Tripura High Court
Sri Rajendra Debbarma @ Rajen vs The State Of Tripura on 6 February, 2025
HIGH COURT OF TRIPURA
AGARTALA
Crl. A(J) No.52 of 2024
Sri Rajendra Debbarma @ Rajen
Son of Lt. Mangal Debbarma, Resident of Lambabil, PO & PS
Manu, District Dhalai Tripura.
......... Appellant(s)
-Versus-
The State of Tripura
........Respondent(s)
For the Appellant(s) : Mr. Ratan Datta, Advocate.
Mr. A. Baidya, Advocate.
Mr. S. Dhanuk, Advocate.
For the Respondent(s) : Mr. Rajib Saha, Addl. P.P.
Date of hearing : 6th February, 2025.
& delivery of
Judgment & Order
YES NO
Whether fit for reporting : √
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT & ORDER (ORAL)
Heard Mr. Ratan Datta, learned counsel appearing for
the appellant. Also heard Mr. Rajib Saha, learned Addl. P.P.
appearing for the State-respondent.
[2] The judgment dated 05.08.2024 passed by learned
Special Judge (POCSO), Dhalai Judicial District, Ambassa in Spl.
(POCSO) No.08 of 2023 convicting the appellant under Section
341,354, 506 IPC and also under Section 8 of the POCSO Act, 2012
sentencing the appellant to suffer simple imprisonment for 1(one)
month for commission of offence punishable under Section 341 IPC
and to pay a fine of Rs.500/- under Section 341 IPC and also to
suffer rigorous imprisonment for 5(five) years for commission of
offence punishable under Section 354 IPC and to pay a fine of
Rs.5,000/- under Section 354 IPC and to suffer rigorous
imprisonment for 2(two) years and to pay a fine of Rs.1,000/-
under Section 506 IPC. Appellant was also sentenced to suffer
rigorous imprisonment for 5(five) years and to pay a fine of
Rs.5,000/- under Section 8 of the POCSO Act, 2012, are under
challenge in this appeal. All the sentences were directed to run
concurrently.
[3] The gravamen of the accusation as given in the FIR
lodged by the father of the victim that on 21.08.2023 (Monday) at
about 06.00 am when the victim was going to her tuition centre
from her house, on the way the appellant forcibly pressed her
mouth, took her to the nearby jungle and raped her. The police
authority on receipt of the FIR, lodged on the same day at about
12.55 hours, registered it as Manu PS case No.25 of 2023 under
Section 341,376(1),506 IPC and Section 4 of the POCSO Act, 2012
and on completion of the investigation, laid the charge sheet under
the similar provisions of law.
[4] Learned Trial Court also framed the charges under
above said provisions i.e. under Section 341, 376(1), 506 IPC and
also under Section 4 of the POCSO Act for wrongfully restraining
the victim on the above said date, time and place, for committing
rape upon her and also for threatening her in fear of death not to
disclose the incident to anyone.
[5] The victim is the sole eye witness of the incident and so
far the charge under Section 506 IPC is concerned, the victim in
her evidence nowhere stated that after commission of the alleged
rape, he threatened her not to disclose the said incident to anyone
rather, the victim gave statement of alleged threatening in another
form just prior to the commission of alleged rape which was not
reflected in the charge. Anyway, after conclusion of the trial,
learned Trial Court declined to convict the appellant under Section
376(1) IPC, rather convicted him under Section 354 IPC and under
Section 8 of POCSO Act in lieu of Section 4 of the Act.
[6] Mr. Ratan Datta, learned counsel appearing for the
appellant submits that total 19(nineteen) witnesses were examined
in this case, out of whom, PW-9 is the victim and PW-8 and PW-10
are her parents. PW-11, PW-12, PW-13 and PW-15 are her near
relatives like her grandmother and aunts who are basically
witnesses of hearsay evidence. Mr. Datta, learned counsel contends
that the key witness of the alleged incident is PW-9 herself and her
parents are also relevant witnesses whose evidences are required
to be scrutinized meticulously and cautiously. According to Mr.
Datta, learned counsel, in the FIR there was no allegation of any
sort of threatening or molestation of the victim and even the victim
or her parents also did not utter a single word regarding
molestation of the victim by the appellant but despite the same,
just relying on a stray evidence of the Medical Officer [PW-17]
conviction was rendered under Section 354 IPC and also under
Section 8 of the POCSO Act against the appellant. Mr. Datta,
learned counsel also contends that the medical report itself was
also a perfunctory one as the doctor did not mention anything as to
whether she had examined the internal or external part of the
genital of the victim and did not even make any observation on
that point despite the fact that it was a case registered under
Section 376(1) IPC and therefore, the evidence of Medical Officer
was also not reliable though learned Trial Court has heavily relied
on her. Referring to the forensic report under Exbt.10, Mr. Datta,
learned counsel also submits that the forensic report was also
negative for the presence of any seminal stain/spermatozoa.
[7] The basic contention of Mr. Datta, learned counsel is
that when the prosecution came up with the specific story of rape
against the appellant and when such allegation failed, there is no
scope to convict and punish the offender under Section 354 IPC or
under Section 8 of the POCSO Act on the same set of evidence. Mr.
Datta, learned counsel also raises another point that the evidences
of PW-1, PW-2, PW-5, PW-6, PW-7 and PW-14 were not placed
before the appellant while examining him under Section 313 Cr.P.C.
and therefore, their evidences which also includes the evidences on
the age of the victim cannot be taken into consideration to the
prejudice of the appellant and even learned Trial Court also did not
give any specific finding on the age of the victim though the
appellant was convicted under the provision of Section 8 of the
POCSO Act. Mr. Datta, learned counsel, finally relies on certain
decisions of the Apex Court and also of this Court which will be
reflected in the later part of this judgment.
[8] Mr. Rajib Saha, learned Addl. P.P. representing the
State-respondent, however, strenuously argues that that the victim
was completely a trustworthy witness and law is settled that based
on the sole testimony of the victim, conviction can be maintained.
To buttress his submission, Mr. Saha, learned Addl. P.P. also relies
on a decision of the Apex Court in Phool Singh vs. State of
Madhya Pradesh, [(2022) 2 SCC 74] wherein the basic principle
that conviction can be given on the sole testimony of the
victim/prosecutrix when her evidence is found to be trustworthy,
unblemished and credible, was reiterated by the Apex Court at
paragraph 8 of the said decision. Mr. Saha, learned Addl. P.P. also
argues that even if other charges are found to be not proved, still
in view of the evidence of the victim, the conviction under Section
341 is required to be affirmed. In this regard, Mr. Saha, learned
Addl. P.P. also refers another decision of the Apex Court rendered
in Didde Srinivas vs. State SHO, Podduru Police Station and
another in a Criminal Appeal arising out of SLP (Crl.)
No.8028/2023 decided on 13.11.2024 where in view of the
given facts and evidences of that case, the Apex Court also
maintained conviction under Section 451 IPC while affirming the
conviction under Section 354 IPC.
[9] This Court has given due consideration to the rival
submissions of the parties and also have meticulously gone through
the evidences as led by the prosecution. The victim [PW-9] stated
in her evidence that on 21.08.2023 at about 05.00/05.30 am, when
she was going to her tutor's house at Lambabil, the appellant
suddenly appeared there on her way, gagged her mouth and
placing a latex collecting blade on her neck forcibly dragged her in
a nearby rubber plantation, threatened her with dire consequences
showing the blade, disrobed her and committed sexual intercourse
with her against her will and also repeatedly pressed her breasts
and other parts of her body. She further deposed that the appellant
put his penis on her private part but suddenly she bite his arm and
somehow managed to flee away therefrom. Then she ran towards
the house of her tutor but as she was not feeling well, she returned
to her home and narrated the entire episode to her mother in
presence of her father.
[10] PW-8, the father of the victim also similarly stated that
on the alleged date and time when her daughter was going to her
tutor's house, the appellant appeared on her way and giving threat
to her with a latex collecting blade took her to the nearby jungle
and then committed rape upon her and after hearing above said
incident from his daughter, he lodged the FIR. PW-10, the mother
of the victim also in similar manner deposed specifically about
commission of rape upon the victim by the appellant. Neither of the
parents of the victim stated anything about any sort of molestation
of the victim by the appellant.
[11] PW-11, the maternal grandmother of the victim stated
that she had learnt about the incident from the mother of the
victim. She also specifically stated about commission of alleged
rape by the appellant upon the victim. PW-12, one aunt (victim's
father's sister) stated that getting a call from the father of the
victim she went to the house of the victim and came to know about
the incident of commission of rape by the appellant upon the
victim. PW-13 is maternal aunt of the victim and she also stated
that getting a call from the mother of the victim she went to their
house and came to know about such commission of rape upon the
victim by the appellant. So, all the above said witnesses have also
categorically stated about commission of rape upon the victim by
the appellant. Though PW-13 made an omnibus statement that
from the victim she had learnt that the appellant removed wearing
apparels of the victim, molested her in the jungle and committed
sexual intercourse with her against her will but did not say anything
as to how or in which manner she was molested. Learned Trial
Court, however, did not believe evidences of these witnesses with
reference to the allegation of commission of rape and declined to
convict the appellant on the charge under Section 376(1) IPC or
under Section 4 of the POCSO Act. As it appears, learned Trial
Court mainly relied on the evidence of Dr. Doyel Singha [PW-17],
Medical Officer while convicting the appellant under Section 354
IPC and Section 8 of the POCSO Act.
[12] The said Medical Officer [PW-17], in her evidence stated
that on 21.08.2023, she was posted as Medical Officer at
Chailengta Sub-Divisional Hospital, Dhalai and on requisition by the
police authority, she examined the victim on that day and also
collected her vaginal swab, anal swab, pubic hair, urine sample,
blood sample and her undergarments during such examination
including her biological fluid. She further deposed that during said
examination, the victim gave her the history of molestation by the
appellant after taking her in a forest area at Lambabil and
according to said witness, the victim also further stated to her that
the accused had touched her private parts and genital organs and
also applied force upon her and the victim was injured. According
to the doctor, during examination, she noticed mark of physical
force applied upon her left arm but no external injury could be
found. What was meant by the said witness by the words "mark of
physical force" were not further elaborated by her in her evidence.
She also deposed that there was no sign of penetration but the
accused molested the victim and kissed her on several portion of
her person. According to her, she did not find any sign of recent
sexual intercourse upon the victim. In her medical report [Exbt.3],
she however did not specifically mention anything about any
molestation of victim by the appellant and kissing on her several
parts, rather in her report, she mentioned only kissing on forehead,
nose and cheeks. In her injury report, the Medical Officer also gave
the history of touching female genital part by the accused's genital.
However, story of such kissing on forehead, nose and cheeks and
such touching of female genital by the accused's own genital were
not corroborated by the victim herself rather she brought the
specific story of physical intercourse.
[13] This Court is, therefore, in agreement with the
submission of Mr. Datta, learned counsel that when the prosecution
evidence is led specifically regarding commission of rape upon the
victim and it fails, the conviction cannot automatically be converted
or altered to Section 354 IPC unless there are satisfactory
evidences available to attract such provision. On that point, Mr.
Datta, learned counsel relies on a decision of this Court in Babul
Laskar vs. State of Tripura, [(2014) 1 TLR 1027] wherein at
Para 23 it was observed that if the allegation of rape cannot be
believed, on the similar set of facts it is very difficult to arrive at a
conclusion that modesty of the prosecutrix was outraged by the
accused inasmuch as there is no room to separate the facts in
different compartments and to separate the grains from chaffs. It
was also further observed that if the allegation of rape is doubtful
and cannot be believed, in the given facts and circumstances, no
other allegation on the same bundle of facts can be believed. Mr.
Datta, learned counsel also relies on another decision of the
Gauhati High Court, Agartala Bench in Pulin Bihari Roy vs. State
of Tripura, [(2012) 6 GLR 138] wherein it was similarly
observed by the Court that where the allegation of rape fails, under
the circumstances, on the same bundle of fact, the accused cannot
be punished for outraging of modesty, unless the ingredients
thereof as to the commission of assault or use of criminal force, by
the accused, on the prosecutrix, with an intention of outraging of
modesty or knowing it to be that he would thereby outrage her
modesty, are established.
[14] Learned Trial Court, as it appears, while convicting the
appellant under Section 354 IPC and Section 8 of the POCSO Act
referred to above said evidence of Medical Officer in respect of the
history given by the victim to her and held him guilty under said
provisions. But, learned Trial Court failed to consider the position of
the law that the medical evidence is a opinion evidence advisory in
nature and it cannot be treated as substantive piece of evidence
with reference to the commission of alleged offence. The medical
evidence is used for the purpose of corroboration or
discorroboration with reference to the substantive evidence
adduced in a criminal trial by the prosecution in respect of the
commission of crime. Mr. Datta, learned counsel also relies on a
decision of the Division Bench of the Guwahati High Court, Agartala
Bench in case of State of Tripura vs. Haradhan Majumder and
others, [(2010) 6 GLR 134] wherein at Para 21 the followings
were observed:
"21. There is nothing in the prosecution evidence from which it
can be said that either the accused respondent No.1 or the
mother in law, the respondent No.2 is a party to the
strangulation as opined by the medical officer, P.W.7. By this
time, it is also settled by the Apex Court that the medical
evidence is a opinion evidence and only on the basis of the
medical evidence, a person should not be convicted unless
such evidence is corroborated by other ocular evidence of
prosecution witnesses. As in the instant case, there is no
corroborative evidence to support the evidence of the doctor,
P.W.7, we are unable to accept the evidence of doctor, P.W.9 so
far his opinion regarding the cause of death by strangulation. In
the absence of any injury on the body of the deceased, the
evidence of doctor also cannot be relied upon by us as he did not
mention in the post mortem report regarding the age of the
injury, which he found on the body of the deceased and whether
those evidences are ante mortem or post mortem are highly
essential to prove the case of the prosecution, but those are
totally absent."
In the above said decision, it was also categorically
observed that a person should not be convicted only on the basis of
medical evidence unless such evidence is corroborated by other
ocular evidence of the prosecution.
[15] The Scientific Officer-cum-Assistant Chemical Examiner
namely, Smt. Rupali Majumder [PW-7] in her evidence also
deposed that on examination of vaginal swab, anal swab, pubic
hair, urine sample, one pink colour undergarment of the victim etc,
seminal stain/spermatozoa of human origin could not be detected
therein. This Court is also in agreement with the submission of Mr.
Datta, learned counsel that when the prosecution came up with
specific story of rape upon the victim and also led specific
evidences in that line and when learned Trial Court declines to rely
on such evidence with reference to the charge of rape or
penetrative sexual assault, one should not be held guilty on the
same set of evidences under Section 354 IPC in absence of any
other specific and satisfactory evidence of molestation of the victim
is found available. Therefore, learned Trial Court committed err in
convicting the present appellant under Section 354 IPC and under
Section 8 of the POCSO Act for the reasons as discussed above.
[16] Though Mr. Saha, learned Addl. P.P. emphatically
submitted that even if the conviction under Section 354 IPC or
Section 8 of POCSO Act fail, still conviction under Section 341 IPC
is required to be maintained but this Court is not in agreement with
such contention inasmuch as when the charges or conviction for the
prime offence has failed and the conviction cannot be maintained in
respect of above said principal offence under Section 354 IPC and
Section 8 of the POCSO Act, it will also not be proper to maintain
conviction under Section 341 IPC which is a preparatory part of the
principal offence. As discussed in the earlier part of the judgment
about the position of materials with reference to the conviction
under Section 506 IPC and also in view of that the conviction under
the principal offence under Section 354 IPC has already failed, the
conviction under Section 506 IPC should also not be maintained.
[17] In view of the discussion made hereinabove, the appeal
is allowed. The judgment of conviction and sentence passed by the
learned Special Judge (POCSO), Dhalai Judicial District, Ambassa in
Spl. (POCSO) No.08 of 2023 as indicated earlier are hereby set
aside.
Appellant is set at liberty.
The bail bond liability of the surety stands discharged.
In terms of the above, the appeal is disposed of.
Pending application(s), if any, shall also stand disposed
of.
JUDGE
Rudradeep RUDRADEEP BANERJEE Digitally signed by RUDRADEEP BANERJEE
Date: 2025.02.13 11:09:48 +05'30'
