the victim prosecutrix stated that she was first taken to the
cowshed by the accused persons and that cowshed belonged
to Dayananda Debbarma and Dayananda Debbarma has not
been examined and so adverse inference should be drawn. We
find no merit at all in this argument of learned counsel Mr,
Dutta that Dayananda Debbarma is a material witness.
Nothing is there in the evidence on record that Dayananda
was informed by the victim or her parents or that Dayananda
came to the house of the victim prosecutrix and learnt about
the occurrence or that in any other manner he was connected
with the occurrence. Therefore, in our considered opinion, non
examination of Dayananda is not at all material for
consideration by the Court.
HIGH COURT OF TRIPURA
AGARTALA
CRL. A. (J) NO. 34 OF 2013
Sri Biswamohan Debbarma,
- Vrs –
The State of Tripura.
BEFORE
HON’BLE THE CHIEF JUSTICE MR.DEEPAK GUPTA
THE HON’BLE MR.JUSTICE S.C. DAS
Dated:04.02.2016.
Citation: 2016 CRLJ(NOC)147 TRI
This Criminal Appeal, under Section 374 of Cr.P.C., is
directed against the judgment and order of conviction dated
30.03.2013 and sentence, dated 01.04.2013, passed by
learned Addl. Sessions Judge, Khowai, West Tripura in Case
No.ST 31(WT/K) of 2011, whereunder, the appellants were
found guilty of committing the offences charged against them
under Sections 451/366 and 376(2)(g) of IPC and accordingly
sentenced them to suffer R.I. for 2 years and to pay a fine of
Rs.5000/- each in default of payment to suffer S.I. for 6(six)
months under Section 451 of IPC; again to suffer R.I. for 10
years and to pay a fine of Rs.10,000/- each, in default to
suffer S.I. for 10 months under Section 366 of IPC and further
to suffer R.I. for life and to pay a fine of Rs.10,000/- each, in
default to suffer S.I. for 10 (ten) months for commission of
offence punishable under Section 376(2)(g) of IPC. It is
directed that all the sentences shall run concurrently.
2. Heard learned Counsel Mr. R. Datta for the
appellants and learned Addl. Public Prosecutor Mr. R.C.
Debnath for the State-respondent.
3. Prosecution case is that on 26.10.2010 at night,
the victim prosecutrix, P.W.7, (name kept withheld) was
sleeping in her residence at village Tuikarma with her old
grandmother, Sumitra Debbarma (P.W.3). Her parents were
away from the house to attend an invitation. At about 12-00
p.m. of the night the accused Biswamohan Debbarma and
Parendra Debbarma trespassed in the house of the victim
prosecutrix, forcefully lifted her from the house, took her to a
nearby cowshed and both of them committed rape on her and
thereafter they took her to the jungle in the eastern side of
the house and again both of them committed rape on her. At
dawn she returned home and informed the incident to her
grandmother (P.W.3) and to her uncle, P.W.4, Jitendra
Debbarma. Her parents returned home on the following day at
about 10-00 a.m. and she reported the incident to her
parents.
4. On 28.10.2010, P.W.1, Charania Debbarma, father
of the victim prosecutrix lodged an FIR at Mungiakami P.S.
which was written by P.W.5, Shanti Debbarma and on receipt
of the same, O.C., Mungiakami P.S. registered Mungiakami
P.S. Case No.19/10, under Sections 457/376 (2)(g) of IPC and
S.I. Nandan Baidya, P.W.10 was entrusted with the charge of
investigation.
4.1 During investigation, Investigating Officer
(P.W.10) examined the victim girl, recorded her statement
under Section 161 of Cr.P.C., arranged medical examination of
the victim girl on that day itself, seized her wearing apparels
and arranged for examination of those wearing apparels by
the SFSL, produced the victim girl before Judicial Magistrate
1
st Class, Khowai for recording her statement under Section
164 of Cr.P.C., examined all material witnesses and recorded
their statements, collected medical report, SFSL report and
ossification test report, etc. and thereafter submitted chargesheet
against the accused-appellants for commission of
offences punishable under Sections 457/376(2)(g) of IPC.
4.2 After compliance of all formalities, the case was
committed to the Court of Sessions and learned Addl. Sessions
Judge on 16.02.2012 framed charges against the accused
persons for commission of offences punishable under Sections
451/366 and 376(2)(g) of IPC to which they pleaded not guilty
and claimed to be tried.
5. To prove the charges, prosecution examined 12
witnesses and proved the FIR, seizure list of wearing apparels
of the victim prosecutrix as well as the seized alamats,
medical examination report of the victim prosecutrix, etc.
6. After closure of the prosecution evidence accused
persons were examined under Section 313 Cr.P.C. and in their
turn, they declined to adduce any defence evidence.
6.1 Defence case so far suggested during cross
examination of the prosecution witnesses was that the victim
prosecutrix was spoiling Sukumar Debbarma, son of Parendra
Debbarma and that parents of the victim prosecutrix proposed
for marriage between Sukumar and the victim prosecutrix but
that was refused by Parendra and on that issue relationship
was bitter between the accused persons and the family of the
victim prosecutrix and as a result, a false allegation was made
against the accused persons.
7. Learned Addl. Sessions Judge at the conclusion of
the trial, held that the charges framed against the accused
persons proved beyond reasonable doubt and accordingly
sentenced them as stated hereinbefore.
8. Rape is a most heinous offence. It violates human
rights of a female. A victim of rape is considered at par with
an injured witness and to an extent more reliable and if the
evidence of the victim woman is believed and if her sole
testimony inspires confidence of the Court, no other
corroboration is ordinarily required to record conviction.
9. The Court of law should remain alive while
appreciating the evidence in a case of rape. What should be
the duty of the Court in appreciating the evidence in a rape
case has been categorically explained by the Apex Court in
catena of decisions. We would like to quote here a few of the
observations of Apex Court in some of the cases.
9.1 In the case of Kundula bala Subrahmanyam
Vrs. State of A.P., reported in (1993) 2 SCC 684, the
Supreme Court has observed—
“The role of courts, under the circumstances
assumes greater importance and it is expected that the
courts would deal with such cases in a more realistic
manner and not allow the criminals to escape on
account of procedural technicalities or insignificant
lacunae in the evidence as otherwise the criminals
would receive encouragement and the victims of crime
would be totally discouraged by the crime going
unpunished. The courts are expected to be sensitive in
cases involving crime against women…..”
9.2 In the case of Bodhisattwa Goutam Vs. Subhra
Chakraborty, reported in AIR 1996 SC 922, the Supreme
Court has observed—
“Rape is not only a crime against the
person of a woman (victim), it is a crime against the
entire society. It destroys the entire psychology of a
woman and pushed her into deep emotional crises. It is
only by her sheer will power that she rehabilitates
herself in the society which, on coming to know of the
rape, looks down upon her in derision and contempt.
Rape is, therefore, the most hated crime. It is a crime
against basic human rights and is also violative of the
victim's most cherished of the Fundamental Rights,
namely, the Right to Life contained in Article 21…..”
9.3 In the case of Punjab Vs. Gurmit Singh,
reported in AIR 1996 SC 1393 has observed ---
“Of late, crime against women in general and
rape in particular is on the increase. It is an irony that
while we are celebrating women's rights in all spheres,
we show little or no concern for her honour. It is a sad
reflection on the attitude of indifference of the society
towards the violation of human dignity of the victims of
sex crimes. We must remember that a rapist not only
violates the victim's privacy and personal integrity, but
inevitably causes serious psychological as well as
physical harm in the process. Rape is not merely a
physical assault - it is often destructive of the whole
personality of the victim. A murderer destroys the
physical body of his victim, a rapist degrades the very
soul of the helpless female. The Courts, therefore,
shoulder a great responsibility while trying an accused
on charges of rape. They must deal with such cases
with utmost sensitivity. The Courts should examine the
broader probabilities of a case and not get swayed by
minor contradictions or insignificant discrepancies in
the statement of the prosecutrix, which are not of a
fatal nature, to throw out an otherwise reliable
prosecution case. If evidence of the prosecutrix inspires
confidence, it must be relied upon without seeking
corroboration of her statement in material particulars.
If for some reason the Court finds it difficult to place
implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony,
short of corroboration required in the case of an
accomplice. The testimony of the prosecutrix must be
appreciated in the background of the entire case and
the trial court must be alive to its responsibility and be
sensitive while dealing with cases involving sexual
molestations.”
9.4 In the case of State of A.P. Vs. Gangula S.
Murthy, reported in AIR 1997 SC 1588 the Supreme Court
has observed—
“Before parting with the case we would like to
point out that the Courts are expected to show great
responsibility while trying an accused on charges of
rape. They must deal with such cases with utmost
sensitivity. The Courts should examine the broader
probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the
statement of the witnesses, which are not of a fatal
nature to throw out allegations of rape. This is all the
more important because of late crime against women in
general and rape in particular is on the increase. It is
an irony that while we are celebrating woman’s rights
in all spheres, we show little or no concern for her
honour. It is a sad reflection and we must emphasise
that the Courts must deal with rape cases in particular
with utmost sensitivity and appreciate the evidence in
the totality of the background of the entire case and
not in isolation. One of us (Dr. Anand J.) has observed
in State of Punjab vs. Gurmit Singh and others (1969)
2 SCC 384 thus :
"The courts, therefore, shoulder a great
responsibility while trying an accused on charges of
rape. They must deal with such cases with utmost
sensitivity.
We think it is appropriate to reiterate those
observations in this case.”
9.5 In the case of Ranjit Hazarika Vrs. State of
Assam, reported in (1998) 8 SCC 635, the Supreme Court
reiterated the same principles laid down by the Apex Court in
the case of Gurmit Singh (supra).
10. Let us first travel through the evidence on record.
The victim prosecutrix in her deposition stated—
“About 2 years back at about 12 hrs. when I and
my grandmother were only present at our hut some
knocking was made at our door then my grandmother
opened the door. Biswamohan entered in my hut and
Parendra stood outside the hut and Biswamohan
forcefully taken me to a cow shed situated about 100
cubits away from my hut and there Biswamohan and
Parendra raped me and took me to the jungle and
there also both of them raped me. On the following
morning they released me. My parents on that date
was out of our house as they went to my maternal
uncle house due to sraddha ceremony of my maternal
aunt. On return home I informed the fact to my
grandmother and then my uncle Jiten Debbarma. At
noon my parents came and I reported the matter to
them. Subsequently when the case is registered police
brought me to Teliamura Hospital where doctor
examined me and thereafter I was also brought to a
judicial magistrate and I made statement to him. I put
my LTI not RTI in the statement sheet of the
Magistrate. Parendra and Biswamohon are present in
the Court. Police also seized my wearing apparels.
These are my violate colour panti, black colour salwar,
blue colour torned kamiz as seized by police. Witness
identified Ext.M.O.1 series. I have no enmity with
Parendra or Biswamohon.”
In her cross examination on behalf of the accused
persons she stated—
“I gave the statement to the police in Kakbarak.
When police examined me, my mother was present and
my mother explained my statement to police. My
mother Smti. Usha Rani Debbarma is still living.
I stated to police that in the afternoon on the
date of incident Parendera and Biswamohan visited our
house but they did not make any query to me
threatening me as to why I was spoiling Sukumar
Debbarma, S/o Parendra Debbarma.
On being drawn attention of the witness to her
161 statement with the help of interpreter, witness
admits presence of such statement at her 161
statement recorded by IO and the portion of her
statement in the original statement under Section 161
is marked as Exhibit-B, subject to confirmation by IO.
It is not a fact that Parendra and Biswamohan
threatened that why I was spoiling Sukumar.
I stated to police that at the time of incident
when accused persons knocked the door then my
grandmother unlocked the door.
When police examined me I stated that when
the door was knocked by the accused persons, I
opened the door.
The fact that I myself opened the door is true.
The witness was asked what fact is true—
whether her deposition before the Court that her
grandmother opened the door is true or her statement
before the police that she opened the door is true?
The witness replied—both the statements are
true as first time when the accused appeared my
grandmother opened the door and second time, I
opened the door.
I stated to the police that two times our door
was opened.
The 161 statement written in Bengali was placed
to the illiterate witness by the Learned Defence counsel
in presence of interpreter asking her whether that
statement was in her statement recorded under
Section-161 of Cr.P.C., but the witness could not
answer.
This time, Learned Defence Counsel drew the
attention of the interpreter in respect of those facts.
The interpreter had gone through those facts and
stated that there was no statement of opening the door
twice on the date of alleged incident.
I stated to police that my grandmother is short
of hearing and vision.
The neighbouring hut of my house is the hut of
Chutia Debbarma, my uncle.
It is not a fact that I stated falsely that Parendra
and Biswamohan did not take me from my house and
also did not rape me.
I have got no love relationship with Sukumar
Debbarma, S/o Parendra Debbarma.
I had no quarrel or dispute with Parendra and
Biswamohan, prior to this incident.
It is not a fact that police did not seize my
wearing apparels.
It is not a fact that I deposed falsely.”
The material part of the victim’s statement that
she was forcefully lifted by the accused persons from her
house and that both the accused persons committed rape on
her, has not been shaken in cross examination. The
prosecutrix was an unmarried girl. Accused Parendra is the
cousin brother of her father. Other accused is her co-villager.
She denied having any quarrel or dispute with accused
persons. Why she should come out to make a false allegation
of rape against the accused persons. Her evidence seems to
be worthy enough and inspires confidence. Defence has failed
to create any dent in her statement to throw doubt in her
evidence.
11. The parents of the victim prosecutrix examined as
P.Ws 1 and 2. They have materially corroborated the victim
prosecutrix and their statement that on the night of
occurrence they were away from their house and that the
victim prosecutrix and her grandmother i.e. P.W.3 were only
in the house and on the following day at about 10 a.m. they
returned home and at that time the victim prosecutrix
informed them that accused Biswamohan and Parendra came
to their house and asked to open the door and when they
opened the door Biswamohan entered into the hut and
Parendra remained outside as guard and Biswamohan pulled
the victim prosecutrix out of the hut and both of them took
her to the nearby cowshed and committed rape on her one
after another and thereafter again they took her to the jungle
and again committed rape on her. That part of the statement
of these two witnesses, has not been shaken in any manner in
the cross examination.
12. P.W.3 is the grandmother of the victim
prosecutrix. She was an old lady and she stated that
Biswamohan knocked the door and at that time the
prosecutrix opened the door and Biswamohan forcefully took
out prosecutrix from the hut and on that night the victim
prosecutrix returned and told her that she was raped by both
the accused persons.
13. P.W.4 is the uncle of the victim prosecutrix and
P.W.6 is a member of the Panchayat, a resident of the locality
and both of them corroborated the prosecution case saying
that they were informed about the incident.
14. P.W.11 is the Medical Officer who examined the
victim prosecutrix on 28.10.2010 i.e. on the date of lodging
the FIR and she opined that sexual intercourse might have
taken place which may be confirmed by examination of the
vaginal swab. She found labia majora and labia minora were
normal and hymen was ruptured. In cross examination she
stated that it appeared to her that victim was habituated to
sexual intercourse and that she did not find any injury on her
private parts. The opinion of the witness materially supports
the allegation of rape. Even if it is accepted that the
prosecutrix was habitual in sexual intercourse, it does not give
a license to the accused persons to invade upon her body
without her consent. Further, absence of spermatozoa on
vaginal smear does not necessarily falsify the version of the
prosecutrix. Penetration does not necessarily lead to the
discovery of spermatozoa, particularly where the victim was
examined on the third day after occurrence and in the mean
time she might have taken bath. An overall appreciation of the
medical evidence supports the prosecution case.
15. In a case of rape normally a victim is the sole
witness of occurrence. If her evidence inspired confidence, it is
settled by judgment laws that conviction of the accused is
maintained. As a rule of prudence the Court looks for some
additional assurance to rule out the possibility of a false
implication. If the victim’s evidence is so consistent and
inspire confidence of the Court, a conviction may be recorded.
16. In this case we have already reproduced
hereinbefore the deposition of the victim prosecutrix before
the Court. Except some superficial discrepancies in respect of
the fact as to who opened the door, there is nothing else to
challenge credibility of the deposition of victim prosecutrix.
The medical evidence did not rule out the possibility of rape
rather supported the victim’s evidence. Defence simply made
suggestion to P.W.1 that the victim prosecutrix was spoiling
Sukumar Debbarma, S/o Parendra Debbarma and that parents
of the victim prosecutrix wanted to give marriage of the
prosecutrix with Sukumar Debbarma which Parendra
Debbarma refused and therefore, there was inimical relation
for which a false case was instituted. The defence story seems
to be quite unnatural that the parents planted their young
unmarried girl to make a false allegation of rape against the
accused persons for the reason that marriage proposal with
the son of one accused was refused. Had it been so, allegation
could have been made against Sukumar Debbarma, but here
the allegation is against father of Sukumar and another young
man. The suggestion seems to be a cooked story to somehow
make out a defence story and nothing else.
17. In the cross examination of P.W.1 it is brought on
record that Parendra is the cousin brother of P.W.1 Charania
Debbarma and so he was uncle of the victim prosecutrix. In
their examination under Section 313, Cr.P.C. the accused
persons stated nothing about their plea taken at the time of
cross examination of the prosecution witnesses.
A mere suggestion not supported by any specific
statement made by the accused persons and not supported by
any defence or prosecution evidence would have no
evidentiary value. No importance could be attached to such
suggestion made during cross examination.
18. Learned counsel, Mr. Dutta appearing on behalf of
the appellants submitted that the FIR was lodged on
28.10.2010 whereas the incident occurred on 26.10.2010 at
mid night. The parents of the victim, so far the prosecution
case is concerned, returned on 27.10.2010 at about 10-00
a.m. but on that day FIR was not lodged and, therefore, there
was scope of embellishment and the prosecution case cannot
be believed.
19. Learned Addl. P.P. has submitted that delay has
been adequately explained and therefore, there is no reason
at all to suspect the prosecution case. The Supreme Court in
the case of State of Himachal Pradesh Vrs. Gian Chand,
reported in (2001) 6 SCC 71 has observed that delay in
lodging the FIR cannot be used as a ritualistic formula for
doubting the prosecution case and discarding the same solely
on the ground of delay in lodging the FIR. Delay has the effect
of putting the Court on its guard to search if any explanation
has been offered for the delay, and if offered, whether it is
satisfactory or not. If the prosecution fails to satisfactorily
explain the delay and there is a possibility of embellishment in
the prosecution version on account of such delay, the delay
would be fatal to the prosecution. However, if the delay is
explained to the satisfaction of the court, the delay cannot by
itself be a ground for disbelieving and discarding the entire
prosecution case.
20. The above principle is applicable generally in case
of delay in lodging FIR. But, in a case of rape, the law has
further been elaborated by the Apex Court. In the case of
Gurmit Singh (supra) the Supreme Court has held—
“….A girl, in a traditional bound non-permissive
society as in India, would be extremely reluctant even
to admit that any incident which is likely to reflect upon
her chastity had occurred, she would be conscious of
the danger of being ostracized by the society or being
looked down upon by the society…..”
On the facts of that case the Court has observed
that her informing to her mother only on return to the
parental house and no one else at the examination center
prior thereto, is in accord with the natural human conduct of a
female. The Court has further observed that the Courts cannot
over-look the fact that in sexual offences delay in lodging of
the FIR can be due to variety of reasons, particularly, the
reluctance of the prosecutrix or her family members to go to
the police and complain about the incident which concerns the
reputation of the prosecutrix and the honour of her family.
21. In the case of Bharwada Bhoginbhai Hirjibhai
Vs. State of Gujrat, reported in AIR 1983 SC 753, the
Supreme Court has observed—
“….A girl or a woman in the tradition bound
non-permissive Society of India would be extremely
reluctant even to admit that any incident which is likely
to reflect on her chastity had ever occurred. She would
be conscious of the danger of being ostracized by the
Society or being looked down by the society including
by her own family members, relatives, friends, and
neighbours. She would face the risk of losing the love
and respect of her own husband and near relatives,
and of her matrimonial home and happiness being
shattered. If she is unmarried, she would apprehend
that it would be difficult to secure an alliance with a
suitable match from a respectable or an acceptable
family. In view of these and similar factors the victims
and their relatives are not too keen to bring the culprit
to book. And when in the face of these factors the
crime is brought to light there is a built-in assurance
that the charge is genuine rather than fabricated….”
22. In the case of Karnel Singh Vs. State of M.P.,
reported in (1995) 5 SCC 518, the Supreme Court has
observed that delay in lodging complaint in such cases in India
does not raise inference that complaint was false. Reluctance
to go to police is because of society’s attitude towards the
woman victim.
23. In the present case, the incident occurred on the
mid night of 26.10.2010. The victim on her return home
narrated the occurrence to her grandmother and to her uncle.
Her parents returned on 27.10.2010 at about 10 a.m. and
thereafter she narrated the incident to her parents which was
quite natural. FIR was lodged by the father of the victim
prosecutrix on 28.10.2010 at about 08-05 hours. It is clearly
stated in the FIR i.e. Exbt.1 that delay has been caused on
account of waiting for village adjudication. In his evidence,
P.W.1 clearly stated that he had delayed in lodging the FIR
because he waited for village settlement. That part of
evidence of P.W.1 has not been questioned by the defence.
Mr. Datta, learned counsel, though argued that there was
embellishment in the story narrated in the FIR, but has failed
to show, referring to the evidence on record, as to which part
of the story was the result of alleged embellishment due to the
delay. So in our considered opinion, delay in lodging the FIR
by the father has been sufficiently explained and the
explanation is acceptable since it is a case of rape of an
unmarried young girl. This argument of learned counsel Mr.
Dutta, therefore, merits no consideration.
24. The next argument advanced by Mr. Dutta, is that
the victim prosecutrix stated that she was first taken to the
cowshed by the accused persons and that cowshed belonged
to Dayananda Debbarma and Dayananda Debbarma has not
been examined and so adverse inference should be drawn. We
find no merit at all in this argument of learned counsel Mr,
Dutta that Dayananda Debbarma is a material witness.
Nothing is there in the evidence on record that Dayananda
was informed by the victim or her parents or that Dayananda
came to the house of the victim prosecutrix and learnt about
the occurrence or that in any other manner he was connected
with the occurrence. Therefore, in our considered opinion, non
examination of Dayananda is not at all material for
consideration by the Court.
25. Mr. Dutta, learned counsel further argued that the
victim prosecutrix stated that she was first taken to the
cowshed and raped there and thereafter she was taken to the
jungle and was raped there also. In the hand sketch map I.O.
has only shown the cowshed where the victim prosecutrix was
raped but did not at all ascertain the second place of
occurrence i.e. the jungle and so the version of the victim
cannot be believed.
26. Learned Addl. P.P. has submitted that it was the
fault of the I.O. that he did not visit the second place of
occurrence in the jungle and that lapse of the I.O. cannot
damage the prosecution case as a whole. On perusal of the
evidence and materials on record we find that in the FIR the
informant i.e. P.W.1 stated that the prosecutrix was taken to
the jungle in the eastern side of the house and was raped
there. The statement of the prosecutrix was recorded under
Section 164 of Cr.P.C. on 03.11.2010 and she made clear
statement that she was raped in the cowshed and thereafter
in the jungle. The victim in her deposition made clear and
specific statement that she was raped both in the cowshed as
well as in the jungle which is supported by the evidence of her
parents. I.O. (P.W.10) in his evidence stated that he visited
the place of occurrence and prepared hand sketch map with
index. He made clear statement that he did not investigate
regarding the place of occurrence at jungle and that he did not
go to the jungle with the victim. Since there was specific
statement in the FIR as well as in the 164 Cr.P.C. statement of
the victim, I.O. was supposed to visit both the place of
occurrence and mention it in the hand sketch map. Failure of
I.O. in mentioning the same in the hand sketch map in our
considered opinion should not be attached with a great
importance to disbelieve the version of the victim prosecutrix.
27. The Supreme Court in the case of Karnel Singh
(supra) in Para 5 of the judgment has observed—
“…..In cases of defective investigation the Court
has to be circumspect in evaluating the evidence but it
would not be right in acquitting the accused person
solely on account of the defect; to do so would
tantamount to playing into the hands of the
investigating officer if the investigation is designedly
defective…..”
28. In the present case, the Investigating Officer
himself stated that he did not go to the place of occurrence in
the jungle with the victim girl and did not ascertain it. It is the
callousness and failure of the Investigating Officer for which
we find no reason at all to doubt the prosecution case.
29. The next argument advanced by learned counsel,
Mr. Dutta is that the victim prosecutrix at the time of her
taking away did not raise any alarm. Her grandmother also did
not raise any alarm which was quite un-natural and under
such circumstances, the prosecution story itself is doubtful
and therefore, the accused persons should be given benefit of
doubt.
30. Learned Addl. P.P. has submitted that the victim is
an illiterate tribal girl. Her parents also are of same status.
The accused Parendra was a middle aged man and the
accused Biswamohan was a young person of about 20/25
years. They forcefully took her away. In her statement before
the Magistrate while examination under Section 164 of Cr.P.C.
she made clear statement that she tried to raise alarm but her
mouth was pressed and also she was also threatened. Under
such circumstances of the case the argument of the defence
that for not raising alarm the statement of the victim should
be doubted cannot be accepted.
31. In her deposition before Court the victim did not
state that she tried to raise alarm. Defence also did not raise
any question to the prosecutrix as to whether she tried to
raise alarm or not. It was the duty of the prosecution to
examine the victim to unearth the truth. It is a fact that the
victim is an illiterate tribal resides in remote village. It is a
human conduct of raising alarm but if alarm was not raised or
could not be raised, does not necessarily mean that the facts
stated by the witness should be a suspect unless there are
other cogent and emerging materials to destroy the
authenticity of the statement of the victim.
32. P.W.3, the grandmother of the victim was an old
lady with short of eyesight. In cross examination she stated
that she did not raise alarm when victim was taken forcefully.
She cannot see properly. Before return of her son and son’s
wife she informed the incident to the local people. During
night time also she informed the local people but nobody came
at night. P.W.3, the grandmother was also an illiterate woman
and it appears that she did not raise any alarm when the
victim prosecutrix was allegedly lifted by the accused persons.
It is the human conduct to raise alarm, but for not raising the
alarm, we find no reason to throw doubt on the entire
prosecution case since the victim’s statement that she was
raped by both the accused persons has not been shaken in
any other manner.
33. Mr. Dutta, learned counsel for the accused persons
has further submitted that in her deposition the victim stated
that her grandmother opened the door. But her grandmother
stated that the prosecutrix opened the door and when the
victim was questioned in cross examination as to which of the
statement was correct, she stated that both the statements
were correct since her grandmother first opened the door and
the second time she opened the door. There was no case that
the door was opened for the second time.
This is a minor discrepancy in our considered
opinion. The door might be opened by either the victim or the
grandmother. The basic evidence is that both of them were in
the house on the night of occurrence and there was none else
in the house. There was no nearby house adjacent to the
house of the victim. So this minor discrepancy does not shake
the basic version of the witnesses. Discrepancies which do not
go to the root of the case should not be attached with undue
importance. Minor discrepancies are rather guaranty of truth.
34. The evidence has to be appreciated as a whole
and some discrepancies here and there should not be picked
up to throw the prosecution case as a whole.
The Supreme Court in the case of Inder Singh V.
State, reported in AIR 1978, SC 1091 has held that
credibility of testimony, oral or circumstantial, depends
considerably on a judicial evaluation of the totality, not
isolated scrutiny. While it is necessary, that proof beyond
reasonable doubt should be adduced in all criminal cases. It is
not necessary that it should be perfect. Proof beyond
reasonable doubt is a guideline, not a fetish and guilty man
cannot get away with it because truth suffers some infirmity
when projected through human processes. Judicial quest for
perfect proof often accounts for police presentation of foolproof
concoction.
35. Here in this case, the prosecution case is that the
accused Biswamohan and Parendra trespassed in the house of
the victim prosecutrix at mid night. Accused Biswamohan
entered into the room and pulled out the victim from the
house and that both Parendra and Biswamohan took her to
the cowshed, raped her there and again took her to jungle and
raped her there. This statement of the victim inspires
confidence since it is supported by her parents and the
medical evidence also. No other corroboration is required. The
discrepancies which are noted by the learned defence counsel,
in our considered opinion, is not a material discrepancy which
shakes the backbone of the prosecution case.
36. We are inclined to put here the observation of the
Apex Court in the case of Krishna Mochi & Ors. Vrs. State
of Bihar, reported in AIR 2002 SC 1965, Para 76 of the
judgment wherein the Apex Court observed –
“Thus, in a criminal trial a prosecutor is faced
with so many odds. The Court while appreciating the
evidence should not lose sight of these realities of life
and cannot afford to take an unrealistic approach by
sitting in ivory tower. I find that in recent times the
tendency to acquit an accused easily is galloping fast.
It is very easy to pass an order of acquittal on the basis
of minor points raised in the case by a short judgment
so as to achieve the yardstick of disposal. Some
discrepancy is bound to be there in each and every
case which should not weigh with the Court so long it
does not materially affect the prosecution case. In case
discrepancies pointed out are in the realm of pebbles,
court should tread upon it but if the same are boulders,
court should not make an attempt to jump over the
same. These days when crime is looming large and
humanity is suffering and society is so much affected
thereby, duties and responsibilities of the courts have
become much more. Now the maxim "let hundred
guilty persons be acquitted, but not a single innocent
be convicted" is, in practice, changing world over and
courts have been compelled to accept that "society
suffers by wrong convictions and it equally suffers by
wrong acquittals". I find this Court in recent times has
conscientiously taken notice of these facts from time to
time. In the case Inder Singh and another v. State
(Delhi Administration ), AIR 1978 Supreme Court 1091,
Krishna Iyer, J. laid down that "Proof beyond
reasonable doubt is a guideline, not a fetish and guilty
man cannot get away with it because truth suffers
some infirmity when projected through human
processes." In the case of State of U.P. v. Anil Singh,
AIR 1988 Supreme Court 1998, it was held that a
Judge does not preside over a criminal trial merely to
see that no innocent man is punished. A Judge also
presides to see that a guilty man does not escape. One
is as important as the other. Both are public duties
which the Judge has to perform. In the case of State of
West Bengal v. Orilal Jaiswal and another (1994) 1
Supreme Court Cases 73, it was held that Justice
cannot be made sterile on the plea that it is better to
let hundred guilty escape than punish an innocent.
Letting guilty escape is not doing justice, according to
law. In the case of Mohan Singh and anr. v. State of
M.P. (1999) 1 Supreme Court Reports 276, it was held
that the courts have been removing chaff from the
grain. It has to disperse the suspicious cloud and dust
out the smear of dust as all these things clog the very
truth. So long chaff, cloud and dust remains, the
criminals are clothed with this protective layer to
receive the benefit of doubt. So it is a solemn duty of
the courts, not to merely conclude and leave the case
the moment suspicions are created. It is onerous duty
of the court, within permissible limit to find out the
truth. It means, on one hand no innocent man should
be punished but on the other hand to see no person
committing an offence should get scot free. If in spite
of such effort suspicion is not dissolved, it remains writ
at large, benefit of doubt has to be credited to the
accused.”
37. Mr. Dutta, learned counsel also argued that
prosecution has failed to prove the age of the victim girl and
so the victim girl cannot be considered as a minor.
38. In the facts of the present case, the age of the
victim girl has become irrelevant since there is no case of the
accused persons that the victim girl was a consenting party.
Both the victim girl and her parents are illiterate persons. In
her statement recorded by the Magistrate under Section 164
of Cr.P.C. on 03.11.2010 so far the record shows that she
stated her age as 12 years. She gave her evidence before
Court in 2012 and at that time she stated her age as 14 years.
The Medical Officer i.e. P.W.11 recorded the age of the victim
girl as 12 years as per the statement of the police. The
parents did not state the age of the victim girl at the time of
occurrence and only one suggestion was given to P.W.1 at the
time of cross examination that the victim girl was more than
20 years. I.O., P.W.10 in his deposition stated that ossification
test of the victim girl was done at G.B. Hospital and as per the
report, the age of the victim girl was more than 12 years and
less than 14 years. The ossification test report has not been
proved. But the statement of I.O. in respect of age of the
victim girl pursuant to the ossification test has not been
disputed by the defence. So in the given circumstances of the
case, as to what was the age of the victim girl at the time of
occurrence is totally immaterial and we find nothing to
consider the submission of learned counsel on this score.
39. Learned counsel, Mr. Dutta has finally submitted
that the punishment under Section 376(2) (g) is excessive and
harsh and he prayed for taking a lenient view.
40. Learned Addl. P.P. left it open to the Court for
consideration as to whether the punishment should be
reduced or not. The trial Court has held the accused
appellants guilty of committing offence punishable under
Sections 451/366 and 376(2) (g) of IPC. There is no argument
in respect of the evidence proving the ingredients of offence
punishable under those sections. We are also of considered
opinion on consideration of the evidence on record that the
ingredients of offence are proved.
In respect of punishment under Section 376 (2)(g)
of IPC, considering the age and social strata of both the
accused-appellants, we are of considered opinion that rigorous
imprisonment for 12 years and a fine of Rs.10,000/- each, in
default of payment to suffer S.I. for six months under Section
376 (2)(g) of IPC shall meet the ends of justice.
The punishment under Sections 451 and 366 of IPC are
maintained. All the substantial sentences shall run
concurrently.
41. Subject to modification of sentence under Section
376(2)(g) of IPC, as aforesaid, the appeal is found to be
devoid of any merit and it stands dismissed.
42. Send back the L.C. records along with a copy of
this judgment.
JUDGE CHIEF JUSTICE
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