Shri Kazi Rafikul Islam vs The State Of Tripura
2022 Latest Caselaw 318 Tri

                                       Page 1 of 13


                        HIGH COURT OF TRIPURA
                           A_G_A_R_T_A_L_A
                            Crl.A(J). No. 24 of 2020

1.       Shri Kazi Rafikul Islam, son of late Kazi Suraj Miah, resident of
         South Ramnagar, P.O. Agartala, P.S. West Agartala, District: West
         Tripura.
                                                            .....Appellant

                                     -V E R S U S-

1.       The State of Tripura.

                                             ..... Respondent.

B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD HON'BLE MR. JUSTICE ARINDAM LODH

For Appellant(s) : Mr. S. Lodh, Advocate.

For Respondent(s)             :         Mr. Samrat Ghosh, Addl. P.P.
Date of hearing              :          09.03.2022
Date of delivery of
judgment and order               :      16.03.2022
Whether fit for reporting        :      YES

                            JUDGMENT & ORDER
[T. Amarnath Goud, J]

Heard Mr. S. Lodh, learned counsel appearing for the appellant. Also heard Mr. S. Ghosh, learned Public Prosecutor appearing for the respondent- State.

[2] This criminal appeal under Section-374(2) of the Code of Criminal Procedure is directed against the judgment and order of conviction and sentence dated 13.12.2019 passed by the learned Special Judge (POCSO Act), Agartala, West Tripura, in connection with case No. Special (POCSO) 02 of 2016, whereby and whereunder, the appellant was convicted for committing offence punishable under Sections- 342/376(2) of IPC and Section-4 of the Protection of Children from Sexual Offences Act, 2012 [POCSO, for short] and sentenced him to suffer rigorous imprisonment for 10 years and to pay a fine of

Rs.25,000/- under Section-376(2) of IPC. Further, the appellant has been sentenced to suffer rigorous imprisonment for 6 months for the offence punishable under Section-342 of IPC with default stipulations. It was further directed that both the sentences shall run concurrently.

[3] The brief facts, leading to this case, is that on 21.09.2015, the victim (name withheld) aged about 11 years did not attend her school and therefore, the informant being mother scolded her. As a result, the victim was in the house of their relative whole day. In the evening, when the victim was untraced, her mother made search of the victim in all the houses of their relatives but, could not trace her out. In the following morning i.e. on 22.09.2015 around 5.00am the victim returned to the house and on being asked by the informant, the victim on crying, uttered to her mother that their neighbour i.e. the accused Rafikul Islam on the previous night around 10.00pm called the victim and took her to his kitchen and taking her there the accused tied the mouth of the victim with a "Gamcha" and under the threat to cause death, the accused undressed her and made kisses on the various parts of her body and had forcible intercourse against the will of victim.

[4] On 22.09.2015, one oral complaint of the informant was reduced into writing by the Officer-in-charge, West Agartala P.S. and also registered a specific case vide West Agartala Women P.S. case No. 2015/WAW/085 under Sections-342/376(2)(i)/506 of IPC and Section-4 of POCSO Act on the complaint of the informant. Investigation of the case was endorsed to SI Ramfan Mawii, hereinafter referred to as the I.O. In course of investigation, the I.O. appears to have visited the place of occurrence (P.O., for short), prepared hand sketch map of P.O. with separate index. The I.O. also further examined the victim, informant and other available witnesses and recorded their statements under Section- 161 of Cr. P.C. Thereafter, he arranged for medical examination of the

victim as well as the accused and also produced the victim before the Court of Judicial Magistrate, First Class, Agartala for recording statement under Section-164(5) of Cr. P.C. Subsequently, a prima facie case having been found, the I.O. laid West Agartala Women P.S. Charge-sheet No.80 of 2015 dated 30.11.2015 under Sections-342/376(2)(i)/506 of IPC and Section-4 of POCSO Act.

[5] On receipt of the charge-sheet, learned Special Judge took cognizance under Sections-342/376(2)(i)/506 of IPC and Section-4 of the POCSO Act. After arrest, charges were framed under Section-4 of POCSO Act and Sections-342/376(2)(i) of IPC to which the accused pleaded not guilty and claimed to be tried.

[6] To substantiate the charge, the prosecution adduced as many as 19 [Nineteen] witnesses including the complainant and also exhibited certain relevant documents and materials [Exbts.1 to 12, 12/1]. Thereafter, the accused-appellant was examined separately under Section-313 of Cr.P.C. for having his response in respect of the incriminating materials those surfaced in the evidence as adduced by the prosecution.

[7] After hearing both sides, the learned trial Court delivered the judgment and order of conviction and sentence dated 13.12.2019, wherein, the accused-appellant has been convicted as aforementioned.

[8] Being aggrieved by and dissatisfied with the judgment and order of conviction, the present appeal has been preferred by the appellant.

[9] Mr. S. Lodh, learned counsel appearing for the appellant to support his case has argued on the point of legality and validity of the findings as arrived at by the learned trial Court. He has submitted that the learned Court below committed serious error in law and facts in passing

the impugned judgment and order of conviction and sentence. The finding of the learned trial Court is bad on account of misreading and non-reading of the evidences on record.

[10] He has further submitted that the court below failed to appreciate that the prosecution has hopelessly failed to bring home the charges brought against the appellant. The learned Court below failed to appreciate that whether the ingredients of Section-4 of POCSO Act and Sections-342 &376(2)(i) of IPC are present in the instant case. Mr. Lodh, learned counsel has further averred that the Court below also failed to apply its judicious mind regarding contradictions of the evidence of prosecution witnesses and hence, the impugned judgment of conviction and sentence liable to be set aside.

[11] On a conspectus of the evidence on record and the findings of the learned Court below, it transpires that the statements of the prosecution witnesses are contradictory to each other and it is also found that all the prosecution witnesses are tutored and made false statements. The Court below committed serious error in appreciating the version of the victim. He has submitted that except the victim, there is no eye witness and the victim has failed to say that the appellant has committed the offence, but the learned trial court on presumption held that the appellant has committed the crime. Hence, the impugned judgment is liable to be interfered with.

[12] He has further argued that the medical report of the victim (Exbt.9) did not say the victim was raped, but the learned trial Court misinterpreted the same and held that the victim was raped. He has submitted that the prosecution did not examine the material witnesses and there was no independent witness. Conviction was based on only on the basis of all interested witnesses. The learned trial court did not consider the cross-examination of the prosecution witnesses and the version of the

defence witness. Thus, the impugned judgment and order of conviction and sentenced is liable to be set aside.

[13] In view of above observations and submission made by the counsel for the appellant and the materials on record, this Court thinks it necessary to discuss the evidences once again. To constitute an offence under Section-376(2)(i) of IPC, the prosecution has to prove that the accused committed rape as defined in Section-375 of IPC which provides thus (i) he 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 (ii) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina mouth, urethra or anus of a woman or makes her to do so with him or any other person or (iii) manipulates any part of the body of a woman so as to cause penetration into the vagina mouth, urethra or anus of a woman or makes her to do so with him or any other person or (iv) applies his mouth to the vagina, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the seven descriptions as enumerated in Section-375 of IPC.

[14] Similarly, to bring home a charge of penetrative sexual assault, the prosecution has to show that the accused (a) penetrated his penis, to any extent, into the vagina, mouth urethra or anus of a child or made the child to do so with him or any other person (b) inserted, to any extent, any object or a part of the body, nor being the penis, into the vagina, the urethra or anus of the child or made the child to do so with or any other person (c) manipulated any part of the body of the child so as to cause penetration into the vagina or anus of the child or made the child to do so with or any other person or (d) applied his mouth to the penis, vagina, anus, urethra of the child or made the child to do so to such person or any other person.

[15] In order to find out as to whether the accused is guilty of the offence under the point for consideration at hand when we dwell upon the evidence on record it emerges that the victim is the sole direct witness to the alleged occurrence. The informant being the mother of the victim came to know about the alleged sexual assault upon the victim on the following day. Other witnesses, who are the neighboring people of the informant and victim, are also the hearsay witnesses to the alleged occurrence. Having regard to such circumstances, at the outset, we find in appropriate to have reference to the evidence of victim (PW-2).

[16] In course of examination, the victim has deposed that on 21.09.2015 in the evening her mother scolded her as she did not go to school on that day. Out of fear, the victim went to the house of her maternal uncle which is situated to an audible distance from their house. During that day, sometimes the victim went to their house and at noon she took her younger sister. At night around 8.00pm victim along with her friend Taniya went to a nearby shop, at that time accused asked the victim to go to his house on the pretext that wife of the accused called her. Near the gate of the accused gagged the mouth of the victim and forcefully took her in his kitchen and there the accused tied her hands. Thereafter, the accused-appellant came to the kitchen and made kisses on all over the body of the victim and raped her.

[17] The victim further added that the wife and daughter of the appellant were also in the adjacent hut of the kitchen. The victim stated to have taken sleep in the kitchen on that night. On the following morning around 5.00am the accused-appellant released her and thereby the victim went back to their house and narrated the incident to her mother, the informant herein. During her statement recorded under Section-164(5) of Cr. P.C. the victim also narrated that on the fateful day around 6.00pm she along with her friend went to a shop where the accused was standing

beside. The victim girl further stated that the family members of accused on that night did not come to the kitchen. Sometimes later, the accused undressed her and committed rape upon her. On the following morning, accused offered the victim with biscuits and thereafter drove her out from the kitchen. On returning to her house she narrated the incident to her family members. The Judicial Magistrate 1st Class, who recorded her statement under Section-164(5) of Cr. P.C. (Exbt.3 series) was also examined as PW-3 made it confirm that the victim made the above mentioned statements to her. It is however, not the case of the defence that the victim made such statements on being influenced from any corner or she was tutored.

[18] The informant, PW-1 being the mother of the victim has driven the prosecution case ahead stating inter alia that on 21.09.2015 she scolded the victim as the victim did not go to her school. As a result, out of fear, the victim spent her time in the nearby relative's house. In the evening the victim was found untraced and thereafter the mother of the victim girl made search of the victim in all the probable places but, could not trace out. Thereafter, on the following morning the victim-girl returned back to her house and narrated the entire incident to her mother. Subsequently, the mother of the victim took the issue with the people of their locality and at noon she went to West Agartala Women PS and lodged an oral complaint.

[19] PW-7 is the landlord of the informant. According to PW-7 the informant and her daughter were residing in his house as tenant. He has stated that he heard from the informant that the accused did wrong with her daughter. PW-9, Smt. Moni Begum also stated to have heard from the informant that the accused did wrong with the victim. Similar to that of PWs.7, 9 and 11 also heard from the neighbouring people about the incident.

[20] PW-12, Amir Hossein and PW-14 Rahim Miah also heard about the commission of rape upon the victim by the accused. Smt. Hasina Begum (PW-17) is the wife of the landlord (PW-7) of the informant. PW-17 stated that she found the victim was loitering in the locality in the day time but, she did not return home at night. The informant informed the PW-17 that she made search of the victim in different possible areas but could not trace her out. However, on the following morning the victim returned to the house when PW-17 along with some other people of the locality gathered there when the victim narrated to them that the accused-appellant committed rape upon her.

[21] After having reference to the evidence of the victim being supported b y the evidence of informant and other witnesses as referred to above, it emerges that the accused took the victim to his kitchen and had forceful physical relation with the victim girl and also kissed various parts of her body. The birth certificate (Exbt.2) of the victim girl that on the day of alleged occurrence, the victim was at her age of around 11 years. Therefore, it is clear that the victim was merely a child within the meaning of POCSO Act at the time of alleged occurrence.

[22] Now, the circumstances, as emerged on the evidence of the victim and the informant, are seeking our attention to have a reference to the evidence of medical officer (PW-19) who had examined the victim. The medical officer has deposed that on 22.09.2015 being the Medical Officer at Obstetrics and Gynecology Department, IGM Hospital, Agartala had examined the victim on being produced by PW-5, the police constable. On examination, PW-19 did not find any injury either external or internal in the vagina of the victim. He however, collected the vaginal swab both wet and dry of the victim and sent the same through police for forensic examination. On receipt of the forensic examination report, PW- 19 has given his final opinion that the act of rape neither could be

confirmed nor could be excluded. The evidence of PW-19, therefore, cannot be said to be in true agreement with the evidence of the informant and victim. However, the statements made by PW-19 during cross- examination are appearing to be worthy to be taken note of which reads thus:

"A penis having leangth of 6.9 cm in flaccid condition may increase approximately up to 11.5cm. Similarly, a penis of circumference of 8.4 cm may increase approximately up to 9.4 cm in erectile condition. If a person of above said penis size having body weight of 77kg and height 5.8 commits rape upon a girl of 11 years during whole night by tying her mouth with any cloth there is likely of having severe hymen injury and other intra vaginal injury. In such a case there may be also gum injury, tooth injury and also ligature mark on her mouth. If vaginal swab is collected within 72 hours of commission of any rape, there is every likelihood of detection of spermatozoa, either dead or alive, in such vaginal swab."

[23] In the case in hand, it is not in dispute that the victim at the time of alleged incident was at her age of 11 years (Exbt.2). The potency test examination of the accused done by Dr. Pranab Chowdhury (PW-4) and the report prepared by him vide Exbt.4 shows the height of the accused at 5ft.8inch and his weight was 77 kg. It is further apparent that on the record the vaginal swab (both wet and dry) were also collected on the very next day of the incident around 4.10 pm which is also well within the 72 hours of commission of offence. Therefore, the statements made by PW-4 during cross examination, totally ruled out the probability of forceful sexual-intercourse upon the victim. Now, therefore, question arises if the weight should be given either to the evidence of informant and victim or the evidence of medical expert.

[24] The situation as emerges on the evidence of informant, victim as well as PW-4 including the opinion of PW-19 as an expert given during cross-examination definitely instigating us to have a reference of Praikh's Text Book of "Medical Jurisprudence, Forensic

Medicine and Toxicology"6th Edition page 5.38, wherein, the Ld. Author observed as under:

"In young children as the vagina is very small and hymen deeply situated, the adult penis cannot penetrate it. In rare cases of great violence, the organs may be forcibly introduced, causing rupture of the vaginal vault and associated visceral injuries. Usually, violence is not used and the penis placed either within the vulva or between the thighs. And as such, only redness and tenderness of the vulva may be caused. The hymen is usually intact..............There may be no signs or very few signs of general violence, since the child has no idea of the act is also unable to offer resistance."

[25] It is therefore, appears that the opinion given by PW-19 during cross-examination, that if a person having the body weight of 77 kgs and height 5tf. 8 inch, commits rape upon a girl of 11 years during whole night by tying her mouth with any cloth, there is likelihood of receiving severe hymen injury and other intra-vaginal injury is in complete derogation with the medical literature as referred to above and also, therefore, the opinion so given by PW-19 cannot be accepted.

[26] There is no amount of doubt that the accused is facing trial of the offence of penetrative sexual assault made punishable under Section-4 of the POCSO Act. The situation further leads us to have a reference of Sections-29 and 30 of the POCSO Act, which reads as under:

"29. Presumption as to certain offences: where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections-3, 5, 7 and Section-9 of this act, the Special Court shall presume, that such person have committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.

30. Presumption of culpable mental state: (1) In prosecution for any offence under this act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

(2) For the purpose of this Section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not

merely when its existence is established by a preponderance of probability.

Explanation: In this Section "Culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact."

[27] On a plane reading of the provision of Section-29 and 30 of POCSO Act, it appears that those provisions raise a presumption as to guilt of the accused and the burden lies upon the accused to dislodge such presumption.

[28] As stated earlier, the accused has examined one witness namely, Md. Saha Alam Miah as DW-1 with a view to support the defence case that the informant once went to the house of accused in search of a rented accommodation but, the accused having denied to provide such accommodation, this case was lodged falsely implicating the accused. DW-1 has deposed that he is the neighbour of both the informant and the accused. DW-1 had knowledge that the informant lodged this case against the accused alleging commission of rape upon the victim. He further stated that about half months prior to the incident and lodging this case, the informant went to the house of accused and requested him to give her some rooms of his house on rent. At that time DW-1 was present in the house of accused. The accused in presence of DW-1 denied giving her any room on rent even though vacant rooms were available. On such issue there was a quarrel in between the informant and the accused thereby the informant warned the accused to look him later on and ultimately, the informant lodged this case.

[29] As regards presumption against the accused of commission of offence under Sections-29 and 30 of the POCSO Act, it was for the accused to dislodge the said presumption, which he appears to have failed to do so. During examination of the accused under Section-313 of Cr. P.C. he nowhere mentioned that he was not present at the spot of the

incident or the room where the offence was committed, was not his room. The alibi set up b y the accused, that he informant and accused had quarrel on the issue of providing rented accommodation followed by warning of the informant to look on the matter later on, through the mouth of DW-1 was not taken in his statement recorded under Section- 313 Cr. P.C. and thus, not proved. There is no plausible explanation offered by him as to why the complainant and the prosecutrix would falsely implicated him in such a case even at the cost of facing ignominy, harassment and embarrassment for the prosecutrix, who was not even 12 years of age on the day of occurrence.

[30] The argument of the learned counsel appearing for the appellant was that the alleged story of commission of confinement and rape upon the victim is illogical on the ground that the wife and daughter of the accused were present in the nearby room. In our considered opinion, the argument so placed, cannot stand on the reasoning that the accused tied the hands and mouth of the victim that reasonably prevented the victim from raising any alarm or to make any sound. It is further, more than transparent from the statement of the victim so recorded by PW-3 that family inmates of the accused did not come to the kitchen on that night.

[31] It is settled proposition of law that the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness. Thus the court must read the evidence of a witness as a whole, and consider the case in light of the entirety of the circumstances, ignoring the minor discrepancies with respect to trivial matters, which do not affect the core of the case of the prosecution. The said discrepancies as mentioned above should not be taken into

consideration, as they cannot form grounds for rejecting the evidence on record as a whole.

[32] In our ultimate analysis and having regard to the evidences on record, it is crystal clear that there is no doubt that the question of sentence is a matter of discretion and such discretion has to be exercised along with accepted judicial lines. To impose adequate punishment according to law is not only the duty of the Court, but it is social obligation clearly enjoined upon it keeping in mind not only the crime but also the criminal. In the case in hand, the convict proved to have committed the offence as indicated above and as such his plea of innocence cannot have any significance.

[33] As such, we do not find any infirmity in the findings arrived at by the learned Special Judge, West Tripura, Agartala, while convicting and sentencing the accused-appellant. Accordingly, the judgment and order of conviction and sentence as declared by learned Special Judge, stands affirmed and upheld. Consequently, the present appeal preferred by the convict-appellant shall stand dismissed. As a sequel, miscellaneous applications pending, if any, shall stand closed. Send down the LCRs forthwith.

          JUDGE                                                      JUDGE




A.Ghosh