Chanchal Deb vs State Of Tripura

Akil Kureshi, CJ

This appeal is filed by the accused who has been convicted for offences punishable under Sections 366 and 376 of IPC by the learned Sessions Judge, North Tripura, Dharmanagar by the impugned judgment dated 6th May, 2016. He has been sentenced to rigorous imprisonment of 10 (ten) years for offence under Section 366 of IPC and imprisonment for life for offence under Section 376 of IPC.

Prosecution version is as under:

The sister of the complainant (herein after to be referred to as the victim) was a mentally challenged young lady. At the time of incident she was aged about 21 years. The accused aged about 38 years was residing in the same neighbourhood as that of the victim. Some two months before the date of filing of the FIR which happened to be 29.07.2013, the accused had taken the sister of the complainant to an isolated spot near her house where he forcibly had sexual intercourse with her. The victim became pregnant which brought the incident to light before the members of the family who after inquiring from her lodged the said complaint.

The complainant (PW-2) Baltu Dey deposed that the house of the accused is situated 2 or 3 houses away from his house. He had lodged the FIR in which he had alleged that the accused had committed rape on his sister.

The most important witness is the victim girl herself since she is only one who had personal knowledge about the person who had intercourse with her. She was examined as PW-1. In her deposition she stated that the accused had forcibly undressed her and thereafter committed sexual intercourse. She thereupon started crying in pain. The accused had threatened her not to reveal this incident to anyone else. Her mother was ill and bed ridden. Her father was not alive. She became pregnant upon which she was taken to a hospital for operation. Her statement was recorded by the Magistrate. She stated that the accused was a neighbour.

In the cross-examination she stated that the offence was committed outside the house. She was cleaning utensils when the accused came and dragged her to a nearby forest area. She did not remember how many times he had raped her. She did not inform anybody about this because the accused had threatened her that if she revealed it, the police will catch her and her mother also. After the incident she did not have periods (menstruation) which started after the operation. She tried to resist the accused but he did not stop.

At the end of the recording of the deposition, the learned Judge made his remarks about his impression of the demeanour of the witness, which remarks read as under:

"Remarks respecting demeanour of witness:-Although the witness was major in age, oath was not administered to the witness because she was found incapable of understanding the meaning of the oath. Her conduct appeared to me to be very childish but she cannot be said to be a lunatic or otherwise incompetent to testify. She required no help to understand the meaning of the questions put to her. She replied both the questions spontaneously and appeared to me to be a very truthful witness."

PW-3 Sabitri Dey, mother of the victim stated in her deposition that sometime back when her married daughter Sipan Dey had come to her matrimonial home she found out that her younger sister i.e. the victim was not getting her regular periods. Thereupon the victim girl was taken to a nearby Primary Health Centre where it was revealed that she was carrying pregnancy of about two months. There her pregnancy was terminated. After this the victim told her about the accused having dragged her out of the house and having committed rape on her. She stated that her daughter was mentally challenged and in her behaviour she was more child like.

PW-10, Sipan Dey, elder sister of the victim deposed that the victim was mentally challenged and lived with her parents. She went to her parental home on 15.07.2013. She found that the victim was vomiting frequently. She apprehended that the victim may be pregnant. Upon some firm inquiries the victim revealed to her that the accused had committed sexual intercourse with her. The victim was thereafter taken to the hospital. She was then taken to a Primary Health Centre on 28.07.2013. The doctors declared that she was carrying pregnancy of two months. Her pregnancy was terminated there.

Doctor Arghamallya Debbarma, PW-7 was a Medical Officer-in-Charge of Brajendra Nagar PHC at the relevant time. The victim was brought to him on 28.07.2013. The patient told him that she was not menstruating since two months. Her urine test revealed that she was pregnant and there was incomplete attempt of abortion due to which she was bleeding profusely.

In the cross-examination, he stated that the girl was not in a physical state to answer any queries.

PW-11, Swarna Debbarma was the Investigating Officer. She was In-charge of Dharmanager Women's Police Station. She gave the detailed steps taken by her during the course of investigation. In particular she referred to the recording of statement of the victim by the Magistrate under Section 164 of CrPC.

In her cross-examination she stated that she could not ascertain the precise time and date of the incident. She explained that since the victim was mentally challenged, it was not possible to gather such information.

The accused was also subjected to physical examination. The prosecution had collected his seminal samples. In her statement before the Magistrate under Section 164 of CrPC the victim had stated that the accused had taken her to a nearby forest several times where he had forcibly raped her. He had threatened her not to reveal this to anyone or else the police would arrest her. She had become pregnant. Her sister and other relatives had taken her to Dharmanagar hospital where the pregnancy was aborted.

This in the nut shell is the relevant evidence. We have not referred to some of the witnesses who are peripheral and whose evidence is therefore not entirely relevant.

Few things immediately become clear from such evidence on record. Firstly that the victim was mentally challenged young lady of about 21 years of age. The family members learnt on or around 13th of August, 2013 that she was carrying pregnancy. It appears that initially a crude attempt was made to abort such pregnancy. When this did not succeed, the family members took the victim to a Primary Health Centre where the abortion was completed. Thus, clearly the victim girl who was of unsound mind, was subjected to sexual inter course, possibly multiple times.

Another important aspect which immediately emerges from the material on record is that in the context of the involvement of the accused in commission of the offence, the testimony of the victim herself is most crucial. She is the only one who had personal knowledge about the person who had sexual intercourse with her, with or without her consent. In this context, particularly considering her limitation of mental abilities, her evidence shall have to be assessed. In her deposition, we may recall, she had attributed to the accused the role of having dragged her out of her house, taking her to a nearby forest area where he had forcibly committed sexual intercourse with her. She explained that she did not reveal this incident to anybody in the family since accused had threatened her stating that she and her mother would be taken away by the police. She pointed out that her mother was seriously ill and bed ridden. Her father had expired.

The victim has thus clearly involved the accused an accused alone in commission of the said offence. The question is, looking to her vulnerability, to what extent on her sole testimony conviction of the accused can be sustained. In this context, we may attempt to ascertain her ability to understand the nature of the incident and the consequences of her accusations. In her deposition she had revealed that she had become pregnant upon which she was taken to a hospital for operation. She also stated that her statement was recorded by the Magistrate. She also revealed that after the incident she had stopped menstruating which started again after operation was performed on her. All these are indications of her reasonable understanding and comprehension of simple facts of life. Her mental growth may have been retarded and as has been recorded by the learned Judge and stated by her mother, she may be more child like in her behaviour, nevertheless she did not exhibit total lack of understanding of simple things. For example, she pointed out that after the incident she had become pregnant. She declared that she was operated upon. She revealed that after the incident she had stopped menstruating and restarted menstruating after the operation was performed on her. Thus, there are intrinsic indications in her deposition revealing that she had reasonable understanding of ordinary events around her. Significantly, the learned Judge recording her deposition had made the remarks that though her conduct appears to be more child like, she cannot be stated to be a lunatic or otherwise incompetent to depose. She required no help to understand simple questions put to her. She replied such questions spontaneously and appeared to be a truthful witness.

In the nut shell, her deposition cannot be discarded merely on the ground that she is mentally challenged. Her deposition is otherwise clear and consistent. She attributes the role of having committed forcible sexual intercourse on her to the accused. Her evidence is corroborated by the evidence of other witnesses. On account of the intercourse she had become pregnant. When her sister PW-10 came to the matrimonial home she learnt about this. The victim revealed the truth to the sister on being questioned. PW-2, the complainant, the brother of the victim also supports this version so also PW-3, the mother of the victim.

The medical evidence, particularly, the deposition of PW-7, Dr. Debbarma also supports the prosecution version. The victim was taken to the Primary Health Centre on 28.07.2013. There was clear attempt at aborting the foetus. To this doctor also the victim had stated that she was not menstruating for past two months. Her urine test established pregnancy.

In his statement under Section 313 of CrPC the accused had alleged that there was a dispute about land between him and the complainant side and therefore, he was being falsely implicated. However, no such suggestion was made to any of the witnesses by the defence in the cross-examination. There was thus no suggestion on the part of the defence as to why he was being falsely implicated by the witnesses, particularly allowing the real culprit to escape the consequences. The defence counsel also argued that there was unexplained delay in filing the FIR. In this case however, the family members were not aware of the incident till they realized that the girl was pregnant. Soon thereafter the complaint was filed. There was thus no delay in filing FIR.

The victim was a person of unsound mind. Quite apart from her allegations that the accused had committed forcible intercourse with her, the question of consensus sexual intercourse becomes wholly irrelevant. The possibility of the accused having taken advantage of a young lady with limited understanding on multiple occasions cannot be ruled out. Be that as it may, the charges of offences punishable under Sections 366 and 376 of IPC are duly established and correctly held to have been proved by the Sessions Court. Conviction of the accused for the said offences is, therefore, correctly recorded.

Coming to the question of sentence, awarding life sentence would undoubtedly be harsh. There is no criminal antecedent of the accused. He is a married man with a family to support. Considering such facts and circumstances, his sentence for offence under Section 376 of IPC is reduced to 10 (ten) years of rigorous imprisonment.

In the result, conviction of the accused for offences under Sections 366 and 376 of IPC is confirmed. His sentence for offence under Section 376 of IPC is reduced to 10(ten) years of rigorous imprisonment. The rest of the sentences, fine and default sentence remain unchanged. The judgment of the trial Court is modified to the above limited extent.

The appeal is disposed of accordingly. Record of proceedings to be transmitted to the trial Court.