Tripura High Court
Sri Suman Tripura @ Sukhen vs The State Of Tripura on 29 August, 2023
1
HIGH COURT OF TRIPURA
AGARTALA
CRIMINAL APPEAL (J) 10 OF 2023
Sri Suman Tripura @ Sukhen, S/o Sri Jahar Tripura,
Resident of Vill-Gajanpara, North Kaladepa,
P.O. and P.S. Manubazar, Dist. South Tripura,
At present residing in Kendriya Sansodhanagar,
Bishalgarh, Tripura.
----Appellant
Versus
The State of Tripura.
----Respondent
For Appellant : Mr. B. Banerjee, Advocate.
For Respondent(s) : Mr. Ratan Datta, P.P.
Mr. Sumit Debnath, Addl. P.P.
Date of hearing : 04.07.2023
Date of delivery of
Judgment & Order : 29.08.2023
Whether fit for reporting : Yes
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
HON'BLE MR.JUSTICE ARINDAM LODH
Judgment & Order
(Arindam Lodh, J)
This appeal is directed against the judgment and order of
conviction dated 19.11.2019 and sentence dated 22.11.2019 respectively,
passed by the learned Special Judge, South Tripura, Belonia in connection
with case No. Special 3 (POCSO) of 2019 whereby and whereunder the
appellant, namely, Sri Suman Tripura alias Sukhen has been convicted and
sentenced to suffer rigorous imprisonment for 7(seven) years along with fine
of Rs.10,000/- (Rupees ten thousand) being found guilty for committing
offence punishable under Section 366 of the Indian Penal Code (for short,
IPC) and further sentenced to suffer imprisonment for life along with fine of
Rs.10,000/- (Rupees ten thousand) for committing offence punishable under
Section 376(2)(n) of IPC with default stipulation.
2. The prosecution case as projected by the learned Special Judge
may be reproduced here-in-below in verbatim:
"The fact of the case in brief is that on 06.01.2018 at about 11
a.m. the victim child (name is withheld) was waiting for vehicle
near the road side of East Takka, Debendra Para to come at
Manubazar market, at that time the accused persons namely Suman
Tripura @ Sukhen and Kamal Tripura came there and forcefully
taken the victim girl by a motorbike and wrongfully confined her in
a jungle of Kaladhepa. Thereafter, accused Suman Tripura @
Sukhen committed rape upon the victim child repeatedly. After that,
on 08.01.2018 the victim child managed to talk with her brother-in-
law through mobile phone and then the accused Suman fled away
from there leaving the victim child alone in the jungle. Thereafter,
the guardian of the victim child rescued her from that jungle."
3. On the basis of aforesaid complaint, the Officer-in-Charge of
Manubazar Police Station on 09.01.2018, registered MNB PS Case
No.2018/MNB/002 under Sections 366(A)/343/376/34 of IPC and under
Section 6 of POCSO Act, 2012. Thereafter, the case was endorsed to S.I.
Ranjan Biswas for investigation and after completion of investigation, charge-
sheet was submitted against the accused Suman Tripura alias Sukhen for
commission of offence punishable under Sections 366A/343/376(2)(n) of IPC
and Section 6 of POCSO Act and against Sri Kamal Tripura for commission
of offence punishable under Section 366A/114 of IPC.
4. On receipt of the charge-sheet, learned trial court took
cognizance of offences under the aforesaid sections and charge against
accused Suman Tripura alias Sukhen was framed under Sections 366/376(3)
of IPC and Section 4 of POCSO Act and another charge against accused
Kamal Tripura was framed under Section 366,376(3) read with Section 109 of
IPC and Section 4 read with Section 17 of POCSO Act,2012. The contents of
the charges were read over and explained to the accused persons to which they
pleaded not guilty and claimed trial.
5. During trial, the prosecution had examined as many as 16
witnesses and introduced the exhibited documents.
6. On closure of recording evidence, both the accused persons were
examined under Section 313 CrPC when they were noticed about the
incriminating evidence and materials brought on record by the prosecution
witnesses to which they denied all the allegations brought against them and
claimed that they were falsely implicated.
7. Thereafter, considering the submissions of the learned counsels
appearing for the prosecution and the accused persons learned Special Judge,
South Tripura, Belonia had passed the impugned judgment declaring the
conviction and sentence against the present accused-appellant as aforestated.
8. Being aggrieved and dissatisfied with the findings arrived at by
the learned Special Judge, the present appellant has preferred this appeal.
9. Heard Mr. B. Banerjee, learned counsel appearing for the
accused-appellant namely, Suman Tripura alias Sukhen. Also heard Mr. Ratan
Datta, learned P.P. assisted by Mr. S. Debnath, learned Addl. P.P. appearing
for the State-respondent.
10. Mr. B. Banerjee, learned counsel appearing for the appellant has
submitted that the prosecution has failed to prove the case beyond reasonable
doubt as the evidence adduced by the prosecution witnesses suffers from
serious discrepancies which should not be termed as minor discrepancies in
any manner. Mr. Banerjee, learned counsel has drawn our attention to the
medical examination report of the victim i.e. Exbt.15 showing that the medical
officer has mentioned in the report itself that-"seeing FSL reports, as
spermatozoa is present in Exbt.A and as hymen is not intact (no fresh
tear/injury, may be old ruptured hymen) sexual intercourse has occurred. May
or may not be raped (inconclusive)". So, the submission of learned counsel of
the appellant was that the doctor could not interpret whether the said rupture
was old or recent. Learned counsel had tried to persuade this court that to
constitute the offence of rape, the prosecution had to prove beyond reasonable
doubt that it must be forceful and without the consent of the victim. His
further submission was that there was no rape, but, it was consensual sex.
11. Refuting the submissions of learned counsel for the appellant,
Mr. Ratan Datta, learned P.P. appearing on behalf of the State-respondent,
vehemently argued that the prosecution had discharged its burden successfully
that the victim was raped by the appellant. According to Mr. Datta, learned
P.P., the sole testimony of the prosecutrix can be the basis for convicting the
accused-appellant. Learned P.P. further argued that the way the victim girl
deposed during her examination-in-chief and in the statement recorded under
Section 164(5) of CrPC before the Judicial Magistrate it is sufficient to
conclude that her deposition instills confidence to return a finding of guilt
against the accused-appellant. Lastly, Mr. Datta, learned P.P. submitted that
the learned Sessions has rightly passed the impugned judgment and order of
conviction and sentence and accordingly, he prayed for upholding the same.
12. We have given our anxious thought to the submissions of the
learned counsels and perused the evidence and materials brought on record to
test the credibility and genuinity of the prosecution witnesses. For the sake of
brevity, we may first discuss the evidence adduced by the prosecution.
13. PW-1, the victim deposed in her examination-in-chief that about
one year back from the date of her deposition i.e. on 17.05.2019 she was
waiting on the road side of Debendra Para for going to Manubazar. There, one
Suman Tripura alias Sukhen and Kamal Tripura came with a bike and
forcefully took her with their bike. She raised alarm, but nobody could hear
her voice. They took her to the Lichu garden through jungle road. They had
taken her mobile phone. Accused, Kamal Tripura left towards his house and
thereafter, in the jungle, accused Suman alias Sukhen Tripura forcefully raped
her for the entire night stating that he would marry her and on the following
day, he also kept her against her will and did not provide her any food. She
was kept in the jungle for two days. PW-1 again deposed that after two days,
she somehow managed to snatch away her mobile phone from the accused and
informed the husband of her sister namely, Shyamal Tripura and thereafter she
was recovered by her parents. Subsequently, she lodged an 'ejahar' before the
police narrating the incident.
During cross-examination, PW-1 deposed that the road from
where she was forcefully taken is a particular point where another road linked
with that road. To some distance from that place, there was grocery shop run
by one Ajit Dey. She had denied the fact that accused Suman Tripura regularly
visited their house; he came to the place of occurrence on her phone; she gave
proposal to Suman to marry her and that as Suman did not agree to her
proposal, she lodged the case falsely. She further denied that she was not
raped by Suman Tripura continuously for two days. PW-1 again deposed in
her cross-examination that after escaping from the place of occurrence, she
came to the road side which was far away from the place of occurrence and
after coming on the road, she telephoned her brother-in-law.
13.1 PW-2, one Ajit Kumar Tripura, the owner of the grocery shop
was declared hostile by the prosecution. So, nothing could be gathered from
his evidence. P.W-3 being an Assistant Teacher of Dhani Chandra Para High
School proved the school certificate issued by the Headmaster of his school in
respect of the victim of the case. PW-4 is the seizure witness of that school
certificate. PW-5 Smt. Shilpi Roy (Sen) is a staff nurse of Manubazar CHC
and she is also a seizure witness in respect of biological sample of the victim.
PW-6, Sri Bablu Karmakar is also a seizure witness of wearing apparels of the
accused. PW-7 is another seizure witness of motor bike bearing registration
no.TR-03C-7009 (Hero Honda) and PW-8 is the seizure witness of biological
samples of the accused person.
13.2 PW-9, being the mother of the victim deposed that when her
daughter i.e. the victim went out of her house, she was not at home. Her
daughter did not return on that day. She waited upto following day and
thereafter she gave missing information to the police. She further deposed that
she being led by Pradhan of their village found the victim on the road side but,
the victim did not tell her anything. Again, she deposed that the case was
already compromised.
13.3 PW-10, the Pradhan deposed nothing and he was declared hostile
by the prosecution.
13.4 PW-11, Dr. Sabyasachi Nath deposed that he being a Senior
Scientific Officer of Tripura State Forensic Science Laboratory, Narsinghar on
10.08.2018 received one parcel from SDPO, Sabroom where he found twenty
exhibits containing several samples taken by the investigating agency for
examination. He examined all those exhibits applying all scientific methods
and on examination he detected spermatozoa of human origin, but group could
not be detected. He accordingly submitted report and on identification it was
marked as Exbt.12 and his signature on the said report was marked as
exbt.12/1 respectively.
13.5 PW-12 is a medical officer who examined the accused Suman
Tripura alias Sukhen and after examination, he opined that accused was
physically healthy and mentally fit and there was nothing to suggest that the
said person was incapable of performing sexual intercourse under normal
circumstances.
13.6 PW-13 being the O.C. Manubazar P.S. only deposed in regard to
the registration of this case and nothing more.
13.7 PW-14 being a Doctor of Manubazar CHC deposed that he had
examined the victim on 09.01.2018 in connection with Manubazar P.S. Case
No.2018/MNB/002. He had examined the victim and after examination he
gave the following opinion:
"That there is evidence of sexual intercourse as hymen is not
intact. But there is no evidence of injury mark over her body.
Moreover, victim has taken bath, changed clothes and cleaned and
washed private parts after the incident. I have sent samples of high
and low vaginal swab, pubic hair sample, 5 ml dried blood to SFSL
for laboratory investigation and had advised USG of lower abdomen
to see for any pregnancy and also gave opinion for x-ray dentition to
confirm her actual age. Final conclusion (pending) till reports arrive.
During examination, I took following samples:-
Blood sample of 5 ml dried blood in gauge piece, matted
public hair and loose hair by pubic hair combing taken. I handed over
the samples taken by me to SI Ranjan Biswas. The samples were seized
by SI Ranjan Biswas and I signed in the seizure list. This is my
signature in the seizure list, on identification marked Exbt.7/1. I
submitted my report first time on 09.01.2018. On 30.09.18 IO
produced SFSL report and as per SFSL report, spermatozoa was found
present in Exbt.A of the SFSL report and basing on that report as
hymen is not intact, I opined that sexual intercourse has occurred and
it may or may not raped. Since there is no injury found on the body of
victim, victim may be consented in sex or may not be given consent in
sex, so I mentioned the word „may or may not be raped‟ since age of
the victim was not confirmed at that time....."
13.8 PW-15 is Ranjan Biswas who was the investigating officer of this
case. He deposed that during the course of investigation, he arranged for
recording statement of the victim; arranged for medical examination of the
victim; seized the wearing apparels of the victim in presence of witnesses and
collected samples of the victim for chemical examination by Forensic Expert.
On 09.01.2018 he visited the place of occurrence, prepared hand sketch map
with separate index; arrested the accused Suman alias Sukhen Tripura on
10.01.2018; seized one motor bike; arranged for medical examination of the
accused Suman alias Sukhen Tripura; collected samples of the accused for
chemical examination and thereafter on being transferred he handed over the
case docket to the O.C., Manubazar PS for doing needful.
13.9 PW-16, Sri Ranjit Das, being the third IO deposed that he
investigated the case after SI, Ranjan Biswas and SI Jahar Debbarma. During
examination, he examined available witnesses and recorded their statements
under Section 161 of CrPC; collected SFSL report and after completion of
investigation on being prima facie satisfied he submitted charge-sheet against
the accused-appellant with other accused person.
14. After careful evaluation of the evidence of the prosecution
witnesses, first of all we are to weigh the testimony of the prosecutrix, i.e.
PW-1, the victim herself. The victim in the instant case specifically stated that
she was forcefully taken by the accused Suman Tripura with his bike and took
her to a lichi garden where he committed forceful rape upon her. From her
statement it has also come to light that there was another accomplice of the
accused namely Kamal Tripura, who had participated the accused
accompanying the victim by their bike towards jungle. Thereafter, he had left
the place. It was stated by the victim that she was raped by accused Suman
Tripura throughout the night in the jungle with an assurance that he would
marry her and she was captivated there for two days. In this situation,
according to us, her evidence has to be looked into with broader aspects as to
how it inspires confidence. PW-1, the victim though stated that she raised
alarm but nobody could hear her voice. Only that much protest we have seen
from her evidence. She was captivated for two days. She seemingly never
tried to escape from the place of occurrence. She was a grown up girl and was
matured and intelligent enough at the time of offence to understand the
significance and the consequences of such act committed by the accused. If we
go through the findings of learned trial Judge, where at Para 18 of the
judgment learned trial Judge has observed that- "the prosecution evidence is
not sufficient to prove that the victim was minor at the relevant point of time
since the school certificate cannot be the sole basis of a finding that she was a
minor particularly when she was in the verge of attaining majority." So, She
could have realized the consequences that in future she might not be married
by the accused. All these circumstances lead us to the conclusion that she had
voluntarily and consciously consented to have sexual intercourse with the
appellant throughout the night in the place of occurrence.
15. Now, let us come to the deposition of the medical officer who
had examined her. PW-14 is the doctor who examined the victim and deposed
that he examined the victim in the labour room of the CHC on 09.01.2018.
The victim reported him that she was raped by the accused on 06.01.2018 and
07.01.2018; she changed her clothing; took bath and even washed her private
parts. On examination, the doctor did not find any mark of violence or any
injury over the body of the victim. On receipt of the SFSL report, PW-14
deposed that spermatozoa were found present in Exbt.A i.e. the sample of
high cervical swab of victim. He further stated that basing on that report as
hymen was not intact, he opined that sexual intercourse has occurred and it
may or may not be a case of rape since there was no injury found on the body
of the victim, victim may be consented in sex or may not be given consent in
sex. On scrutiny of the testimony put forwarded by PW-14 before the trial
court, a vital question comes to our mind that whether the victim was raped or
not. The incident had occurred on 06.01.2018 and 07.01.2018 and she was
examined by the doctor on 09.10.2018 from 12.50 pm to 1.35 pm. So, after
more than 36 hours she was examined by the doctor when she had changed
her clothing and washed her body. The doctor found her hymen was not intact
and as such, it can be presumed that she might have committed sex with other
fellow because it has been gathered from the examination report of the
Forensic Expert, i.e. PW-11 that he examined all through the exhibits for
chemical examination and amongst the exhibits only in Exbt.A which was the
cervical swab of the victim, he detected spermatozoa of human origin, but
could not be detected in the Exbt. J that was the samples of seminal
stain/spermatozoa/blood stain/epithelial cell collected from the accused
Suman Tripura. So, the spermatozoa found in the sample of the victim did not
match with sample of accused.
16. We are mindful to the proposition that the evidence of a
prosecutrix must be examined in a broader perspective of the facts and
surrounding circumstances of a particular case. There is no rule of law that the
statement of a victim of rape should always be without exception and in all
circumstances it should be accepted as gospel truth.
17. On careful scrutiny of the evidence of the prosecutrix, the
medical evidence adduced by the prosecution as has been discussed here-in-
above, we find that no implicit reliance can be placed on the testimony of the
prosecutrix since it has not been supported by the medical evidence. It is not a
case that the statement of the victim should be taken as gospel truth. Rather, if
we go through the surrounding circumstances of the crime, we find that it was
a consensual act of the victim and the accused as it can be safely presumed
from their conduct, especially the conduct of the girl during her journey to the
alleged scene of crime. More so, the medical evidence shows her hymen had
old rupture, meaning thereby she might be habituated with sex and with these
perspectives, the appellant is, therefore, entitled to get the benefit of doubt.
Thus, the judgment and order of conviction and sentence recorded by learned
Special Judge, South Tripura, Belonia under Sections 366/376(2)(n) of IPC is
liable to be set aside.
18. The appeal, accordingly, is allowed. The judgment and order of
conviction dated 19.11.2019 and sentence dated 22.11.2019 respectively,
passed by the learned Special Judge, South Tripura, Belonia in connection
with case No. Special 3 (POCSO) of 2019, is set aside and quashed. The
accused appellant Suman Tripura is hereby acquitted and set at liberty. Surety
is discharged from the liability of bail bond.
19. The appellant shall be released forthwith if not wanted in
connection with any other case.
Send down the LCRs.
(ARINDAM LODH), J (APARESH KUMAR SINGH), CJ
SANJAY GHOSH Digitally signed by SANJAY GHOSH
Date: 2023.08.31 17:09:06 +05'30'
