Sri Abhimanya Tanti @ Mannya vs The State Of Tripura

[Dr.T. Amarnath Goud, J]

[1] Heard Mr. P.S. Roy, learned Legal Aid Counsel appearing on behalf of the appellant. Also heard Mr. Raju Datta, learned PP representing the State.

[2] The present appeal is filed under Section 374 of Cr. P.C against the impugned Judgment of conviction and sentence dated 15.02.2018 passed by learned Session Judge, North Tripura District, Dharmanagar in case No. ST/T-1/18 of 2017 whereby the Appellant has been convicted under section 457/376(1) of Indian Penal Code and sentenced to suffer Rigorous Imprisonment for a period of 05(five) years and to pay a fine of Rs.5,000/(Rupees five thousand) only for the offence under section 457 of the India Penal Code and in default of payment of the same to suffer R.I imprisonment for a term of 03(three) months. Learned court below further sentenced the Appellant Sri Abhimanya Tanti@ Manna to suffer R.I for 10 (Ten) years and to pay a fine of Rs.10,000/for the offence under section 376(1) of the Indian Penal Code and in default of payment of fine, further to suffer R.I for another 6 months and both the sentences shall run concurrently.

[3] The prosecution story in brief as enumerated before the Court below is that the victim lodged an ejahar on 16-07-2012 before the O/C, Dharmanagar PS against the accused Abhimanya Tanti @ Mannya, a relative of her husband alleging that the said accused on 15-07-2012 committed housebreaking into her hut at about 10 to 10.30 pm while she was sleeping alone in her hut committed rape on her person forcefully and threatened her that he would kill her if she disclosed the incident to other. On receipt of the ejahar, the O/C, Dharmanagar P.S. registered Dharmanagar PS case no. 104/12 u/s. 457/376/506 of IPC against the accused Mannya Tanti on 16-07-2012 at about 20:15 hours and endorsed the case to an SI for investigation and after investigation the IO submitted charge sheet against accused Sri Abhimanya Tanti @ Mannya, appellant herein under sections 457/376/506 of IPC.

[4] The accusation in brief as revealed from the charge sheet was that the victim was the second wife of her husband Miju Tanti and at the relevant date and time she was alone sleeping at her hut and her husband was sleeping in a neighbouring hut along with his first wife. About 15/16 days earlier from the date of the incident newly born baby of the victim expired within one month of its birth and as such she was not mentally and physically fit. On the crucial date her husband brought Abhimanya Tanti @ Mannya, a relative of her husband being brother in law. On that very date after taking dinner the victim went to her hut for sleeping alone. At about 10 to 10:30 pm, Abhimanya Tanti @ Mannya by opening the bamboo made door committed house trespass into her hut and forcefully raped her and also threatened her that he would murder her if she published the incident. On that night instead of calling her husband and other members nobody came out from the neighbouring huts where her husband was sleeping with his first wife and thus out of fear she did not go out of home to inform others.

[5] On receipt of the charge sheet since the case was exclusively triable by the court of sessions, learned Judicial Magistrate, First Class, Dharmanagar committed the case to the Court of Sessions Judge, Dharmanagar, North Tripura and on receipt of the case on commitment, charges against accused Sri Abhimanya Tanti @ Mannya were framed under sections 457/376(1) of the Indian Penal Code. The contents of the charges were read over and explained to the accused person. He pleaded not guilty and stood the trial. In total 06 witnesses were examined by the prosecution to prove the charges against the accused person. The accused person was examined under section 313 of CrPC. His case was of total denial contending that he was falsely implicated but, he declined to adduce any evidence on his defence.

[6] Thereafter, learned Court below upon hearing the arguments advanced by both the sides and on perusal of material evidence on record, has decided the case by its judgment and order dated 15.02.2018 passed in Case No. ST/T-1/18/2017 and sentenced the accused persons, in the following manner:

[7] Aggrieved by the aforesaid impugned order dated 15.02.2018 passed by the learned Court below, the appellant herein has preferred the instant appeal seeking the following reliefs:

[8] Mr. P.S. Roy, learned Legal Aid Counsel appearing for the appellant submits that the learned trial Court below ought to have held that the alleged presence of convict appellants at the alleged place of occurrence, alleged participation of the appellants in the commission of alleged offence are absolutely doubtful and on the basis of such evidence, the appellant could not be convicted for the alleged offence. He, further submits that the learned trial Court relied on the improved versions of all he P.W.s illegally and on the basis of such improved versions, convicted and sentenced the appellant only on surmise and conjecture.

[9] Mr. Roy, learned Legal Aid Counsel further contends that the PW-5, Sri Dipak Ch. Nath deposed before the trial court that on 17.072012 at about 12.30 PM he received vaginal swab sample from Dr. Bireswar Saha, Medical officer, Dharmanagar for examination and in the Laboratory of the hospital he examined the patient but spermatozoa could not be seen. He submitted his report on that date which he proved as Exhibit-1. But the learned trial Court failed to appreciate the same without considering the evidence of expert. It is also contended that P.W1, the victim deposed that she could not recollect the actual year of the incident. She also said that she could not recollect whether she put her thumb impression in the FIR or not. She said that she had settled up the dispute since, accused is a relative of her husband. In the cross examination she said that her husband where he along with his first wife slept was situated about 20 cubics away from her hut. According to the learned Legal Aid Counsel strangely, she did not cry and the police also did not take the evidence of her husband and his first wife. It is further contended that there have been some contradictions between the evidence of P.W1 and 161 report of police. He, further submits that in the present case there are no any eye witnesses, so, it is very difficult to decide whether the appellant is guilty or not, but the learned Trial Court failed to appreciate the same. Learned Legal Aid Counsel, therefore, urges this Court to set aside the impugned order dated 15.02.2018 passed by the learned Court below.

[10] On the contrary, Mr. Raju Datta, learned P.P. appearing for the State opposes the submissions made on behalf of the appellants. He contends that learned trial Court below on perusal of all the relevant records and examining all the relevant witnesses has decided the case by its order dated 15.02.2018 in case No. ST/T-1/18/2017 and the same should not be interfered with. He, therefore, urges this Court to dismiss the instant appeal filed by the appellant.

[11] Heard the submissions made at the Bar. Perused the material evidence on record.

[12] Upon hearing the submissions made at the Bar and on perusal of necessary material evidence on record, this Court finds that there remained some questions unanswered from the side of prosecution to establish that undoubtedly, the accused is guilty. Exhibit.1 i.e. Veginal Swab Examination Report shows that no spermatozoea was seen. In the case in hand, the accused appellant is the brother in-law of the husband of P.W.1(the victim). In cross-examination P.W.1 stated that she had settled up the dispute since, the accused is her husband’s relative. Thus, it has not been cleared whether there had been any consent between the victim and the accused or not. However, statements of PWs No.2, 3 & 4 support the victim’s statement that the incident of rape upon the victim was informed to them by her. PW 2 is the wife of the victim’s brother, PW 3 is also wife of another brother of the victim and PW 4 is the brother of the victim before the trial Court.

[13] It is brought to the notice of this Court that the accused has already undergone imprisonment for a substantial period of more than eight and half years. The learned Pubic Prosecutor has not been able to point out any adverse circumstance arising during the period of incarceration warranting the continued imposition of the remaining sentence.

[14] Having regard to the period of imprisonment already undergone and the facts and circumstances of the case, this Court is of the considered view that the ends of justice would be met if the sentence of imprisonment is reduced to the period already undergone by the appellant. Accordingly, the sentence of rigorous imprisonment imposed upon the appellant by the impugned order dated 15.02.2018 in case No. ST/T-1/18/2017 is modified and reduced to the period of imprisonment already undergone. Hence, the appeal is allowed to the aforesaid extent. The appellant shall be released forthwith, if his detention is not required in connection with any other case.

[15] Resultantly, the instant appeal is hereby allowed to the extent as indicated above and accordingly the same is disposed of. In the event, if the accused appellant has already been released considering the remissions, the same shall hold goods and the instant appeal shall automatically stand closed in that case. As a sequel, miscellaneous application(s), pending if any, shall also stand closed.