Dhirulal Das vs The State of Tripura

This is an appeal from the judgment of conviction dated 27.09.2014, delivered in Sessions Trial No. 71(ST/U 2013) by the Sessions Judge, Gomati Judicial District Udaipur. By the said judgment, the appellant has been convicted under section 376(1) and section 448 of the IPC. Consequentially, the petitioner has been sentenced to suffer rigorous imprisonment (RI) for 7 years with fine of Rs. 5000/- with default imprisonment for committing the offence punishable 376(1) of the IPC. The appellant has been further sentenced to suffer RI for six months for commission of offence punishable under section 448 of the IPC. The sentences are to run concurrently.

PW-9, the prosecutrix (her name has been withheld for protecting her identity) lodged the written ejahar on 12.7.2012 in Kakraban Police Station disclosing that on the previous night at about 11 p.m. the appellant entered her room and raped her by applying force. She cried out and inmates of their house and the people from the neighbourhood appeared in her room and nabbed the appellant almost undressed. Based on the said ezahar (Exbt. P/1) Kakraban P.S. Case No. 124/12 under section 454/376 IPC was registered and taken up for investigation.

On completion of investigation, the final police report under section 173 of the Cr.P.C. was fled charge-sheeting the appellant. As the offence allegedly committed by the appellant was exclusively triable by the court of Session, the police papers were committed to the court of the Sessions Judge, South Tripura, Udaipur. On transfer, the charge was framed against the appellant under section 376(1) and 457 of the IPC separately by the Assistant Sessions Judge, South Tripura, Udaipur. The charge as framed was completely denied by the appellant and he pleaded total innocence claiming to face the trial.

In order to substantiate the charge, the prosecution adduced as many as 11 witnesses including the prosecutrix, the doctor who examined her medically and the persons who appeared in the place of occurrence on hearing her cries i.e. Sri Niranjan Das (PW-1), Smt. Sita Das (PW-2) and Sri Dhanu Ranjan Das (PW-3). The prosecution has also introduced five documentary evidence (Exbt.1 to Exbt.5) including the medical examination report for the sexual offences. Even though the defence did not adduce any witness but at their instance one document (Exbt. D-1) was introduced in the evidence.

The report of the Forensic Science Laboratory signed by the Director cum Chemical Examiner to the Government of Tripura and the Scientific-cum-Examining Officer has not been admitted in the evidence. Even the statement of the prosecutrix as recorded under section 164(5) of the Cr.P.C. was not introduced in the evidence. But those are available in the records.

After the prosecution evidence was recorded, the appellant was examined under section 313(1)(b) of the Cr.P.C. when the appellant reiterated his plea of innocence. Thereafter, on appreciation of the evidence which has been challenged in this appeal, the Sessions Judge, Gomati Judicial District, Udaipur returned the finding of conviction as stated. It is to be noted that the trial was retransferred to the court of the Sessions Judge for bringing about its logical end.

Mr. A. Nandi, learned counsel appearing for the appellant has seriously criticised the judgment of conviction contending that there is no trustworthy evidence in respect of presence of the appellant inside the room of the prosecutrix at the time of occurrence. He has further submitted that the prosecution was unfair withholding the witnesses from the neighbourhood as the prosecutrix had disclosed in the ejahar that people from the neighbourhood appeared in her room responding to her alarm. Mr. Nandi, learned counsel has submitted that the evidence was not appreciated properly and the statement of the victim was taken as the gospel truth by relegating the medical examination report and the report of the Forensic Science Laboratory which according to Mr. Nandi, learned counsel appearing for the appellant, can straight-way be admitted under section 293 of the Cr.P.C. which inter alia provides that any document purporting to be a report under the hand of the government scientific expert may be used in the evidence even if the said officer did not appear in person. The Director, State Forensic Science Laboratory is one of the Government Scientific Experts whose report is covered by the provisions of Section 293 of the Cr.P.C. Mr. Nandi, learned counsel has emphatically submitted from a conjoint reading of the medical report (Exbt.P/3) and the report of the Director, State Forensic Science Laboratory it would surface clearly that the experts have clearly stated that there was no sign or evidence of recent forceful sexual intercourse and No Semen/Seminal Stain/Spermatozoa of human origin could be detected in the inner garments of the prosecutrix and the appellant. Mr. Nandi has further submitted that the prosecutrix herself fled one affidavit (Exbt.D-1) on 31.08.2012 in the court of the Judicial Magistrate, First Class in the case relating to the Kakraban P.S. Case No. 124/2012 affirming that "on being instigated by the local people I had fled a false case against the said accused and I have done fault to this. I am not willing to continue the instant case against the said accused. And I have no objection if the accused gets bail. It is true to the best of my knowledge and belief" (as translated from vernacular to English by the translation department of this court).Mr. Nandi, learned counsel has submitted that the prosecutrix cannot be believed in the array of circumstances. Her daughter who was minor but quite grown up, even did not see any sexual act. She only stated that as she awoke from her sleep on hearing cries of her mother she saw PWs.1, 2 and 3 and also the appellant. The circumstances are quite eloquent to indicate that there was no incidence of rape. Alternatively he has submitted that even if the appellant''s presence is believed by this court that itself would not prove commission of rape or lurking house trespass by night in order to commit offence punishable by imprisonment. He urged for acquittal of the appellant.

From the other side Mr. A. Ghosh, learned public prosecutor has submitted that the appellant has failed to explain how he was nabbed at the wee hour of night inside the room of the prosecutrix. Moreover when the PWs.1,2 and 3 appeared inside the room they saw the prosecutrix only wearing a petty coat and the appellant with a Jangia. It has not been denied by the defence that the prosecutrix has stated coherently in all the phases that she was overpowered by the appellant and thereafter she was raped.

When queried how the prosecution would explain the Scientific Examination Reports including the medical examination report of the prosecutrix where the experts have given specific opinion as to the certain aspects of the female organ or absence of Semen or Seminal Stain or Spermatozoa. He has candidly submitted that the prosecution did not admit except the statement of the prosecutrix in the trial or to the persons who appeared in the place of occurrence immediately after the appellant forcefully raped her. Mr. Ghosh, learned public prosecutor has also placed alternative submission that even if rape within the meaning of section 375 of the IPC as it stood before the criminal law (Amendment) Act, 2013 which came into effect from 3.2.2013 is not established beyond reasonable doubt having affected by rebuttal of presumption of truth under section 114A of the Indian Evidence Act by the Scientific Reports, the attempt to rape the prosecutrix has been established to the hilt.

For purpose of appreciating the rival contentions, projected by the counsel, it would be apposite to resurvey the evidence on record. PW-1 Niranjan Das is an inmate as the prosecutrix is the wife of his younger brother. He has stated that he had heard hue and cry from the house of the prosecutrix. He rushed to that house when he saw the prosecutrix was wearing one petty coat and the appellant wearing only under-wear. He heard from his wife Smti. Sita Das(PW-2) that the prosecutrix told her that she was raped by the appellant. She informed the police and the police came in the early morning and took the appellant with them. He has stated that the door of the house of the prosecutrix was in broken condition. He was witness to the seizure of wearing apparels of the prosecutrix and the appellant. He identified those material objects in the trial. PW-2 Smti. Sita Das narrated the same story she has stated in the trial that on her query the prosecutrix had stated that she was raped by the appellant. She informed the incident to her husband (PW-1) and the local people who were present there. On information transmitted by her husband, the police came in the early morning on the next day. She also stood witness to the seizure. She has stated that she was living ''alone'' in her house. PW-3, Dhanu Ranjan Das replicated the part of the narrative given by PW-1 and PW-2. But he did not say that he found the door was broken. Another close relative namely Sri Bapi Das was examined by the prosecution. He has stated that after reaching in the room of the prosecutrix he saw the prosecutrix with only one inner garment and the appellant with his under wear. He has stated that " the accused Dhiru Lal Das was caught by my father, Niranjan Das. The accused attempted to rape..... (name withheld)." PW-5, Dr. Debashish Roy, examined vaginal swab produced in connection with Kakraban P.S. Case No. 124/2012. He has categorically stated that on examination no Spermatozoa was seen in the said swab-material. PW-6 is the other medical officer namely Dr. Sudeshna Debnath who has stated in camera that "after examination I opined that there is no evidence that the person is it for sexual intercourse." She identified her report on potency (Exbt.4). PW-7, Dr. Montosh Debnath, examined the prosecutrix medically for sexual offences on 12.07.2012. He has stated in the trial that "on examination, I opined that there were no signs or evidence of recent forceful sexual intercourse and she was habituated with sexual intercourse". The report (Exbt.P-5) was identified was PW-7. PW-8 is the recording officer of the First Information Report (FIR). He has stated that the case was investigated by Sri Dipak Bhattacharjee (PW-11). Smti Priti Rani Das (PW-9) is the prosecutrix. She has stated that on 12.07.2012 she was asleep with her children at about 11 p.m. The bamboo-door was closed, but it could be opened from the outside. In the light of hurrican, as there was no electricity in that room, she could see the appellant entering in her room by opening the door. After entering into the room, he caught her and removed all her clothes forcefully. Thereafter, raped her. Then as she has stated in the trial "I raised cry. My children also raised cry. Then all neighbours came into my house hearing the cry. They caught the accused and bounded him. Police was called and then he was handed over to the police. On the next day I submitted the F.I.R." She identified the F.I.R. and her signature. It is noteworthy that PW-9 did not acknowledge the presence of PWs, 1, 2, 3 and 4. PW-10 Nandita Das is the daughter of the prosecutrix. She has stated in the trial after having been tested for her maturity and understanding of the duty to speak the truth that on hearing cry of her mother she woke up and saw her mother wearing one petty coat. But she has stated that her uncle Niranjan Das(PW-1) and her cousin Bapi Das was there. They caught one person. She has categorically stated thereafter "I came to learn that the accused Dhiru Lal Das came to our house and caught my mother at night." PW-11, Sri. Dipak Bhattacharjee, one sub inspector of police of Kakraban Police Station, investigated the case. He briefly narrated how he conducted the investigation, made the prosecutrix and the appellant examined medically and collected the scientific reports. Thereafter, having been satisfied that a prima facie case has been established that the appellant committed the offences under 457/376(1) of the IPC, he fled the charge sheet.

We have studied the Scientific/Medical Examination Reports and found that in all those reports nothing is available against the appellant to connect him with the incidence of rape, from the material or human organ the experts examined. Now the very pertinent question which emerges for appreciating the evidence whether PW-9 or her version can totally be relied? Affirmation of the affidavit stating that she was instigated by local people fled a false case against the appellant has been admitted by the prosecutrix, however she gave evasive reply as to the content of the affidavit (Exbt.D-1).Even if it is not treated as the admission within the meaning of section 17 of the Evidence Act, but it has reflected a slice of conduct of the prosecutrix posterior to the crime. This piece of evidence is no doubt relevant in unearthing the truth. What is further to be noted is that the prosecutrix did not even indicate that the appellant broke the door and entered in her room. Most surprisingly, her daughter did not even corroborate her on the material part that she also cried out, as claimed by the prosecutrix. These discrepancies would have been ignored but on the face of the reports of the scientific and the medical examination this court cannot be blindfolded to rely the testimony of the prosecutrix as a whole. From overall assessment of the circumstantial evidence, presence of the appellant at the wee hour of night in the room/house of the prosecutrix, detention of the appellant from the place of occurrence and crying out of the prosecutrix which was registered by PWs.1, 2, 3, 4 and 10, it appears that the entry of the appellant was not in tandem with the prosecutrix. If it had been so she would not have cried out. It appears that the appellant attempted to commit rape but he could not succeed in such heinous act as the prosecutrix cried out. Moreover a set of witnesses (PWs 4 and 10) have categorically stated that the appellant tried to commit rape or simply caught hold of the prosecutrix at night.

Having appreciated the evidence thus, we are of the view that the charge under section 376(1) of the IPC for committing rape, for absence of any description of the sexual act at all from the prosecutrix is to be held as not proved beyond reasonable doubt but the prosecution has succeeded in proving the attempt to rape, punishable under section 376/511 of the IPC. As such the offence punishable under section 376/511 of the IPC is being cognate and comparatively minor to the offence punishable under 376(1) of the IPC, this court without framing the formal charge and in terms of section 222 of the Cr.P.C. convicts the appellant under section 376/511 of the IPC on acquitting him from the charge under section 376(1) of the IPC. In consequence of the conviction under section 376/511 of the IPC, the appellant shall suffer rigorous imprisonment of three years and pay a fine of Rs. 5000/- and in default in payment of fine the appellant shall suffer further R.I. for one month. We are not inclined to interfere with the conviction and sentence as returned by the trial court under section 448 of the IPC having due regard to the circumstances and the commission of the sexual offence. However, both the sentences shall run concurrently. The period of detention undergone by the appellant has to be set of against the sentence of imprisonment.

In the result this appeal stands partly allowed.

Send down the LCRs forthwith.