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2020 DIGILAW 110 (TRI)

Tapas Das v. State of Tripura

2020-09-25

ARINDAM LODH, S.G.CHATTOPADHYAY

body2020
JUDGMENT : Arindam Lodh, J. 1. Heard Mr. S. Sarkar, learned counsel appearing for the accused-appellant and Mr. R. Datta, learned Public Prosecutor, appearing for the State-respondent. 2. This is an appeal under Section-374(2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction and sentence dated 05.08.2017 passed by the learned Special Judge (POCSO) Khowai, West Tripura in connection with case No. Special POCSO 13 of 2016 against the present accused-appellant and thereby sentenced him to undergo RI for 1 (one) year for commission of offence under Section-448 of the IPC and also RI for 10(ten) years with fine of Rs. 2,000/- in default to suffer simple imprisonment for 6(six) months for commission of offence under Section-376(1) of the IPC and it was ordered that both the sentence shall run concurrently. 3. The prosecution story, in short, is that on 30.04.2015 in between 13/14 hours, the victim-girl was sleeping at her room when none of her parents or younger sister was present. At that time, the accused-person, the appellant herein, entered into that room of the victim-girl and requested her to switch on the TV. But, at that time, there was no electricity. However, the convict-appellant had tried to switch on the TV. Suddenly, the convict-appellant came very close to the victim-girl and gagged her mouth & raped her. 4. It is further stated that the victim-girl somehow managed to free herself from the clutch of the accused-person. She raised hue and cry and the accused-appellant fled away. The matter was informed to the neighbouring people. One of the persons, namely, Sri Sujit Das informed the matter to the police. Immediately, the police had rushed to the spot and inquired about the incident. The victim-girl was sent to the hospital for medical examination and she was medically examined. The victim-girl herself had lodged the complaint as aforestated. 5. On the basis of that complaint, the officer-in-charge of the police station had registered an FIR under Section-448/376 of the IPC read with Section-4 of the Protection of Children from Sexual Offences Act, 2012. Investigation was carried on. In course of investigation, the statements of the available witnesses were recorded. The statement of the victim was recorded under Section 164(5) of Cr.P.C., the I.O. collected the vaginal swab from the doctor who examined the victim-girl. The sample was sent to the SFSL and it was scientifically examined. Investigation was carried on. In course of investigation, the statements of the available witnesses were recorded. The statement of the victim was recorded under Section 164(5) of Cr.P.C., the I.O. collected the vaginal swab from the doctor who examined the victim-girl. The sample was sent to the SFSL and it was scientifically examined. 6. After receipt of the scientific examination report, the doctor, who medically examined the victim-girl, had passed his final opinion. After completion of investigation, the I.O. submitted the charge-sheet against the present accused-appellant. After receipt of the records, the learned Special Judge had framed the charge against the accused-person under Section-448 of the IPC, under Section-376(2) (i) of the IPC and also Section-4 of the POCSO Act, 2012. 7. In course of trial, the prosecution had examined as many as 12 witnesses including the statement of the victim-girl (PW-1), under Section-164(5) of Cr.P.C. Exbt. -2, 2/1, medical examination report of the victim-girl Exbt. -4, the final report Exbt. -5, the doctor (PW-10), who medically examined the victim-girl and the scientific examiner, Dr. S. Nath (PW-12), PW-11, the WSI, S.B. Chanda and 9(nine) documentary evidences were introduced to substantiate the charge levelled against the accused-appellant. After closure of the evidence by the prosecution side, the accused-appellant was examined under Section-313 of Cr.P.C., wherein he denied all the incriminating evidence found against him and pleaded his innocence. 8. Having heard the learned counsel appearing for the parties and after considering the evidence and materials on record, the learned Special Judge, had convicted the accused-person, the appellant herein and sentenced him as aforestated. Being aggrieved by and dissatisfied with the conviction and sentence as stated above, the accused had preferred the instant appeal before this Court. 9. Mr. Sarkar, learned counsel appearing for the accused-appellant has strenuously argued that it is a pure case of molestation and does not attract the ingredients of rape. Learned counsel for the appellant has principally emphasized on the medical examination report wherefrom he has tried to persuade this Court that medical examination report does not support the ocular version of the prosecutrix. He has pointed out that though hymen was ruptured, but, it was an old one. Learned counsel for the appellant has principally emphasized on the medical examination report wherefrom he has tried to persuade this Court that medical examination report does not support the ocular version of the prosecutrix. He has pointed out that though hymen was ruptured, but, it was an old one. Further, the learned counsel for the appellant has emphasized that the victim was a 14 years of old girl and the accused was an adult person and in that case, if an adult male organ penetrates the private part of the victim-girl, then, there had to be severe injuries in and around the vaginal region or vaginal orifice which is absent in the instant case. So, according to learned counsel for the appellant, the present case is not a case of rape and does not come within the purview of the definition of rape under Section-375 of IPC. Furthermore, learned counsel for the appellant has submitted that PW-3, the sister of the victim-girl does not support the ocular version of the victim complainant, as she has not stated in her evidence that the complainant was raped by the accused. It is the further submission of the learned counsel for the appellant that PW-9 also does not support the case of the prosecution. 10. Learned counsel contended that the circumstances had elucidated two sets of evidence. He has further submitted that this is settled question of law that when the Court can draw two views, then, the view which favours the accused, shall prevail and the accused has to be acquitted. 11. On the other hand, Mr. Ratan Datta, learned P.P. appearing for the State-respondent defending the judgment of the learned trial Court has submitted that the present case is a clear case of rape. Learned P.P. has submitted that to constitute a rape, penetration of penis is not sine qua non; even the slightest degree of penetration by a male organ to the private part of a girl constitutes rape. Learned P.P. has further submitted that the evidence of the victim-girl, PW-1, is trustworthy and is of unblemished character. The medical reports also support the ocular version of the PWs-1, 2, 4, 5, 6 and 7. 12. Learned P.P. has further submitted that the evidence of the victim-girl, PW-1, is trustworthy and is of unblemished character. The medical reports also support the ocular version of the PWs-1, 2, 4, 5, 6 and 7. 12. For re-appreciation of evidence and to justify the submissions of the learned counsels as well as to examine the sustainability of the judgment of conviction and sentence, we have made a short survey of the evidence and materials on record. 13. PW-1, the victim-girl herself, who lodged the complaint, has stated that while she was sleeping in her room at that time the accused-person requested her to switch on the TV. However, the accused person himself tried to switch on the TV, but, at that time there was no electricity. The accused person enquired from her about the whereabouts of her parents when she replied that they were not at the house. She has further stated that her younger sister was in the house of the accused-person. At that time, for a while, the accused person went out from the room of the victim-girl, but, immediately the accused returned to the room and came closer to the victim-girl. Ultimately, the accused had gagged her mouth and opened her panty, disrobed her and committed rape on her. There is no material cross-examination to discredit the said evidence of the victim-girl. 14. PW-2 Smti. Sabita Das had deposed that she is a neighbour, and on the fateful day Paramita Das (PW-3), the younger sister of the victim-girl, went to her house and informed her that accused getting her sister alone in the house forcefully raped her. PW-2 has further deposed that she informed the matter to one Sujit Das (PW-4), an inhabitant of their locality who informed the matter to the police and in her presence, some articles were seized and she put her signature on the seizure list. 15. PW-3, Smt. Paramita Das is the sister of the victim-girl (PW-1). She deposed that at the time of occurrence she was at the house of the accused-person when the accused had visited to their house and requested her sister to switch on the TV, but, there was no electricity at that time. She further deposed that the accused had enquired about the parents when her victim sister told the accused that her parents were out of the house. She further deposed that the accused had enquired about the parents when her victim sister told the accused that her parents were out of the house. Thereafter, she deposed that the accused gagged the mouth of her sister. She further stated that she received the information from her sister (PW-1) immediately after the incident. 16. PW-4, Sri Sujit Das is a neighbour. He deposed that on the fateful day the incident was reported to him by one Sabita Das, who was a member of local panchayat and thereafter, it was informed to other members of the Panchayat and the Pradhan. Nothing material contradictions were found in the cross-examination to distrust this witness. 17. PW-5, Sri Samir Sarkar, who deposed that he came to know about the incident from Sujit Das (PW-4) that the accused had raped the victim-girl. 18. PW-6, Sri Nitai Das also deposed in the same tune. 19. PW-7 Smt. Dipali Das also deposed in the same manner. 20. PW-8 Smt. Jharna Das, the mother of the victim-girl, narrated the incident what was told to her by the victim-girl and others. She also put her signature on the seizure list wherein, some articles were seized by the police. 21. PW-9, Sri Subash Debnath has stated that both the victim-girl and the accused person were known to him. About one year back at a certain date at about 2.00 pm he heard from the local people that the accused caught hold the victim-girl and thereafter he visited the house of the victim-girl and found that she was crying. He further deposed that when asked, the victim-girl informed that the accused-person forcefully undressed her. 22. PW-10, Dr. Pushpa Debbarma, who examined the victim-girl after the incident has deposed as follows: L/A-Mouth:-Mild swelling present on the lower lip. Breast:-No injury mark over the breast & breast tissue are loose. Private part:- (i) There is no any foreign material present on her private part. (ii) No any injury mark found on her private part. (iii) Her hymen was ruptured (old) and there is mild tenderness present during examination. (iv) Posterior fourchette scar mark present. (v) There is no injury mark on her genitalia. Impression:-(i) She may had physical intercourse as there was tenderness. Molestation, over her genitalia and final opinion will done after the forensic report." 23. (iii) Her hymen was ruptured (old) and there is mild tenderness present during examination. (iv) Posterior fourchette scar mark present. (v) There is no injury mark on her genitalia. Impression:-(i) She may had physical intercourse as there was tenderness. Molestation, over her genitalia and final opinion will done after the forensic report." 23. Being confronted with the cross-examination she stated that there is evidence of vaginal penetration by adult penis or penis like object though the swab analysis report was negative. She further stated that possibility of sexual intercourse could not be ruled out. PW-10 identified her final opinion which is lying in the case record and same is marked as Exbt. 5 and her signature in it marked as Exbt. 5/1." 24. PW-11, WSI Sipra Bala Chanda, deposed that after being informed, she went to the house of the victim-girl; seized some articles; sent the victim-girl for medical examination. She also arranged for recording statement of the victim-girl under Section-164(5) of Cr.P.C. she also recorded the statement of the available witnesses under Section-161 of Cr.P.C. Vaginal swab and other samples were sent to the SFSL for examination. She collected the SFSL report for passing her final opinion. After the final opinion was passed, she collected the same and brought it into the record. After being satisfied, PW-11 submitted the charge-sheet against the accused-person. 25. PW-12, Dr. Subhankar Nath, was the scientific officer. He deposed as under: "On 18.05.2015 I was posted as Deputy Director-cum-Asstt. Chemical examiner at SFSL Tripura. On that day I received one sealed parcel from the Biology/Serology of State SFSL, Tripura, which was received by the Director State SFSL on 18.05.2015. The exhibit was endorsed to me for examination and opinion. The period of examination was 22.07.2015-31.07.2015. The sealed parcel contained 13 exhibits marked as A-1, A-2, A-3, A-4, B-1 to B-9. On biological examination I opined that- (1) Seminal stain/spermatozoa of human origin was not detected in the exhibits marked as A-1, A-3, A-4, B-1 to B-3, B-4, B-5, B-6, B-7, B-8 and B-9. (2) Blood stain of human origin was detected in the exhibits marked as A-2 and B-2. (3) Blood stain was not detected in the exhibits marked as B-4, B-5, B-6, B-7 and B-8. (4) The Exhibit A-4 was cut human pubic hair. All the hairs are morphologically and morphometrically similar in nature. (5) The exhibit B-3 is cut human pubic hair. (3) Blood stain was not detected in the exhibits marked as B-4, B-5, B-6, B-7 and B-8. (4) The Exhibit A-4 was cut human pubic hair. All the hairs are morphologically and morphometrically similar in nature. (5) The exhibit B-3 is cut human pubic hair. All the hairs are morphologically and morphometrically similar in nature. This report in three sheets prepared by me in my official computer and all the three pages bears my signatures, on identification this report in three sheets marked as Exbt. 9-1 to 9-C and his signatures are marked as Exbt. 9/i to Exhibit 9/iii. Cross-examination- Declined." 26. The evidence of the victim-girl if read with her statement which she made in her complaint and her statements as recorded under Section-164(5) of Cr.P.C., we do not find any sort of discrepancy or improvements. The evidence of the complainant appears to us as trustworthy, credible and there is nothing on record so that we can infer that there is any embellishment. Her evidence has been substantially corroborated by the ocular evidence of PW-2, Smti. Paramita Das, who was informed immediately after the incident by the sister of the complainant, who deposed as PW-3. 27. PW-2, Sabita Das who rushed to the place of occurrence immediately, informed the matter to one of their neighbours, namely, Sri Sujit Das PW-4. PWs-5 & 6 deposed in the same tune. There is no variation of statements in the deposition of the mother of the victim-girl who deposed as PW-8. She has narrated the incident as she was informed by the victim-girl that when she was alone in the house, the accused entered into the room, asked her to switch on the TV but, there was no electricity at that time. He suddenly closed to her, disrobed her and raped her. 28. Now, the question as raised by the learned counsel appearing for the appellant that considering the nature of the evidence the judgment and order of conviction and sentence under Section-376 of IPC should be interfered with by the Court as it is a case of molestation and it is not the case of rape as defined under Section-375 of the IPC. We have given our thoughtful consideration to the said submission of the learned counsel for the appellant. We have given our thoughtful consideration to the said submission of the learned counsel for the appellant. We have already held that the evidence of the victim-girl have been cumulatively read with the evidence of PW-2 and other prosecution witnesses. 29. There is no room to doubt the integrity of the statements of the victim-girl (PW-1) that while she was alone in her room, the accused-appellant entered into the room, asked her to switch on the TV, but, at that time there was no electricity and thereafter, for a while, the accused went out of the room, but, immediately returned back and went closer to the victim-girl. Thereafter, he gagged her mouth, disrobed her pulled her panty down and raped her. The ocular version of the victim-girl is supported by the medical evidence to arrive at a finding as to whether medical examination report and the opinion of the doctor support the ocular version of the complainant. It is settled law that the evidence of the complainant should not be discarded, if her evidence is found to be credible, trustworthy and do not suffer any embellishment. The extent of injury or its severity in and around the vaginal region or vaginal orifice is not sine qua non. Even the slightest degree of penetration constitutes rape as defined under Section-375 of IPC. In the instant case, after close scrutiny of the medical examination report and the final opinion of the doctor (PW-10), it is apparent that there is sign of penetration. The Doctor opined that "there is evidence of vaginal penetration by adult penis or penis like object. Though the swab analysis report was negative, possibility of sexual intercourse cannot be ruled out." 30. The final opinion as passed by her in course of investigation has fully been corroborated in her depositions as PW-10. The evidence of doctor further reveals that "mild swelling present on the lower lip. While examining her private parts, doctor has observed that at her private part there is mild tenderness present during examination. Furthermore, it is observed that scar mark is found to be present at posterior fourchette. 31. The evidence of doctor further reveals that "mild swelling present on the lower lip. While examining her private parts, doctor has observed that at her private part there is mild tenderness present during examination. Furthermore, it is observed that scar mark is found to be present at posterior fourchette. 31. After perusal of the ocular version of the prosecution witnesses particularly, the evidence of PW-1, if juxtaposed with the medical examination report as well as the final opinion of the doctor, we are of the considered view, that the prosecution has been able to establish the case against the accused-appellant that he committed rape as defined under Section-375 of IPC. Considering the overall evidence of the prosecution witnesses and the materials brought on record, we cannot, or rather we should not discard the evidence of the victim-girl (PW-1) as we have already held that injury is not a sine qua non and that slightest degree of penetration is sufficient to constitute rape since we find scar mark in the fourchette and tenderness at vaginal part. As such, we do not find any infirmity in the judgment of the learned Special Judge convicting the appellant under Sections-448/376(i) and Section-4 of POCSO Act, 2012 and the sentence as imposed upon the accused-appellant. 32. Having held so, we find no merit in the present appeal. Hence, dismissed. The judgment of the learned Special Judge is hereby upheld and affirmed. The appellant shall serve the remaining period of sentence in terms of the judgment of the learned Special Judge (POCSO). 33. In that view of the matter, the appeal stands dismissed. Send down the LCRs. Pending application (s) if any, also stands disposed of.