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2021 DIGILAW 29 (TRI)

Sanjay Das v. State of Tripura

2021-03-04

ARINDAM LODH

body2021
JUDGMENT : Arindam Lodh, J. 1. Heard Mr. Samar Das, learned counsel appearing for the appellant as well as Mr. Sumit Debnath, learned Additional Public Prosecutor appearing for the State-respondent. 2. This appeal is directed against the judgment and order of conviction and sentence dated 28.08.2019, passed in ST 53(GT/U) of 2015 by the learned Additional Sessions Judge, Gomati District, Udaipur, whereby and where-under the appellant has been convicted under Section 354 of IPC and sentenced him to suffer R.I. for 1 (one) year and to pay a fine of Rs. 5,000/- with default stipulation. 3. Briefly stated, that on 26.11.2002 at morning about 7:00 am, when the victim girl was proceeding towards Sadhu Ram Reang Bari School for the purpose of her examination, the appellant here-in took her forcibly from Rani-Killa Road to a jungle and committed rape upon her and also tore her wearing apparels. Subsequently, accused-appellant threatened her not to disclose the aforesaid incident to anybody. 4. On this allegation, the victim herself lodged complaint on 26.11.2002 against the accused-appellant and O.C., R.K. Pur Police Station registered a case being RK Pur PS Case No. 323, dated 26.11.2002, under Section 376 of IPC. 5. After commitment, learned Sessions Judge framed charge against the accused-appellant under Section 376(1) of IPC. In course of trial, as many as 14 witnesses were examined. The vaginal swab and the wearing clothes were also brought on record and were exhibited. 6. After closure of prosecution evidence, the accused was examined under Section 313 of CrPC to which he denied all the incriminating evidence and materials as surfaced against him by the prosecution witnesses. 7. Having heard the learned counsels appearing for the parties, the learned Sessions Judge convicted the accused under Section 354 of IPC since charge under Section 376(1) IPC was not substantiated by the prosecution. 8. Feeling aggrieved, the convict has preferred the instant appeal challenging his conviction and sentence under Section 354 of IPC. 9. Mr. Das, learned counsel appearing for the appellant has submitted that at the time of incident, the victim girl was aged about 14 years and she deposed after long 14 years before the court. Admittedly, there is no eye witness to the incident. Though she stated during her evidence that while she was going to school on 26.11.2002, at about 7:00 am, the accused had forcefully taken her to a jungle. Mr. Admittedly, there is no eye witness to the incident. Though she stated during her evidence that while she was going to school on 26.11.2002, at about 7:00 am, the accused had forcefully taken her to a jungle. Mr. Das, learned counsel has candidly submitted that the victim girl had filed the instant case only out of political rivalry since she was a hardcore CPIM cadre and the accused was a supporter of Congress Party and she lodged the complaint just on the eve of election preventing him to work for Congress Party. 10. The victim girl was examined as PW-1 and she reiterated her statement which she made in the complaint. Both learned Addl. P.P. and Mr. Das, learned counsel for the appellant have drawn my attention to the deposition of PW-2, Sri Nirosh Marak and PW-9, Sri Jagadish Marak. It transpires from the deposition of PW-2 and PW-9 that after the incident she went to the house of PW-9 but the victim, noticeably deposed that she narrated the incident to PW-9 while she was returning home after the incident. It casts serious doubt in the mind of the court about the genesis of the incident. All other witnesses have heard the incident from PW-1. This leads me to have a glimpse of the medical examination of the victim girl. In the medical report (Exbt. 6 as a whole), the Doctor clearly opined that there was no sign of recent sexual violence found on her body except some abrasions over the back elbow and left scapula. No other marks of force of resistance found on her body. The vaginal swab also was examined by SFSL and the Doctor opined that there is no sign of any sexual intercourse and no spermatozoa was found. 11. I have seen the sketch map to find out the nature of the place of occurrence. The sketch map does not reveal anything about the fact where the house of the victim girl is situated and where is the house of PW-9 because the specific case of the victim is that after the incident she went to the house of Jagadish Marak. From the deposition of other witnesses, it further reveals that the victim even did not return to her house but she was taken to the nearby CPI (M) party office by Jagadish Marak (PW-9). From the deposition of other witnesses, it further reveals that the victim even did not return to her house but she was taken to the nearby CPI (M) party office by Jagadish Marak (PW-9). It appears that the brother of the victim girl i.e. PW-2 was the elected Panchayat member from CPI (M) party. 12. Another interesting feature, which I find in the instant case, is that, the victim girl deposed in her evidence that she was going to school to appear in her examination. Neither the victim nor her parents have stated that she appeared in the examination after the incident. But, PW-10, Sri Ashutosh Das, the Headmaster of the school where the victim was prosecuting her studies, appeared before the court and stated in his deposition that after the incident the victim had appeared in her examination on the said date. 13. On culmination of the aforesaid facts and circumstances, as evinced from the statements of the prosecution witnesses, in my opinion, there is enough room to suspect the genesis of the prosecution case. The sexual violence is also not supported by medical evidence. 14. In the light of above, the conviction and sentence passed by the learned Sessions Judge cannot sustain. Accordingly, the judgment and order of conviction and sentence dated 28.08.2019, passed in ST 53(GT/U) of 2015, by the learned Additional Sessions Judge, Gomati District, Udaipur stands set aside. The appellant is acquitted. It is informed in the Bar that he is on bail. He is discharged from the bail bond. The surety is also discharged. 15. The appeal, accordingly, stands allowed and disposed off. Send back the LCRs.