Md. Usman Ali @ Manar Ali vs The State Of Tripura
2025 Latest Caselaw 398 Tri

Tripura High Court

Md. Usman Ali @ Manar Ali vs The State Of Tripura on 27 January, 2025

                   HIGH COURT OF TRIPURA
                         AGARTALA
                    Crl.A.No.09 of 2024


Md. Usman Ali @ Manar Ali, Age- 34 years,
S/O- Md. Junab Ali,
Resident of village-Kinairchar, P.O.- Srirampur,
P.S.- Kailashahar, District- Unakoti Tripura,
Pin-799277
                                                   .... Appellant.

                            Versus
The State of Tripura
To be represented by the Ld. Public Prosecutor,
High Court of Tripura, Agartala
                                             .......Respondent.

For Appellant(s)      :    Mr. Kawsik Nath, Adv.
For Respondent(s)     :    Mr. Raju Datta, P.P.,
                           Mr. R. Saha, Addl. P.P.
Date of Hearing       :    24.01.2025
Date of delivery of
Judgment and Order :       27.01.2025
Whether fit for
Reporting             :    YES


          HON'BLE MR. JUSTICE BISWAJIT PALIT

                      Judgment & Order

This appeal is filed challenging the judgment and

order of conviction and sentence dated 18.10.2023 delivered

by Learned Addl. Sessions Judge, Unakoti District, Kailashahar

in connection with case No.S.T.(Type-1) 18 of 2021.

02. Heard Learned Counsel, Mr. Kawsik Nath appearing

on behalf of the appellant-accused and also heard Learned

P.P., Mr. Raju Datta along with Learned Addl. P.P., Mr. R. Saha

appearing on behalf the State-prosecution.

03. Taking part in the hearing, Learned Counsel for the

appellant first of all drawn the attention of the Court that the

Learned Court below in this case framed charge against the

appellant under Section 448/376/323/506 of IPC but on

conclusion of trial, Learned Trial Court found the appellant to

be guilty under Section 448/323 of IPC and convicted him

accordingly. Learned Counsel further submitted that in this

case prosecution could not adduce any independent public

witness to support the case of the victim. Furthermore, the

victim in the FIR did not say anything about the ingredients of

offence punishable under Section 376 of IPC, but when she

turned up to the witness box to depose as a witness, that time

she stated that she was raped by the appellant, but in this

regard the prosecution could not prove any medical report to

support her allegation. Furthermore, the daughter of the victim

also did not support the case of her mother. Even regarding

seized mobile phone, no specific evidence was led by the

prosecution. The prosecution also could not produce the

Learned Magistrate who recorded the statement of the victim

before the Learned Trial Court, nor the contents of the

statement were proved by the prosecution. Thus, in summing

up Learned Counsel for the appellant submitted that since the

prosecution both by oral/documentary evidence on record

failed to prove the charge framed by the Learned Trial Court

below properly, so, the present conviction and sentence suffers

from infirmities and furthermore, Learned Counsel submitted

that there was long standing enmity between the rival parties

and from the allegation levelled by the victim itself shows that

the same was nothing but a concocted and fabricated story but

the Learned Court below did not consider the same and found

the appellant to be guilty for the charges punishable under

Section 448/323 of IPC for which the judgment imposed

against the appellant cannot be sustained in the eye of law and

urged for setting aside the judgment and order of conviction

and sentence delivered by Learned Trial Court below.

Learned Counsel further submitted that during

investigation also the accused was in custody for a

considerable period of time. However, the prosecution both by

oral/documentary evidence on record failed to adduce any

cogent materials evidence on record to substantiate the charge

but the Learned Trial Court failed to appreciate the evidence on

record properly and found the appellant to be guilty for which

the appellant may be acquitted from the charge of this case.

Learned Counsel further submitted that if the evidence on

record is properly appreciated, it will appear that the allegation

of the informant was nothing but a false and fabricated story.

04. On the other hand, Learned P.P., Mr. Raju Datta

appearing on behalf of the State-respondent submitted that

admittedly the independent witnesses did not see the appellant

to the alleged place of occurrence on that relevant point of

time, but the evidence of the informant is so trustworthy that

the appellant by the trend of cross-examination could not

discard her evidence. Even the mobile which was left by the

appellant to the place of occurrence on that relevant point of

time was belonging to the appellant-accused, but the

appellant-accused could not give any clear explanation/account

that the same was not belonging to him. Furthermore, the

injury report of the victim itself shows that the appellant

caused injury to her on the alleged day of the commission of

offence. More so, the appellant by the trend of cross-

examination also could not discard the evidence on record of

the Medical Officer. So, according to Learned P. P., the Learned

Court below rightly and reasonably found the appellant to be

guilty and convicted him accordingly and there is no scope to

interfere with the judgment delivered by Learned Trial Court

and urged for dismissal of this appeal.

05. In this case the prosecution was set into motion on

the basis of an FIR laid by the informant-cum-victim to O/C

Women P.S., Kailashahar alleging interalia that on 30.04.2019,

in the night at about 1 a.m. when the victim came out from her

dwelling hut, that time the accused Manar Ali caught hold her

body with an ill intention. When she raised protest, that time

the accused-appellant assaulted her for which she sustained

injury to the different parts of her body. He also teared the

wearing nighty of the informant-cum-victim. She raised alarm

when the neighbouring people appeared and the accused fled

away and at the time of fleeing away the accused left his

mobile phone to the place of occurrence. It was further stated

that the accused at the time of departure from her residence

abused her in filthy languages, hence, she laid the FIR. On

receipt of FIR, O/C Kailashahar, Women Police Station

registered Kailashahar Women P.S. case No.10/2019 under

Section 448/354-B/325/506 of IPC and the case was endorsed

to I.O. for investigation. The I.O. conducted the investigation

and accordingly, after completion of investigation the I.O. laid

charge-sheet against the appellant before the Jurisdictional

Magistrate and on commitment to the Court of Learned Addl.

Sessions Judge, Unakoti District, Kailashahar, formal charge

under Section 448/376/323/506 of IPC was framed against the

appellant by the Learned Trial Court and the same was

explained to him in Bengali to which he pleaded not guilty and

claimed to be tried. During Trial to substantiate the charge the

prosecution in total has adduced 13 nos. of witnesses and the

prosecution also relied upon and tendered some documentary

evidence which were marked as exhibits in this case. For the

sake of convenience, the name of the witnesses of the

prosecution and the exhibited documents are mentioned herein

below:

APPENDIX

(A) PROSECUTION WITNESSES:-

PW1- Informant-cum-victim (Name Withheld) PW2- Smt. Papiya Rudrapaul (MO of victim) PW3- Smt. Pratibha Sinha (1st IO) PW3- Smt. Pratibha Sinha (1st IO) PW4- Smt. Mampi Deb (Seizure Witness)

PW5- Mst. Yeasmin Nahar (Daughter of victim) PW6- Sri Sarojit Malakar (Neighbour) PW7- Khalika Mia (Neighbour) PW8- Smt. Dali Malakar (Neighbour) PW9- Saddam Hossain (Neighbour) PW10- Dr. Dhrupad Das (MO of accused) PW11- Dr. Dhrupad Das (MO of victim) PW12- Dr. Shekhar Sarkar (MO of victim) PW13- Smt. Aparna Debnath (2nd IO)

(B) PROSECUTION EXHIBITS:-

Exhibit-1, Signature of PW1 on the written ejahar.

Exhibit-P21/2 as a whole, Receipt and Registering note along with the signature of PW13 on the written ejahar. Exhibit-2, Signature of PW1 on the seizure list dated 01.05.2019.

Exhibit-P2/1, Signature of PW3 on the aforesaid seizure list.

Exhibit-2/2, Signature of PW4 on the aforesaid seizure list.

Exhibit-3., Signature of PW1 on the statement recorded under section 164(5-A)(a) of the Cr.P.C.

Exhibit-P4, Medical report dated 04.05.2019, being proved by PW2.

Exhibit-P4 series, Signatures of PW3 on the hand sketch map along with index. Exhibit-5 as a whole, Signature of PW2 on the injury report, dated 27.05.2019. Exhibit- 6, Medical Report of the accused person being proved by PW10. Exhibit- 6/1, Signature of PW10 on the aforesaid Medical Report. Exhibit-7, Medical Report of the victim, being proved by PW11.

Exhibit-7/1 series, Signatures of PW11 on the aforesaid Medical Report. Exhibit-9, Printed form of FIR being proved by PW13.

Exhibit-9/1, Signature of PW13 on the aforesaid printed form of FIR. Exhibit-MO1, Wearing apparel and mobile set, being proved by PW1.

(C) DEFENCE WITNESSES:- NIL.

(D) DEFENCE EXHIBITS:- NIL.

06. Now, let us discuss the synopsis of the evidence on

record of the prosecution.

PW1 is the victim-cum-informant. She deposed that

on 30.04.2019 when she came out of her room to take water

for her son, Chabir Hossain who was suffering from fever, that

time the accused Usman Ali @ Manar Ali suddenly caught hold

her. She tried to free herself from the clutch of the accused but

failed. She shouted and fought with the accused. Thereafter,

the accused followed her infront of her varandah and started

giving bites on her whole body. Inspite of trying her level best,

she could not save herself from the accused. Thereafter, the

accused forcefully raped her infront of her 12 years old

daughter namely, Yeasmin Nehar. By the time her daughter

called Rujina Begam, her neighbour and during that period she

came to their house for visiting purpose. Rujina on getting

information arrived to her residence along with other people of

that area when the accused fled away leaving his mobile. On

the following day morning, she lodged the instant case with the

O/C, Kailashahar Women P.S. She was taken to hospital where

she put her signature on the ejahar. She could not say who

wrote the ejahar and identified her signature on the ejahar

marked as Exhibit-1. The ejahar was submitted to the Police

Station by her mother. She was discharged from the hospital

on the same day and after that she handed over the mobile of

the accused to one of the member of Mohila Morcha who

subsequently gave the same to police. Police took her nighty

which was teared on various parts. Thereafter, she put her

signature on the seizure list marked as Exhibit-2. She also

identified her wearing apparel and the mobile set which were

marked as Exhibit MO-1 series. She also stated that later on

she was taken to Magistrate where her statement was

recorded. She identified her signatures on the statement

marked as Exhibit-3 series.

During cross-examination she stated that when the

case was lodged/registered that time she was admitted in the

hospital and she stated in the ejahar that she was raped by the

accused. That time her minor daughter was present. But she

could not say as to whether the same was written or not in her

ejahar. However, on drawing attention of the ejahar the said

statement was not found. She further stated that the mobile of

the accused and nighty were not seized in her presence and it

was seized at about 10 a.m. on the following day morning. She

also stated that she was discharged after 10/12 days from the

hospital and Rujina Begam is her younger sister and she

resides in Tarapur. Nothing more came out relevant.

07. PW2 Smt. Papiya Rudrapaul deposed that on

01.05.2019 she was posted at RGM Hospital, Kailashahar as

Medical Officer and on that day she was discharging her duty in

OPD when she attended the victim in connection with KLS

Women PS case No.WKS 10/2019 dated 01.05.2019. On that

day, the victim came with history of headache and generalized

bodyache and accordingly, she prescribed her medicine.

Thereafter, on 04.05.2019 she again came before her and

when she referred her to the District Hospital. She further

stated that on 27.05.2019 she issued the injury report of the

victim wherein she opined that the said patient came with

symptoms of headache and generalized bodyache following

alleged history of physical assault on 01.05.2019 at around 1

a.m. She found one bluish injury infront of right hand which

was caused by a blunt weapon, one abraded bite mark with

sharp weapon infront of right arm of the patient, two abrasion

injury 3.5 cm above from the left breast caused by blunt

weapon for which she advised NCCT brain, chest x-ray. She

identified her report in both sides of the sheets containing her

signature marked Exhibit-5 as a whole.

During cross-examination nothing came out

relevant.

08. PW3 Pratibha Sinha deposed that on 01.05.2019

she was posted at Kailashahar Women PS as SI of police. On

that day O/C of the said PS was SI Aparna Debnath and she

endorsed this case to her for investigation and accordingly, she

took up investigation of this case. During investigation, she

examined the victim and recorded her statement under Section

161 of Cr.P.C., seized one multi coloured printed nighty of

victim, one Samsung Mobile set which was handed over to her

by the victim and the same was seized by her in presence of

the witness by preparing a seizure list. The witness identified

the seizure list marked Exhibit P-2/1. She further stated that

she visited place of occurrence on 02.05.2019, prepared hand

sketch map with index and identified the hand sketch map with

index marked as Exhibit P4 series and after that the docket

was handed over as per direction of O/C.

During cross-examination she stated that she seized

the mobile set and wearing apparel of the victim in her house

on the night of alleged day of accident. She further stated that

during the period of her investigation, till 04.05.2019 nothing

revealed to her that the victim was raped.

09. PW4 one Mampi Deb deposed that she was posted

as Women Constable of the Police. On that day, WASI Prativa

Sinha seized one multicoloured printed nighty and one

Samsung mobile phone in her presence by preparing a seizure

list and took her signature on the same as a seizure witness.

The witness identified her signature on the seizure list dated

05.09.2019 marked as Exhibit 2/2.

During cross nothing came out relevant.

10. PW5 Yeasmin Nahar is the daughter of the victim.

She deposed that about three years back, one day, when they

were sleeping at night, that time she woke up after hearing the

cry of her mother. She went out of her room and found that

her mother was crying sitting at the verandah. She also raised

hue and cry and hearing the same, her neighbours gathered

therein. On the spot, they did not find anyone except one

Samsung mobile phone. On query, her mother disclosed that

someone assaulted her and the said assault inflected injury

marks upon her body. She was declared hostile by the

prosecution and on drawing attention she admitted that she

made statement to the I.O.

During cross-examination she stated that on that

relevant point of time she did not see the accused.

11. PW6 Sri Sarojit Malakar deposed that on

30.04.2019, he heard hue and cry from the house of the

victim. Thereafter, he rushed to the house of the victim and

found her crying with her clothes in teared condition. On query,

the victim stated her that a person of their village assaulted

her. She could not say anything furthermore about this case.

           Nothing      came   out    relevant    from     her   cross-

examination.

12. PW7 deposed that on 30.04.2019 she was sleeping

at her dwelling house when the victim called her over mobile

phone. Accordingly, she rushed to the house of the victim

taking four other persons and found her crying. That time the

victim stated to him that she was assaulted by Manar Ali @ Md.

Usman Ali but he did not see any person to the alleged place of

occurrence.

During cross examination, he stated that the victim

came to their village about 7/8 years prior to the date of

occurrence.

13. PW8 Dali Malakar deposed that on 30.04.2019, she

heard hue and cry from the house of the victim and

accordingly, she rushed to the house of the victim and found

her crying. On query, the victim stated her that a person

namely Manor Ali of her village assaulted her and teared her

wearing apparel (nighty).

During cross nothing came out relevant.

14. PW9 Saddam Hossain deposed that about two and

half years ago, at about 2.00 am, the victim called him over

phone and asked him to come to her dwelling house and

accordingly, he proceeded there but he did not find any person

except the victim. On query, the victim told him that she had

an altercation with her neighbour namely Usman Ali. Nothing

more came out relevant.

15. PW10 Dr. Dhrupad Das deposed that on 22.05.2019

he was posted as Medical Officer at District Hospital,

Kailashahar, Unakoti Tripura. On that day he received one

requisition from the WSI of police namely Aparna Debnath for

arranging the medico-legal examination of the accused person

to determine his potency in connection with Kailashahar

Women PS case No.2019/WKS/010 dated 01.05.2019.

Accordingly, he examined the accused and found the accused

capable of performing sexual intercourse. He laid the report

and identified his report marked as Exhibit-6 and Exhibit-6/1

series.

16. PW11 Dr. Dhrupad Das deposed that on

14.05.2019, Dr. Jadu Mohan Tripura was posted as Medical

Superintendent at District Hospital, Bhagaban Nagar, Unakoti

Tripura. On that day, he received one requisition from the WSI

of police namely Aparna Debnath for arranging the medico-

legal examination of the victim in connection with Kailashahar

Women PS case No.2019/WKS/010, dated 01.05.2019. Before

conducting the medical examination, the said M.S. obtained

the consent of the victim on the Medical report and after

conducting medical examination of the victim, the said M.S.

gave his report consisting of 05 (five) sheets reflecting his

opinion and in the report it was opined that there was no signs

or symptoms of any sexual contact with the women. He

identified the report of M.S. marked as Exhibit-7 and his

signature marked as Exhibit-7/1 series as the witness worked

with the M.S., Dr. Jadu Mohan Tripura. As Dr. Jadu Mohan

Tripura was transferred, so, Dr. Dhrupad Das was examined to

identify the report.

During cross-examination he only stated that there

was no sign of any sexual assault on the report of M.S.

17. PW12 Dr.Sekhar Sarkar deposed that on

04.05.2019 he examined the victim at RGM Hospital,

Kailashahar and on arrival of the patient, he enquired the

patient when she disclosed the fact that she had bodyache and

pain in her abdomen. Accordingly, he treated her by providing

necessary treatment and after that she was shifted to Surgical

Ward for further course of treatment. He identified his report

marked as Exhibit-8 and his signature marked as Exhibit-8/1.

18. PW13 Aparna Debnath deposed that on 04.05.2019

she was posted as O/C Kailashahar Women PS and on that

day, she received one written ejahar from the victim and

accordingly, registered the case. She identified her signature

on the margin of FIR marked as Exhibit-P1/2. She also filled up

the printed FIR form and identified the same with her signature

marked as Exhibit-9 and Exhibit-9/1 and after that the case

was endorsed to WSI Pratibha Sinha for investigation. Later on,

as per order of SP, she also took up the charge of

investigation. During the course of her investigation, she

caused arrest the accused and forwarded him before the Court.

She arranged for medical examination of the victim at RGM

Hospital, Kailashahar and thereafter, the victim was sent to

District Hospital, Kailashahar. On 20.072019, she collected the

bed head ticket and injury report and examined some

witnesses and produced the victim before the Court for

recording her statement. She also made a prayer before the

Court for adding Section 376 of the IPC and finally, on

completion of investigation, she laid charge-sheet against the

accused-appellant.

During cross-examination, she stated that on

24.06.2019 she examined the witnesses namely Rujina Begam

and Saddam Hossein and recorded their statements.

These are the synopsis of the evidence on record.

19. I have heard detailed argument of both the sides

and gone through the record of the Learned Court below.

Admittedly, in this case the victim-cum-informant at the time

of lodging of FIR did not say anything regarding commission of

rape by the accused-appellant but later on, when she appeared

before the Magistrate, she stated that she was raped by the

appellant. Even during trial, she also gave the same statement.

But surprisingly the Medical Officer who examined the victim

very specifically stated that there was no any sign of rape upon

the victim. More interestingly, the Learned Magistrate who

recorded the statement of the victim under Section 164(5) of

Cr.P.C. was not produced to support her version. Even the

contents of the statement recorded by Magistrate could not be

proved by the prosecution before the Learned Court below.

Even the daughter of the victim also did not support the

version of her mother in this regard. So, in my considered

view, Learned Court below rightly acquitted the appellant from

the charge punishable under Section 376 of IPC. Now in

respect of charge under Section 448/323 of IPC, it appears to

me that at the time of alleged occurrence excepting the victim

and her daughter no other persons were present, because all

the witnesses of the prosecution when they appeared to the

residence of the victim, they did not find the appellant-accused

to the alleged place of occurrence. The daughter of the victim

stated that she also did not notice the appellant to the place of

occurrence but she found injury on the body of her mother and

also found one mobile phone belonging to the accused and that

mobile phone was seized by the I.O. during investigation. The

appellant although thoroughly cross-examined the victim in

this regard, but her evidence could not be shattered at any

length by the appellant to disbelieve the charge levelled

against him under Section 448/323 of IPC. Even, in respect of

injury, on the body of the victim as opined by Medical Officer,

the appellant also could not create any doubt to disbelieve the

evidence on record of the concerned Medical Officer.

20. So, after meticulous examination of the evidence on

record of the prosecution, it appears that although the victim

took the plea that the appellant assaulted her on that day and

she sustained bodily injury, but regarding commission of rape

by the appellant, no convincing evidence could be produced by

the prosecution before the Learned Court below. The appellant

also could not create any doubt to disbelieve the evidence on

record of the victim regarding causing physical assault and also

inflicting injury upon the body of informant-cum-victim and the

evidence of the minor daughter of the victim regarding noticing

of injury by her on the person of the victim and also the injury

report of the Medical Officer regarding simple injury being

observed/detected in course of examination of the victim.

21. Thus, in my considered view, Learned Court below

rightly found the appellant to be guilty for the alleged charges

punishable under Section 448/323 of IPC. The witnesses of the

prosecution did not find the appellant to the alleged place of

occurrence on their arrival, but on their arrival to the place of

occurrence, they found the victim was crying when she

narrated the entire episode to them. The accused also could

not raise any doubt to disbelieve that portion of evidence. So,

after hearing both the sides, it appears to this Court that the

prosecution has been rightly able to prove the charge levelled

against the appellant-accused under Section 448 and also

under Section 323 of IPC for which the appellant is liable to be

convicted under the aforesaid provisions of law. However, the

Learned Trial Court at the time of delivery of judgment

awarded RI for a period of one year and to pay fine of

Rs.1,000/- id to suffer further SI for one month, under Section

448 of IPC and also the Learned Trial Court awarded

imprisonment for one year and with fine of Rs.1,000/- id to

suffer further SI for one month under Section 323 of IPC and it

was also ordered that both the sentences shall run

concurrently.

22. However, considering the nature and gravity of the

offence, it appears to this Court that if the appellant instead of

suffering sentences of imprisonment is only awarded fine in

both the offences then I think the purpose of justice would

suffice. Accordingly, the appeal is partly allowed. The judgment

and order of conviction and sentence of the Learned Trial Court

as indicated above is modified to the extent that the appellant-

convict shall pay fine of Rs.1,000/ under Section 448 of IPC id

to suffer SI for two months and he is also sentenced to pay

fine of Rs.1,000/- under Section 323 of IPC id to suffer further

SI for one month. In total fine amount of Rs.2,000/- which

shall be deposited by the appellant-convict to the Learned Trial

Court below within fifteen(15) days from the date of passing of

this judgment and the same amount of fine if realized shall be

given to the victim as compensation.

With this observation, this appeal is stands disposed

of on contest.

Send down the LCR along with the copy of this

judgment and also a copy of this judgment/order be furnished

to Learned Counsel for the appellant for compliance

Pending application(s), if any, also stands disposed

of.

JUDGE

MOUMITA DATTA DATTA Date: 2025.01.28 18:13:29 +05'30' Purnita