Tripura High Court
Convict vs The State Of Tripura on 8 April, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 13
HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J) NO.17 OF 2023
Sri Suran Lila Jamatia@ Retharaj@Charanjoy,
S/o Late Gobinda Kishore Jamatia, R/o No.2 Coliny, Dalak,
P.S. Birganj, Gomati Tripura
......Convict-Appellant(s)
Versus
The State of Tripura
.......Respondent(s)
For the Petitioner(s) : Ms. R. Purukayastha, Advocate.
For the Respondent(s) : Mr. Raju Datta, P.P.
Mr. S. Ghosh, Addl. P.P.
Date of hearing and delivery of
Judgment & Order : 08.04.2024
Whether fit for reporting : NO
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
J U D G M E N T & O R D E R(ORAL)
T. AMARNATH GOUD(J)
This present appeal has been filed under Section
374 of Cr. P.C against impugned Judgment of conviction and
sentence dated 29.09.2022 and 30.09.2022 respectively passed by
the learned Additional Sessions Judge Gomati Judicial District,
Udaipur in case No. S.T. 18 of 2012 whereby and whereunder the
appellant has been convicted under section 376(1) of IPC and has
been sentenced to suffer R.I for a period of 14 years with a fine of
Rs.25,000/- U/S 376(1) of IPC and with default stipulations.
2. The brief fact of this case is that on 05.07.2011 at
around 4.00 pm. the daughter of the informant had gone missing
from the house. On 06.07.2011 morning at around 4.15 A.M., he
lodged a missing diary with the Maharani Outpost. Subsequently,
the informant along with the police recovered the daughter of the
informant from Adibasi Colony near Banduar Kaju Badam area.
Thereafter, the victim informed the informant that on 05.07.2011
evening at around 7.00 p.m., when she was returning to her house
from Maharani bazaar, on her way, at Sanjoymani Tilla, the accused
persons wrongfully restrained her and had taken her to the nearby
jungle and committed rape upon her one after another.
3. On the receipt of complaint, the O/C R.K.Pur PS
registered R.K.Pur PS Case No. 295/2011 under Section 376(2)(g)
of IPC. On the completion of the investigation, the I/O submitted
charge sheet against the appellant under Section 341/376(2)(g) of
IPC. During the trial, the prosecution examined as many as 15
witnesses to prove the charge against the appellant. On the closure
of prosecution evidence, the appellant was examined under Section
313 of Cr.P.C. to which he strongly denied the allegations brought
against him by the prosecution. But he denied to adduce any
defence evidence on his side.
4. The learned Trial Court took up the following points
for discussion and decision:-
(i) Whether the accused person namely Shri Suran
Lila Jamatia alias Retharaj alias Charanjoy, S/O Late gobinda
kishore Jamatia on 05.07.2011 after 1900 hours to morning on
06.07.2011 at Sanjoymani Tilla and Maharani Adibasi Colony near
Banduar Kaju Badam area under P/S- R.K.Pur, Sub-Division:
Udaipur, District: South Tripura wrongfully restrained the victim and
thereby accused committed an offence punishable under sec. 341 of
the IPC and within the cognizance of this court;
(ii) Whether the accused person namely Shri Suran
Lila Jamatia alias Retharai alias Charanjpy, S/O Late Gobinda
Kishore Jamatia on 05.07.2011 after 1900 hours to morning on
06.07.2011 at Adibasi Colony near Banduar Kaju Badam area under
P/S-R.K.Pur, Sub-Division: Udaipur, District: South Tripura
wrongfully restrained the victim and thereby accused committed
rape upon the prosecutrix and thereby accused committed an
offence punishable under sec. 376(1) of the IPC and within the
cognizance of this court.
5. After hearing the arguments of both sides, the
learned Court below by the impugned Judgment of conviction of
sentence dated 29.09.2022 and 30.09.2022 convicted the appellant
as mentioned herein above.
6. Being aggrieved and dissatisfied with the impugned
judgment of conviction and sentence, the convict-appellant herein
has filed this appeal seeking the following reliefs:-
"i) Admit this appeal;
ii) Call for the record;
iii) Issue notice upon the respondent;
and
iv) After hearing the parties be pleased enough to set
aside the impugned Judgment of conviction and sentence dated
29.09.2022 and 30.09.2022 respectively passed by the Ld. Additional
Sessions Judge (Sri M. Debbarma), Gomati Judicial District, Udaipur in case
No. S.T. 18 of 2012, for fair ends of justice otherwise the appellant would
be seriously prejudiced and further to suspend the operation of the
impugned judgment of conviction and sentence dated 30.09.2022 till final
disposal of the appeal.
7. Heard Ms. R. Purukayastha, learned counsel
appearing for the appellant as well as Mr. Raju Datta, learned P.P.,
and Mr. S. Ghosh, learned Addl. P.P., appearing for the State-
respondent.
8. Ms. R. Purukayastha, learned counsel appearing for
the appellant submits that the victim in her statement made under
Section 164 of Cr.P.C., stated that five persons i.e., Anjan Kumar
Jamatia, Arun Kumar Jamatia, Jagat Mani Jamatia, Sagar Manik
Jamatia, and Suran Lila Jamatia raped her one by one after
kidnapping her. But in her witness, she stated that out of the five
persons four of them left after the arrival of one villager, and only
the appellant herein i.e. Suran Lila Jamatia did not leave and raped
her forcibly and tore her wearing apparels and as such, there is
contradiction and improvement in the statement of the victim girl.
Learned counsel also submitted that in the statement of the victim,
it is revealed that when one villager came, the appellant herein told
the villager that she is his wife and that villager also left the place
but she did not raise any alarm or ask the villager for help. Stating
thus, learned counsel submitted that the statement of the victim-
girl is not reliable.
Learned counsel submits that in 2011 the consent
of the female in terms of the Indian Penal Code was 16 years and
only after 2013 amendment, the age bar for consent was raised to
18 years. In the FIR, it is stated that the age of the victim is 19
years and in the medical report, the P.W.-10 i.e., Dr. Pradipta
Narayan Chakraborty after examination of the victim girl opined the
age of the victim as above 17 years and below 18 years. Learned
counsel stated that in the cross-examination of the informant i.e.
P.W.-2, he stated that when he recovered her daughter he found
her feeble but her wearing apparel was in order which is contrary to
the statement that the appellant tore the wearing appeals of the
victim. The medical report also does not reveal any mark or injury
on the person of the victim. Stating thus, learned counsel urged this
Court to allow this appeal as evidence reveals that there was
mutual consent between the parties and later on the prosecution
improved their stories.
9. On the other hand, Mr. S. Ghosh, learned Addl. P.P.
appearing for the respondent submits that the victim in her cross-
examination stated that nearby the place of occurrence, there was
no house and she cried for help. Learned Addl. P.P., stated that this
statement of the victim contradicts the consent argument advanced
by the learned counsel appearing for the appellant.
10. Heard both sides and perused the evidence on
record.
11. Before delving into the reasoning of the case let us
examine some important witnesses.
12. P.W.-1 i.e., the victim girl in her evidence deposed
that on 05-07-2011 at around evening time 7.00 p.m. while she
was returning to her house from Maharani Chowmohani Bazaar on
way nearby a brick-kiln she was restrained by five persons, namely,
Suranlila Jamatia, Ajoymani Jamatia, Sagarmanik Jamatia, Arun
Jamatia and another. Then Suranlila Jamatia gagged her mouth
with his hand and beaten her with a slipper and also threatened her
with a knife. Thereafter, one villager arrived there and seeing him
four persons left the place, but Suranlila did not leave her, rather
told the villager that she is his wife. P.W.-1 also deposed that after
the villager left, Suranlila took her forcibly towards Kaju Bagan and
tore her wearing apparel. Though she raised objection and there he
committed rape upon her during the whole night. On the following
morning, she was recovered by her parents and police from that
Kaju Bagan. She informed the matter of the incident to her mother
and other villagers. P.W.-1 also deposed that she gave her
statement before the Magistrate by narrating all the incidents
wherein she put her signatures which she identified as Exhibit-1
(series).
In the cross-examination, P.W.-1 stated that the alleged
incident took place on 05.07.2011 and on that date, she met with
Suranlila Jamatia and others in front of one brick kiln near Maharani
Bazar. P.W.-1 further stated that she talked to the villager who
arrived there and seeing him four others left the place. P.W.-1 also
stated that nearby the place of occurrence, there was no house
available and she cried for help. P.W.-1 further stated that on the
next morning, she was recovered by her parents along with police
at around 12.00 noon and there she informed about the incident to
the police. P.W.-1 also stated that she tried to go to her house
during the alleged night of the incident and Suranlila Jamatia is not
known to her previously, as she came to know the name of the
accused Suranlila Jamatia during the incident.
13. P.W.-2 Shri Tarunjit Jamatia deposed that on 05-
07-2011, his victim-daughter did not return to the house, as such
on the next early morning, he went to the Maharani Out Post to
lodge a missing diary about his daughter and there he informed the
matter. P.W.-2 also deposed that subsequently, police personnel of
that Outpost accompanied him in the search of his daughter and
they recovered her from Adibasi Colony also known as Kaju Bagan
at around 10/11 A.M. in the presence of Suranlila Jamatia. P.W.-2
further deposed that his daughter was taken to the house and on
the next day when she got sick, then, he came to know about the
incident from his daughter that while she was returning home from
the local bazaar in the evening of 05-07-2011, Suranlila
accompanied his daughter towards their house but on way,
Suranlila had used force upon his daughter and committed such
incident. P.W.-2 further deposed that, then, he lodged the ejahar on
08-07-2011 after stating all the facts as written by one villager
namely Muslem Miah wherein he identified his signature as Exhibit-
2.
In the cross-examination, P.W.-2 stated that he did
not inquire to her daughter about the incident after recovery at Kaju
Bagan, Maharani, and while recovery of her daughter, he found her
feeble, though all her wearing apparels was in order. P.W.-2 further
stated that Suranlila Jamatia is known to him earlier. The rest part
of the cross-examination is denial and suggestion of defence side.
14. PW.10 Dr. Pradipta Narayan Chakraborty deposed
that on 04-08-2011 he along with Dr. Ranjit Kumar Das examined
the victim i.e. D/o. Tarunjit Jamatia in connection with R.K. Pur PS
Case No. 295/11 dated 08-07-2011 for determination of her actual
age through the Ossification Test. P.W.-10 deposed that after
conducting the examination they opined that based on physical,
dental and radiological examination findings, the examined victim
girl was of the age above 17 years and below 18 years. PW.10
identified the report as Exhibit - 4, his signatures thereon as Exhibit
4/1 and Exhibit 4/2. PW.10 also identified the signatures of Dr.
Ranjit Kumar Das as Exhibit - 4/3 and Exhibit - 4/4.
In the cross-examination, PW.10 stated that they
came to their conclusion about the age of the examined victim
relying on some examined facts.
15. P.W.-14 Dr. Dhruba Das deposed that on
08.07.2011 he examined the victim herein in connection with R.K.
Pur P.S. case No.295/2011 Under Section 376(2)(g) of IPC. P.W.14
also deposed that after pre-vaginal examination he found tear on
hymen at 3, 5 and 9 o'clock position mentioned at the column of
Hymen intact/tear or any other injury and he opined that tear found
on hymen at 3, 5 and 9 o'clock position is evidence of penetration
of vagina by adult erected penis like object. P.W.-14 identified the
report marked as Exbt.P-7 and his signature thereon marked as
Ext.P-7/1. P.W.-14 further deposed that on that day he also
conducted the potency test of the accused Suranlila Jamatia to
which he found nothing that the accused is incapable of sexual
intercourse. P.W.-14 identified the potency test report marked as
Exbt.P-8 and his signature thereon marked as Ext.P-8/1.
In the cross-examination, P.W.-14 stated that he
did not mention in his report about the age of penetration. P.W.-14
further stated that it is not necessary that in the case of gang rape
there should be any injury in the private parts of the victim.
16. Now, let us also produce the statement made by
the victim-girl under Section 164 of Cr.P.C.:-
"On the 6th day of July, 2011 A.D, at about 7
o'clock in the evening, I was standing at Maharani Chowmuhani. At
that time, Anjan Kumar Jamatia, Arun Kumar Jamatia, Jagat Mani
Jamatia, Sagar Manik Jamatia and Suran Lila Jamatia asked me as
to where I would go. I replied that I would go home. Then, they told
me that they would get me there as they were going in that
direction. Keeping a good faith in them, I started proceeding with
them. On the arrival near the Maharani Bricks Factory, they took
me into the nearby jungle by force and at the point of knife and by
covering face. By holding my hands pressed, (they) assaulted me
with footwear and denuded me. Thereafter, they raped me one by
one. When I screamed out, four boys fled away. When the people
came up, they saw Suran Lila Jamatia near and with me. On being
asked by the people, Suran said that I was his wife. Thereafter, he
took me by force to Adibashi Colony near Banduar Kaju Badam and
by keeping me there for one night he raped me again and again.
Police came the next day and rescued me. This is my statement."
17. Heard both sides and perused the evidence on
record
18. The entire case runs around 2(two) facets number
one is with regard to committing of rape and number two is whether
it was a consenting or against the will of the victim girl.
19. It is seen from the record that in her statement
made under Section 164 of the Cr.P.C., in her deposition as P.W.-1,
in her evidence and in the cross-examination, the statements made
by the victim girl are inconsistent. It falls for consideration before
the Court that when according to the victim a villager was present,
she did not make any complaint to the villager for seeking any help
or to rescue her. In so far as considering their statement that she
accompanied the accused persons and she was although with the
accused, she could have taken steps for escaping but in turn, there
is no evidence on the said issue. Hence, this Court considers that
this is not a 'rape' but they knew each other and the victim girl
accompanied the accused persons.
20. Now coming to the issue of whether there was any
sexual intercourse by the accused-appellant against the will of the
victim, by referring to Section 375 of IPC, prior to the 2013
amending, it is seen that the age of consent is defined as not less
than 16 years of age. The relevant portion of the same is extracted
here-in-under:-
"375. Rape. A man is said to commit "rape" who, except in the case
hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following 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 sixteen
years of age
Emphasis added"
21. Since the exhibit which is marked by the Doctor i.e.
P.W.-10 i.e., the ossification test is concerned, he has categorically
stated that the age of the victim girl is above 17 and below 18
years. In so far as the school certificate which is marked as exbt-
No.5 is concerned, the age of the victim girl is marked as born on
24.12.1996, and the certificate is issued subsequently. At all levels
of evidence, the age of the victim girl as deposed by her is 17 years
and by her father i.e. P.W.-2 is 19 years. In view of the
discrepancies, this Court considers the medical report, the
ossification test as more appropriate, and thus, the age of the girl is
considered above 17 years and below 18 years. Since the alleged
crime was committed on 05.07.2011, Section 375 of IPC prior to
the 2013 amendment applies. Accordingly, this Court feels that it is
not 'rape' but it was consenting between the victim and the
accused. Thus, the appellant herein is entitled to relief and the
present criminal appeal accordingly stands allowed and the accused
person i.e., appellant herein stands acquitted. Accordingly, the
impugned Judgment of conviction and sentence dated 29.09.2022
and 30.09.2022 is set aside
22. As a sequel, stay if any stands vacated. Pending
application(s), if any also stands closed.
B. PALIT, J T. AMARNATH GOUD, J
suhanjit
RAJKUMAR SUHANJIT SINGHA
SUHANJIT SINGHA Date: 2024.04.10 12:38:05
+05'30'
