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2020 DIGILAW 37 (TRI)

Ranjit Kumar Das v. State of Tripura

2020-02-27

AKIL ABDUL HAMID KURESHI

body2020
JUDGMENT : Akil Abdul Hamid Kureshi, C.J. 1. This appeal is filed by the original accused who has been convicted for offence punishable under Section 376 of IPC and sentenced him to suffer rigorous imprisonment of 7(seven) years in addition to payment of fine of Rs.20,000/-. 2. Briefly stated the prosecution version was that the daughter of the complainant (hereinafter to be referred to as the victim girl) on the date of incident i.e. 21.06.2016 was aged about 21 years. She was mentally not fully developed. Nevertheless, she could pursue education upto Class-V. On 21.06.2016 she was alone at home, her parents having gone for labour work in Rural Employment Guarantee Scheme. The accused who lived in the neighborhood came there in the afternoon and taking advantage of the solitude of the girl committed rape which the parents came to know about when they returned home and were informed by the girl. Initially the parents of the girl brought this issue to the notice of the accused and other family members. An attempt was made to settle the issue by payment of money to meet with the cost for treating the girl. According to the complainant, however, the doctors would not treat the girl unless an FIR was lodged. She, therefore, gave a written complaint to the police dated 03.07.2016 to this effect. Upon completion of investigation charge sheet was filed before the concerned Court. The learned Sessions Judge framed the charge alleging that on 21.06.2016 the accused i.e. Ranjit Kumar Das alias Kshirode Das son of Kshitish Chandra Das taking advantage of the loneliness of the victim committed rape on her and thereby committed offence punishable under Section 376 of the IPC. 3. P.W.2, Sujata Nath (Banik) the mother of the victim and the first informant deposed that on 21.06.2016 she left home early morning and returned at about 12 in the afternoon. Her husband had also left home with her. Except for the victim girl there was no one else at home. When she came back she found that her daughter was lying on the floor. She was wearing her skirt and the top but her underpant was missing. When asked she told them that the accused Ranjit Kumar Das had come, asked for a glass of water which she offered. He caught her and committed rape. She further deposed that her daughter did not possess normal intellect. She was wearing her skirt and the top but her underpant was missing. When asked she told them that the accused Ranjit Kumar Das had come, asked for a glass of water which she offered. He caught her and committed rape. She further deposed that her daughter did not possess normal intellect. Her husband had also returned with her. She first reported the incident on the same day to Shasanka Das younger brother of the accused who requested that the incident may not be reported as he would settle it. He assured that he would arrange for the medical treatment of the girl. Following day, Vice Chairman of the Panchayat and other villagers visited the victim girl and assured her that the matter would be settled and not to make it public. Subsequently, on 2nd July amount of Rs.1,000/- was offered for the medical examination of the daughter. She went to Kanchanpur hospital where Dr. Shirshendu Dhar would not treat the girl unless police report was lodged. They came back and prepared a written complaint on 3rd July with the help of another person on which she put her signature which was submitted in the Kanchanpur police station. The FIR was exhibited at Exbt. 1. The police had recorded her statement and statement of her husband and arranged the medical examination of their daughter. She and her husband had accompanied their daughter to the hospitals. She stated that she knew Ranjit Kumar Das alias Kshirode Das. She identified the accused before the Court. 4. In the cross-examination she stated that the land on which her house was situated was purchased by her and her family from the sister-in-law of the accused. The house of the accused was situated nearby. Her daughter had studied upto Class-V. She could not continue further studies since from the childhood her intellect was not normal. She, however, could read and put signature. She agreed that the accused for a long time had not arranged to register the land in their name. She, however, denied that since Ranjit Kumar Das refused to transfer the land false accusations were being made against him. 5. She, however, could read and put signature. She agreed that the accused for a long time had not arranged to register the land in their name. She, however, denied that since Ranjit Kumar Das refused to transfer the land false accusations were being made against him. 5. P.W.4 Chandan Banik, father of the victim, deposed that his daughter was lacking normal intellect but had studied upto Class-V. On the date of incident he and his wife had left the house in the early morning for labour work leaving the daughter alone at home. They returned home at about 9.30 a.m. found the daughter lying on the floor. The door was open. On being asked she revealed that she was raped by the accused. Soon the brother of the accused came there. He told them not to disclose the incident and assured to pay for the treatment. He later on informed the Vice Chairman of the Panchayat and other villagers. They met the accused and thereafter assured him that the issue will be settled. Later on a sum of Rs.1,000/- was given for the treatment but he was told that the matter cannot be settled upon which his wife filed the complaint since the doctor at Kanchanpur would refuse to treat the girl without a prior police compliant. He had accompanied his daughter to different hospitals. 6. In the cross-examination he also agreed that the accused had not registered the land in their name despite reminders but denied that it was because of this reason that a false case was lodged against him. 7. The victim girl was examined as P.W.3. She could not state precisely when the incident took place but she could tell that it was in the later part of the day. Her parents were out of the house had gone for labour work. She was alone. The accused had come there and asked for a glass of water which she had given. He then locked the door from inside and raped her on the floor. When her parents returned she informed them about the incident. She identified the accused before the Court. She was taken to different hospitals. 8. She was alone. The accused had come there and asked for a glass of water which she had given. He then locked the door from inside and raped her on the floor. When her parents returned she informed them about the incident. She identified the accused before the Court. She was taken to different hospitals. 8. In the cross-examination she was confronted with the fact that in her statement under Section 161 of Cr.P.C. recorded by the police she had named the accused Ranjit Das whereas in her statement recorded by the Magistrate under Section 164 of Cr.P.C. she had given the name of the accused as Kirod Das son of Khitish Das. 9. These are the three main witnesses whose evidence would have to be assessed. However, before doing that, we may also refer to other attendant witnesses. Amiyakanta Das P.W.5, Samar Chandra Das, P.W.6 and Ratan Mani Das, P.W.8 were the residents of the village. They, however, turned hostile and did not support the prosecution. 10. We may now refer to the medical evidence. Dr. Shirshendu Dhar, P.W.1 had first examined the victim girl at Kanchanpur Sub-Divisional hospital on 04.07.2016. He had recorded the history of being raped as given to him. His attempt to examine the patient did not fully succeed since she was totally disoriented, mentally unstable and agitated. He, therefore, first admitted her in his hospital and thereafter referred her to Kailashahar hospital. 11. P.W. 14 Dr. Sumit Das was the medical officer at RGM hospital Kailashshar. He had examined the victim on 07.07.2016. He had found that the girl was mentally slow. Upon her examination he found that the hymen had an old rupture. He recorded the history given by the mother of the victim. He did not collect the swab since the alleged incident had taken 16 days ago. After her examination he had formed an opinion that the victim had showed signs of forceful penetration over her genital parts. His report was produced at Exbt. 11. 12. In the cross examination he agreed that he had not noticed any external injury on the victim nor reported any pain or tenderness around her private parts. 13. Dr. Priyajyoti Chakma, P.W.7 was the medical officer at AGMC and GBP hospital, Agartala. He had examined the victim on 09.07.2016. He found no external injuries on her body. He was attached with psychiatric department. 13. Dr. Priyajyoti Chakma, P.W.7 was the medical officer at AGMC and GBP hospital, Agartala. He had examined the victim on 09.07.2016. He found no external injuries on her body. He was attached with psychiatric department. His report was produced at Exbt. 7. Psychiatric report was produced at Exbt. 7a and the report of clinical psychologist was produced at Exbt. 7b. In the assessment done by the clinical psychologist the IQ of the girl was around 51. Her social quotient (SQ) was 53 which according to him indicated below normal IQ but not at the level of being a person of unsound mind or of serious retardation. He would describe it as "mild mental retardation". 14. In the cross-examination he stated that in the report Exbt. 7a it was inter alia recorded that no external injuries were detected around genitalia and internal examination was not possible due to agitation of the patient but her hymen appeared to be intact. 15. Dr. Nanigopal Reang P.W.9 was the Medical Officer at Kanchanpur hospital. He had examined the accused on 05.07.2016. In his deposition he referred to the accused as Ranjit Kumar Das alias Kshirode Das. He had given the report after clinical examination suggesting that his genital organs were in normal condition. From the observations he could conclude that there was nothing to suggest that he was incapable of performing sexual act. His report was produced at Exbt. 9. 16. In the cross-examination he stated that he could not state the age beyond which a male would become incapable of performing sex. 17. We may now refer to the police witnesses. P.W.11 Sankar Das had carried out small portion of the investigation by recording the statements of the victim, her father and mother. 18. Shakti Sadhan Jamatia, P.W.12 had carried out substantial investigation. He had narrated the steps taken by him during the course of such investigation including obtaining medical opinions. He had prepared the sketch of the site. He had described the house of the accused as that of Ranjit Kumar Das alias Kshirode Das. 19. In the cross-examination he agreed that he had made a request for recording the statement of the victim by the Magistrate. 20. In the psychiatric report Exbt. 7a it was recorded that initially the patient was very restless, non-cooperative and had increased psychomotor activity. The subsequent examinations showed reduced irritability. She was more coherent. 19. In the cross-examination he agreed that he had made a request for recording the statement of the victim by the Magistrate. 20. In the psychiatric report Exbt. 7a it was recorded that initially the patient was very restless, non-cooperative and had increased psychomotor activity. The subsequent examinations showed reduced irritability. She was more coherent. It was on this report that the doctor had indicated no external injury on her genitalia. While recording that the internal examination was not possible properly as patient was agitated and not cooperative "but her hymen appeared to be intact". In the IQ assessment report Exbt. 7b the doctor recorded that she had mild mental retardation with 50% disability. 21. In the report Exbt. 11 the doctor had recorded following opinion: "After careful examination of the victim I found sings of forceful penetration over her genital parts. However, no specimens were taken as the history of sexual assault was almost 16 days back. She had psychological trauma after the assault and now taking psychiatric treatment." 22. In the medical examination report of the accused Exbt. 9 his name is referred to as Ranjit Kumar Das alias Kshirode Das. The doctor opined that there was no evidence to suggest that he was not capable of performing sexual act. 23. After recording the evidence the learned Judge recorded the statement of the accused under Section 313 of Criminal Procedure Code. One of the questions put to him was his examination by the Dr. Nanigopal Reang on 05.7.2016 where the accused was referred to as Ranjit Kumar Das alias Kshirode Das. He admitted that he was examined by the doctor but his opinion he was not aware about. (27.02.2020) 24. Learned counsel for the appellant submitted that the prosecution failed to prove the charges against the accused. The trial Court committed a serious error in convicting him despite major contradictions in the versions of the different witnesses. He pointed out that the FIR was lodged nearly 13 days after the event and was thus highly belated. There was no explanation for such delay. The medical evidence was inconclusive. He submitted that the prosecution witnesses had admitted the delay on part of the accused in registering the sale of the land in favour of the complainant. This was a motive for false accusation. Over reliance on the version of the victim girl has led to wrong conclusions. There was no explanation for such delay. The medical evidence was inconclusive. He submitted that the prosecution witnesses had admitted the delay on part of the accused in registering the sale of the land in favour of the complainant. This was a motive for false accusation. Over reliance on the version of the victim girl has led to wrong conclusions. Looking to her mental condition her evidence had to be assessed carefully. She was clearly a tutored witness. She had given different names of the accused in her statements recorded under Section 161 and 164 of Cr.P.C. respectively. He submitted that unless the victim is a witness of sterling quality on her sole testimony conviction for offence under Section 376 of IPC cannot be recorded. In this context, he relied on the following decisions of Supreme Court: (i) Sadashiv Ramrao Hadbe versus State of Maharashtra and another reported in (2006) 10 SCC 92 ; (ii) Santosh Prasad @ Santosh Kumar versus the State of Bihar in Criminal Appeal No. 264 of 2020 arising out of SLP (Criminal) No. 3780/2018; (iii) Rai Sandeep alias Deepu versus State (NCT of Delhi) reported in (2012) 8 SCC 21 . 25. On the other hand, learned Public Prosecutor opposed the appeal contending that the prosecution had explained the delay in lodging the FIR. Considering the socio-economic background of the family of the victim such delay would not be fatal to the prosecution. The witnesses had given clear and cogent version. The testimony of the victim is duly corroborated by the deposition of her parents to whom she had revealed the incident shortly after it happened. The witnesses had no reason to falsely implicate the accused. The victim girl herself did not possess the normal intellect of a 21 year old. It was therefore not possible to tutor her. Her testimony therefore would inspire full confidence. 26. We may now assess the evidence on record. We may recall, the victim girl P.W.3 had deposed that on the date of the incident her parents had gone out for labour work. She was alone at her home when the accused came to her house and asked for a glass of water which she had provided. He then closed the door of the hut and raped her on the mud floor. Later on her parents returned and she informed her parents about the incident. She was alone at her home when the accused came to her house and asked for a glass of water which she had provided. He then closed the door of the hut and raped her on the mud floor. Later on her parents returned and she informed her parents about the incident. She identified the accused in the Court. She remembered that she was taken to hospitals for examination. 27. The evidence of this witness is of great importance. She of course is the sole witness to the incident itself. Her evidence would have to be assessed bearing in mind her mental condition and also looking for corroboration if available on record. Before elaborating, we may recall that Dr. Shirshendu Dhar P.W.1 had first examined the victim on 04.07.2016 at Kanchanpur Sub-Divisional hospital. He found that the girl was disoriented and restless. He could not carry out complete physical examination. On 07.07.2016 the victim had examined by Dr. Sumit Das at RNG hospital Kailashahar. In his certificate Exbt. 11 he had stated that after examination he was of the opinion that the victim showed the signs of forceful penetration over her genital parts. Dr. Priyajyoti Chakma P.W.7 had examined the victim on 09.07.2016 at AGMC & GBP hospital, Agartala. She also obtained psychiatric report. She herself was attached to psychiatric department. These reports Exbt. 7, 7a and 7b suggested that the IQ of the girl was rather modest for her age. But in the opinion of the doctor she was not normal but her retardation was mild. We may also recall that the girl had studied upto Class-V standard. Her comprehension of physical violation therefore need not be doubted. She may not be articulate, may not understand and answer complex questions. It may be easy to confuse her of complex situations. Nevertheless, I do not think that her basic instincts were impaired by her limited mental development so as to prevent her from comprehending the nature of sexual assault. 28. The testimony of the victim girl therefore would land considerable credence. For greater certainty one may also look for corroboration. Such corroboration comes from various sources. P.W.2, the complainant, mother of the victim girl had deposed that he and his wife had left early for work leaving the girl alone. When they returned later on they found her lying on the floor and her underpant was missing. For greater certainty one may also look for corroboration. Such corroboration comes from various sources. P.W.2, the complainant, mother of the victim girl had deposed that he and his wife had left early for work leaving the girl alone. When they returned later on they found her lying on the floor and her underpant was missing. Upon being asked she narrated the incident of being raped by the accused. His wife was present at that time. Father of the girl P.W.4 had also given the similar version. The testimony of Dr. Sumit Das, P.W.14 further lends support to the version of the victim. In the certificate of examination Ext. 11 he had recorded that upon examination of the victim he had found signs of forceful penetration over her genital parts. P.W.9 Dr. Nanigopal Reang examined the accused and found nothing to suggest that he was incapable of sexual intercourse. 29. The parents of the victim P.W.2 and P.W.4 had also explained the reason for late filing of FIR. According to these witnesses soon after the incident the younger brother of the accused met them, promised them of financial help and that he would settle the disputes. The family of the victim was paid Rs.1,000/- for the treatment of the girl but the doctor would not treat the girl unless a police case was lodged. The explanation rendered by the prosecution for late filing of FIR is eminently believable. Considering the socio-economic strata from where the victim and her family was coming, as also considering the condition of the victim herself, hesitation in lodging the complaint of this nature can easily be appreciated. If instead of going public about such an incident the family of the victim decided to focus on her treatment for which the money would come from the accused side, the same was natural. Mere delay in filing the FIR therefore would not destroy the prosecution case. More so since the witnesses had also pointed out that unless the FIR was filed the doctor would not treat the victim. Clearly this was the trigger for filing the FIR which possibly the family at one stage had decided not to lodge. 30. The declaration made by Dr. Sumit Das in Exbt. 11 that his examination revealed forceful penetration over the genital parts cannot be overlooked referring to the declaration in Exbt. Clearly this was the trigger for filing the FIR which possibly the family at one stage had decided not to lodge. 30. The declaration made by Dr. Sumit Das in Exbt. 11 that his examination revealed forceful penetration over the genital parts cannot be overlooked referring to the declaration in Exbt. 7a where it was noted that the hymen of the victim appeared to be intact. This was preceded by the narration that "internal examination not possible properly as patient was very much agitated and not cooperative but ....." This opinion was thus formed without full examination of the victim since her highly agitated state of mind would not permit the doctors to carry out full examination. Thus when Dr. Sumit Das could carry out such full physical examination and formed an opinion that this was a clear case of forcible sexual penetration effect of the same cannot be watered down. 31. The defence had also tried to suggest that the victim girl had given two different names of the assailant. In her statement before police she had given the name of the accused as Ranjit Kumar Das whereas in her statement before the Magistrate she had given the name of Kirod Das. However, this is a mere smokescreen and both happened to be the same person. There is no iota of doubt that Ranjit Kumar Das is also known as Kshirode Das. In the charge itself that is how he has been described. At various other places this alias of Ranjit Kumar Das is mentioned. Dr. Nanigopal Reang, P.W.9 who had examined the accused on 05.07.2016 at Kanchanpur Sub-Divisional hospital had referred to him as Ranjit Kumar Das alias Kshirode Das. The defence did not cross-examine him on this aspect. Even in the statement under 313 of Cr.P.C. the accused was referred to as Ranjit Kumar Das alias Kshirode Das. He did not deny his other popular name. 32. The suggestion that the family of the complainant had axe to grind against the accused for delay in transferring the name of the complainant in the land is not convincing. Firstly, this would provide to weak the motive to make such a serious allegation. Secondly, the victim girl was herself possessed limited intellect making the task of tutoring her far more difficult. Firstly, this would provide to weak the motive to make such a serious allegation. Secondly, the victim girl was herself possessed limited intellect making the task of tutoring her far more difficult. Her answers before the Court would show that with her limited intellect also she could send the cross examination. 33. In the result, I find no merits in the appeal and the same is dismissed. 4. Pending application(s), if any, also stands disposed of.