Shri Haricharan Munda @ Chuka vs The State Of Tripura
2021 Latest Caselaw 562 Tri

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                     HIGH COURT OF TRIPURA
                           AGARTALA
                      CRL.A.(J) NO.30 OF 2019

   Shri Haricharan Munda @ Chuka,
   S/O Shri Mangal Munda,
   Resident of Mundapara, Betaga,
   P.S Sabroom, District-South Tripura.
                                                     ----Appellant(s)
                                   Versus
   The State of Tripura,
   represented by the Secretary,
   Home Department,
   Government of Tripura.
                                                   ----Respondent(s)

   For appellant(s)            :      Mr. D.J. Saha, Advocate
   For respondent(s)           :      Mr. Sumit Debnath, Addl. P.P.

   Date of hearing             :      28.04.2021
   Date of delivery of
   Judgment & Order            :      12.05.2021
   Whether fit for reporting   :      YES

        HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
            HON'BLE MR. JUSTICE ARINDAM LODH

                      JUDGMENT & ORDER

(Arindam Lodh, J)

This criminal appeal is directed against the judgment

and order of conviction and sentence dated 16.03.2019, passed

by the learned Special Judge, Belonia, South Tripura, in case

No. Special 9 (POCSO) of 2016, whereby and whereunder the

appellant has been convicted for commission of offence

punishable under Sections 451 and 376(2)(i) of IPC as well as

under Section 6 of POCSO Act and sentenced him to suffer R.I.

for life and also to pay a fine of Rs.5,000/- under Section 6 of

the POCSO Act/Section 376(2)(i) of IPC. He has also been

sentenced to suffer R.I. for six months under Section 451 of IPC

and to pay a fine of Rs.500/-, in default to suffer further RI for

seven days. It was directed that both the sentences shall run

concurrently.

2. The case of the prosecution, as projected by the

learned Special Judge, is reproduced here-in-below:

"On 10.02.2016 at around 2 p.m. the wife of

the informant returned to her house from the house of

Ranjit Mohan Tripura where she went to attend an

invitation along with her victim child, but entering into

her dwelling hut she found that the accused Haricharan

Munda alias Chuka was cleaning blood from the legs

and private parts of the victim girl and the victim was

lying on the ground. The mother of the informant then

asked the accused, what happened? The accused

person replied that he did not know anything. But while

the mother of the victim child asked her minor victim

daughter then she replied that the accused person

brought her from the house of Ranjit Tripura to her

room and entered his penis to her vagina. In the

meantime the accused person fled away from there.

The wife of the informant saw that there was blood

stain in the panty of the victim girl and blood was

coming out from her private part. Then the mother of

the victim called on some neighbours who assembled in

the house of the informant and found the victim child

bleeding by vagina. The victim was taken to Kalachara

hospital and from there she was referred to Sabroom

hospital."

3. Depicting this episode, the informant-father of the

victim lodged ejahar with the O/C, Sabroom P.S. which was

registered as Sabroom P.S. Case No.8/16, under Sections 451

and 376(2)(i)(j) of IPC and under Section 6 of the POCSO Act.

4. Being endorsed by O/C, S.I. Khokan Saha took up

investigation and during investigation the victim and her mother

were produced before a Magistrate and their statements under

Section 164(5) of CrPC were recorded. The accused-appellant

was arrested. The investigating officer recorded the statements

of the available witnesses under Section 161 of CrPC, arranged

for medical examination of the victim-girl. Blood samples were

sent to the State Forensic Science Laboratory. On completion of

investigation, the I.O. filed charge-sheet against accused Sri

Haricharan Munda alias Chuka for commission of offence

punishable under Sections 451 and 376(2)(i)(j) of IPC and

Section 6 of POCSO Act.

5. At the commencement of trial, the learned Special

Judge had framed charges against the accused-appellant under

Section 451 and Section 376(2)(i) of IPC and under Section 6

read with Section 5(m) of Protection of Children from Sexual

Offences Act, 2012.

6. In course of trial, prosecution examined as many as

29(twenty nine) witnesses including the victim. Thereupon, the

accused person was examined under Section 313(1)(b) of CrPC.

However, the accused pleaded not guilty, but denied to adduce

evidence in self defence.

7. Having taken into account the submissions of the

learned counsels appearing for the parties and on consideration

of the materials on record, the learned Special Judge found the

accused guilty of committing the offence and the charges

framed against him being proved, convicted and sentenced the

accused person as stated here-in-above.

8. Feeling aggrieved and dissatisfied with the judgment

of conviction and sentence as afore-stated, the accused person

preferred the instant appeal before this Court.

9. We have heard Mr. D.J. Saha, learned counsel

appearing for the accused-appellant(here-in-after referred to as

the accused person) as well as Mr. Sumit Debnath, learned

Addl. P.P. appearing on behalf of the State-respondent.

10. Mr. Saha, learned counsel appearing for the accused

person submitted that the prosecution witnesses had

improvised their versions in course of trial. He pointed out that

the informant(PW11), the father of the victim, and the mother

of the victim(PW9) improved their versions which were not

stated in the FIR. Learned counsel for the accused person tried

to persuade us contending that before shifting the victim to the

hospital she was taken to one Kabiraj(Ayurvedic doctor), but

that Ayurvedic doctor was not examined by the prosecution and

the fact that the victim was taken to an Ayurvedic doctor was

suppressed in the FIR.

10.1. Learned counsel for the accused person further

argued that it became apparent from the statements of the

doctors that they found dirty materials in the private parts of

the victim and those dirty materials would be responsible to

rupture the hymen. Proceeding further, learned counsel for the

accused person contended that on examination of the victim

girl, the doctors did not find any semen in the private part of

the victim, which negated the story of the prosecution that the

victim had suffered penetrative assault.

10.2. The crux of his submission was that the medical

evidence did not support the prosecution story and the victim

did not give any statement or note implicating the accused

person.

11. To counter the submissions of the learned counsel

for the accused person, Mr. Debnath, learned Addl. P.P.

strongly defended the findings arrived at by the learned Special

Judge pointing out to the statements made by PW9, the mother

of the victim, recorded under Section 164(5) of CrPC. The

learned Addl. P.P. contended that her depositions before the

Court wholly corroborate the statements she made before the

Magistrate. The medical evidence made the prosecution‟s case

more stronger that it was the accused person only who

committed rape upon the victim. The neighbouring people had

rushed to the place of occurrence and had witnessed the victim

bleeding by vagina.

12. Learned Special Judge, to determine the merits of

the prosecution evidence had formulated the following

questions:

"(i) Whether the evidence given by the victim on oath is admissible under Evidence Act, and whether such evidence has found corroboration from other witnesses, particularly from the evidence of the mother of the victim and from medical evidence?

(ii) Whether the accused person can be said to have committed an offence of rape and penetrative sexual assault basing on the evidence of the witnesses and particularly on the basis of medical evidence?"

13. While passing the judgment, the learned Special

Judge held that the prosecution has been able to prove the

foundational facts of the case and the legal presumption under

Section 29 of POCSO Act was available against the accused

persons. Meaning thereby, the onus was shifted upon the

accused person to show why such presumption could not be

available against him. But the accused person did not discharge

such onus either from the evidence led by the prosecution or by

adducing evidence.

14. Since, it is a court of first appeal, we have

scrutinized the evidence and the materials on record

meticulously to assess the sustainability of the findings of guilt

of the accused person as arrived at by the learned Special

Judge.

15. Having gone through the evidence of the prosecution

witnesses, we find the following witnesses out of 29(twenty

nine) witnesses are very much relevant to the sustainability of

the charges framed against the accused person. They are:-

(i)       PW2, Kanchan Mala Tripura,
(ii)      PW3, Basa Laxmi Tripura,
(iii)     PW9, the mother of the victim,
(iv)      PW10, the victim,
(v)       PW11, father of the victim,
(vi)      PW12, Guna Laxmi Tripura,
(vii)     PW16, Ratna Tripura,
(viii)    PW17, Jitendra Tripura,
(ix)      PW 21, Dr. Anamika Nath,
(x)       PW22, Dr. Sailendra Tripura,
(xi)      PW25, Ranjit Tripura,
(xii)     PW27, Dr. Sagarika Tripura and
(xiii)    PW28, Dr. Sabyasachi Nath.

16. As we find the prosecution case started rolling from

the house of Ranjit Tripura, PW25, who deposed that he

arranged a ceremony in his house on 10.02.2016 on the

occasion of his marriage. The mother of the victim along with

the victim attended that ceremony and the accused person also

attended his house at noon. Subsequently, the mother of the

victim, PW9 informed him(PW25) that the accused person

committed rape on her minor daughter. The depositions of

PW25 corroborates the contents of the FIR that the mother of

the victim on her return from the house of PW25 found the

accused committing rape on her victim daughter inside her

living hut. The defence could not elicit any material

contradictions.

17. PW9, the mother of the victim is the eye-witness of

the occurrence. She deposed that her daughter went to the

house of PW25 to attend one invitation. But, after a short while

her victim daughter was found missing. As such, in search of

her victim daughter, she returned home and found the accused

person committing sexual intercourse on her minor daughter.

PW9 then raised alarm. Responding to her alarm, PW2,

Kanchan Mala Tripura, PW3, Basa Laxmi Tripura and one Satya

Tripura came to her house. On enquiry, her victim daughter

informed that the accused person took her victim daughter to

his house alluring to give biscuit. At that instance, her husband,

PW10, the informant also had returned home. Thereafter, the

victim was taken to Kalachara hospital wherefrom she was

shifted to Sabroom hospital. The victim was admitted there for

10/12 days. PW9 further deposed that she was produced before

a Magistrate at Sabroom and her statement was recorded. She

further stated that the house of the accused is situated in the

same village though on another tilla and that there were some

houses in between the house of PW9 and the house of PW25,

Ranjit Tripura. PW9 denied the defence story that her husband

had a quarrel with accused person a few days prior to the

incident and fabricated the case against the accused person.

18. PW2 and PW3 also attended the invitation in the

house of PW25. They deposed that they had seen PW9 and her

minor daughter. PW2 saw the accused person giving biscuit to

the victim in the house of Ranjit, PW25. All on a sudden, PW2

found the accused person missing in the house of Ranjit. Later

on, PW9 informed PW2 that the accused person raped the

minor daughter of PW9. On this, PW2 went to the house of PW9

and enquired the incident with the victim. The victim informed

PW2 that the accused gave biscuit to the victim and raped her.

PW2 saw the blood oozing from the private part of the victim.

PW3 also saw bleeding injury on the private part of the victim.

19. PW11, the father of the victim deposed that he

returned home after hearing alarm of his wife, PW9 and found

the victim bleeding. He called Guna Laxmi Tripura, PW12,

Jitendra Tripura, PW17 and one Satya Tripura. PW11 heard the

incident of rape from his wife, PW9 and found his victim

daughter profusely bleeding by vagina. Proceeding further, he

deposed that the victim was shifted to Kalachara hospital and

from there she was referred to Sabroom hospital wherein the

victim was admitted for five days. PW11 further deposed that

from Sabroom hospital he went to Sabroom P.S. and lodged

ejahar written by Jitendra Tripura, PW17.

19.1. From the evidence, it has come to light that PW17

has proved the ejahar(Exbt.4/1). The cross-examination of

PW17 divulged the second defence story that because of

political enmity with the accused a false case was

manufactured. The said defence story was advanced to PW17

that PW17 was a worker of political party IPFT, but PW17

denied that he along with Guna Laxmi and the mother of the

victim being workers of IPFT party manufactured a false case

against the accused person.

20. PW12, Guna Laxmi Tripura and PW17, Jitendra

Tripura in their depositions stated that the victim was taken to

the house of PW12 as the father-in-law of PW12 is a Kabiraj,

but seeing bleeding by vagina of the victim, PW12 along with

others took the victim to Kalachara hospital and there from the

victim was referred to Sabroom hospital. On being asked the

victim stated to PW12 that the accused person raped her

alluring her to give biscuit. PW17 also accompanied the victim

to hospital and later on wrote the ejahar as per the versions of

PW11, the father of the victim.

21. PW16, Ratna Tripura was informed by the mother of

the victim that the accused raped her minor daughter. PW16

also went to the house of the victim just after the occurrence

and found the victim bleeding by vagina. PW12 and PW16

corroborate one another on the episode that the victim was first

taken to a Kabiraj and later on she was shifted to hospital.

22. PW21, Dr. Anamika Nath of Forensic Medicine and

Toxicology Department of GBP Hospital, Agartala conducted

ossification test to determine the age of the victim and found

that the victim was 3½ years old. The report of ossification test

has been proved and marked exhibit-9.

23. PW10 is the victim. Statement of the victim was

recorded by PW18, Sub-Divisional Judicial Magistrate, Sabroom,

South Tripura. The statement of the victim as recorded at the

time of trial by the court may be reproduced in verbatim, for

convenience:-

"Do you go to school?

Ans. No

Who are there in your family?

Ans. The witness keeps mum.

Where have you come today?

Ans. The witness keeps mum.

Did anything happen to you?

Ans. Again the witness keeps mum.

Did you get admitted in the hospital?

Ans. The witness shakes her head and indicated that she was admitted in the hospital."

24. PW22, Dr. Sailendra Tripura of Kalachara PHC who

noticed dirty materials in the private parts of the victim and

referred her to Sabroom hospital keeping history in a register of

the hospital. In cross he stated that, if a girl of this age without

wearing apparels moves in dirty surface, she may have such

dirt in her private parts. The learned Special Judge asked the

following questions to PW22 which are reproduced here-in-

below, in extenso:

"What did you actually find in the vagina?

Ans. I noticed vaginal secretion.

Did you notice blood secretion?

Ans. I did not notice carefully."

25. PW27, Dr. Sagarika Tripura was on duty as Medical

Officer at Sabroom Hospital on 10.02.2016. She deposed that

on general examination, she found the victim was mentally

normal. She referred the victim to dental surgeon for

ossification test. She had a light green frock and one light

yellow printed blood-stained panty. On examination PW27

detected some redness and tenderness in the vulva. "There was

a fresh line tear of posterior, lateral quadrant and little amount

of blood clot seen. In her vaginal canal, some amount of blood

clot seen." PW27 advised investigation of blood and vaginal

swab. She finally opined that "the victim had recent vaginal

penetration because of tear hymen presence of some amount of

blood in the vaginal canal and tenderness and redness of the

vulva." PW27 further detected, "multiple nail scratch mark over

right back of the forearm, multiple nail scratch on the right

wrist joint. Nail scratch mark on the left mustriod process, one

nail scratch mark over the back of chest(upper part). Nail

scratch mark over the right arm umbilicus. Another small

abrasion over the right face 1 cm x 0.2 cm. The injuries were

caused within less than 24 hours." PW27 identified the medical

report bearing her handwriting and signature, marked as

Exbt.13.

26. Other witnesses are: PW4, who recorded the

statement of the victim as per direction of the I.O. as the victim

was not proficient in Bengali language. PW5 visited the victim in

the hospital on the next day and the mother of the victim

narrated the incident to PW5. PW6, one interpreter engaged by

the court of learned SDJM while the statements of the victim

and her mother were recorded under Section 164(5) of CrPC.

PW8 is the O/C who recorded the FIR and endorsed the case to

S.I. Khokan Saha. PW13, PW14 and PW15 are witnesses of

seizure of the vaginal swab, blood, etc. of the victim. PW19 and

PW20 are witnesses of seizure of a memory card, which has

ultimately not been used in the trial.

27. Now, a survey of the above discussed ocular versions

of the prosecution witnesses reveals that there is contradiction

in the statement of PW3 because PW3 omitted to give such

statement to the I.O. that she saw bleeding injury on the

private part of the victim. Further, PW12 and PW17 deposed

that the victim was first taken to a Kabiraj which was neither

stated by PW9, the mother of the victim nor by PW11.

27.1. Question is, as submitted by the learned counsel for

the accused person, whether this discrepancy by way of

omission can be said to be fatal to the prosecution case. Our

answer is in negative.

27.2. Further, the contradiction in the statement of PW3

that she omitted to give statement to the I.O. that she saw

bleeding injury on the private part of the victim, in our

considered view, will also not be fatal to the prosecution case.

27.3. According to us, these are mere minor discrepancies,

when evidence is galore that PW9 along with her victim

daughter responding to the invitation of PW25, attended his

marriage ceremony on the date and time of the incident. All on

a sudden, PW9 noticed that her victim daughter was missing in

that house, prompting her to return to her home. Reaching the

hut, she found the accused person committing sexual

intercourse on her daughter. She wanted to know what

happened from the accused. On enquiry, her victim daughter

told her that accused allured her to give biscuit and brought her

to home and committed the sexual act. The accused person had

fled away. PW9 raised alarm. The neighbouring people came to

the home of PW9. After a short while, her husband(PW11) also

arrived at the spot. All of them had seen the victim bleeding by

vagina.

28. The medical examination of the girl clearly reveals

that she suffered penetrative sexual assault. The blood sample

of the victim girl had matched to the blood of the accused

person. PW27, Dr. Sagarika Tripura clearly opined that the

victim had suffered recent vaginal penetration because of tear

hymen presence of little amount of blood clot in vaginal canal

and the presence of little redness and tenderness of the valva.

29. We have given our anxious consideration to the

statements of the victim girl. According to us, the statement of

the victim girl in course of trial clearly indicates that the victim

was confused and could not understand the morality of the act

done to her and that the victim was unable to speak.

30. We are in full agreement with the findings of the

learned Special Judge that, in fact, the victim could not give

oral evidence before the Court, but the circumstance that she

got admitted in the hospital has been established when by

shaking her head she answered positively. The victim also

stated that the accused, namely, „Chuka‟ allured her to give

biscuit.

30.1. These two statements which she answered positively

carry immense importance to arrive at a right decision of the

case. Further, these two statements are relevant under first

part of Section 119 of the Evidence Act as the victim was a

witness, who is "unable to speak" because of extreme tender

years. But, the status of the victim in this case is not like a

witness, who is "unable to communicate verbally" within the

meaning of the proviso to Section 119 of the Evidence Act so as

to take assistance of any interpreter or special educator. The

proviso to Section 119 of the Evidence Act may be reproduced

here-in-below for convenience:-

"S.119 Witness unable to communicate verbally.--A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence:

Provided that if the witness is unable to communicate verbally, the court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed."

On bare reading, it is clear that the proviso of

Section 119 of the Evidence Act is applicable for the witnesses,

who cannot speak in the language of the court or otherwise able

and can communicate otherwise than by verbal communication.

Thus, the evidence of the victim has found corroboration from

the prosecution witnesses, particularly the evidence of PW9, the

mother of the victim and by evidence of PW2, who saw the

accused giving biscuit to the victim in the house of PW25

wherein all of them attended invitation.

31. In the instant case, we find that the learned Special

Judge had put questions to the victim girl and the answers by

way of signs or motions i.e. by way of shaking her head were

reduced into writing in the open court. According to us, this is

sufficient compliance of the requirements of Section 119 of the

Evidence Act.

32. We are in no mood to give any importance to the

evidence of PW22, the Doctor of Kalachara PHC who attended

the victim at the first instance. We are in full agreement with

the findings of the learned Special Judge that the evidence of

PW22 is luminous that neither he performed his duty as a

medical officer passionately nor did he give evidence sincerely

before the court.

33. In our ultimate analysis, we do not find any reason

to disbelieve or suspect the evidence of PW9, PW2, PW25,

PW27 and PW11 who had seen the victim bleeding by vagina.

PW9 is the eye-witness to the incident. The evidence of PW12

and PW17 who arrived at the spot immediately hearing the

alarm raised by PW9 and that the victim girl as well as PW9

disclosed the factum of rape by the accused on the victim are

part of res gestae and admissible in evidence under Section 6 of

the Evidence Act.

34. Dealing with the submission of the learned counsel

for the appellant that PW9 and PW11 have not stated that the

victim was taken to a Kabiraj, in our opinion, is a mere

omission, which cannot shake the prosecution case in any

manner and does not amount to suppression of fact for the

reason of the settled law that the FIR is not the encyclopaedia

of the entire episodes of the crime.

35. In our opinion, if the victim girl was taken to a

Kabiraj, it does not break the entire chain of circumstances in

the entire chain of connecting the crime of the accused with the

crime, because the fact remains that, ultimately, the victim was

taken to the hospital where she was admitted for few days and

PW11, the father of the victim lodged the FIR after his return

from hospital.

36. Further, the medical report clearly throws light that

there are so many nail scratch marks at various parts of the

person of the victim girl. The tearing hymen which was fresh in

nature clearly reveals that there was penetration of penis, even

to a slightest extent on the private part of the victim girl which

attracts the definition of rape as emphasized under Section 375

of the IPC. Added to it, penetration is not a sine qua non to

constitute rape. The medical examination report of the victim

girl clearly supports the ingredients of „carnal knowledge' which

means the penetration to any the slightest degree of the organ

alleged to have been carnally known by the male organ of

generation[Stephens Criminal Law, 9th Ed, P.262]. In Halsbury's

Statutes of England and Wales(4th Edn. Vol 12), it is stated that

even the slightest degree of penetration is sufficient to prove

sexual intercourse. It is violation, with violence of the private

person of a woman, an outrage by all means. By the very

nature of offence it is an obnoxious act of the highest order.

37. On culmination of the entire evidence and materials

on record, we are of the opinion that apart from the evidence of

eye-witness, PW9, all other circumstances have completed the

total chain which started rolling from the house of PW25 and

what have been crystallized ultimately that the prosecution has

been able to establish the foundational facts of the charges

levelled against the accused person as discussed in the

preceding paragraphs. The legal presumptions as contemplated

under Sections 29 and 30 of the POCSO Act are available

against the accused person. In this situation, the onus is shifted

on the accused person to show why such presumptions shall not

be drawn against him. But he has not discharged his liability

either from the evidence let in by the prosecution or by

adducing evidence in his self defence.

38. Before parting, we have noticed that the learned

Special Judge has imposed punishment upon the accused

person to suffer the sentence of rigorous imprisonment for life,

which shall mean imprisonment of remainder the natural life.

We are doubtful if any such order passed by the Special Judge

under the POCSO Act can have the effect of taking away the

powers of the Governor and the President of granting pardons

and remissions which are Constitutional powers which can be

done by the Constitutional Courts. In any case, considering the

nature and degree of offence and the age of the accused

person(30 years), we are of the opinion that for fair ends of

justice, the sentence to suffer rigorous imprisonment for

20(twenty) years without remission would be justified.

39. In the result, the conviction of the accused person,

the appellant herein as returned by the learned Special Judge

has been upheld and affirmed. However, the accused appellant,

Sri Haricharan Munda alias Chuka is sentenced to suffer

rigorous imprisonment for 20(twenty) years without remission.

40. With the said modification of sentence, the present

appeal preferred by the accused appellant stands dismissed.

Send down the LCRs forthwith.

(ARINDAM LODH, J)                     (AKIL KURESHI, CJ)