Tripura High Court
Shri Sushanta Banik vs The State Of Tripura on 29 September, 2021
Page 1 of 56
HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J) 14 OF 2020
Shri Sushanta Banik,
S/o Sri Sanjib Banik,
R/o village Jatanbari, P.S. Natunbazar,
District-Gomati Tripura
----Appellant
Versus
The State of Tripura.
----Respondent
For the appellants : Mrs. Sarama Deb, Advocate
For the respondent : Mr. Sumit Debnath,
Additional Public Prosecutor
Argument heard on : 08.09.2021
Judgment & Order delivered on: 29.09.2021
Whether fit for reporting: Yes.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR.JUSTICE ARINDAM LODH
Judgment & Order
(Arindam Lodh, J)
In a sessions trial, the appellant was convicted and sentenced
to suffer rigorous imprisonment for 10 years for committing offence under
Section 4 of the Protection of Children from Sexual Offences (for short,
„POCSO‟) Act along with a fine of `10,000/- and rigorous imprisonment
for 3 years for committing offence under Section 354D of the Indian Penal
Code (for short, „IPC‟) along with a fine of `2000/- with default
stipulations in connection with Case No. Special 3 (POCSO) of 2016. The
appellant has been in jail w.e.f. the date of pronouncement of the judgment
and order of conviction and sentence dated 17.12.2019.
2. Prosecution case, as reproduced by the learned Special Judge
is as under:
"The prosecution case in a nutshell is that on 25.02.2016 Smt.
"D" (name withheld to protect her identity), aged 16 years, daughter of
Sri Mitrijoy Tripura of Gomtibari (Mandirghat), P/S Natunbazar,
(residing in the Govt. quarter of her sister‟s husband), lodged a written
ejahar with the Officer-in-Charge of Natunbazar Police Station alleging
that on 22.02.2016, Monday, at about 8.00 p.m. she and her two
classmates went out from the quarter to attend private tuition. When they
reached near the Syndicate at Jatanbari, the son of Sanjib Banik namely,
Sushanta Banik obstructed their way and drove away her two
companions by threatening them with glass bottle. Thereafter, Sushanta
took her behind the girls‟ hostel by grabbing her hand and committed
rape on her. Thereafter, the accused threatened her that if she disclosed
the incident to anybody he would kill her. After reaching the quarter, she
did not disclose the incident to anybody out of fear and shame. On the
next day i.e. 23.02.2016 at about 1.00 p.m. in the afternoon she was
returning from her School towards her quarter and on the way said
Sushanta Banik along with 3/4 unknown persons came with a Maruti
Vehicle and asked her to board the vehicle. Seeing the accused and his
partners she got scared and started running towards her quarter. After
she reached the quarter the miscreants left after waiting for some time.
The number of the said Maruti vehicle was TR-03-F-0589 and the door
of the vehicle was open. It was further alleged in the ejahar that due to
the fear of the accused persons it became impossible for her to come out
on the road. She further stated in the ejahar that as the 3/4 partners of
Sushanta were unknown to her they could be identified if Sushanta was
arrested.
On receipt of the ejahar, the O/C, Natunbazar P/S registered
NTB P/S FIR No.07 of 2016 under Sections 341/376 of IPC and Section 4
of the POCSO Act and endorsed the case to SI Ramendra Debbarma for
investigation.
During investigation, the I/O arranged for recording of the
statements of the victim and witness Smt. Jesmine Debbarma by the
Magistrate under Section 164 of Cr.P.C. The I/O visited the P.O. and
prepared hand sketch map with index and seized the material witnesses
and recorded their statements under Section 161 of Cr.P.C. and also
arranged for medical examination of the victim and collected the medical
examination reports. The I/O also collected the FSL report. On
completion of investigation, the I/O submitted charge-sheet against the
accused person namely, Sushanta Banik under Sections 341/376/506 of
IPC and Section 4 of the POCSO Act and added Section 354D(1)(i) of
IPC and Section 3(xi) and 3(xii) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act and against accused persons
namely, Tutan Das, Indra Bahadur Rai and Bhushan Das under Section
354D(1)(i) of IPC.
On receipt of the charge sheet cognizance of offence was taken
on 14.06.2016 under the aforesaid Sections of law and the accused
persons were supplied with copies of incriminating police papers."
3. With the commencement of trial, the learned Special Judge
had framed charges against the accused Sushanta Banik under Section 4 of
the POCSO Act, Section 354D(2)/506 read with Section 34 of IPC and
Section 3(x)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities)Act,1989.
4. Separate charge was framed against the accused persons
namely Tutan Das, Indra Bahadur Rai and Bhusan Das under Section
354D(2) read with Section 34 of IPC. The contents of the charges were
read over and explained to the accused persons in Bengali to which they
pleaded not guilty and claimed to be tried.
5. In course of trial, the prosecution had examined as many as 25
witnesses to substantiate its case. The witnesses included the victim, her
father, relatives, forensic expert, medical officer, police officers and
judicial officers who conducted T.I. parade and recorded statements of the
victim under Section 164 of CrPC and on closure of prosecution evidence,
the accused persons were examined under Section 313 CrPC in which they
denied the veracity of the incriminating evidence against them and also
declined to adduce any defence evidence.
6. The learned Special Judge had observed that the defence case
of the accused persons which could be gathered from the trend of cross-
examination and the examination of the accused persons under Section 313,
CrPC was of simple denial and false implication.
7. We have heard Mrs. Sarama Deb, learned counsel appearing
for the accused-appellant (here-in-after referred to as „accused‟) and Mr. S.
Debnath, learned Addl. P.P. appearing for the State-respondent.
8. Mrs. S. Deb, learned counsel appearing for the accused has
submitted that the learned Special Judge ought to have acquitted the
accused on the ground that there were several discrepancies and
improvements as well as exaggerations as surfaced in the depositions of the
prosecution witnesses. Learned counsel of the accused strongly argued
before this court that the prosecution had miserably failed to establish the
ingredients constituting an offence of „rape‟. She pointed out that the
victim „D‟ appearing to depose as PW-19 stated that she did not disclose
anything to her sister (PW-4) and others who were on search of her on that
evening, though, the accused was just close to her. But PW-4 in her
evidence had deposed that when she along with others on search on that
evening found her victim sister and on being asked, her victim sister told
that the said boy had raped her inside a pump house and also gave some
slaps on her cheek. The learned counsel had tried to persuade us inviting
our attention to the statements made by the victim girl (PW-19) before the
Judicial Magistrate who recorded her statements under Section 164 of
CrPC wherein she disclosed the name of the boy who raped her as 'Raj',
but, that „Raj‟ was never prosecuted by the prosecution. According to her,
there was no relation between the present accused and that of „Raj‟. The
prosecution had failed to relate the accused Susanta Banik, the appellant
herein with that of „Raj‟.
8.1 Learned counsel further submitted that the medical evidence
did not support the prosecution case. The wearing apparels were seized,
but, there was no evidence of spermatozoa or any materials of human
origin. Learned counsel for the appellant contended that the age of the
victim girl had not been proved and at the time of the incident, she ought to
have considered to have attained the age of majority. Further, according to
learned counsel, the learned Special Judge in his judgment had wrongly
considered the age of the victim „D‟ as 16 years as she never made any
such statement during recording of her evidence. Learned counsel Mrs.
Deb invited our attention to the cross-examination of Dr. Sourav Bhowmik
(PW-24) wherein he stated that the victim girl was above 17 and below 25
years on the basis of the presence of 3 rd molar teeth on both right and left
lower jaw.
9. Per contra, Mr. Debnath, learned Addl. P.P. strongly defended
the judgment and order of conviction and sentence imposed by the learned
Special Judge upon the accused. Learned Addl. P.P. submitted that during
test identification parade the accused was identified by the victim „D‟ that
he committed rape. Learned Addl. P.P. further submitted that PW-1 and
PW-11 categorically deposed that the accused Sushanta Banik detained
them on their way to the house of private tutor along with their friend
victim „D‟. They were threatened by the accused and then committed rape
upon victim „D‟. Learned Addl. P.P. defended the finding of the learned
Special Judge that the victim „D‟ was aged at 16 years at the time of the
offence. Proceeding further, learned Addl. P.P. contended that both medical
and forensic examinations had established sexual assault upon the victim
„D‟. Learned Addl. P.P. emphasized that the evidence of victim girl
regarding commission of offence of rape by the accused remained
unshaken and inspired confidence.
10. We have given our thoughtful considerations to the rival
submissions advanced by the learned counsels appearing for the parties.
11. To determine the validity and legality of the judgment and
order of conviction and sentence, passed by the learned Special Judge
against the accused, let us first analyze the relevant witnesses on the basis
of whose evidence, the accused was held to be guilty of committing offence
of rape upon the victim „D‟. According to us, it would be most useful to
look into the evidence of victim „D‟, PW-19 at the outset. She deposed that
on 22.02.2016 at about 8-00 pm, she along with her friends Bindu Rani
Tripura (PW-1) and Sadhe Rani Tripura (PW-11) were going to take
private tuition. On their way, the accused obstructed them and took her
forcibly near the Ggirls‟ Hostel and her friends being threatened had left
the place. Thereafter the accused committed rape upon her. She further
deposed that -"I did not tell this incident to anybody due to shame. At that
time I was residing in the government quarters of my elder sister. I did not
tell it to her also due to shame." Thereafter she deposed that on the next
day i.e. 23.02.2016 while she was returning to house from school on foot
along with PW-1 and PW-11, the accused along with other 3/4 persons
approached them with a Maruti vehicle and asked her to stop. But, she did
not stop and went to the house. She further deposed that she lodged the
complaint after one month. However, she rectified herself that she lodged
the complaint on 25th. She was examined by the doctor after filing the case.
She gave statement to the Magistrate. She identified the ejahar which was
written by another person. She also identified her signature in her statement
recorded under Section 164 CrPC (Exbt.9/3). She also identified her
signature in the memo of T.I. parade (Exbt.1/2). She deposed that she knew
Sushanta Banik earlier.
11.1 Being confronted with cross-examination, PW-19 deposed that
she gave statement to the Magistrate in Bengali, which was recorded in
English and she was brought to the T.I. parade by the I.O. of the case when
she specifically identified the accused person. She further stated that the
I.O. was not with her but later on, she said that the I.O. was present at the
time of identification. She washed her clothes on the next day of the
incident which was wearing at the time of incident. On being asked, in
cross-examination whether she told the name of Sushanta Banik in the
statement recorded under Section 164 of CrPC before the Magistrate, she
took a long pause and did not say anything. However, on perusal of the
statement the name of „Sushanta‟ was not found therein but one „Raj‟ is
mentioned there. On being further asked and confronted with the cross-
examination whether she told in 164 CrPC statement that two friends
namely Bindu Rani Tripura (PW-1) and Sadhe Rani Tripura (PW-11) were
present with her, she took a long pause and did not say anything. On
perusal of the statement, it was found that there was no mention of two
friends Sadhe Rani Tripura and Bindu Rani Tripura, but, it was mentioned
as „other two friends‟. On being asked and confronted whether she told the
names of her friends with whom she was coming, she again took a long
pause during cross-examination and did not say anything. Further, it was
mentioned in 164 CrPC statements as „when I was returning home‟. She
denied the suggestion that her age was not 17 years or she was more than
20 years at the time of trial.
11.2 During cross-examination, PW-19 further stated that she could
not say exactly what was written in the complaint she lodged before the
police station. She denied the suggestion put forth by the defence that she
had identified the accused Sushanta as Sukanta on being influenced by her
brother-in-law.
12. Next important witness is PW-1, Mrs. Bindu Rani Tripura.
She deposed that the victim „D‟ was known to her and on 22.02.2016 at
about 7:00 pm she along with her friend „D‟ and Sadhe Rani Tripura (PW-
11) was going to the house of private tutor, and at the back side of Jatanbari
Hostel, Sushanta Banik appeared there with a motor cycle and took the
victim „D‟ with him against her will. They tried to resist Sushanta, but,
under threat they could not proceed further. She further deposed that she
along with Sadhe Rani returned to their houses and then she informed the
matter to the wife of her brother. Thereafter, the wife of her brother asked
her to search for the victim. Then, she along with one Kalpa Mohan
Tripura, PW-2(brother of the victim) and PW-1 went out to search victim.
When they came out from their gate, they found Sushanta Banik was
coming there with victim on foot. At that time, they asked the victim as to
what happened, but, the victim did not tell anything to them and went to
her home.
12.1 Deposing further, PW-1 stated that till the date of deposition,
the victim did not disclose to her anything more. PW-1 further deposed that
on the following day, at about 12:00 pm, in the noon, she along with the
victim and PW-11 were returning to their home from School and at that
time the accused Sushanta Banik along with two other persons appeared
near United Bank of India with a Maruti Van and obstructed their way. She
deposed that the names of the other two persons were not known to her,
but, she would be able to identify them by face. Then, she along with the
victim and PW-11 returned to their respective houses running out of fear.
She deposed that they did not know the name of Sushanta Banik earlier,
but, on 23.02.2016 in the noon when they rushed to their home, at that
time, the private tutor of nephew of PW-11 saw Sushanta Banik and told
his name to them. After 3/4 days of the said incident, one day she was
taken to Udaipur Jail by police and there she identified Sushanta Banik in a
parade consisting of approximate 10 persons. Apart from Sushanta Banik,
she could not identify any other accused there. She put her signature in a
paper and on being shown by learned P.P., the witness identified her
signature (Exbt.1) in papers of T.I. parade. After some days of the said
incident, she was taken to Amarpur Court where she gave her statement to
one Magistrate. Her statement was recorded accordingly. PW-1 identified
her signature (Exbt.2) in her statement recorded under Section 164 of
CrPC.
12.2 At that stage of deposition, learned P.P. had prayed for
declaring PW-1 as hostile on the ground that she was deviating from her
previous statement recorded under Section 161 of CrPC, which prayer was
allowed.
12.3 She was cross-examined by the learned P.P. where her
attention was drawn regarding the statements recorded under Section 161
CrPC that when they were on search of the victim and found her in front of
Jatanbari Bank, the victim told to them that Sushanta had raped her taking
her in a pump house in the backside of Jatanbari Hostel. She identified the
accused. Being confronted with cross-examination on behalf of the accused
Tutan Das and Bhushan Das, PW-1 stated that she did not tell the
Magistrate that she would be able to identify the driver of the said Maruti
Van by face. She denied the suggestion that driver of the Maruti Van was
shown to her by police prior to the T.I. parade.
12.4 Facing cross-examination on behalf of the accused Sushanta
Banik, PW-1 stated that there were many shops near Jatanbari Motor
Syndicate and those shops remain open till 9/10 pm in the night. PW-1
further stated that there were many shops and quarters of both sides of the
road which passed through their quarters. They generally pass through a
road which runs nearby the motor syndicate. One market also was situated
near their quarters. She further stated that her statement was recorded by
police in Bengali language and she had no sufficient knowledge in Bengali
language. Police read over the contents of her statement which was
recorded by the police. PW-1 further stated that during her statement before
the police, she did not name the person who took away the victim by a
motor cycle. She denied the suggestion that she deposed falsely.
12.5 In cross-examination, PW-1 categorically stated that before
she identified the accused in the Udaipur Jail, police once showed Sushanta
Banik to her at Natunbazar P.S. Her attention being drawn to the statement
that she came to know the name of the accused from the nephew of her
private tutor was found to be absent in her statement recorded under
Section 161 CrPC. She admitted that such statement was absent therein.
13. Next relevant witness is PW-11, Sadhe Rani Tripura. She
deposed in the same tune of PW-1. She identified the accused in the T.I.
parade and her signature in the papers of T.I. parade was marked as
Exbt.1/1. Her statement was also recorded under Section 164 of CrPC by
the Magistrate. She identified her signature (Exbt.8) on the said recorded
statement.
13.1 In course of cross-examination, PW-11 deposed that she stated
to the police officer that she did not know the said Bengali boy. She also
did not state to the police that she came to learn the name of said boy as
Sushanta Banik later on. PW-11 identified the accused in the court room.
On being asked by the defence, PW-11 stated that she could not remember
whether she stated to the Magistrate that the accused was known to her
prior to the incident. She deposed that neither before the police nor before
the Magistrate she stated the name of the boy as Sushanta Banik when her
statements were recorded on 25.02.2016 (by police) and on 26.02.2016 (by
Magistrate). PW-11 further deposed that she did not state to the Magistrate
that when she along with PW-1 and the sister of the victim came out of
their houses to search the victim, they found her near Jatanbari bank
returning towards her house. Being confronted, she stated that she did not
state to the police that the elder sister of the victim had accompanied them
to search the victim in the night. To answer a question, she stated that there
were many other Government quarters where they were residing at that
time. She further stated that Jatanbari syndicate used to remain open upto
10:00 pm and in the night, many persons and vehicles were available there.
14. Next, we can come to the evidence of PW-2 who happens to
be the brother of the victim „D‟. PW-2, Sri Kalpa Mohan Tripura deposed
that he used to stay at the Government quarters of his borther-in-law
namely, Khetrajoy Tripura (PW-5) along with victim „D‟ and on
22.02.2016 in the evening at about 8:30 pm her victim sister along with
PW-1 and PW-11 went to their private tutor‟s house at about 8:00 pm
situated at a little distance of Jatanbari market. At about 8:30 pm, PW-1
and PW-11 came to their quarters and informed them that when they were
approaching to the private tutor‟s house, one boy had obstructed their way
near Jatanbari Girls‟ Hostel and threatened them showing a bottle and also
caught hold of the victim „D‟. Thereafter, they went to search the victim
and ultimately, they found her near United Bank of India, Jatanbari Branch
when the victim was found frightened and at that time one boy caught hold
of her hand. Seeing them, the boy left the place and he took the victim in
their quarters. On being asked, the victim told that the said boy obstructed
her way, caught hold of her and tried to penetrate one broken bottle of wine
into the stomach of the victim. PW-2 further deposed that the victim girl
i.e. PW-19 did not tell him anything further. He continued to depose that no
further incident had occurred thereafter on any occasion. PW-2 deposed
that he did not know the name of the said boy who obstructed PW-19
(victim), but, his face was not known to him prior to the said incident. He
further deposed that on 23.02.2016 he returned from the school at about
01:15 pm and after his return from school, victim told him that on that day
when she along with PW-1 and PW-11 were returning from school, said
boy with other three persons obstructed her way coming in a Maruti Van
and tried to catch hold of his sister and her friends out of fear had rushed to
their house. In his deposition PW-2 stated that he would be able to identify
the said boy by face in the court. Accordingly, he identified the accused-
appellant in the court room.
14.1 Being confronted with cross-examination he stated that he did
not state to the police that said boy tried to penetrate one broken bottle of
wine into the stomach of his victim sister (PW-19). He also did not state to
the police that when he along with PW-1 and PW-11 went out of home to
search the victim, they noticed that the victim was frightened and one boy
had caught hold of her hand and that seeing them the said boy had left the
place. He denied the suggestion that on 22.02.2016 PW-1 and PW-11 had
not visited their house. He denied all the suggestion put forth by the
defence that he deposed falsely.
15. One of the vital and significant witnesses of the instant case is
PW-4, Smt. Biramala Tripura being the elder sister of the victim „D‟ (PW-
19). PW-4 deposed that her victim sister used to reside with her at Forest
Department Quarters at Jatanbari. On 22.02.2016 at about 8:00 pm, the
victim along with her two friends PW-1 and PW-11 went to the house of
their private tutor. At about 9:00 pm both PW-1 and PW-11 had returned,
but, her victim sister PW-19 did not return. On being asked, PW-1 and PW-
11 informed that one boy had taken away PW-19 with him from the market
area situated nearby the Syndicate Office and thereafter they went to search
the victim and ultimately they found her victim sister near United Bank of
India, Jatanbari Branch. They also found one boy near her sister, but, when
PW-2, Kalpamohan had flashed his torch said boy left the place.
Thereafter, the victim „D‟ returned home in a frightened condition and on
being asked she told that the said boy had raped her inside a pump house
and also gave some slaps on her cheek. On the following day at 12:00 noon
when her victim sister was returning to home from school, the said boy
along with 2/3 persons persuaded the victim girl by a vehicle had
approached the victim girl, then, her sister along with her friends had
rushed to the house. The incident of the second day was informed to her by
her victim sister (PW-19). She deposed that she did not know the names of
those persons and would not be able to identify them.
15.1 During examination by the court, she stated that there were so
many adjacent quarters around her quarters. She also named the persons
who used to reside in the said quarters at that time. She further stated that
Jatanbari Police Out Post was situated at a visible distance from her
quarters. She did not personally lodge any ejahar concerning the said
incident. She denied all other suggestions.
16. PW-5, Sri Khetrajoy Tripura deposed that the victim (PW-19)
was the younger sister of his wife. He deposed that on 22.02.2016 at about
8:00 pm when the victim „D‟ was going to their private tutor‟s house along
with PW-1 and PW-11, the accused-appellant took victim „D‟ to a pump
house situated at the back side of a Government quarters behind the motor
syndicate office at Jatanbari and raped her there. On the following day also
the accused-appellant along with others tried to restrict movement of the
victim „D‟ and PW-1 and PW-11, but, they had managed to return their
house. He further deposed that after some days police had seized the
wearing apparels of the victim by preparing seizure list where he put his
signature (Exbt.3). He identified the accused-appellant at the court room.
16.1 Being confronted with cross-examination, PW-5 deposed that
there were so many quarters in the complex which were occupied by the
other officials. He stated that Jatanbari Police Outpost was about 1 km from
his quarters and to go to his office, he used to pass the said Police Outpost.
There were so many shops between his quarters and the Police Outpost. He
stated that he personally did not lodge any ejahar concerning the said
incident. PW-5 in his cross-examination stated that he did not state to the
police that the accused-appellant had given a kick to the back side of the
victim before commission of rape. He also did not state to the police that he
knew the accused prior to the said incident. During cross-examination, PW-
5 divulged that there were some shops nearby the syndicate office and to go
to the school, victim „D‟ was required to cross the syndicate office.
17. PW-6, Sri Mitrijoy Tripura was the father of the victim „D‟.
He deposed that he came to know from PW-5 that his daughter was raped
by a Bengali boy while she was going to her private tutor‟s house. His son
Kalpamohan Tripura (PW-2) also informed the said incident to him.
17.1 In his cross-examination, PW-6 stated that he did not state to
the police that Khetrajoy i.e. PW-5 told him that the said miscreant was
Bengali boy. Being questioned, PW-6 being the parent stated that he could
not say the exact date of birth of the victim, but, her year of birth was 2000
A.D. He denied the suggestion that the victim was born in the year 1990.
18. PW-3 was declared hostile.
19. PW-7 being the stuff nurse at Natunbazar Rural Hospital
deposed that Dr. Sourav Bhowmik had examined the accused Sushanta
Banik in her presence. Seizure list was prepared. She identified her
signature (Exbt.4) on the said seizure list.
20. PW-8 being the stuff nurse of Natunbazar Rural Hospital was
also a seizure witness.
21. PW-9 Sri Rajib Rudra Paul was a constable and the witness to
seizure of the wearing apparels (Exbt.M.O.1/1 and Exbt. 1/8) of the
accused-appellant i.e. one shirt, 2 T-shirts, one brief, one vest, two full
pants and one belt.
22. PW-10, Sri Kamal Hossain was posted as constable and was a
witness of seizure of the vehicular documents.
23. PW-12 was the private tutor. Nothing material came out of her
deposition.
24. PW-13 being a constable was a witness of seizure of wearing
apparels of the victim which were seized by S.I. Ramendra Debbarma by
preparing seizure list. She identified her signature in the seizure list.
25. PW-14 was another constable who witnessed the seizure of
wearing apparels of the accused-appellant by S.I. Ramendra Debbarma by
preparing seizure list. He identified his signature in the seizure list.
26. PW-15, Sri Chitta Ranjan Das was posted as Headmaster of
Ek Jatankumar High School where the victim girl used to study at Class-X.
He issued a certificate (Exbt.12) stating the date of birth of the victim on
07.03.2000. He identified his signature in the seizure list of the said
certificate as Exbt.12/1.
26.1 During cross-examination, he stated that police did not seize
the admission register. He further stated that he was not posted at the said
school when the victim girl got admitted. He further stated that he did not
mention before the police authority that after consulting the admission
register, said certificate was issued. He denied the suggestion that the date
of birth of the victim in the certificate had been mentioned as per the
request of police officer.
27. PW-16, Sri Sunil Kr. Singh, was a Judicial Magistrate 1st
Class who recorded the statement of the victim girl (PW-19) as well her
friends (PW-1 and PW-11) under Section 164 of CrPC. He read over the
contents of the statement which was marked as Exbt.9/1 and he identified
his signature as Exbt.9/2. He stated that he did not specifically mention that
whether PW-1, PW-11 and PW-19 had given their statements voluntarily.
28. PW-7, a police constable was a witness to the seizure of the
school certificate.
29. PW-18, the O.C. of the Natunbazar P.S.
30. PW-20 was the Scribe of the ejahar (Exbt.13/2). He deposed
that he had written the ejahar.
31. PW-21, S.I. Ramendra Debbarma had investigated the case.
He deposed that he visited the place of occurrence, prepared hand sketch
map with separate index of the places of occurrence. There were two places
of occurrence, one near the bus syndicate and the other at the pump house
behind the syndicate. He identified the maps of both the P.Os. (Exbt.15 and
Exbt.16) respectively and he identified his signatures thereon (Exbt.15/1
and Exbt.16/1). Thereafter he deposed that he seized the wearing apparels
of both the victim and the accused. He arranged medical examination of the
victim girl and also sent them to the Judicial Magistrate for recording their
statements under Section 164 of CrPC. He also collected the reports of the
samples from the State Forensic Science Laboratory which were being sent
by him for examination.
31.1 During his cross-examination, he stated that before lodging of
the relevant FIR, there was no other information about the alleged incident.
He further stated that there was no mention of index PO in the hand sketch
map behind the Girls‟ Hostel.
31.2 PW-21 stated that there were shops and syndicate office which
were to be closed at 7/7:30 pm. There were so many residential quarters.
He further stated that in the 2nd map index „L‟ indicates the cowshed of
Pradip Das which was in front of index „M‟, but, he did not examine Pradip
Das. He further deposed that in the FIR there was no mention that the
victim was raped near the pump house. He stated that the alleged date of
incident was Monday, but, he did not examine anybody from the pump
house and BSNL office which were situated side by side. He further stated
that he did not examine anyone from the index „M‟ i.e. the Girls‟ Hostel.
PW-21 also did not examine the private tutor Sanjit Debbarma. He further
stated that neither he seized the Attendance Register of the school as to
whether the victim attended the school on that day nor he verified the same.
He did not examine the Headmaster or any teacher of the school. He did
not verify the nursery school records or any records prior to the existing
school. He collected the school certificate through constable Kishore
Karmakar. In his cross-examination PW-21 stated that he did not conduct
any T.I. parade during his investigation.
31.3 During cross-examination, PW-21, the I.O. specifically stated
that PW-1, Bindu Rani Tripura did not state to him that the private tutor of
nephew of PW-11 told them about the name of the person who obstructed
their way as Sushanta Banik. He denied the suggestion that identification of
the accused was not correct.
32. PW-22, Smt. Mina Kumari Debbarma, Dy. SP, Gomati took
over the charge of investigation while she was posted there on 16.03.2016.
She deposed that she examined the victim and other witnesses on
18.03.2016, but, did not record their statements under Section 161, CrPC as
they disclosed the same which were recorded by her previous I.O. She
further deposed that she arranged for T.I. parade on 21.03.2016 as per order
of the court. She examined the scribe and submitted charge-sheet.
33. PW-23, Sri Saikat Das deposed that he was posted as Judicial
Magistrate Ist Class at Udaipur on 21.03.2016 and conducted T.I. parade of
two suspects namely Sushanta Banik at 3:20 pm in the District Jail,
Udaipur. He deposed that during T.I. parade the witness identified the
accused Sushanta Banik and two others namely Baban Das and Tutan Das
by pointing finger upon them and by touching them. The communication
between the victim and him were translated by one Pradip Kr. Tripura who
was well conversant in Kokbarok and Bengali. PW-23 identified the report
of the parade along with his signatures (Exbt.1/3). He also identified the
certificate on oath marked as Exbt.18. He identified his signature on the
said certificate as Exbt.18/1. The signatures of the victim and the witnesses
in the report of T.I. parade were marked as Exbt.1/3 and he identified his
signature which was marked as Exbt.1/4 in the said report.
34. In his cross-examination, PW-23 stated that he did not
mention the age and physical stature of the participant inmates of the T.I.
parade. But, it was mentioned in his report that they were of similar height.
35. PW-24, Dr. Sourav Bhowmik deposed that 25.02.2016 he was
posted at Natunbazar Rural Hospital as medical officer. The victim was
produced before him by a woman constable. The victim „D‟ narrated the
incident to him. He examined the victim and on examination, PW-24 found
the following injuries:-
"Description of the injury:-
1. One contusion present on the right cheek horizontally 2 cm
away from the angle of the mouth over an area of 2cm X 0.5cm. Colour-
brown, age of injury 2 to 4 days.
2. One contusion present on the left cheek horizontally 3 cm away
from the angle of the mouth (left) over an area of 0.5 X 05 cm, colour-
brown, age of the injury 2 to 4 days.
3. Five linear contusion present over the left breast obliquely
placed at the level of the fourth rib in the mid clavicular line over an
area of 5 cm X 4 cm, colour-brown, age of injury-2 to 4 days.
4. One contusion present right side of the back at the level of the
th
6 thorasic vertebra 8 cm away from the mid line over an area of 5 cm X
4 cm, colour-brown, age of injury- 2 to 4 days.
5. Four linear abrasion present on the right leg in the middle of
the right leg in the inner side over an area of 2 cm X 1 cm, colour-dark
brown, age of injury- 2 to 3 days.
6. One laceration present on the perineum outside the vagina
below the fourchette in the mid line measuring 2 cm X 0.25 cm X skin
depth, avulsion of the skin of the forchette occurred, blood stained serum
was coming out from the middle of the wound during examination, age of
the injury-3 to 4 days.
The victim had 30 numbers of permanent teeth and she was well
dressed. Hymen was torn and was oedematous and blood serum was
coming out from the torn part, age of the tearing was 3 to 4 days. Cervix
was nulliparous (not yet given birth) and WNL. Vaginal canal-no visible
injury was found during examination. Vaginal orifice permits two fingers
and it was painful."
After examination, PW-24 opined that there were signs of
recent vaginal penetration or recent sexual intercourse and there were no
signs of intoxication. On identification the report was marked as Exbt.19
and his signature was marked Exbt.19/1.
35.1 PW-24 further deposed that on the same day he also examined
one Sushanta Banik, S/o Sri Sanjit Banik, aged 24 years, in connection with
the same case and on examination, he opined that there was nothing to
suggest that the above person is incapable of performing sexual intercourse.
PW-24 identified his report dated 27.02.2016 as Exbt.22 and his signature
on the said report was identified as Exbt.22/1.
35.2 During cross-examination, he stated that the age of the victim
as recorded in the certificate was on the basis of oral information. There
was no age proof document. In the history there was no mention of rape.
He further stated that he had mentioned that no abnormality was detected in
the labia minora or labia majora. The doctor further stated that he did not
send the victim for ossification test, but, he himself conducted the dental
examination and further stated that "according to my report the 3rd molar
teeth was present on both right and left lower jaw meaning thereby she was
above 17 and below 25 years at the time of examination." He further
deposed that he did not find any injury in the vaginal canal.
36. PW-25, Dr. Sabyasachi Nath, Sr. Scientific Officer of the
State Forensic Science Laboratory deposed that he examined the exhibits
under biology/serology division of our laboratory and on examination he
opined as follows:-
"(i) No seminal stain/spermatozoa of human origin could be
detected in the exhibits marked as Exbt.A(a), A(b), B(a), B(b), B4, C, D,
E, F and G.
(ii) No blood stain/skin-like structure was detected in the
Exbts.A3 and B3.
(iii) Pubic hair of human origin were detected in the Exbts.A2
and B2, but no opinion could be given regarding matching of the samples
with each other."
PW-25 proved his report as Exbt.24 and his signature as
Exbt.24/1.
37. ANALYSIS :
We are well conscious that cases of rape have to be dealt with
utmost sensitivity. "The court should examine the broader probabilities of
a case and not get swayed by minor contradictions or insignificant
discrepancies in the statement of prosecutrix, which are not of a fatal
nature to throw out and otherwise reliable prosecution cases".[State of
Punjab Vrs. Gurmeet Singh, (1996) 2 SCC 384]. Keeping in mind the
aforesaid principle, we shall re-appreciate and re-evaluate the evidence in
order to determine the sustainability of the judgment and order of
conviction and sentence passed by the learned Special Judge.
37.1 Learned Special Judge while convicting the accused held that
the age of the victim below 18 years had been proved and the description of
the rape had also been proved beyond reasonable doubt.
It is no more res-integra, rather, settled that conviction may be
recorded on the sole testimony of a victim of rape, if, her evidence inspires
confidence. To deal with a case of rape or sexually assault, we must be
alive to our responsibility. It is also equally true that the evidence of a
victim of rape stands almost on a par with the evidence of an injured
witness and to an extent even more reliable. However, burden lies on the
prosecution to prove the charge against the accused. Further, before
returning a finding of guilt, the Courts also to keep in mind that life and
liberty of a person is precious so that fundamental rights of a person
accused of an offence is not breached as enshrined under Article 21 of
Constitution of India.
37.2 In the instant case, we should proceed cautiously and with
utter sensitivity to decide whether the evidence of the victim and her two
companions, PW-1 and PW-11 inspired confidence. According to us, the
conduct of a victim of rape is also required to be scrutinized with sense of
responsibility. Keeping in view the basic feature of our Constitution that
right to life, live and liberty are the precious right to be enjoyed by the
citizens of this country.
37.3 On careful reading of the evidence of all the witnesses,
according to us, the most vital witnesses are PW-19, the victim herself;
PW-1, PW-11, the two companions of the victim; PW-2, PW-4, the
brother and sister of the victim and two doctors i.e. PW-24 and PW-25. On
close scrutiny of the evidence of PW-19, we find that she deposed that she
was forcefully taken away by the accused from a place near the Girls‟
Hostel. On being threatened, her two friends (PW-1 and PW-11) had left
the place and thereafter taking her near the Girls‟ Hostel the accused
committed rape upon her, but, she has categorically stated in her deposition
that she did not divulge the incident to anybody out of shame though she
used to stay along with her close relations i.e. her elder sister (PW-4) at her
quarters. She did not tell the incident even to her sister out of shame.
During T.I. parade she identified the accused who committed the rape. In
her deposition, she also stated that her statement was recorded by the
Magistrate. It takes us to read her statement recorded under Section 164
CrPC. We have noticed that though the incident had occurred on
22.02.2016 at about 8/8:30 hours in the evening, PW-19 being the victim of
the incident had lodged the complaint to the police station for the first time
on 25.02.2016 at 16:09 hours and the statement of the victim „D‟ was
recorded immediately thereafter i.e. on 26.02.2016. In the said statement, it
transpires that she has mentioned the name of one "Raj" who restrained her
on 22.02.2016 at 8:00 hours and forcibly took her to the back side of the
Girls‟ Hostel of E.K. Jatanbari School. She further stated that the accused
slapped and kicked her from back side. Thereafter, he forcibly committed
rape upon her. On 23.02.2016 at about 1:00 pm, when she was returning to
home from school at that time also the accused along with other 3/4
persons came closely to her by a Maruti vehicle and tried to restrain her,
but, she managed to escape from their clutches. Her statement recorded
under Section 164, CrPC may be reproduced hereunder, in extenso, for
convenience:-
"On 22/02/2016 at about 2000 hrs when I along with two other
friends were going to have tuition and on the way at JTB Syndicate one
Raj restrained me and threatened to my friends to go from there.
Thereafter, he forcefully took me at the back side of girls‟ hostel of JTB
and caused hurt by slapping and kicking me from back side. Thereafter,
he forcefully committed rape on me and threatened me with dire
consequence to kill me if I disclosed the matter to anyone. On 23/02/16 at
about 1300 hrs. when I was returning to home from school at that time
again he and along with 3/4 others persons by a Maruti vehicle tried to
restrain me but I managed to escape from there clutches."
37.4 In course of trial, during her evidence, she never implicated
„Raj‟, who according to her 164 CrPC statement restrained and committed
rape upon her. She also did not relate Raj with Sushanta Banik, the accused
herein. Prosecution has failed to relate Sushanta Banik, the accused with
that Raj. Question, naturally arises in our mind when PW-19 at first her
statement recorded under Section 164 of CrPC had implicated Raj as
offender of the incident, then, why she had named Sushanta Banik later on.
The matter would have been different if there was any indication or there
was any evidence that Sushanta Banik himself was known as „Raj‟. None
of the witnesses even the police witnesses had failed to relate Raj with
Sushanta Banik, the accused. Even in course of hearing of this appeal, we
posed question to the learned Addl. P.P. appearing for the State-respondent
to justify link of Raj with the commission of crime, or how Raj was related
to Sushanta Banik, the accused, but, he failed to show any such link or
relation between Sushanta Banik and Raj.
37.5 Next, it is clear to us that the offender of rape was very much
known to PW-19 (victim) and for that reason she identified the boy as „Raj‟
in her recorded statement under Section 164 CrPC. Again, the question is,
why she did not identify the person in the T.I. parade as Raj. We have
noticed that the accused-appellant has been examined under Section 313(1)
(b) of CrPC as Sushanta Banik alias Tantu, but, not as alias Raj.
37.6 During her cross-examination, inviting attention to her
statement recorded under Section 164 of CrPC she was asked whether she
told the name of Sushanta Banik in her 164 CrPC statement before the
Magistrate, but, it was observed by the learned Special Judge that PW-19
took a long pause and did not say anything. It appears to be surprising to us
when she was given the opportunity to identify Raj as Sushanta Banik she
remained silent, a mystery still looms large in our conscious consideration
of her evidence. It is further revealed that she was noticed as to whether she
disclosed the name of her two friends in her statement recorded under
Section 164 of CrPC, but, at that time also she took a long pause and
remained silent as observed by the learned Special Judge during recording
of her evidence.
37.7 Another important aspect, we find in her evidence that she has
specifically stated that she does not know the contents written in the
complaint (ejahar). Question further arises that the victim did not divulge
the incident of rape to anyone even not to her elder sister (PW-4) as
according to her deposition she did not tell the incident to anybody.
Though, it is stated that out of shame she did not divulge the incident, but,
we question ourselves, how far the said statement is true? There are other
important factors that also require to be minutely scrutinized. From the
evidence of the witnesses it comes to fore that there were so many adjacent
quarters, shops and bus syndicate office wherefrom the victim was
abducted i.e. it was a market area. PW-1, the friend of victim, PW-3, one
private tutor (independent witness) have categorically stated that the shops
and the syndicate office used to remain open till 9/10 pm.
37.8 From the evidences of PW-1, PW-2 and PW-4, it appears that
they stated that after coming out of their house to search for the victim,
when they reached near the bank, both the victim as well as the accused
were coming on foot. PW-1 has specifically stated that being found them
they asked the victim as to what happened, but, the victim did not inform
them anything and went to her home. PW-1 further stated that till the date
of her evidence before the trial court the victim did not tell her anything
about the incident.
37.9 PW-2 being the brother of the victim has deposed that during
search he found one hand of his victim sister and hand of one boy were
clutched together and when he flashed his torch, the boy had fled away.
PW-11 corroborated the said statement in her evidence. Question is why
the victim whose chastity and modesty was just ravished, if it was at all
true, did not react? Was it not inconsistent with the normal human conduct
of a girl who faced forceful rape with so many injuries.
37.10. In quite variations of these statements made by PW-1, PW-2
and PW-11, only PW-2, the brother and PW-4 the elder sister of the victim
girl have stated in their evidences that being found her sister on search she
divulged that the boy had committed rape upon her, but, yet again, it
reminds us most reasonably that the victim „D‟ (PW-19) herself deposed
that she did not disclose the incident to anybody who found them on
search. It is unfortunate that both the investigating officers, Sri Ramendra
Debbarma (PW-21) and Smt. Mina Kumari Debbarma (PW-22) did not
take care to get more information regarding the true identity of the accused
by questioning the informant and her companions (PW-1 and PW-11). One
more issue, which strikes our mind is, the victim "D", neither in her
recorded statement under Section 164 Cr.P.C. nor during the course of trial
had supported this particular version of P.W.2 and P.W.4. Rather, she very
specific to her deposition that she did not disclose anything to anybody on
that night despite being asked as to what happened to her which would be
apparent from the statement of P.W.1 and P.W.11, the friends who also
accompanied P.W.2 and P.W.11 during search.
37.11. Furthermore, from the deposition of P.W-2, an important
circumstance has come to fore that P.W.19 and the boy were not clearly
visible. P.W.2 flashed his torch and found their hand clutched together,
when the boy fled away. This situation throws a light except P.W.19, it was
not possible to easily identify the boy, and it was P.W.19. Being their
clutched together is indicative to the fact that both P.W.19 and the boy
were intimate to each other.
37.12. Further, the circumstances that the victim „D‟ was forcibly
abducted by the accused-appellant from a place where there were many
shops, and one bus syndicate office, particularly, when those shops were
open as surfaced from the depositions of the prosecution witnesses i.e. PW-
1 and PW-3 (cross-examination), and that both the victim and the accused-
appellant were found together, even the hand of the victim was being held
by the accused, but, to utter surprise, the victim did never try to raise alarm
and quite surprising to note that she never complained against the boy
along with whom she was witnessed at about 8:30 pm. According to us, it
is hard to digest that she was forcibly abducted and raped. Yet another
strange circumstance, we find in the present case, that the victim was
further approached by the accused and his friends on the very next date
while she was returning from school and she had rushed towards her house,
but, even then, neither she nor PW-1 and PW-11 or any of her relatives had
lodged any complaint to the police station which was not far away from
their quarters. Furthermore, neither her elder sister (PW-4) nor his brother
PW-2 had lodged any complaint and they lodged the FIR only on
25.02.2016. The prosecution has not come up with any explanations as to
why FIR was not lodged on 22.02.2016 or at least on 23.02.2016.
37.13. Furthermore, we have noticed that none of the prosecution
witnesses particularly, the witnesses who found the victim along with the
accused has stated that any of the wearing apparels of the victim was found
to be torn or any signs of injury in any parts of her body, particularly, the
injuries in the cheek which were very much visible at her appearance
before them. According to PW-24, the doctor who examined her on
25.02.2016 stated in his description of injuries that --"(1) One contusion
present on the right cheek horizontally 2 cm away from the angle of the
mouth over an area of 2cm X 0.5cm. Colour-brown, age of injury 2 to 4
days. (2). One contusion present on the left cheek horizontally 3 cm away
from the angle of the mouth (left) over an area of 0.5 X 05 cm, colour-
brown, age of the injury 2 to 4 days." But, there is no evidence as to who
caused these injuries and as to how. The prosecution has not made any
attempt to unfold the fact as to how those injuries were caused. Again, it
strikes our mind that if those injuries were caused PW-24 also has not said
anything as to how those injuries in the cheek and other parts of her body
have been caused. Deepening the mystery more, the victim herself
remained silent all along regarding the cause of those injuries. The Doctor
(PW-24) found the hymen of the victim was torn and blood stain serum
was coming out from the torn part and such torn was caused 3/4 days prior
to her examination. There were no visible injuries in the vaginal canal and
ultimately, he opined that there were signs of recent vaginal penetration or
recent sexual intercourse.
37.14. Now, after careful scrutiny and evaluation of the
circumstances, we have discussed here-in-above, can we safely arrive at a
finding that such intercourse was forceful or was made with the consent of
the victim? According to our thoughtful consideration, it will not be safe
for us to conclusively held that the accused is guilty of committing rape as
defined under Section 375 of IPC, which reads as under:-
"375. Rape.-- A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus of a woman or makes her to do so with him or any other
person; or
(b) inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of a woman or
makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause
penetration into the vagina, urethra, anus or any part of body of such
woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or
makes her to do so with him or any other person,
under the circumstances falling under any of the following seven
descriptions:
First.Against her will.
Secondly.Without her consent.
Thirdly.With her consent, when her consent has been obtained by putting
her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.With her consent, when the man knows that he is not her
husband and that her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully married.
Fifthly.With her consent when, at the time of giving such consent, by
reason of unsoundness of mind or intoxication or the administration by
him personally or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and consequences of
that to which she gives consent.
Sixthly.With or without her consent, when she is under eighteen years of
age.
Seventhly.When she is unable to communicate consent.
Explanation 1.For the purposes of this section, "vagina" shall also
include labia majora.
Explanation 2.Consent means an unequivocal voluntary agreement when
the woman by words, gestures or any form of verbal or non-verbal
communication, communicates willingness to participate in the specific
sexual act:
Provided that a woman who does not physically resist to the act of
penetration shall not by the reason only of that fact, be regarded as
consenting to the sexual activity.
Exception 1.A medical procedure or intervention shall not constitute
rape.
Exception 2.Sexual intercourse or sexual acts by a man with his own
wife, the wife not being under fifteen years of age, is not rape."
On plain reading of the above definition of "rape" it is quite
obvious to constitute an offence of rape a man has to penetrate his penis to
an extent to the private parts of a woman against her will is without her
lawful consent as enumerated in the second, third, fourth, fifth, sixth and
seventh circumstances under Section 375 of IPC.
38.1 On plain reading of the above definition of „rape‟ it is quite
obvious that to constitute an offence of rape a man has to penetrate his
penis to an extent to the private parts of a women against her will i.e.
without her lawful consent as enumerated in the second, third fourth, fifth,
sixth and seventh circumstance under Section 375 IPC.
38.2. On a bird‟s eye view of the entire episodes, in our considered
view, the oral testimony of the victim that she was forcibly taken away by
the accused from a market area, and subsequently subjected to forceful
rape, seemingly appear to be not inspiring to this court, and thus fail to
attract the confidence of this court to believe the prosecution story. The
entire circumstances starting from her taking away by the accused while
she was proceeding towards the house of her private tutor along with PW-1
and PW-11, her appearance along with the boy who was known to her as
„Raj‟, touching with each other‟s hand, not raising alarm or without any
cry, her silence after facing such atrocities towards her body and mind
leads us to suspect whether she was forcibly abducted and raped against her
will. It is equally true, if the age of the victim is considered as 16/17 years
at the time of commission of offence, then, such consent would not be a
lawful consent and in that case, the accused must be convicted.
39.3 Question, thus falls for consideration as to whether the
prosecution has been able to prove the circumstance that at the time of
commission of offence the victim was minor i.e. under 18 years. There was
no ossification test, the school certificate has not been proved in
accordance with the essentialities of Section 35 of the Indian Evidence Act.
The father of the victim could not say the actual date of birth of the victim.
Even the victim has not stated her date of birth during her evidence before
the court, though the learned Special Judge has recorded in his findings that
the victim girl had deposed during evidence that she was aged about 16
years at the time of commission of offence. In this circumstance, we find
the Doctor (PW-24) after detecting the growth of 3rd molar teeth in both
right and left lower jaws came to a finding that the victim was above 17
and below 25 years at the time of examination i.e. at the time of incident.
39.4 Having regard to the plus minus two years, according to us, at
the time of the incident the victim was attaining the age above 18 years, in
other words, she was consenting age at the time of the incident.
39.5 Again we are to revert back as to the identification of the
accused, whether, actually, the accused was „Raj‟ or „Sushanta Banik alias
Tantu‟. PW-1 and PW-11 have stated in their depositions that they came to
know about the name of the accused Sushanta Banik from a nephew of
their private tutor, but, this statement has not been substantiated since the
said nephew has not appeared before the witness box to corroborate this
statement and the prosecution also has not made any endeavour to bring the
nephew into the witness box.
39.6 Section 60 of the Evidence Act envisages that oral evidence
must be direct. It reads as under:-
"60. Oral evidence must be direct.--Oral evidence must, in all cases
whatever, be direct; that is to say--
If it refers to a fact which could be seen, it must be the
evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the
evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other
sense or in any other manner, it must be the evidence of a witness who
says he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that
opinion is held, it must be the evidence of the person who holds that
opinion on those grounds:
Provided that the opinions of experts expressed in any treatise
commonly offered for sale, and the grounds on which such opinions
are held, may be proved by the production of such treatises if the
author is dead or cannot be found, or has become incapable of giving
evidence, or cannot be called as a witness without an amount of delay
or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or
condition of any material thing other than a document, the Court may,
if it thinks fit, require the production of such material thing for its
inspection."
39.7 Approving the view of the Hon‟ble Gujrat High Court in the
case of Kanbi Vaghji Savji v. State of Gujarat, (AIR 1968 Gujarat 11) the
Apex Court in Bhugdomaul Gangaram & Ors. Vrs. State of Gujarat,
(1984) 1 SCC 319 has held that under Section 60 of the Evidence Act,
testimony of a witness based on information of another person would not
be admissible in absence of examination of the informant as a witness.
Similarly, where witness had no personal knowledge about the accused‟s
role or his involvement in the crime, his testimony with the accused had
committed a certain offence would be inadmissible in absence of
examination of the accused as a witness in that regard.
39.8 In the case in hand, the oral testimony of PW-1 and PW-11 in
regard to the name of the accused was supplied by a nephew of the private
tutor, but, since the said nephew has not been examined to support this
statement of PW-1 and PW-11, such of their testimony as per se hearsay
and is inadmissible under Section 147 of the Evidence Act on the ground
that the evidence of PW-1 and PW-11 regarding the name of the accused
has not been corroborated by the informant nephew appearing as a witness.
40. In our considered view, mere a school certificate cannot form
the basis of determining the age of a person unless and until it is
corroborated by other reliable evidence as contemplated under section 35
of the evidence act. In the case in hand, PW-15 being the Headmaster of
the school appeared in the witness box to prove the school certificate
(Exbt.12). He has stated in his evidence that- "the said certificate was
issued after consulting their admission register". But, strangely enough, the
said admission register relating age of the victim girl has not been produced
or proved in course of evidence. The Headmaster in his cross-examination
has stated that the investigating officer did not seize the admission register.
Even, the related witness, particularly, the father of the victim girl has not
stated that the date of birth of his victim daughter was recorded as per his
version. Rather, he has stated that "he has no knowledge about the date of
birth of his victim daughter". In that eventuality, we are more inclined to
rely upon the evidence of doctor (PW-24) who has stated that at the time of
incident the victim daughter was attaining age of 17 years and below 25
years and thus, we hold that the victim was above 18 years. We have
noticed that the defence had put a suggestion to the victim that at the time
of incident she was attaining age of more than 21 years.
41. Now, questions to be determined whether a conviction can be
sustained on the basis of soul circumstance that the victim had indentified
the accused in test identification parade.
41.1 The accused had been put to test identification parade. Facts
identifying an accused are relevant under Section 9 of the Indian Evidence
Act. Generally, test identification parade (for short, T.I. parade) is
conducted during investigation stage primarily with the object to enable the
witnesses to identify person or persons concerned for the offence, who
were not previously known to them as held in the case of Budhsen & Anr.
Vrs. State of U.P., (1970) 2 SCC 128 by the Apex Court. It is also held that
the exercise of T.I. parade-"serves to satisfy the investigating officers of the
bona fides of the prosecution witnesses and also furnish evidence to
corroborate their testimony in court. Identification proceedings in their
legal effect amount simply to this; that certain persons are brought to jail
or some other place and make statements either express or implied that
certain individuals whom they recognize as having been concerned in the
crime. They do not constitute substantive evidence. These parades are
essentially governed by Section 162 of the Criminal Procedure Code."
41.2 The Hon‟ble Supreme Court further held in Budhsen (supra)
that- "the persons required to identify an accused would have had no
opportunity of seeing him after the commission of the crime and before
identification and secondly that no mistakes are made by them or the
mistakes made are negligible. The identification to be of value should also
be held without much delay." Thereafter, the court held that "the evidence
as to identification deserves, therefore, to be subjected to a close and
careful scrutiny by the court." The ratio of the apex court in Budhsen
(supra) has subsequently been followed in many decisions on this subject.
41.3 In the instant case, PW-1, PW-11 and PW-19 (victim) went to
the jail to identify the boy, who according to them was not seen prior to the
date of incident. Now, let us re-look the evidence of PW-1 which is
relevant to T.I. parade. Being confronted with cross-examination, she
categorically stated that before identifying Sushanta Banik in Udaipur Jail,
she had seen the accused Sushanta Banik at Natunbazar PS at the instance
of police. Her statement may be reproduced in verbatim hereunder:
"Before I identified Susanta Banik in the Udaipur
Jail, Police once showed Susanta Banik to me at Natunbazar
PS."
This Statement in cross-examination obviously proves that
after commission of the crime on 22.02.2016 and before identification on
21.03.2016, accused Sushanta Banik was shown to P.W.1 by the police at
the police station itself raises serious suspicious circumstances about the
fairness in conducting the T.I parade organized by the investing officer for
the purpose of indentifying the accused.
41.4. Further, during conduct of T.I. parade, PW-1 being asked by
the Magistrate stated that she saw the accused persons including Sushanta
Banik on 23rd of a month while she along with the victim (PW-19), and
another were returning from their tutor‟s house. In her examination-in-
chief, PW-1 stated that on 23.02.2016 Sushanta Banik along with two other
persons obstructed their way while they were returning to their respective
homes from school. She specifically stated that the names of the other two
persons were not known to her, but, she would be able to identify them by
face. It will be useful to extract her whole statement hereunder, for
convenience:
"On the following day at about 12 pm in the noon I along with victim „D‟
and Sadhe Rani Tripura were returning to our home from school and at
that time near United Bank of India said Susanta Banik along with 2
other persons arrived there with a Maruti Van and obstructed our way. I
do not know the names of said two persons but I will be able to identify
them by face."
This very statement implies that Sushanta Banik was very
much known to PW-1, but, other two persons were not known to her.
Though, in later part of her examination-in-chief, she stated that she came
to know the name of the accused as Sushanta Banik from the private tutor
of nephew of PW-1 who knew Sushanta Banik, but, inviting her attention
to this statement with her recorded statement under Section-161 Cr.P.C
during her cross-examination it was found absent, which she also admitted.
So, from the nature of evidence she led, we can easily come to the
conclusion that the police themselves had once shown the accused to her at
Natunbazar PS. Furthermore, the accused was very much known to her
even prior to the incident, which she wanted to suppress for the reason best
known to her, but; of course, left behind many questions in our mind
regarding the reliability of her testimony.
41.5 PW-11 being produced during conduct of T.I. parade stated to
the Magistrate that prior to the incident, she saw the accused Sushanta
Banik near a pond at their locality. PW-19, the victim „D‟ being asked by
the Magistrate during T.I. parade stated the same fact that she saw the
accused person, prior to the incident, near a pond at their locality and after
that on one 23rd of a month when she was returning from her private tutor‟s
house the accused Sushanta Banik pulled her by her hand. If we believe the
statements of PW-11 and PW-19, we find that both of them had seen the
accused Sushanta Banik prior to the incident, near a pond at their locality.
The victim herself during T.I. parade stated that she saw the accused
Sushanta Banik on 23rd of a month while she was returning from her
private tutor‟s house and dragged her in a nearby jungle near the hostel
where the accused forcibly disrobed the victim „D‟ and raped her.
41.6 From their statements, it transpired that both PW-11 and PW-
19 had seen the accused prior to the incident near a pond at their locality
which is quite indicative that accused Sushanta Banik was known to both
of them even prior to the incident. Curious enough, PW-19 (the victim) as a
witness during the conduct of T.I. parade had mentioned the date of offence
as on 23rd, but, neither the prosecution during course of trial nor the learned
Special Judge had tried to clarify the discrepancy in mentioning the date of
offence, which ought to have been made. We have seen the original copy of
the memorandum of T.I. parade from the case docket and we find no
variation in the original copy kept with the case docket. In a criminal trial,
where the life and liberty of a person is involved, this type of discrepancy
should be dealt with seriously keeping in view that the Courts have to
return a finding that the guilt of the accused has been proved beyond
reasonable doubt. However, according to us, discrepancy in mentioning the
date of offence as 23rd instead of 22nd as per the evidence let in by PW-19
during trial, we accept the date of offence as 22.02.2016 instead of
23.02.2016.
Question arises when the accused Sushanta Banik was known
to PW-11 and PW-19 as they stated that they had seen him prior to the
incident, near the pond of their locality, why they suppressed the name of
Sushanta Banik in their statements recorded under Section 164(5) of CrPC.
In our considered view, it will not be proper for us to forget the recorded
statement of the victim (PW-19) that it was "Raj" who committed the
offence and at the time of commission of offence, the offender was well
known to her, but, thereafter, mysteriously, PW-19 never tried to level any
charge against that "Raj" or to connect "Raj" with that of Sushanta Banik,
the accused herein.
42. One more aspect needs to be highlighted that PW-2 and PW-4
specifically deposed. PW-2, Sri Kalpamohan Tripura, has deposed as
under:
"Debangshree Tripura is my own sister. Both myself and Debangshree
stayed in a Govt. Quarters at Jatanbari which is allotted to my one
brother-in-law namely, Khetrajoy Tripura. On 22.02.2016 in the evening
Debangshree Tripura along with Bindurani Tripura and Sadherani
Tripura went to their private tutor‟s house at about 8.00 pm situated at a
alittle distance of from Jatanbari market. At about 8-30 pm or so, Bindu
Rani Tripura and Sadherani Tripura came to our quarters and informed
that when they were going to their private tutor‟s house at that time near
the Jatanbari Girls‟ Hostel one boy obstructed their way and threatened
them showing a bottle and also caught hold of Debangshree Triupra.
Then I along with Sadherani Tripura and Bindurani Tripura went out to
search Debangshree and ultimately, we found her near United Bank of
India, Jatanbari Branch. Debangshree was found frightened and at that
time one boy caught hold of her hand. Seeing us, that boy left the place
and I took Debangshree in our quarters. On my asking, Debangshree
told that said boy obstructed her way, caught hold of her and tried to
penetrate one broken wine bottle into the stomach of Debangshree. She
did not tell me anything further. No further incident occurred thereafter
on any occasion. I do no know the name of said boy who obstructed
Debangshree but I know his face but his face was not known to me prior
to said incident. I was interrogated by police concerning the incident. On
23.02.2016 I returned from the School at 1-15 pm and after my return
from school, Debangshree told me that on that day when she alongwith
Saderani Tripura and Bindurani Tripura were returning from school,
said boy with other three persons obstructed her way coming in a Maruti
Van and that boy tried to catch hold of her again and my sister and her
friends out of fear rushed to our house. I will be able to identify said boy
by face today in the Court. the witness indentifies the accused Susanta
Banik by face today in the Court to be the said boy."
42.1 Smti. Biramala Tripura (PW-4) has deposed as under:
"Debangshree Tripura is my younger sister. At the time of incident I and
Debangshree would reside in the Forest Department Quarters at
Jatanbari. On 22.02.2016 at about 8.00 pm Debangshree, Bindurani
Tripuraand Sadherani Tripura went to the house of their private tutor. At
about 9.00 pm only Bindurani Tripura and Sadherani returned to home
but Dehangshree did not return. On asking, Bindurani and Sadherani
informed that one boy had taken away Debangshree with him from the
market area situated nearby the Syndicate Office. Thereafter, Sadherani,
Bindurani and Kalpamohan Tripura went out of the home to search
Debangshree and ultimately, they got Debangshree near United Bank of
India, Jatanbari Branch. They also found one boy near Debangshree but
when Kalpamohan flashed his torch said boy left the place. Thereafter,
Debangshree returned to home in a frightened condition and on asking,
she told that said boy had raped her in side a pump house and also gave
some slaps on her cheek. On the following day at about 12.00 pm in the
noon when Debangshree, Sadherani and Bindurani were returning home
from School, said boy alongwith 2/3 persons persuaded Debangshree by
a vehicle and then Debangshree and her friends rushed to the house. The
incident of the second day was informed to me by Debangshree. I do not
know the names of those boys and will not be able to identify them."
43. We have given our thoughtful consideration as to how both
PW-11 and PW-19 had seen the accused on a day prior to the incident, near
a pond at their locality at a time together. This casts a serious doubt about
the very integrity of PW-11 and PW-19. Furthermore, if the offender could
be identified as "Raj" by the victim at the scene of crime itself, then, what
was the justification of conducting T.I. parade, a question put to ourselves.
In furtherance thereof, PW-1 has categorically stated that accused was
shown to her by the police at Natunbazar PS. According to us, the conduct
of T.I. parades suffers from very serious infirmities and irregularities,
which, ultimately renders that T.I. parade meaningless and insignificant
aimed at identifying the accused person. Yes, other two companions of the
accused were unknown to PW-1, PW-11 and PW-19 as well, and for those
two accused persons T.I. parade would have been conducted, but, these two
accused persons have been acquitted as they were found to be not guilty of
committing any offence. As such, we are not concerned about those two
acquitted persons to question the sustainability of the judgment and order
of conviction and sentence passed by the learned Special Judge on the basis
of the identification of the accused during T.I. parade.
44. According to us, the reliability of identification of the accused
by the victim of any offence or by any witnesses to the offence will be
governed by the circumstance that - (i) the victim or the witnesses must
have seen the accused persons for the first time of the occurrence of the
offence; (ii) the victim or the witnesses must not have an opportunity to see
the accused during the intervening period of the date and time of
occurrence on their production in the jail of any other place for the purpose
of identification of the accused persons.
More importantly, accused Sushanta Banik was known to the
witnesses of T.I. parade before its conduct, which according to us frustrates
the conduct of T.I. parade.
45. As we said earlier, in the case in hand, accused was shown to
PW-1 in the Natunabar PS by the police before she was produced in T.I.
parade. The evidence of identification must be supported by other relevant
and reliable corroborative evidence. It must be conducted at the earliest
possible opportunity in absence of any reasonable cause of delay.
Furthermore, it comes to fore that the accused Sushanta Banik had been
arrested on the same date the FIR was lodged i.e. on 25.02.2016, but, the
T.I. parade was conducted on 21.03.2016. The prosecution has failed to
explain as to why such delay was caused in conducting the T.I. parade after
arrest of the accused on 25.02.2016. True it is, that delay in conducting the
T.I. parade for identifying the accused may not be fatal in considering the
evidence of identification in a T.I. parade. There may be some examples
that after committing offence, the accused had fled away; it may be a case
of robbery where most of the culprits fled away after the incident, here, in
such cases TI parade is often delayed on account of the inherent difficulties
which the prosecution naturally faces in such cases; or the investigating
agencies may look for corroborative evidence like recovery of looted
articles, weapon of offence.
46. In our opinion, where there is an unnecessary delay or
inordinate delay in holding the T.I. parade, in spite of availability of the
accused persons just after receipt of the complaint by the police, the court
must adopt a cautious approach so as to prevent miscarriage of justice.
Again, such delay may probabilise possibility of the accused having been
shown to the witnesses, which actually happened in this case when the
police had shown the accused Sushanta Banik to PW-1 during his custody
at Natunbazar PS.
47. Considering the overall facts and circumstances, we are not in
a position to place enough reliance to the evidence of T.I. parade.
Therefore, the submission of learned Addl. P.P. as well as the finding of the
learned Special Judge seemingly not appear to be acceptable to us. We
should mention one of the most striking circumstances amongst the entire
chain of circumstances that the hand of the accused was seen in the hand of
the victim while returning to their home after commission of a heinous
crime like rape, which entirely ravished chastity of a young girl. The victim
was found along with the boy in that position by her relatives as well as her
friends (PW-1 and PW-11), but, did not disclose anything to either of them,
left with many questions to a prudent mind. The circumstances preceding
to the rape or subsequent to the rape, or even after the incident that
occurred on 23.02.2016 was not reported to anyone till the victim lodged
the FIR throws serious doubt about penetration against her will. Another,
astonishing feature is that, though, the victim‟s cheeks had suffered
lacerated injuries, quite visible from outside but neither her brother (PW-2)
nor her sister (PW-4) preferred to remain silent as to how those injuries
were caused. Prosecution did not try to explain this circumstance to any of
them when she had the opportunity to raise alarm and drawn the attention
of the commuters, shop owners and other persons at that time. We question
ourselves, is this a believable story?
48. In furtherance thereof, the Doctor had detected so many
injuries at various parts of her body, but, none of the witnesses during their
depositions stated that they had witnessed any sign of injuries as noted by
the Doctor when she was found at that night.
Conclusion:
49. Having given our thoughtful considerations to the entire chain
of events after being juxtaposed from the first circumstance to the last, we
are unable to link one circumstance with the next circumstance as emerged
from the prosecution witnesses and there are huge gaps between each of the
circumstances, which render the judgment and order of conviction and
sentence unsustainable.
50. Lastly, we must say that prosecution has miserably failed to
connect „Raj‟ whose name was first disclosed by the victim committing
offence with the accused Sushanta Banik alias Tantu and curious enough
no attempts have been made to link „Raj‟ with that of accused Sushanta
Banik. More so, we already have arrived at a finding that at the time of
intercourse the victim was attaining the consenting age.
51. In our ultimate analysis, the prosecution has failed to establish
the charges levelled against the accused Sushanta Banik beyond reasonable
doubt. It is settled proposition of law that suspicion however grave cannot
take the place of truth. In furtherance thereof, in our opinion, the victim as
well as the boy, he may be "Raj" or Sushanta Banik alias Tantu, appellant
herein are in hand in hand. Accordingly, the judgment and order of
conviction and sentence passed by the learned Special Judge (POCSO) in
Special 03 of 2016 (POCSO) shall stand set aside.
52. Accordingly, the appellant Sushanta Banik is acquitted of the
charges levelled against him and he be set at liberty forthwith if not
required in any other cases. Surety of the accused is also discharged from
the liability of the bail bond.
53. The appeal, accordingly, stands allowed and disposed of.
Connected application(s) if any, shall also stand disposed.
Send back the LCRs.
(ARINDAM LODH) J (AKIL KURESHI) CJ
sanjay
