Nirmalendu Kar @ Titan And Ors vs State Of Tripura

[1] This appeal arises from the judgment of conviction dated 23.09.2016 delivered in ST 51(NT/D) of 2013 by the Sessions Judge, North Tripura, Dharmangar. The appellants have been convicted under Sections 376 (2)(g) of the IPC and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.50,000/- with default stipulation for commission of gang rape. It has been directed that if the fine money is realized, it shall be paid to the victim as compensation.

[2] The prosecution against the appellants was initiated on the basis of a complaint (Exbt-2) filed by one Jatanmani Reang (PW-2) on 04.08.2012 revealing to the officer-in-Charge, Kanchanpur Police Station that his daughter aged about 17 years (the name withheld for protecting her identity) was raped by 3 (three) local boys, namely Sayan Reang, Nirmalendu Kar alias Titan Kar & Mohitosh alias Danga on 26.06.2012. The victim‟s friend, namely Mampi came to their house at about 10 am and took his daughter to the market. From there she was taken by the boys towards Manu-Mampui road for picnic. The victim was made to consume alcohol by those boys and both the girls were gang-raped by three boys. The act of rape was videographed and later on distributed to their friends. The victim returned home at about 4 pm. She reads in class X in the local school.

[3] But in the later part of the complaint, the informant has stated that the other girl, Mampi is the accomplice of the perpetrator of the crime. Based on the said complaint, Kanchanpur PS Case No.56/12 under Section 376(2)(g) of the IPC and section 67(b) and Section 67 (B) (b) of Information Technology Act, 2000 was registered and taken up for investigation. After completion of the investigation, the final police report was submitted in the court and the police papers on compliance of provision of section 207 of the Cr.PC was committed to the court of the Additional Sessions Judge, North Tripura, Dharmanagar, now the Sessions Judge, North Tripura, Dharmanagar. The charge was framed after taking cognizance under section 376(2)(g) and section 67(B) and Section 67(B)(b) of the Information Technology Act, 2000 read with Section 34 of the IPC.

[4] The appellants pleaded not guilty and claimed to be tried. In order to substantiate the charge as many as 14 witnesses including the victim (PW-1) were examined by the prosecution. In addition the prosecution introduced 18 documentary evidence including medical examination report of the victim (Exbt-5) and the birth certificate of the victim (Exbt-18) etc. After recording the prosecution evidence, the appellants were separately examined under Section 313 of the Cr.PC when they reiterated their plea of innocence by stating that the evidence as brought against them are all fabricated and concocted. It has been stated that the accused, Sayan Reang, has been tried by the Juvenile Justice Board as on inquiry he was found to be juvenile. After appreciation of the evidence, the appellants were acquitted from the charge framed under Sections 67 (B) and Section 67(B)(b) of the Information Technology Act, 2000. However, they have been convicted under Section 376(2)(g) of the IPC and awarded punishment as stated above.

[5] Ms. R. Purkayastha, learned counsel appearing for the appellant No.1 has submitted that the appellants denied their involvement in the offence punishable under Section 376 (2) (g) of the IPC, Section 67(B) and Section 67(B) (b) of the IT Act, 2000 as there was no tangible evidence involving the appellants. In this appeal, the appellants have challenged the finding of conviction under Section 376 (2) (g) of the IPC contending vehemently that narrative of the victim is hardly believable inasmuch as she did not disclose the purported occurrence to anyone for long time and while she disclosed she was made to „disclose‟ under serious pressure.

[6] According to Ms. R. Purkayastha, learned counsel appearing for the appellant No.1, even if the narrative of intercourse is believed that to be treated as sexual intercourse with consent. Thus, the finding of conviction is grossly erroneous and unsustainable.

[7] Mr. Alik Das, learned counsel appearing for the appellant No.2 has projected the resembling analogy. Mr. Das, learned counsel appearing for the appellant No.2 has submitted that the occurrence took place on 26.06.2012 whereas the information was received after more than month i.e. 04.08.2012. That apart, the disclosure made in the information does not tally with the testimony as recorded during the trial. It has been stated in the complaint that the occurrence of rape was videographed and it was circulated to the friends of the perpetrator.

[8] PW-1, the victim has stated that she was requested by the appellants and one Sayan Reang to accompany them to picnic and she agreed. The appellants and Sayan Reang took her to the jungle being accompanied by her friend, Mampi. They took the victim to Mitrajoy para and there those persons forcibly enjoyed "sex" with her. She has stated that Mampi took their side. Mampi and Titan left suddenly the place of occurrence. Subsequently, Sayan and Mohitosh brought her in the road side and left her. She has stated that when they enjoyed sex with her she could not control herself as "something was administered" mixing with aspirated drink (Sprite). She has stated that she did not know whether the act was videographed and uploaded in the internet. After „2 to 3 months‟, when the matter was known to everybody, she was asked by her parents and then she had disclosed those facts to her parents. She has stated her month of birth as December in the year 1996. She has vouched that she did make statement before the Judicial Magistrate and she identified her signature on such statement.

[9] In the cross-examination she has stated that she had sense and could speak. She expressed her doubt whether Sayan Reang Videographed the Act. The place of occurrence was a solitary place, there was no other person. She admitted that there was a picnic. Her statement at this point remains unexplained as except the three accused, Mampi and herself there was none. In the cross-examination, she has stated that it is not true that the appellants did not enjoy sex with her. She denied suggestions that the appellants were intoxicated.

[10] PW-2 lodged the complaint. He has stated that one day one police officer visited him and showed him some nasty films relating to her daughter (PW-1). On his query, the victim told him that out of shame, she did not disclose the actual facts to him. On serious interrogation, she disclosed the incident. Then, the information was lodged to the police station. The complaint was written by one Paltan Paxan Reang (PW-3) and he lodged the information. He identified the complaint (Exbt-2) and his signature.

[11] PW-3, Paltan Paxan Reang claimed during the cross-examination that the „victim‟ was object of the said nasty video clip. A lot of people visited their house having reacted to the said circulation. In the trial, PW-3 has stated that he did not know Sayan Reang. He has further stated that his statement was not recorded by the police during the investigation.

[12] PW-4, Daharam Reang, who was a member of Kanchanpur Gaon Sabha at the relevant point of time, has stated that on enquiry he and the person who accompanied him came to know from PW-2 that four persons had committed that offence. In the cross-examination, PW-4 has stated that though he has stated in the examination in chief that one nasty video clip was circulated involving PW-1, when his attention was drawn to a part of the statement he made purportedly in that regard to the investigation officer, he denied to have made such statement.

[13] PW-5, Dankirung Reang, could not be recorded in the trial as she cannot understand any language beyond Reang (the dialect). It appears that the trial court did not take any initiative to get a translator of that dialect. That is a failure of duty for the trial court.

[14] PW-6, Sukanta Molsai, is one of the recipients of the pornographic video clip that was having circulated involving the victim. He is also a member of Salpaha Club of the locality. Being annoyed, he visited the house of the informant (PW-2). When he asked PW-2 about the occurrence on 04.08.2012, PW-2 expressed his total ignorance in the matter. Then the victim was called in his presence. PW-2 put huge pressure on her to disclose what had happened. Then, According to PW-6 she had disclosed that in the jungle along Manu-Mampui road, she was taken to picnic at the instance of one Mampi (PW-13), she was forced to consume liquor and after that Danga, Titan and Sayan Reang committed rape on her and videographed the occurrence. Later on, that was uploaded in the internet. Then PW-6 asked the informant whether he would lodge the complaint to the police. PW-2 agreed and both of them went to Kanchanpur Bazar and lodged the complaint in the Police Station. He identified in the dock Titan and Danga.

In the cross-examination, he reiterated what he heard from the victim in respect of forcing her to consume alcohol but no such statement is available in his previous statement recorded by police. He has categorically stated in the cross-examination that from the video clip it can be found that Sayan Reang took the video film. But, the CD prepared from the internet was not admitted in the evidence.

[15] PW-7, Kumindra Reang has stated that on 26.06.2012 at about 10 am he had seen Titan, Danga, Mampi and the victim were proceeding with two bikes. At that time, he was at Kanchanpur motor stand. On 04.08.2012, he received "one video containing bad video" of the victim and other two accused Titan and Danga. He has stated that he did not see Sayan Reang on the bike.

[16] PW-8, Dharmendra Reang has been declared hostile as he was not supporting the prosecution case and he was cross-examined by the prosecution.

[17] PW-9, Jayanta Nath is the seizure witness of the motor bike bearing registration No.TR-02-7542 belonging to one of the accused, namely Mohitosh Mohanta and he has identified his signature on the seizure list dated 01.11.2012 (Exbt-4).

[18] PW-10, Dr. Sucharit Chakma who was posted as the Medical Officer in the Kanchanpur Sub-Divisional Hospital on 04.08.2012 examined the victim in connection with case No. 56/12 on requisition of the police to give the opinion whether the victim was subjected to sexual intercourse to determine and the age of the victim. On examination, he gave his opinion in the format. According to him, the hymen was absent and it was old. There was no marks of fresh hymenal injury. That was a sign of sexual intercourse. PW-10 briefly explained that by that opinion he meant that the victim was habituated with the sexual intercourse. He did find no marks of violence on her body. For determination of her age, she was referred to RGM Hospital. In the vaginal wall, there was no injury, not even on external part of the body. He had collected the vaginal swab. He has also examined two accused, out of them one is Mahitosh Mahanto. On examination, he found that both the appellants were capable of sexual intercourse. He has identified his reports (Exbts-5, 6 and 7). The police seized the public hair collected from the accused persons and the vaginal swab collected from the victim. He was not cross-examined by the defence.

[19] PW-11, Nabajoy Reang has stated nothing of material importance.

[20] PW-12, Lalnun Vuli, Assistant Headmistress of Rabindranagar, has stated that she heard the incident relating to the victim but from her, the police did not seize any record.

[21] PW-13, Pranita Debnath alias Mampi aged 18 years turned hostile and she was cross-examined by the prosecution. She denied whatever was recorded by the police during her examination under Section 161 of the Cr.PC. She denied the entire occurrence by stating that the entire story is baseless.

[22] PW-14, Gamanjoy Reang, the investigating officer of the case has briefly narrated how he had conducted the investigation after the FIR was lodged. After receiving information (Exbt-2), according to him, the accused persons confessed their guilt. Such evidence is not admissible. The father of the victim (PW-2) gave him the compact disc (CD) containing the pornographic video clip. PW-2 has stated that Sayanjoy Reang had videographed the occurrence. He had seized the compact disc by preparing the seizure list (Exbt-13). The place of occurrence is 15 km away towards the west from Kanchanpur police station. He prepared the site map.

The mother of the victim, namely Dantirung Reang was also examined. He made the victim examined under Section 164(5) of the Cr.PC by the Judicial Magistrate. Sayanjoy Reang told him that he lost his mobile phone. His motor bike was seized. The motor bike of the other accused, namely Mohitosh Mohanta was seized by him. He collected the medical report. Since Sayanjoy Reang was juvenile, he submitted report before the Juvenile Justice Board. He has recorded the statement of Sukanta Malsoi and Pranita Debnath alias Mampi. He denied most of the suggestions made by the defence including that the scribe used to make the pornographic film.

[23] Having scrutinized the entire evidence, it is not clear who seized the certificate of birth (Exbt-18). It appears that neither the victim (PW-1) nor her father (PW-2) who informed the incident did submit the said birth certificate. The trial judge has categorically observed that it was his predecessor Judge who had, considering the birth certificate as a public document, admitted the same in the evidence as Exbt-18. It

[24] Maharashtra vs. Chandraprakash Kewalchand Jain appears that on 08.10.2015, the said birth certificate was produced by the public prosecutor. However, the said birth certificate has not been given any weight as neither PW-2 nor victim‟s mother proved the date of birth. True the birth certificate has been issued by the statutory authority. If the statutory authority did not disclose based on what the date of birth had been recorded in the said certificate, hardly, its content can be accepted in the evidence, though under Section 35 of the Indian Evidence Act, the certificate can be admitted in the evidence.

In this regard, the trial court has referred a decision of this court in Nakul Sharma vs. State of Tripura and Ors. (Judgment in CRL.A(J) 26 of 2016). The date of birth of the victim has not been proved, but the father (PW-2) has made a statement that her daughter was 17 years of age. At that point of time, the consenting age was 16 years inasmuch as the consenting age has been increaded by Criminal Law (Amendment) Act, 2013 w.e.f. 03.02.2013, whereas the occurrence took place on 26.06.2012.

[24] Mr. S. Debnath, learned Addl. PP appearing for the state has submitted that the testimony of the victim is adequate enough to convict the appellants. He has referred two decisions of the apex court. In State of reported in (1990) 1 SCC 550 the apex court has observed as under:

"16.A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circum- stances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:

"It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."

With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.

17.We think it proper, having regard to the increase in the number of sex-violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the Western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally commit- ted on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity." [Emphasis added]

[25] In State of Punjab vs. Gurmit Singh and Ors. reported in (1996) 2 SCC 384, the apex court has succinctly laid down the law by enunciating as under:

"as the court finds appreciating the evidence of a prosecutrix may look for assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossiled formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable." [Emphasis added]

Thus in the Judgment of conviction, Mr. Debnath, learned PP has submitted that no interference is warranted as the objections are unsustainable..

[26] On a close scrutiny of the evidence, this court finds that the disclosure was never made by the victim voluntarily. Only on serious pressure, she disclosed the occurrence. PW-7 is a vital witness who has seen the victim and two accused. The victim and Mohanta were proceeding by riding two bikes towards Pechartal and at that time he (PW-7) was at the motor stand. He did not notice anything unusual. There is no element of picnic. Those four persons reached to a lonely place inside a jungle, even the victim did not suspect the intention throughout. She, has stated that "she was forced to consume liquor but nowhere she has stated that she tried to resist it.

Later on, according to her, the said occurrence took place and that was videographed. There are certain discrepancies about the disclosure also. According to PW-6, the disclosure was made before him. But, PW-2 stated that the victim disclosed to him only. He did not tell about the disclosure to PW-6. Even though the victim has stated that two accused forcibly enjoyed sex and raped her but no injury was found by the examining medical officer, PW-10, even though the examination took place after a long period. But what the medical officer (PW-10) opined that she was habituated to sexual intercourse is of more value. It appears to protect her dignity and the prestige of the family, she provided the said narrative, else after such „trauma‟ if it were, it is expected that at least she would have confided to her mother but she did not. Despite the specific allegation, PW-13 was not made accused in the investigation. It demonstrates lack of fairness in the investigation.

[27] All these have created a serious suspicion about the nature of occurrence. It is unlikely that a mature girl if raped will not confide the occurrence even to her parents. Thus her consent to the entire occurrence cannot be ruled out and that is the aapparent reason of non-disclosure at any point of time. As such, the appellants are entitled to benefit of doubt.

Hence the impugned judgment and sentence of conviction and sentence are set aside. The appellants be set at liberty forthwith, if not wanted in any other case.

In the result, the appeal stands allowed.

Send down the LCRs forthwith.