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Judgment
Heard Mr. S Roy, learned legal aid counsel appearing for the appellant as well as Mr. S Sarkar, learned PP appearing for the State.
By means of this appeal, filed under Section 374(2) of the CrPC, the judgment of conviction and order of sentence dated 12.06.2015 as delivered in Special (POCSO) 0000022 of 2015 by the Special Judge, North Tripura, Dharmanagar have been challenged.
By the judgment dated 12.06.2015 the appellant has been convicted under Section 366 and 376(2)(i) of the IPC and also under Section 4 of the Protection of Children from Sexual Offences Act, 2012 and by the order dated 12.06.2015 the appellant has been sentenced to suffer rigorous imprisonment for five years with fine of Rs.2,000/-, i.d. to suffer further rigorous imprisonment for three months under Section 366 IPC and further rigorous imprisonment for ten years with fine of Rs.5,000/-, i.d. to suffer further rigorous imprisonment for six months under Section 376(2)(i) of the IPC. It has been directed that the sentences shall run concurrently. No separate sentence under Section 4 of the POCSO Act has been ordered in view of Section 42 of the POCSO Act.
The genesis of the prosecution is rooted in the ejahar filed by the victim (name withheld for purpose of protecting her identity) on 15.06.2013. By the said ejahar the victim disclosed that on 14.06.2013 when she went to the vegetable garden at the back of their room to attend nature''s call, one person first pressed her mouth and thereafter wrapped her mouth with her orna. Thereafter, he dragged her to a nearby bush on threatening her with a knife and there that person raped her. From there she was taken to a place in front of the house of Faizur Rehman. After threatening her that if she disclosed the incident to anyone she would be killed, that person released her. On her return home, she disclosed the entire episode to her parents. Even that incident was informed to the village elders but no solution was found. In the ejahar the victim has stated that the victim could recognize that person by his voice. Later on, she could recognize him. She has further stated that for scuffling with the accused her churidar and orna were torn. Since that person pressed her mouth she could not raise any alarm or scream.
On the basis of the said written ejahar filed by the victim, Damcherra PS case No. 12/2013 under Sections 376(2)(i)/506 IPC was registered. On completion of investigation the police filed the final report chargesheeting the appellant. On consideration of the police report cognizance was taken and the case was committed to the Court of the Special Judge, North Tripura Judicial District, Kailashahar, as it then was, and the charge was framed under Section 366, 376(1) of the IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short POCSO). The appellant pleaded innocence and claimed to be tried.
To substantiate the charge, the prosecution adduced as many as 17 witnesses including the victim (PW1). It is to be stated that at the fag end of the written ejahar, the appellant has been described as the accused of the said offence. In the trial, the victim (PW1) has narrated the occurrence by stating that the appellant gagged her from behind and wrapped her neck by the orna. He had a knife in his hand and threatened her to kill if she raised alarm. From there she was taken to a tilla near the house of Alkas. There he undressed her and committed sexual intercourse against her will. When she started weeping and requested to take her back to her house, the appellant threatened her and realized assurance from her that she would not disclose the incident to anyone. In front of the house of Faizur, the victim was released. The village elders advised the victim''s family to take the shelter of law and accordingly they reported the incident to the Damcherra police station. She identified her written ejahar (Exhibit-1). In the cross-examination she denied the suggestion in contrast to what she had stated in the examination-in-chief.
Akratun Bibi, PW2 is the mother of the victim. She has stated what she heard from the victim. That apart, she has stated that the victim was medically examined. She identified the appellant. In the cross-examination, she has stated that the brothers and the family members of the appellant threatened them not to lodge the case.
Safar Uddin, PW3, has stated that in one evening the victim was found missing and the parents of the victim approached him over that issue. They carried out search but nowhere she was found. Later on, he heard from the family members of the victim that the victim had returned. Then he came out of his hut and found that the wearing apparels of the victim were mud-stained. On query, she revealed that the appellant took her forcibly to a tilla near the house of Alkas and raped her.
Md. Main Uddin, PW4, stated in the trial that at about 8 pm in the night of 14.06.2013 he found the brother and uncle of the victim on the road in front of their house. They were talking that the appellant had kidnapped the victim. On his query they informed him that the appellant was found wandering near the house of the victim. The house of the victim is very close to his house. At about 11 p.m. he came to know that the victim was found. When he came out of his hut it was found that the apparels of the victim were mud-stained. The victim told everyone that the appellant raped her and threatened of dire consequences if she divulged the incident to anybody. The victim has further stated that the appellant, Abdul Ali had left her near the house of Faizur Rehman.
Akbar Ali, PW5 is the victim''s father. He stated that the victim was 14 years old and when she went out to attend nature''s call near their living hut she did not return for quite a reasonable time. His wife informed him about the incident. Then he informed the local people and conducted the search. In that night at about 11 p.m. they recovered the victim. The victim stated to him that the appellant, who hails from their village, wrapped her neck by her orna and forcibly took her to a tilla near the house of Alkas Ali and she was raped there by the appellant. The victim was threatened of the dire consequences if she divulged the incident to anyone. However, the victim revealed the entire episode to the village elders but when they could not find any solution the victim lodged the written ejahar in the Damcherra police station.
Jarina Begam, PW6 has also stated that the victim stated that the appellant took her to a tilla where she was raped by the appellant.
Ebadur Rahaman, PW7 has stated in the trial that on hearing that the victim was missing he advised the parents to conduct search. On the next morning he went to the house of the victim and on his query she stated that when she went to attend the nature''s call, Abdul Ali, the appellant, wrapped her neck and face by a cloth and took her to a tilla and raped her.
Abdul Ali, PW8 did not state anything of material importance whereas, Sri Gobinda Reang, PW9 who was the Teacher-in-Charge of the Gandhitilla J.B. School admitted in evidence the Admission Register showing the date of birth of the victim on 03.10.1999 (Exhibit-4) in the trial.
Abdul Aziz, PW10 seized the wearing apparel of the victim on preparing seizure list (Exhibit-3) and he has stated nothing more.
Anil Jamatia, PW11 is the witness of the seizure of the victim''s wearing apparel (Exhibit MO1 series).
Suparna Rani Das, PW12 is the constable of police who escorted the victim for her medical examination. Her vaginal swab was collected in a container and the container was seized on preparing seizure list (Exhibit-6).
Nilranjan Reang, PW13, seized the school certificate of the victim by preparing seizure list (Exhibit-6).
Nandalal Das, PW14 is the seizure witness of the Aadhar Card in the name of the appellant. He has stated nothing which is material for the prosecution case.
Dipankar Debbarma, PW15 is the medical officer who examined the victim and stated as under:
"........ Her hymen was ruptured (old) but there was no sign of recent tear, no laceration blues, swelling and bleeding. I collected her vaginal swab and handed over to police to advise for forensic investigation. There was no foreign pubic hair near her private parts. There was no injury around at the private parts. There was no mark of injury on her breast, cheek. There was no sign of injury on her person. No stain was found in her garment. Urine test was done for determining pregnancy. The result was negative. This is my report, bearing my hand writing and signature, on identification marked Exhibit 8. On that day accused Abdul Ali was also produced before me in c/w this case for determination whether he was capable to perform sexual intercourse under normal circumstances. On examination I found him capable to commit sexual intercourse under normal circumstances. This is the report bearing my hand writing and signature marked Exhibit-9)."
Sadhan Das, PW16 is the witness of seizure of vaginal swab of the victim and the Aadhar card of the appellant. He identified those materials.
Swapan Debbarma, PW17 has stated in trial how he had conducted the investigation, caused seizures of the relevant materials, prepared the hand sketch map and recorded the statement of the witnesses. Further, he had sent the victim and the accused for medical examination. He had given the details of the various seizures. He examined Michael Tripura, Asaddar Ali and Faijur Rahaman but those witnesses were never produced for trial. He has stated that the vaginal swab was sent to the Director, Central Forensic Science Laboratory for forensic examination. He collected the report but that report was not made available in the trial. It is to be noted that the victim was also examined under Section 164(5) CrPC when she has stated that she was taken by the appellant to a tilla owned by one Michael. She was threatened by a knife. The appellant had threatened that if she raised alarm she would be killed. Thereafter, the appellant raped her. The appellant released her in front of the house of Faizur Rahaman. In the statement recorded under Section 164 CrPC she had stated that she was raped twice. The said statement was not relied by the defence for confronting the victim in the trial.
PW15 has categorically stated that there was no recent evidence of forceful sexual intercourse against the victim.
Mr. S Roy, learned legal aid counsel has emphatically submitted that the prosecution has entirely failed to prove the case of rape as the victim cannot be relied inasmuch as the medical evidence stood entirely against her. The narrative the victim had given in respect of applying force on her was not supported by the medical evidence. Mr. Roy, learned legal aid counsel appearing for the appellant has further submitted that the victim cannot be trusted for the reason that it appears that the victim had not disclosed the real incident. There may be a sexual assault but actually the rape was not committed by the appellant.
Mr. S Sarkar, learned PP has fairly submitted that there is a distance between what the victim has narrated and the medical report and as such, a case of attempt to rape has been made out and as such Mr. Sarkar, learned PP has urged that the appellant shall be convicted under Section 376(1) read with Section 511 IPC. But he has strongly submitted that the offence under Section 366 IPC has been clearly proved. Therefore, no interference in respect of the finding of conviction under Section 366 IPC be made by this Court.
Before we embark on appreciating the submission made by the learned counsel this Court would record that the trial court while returning the finding of conviction under Section 376(1) of the IPC has observed that:
"It is evident that the rape on the victim was committed on 14-06-2013 and during his deposition in court the PW told the court that he examined the victim in Damcherra PHC on 16-06-2013 i.e. about 2 days after the occurrence. By this time the victim took bath and also washed her private parts. Therefore blood stain was unlikely after 2 days. The victim was little more than 14 years of age and it is no case of the prosecution that there was scuffling between the accused and the victim or there was an active resistance from the part of the victim. Rather the victim categorically told in her statement under section 164(5) CrPC as well as in her testimony in court that the accused kept her under fear of death at the point of knife while he committed the offence upon her. The injuries as indicated by the medical office, PW 15, were therefore unlikely. PW 15 however confirmed that the hymen of the victim was ruptured. A ruptured hymen obviously corroborates the prosecution case that she was raped."
The said observation has been beyond any evidence. Even the defence did not project that story. Moreover, the victim (PW1) had clearly stated in her ejahar as under:
"...... due to scuffling with the accused my churidar and ''urna'' (a piece of wearing cloth) tore from different parts and as the accused was holding tightly my mouth and I could not make any alarm or scream."
We are in agreement with the submission made by Mr. Roy, learned legal aid counsel appearing for the appellant that the medical evidence has totally discarded rape. Even there was no sign of use of force on any part of the body of the victim. On considering her age, this opinion of the expert cannot be simply brushed aside. What the trial court has observed is wholly without any foundation. Even no question was extended to the medical expert (PW15) in this regard. True it is that in some cases when there is discrepancy between the ocular evidence and the expert opinion, the court has the discretion to ignore the expert opinion and to be guided by the ocular evidence. But this is a case where we are to wholly depend on the testimony of PW1. From what she has narrated, we strongly believe that there would have been some marks or bruises at least on the face and on the back of the victim. Definitely there would have been some marks of violence on the private parts of the victim and inside the vagina. Moreover, withholding of the report of the Forensic Science Laboratory has led us to believe that the report was negative and there was no presence of spermatozoa. The expert has clearly observed that even there was no stain on the apparels of the victim.
We are of the view that even there is no evidence of attempt to rape but there is adequate evidence of assault or criminal force to the victim with intent to outrage her modesty. It is an offence punishable under Section 354 IPC. Since the assault or criminal force with intent to outrage the modesty is a cognate and minor offence in relation to Section 376(2)(i) of the IPC, this Court can return the finding of conviction for committing that offence without framing a formal charge in exercise of its jurisdiction under Section 222 of the CrPC. Accordingly, the conviction under Section 376(2)(i) of the IPC is interfered with and set aside. The appellant is convicted under Section 354 IPC.
However, we are not inclined to interfere with the finding of the conviction as returned under Section 366 IPC. In the circumstances we are also of the view that there is no proof of penetrative sexual assault agaisnt the appellant. But the prosecution has proved the offence of sexual assault punishable under Section 8 of the POCSO Act, 2012. Hence, the petitioner is liable to be convicted under Section 8 of the POCSO Act, 2012.
Having reassessed the circumstances, this Court is of the considered view that the appellant shall suffer the following sentences:
i. Three years rigorous imprisonment for committing offence punishable under Section 366 IPC with fine of Rs.3,000/-, i.d. to suffer further one month''s rigorous imprisonment;
ii. To suffer rigorous imprisonment for three years for committing offence punishable under Section 8 of the POCSO Act, 2012 with fine of Rs.3,000/-, i.d. to suffer further one month''s rigorous imprisonment; and
iii. To suffer imprisonment for three years for commission of offence punishable under Section 354 of the IPC with fine of Rs.1,000/-, i.d. to suffer further 15 days rigorous imprisonment.
The sentences shall run concurrently.
In the result, this appeal stands partly allowed. Needless to say, the detention that has been suffered by the appellant during the investigation and trial shall be set off under Section 428 CrPC.
This Court has on the basis of the records found that the appellant has already suffered the sentences including the default sentences in the manner as stated above. In view of that, the appellant shall be set at liberty forthwith, if he is not wanted in connection with any other case. Send down the LC Records forthwith.