Tripura High Court
Sri Dipak Debnath vs The State Of Tripura on 21 March, 2025
Author: Arindam Lodh
Bench: Arindam Lodh
HIGH COURT OF TRIPURA
AGARTALA
Crl. A(J) No.34 of 2024
Sri Dipak Debnath,
Son of Lt. Swapan Debnath, of Purba Mirza, P.S Kakraban, Gomati, Tripura.
...... Appellant(s)
VERSUS
The State of Tripura,
Represented by the Secretary, Department of Home, New Capital Complex, P.S.
N.C.C., Agartala, West Tripura.
...... Respondent(s)
For Appellant(s) : Mr. D. Datta, Advocate.
For Respondent(s) : Mr. Raju Datta, P.P.
Mr. Rajib Saha, Addl. P.P.
Date of hearing : 17th January, 2025.
Date of delivery of Judgment : 21st March, 2025.
Whether fit for reporting : YES
HON'BLE MR. JUSTICE ARINDAM LODH
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT & ORDER
S. Datta Purkayastha, J.
The appeal arises out of the judgment dated 03.04.2024 and
sentence dated 06.04.2024 passed by learned Additional Sessions Judge,
Gomati Judicial District, Udaipur whereby the appellant Dipak Debnath was
convicted under Section 376(2)(l) of the Indian Penal Code (for short IPC) and
was sentenced to suffer rigorous imprisonment for 10(ten) years and to pay fine
of Rs.25,000/-.
[2] The FIR was lodged by the mother of the victim (PW-1) on
20.06.2020 at Kakraban police station alleging, inter alia, that on 16.06.2020 at
around 10.00 am, she went to Mirza market to consult a doctor leaving her
disabled daughter (the victim) and one grandson (aged about 3 ½ years) in the
house, and at around 01.30 pm when she returned, she learnt from her said
grandson that the appellant had committed some filthy acts with her daughter.
Thereafter, on asking her daughter also told her that the appellant coming to her
house initially asked her daughter about the informant and hearing that she had
gone to market, he pulled the victim on the backside of their house and raped
her there. Thereafter, the informant informed the matter to the wife of the
appellant and also neighbours, Sri Sital Sarkar (PW-3) and the Pradhan of their
gram panchayat. The Pradhan thereafter instructed her to take recourse of law
and then the FIR was lodged by her with an explanation that delay in lodging
the same was occasioned as the victim was a disabled person unable to speak
properly.
[3] The police authority registered the FIR as Kakraban PS case No.53
of 2020 under Section 376(2)(l) IPC and Sub-Inspector Smt. Madhabi
Debbarma (PW-17) conducted the investigation and finally laid the charge
sheet under Section 376(2)(l) IPC against the appellant.
[4] During investigation, the investigating officer collected and seized
dried blood sample of both the victim and the appellant, vaginal swab, pubic
hair and once black/blue colour panty of the victim and also smegma of
appellant and sent all those items to the State Forensic Science Laboratory and
after DNA examination, Dr. Subhankar Nath, Deputy Director of said Forensic
Science Laboratory (PW-11) opined that seminal stain which was detected in
the panty of the victim was not of the appellant. The Investigating Officer
ignored said opinion while submitting the chargesheet.
[5] The appellant in the Trial Court denied the charges framed under
Section 376(2)(l) of IPC regarding commission of alleged rape upon the victim,
on 16.06.2020 at around 10.00 hours to 13.30 hours at East Mirza who
allegedly was suffering from mental or physical disability.
[6] The prosecution during trial examined total 17(seventeen)
witnesses and also proved certain documents into evidence and finally, learned
Trial Court held him guilty for commission of said crime. While doing so,
learned Trial Court observed that the victim was mentally retarded to the extent
of 75% and she was not in a position to understand the good or bad aspect of
sexual assault and as such the absence of any injuries on her person by itself
was not sufficient to disbelieve her. While discarding the evidence of forensic
expert who excluded presence of any semen of the appellant in the panty of the
victim, learned Trial Court also observed that the Court was not bound by the
said result of forensic examination as it was only of advisory in nature. Learned
Trial Court also gave much reliance on the evidence of the victim and her
mother and two neighbouring people and finally came to conclusion that the
charge was established against the appellant.
[7] Mr. D. Datta, learned counsel during hearing submits that learned
Trial Court has misappreciated the evidences on record and illegally discarded
the evidence of forensic expert. According to Mr. Datta, learned counsel, there
was no reason to disbelieve the evidence of said scientific expert inasmuch as
the prosecution itself relied on said evidence and said witness was also not
declared hostile by the prosecution. Mr. Datta, learned counsel further contends
that if the evidence of scientific expert is taken into account, it belies the entire
prosecution case of alleged commission of rape upon the victim by the
appellant. Mr. Datta, learned counsel also submits that there was unexplained
delay of four days in lodging the ejahar giving passage to the prosecutrix or her
mother to falsely implicate the appellant in the case, more particularly, in view
of the fact that it was admitted by the victim in her evidence that they had bad
relation with the appellant who was their next door neighbour.
[8] Mr. Rajib Saha, learned Addl. P.P., however strenuously argues
that the evidence of the victim was cogent, reliable and trustworthy and
therefore, learned Trial Court was completely justified in convicting the
appellant. According to him, the mother of the victim also corroborated the
victim on all material points which was further bolstered by way of
corroboration of evidences of two other witnesses viz. PW-3 and PW-4 ( the
two co-villagers) and none of the witnesses, according to learned Addl. P.P.,
could be discredited by the defence during their cross-examination. Learned
Addl. P.P. also contends that the delay in lodging the FIR was also properly
explained by the prosecution. Regarding the forensic report, Mr. Saha submits,
the evidence of PW-11 and said report were of advisory nature and therefore,
the Court was not bound to rely on it.
[9] We have taken note of the rival contentions of the parties and the
materials placed on record. As it appears, out of 17(seventeen) witnesses as
examined by the Prosecution, the key witnesses of the case are the victim
herself (PW-2) and her mother (PW-1). Other important witnesses examined by
the prosecution are PW-3, PW-4 and PW-5 who are their co-villagers and two
of them are Pradhan and Upa-pradhan of the local gaon panchayat. Other two
witnesses i.e. Dr. Subhankar Nath, the forensic expert (PW-11) and Dr. Gayatri
Debnath (PW-16) who physically examined both the victim and the appellant,
are also important witnesses of the case. Rest witnesses are either seizure
witnesses or scribe of the FIR or certain official witnesses whose evidences are
not much significant so far the charge is concerned.
[10] PW-2, the victim deposed that about six months ago her mother
went to the chamber of one dental surgeon and at that time the appellant came
to their house and enquired about her mother. Then she informed him that her
mother went to market. Thereafter, the appellant took her to the backyard of her
house by pulling her hands, opened her panty and committed sexual assault
upon her forcefully. On return of her mother, she informed the said incident to
her. In her cross-examination, she stated that she could not say the exact date of
the alleged incident but she could reply properly to any queries. She also
admitted that they did not maintain good relation with the appellant.
[11] The mother of the victim (PW-1) also stated that about 6/7 months
ago, she went to the chamber of one dental surgeon at Mirza market and on her
return to the house at around 1.30/2.00 pm she learnt from her physically
challenged daughter and her grandson of age 3/4 years (not examined in the
case) that the appellant had visited their house and enquired about her and then
taking her daughter on the backyard, forcefully opened her panty and
committed sexual assault on her. She immediately informed the matter to one
of her neighbour namely, Sri Sital Sarkar (PW-3) and then to panchayat
Pradhan Sri Sadhan Debnath (PW-4) and Upa-pradhan Sri Swapan Kar (PW-5)
and all of them suggested her to take shelter of law and thereafter, she lodged
the FIR. She further stated that there was delay of 2/3 days as her daughter was
physically challenged girl. In her cross examination, she stated that her house
was surrounded on the southern side by the house of Sital Sarkar (PW-3), on
the northern side by the house of Subal Hrishidas (not examined), on the
eastern side by the house of Bhanu Biswas (PW-7) and on the western side by
the house of the appellant. There was no further significant cross-examination
of said witness.
[12] According to PW-1, her daughter was a physically challenged
person. PW-3 and PW-4 stated that the mother of the victim informed them that
the appellant committed sexual assault upon her physically challenged daughter
in her absence. But none of them stated anything about any sort of mental
disability of the victim. To convict or punish a person under the provision of
Section 376(2)(l) IPC, it is incumbent upon the prosecution to satisfactorily
prove that the rape was committed upon a woman suffering either from mental
or physical disability. In the FIR, mother of the victim mentioned that the
victim was a differently able person as she was not in a position to speak
properly, though in her evidence she did not depose anything in that manner. In
the evidence of the victim or in the related order of the learned Trial Court of
the relevant date of examination of the victim, there is no indication that
learned Court noticed any sort of disability of the victim, either physical or
mental. From the evidence of investigating officer (PW-17) it appears that one
disability certificate of the victim was seized by her but neither the doctor
issuing such certificate was examined nor said disability certificate was proved
into evidence.
[13] Prosecution examined one medical officer namely, Dr. Subhash
Kanti Datta (PW-14) who issued a letter to the investigating officer on
verifying the records of the office of District Disability Rehabilitation Centre,
Udaipur informing the investigating officer that as per the office record a
disability certificate was issued from said office in respect of the victim who
was having 75% disability of mental retardation. However, said letter is not
sufficient to establish the fact of mental retardation of the victim of permanent
nature unless and until said original disability certificate is duly proved by
examining the issuing authority of said certificate. PW-14 neither examined the
victim nor issued any such disability certificate and he did not depose anything
of having any personal knowledge of any such disability. Mere oral evidence of
the mother of the victim that her daughter was physically challenged person
was not sufficient enough to convict the appellant on a charge under Section
376(2)(l) IPC.
[14] The important stakeholders in the process such as the investigating
officer, the prosecutor, the medical officer as well as the Court are required to
be more sensitive while dealing with a case of any offence of sexual abuse
committed upon any physically or mentally disabled woman. It is always to be
borne in mind that such a disabled person, especially the mentally disabled
woman, are very soft target or of easy prey of any such sexual offence and are
vulnerable to such nature of crime and therefore, all the above stakeholders are
to play their own role with utmost sensitivity, care and alertness. Even a major
amendment was brought in Section 164 of Code of Criminal Procedure by the
Law makers vide Amendment Act No.13 of 2013 w.e.f. 03.02.2013 by
incorporating sub-section bearing No.(5A) in Section 164 Cr.P.C. in the
following terms:
(5A) (a) In cases punishable under section 354, section 354A, section
354B, section 354C, section 354D, sub-section (1) or sub-section (2) of
section 376, section 376A, section 376B, section 376C, section 376D,
section 376E or section 509 of the Indian Penal Code (45 of 1860), the
Judicial Magistrate shall record the statement of the person against whom
such offence has been committed in the manner prescribed in sub-section
(5), as soon as the commission of the offence is brought to the notice of
the police:
Provided that if the person making the statement is temporarily or
permanently mentally or physically disabled, the Magistrate shall take the
assistance of an interpreter or a special educator in recording the
statement:
Provided further that if the person making the statement is temporarily or
permanently mentally or physically disabled, the statement made by the
person, with the assistance of an interpreter or a special educator, shall be
videographed;
Such amended provisions therefore stipulates that while recording
a statement the victim of above said offences, who is temporarily or
permanently mentally or physically disabled, the Magistrate shall take the
assistance of an interpreter or a special educator in recording the statement and
even, such recording shall be videographed. Here the statement of the victim
was recorded by a Judicial Magistrate (PW-15) who in her evidence stated
nothing as such that she had noticed any sort of disability either physical or
mental of the victim while recording her statement and there is also no
indication in her evidence or in the record that the above said amended
provision of Section 164 Cr.P.C. was followed in the instant case. Even Dr.
Gayatri Debnath (PW-16), who examined the victim after the alleged crime,
was also completely silent about existence of signs of any such disability of the
victim. But despite the same, learned Trial Court found the appellant guilty of
commission of offence under Section 376(2)(l) IPC without having any cogent
evidence in the matter of alleged disability of the victim.
[15] The mother of the victim i.e. PW-1 in her evidence stated that she
came to know about the incident from the victim and also from her grandson
who was at that time aged about 3/4 years. The investigating officer produced
said grandson before the said Judicial Magistrate (PW-15) for recording his
statement under Section 164 Cr.P.C. and same was also recorded. Said
statement of the grandson was marked as Exbt.P-13 and on perusal of said
Exbt.P-13, it appears that he could not say anything meaningful to the
Magistrate with reference to the alleged commission of crime and may be, for
that reason, the prosecution did not examine him during trial. Therefore, it also
creates a serious doubt as to how PW-1 came to learn about the incident from
her said grandson at the first instance.
[16] Now, amongst the neighbouring people on whom the learned Trial
Court heavily relied on, Sri Sital Sarkar (PW-3) stated that about 1 & ½ year
ago in the evening, the informant visited his house and informed that in the
noon of that day in her absence, the appellant committed sexual assault upon
her daughter and thereafter, said witness advised her to inform the matter to
village panchayat. In his cross-examination, he categorically stated that he did
not make any statement to the investigating officer and after hearing the
incident from the mother of the victim, for the first time he was disclosing the
said fact in the Court. Therefore, it appears that he for the first time deposed in
the Court without having any previous statement in this regard.
[17] Sri Sadhan Debnath (PW-4), the concerned panchayet Pradhan
also similarly stated that on the subsequent day of alleged incident, the mother
of the victim came to his house and stated that the appellant had committed
rape upon her daughter and then he asked her to take shelter of law. Both above
said PW-3 and PW-4 are witnesses of hearsay nature.
[18] Sri Swapan Kar (PW-5), the Upa-pradhan, on the other hand, did
not utter anything about commission of rape upon the victim by the appellant
rather he stated that one day the informant came to his house and only informed
that two days ago the victim was taken to the backyard of her house by pulling
her hands by one person whose surname was Debnath and father's name was
Late Swapan Debnath. Thus, there is also discorroboration found in respect of
verbatim given by the mother of the victim to PW-3 and PW-4 on one part and
to PW-5 on the other part. It is also noticeable that according to the Pradhan,
just on the subsequent day of alleged incident, the informant met him and he
advised her to take shelter of law but without following such instruction she on
the next day visited the house of Upa-pradhan and informed the matter of only
pulling of hands of the victim by the appellant. Therefore, it also otherwise
indicates that the informant was more busy in informing the village level
leaders about the alleged incident on different dates than to take recourse of
law.
[19] There has been delay of four days in lodging the FIR. As per the
printed form of FIR, the distance of the place of occurrence from the police
station was only about 9 km. Though in the FIR and also in the evidence, PW-1
tried to give some explanation that as her daughter was a physically challenged
girl there was some delay in lodging the same but such explanation is not
convincing and acceptable. Such alleged disability cannot be a ground of
causing delay in lodging the FIR unless she was prevented for other certain
probable reasons from lodging the FIR in all promptitudes. Rather it appears
that despite the advice of the Pradhan to take shelter of law, she caused further
delay of two days in lodging the FIR. In Thulia Kali vs. The State of Tamil
Nadu; AIR 1973 SC 501 it is held by the Hon'ble Supreme Court that delay in
lodging first information report quite often results in embellishment which is a
creature of afterthought. On account of delay, the report not only gets bereft of
the advantage of spontaneity danger creeps in of the introduction of coloured
version, exaggerated account or concocted story as a result of deliberation and
consultation. It is therefore essential that delay in lodging of FIR should be
satisfactorily explained. It is also observed by the Apex Court in Ramdas and
others vs. State of Maharashtra, AIR 2007 SC 155, that mere delay in lodging
the first information is not necessarily fatal to the case of the prosecution,
however, the fact that the report was lodged belatedly is a relevant fact of which
the court must take notice and this fact has to be considered in the light of other
facts and circumstances of the case. In the instant case in hand, we are not
satisfied with the explanation offered by the informant for the reasons as
discussed above.
[20] The next vital point as raised is that Dr. Subhankar Nath (PW-11)
was the Deputy Director of DNA Typing Division at State Forensic Science
Laboratory, Narsingarh who examined a portion of dried blood sample of the
victim girl (marked as Exbt.A in the Laboratory) and dried blood sample of
appellant (marked as Exbt.E) and also a portion of semen stained cloth i.e.
black/blue colour panty of the victim (marked as Exbt.G), for DNA isolation by
organic extraction method and he deposed that he examined the same from
29.06.2020 to 20.07.2020 in the Laboratory and finally came to conclusion that
the semen stain which was detected in the panty of the victim did not originate
from the dried blood sample of the appellant. His said report was proved by the
prosecution as Exbt.P-10. Such report when relied on by the prosecution itself
without any dispute, give rise to a serious suspicion of presence of semen of
somebody else than the appellant in the panty of the victim. When the
prosecution did not make any attempt to discard said evidence of PW-11 and
his said report, learned Trial Court committed serious error in discarding it
without any valid reason. Just because the evidence of PW-11 was of advisory
nature, learned Trial Court was not at all justified to ignore the same without
finding any fault with it. Such observation of learned Trial Court appears to be
highly irrational. Learned Trial Court relied on many decisions of the Apex
Court in the impugned judgment to support the conviction but without much
discussion on the evidence actually available in the case. Making of reference
of different decisions of higher courts cannot strengthen a case of prosecution
nor can cure inherent defects inbuilt in the evidence and also in the decision
making process of the Court.
[21] Regarding evaluation of DNA analysis report, the Apex Court in
Dharam Deo Yadav vs. State of Uttar Pradesh; (2014) 5 SCC 509 observed as
follows:
"36. The DNA stands for deoxyribonucleic acid, which is the biological
blueprint of every life. DNA is made up of a double stranded structure
consisting of a deoxyribose sugar and phosphate backbone, cross-linked
with two types of nucleic acids referred to as adenine and guanine,
purines and thymine and cytosine pyrimidines. The most important role
of DNA profile is in the identification, such as an individual and his
blood relations such as mother, father, brother, and so on. Successful
identification of skeleton remains can also be performed by DNA
profiling. DNA usually can be obtained from any biological material such
as blood, semen, saliva, hair, skin, bones, etc. The question as to whether
DNA tests are virtually infallible may be a moot question, but the fact
remains that such test has come to stay and is being used extensively in
the investigation of crimes and the court often accepts the views of the
experts, especially when cases rest on circumstantial evidence. More than
half a century, samples of human DNA began to be used in the criminal
justice system. Of course, debate lingers over the safeguards that should
be required in testing samples and in presenting the evidence in court.
DNA profile, however, is consistently held to be valid and reliable, but of
course, it depends on the quality control and quality assurance procedures
in the laboratory. Close relatives have more genes in common than
individuals and various procedures have been proposed for dealing with a
possibility that true source of forensic DNA is of close relative. So far as
this case is concerned, the DNA sample got from the skeleton matched
with the blood sample of the father of the deceased and all the sampling
and testing have been done by experts whose scientific knowledge and
experience have not been doubted in these proceedings. We have,
therefore, no reason to discard the evidence of PW19, PW 20 and PW 21.
The Prosecution has, therefore, succeeded in showing that the skeleton
recovered from the house of the accused was that of Diana daughter of
Allen Jack Routley and it was none other than the accused, who had
strangulated Diana to death and buried the dead body in his house."
Said principle was again reiterated in the case of Manoj and
others vs. State of Madhya Pradesh; (2023) 2 SCC 353. In Pattu Rajan vs.
State of Tamil Nadu, (2019) 4 SCC 771; the Apex Court in Para 52 of the
judgment observed as follows:
"52. Like all other opinion evidence, the probative value accorded to
DNA evidence also varies from case to case, depending on the facts and
circumstances and the weight accorded to other evidence on record,
whether contrary or corroborative. This is all the more important to
remember, given that even though the accuracy of DNA evidence may be
increasing with the advancement of science and technology with every
passing day, thereby making it more and more reliable, we have not yet
reached a juncture where it may be said to be infallible. Thus, it cannot be
said that the absence of DNA evidence would lead to an adverse
inference against a party, especially in the presence of other cogent and
reliable evidence on record in favour of such party."
There is no dispute that the DNA analysis report bears certain
probative value like other opinion evidence and Courts in the country are also
relying on such reports, however such probative value differs from case to case.
The result of such DNA analysis though depends on the quality control and
quality procedure maintained in the Laboratory, but it is at all justified to
discard such evidence at the threshold without tracing it's fallibility, especially
when it was relied on by the prosecution and it helped the accused. Discarding
of the same without any justified reason is itself violative of the basic principle
of presumption of innocence of the accused as embedded in the criminal
administration of justice.
[22] Dr. Gayatri Debnath (PW-16), the medical officer also deposed
that on examination, she found the hymen of the victim was ruptured but there
was no physical injury or mark of struggle and finally on receipt of forensic
report she opined that the victim had sexual intercourse. But she did not give
any opinion about any recent sexual intercourse or about any forceful
intercourse. As per her report, such tearing of hymen was old one. But, learned
Trial Court missed sight of the same, rather while discussing such medical
examination report, learned Trial Court even went to the extent of observing
that the perpetrator of crime was an able bodied youth bustling with energy and
determined to fulfill his lust having an ill motive in his mind and having
succeeded in forcefully removing the victim to a secluded part of the house
where there was none around to help the prosecutrix in her defence. It was also
observed that the injuries which the prosecutrix suffered or might have suffered
in defending herself and offering resistance to the accused were abrasions or
bruises which would heal up in ordinary course of nature within 2 to 3 days of
the incident. The approach of learned Trial Court appears to be very unsafe and
dangerous inasmuch as it has made such observations based on certain
imaginary facts and hypothesis without it's availability in the evidence.
[23] In view of above discussions, we find no other option but to
interfere with the impugned judgment of conviction and sentence. As a result,
the impugned judgment of conviction dated 03.04.2024 passed in Sessions Trial
No.06 of 2021 and related sentence passed on 06.04.2024 by learned Addl.
Sessions Judge, Gomati, Udaipur are set aside.
The appellant is set at liberty and bail bond liability of his surety
stands discharged.
Return the Trial Court record with copy of the judgment.
Pending application(s), if any, also stand disposed of.
(S. DATTA PURKAYASTHA, J) (ARINDAM LODH, J)
Rudradeep Digitally signed by RUDRADEEP BANERJEE
RUDRADEEP BANERJEE Date: 2025.03.21 17:56:22 +05'30'
