Alamgir Hossen vs State Of Tripura

Heard Mr. Raju Datta, learned counsel appearing for the appellant as well as Mr. Ratan Datta, learned P.P. along with Mr. Sumit Debnath, learned Addl. P.P. appearing for the State-respondent.

This is an appeal wherein the judgment and order of conviction and sentence dated 30.10.2019 passed in ST 01(ST/U) of 2005(T-I) against the accused-appellant is under challenge. The appellant has been sentenced to suffer rigorous imprisonment for seven years along with fine of Rs.10,000/- for offence committed under Section 376(1) of IPC and further five years of rigorous imprisonment along with fine of Rs.5,000/-for committing offence under Section 366 of IPC.

The prosecution case was lodged on the basis of the complaint made by the prosecutrix (P.W.-5), inter alia, stating that she was forcibly taken away by the appellant to a secluded place and was repeatedly raped by the appellant. The FIR was lodged after three days. After registration of FIR, investigation was commenced. The investigating officer examined available witnesses, arranged for medical examination of the victim-girl and also recorded her statement under Section 164(5) of Cr.P.C.

Being committed, the learned Addl. Sessions Judge, Gomati District, Udaipur framed charges against the accused-appellant under Section 366A and Section 376(1) of IPC.

The Prosecution had examined nine witnesses and introduced some documents including medical examination report of the victim girl (Exbt-7) and her statement recorded under Section 164(5) of Cr.P.C. (Exbt-3). After perusal of the evidence and materials on record, the learned Judge had convicted and sentenced the accused-appellant as aforestated.

Hence, this appeal before this Court.

Mr. Raju Datta, learned counsel for the appellant has submitted that the evidence of prosecutrix (P.W.-5) is not at all credible and trustworthy. It is a case based on concoction and fabrication of facts. He submits that it is the case of the prosecutrix that by tying her mouth she was forcibly taken away from her house by the accused-appellant at around 6.00 P.M. at a secluded place in the village where she was repeatedly raped upto 10.30 P.M. There are many contradictions and serious discrepancies in her statements which she has stated during her examination under Section 164(5) of Cr.P.C., in the FIR and during her evidence before the Court. Mr. Datta, learned counsel further submits that she has tried to develop the story at every stages of the case. As such, the learned counsel for the appellant has urged to set aside the judgment of the learned Addl. Sessions Judge and the accused-appellant may be acquitted from the charges levelled against him.

On the other hand, Mr. Ratan Datta, learned P.P. has submitted that the version of the prosecutrix should not be discarded. She has categorically stated that she was forcibly taken away. Due to tying on her mouth by napkin she could not raise alarm and, thereafter, she was repeatedly raped for several hours. On the basis of this submission, the learned P.P. has urged to maintain the conviction and sentence as awarded by the learned Trial Judge.

Having due regard to the submissions of the learned counsel of the parties, I have perused the relevant evidence and materials on record.

Firstly, I have gone through the evidence of prosecutrix. As P.W.-5 she stated that about 16 years back in the evening at about 8.00 P.M. when she went outside her house to attend nature's call, at that time, the appellant gagged her mouth by his hand and took her to a jungle near his house and torn her apparels and committed sexual intercourse upon her repeatedly for four to five times up to 10.00 P.M. approximately. Somehow, she managed to escape and rushed to her house and told the entire incident to her parents. On the following day she along with her parents informed the matter to the village Pradhan who advised them to take recourse of law. Thereafter she lodged the ejahar (Exbt-2) against the appellant-Alamgir Hossen. She further stated that her wearing apparels were seized by the police. Being confronted with cross-examination, she stated that in her ejahar she did not mention that she was taken at about 08.00 P.M. by the appellant. Thereafter, she stated that after some days of lodging the FIR she went to Delhi where she got married. She further stated that the house of the appellant is adjacent to her house.

P.W.-8, Smt. Saraswati Barman is the mother of the prosecutrix. She deposed that the appellant had taken away her daughter from her house by tying her month at about 6.00 P.M. and thereafter she was raped. She further deposed that the whole incident was told to her by the prosecutrix. She further stated that the prosecutrix had returned to her house at about 10.00 P.M. and narrated the incident to her. The said witness i.e., P.W.-8 was again examined as witness No.1, wherein she deposed that one day at about 06.00 P.M. the accused had abducted her daughter by tying her mouth and it was told by her daughter-prosecutrix. In her cross-examination, she stated that the case was lodged after five days of the incident because, initially her daughter did not disclose the fact.

P.W.-1, Sunil Barman, is the father of the prosecutrix. He deposed that one day her daughter had returned to the house at about 10.30 P.M. On the next day, he came to learn from his wife i.e., the mother of the victim that her daughter was forcibly taken away to a jungle by the appellant and was raped. In his cross examination, he stated that:-

"It is true that on the date of occurrence my daughter did not tell anything to me or to my wife about the incident. I have not seen the incident. The statement as made by me were heard from my wife. I have not seen any incident".

Next, I have perused the evidence of Dr. Jayanta Roy, who deposed before the Court as witness No.7. In his examination-in-chief he stated that:-

"On examination, I don't find any injury mark or physical assault on her body and so it is not possible to comment whether she had any sexual intercourse or not".

P.W.-4, Dr. Debashish Roy is the forensic expert. He examined the vaginal swab of the victim and stated that he did not find any spermatozoa in the collected swab.

Witness No.8, Sri Pradip Kr. Das is the investigating officer. In his cross examination he stated that:-

"Column No.8 of the FIR does not contain any reason for delay in lodging the First Information Report and alleged incident took place on 24.11.2003 and the information was recorded on 27.11.2003. In 164(5) Cr.P.C. statement the prosecutrix stated that out of fear on that very day she did not tell the incident to her mother and on the following day she had intimated the entire fact to her mother."

On the basis of the aforesaid evidence and materials on record, this Court is to evaluate and examine the evidentiary value of the prosecution witnesses. Firstly, I find force in the submission of the learned counsel for the appellant that the prosecutrix from the very beginning had tried to improve the case. In her ejahar, she stated that she was taken away by the appellant forcibly at around 06.00 P.M. She further stated that she was raped for two times consecutively and she was groaning with pain. She lost her sense and, thereafter, she came back to the house at around 10.30 P.M., when she narrated the details of the incident to her mother. She further stated that at that time, she was profusely bleeding. In her statement made under Section 164 of Cr.P.C., she stated that the appellant had raped her till 10.30 P.M. at night. She had further stated that out of fear on that very day she did not tell anything to her mother and on the following day she intimated the matter to her mother. Here, there is serious discrepancy. I find in her FIR she has stated that on the date of incident itself after returning back to home she narrated the incident to her mother.

In her evidence, she has stated that somehow she managed to escape from the clutches of the appellant and told the entire incident to her parents, but, in the FIR, she has stated that she lost her sense after the commission of rape and she came back to her house when she regained sense. Here also, I find discrepancy in her statement. In the FIR, she stated that she was raped for two times, but, in her evidence, she has stated that she was raped repeatedly for four to five times. In her evidence, she has also stated that she was taken by the appellant at about 8.00 P.M., but, in the ejahar, she has stated that she was abducted by the appellant at 06.00 P.M.

The father of the victim has categorically stated that he came to learn about the incident from the mother of the victim-prosecutrix on the next day. Mother of the victim-prosecutrix in her examination-in-chief stated that on the date of the incident itself, her daughter i.e., the prosecutrix had divulged the incident to her, but, in her cross examination, she has stated that on the next day her daughter-prosecutrix had narrated the incident to her.

If these statements of the prosecutrix and her parents are taken into account coupled with the statements of the doctor, then, it creates suspicious circumstance to the effect that whether the victim was at all abducted by the appellant and was raped. The Doctor had examined the prosecutrix wherein, he did not find any sign of injuries, sexual intercourse or any kind of harassment inflicted upon her as narrated by the prosecutrix. Even if, the statements of the prosecurtrix is believed to the extent that on the following day she along with her parents went to the house of the Pradhan, who advised her to take recourse of laws, but, they did not lodge any complaint to the police station on the next day itself. Naturally, the question arises why they did not lodge any complaint to the police station on the very next date when Pradhan had advised them to take the recourse of law. Noticeably, Pradhan was not examined. In the FIR, there is no explanation as to the cause of delay in lodging the complaint. 20. In my opinion, the genus of the story that she was forcibly abducted and raped repeatedly for four to five times is doubtful and has left enough space to doubt the integrity and trustworthiness of the victim girl. Her evidence appears unreliable at every stages staring from lodging of FIR till her depositions. Though injury is not a sine qua non to convict an accused of rape but, in the circumstances of the present case, the injury to the person or private parts of the victim, seem to be important. In criminal jurisprudence, all the circumstances in the chain must be proved beyond reasonable doubt. There is gulf of difference between the words "must" and "may". After close scrutiny of the evidence, the circumstances by themselves do not form a complete chain to hold the appellant guilty of the charges levelled against him.

For the reasons stated above, I don't find any ingredients of Section 366 and Section 376(1) of IPC. As such, I am unable to reach to an agreement to the findings returned by the learned Addl. Sessions Judge, Gomati Judiciary District. Accordingly, the judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge as afore-stated are set aside and quashed.

In the result, the appeal stands allowed. As he is on bail, the appellant is discharged from bond and surety is also discharged.

Send down the L.C. records.