river, made her naked, the accused himself removed his wearing gamcha (bathing towel) and forcibly raped her for about 10/15 minutes. She has further stated that since her mouth was closed through the wearing gamcha of the accused-appellant, she could not cry. After commission of rape, the accused crossed the river and escaped. She identified the accused in the dock. She has further stated that since her mouth was closed through the wearing gamcha of the accused-appellant, she could not cry. After commission of rape, the accused crossed the river and escaped. She identified the accused in the dock. She has stated that after the incident she had completed her bath in the river and returned back to her house and informed the matter to her husband and other inmates of her house. She and her husband reported the incident to the Chailafur Mog Choudhury,(P.W.1), Ogiyajoy Mog, (P.W.2), Ogiya Mog, (P.W.3), but, they did not settle up the matter. It was on Saturday and immediately thereafter, the victim and her husband reported the incident to some villagematabors( leaders) but they did not take any step although they assured that they would look after the matter on Sunday morning, but, on Sunday Morning, they did not take any step. Thereafter, she and her husband went to Teliamura Police Station and lodged the FIR, she put her signature in the ejahar. In her cross examination, her attention was drawn to her statements whether she has stated that her mouth was closed by the wearing gamcha of the accused-appellant, but, in her statement made under Section 161 of CrPC it was not found. In the FIR as well as in her confessional statement before the Magistrate the said statement was found to be absent. She has categorically stated in her cross examination that she narrated the incident to P.W.1, P.W.2 and P.W.3. The said statement was also found to be absent in her 161 statement, in her FIR and also the statement recorded under Section 164 of CrPC. The statement that she narrated to her inmates of her house also was found to be absent in her 161 statement as well as in the FIR and the confessional statement recorded by the Magistrate. In the course of his cross-examination, she has stated that from her house and from the supply point, the Khowai river would be about 150 yards and after bathing from river to go to her house she had to cross at least five houses and in those houses there were at least 50 inmates. She has further stated that it was a summer time and many people used to bath in the evening during that time. She has further stated that it was a summer time and many people used to bath in the evening during that time. Though she had volunteered that at that time none was present in the place of occurrence. She has further stated that one Buddha Temple was situated 150 cubits from the place of the occurrence and in that temple local people used to make prayer from 3.00 PM to 8.00 PM. But she also has stated that the place of the occurrence could not be said to be seen from the said temple because the place of occurrence is situated in a down area. She has further stated that there was an auto stand near by the alleged place of occurrence and the accused brought her to that stand. From that auto stand people of that area avail auto and travel even at night. She has stated that her husband was a surrendered NLFT extremist and the defence has tried to make out a case that the at the instance of the husband she lodged the complaint about the accused. 15. P.W.-9, the husband of the victim lady, in his evidence has replicated the version of the victim lady. In his cross examination, he has stated that after one day of incident he submitted the seized articles, i.e., the wearing apparels of the victim lady to the police. 16. P.W.10, the investigating officer, has stated that he had recorded the ejahar as per the statement of the victim lady and on completion of the investigation filed the charge sheet. In the cross examination, he has stated that the medical evidence did not support the factum of the case. 17. P.W-11, the Doctor is the most important witness in the fact of the circumstances of the present case has stated in his evidence that during the medical examination of the victim lady, he found scratch mark on the left thigh of the victim lady and also found her both labia in normal and her hymen was not present. He had collected the sample of the vaginal swab and duly labeled those swab and handed over to the police. And after examination of the victim he opined that sexual intercourse might have taken place and only could be conferred by the examination of the vaginal swab of the victim. He had collected the sample of the vaginal swab and duly labeled those swab and handed over to the police. And after examination of the victim he opined that sexual intercourse might have taken place and only could be conferred by the examination of the vaginal swab of the victim. In his cross examination, he has categorically stated that he did not find any mark of injury as per biological report of SFSL on collected sample of vaginal swab. There was no seminal stain/spermatozoa of human origin and he has reflected it on the overleaf of his copy of the report of the victim on 02.08.2009 with his signature and seal. 18. The material aspect to be considered in this appeal is whether the statement of the prosecutrix is trustworthy and inspire confidence of the Court. 19. From careful reading of evidence of the prosecutrix, it reveals that there are as many as five houses near the place of occurrence consisting of about 50 inmates. She has categorically stated that there is a temple also. She has also stated that it was summer time and many people used to bath in the evening during that time, though she volunteered that at the time of incident there was none to bath in the khowai river. The most contradictory statement she made in her examination-in-chief which strikes the mind of this Court, is that, after committing rape the accused has crossed the river and fled away, but, in cross examination she has stated that there was an auto-stand nearby the alleged place of occurrence and the accused brought her in the auto stand. 20. Further, after the occurrence of the incident, the victim lady after being faced with such heinous act, she immediately did not complain to anyone though there were so many inmates near the place of occurrence but, she preferred to take bath in the river and though she had to cross as many as five houses, she did not narrate the incident to anyone and proceeded towards her own house where she informed to her husband and father-in-law and other in-laws. But except the husband none of her in-laws has been shown as witness by the prosecution. The prosecution also has not made any initiative to bring in-laws, particularly the father-in-law of the victim lady as witness in the witness box. But except the husband none of her in-laws has been shown as witness by the prosecution. The prosecution also has not made any initiative to bring in-laws, particularly the father-in-law of the victim lady as witness in the witness box. Further P.W-1 and P.W.-2 have stated that both the husband and victim lady informed them that the accused-appellant had caused hurt to the victim lady. They were the only independent witnesses along with the P.W.3, who have not stated anything. 21. I find there is legal discrepancy in recording of the statement made under Section 164 of the Cr.P.C. of the victim lady. Another important aspect this Court is to consider is that the wearing apparels of the victim lady, which she was wearing at the time of the incident were not produced when she lodged the FIR in the police station. Subsequently, in the evening, they produced the wearing apparels which she was wearing at the time of the incident before the investigating officer, but, the investigating officer prior to the production of such wearing apparels by victim lady and her husband did not feel it necessary to seize the wearing apparels which were worn by the victim at the time of commission of crime. 22. Medical report also in the facts of the present case is to be examined carefully. P.W.11, the Doctor, could not take any firm opinion about the rape though the victim lady was examined on the very next day of the occurrence. After examination of vagainal swab collected from the victim lady no seminal stain/spermatozoa of human origin was found. He has stated that hymen was not present. I should not forget that victim lady was a married and aged about 35/36 years at the time of the incident. 23. So, I may come to the conclusion that there is no mark of violence and medical evidence does not support in any manner about the commission of rape upon the victim lady. 24. I should not forget that victim lady was a married and aged about 35/36 years at the time of the incident. 23. So, I may come to the conclusion that there is no mark of violence and medical evidence does not support in any manner about the commission of rape upon the victim lady. 24. Again if the oral testimony of the victim lady is put under meticulous scrutiny, then also it seems in the light of the above discussions that there were so many houses having about 50 inmates, many people used to take bath at that time in the river and her contradictory statement that the accused had crossed the river after the incident and again she has stated that the accused-appellant had taken her to the auto stand appears to be unconvincing and not credible. 25. I have also noticed that in her statement she has stated that her blouse and bra were torn by the accused-appellant but when those wearing apparels were produced before the investigating officer only the blouse was found to be torn but bra was not torn. Here also the wearing apparels were sent for scientific examination. Further, there is no eyewitness to substantiate the fact as to whether at the time of commission of offence of the alleged crime, the victim lady was at all wearing the said apparels which the prosecution and her husband had produced. 26. Further, though she has stated that the accused raped her by closing her mouth by hand, but, she developed her statement during her evidence before the Court that the accused closed her mouth by means of gamcha? (kind of towel used during bath). Though, minor discrepancy should not be taken into account in deciding a criminal case, but, considering the entire scenario of the present case, this contradiction appears to be very vital for arriving at a definite conclusion as to whether the victim lady was actually raped by the accused-appellant. It is also a matter to be considered, in the facts of the present case, that the husband of the victim is a surrendered extremist and the defence has tried to make out a case that he was demanding money from the accused-appellant, and being refused both the husband i.e., P.W.-9 and victim wife, P.W.-8, have falsely implicated the accused-appellant. 27. 27. The investigating officer has categorically stated in his cross examination that neither the informant nor the husband has stated to him that the accused shut her mouth by a napkin/gamcha. 28. The investigating officer has sent the wearing apparels of the victim lady, i.e. Exbt-7, for scientific examination and also produced the report. In the report, I find no evidence of any semen stain/spermatozoa of human origin in any of the apparels. 29. That apart, the prosecutrix made a categorical statement that the accused committed rape upon her for about 10/15 minutes, wherefrom, it can be presumed or assumed, that would have been so really happened, then there must have been seminal discharge in the vagina of the prosecurtrix. Had that been so, the medical examination and collection of the vaginal swab must have a reflection of the presence of semen stain/spermatozoa of human origin in the samples of the vaginal swab of the prosecutrix. Further, the prosecutrix has never stated that she washed her private part either at the time of bath or at any time before going to the police station. The medical examination as well as the criminal examination report, therefore, does not support the case of the prosecutrix that she was raped by the accused-appellant as alleged. Here, oral testimony also does not inspire the confidence of this Court to arrive at a definite conclusion that the accused-appellant has committed rape upon the prosecutrix. 30. In furtherance thereof, the story of committing rape for a period of 10/15 minutes pressing her mouth by hand without causing any injury to the said hand by her teeth and that also in the open place where movement of villagers are frequent, and two versions of the prosecutrix, one, that after committing rape the accused fled away by crossing the river and, another version that after rape she was taken to the auto rickshaw stand by the accused makes the evidence of the prosecutrix doubtful, above all, when the said evidence of rape of the prosecutrix was not supported by the medical evidence. 31. It is settled law that benefit of doubt always goes in favour of the accused. 31. It is settled law that benefit of doubt always goes in favour of the accused. If I consider that the evidence produced by the prosecution is stronger, even then, looking at the evidence, two views appear to be surfaced and in that case also, the conviction of the appellant cannot be upheld since the view favouring to the accused should be adopted. In this regard, I may profitably refer State of Gujarat v. Jayrajbhai Punjabhai Varu reported in AIR 2016, SC 3218, in which the Hon’ble Apex Court observed that when two views are possible, views favourable to the accused should be adopted. Para. 13 reads thus:- "(13) The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted." 32. Similar view has been taken in State of Uttar Pradesh v. Munni Ram & Ors reported in (2010) 14 SCC 364 stated that :- "when two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to innocence, the view which is favourable to the accused is normally to be adopted." 33. In Mohd. Azad @ Samin v. State of West Bengal reported in AIR 2009 SC 1307 and Vithal Eknath Adlinge v. State of Maharashtra, AIR 2009 SC 2067 the Supreme Court has reiterated the principles laid down in para 9 of State of U.P v. Ashok Kumar Srivastava reported in AIR 1992 SC 840 where it was held that "when two views are possible, views in favour of the accused must be accepted." Para 9 of Ashok Kumar (Supra) reads thus:- "Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt." 34. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt." 34. In my considered view, learned trial court has not considered the evidence produced by the prosecution in its right perspective. I have reasons to doubt the opinion expressed by the learned trial Court. Considering the facts and the evidence in totality, I am of the view that the evidence relied upon by the prosecution being doubtful, guilt of the appellant cannot be upheld on such evidence and is unsafe to record conviction. 35. The cumulative effect of the prosecution read with the medical evidence and other surrounding circumstances, as highlighted above, when considered with the background of the legal principles as stated supra, it is clear that the accusations against the appellant Raju Mog Sharma have not been established beyond doubt, and certainly, benefit of doubt is to be given to the appellant. Consequently, the impugned judgment of conviction and sentence cannot sustain. 36. In the result, the judgment dated 27.06.2015 passed in Case No. S.T.49 (WT/K)/2009 is set aside and quashed. The accused-appellant is acquitted from the charge of committing rape under Section 376(1) of IPC. It is submitted that the accused is on bail. So, sureties are discharged from their respective liabilities. 37. The present criminal appeal is accordingly allowed. Send back the L.C. records.