Sri Subrata Pal VsThe State of Tripura

S. Talapatra, J.—Heard Mr. B.N. Majumder, learned counsel appearing for the appellant as well as Mr. A. Ghosh, learned Public Prosecutor appearing for the state.

This is an appeal by the convict against the judgment of conviction dated 24.09.2010 delivered in S.T. 36(ST/B)/2010 by the Addl. Sessions Judge, South Tripura, Belonia u/s 448 and u/s 376(1) read with Section 511 of the IPC. As consequence of the said conviction, the appellant has been sentenced to suffer rigorous imprisonment for one year u/s 448 of the IPC and, rigorous imprisonment for four years and to pay fine of Rs. 2,000, in default thereof, to suffer further rigorous imprisonment for two months u/s 376(1) read with Section 511 of the IPC.

At the instance of one Kunjati Reang (PW. 3), the mother of the victim (PW. 2), whose name has been withheld for purpose of protecting her identity, a complaint was filed against the appellant disclosing that he attempted rape on the victim at about 6/6.30 pm in the evening on 25.04.2010. The complainant had disclosed further that on the pretext of having some drinking water the appellant entered the premises of the victim and, at that point of time, the appellant caught hold of her and tried to commit rape. On hearing the alarm raised by the victim, the informant and other neighbours rushed to the place of occurrence, but the appellant fled away. After about an hour, the appellant was found in a jungle nearby and he was detained.

Based on the said complaint, Santirbazar P.S. Case No. 30/2010, under Sections 448/376/511 of the IPC was registered and taken up for investigation. On completion of the investigation, the police report charge sheeting the appellant was filed under Sections 448/376(1) read with Section 511 of the IPC. The case was committed in due course to the court of the Addl. Sessions Judge, South Tripura, Belonia. On taking cognizance, the Addl. Sessions Judge framed the charge against the appellant u/s 448/376(1) read with Section 511 of the IPC, to which the appellant pleaded innocence and claimed to be tried.

The prosecution, in order to substantiate the charge, adduced as many as 9 witnesses and introduced 3 documents including the statement of the victim recorded u/s 164(5) of the Cr. P.C. (Exbt. 1), the complaint (Exbt. 2) and the hand-sketch map with its index (Exbt. 3). After recording the prosecution evidence, the appellant has been examined u/s 313 of the Cr. P.C. for having his response to the incriminating materials, those surfaced in the evidence.

In the course of examination, the appellant denied all such incriminating materials and reiterated his plea of innocence. The Addl. Sessions Judge, on appreciating the evidence so placed on record by the prosecution, returned the finding of conviction u/s 448 and u/s 376(1) read with Section 511 of the IPC. On questioning that finding of conviction, the present appeal has been filed.

Mr. B.N. Majumder, learned counsel appearing for the appellant has submitted that at the time of occurrence except the victim, no one was there. PW. 3, the complainant appeared in the crime-scene on hearing the alarm raised by her daughter and, she heard about the occurrence from her daughter. At the same time, one Brajalal Jamatia (PW. 4) and Kathin Jamatia (PW. 7) rushed to the place of occurrence. At the sight of the people rushing to the place of occurrence, the appellant fled to the nearby jungle. Mr. Majumder, learned counsel has further submitted that neither Brajalal nor Kathin had witnessed anything of the occurrence. The entire prosecution case is, therefore, based on the testimony of PW. 2, the victim and her statement recorded u/s 164(5) of the Cr. P.C. According to Mr. Majumder, learned counsel, a different story regarding execution of the crime has been provided by PW. 2, the victim.

PW. 2, the victim has stated in the trial that on the day of occurrence at about 6.30 am, she was at her house situated at Taikarma. At that time the appellant approached her for drinking water. She had asked the appellant to have the water from the kitchen. At that point of time, the appellant caught hold of her, laid her on the floor by pressing her mouth, removed her cloth (pachra) and tried to commit rape on the victim. The victim raised alarm and, when her mother Kunjati Reang (PW. 3) arrived, the accused fled away after opening the door. On the alarm being raised by her mother, Brajalal Jamatia (PW. 4) and Kathin Jamatia (PW. 7) also arrived at the place of occurrence. Thereafter, at around 7 pm, the brother of the victim, namely Ramen Reang, who was not examined, came home and, on hearing the incident he searched the nearby jungle and apprehended the appellant. Ramen Reang had handed over the appellant to the local Chairman, namely Girendra Jamatia (PW. 5). The victim has also stated that her statement had been recorded by the Magistrate and she had identified the said statement as Exbt. 1. In her cross-examination, the victim has stated that she had also stated to the Magistrate that after opening the door the appellant fled away from the place of occurrence. But, such statement was not found when she was asked to find out from her previous statement recorded under Sections 161 and 164(5) of the Cr. P.C.

Mr. Majumder, learned counsel appearing for the appellant has underlined that part of the statement. According to him, the statement that ''after opening the door the appellant fled away'' is in contrast to what has been disclosed at the first instance by filing the complaint. Mr. Majumder, learned counsel has further submitted that the complainant, Smt. Kunjati Reang (PW. 3) has stated in the complaint that she found a young boy scuffling with her daughter by way of catching hold of her hand and mouth at her courtyard. He has further submitted that the version as placed in the complaint and the version as made by the victim in the trial are irreconcilably poised.

PW. 3, the complainant has categorically stated in the trial that she does not understand Bengali language and hence her statements were recorded by taking the aid of an interpreter. She has stated in the trial that her daughter was in the kitchen of her house. At that time, the appellant had entered in their main room. When she appeared in her courtyard, she found the appellant scuffling with her daughter and, thereafter, the appellant fled away towards the nearby jungle. She has also stated that the appellant had been apprehended by her son with the help of the local people. But, she has not stated anything in the trial that the victim had stated her that the appellant removed her cloth and attempted rape.

PW. 4, Brajalal Jamatia is a hearsay witness, but he has admitted that he heard the cry from the house of the complainant, Kunjati Reang on the day of occurrence. PW. 7, Kathin Jamatia, the other person who appeared in the place of occurrence was tendered by the prosecution and he had not been examined.

PW. 5, Girendra Jamatia, the local Chairman, has narrated how he came to know about the occurrence at about 9 pm on 25.04.2010, the day of occurrence. He had also informed the nearby Outpost and, on his report, one police officer had appeared and taken away the appellant who was detained by the local villagers. PW. 5 has stated further that he wrote the complaint in terms of what PW. 3 had stated to him and, thereafter, she put her thumb impression there. He has only stated that what Kunjati Reang, the complainant narrated, he had reduced that into Bengali.

PW. 1, Narad Ch. Sarkar, the Astt. Sub-Inspector of Police had visited the house of PW. 5 and taken charge of the appellant who was detained by the local villagers. PW. 1 has made a significant statement that at the time when he visited the house of PW. 5, no one had complained him about the occurrence.

PW. 6, Gopal Das and PW. 8, Laxman Bhowmik are the witnesses who have been introduced by the prosecution to bring the antecedent character of the appellant. In another occasion, the appellant was detained when he tried to commit rape on the wife of PW. 6. PW. 8 has also corroborated such statement of PW. 6.

PW. 9, Swapan Sarkar, the Sub Inspector of Police, who had investigated the case, has narrated briefly how he appeared in the place of occurrence, prepared the hand-sketch map and examined the witnesses. Thereafter, he had submitted the chargesheet under Sections 448/376 read with Section 511 of the IPC, as a strong case surfaced on completion of the investigation.

It appears that in the statement recorded u/s 164(5) of the Cr. P.C. (Exbt. 1), the victim has categorically stated that the appellant forcefully removed her cloth and tried to rape her. The said statement was recorded on 24.04.2010 i.e. after three days of the occurrence.

Mr. Majumder, learned counsel appearing for the appellant has therefore submitted that the prosecution has failed to prove the charge beyond reasonable doubt as the statements of PWs. 2 and 3 are non-corroborative in nature and no explanation has been sought to be elicited from them by the prosecution.

While refuting such submission of Mr. Majumder, learned counsel appearing for the appellant, Mr. A. Ghosh, learned Public Prosecutor appearing for the state has submitted that while appreciating such rustic witnesses, particularly in the given context of the crime, certain minor deviations in describing the details how the crime had been committed, unless are overlooked, the very ends of justice is frustrated. Mr. Ghosh, learned Public Prosecutor has placed emphasis on certain aspects of the prosecution case. According to him, the fact that the victim cried out at the relevant point of time, could not be debased by the defence in any manner and that statement has been corroborated by PWs. 3 and 4 in particular. As regards the statement whether the offence was committed by the appellant, Mr. Ghosh, learned Public Prosecutor has fairly admitted that there surfaced two different versions. But, those two versions are not irreconcilable, as stated by Mr. Majumder, learned counsel appearing for the appellant. He has submitted that the place of occurrence is the main hut, whereas the kitchen situated a little away but in the close proximity of the hut.

The victim (PW. 2) has stated that after the attempt of committing rape on her, when she cried out, the appellant left the place of occurrence by opening the door. At that point of time, her mother appeared in the courtyard. PW. 3, the victim''s mother had stated in the FIR that she saw both PW. 2 and the appellant were scuffling in the courtyard, but in the trial she has stated that she saw the appellant fleeing away from their courtyard.

Mr. Ghosh, learned Public Prosecutor has submitted that the victim had reported the matter immediately after the occurrence to her mother (PW. 3). Thereafter, at the first instance PW. 3 went to the house of PW. 5. Since PW. 5 was not present in his house at the relevant time, she could not report the occurrence to PW. 5. He was reported at around 9 pm. The complaint was filed on that night itself. Therefore, their versions, even if some incongruities have been noticed, cannot be brushed aside.

For appreciating the rival submissions, this court has scrutinised the records as placed and finds that Mr. B.N. Majumder, learned counsel appearing for the appellant is substantially correct in contending that the manner of execution of the offence as stated by the victim and the complainant at the first instance are irreconcilably in contrast to each other. But, it cannot be said that there is no attempt to outrage the modesty of a tribal girl, the victim. From the circumstances it has been proved that the appellant tried to outrage the modesty of the victim and when she cried out he left the place. But, there is no evidence that there was an attempt of committing rape on her. Even PW. 3, the mother of the victim, who appeared in the place of occurrence, did not state that the appellant removed the wearing apparels of the victim. Moreover, what she has stated in the trial is a different version. The fact that the appellant tried to outrage the modesty of the victim (PW. 2) has got further assurance as the appellant fled in the nearby jungle and, he had been apprehended from the jungle after about an hour from the time of occurrence. But, the appellant did not try to give any explanation which is within his special knowledge why he fled to the jungle from the place of occurrence.

Having regard to the entire circumstances, this court is of the considered opinion that the prosecution has miserably failed to prove the offence punishable u/s 376 read with Section 511 of the IPC. But, no doubt the prosecution has succeeded in proving that the appellant has committed the offence punishable under Sections 448 and 354 of the IPC. Since the offence punishable u/s 376 read with Section 511 of the IPC is cognate to the offence punishable u/s 354 of the IPC and, Section 354 carries lesser punishment, this Court, even without framing the formal charge, in exercise of the power conferred u/s 222 of the Cr. P.C., can convict the appellant u/s 354 of the IPC.

Having held so, the conviction as returned u/s 448 of the IPC by the trial court is maintained. The petitioner is further sentenced to suffer rigorous imprisonment for 1(one) year u/s 354 of the IPC. Needles to say, if the petitioner has suffered imprisonment during the pre-trial stage or thereafter, that period shall be set off from the sentence. Both the sentences shall run concurrently. As consequence of the above finding, the conviction u/s 376(1) read with Section 511 of the IPC is interfered with and set aside.

In the result, this appeal stands partly allowed to the extent as indicated above.