Tripura High Court

High Court Of Tripura vs The State Of Tripura on 26 November, 2021

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                        HIGH COURT OF TRIPURA
                              AGARTALA
                           Crl. A(J) No.19/2020
Sri Jaigyaram Reang,
Son of Sri Karnada Reang,
Resident of Village-Sarbang, Christian Para,
P.S-Birganj, District -Gomati Tripura.
                                                     ............... Appellant(s).

                                       Versus

The State of Tripura,
(To be represented by the Ld. Public Prosecutor
The Hon‟ble High Court of Tripura, Agartala)

                                                    ............... Respondent(s).

BEFORE THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY

For Appellant(s) : Mr. Samarjit Bhattacharjee, Advocate.

Mr. Kawsik Nath, Advocate.

For Respondent(s) : Mr. Ratan Datta, Public Prosecutor.

       Date of hearing             :    8th September, 2021.

       Date of Judgment & Order :       26th November, 2021.

       Whether fit for reporting   :    NO.


                          JUDGMENT AND ORDER

By means of filing this appeal, the appellant has impugned the

judgment and order dated 10.02.2020 passed by the learned Special Judge

(POCSO) Gomati Judicial District, Udaipur in Case No. Special 6 of 2019

(POCSO) convicting and sentencing the petitioner under Section 4 of the

Protection of Children from Sexual Offences Act, 2012 (POCSO) and

Section 341 IPC. He was sentenced to R.I for seven years and fine of

Rs.5,000/- with default stipulation under Section 4 of the POCSO Act and

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S.I for one month for committing offence punishable under Section 341

IPC and it was directed that both the sentences would run concurrently.

[2] The factual background of the case is as under:-

On 12/2/2019, the brother of the victim lodged a written FIR

with the Officer-in-Charge of Birganj police station at Amarpur alleging,

inter alia, that while his sister along with her friend were returning home

from a function at about 10 „O‟ clock in the night on 11.02.2019 accused

along with three others detained the victim and her friend and committed

rape by turn on the victim while her friend saved herself by hiding. After

committing gang rape of the victim, they left the place. Friend of the victim

then came out and both of them managed to reach home in an auto

rickshaw. Having arrived at home they gave a detailed account to the

house inmates of the victim as to what happened to them. Victim was

treated in a hospital at Amarpur. Her brother reported the matter to police

by lodging the written FIR.

[3] Based on his FIR Birganj police station Case No.2019 BRG 009

under Sections 341, 354B, 376D IPC and Section 6 of the POCSO Act was

registered and the case was taken up for investigation. After investigation

of the case charge sheet was submitted against the appellant and three

others for having committed offence punishable under Sections 341, 354B,

376D and 376A IPC and Section 6 of the POCSO Act.

[4] The learned Special Judge, Udaipur had taken cognizance of

the offence and framed the following charges against the four charge

sheeted accused:

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"That on 11/02/2019 at about 10.30 pm Miss. B aged 15 years and her friend Miss P were returning home after enjoying mela at Sorbong Shanti Kalibari. At that time when they reached near the Bishnu Mohan J.B School near the road side jungle, all of you, in furtherance of common intention, wrongfully restrained them on their way and thus committed offence punishable under section 341/34 of the Indian Penal Code and within the cognizance of this Court;

Secondly, that on the said date, time and place all of you, in furtherance of common intention, used criminal force with intention of disrobing Miss P and thereby committed offence punishable under section 354B/34 of the Indian Penal Code and within the cognizance of this Court;

Thirdly, that on the same date, time and place all of you, in furtherance of common intention, committed aggravated penetrative sexual assault to Miss. B aged 15 years and you thereby committed offence punishable under Section 6 of the POCSO Act and within the cognizance of this Court;

Fourthly, that on the same date, time and place all of you, in furtherance of common intention constituted a group and committed gang rape on Miss. B and thereby committed offence punishable under section 376D of the Indian Penal code and within the cognizance of this Court;

Fifthly, that one same date, time and place you constituted a group and furtherance of common intention of all of you, one or more of you committed rape on Miss. B and you thereby committed offence punishable Under Section 376DA of the Indian Penal Code and within the cognizance of this Court;

And I hereby direct that you be tried on the said charge by this Court."

All accused including the appellant pleaded not guilty to the

said charges and claimed to stand the trial.

[5] Prosecution examined the victim as PW-1, her friend who

accompanied her at the material time as PW-2, the Magistrate who

recorded the statement of the victim and her friend as PW-3. PW-4 and

PW-5 were constables of police. PW-6 is the auto driver who transported Crl. A(J) No.19/2020.

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the victim and her friend to their home from the place of occurrence. PW-7

is the Medical Officer who had examined the victim day after the

occurrence at Amarpur hospital and PW-8 was the nurse of the hospital in

whose presence samples of the victim were collected.PW-9 is the brother of

the victim who lodged the complaint and PW-10 is the mother of the

victim. PW-11 is her father. PW-12 was a general duty attendant in

Amarpur hospital in whose presence sample of the accused were collected.

PW-13 is the Medical Officer and PW-14 is the Investigating Officer of this

case. PW-15 was the Headmaster of the school where the victim used to

study. He proved the date of birth of the victim by producing school

certificate PW-16 is the scribe of the ejahar who wrote the written ejahar

pursuant to the dictation of the complainant brother of the victim.

[6] After the prosecution evidence was closed the criminating

materials which transpired against the accused from prosecution evidence

were explained to them separately in terms of Section 313 Cr. P.C. All the

accused including appellant pleaded innocence and claimed that the

charges were foisted on them. In answer to Question No.40 during his

examination under Section 313 Cr. P.C where he was asked whether he

wanted to say anything else, accused petitioner replied as follows:

"I am innocent. I and victim are now married. On25.09.2019 our marriage was solemnized as per our social customs"

The appellant wanted to adduce defence witness.

[7] On his defence appellant examined his father as DW-1 and the

village headman called "Chowdhury" as DW-2.

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[8] On appreciation of evidence and submissions made at the bar,

trial court held the appellant guilty and sentenced him to R.I for seven

years and fine of Rs.5,000/- with default stipulation for offence punishable

under Section 4, POCSO Act and also sentenced him to S.I for one month

for having committed offence punishable under Section 341 IPC. The other

three accused namely, Debangi Jamatia, Bijoy Kr. Tripura and Ratanmani

Jamatia were acquitted of the charges since the case was not proved

against them beyond reasonable doubt.

[9] Hence this appeal in which counsel for the petitioner has

assailed the impugned judgment and order on several grounds. Counsel

submits that evidence on record is not sufficient to convict the appellant for

the aforesaid offence. It is further contended by the counsel of the

appellant that trial Court should have taken into consideration the fact that

the accused married the victim after the occurrence and they were living a

conjugal life which would be spoiled by the conviction and sentence of the

accused appellant.

[10] Mr. Ratan Datta, learned Public Prosecutor supported the

impugned judgment and order. Learned P. P contended that after

considering the entire material on record, the leaned Special Judge rightly

held the appellant guilty for the aforesaid offence and sentenced him. Mr.

Datta, argued that victim was at her tender age at the time of occurrence

and she was gang raped in her own village by the appellant and his

associates. Counsel submits that the learned Special Judge by a detailed

judgment held the accused guilty. There is no reason to interfere with the

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said judgment of the learned special Judge. Counsel urges the Court for

dismissing the appeal.

[11] Among the witnesses examined on behalf of the prosecution

PW-1, is the victim who gave a detailed account of what happened to her

in the fateful night. She stated that at about 10.30 pm in the fateful night

she was returning home from a mela (fair) along with one of her female

friend. Both of them met the appellant on the way who were previously

known to them. The appellant told the victim and her friend that he would

escort them up to their house. At that time, the appellant were

accompanied by three other persons who were unknown to the victim and

her friend. Suddenly, appellant and her associates caught hold her and laid

her on the ground. Appellant and two of his associates committed rape on

her by turn. At that time the female friend of the victim ran to some other

place to save herself. After committing rape on her, appellant and his

associates left. Seeing them leaving, the friend of the victim came out from

hiding. She called a known auto driver [PW-6] who came with a Scooty and

drop them at their house. Having returned home the victim told everything

to her brother and mother. On the following day her brother lodged the

FIR. During investigation she was produced before a Judicial Magistrate in

Court where she made a statement.

In her cross-examination on behalf of the appellant nothing

could be extracted from her in favour of the accused. Few suggestions

were thrown to her by the counsel representing the accused appellant. She

denied all those suggestions. The suggestions would have no value unless

substantiated by evidence.

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[12] PW-2, was accompanying the victim at the material time. She

stated that at the time of occurrence she hid herself from where he heard

the victim crying. After the accused persons left the place she went there

and called an auto driver over telephone who had taken them to their

house on his Scooty.

In his cross-examination, she stated that the victim was her

cousin sister. By cross-examination, accused could not impeach her

evidence to any extent.

[13] PW-3, is the Judicial Magistrate who recorded the statement of

the victim and her friend under Section 164(5) Cr. P.C. she identified the

statement recorded by her which were marked as Exbt.4 and Exbt.5

respectively and her signatures thereon were also marked as Exbt.4/1 and

Exbt.5/1 respectively.

[14] PW-4 and PW-5 are formal witnesses, both of them were

constables of police. In presence of PW-4 some samples were collected at

the police station. PW-5 interpreted the statement of the victim to the

investigating Officer who recorded such statement under Section 161 Cr.

P.C.

[15] PW-6, is also a very significant witness who had taken the

victim and her female friend to their house on his Scooty after the

occurrence. He categorically stated that since his auto rickshaw was not in

order he went to the spot on his Scooty bearing registration No.TR-03H-

5581 after he received a telephone call from the friend of the victim at

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about 12 „O‟ clock at night. When he arrived at the spot the victim was

crying. He lifted both of them to their house on his Scooty.

His evidence could not be rebutted in cross examination.

[16] PW-7, is the medical officer who examined the 15 years‟ old

victim at Amarpur Sub-Divisional Hospital when she was brought to the

hospital day after the occurrence. The doctor found multiple scratch marks

over middle of back of the victim which according to the doctor were

caused within the last two days. Her hymen was also found torn at "5 „O‟

clock position". The doctor found signs of penetration into her female

organ. He recorded his findings in his report which was taken into evidence

and marked as Exbt.9. In his cross-examination, he denied the suggestion

of the accused that the Investigating Officer influenced him to prepare such

report.

[17] PW-8, a staff nurse of Amarpur Sub-Divisional Hospital testified

that in her presence the pubic hair, scalp hair, oral swab, vulval swab and

vaginal swab of the victim, nail scrapping, blood sample etc. were seized

and as a witness she signed the seizure list.

[18] PW-9, is the elder brother of the victim who become hostile to

the prosecution. He disowned his police statement recorded under Section

161 Cr. P.C. In his examination-in-chief he stated that there was a meeting

in the village in which it was decided that the appellant would marry the

victim after his release from jail.

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In his cross-examination, he denied his FIR statement where

he stated that appellant along with his associates committed rape on his

sister. In his cross-examination he stated that his sister did not tell him

anything about the incident.

[19] Exactly, same evidence were given by the mother of the victim

who was examined as PW-10 as well as by the father of the victim who was

examined as PW-11. Both of them became hostile to prosecution who

denied their police statements recorded under Section 161 Cr. P.C where

they stated that accused committed rape on their daughter. In same tune

they stated in their examination-in-chief that in a village meeting it was

decided that appellant would marry their daughter after his release from

jail.

[20] Evidence of PW-12 and PW-13 are not considered to be

significant because they simply witnessed the seizure of samples of penile

swab, rectal swab, pubic hair, blood sample etc. from the body of the

accused.

[21] PW-14, is the Investigating Officer stated in her evidence the

manner in which he proceeded with the investigation. She also stated in

her evidence that for determination of age of the victim her ossification

test was conducted and her school certificate was also collected from the

school where she studied and as per school certificate her date of birth was

recorded as 25.11.2004.

In her cross-examination she stated that in charge sheet she

did not cite the name of the doctor who conducted the ossification test as a Crl. A(J) No.19/2020.

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witness. The cross-examiner had taken into evidence the ossification test

report through the witness as Exbt.18 wherein the doctor opined that the

age of the victim would be 16 to 19 years.

[22] PW-15, was the teacher of the school where the victim studied.

The teacher testified at the trial that the victim was admitted in Class-I of

the school on 1-1-2011 and as per the school register, her date of birth

was 25.11.2004.

In his cross-examination the PW stated that he could not say

on what basis the said date of birth of the victim was recorded in the

school register.

[23] PW-16, is the scribe of the ejahar. He stated that he wrote the

ejahar following the statement made to him by the elder brother (PW-9) of

the victim.

[24] The incriminating materials which transpired from the

evidence of the prosecution witnesses were explained to the appellant in

detail. He denied the entire evidence recorded against him. His case is a

plain denial of the prosecution charge. In reply to question No.40, he

stated that he was completely innocent. According to him marriage

between him and the victim was solemnised on 25.09.2019 as per their

social custom. He also wanted to adduce evidence on his behalf.

[25] As stated, accused examined two defence witnesses. Among

them DW-1 is his father who stated that his son married the victim as per

their social customs after he was released on bail. In his cross examination Crl. A(J) No.19/2020.

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the father of the appellant stated that he had no idea as to whether his son

had committed rape on the victim.

[26] DW-2, was the village headman (Chowdhury) of the village,

where the appellant and the victim lived. DW stated that they had love

affairs. When the appellant disagreed to marry the victim she lodged a

false case against him. Subsequently, they got married as per social

customs and they started living together as husband and wife. DW was

cross-examined on behalf of the prosecution. He denied the suggestion of

the prosecutor that he was hired by the appellant to support him by giving

false evidence.

[27] On appreciation of evidence the trial Court by an elaborate and

reasoned judgment held the appellant guilty of offence punishable under

Section 4 of the POCSO Act and Section 341 IPC and sentenced him as

aforesaid. With regard to the age of the victim the findings of the trial

Court is as under:

"12. As regards the age of the victim PW-1 Miss. B, she has stated in her deposition dated 03.07.2019 that she is aged 15 years. Further, PW 15 i.e., the Teacher-in-charge of the school of the victim stated that as per the school records her date of birth was 25.11.2004. The incident occurred on 11.02.2019.

That means, on the day of incident the age of the victim was 14 years 9 months and as such on the day of incident she was a child within the purview of section 2(d) of the POCSO Act. Though her brother, father and mother i.e., PW-9,10 & 11 w h turned hostile, have stated her age as 19,20 & 19 years respectively but they have been declared hostile by the prosecution and were cross examined by the Special P.P on this point indicating thereby that the prosecution has not relied on the evidence of the parents and brother of the victim regarding the occurrence as well as the age of the victim. Moreover in the school register i.e. Ext. 19 the date of birth of

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the victim is stated as 25.11.2004. As such there is no doubt about the age of the victim B being 14 years 9 months on the day of incident. In cross examination the defence filed to elicit any doubt in regard to the age of the victim as recorded in her school register.

In the case of Satpal Singh Vs. State of Haryana 2010 Cr. L.J. 4283: (2010) 8 SCC 714 it was held that entry in respect of age of the child seeking admission, made in the school register by semi literate Chowkidar at the instance of a person who came along with the child having no personal knowledge of the correct date of birth , cannot be relied upon. No proof to hold that victim was major and, therefore, appeal was dismissed.

Accordingly, I am of the view that at the time of incident the victim was child aged 14 years and 9 months within the purview of Section 2(d) of the POCSO Act.******"

[28] The appellant tried to defend himself by raising the plea that

after the alleged occurrence he married the victim as per social customs in

presence of her guardians. In order to establish his plea he examined the

„Chowdhury‟ (headman) of his village who testified as DW-2 and he also

examined his father who testified as DW-1. The „Chowdhury‟ of the village

(DW-2) stated that after the occurrence appellant and victim got married

and they started living in the house of the victim as husband and wife.

Father of the appellant as DW-1 also supported the fact by stating that

after his release from jail on bail appellant married the victim. Elder

brother and parents of the victim who become hostile to the prosecution

gave evidence seven months before the evidence of the DWs was recorded

when he stated that it was decided in the village meeting that the appellant

after his release from jail would marry the victim.

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[29] The learned trial Court while awarding sentence to the

appellant discussed the issue with regard to the marriage between the

appellant and the victim and made the following observation:

"25. It is submitted by Ld. Defence counsel that in the mean time the dispute has been amicably settled locally with the intervention of the village elders and well-wishers and the victim B and the accuse Jigyaram Reang have been given marriage with consent of guardians and parents of both parties. He has further submitted that now the victim and her parents have no grievance against the accused person and accordingly he has urged for taking lenient view on the convict.

26. Per contra the Ld. Special P.P stood up in strong opposition to the submission of Ld. Defence counsel on the simple premise that the case is not compoundable and so legally there is no scope to take the course of composition of the case. Secondly, it is a crime of sexual assault on a minor girl which by itself is heineous in nature and there is no weighty reason to take a liberal approach in the matter.

27. In view of the facts and circumstances of the case and the case being under the penal provisions of the POCSO Act, there is no legal sanction to countenance the submission of Ld. Defence counsel in regard to the convict and the victim B having been married in the meantime. Rather it sounds shocking and deplorable as to how he local villagers and headman could make amicable settlement of such heinous crime of gang rape on a minor girl and how they could get the victim and the perpetrator married and pretend to show that everything has become fine. If we being courts and the upholder of the law and Administration of Justice also give a stamp of approval to such cover up by local sarpanch or mukhia, it would send a wrong message to the society at large. Then the people will have no fear of law and the potential sexual predators will be emboldened and will think that nothing would happen if they rape a minor girl because the window of mutual settlement and marrying the victim is open. The manner in which the crime of sexual assault, gang rape and rape- cum-murder are happening all over the country, it is high time we as Judges come down heavily with iron fist on the sexual criminals or otherwise the situation may get bad to worse.

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It was held in State of Punjab Vs. Rakesh Kumar-2009 Cr.LJ 396- that in operating the sentencing system law should adopt corrective machinery or deterrence based on factual matrix. Undue sympathy to impose inadequate sentence would do more harm to justice system to undermine public confidence in the efficacy of law. Aggravating and mitigating factors and circumstances are to be delicately balanced on basis of relevant circumstances. Court has to record reasons for the same."

[30] With regard to the commission of rape on her, the evidence of

the victim (PW-1) is so convincing and trustworthy that there is no reason

to disbelieve her evidence. She categorically asserted that the accused

appellant along with his associates caught hold of her while she was

returning from a mela along with her friend (PW-2) during the night.

Thereafter the appellant and his two associates committed rape on her by

turn. Trial court acquitted the associates of the appellant on the ground

that their identity could not be established. In so far as the involvement of

the appellant is concerned there is no ground to disbelieve his involvement

in the commission of rape on the victim. During investigation of the case

victim gave statement before the concerned Judicial Magistrate. The

Magistrate also appeared before the court and testified as PW-3 who

proved the statement of the victim (Exbt.5) recorded by her. Exbt.5

demonstrates that there is no inconsistency between the statement of the

victim made at the trial and the statement (Exbt.5) recorded by the

learned Judicial Magistrate (PW-3) under Section 164(5) Cr.P.C. In her

statement recorded under Section 164(5) Cr. P.C she asserted that

appellant was a relative of her who proposed to drop her at her home while

she along with her friend was returning home from a mela. On the way

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suddenly he caught hold of her. Then she started screaming. The appellant

then committed rape on her while his associates were catching hold of her

hands. Her friend (PW-2) managed to escape from there. She gave the

same statement at the trial. She was cross examined at length. Her

evidence could not be impeached to any extent during her cross

examination. Her friend PW-2 who was accompanying the victim at the

time of occurrence also supported the victim. She stated that when the

appellant and his associates caught the victim, she ran away to a nearby

place and hid herself fromwhere she heard the victim crying. After the

appellant and his associates left, she came out and thereafter both of them

arrived home together. The doctor(PW-7) examined the victim day after

the occurrence. He found signs of rape including multiple scratch mark

over her middle back which demonstrate that she was subjected to

violence during commission of rape. For the reason that her parents and

brother became hostile and retracted, the eye witness version of the victim

and her friend (PW-2) cannot be disbelieved particularly when they gave

very consistent, cogent and trustworthy evidence which also gets support

from the medical evidence.

[31] With regard to the age of the victim the findings of the learned

Sessions Judge cannot be faulted with because as per the school certificate

(Exbt.19) date of birth of the victim is 25.11.2004. Therefore, obviously

she was below 15 years on 11/2/2019 when the offence was committed to

her. Even though ossification test was done for determination of her age,

prosecution did not examine the doctor who conducted the ossification test.

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[32] With regard to the evidentiary value of school register for

proving age, the Apex Court in State of Madhya Pradesh Vrs. Preetam;

reported in (2018) 17 SCC 658 : AIR 2018 SC 4212 has held as under:

"(11) In our considered view, the approach of the trial court was not correct. In each and every case the prosecution cannot be expected to examine the person who has admitted a student in the school. The school registers are the authentic documents being maintained in the official course, entitled to credence of much weight unless proved otherwise.******"

[33] From the evidence discussed hereinabove it is stands

established that while the victim was returning home at the material time

accused wrongfully restrained her and committed penetrative sexual

assault on her and at the time of the commission of the offence the victim

was a child.

[34] In these circumstances, the trial court did not commit any error

by convicting the appellant under Section 4 of the POCSO Act and Section

341 IPC. By recording adequate and convincing reasons the trial Court also

discarded the defence plea that accused deserved acquittal because matter

was amicably settled between the parties and the appellant married the

victim.

[35] For the reasons stated above, the appeal stands dismissed.