Page 1 of 19 HIGH COURT OF TRIPURA AGARTALA CRL A NO.19 OF 2013 The [ENTITY], Represented by the Learned Public Prosecutor, High Court of Tripura, Agartala, Tripura Petitioner Versus 1. Shri. [ENTITY] S/o:- Shri [ENTITY]parkash Shaw, Resident of Amtali Bazar, P.S:- Amtali, P.O:- Amtali, District:- West Tripura, PIN-799 130. 2. Shri. [ENTITY] S/o:- Shri Sukumar Chakraborty, Resident of Amtali (Near Amtali School) P.S:- Amtali, P.O :- Amtali, District:- West Tripura, PIN-799 130 Respondents
For Petitioner (s) : Mr. [ENTITY], P.P. : Mr. [ENTITY], Addl. P.P For Respondent(s) : Mr. [ENTITY], Sr Adv.
: Mr. [ENTITY], Adv.
: Mr. [ENTITY], Adv.
Date of delivery of Judgment & Order : 13/08/2018.
[CASE NUMBER] Whether fit for reporting : NO HON'BLE MR. JUSTICE [ENTITY] AND ORDER(ORAL) This appeal is directed against the Judgment and order dated 05.02.2013 passed in [CASE NUMBER] by the learned District and Sessions Judge, Court No.1, West Tripura, Agartala whereby and whereunder the accused persons i.e., the respondents herein were acquitted, against this order of acquittal the State-respondent has preferred this appeal.
2. The gravamen of the prosecution case is that Smt. [ENTITY] (name changed)aged about 20 years, wife of Sri [ENTITY], lodged a complaint on 21.09.2008 at around 2.45 Oclock night that on 20/21.09.2008 at night around 12.30 Oclock while she along with her husband accompanied by a friend of her husband namely Sri [ENTITY] were proceeding on foot from their residence at Joynagar towards their parents house at Champamura, the two accused-persons came over there by riding a motor cycle bearing No. TR-01-F-7381 and detained them on Agartala-Bishalghar road, i.e., on the western end of the Jute Mill and by way of assaulting her husband they had abducted her forcefully therefrom and thereafter(they) had taken her inside the Mahalaxmi Saw Mill at Amtali.
[CASE NUMBER] Thereafter, the four accused persons had raped her serially one after another. She had further stated in her complaint that after committing rape upon her brutally she was forced to go with them and proceeded towards Sekarkote by riding the motorcycle when the police apprehended them and rescued her. The police also arrested two accused persons. After their arrest she came to learn the names of the two persons they are [ENTITY] and [ENTITY]. She also later came to know the name of the other two accused. They are [ENTITY] and [ENTITY].
3. On the basis of the said complaint the officer-in- charge of Amtali Police Station registered a case bearing [CASE NUMBER] dated 21.09.2008 under [SECTION]) of [ACT]. The matter was investigated and after completion of investigation the investigating officer has filed the charge- sheet having found prima facie materials against the accused persons.
4. Being committed, the learned Sessions Judge, West Tripura, Agartala took up the trial and during the course of the trial as many as 30 witnesses were examined. The victim was examined as P.W.-1. There were three eyewitnesses, namely P.W-2, Sri [ENTITY], P.W-3, Sri [ENTITY] and P.W-4, Sri [ENTITY].
[CASE NUMBER] The seized articles, i.e., the wearing apparel of the victim at the time of commission of rape was also seized and exhibited by the learned Trial Court. The medical examinations of the victim girl also have been taken into evidence and have been marked as Exbt-16, Exbt-25, Exbt- 26 , Exbt-27 and Exbt-28. The potency test of the four accused persons were also conducted and those tests have been exhibited as Exbt-20, Exbt-21 and Exbt-23. The learned Magistrate recorded the statement of the prosecutrix under [SECTION] of [ACT] on 23.09.2008 and 31.10.2008 and the statement of Sri [ENTITY] i.e., P.W.-2 was also recorded under [SECTION] of [ACT] on 27.08.2008. The statement of the prosecutrix on 23.09.2008 and 31.10.2008 and her signature thereon are marked as Exbt-2 and Exbt-2/1 respectively and the statement of Sri. [ENTITY] on 27.09.2008 is marked as Exbt-3 and Exbt-3/1 respectively.
5. On the basis of the evidence and materials on record the accused-persons were examined under [SECTION] of [ACT] where they have expressed their innocence and stated that the allegations leveled against them are false. After perusal of the evidence and materials on record the learned Sessions Judge has found that the prosecution has failed to prove the charges under [SECTION] and [SECTION] of the [ACT] against the accused [ENTITY] [CASE NUMBER] [ENTITY] and [ENTITY] and the case was kept pending for trial of the other two absconding accused- persons, namely [ENTITY] and [ENTITY].
6. Being aggrieved by and dissatisfied with the judgment and order of acquittal, the State has preferred the present appeal.
7. During the course of trial, the learned Sessions Judge, framed the following charges against the two accused persons:-
CHARGE I, [ENTITY], Sessiosn Judge, West Tripura, Agartala do hereby charge you,
1. Sri [ENTITY] &
2. Sri [ENTITY], as follows:-
"Firstly, that both of you on the intervening night of 20/21-09-2008 at about 00-30 hours at the western side of Tripura Jute Mill of Hapania on Agartala-Bishalgarh road under Amtali P.S., in furtherance of common intention of you both, wrongly restrained and confined victim girl(name withheld) and thereby committed an offence punishable under [SECTION] read with [SECTION] of the [ACT] and within my cognizance.
SECONDLY, that both of you on the same date, time and place as stated in the first charge, in furtherance of common intention of you both abducted said Smt. [ENTITY] with intent that, said [ENTITY] might be forced to illicit intercourse against her will and thereby both of you committed an offence punishable under [SECTION] read with [SECTION] of the [ACT] and within my cognizance.
And I hereby direct that both of you be tried on the said Charges by this Court."
[CASE NUMBER]
8. While acquitting the two accused-persons namely [ENTITY] and [ENTITY] the learned Sessions Judge took up two points for his decision, which are reproduced below:-
"Firstly. Whether the accused [ENTITY] and [ENTITY] along with other two accused persons in the intervening nights of 20/21-09-2008, at about 0300 hours, at Maha Laxmi Saw Mill and Netaji Club Anganwadi Centre at Amtali in furtherance of common intention committed gang rape on the prosecutrix and thereby committed offence punishable under [SECTION] with [SECTION] of the [ACT]?
Secondly, whether the accused [ENTITY] on the same night, time and place in furtherance of common intention abducted and wrongfully restrained and confined the prosecutrix for committing rape upon her and thereby committed an offence punishable under [SECTION] read with [SECTION] of the [ACT]?"
9. Since, it is an appeal against acquittal in addition to above two points, it would be apposite to examine the scopes of this Court to interfere with the order of acquittal passed by the learned Sessions Judge.
10. According to this Court, above three points may be taken up for disposal of the instant appeal.
11. After being scanned the entire evidence and materials on record, this Court finds it appropriate to consider the evidence of P.W.-1 P.W-2, P.W-3 and P.W-4 as [CASE NUMBER] because the three witnesses apart from P.W.-1 i.e., the prosecutrix, are the eyewitness who saw the appellants herein to take away the prosecutrix. Besides, the medical evidence are also necessary to be appreciated.
12. Before discussion of the evidence and materials available on record, this Court thinks it proper to reproduce hereunder the definition of rape as contemplated under [SECTION] of [ACT]
"375. Rape.- A man is said to commit "rape" if he-
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis , into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such women or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus , urethra of a women or makes her to do so with him or any other person, Under the circumstances falling under any of the following seven 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 give because she believes that he is another man to whom she is or believes herself to be a lawfully married. Fifthly.- With her consent when, at the time of giving such consent by reason of unsoundness of mind or intoxicating or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequence of that to which she gives consent."
[CASE NUMBER]
13. On the basis of this provision, the evidence and the materials available in this case are to be appreciated.
14. P.W.1 [ENTITY] (name changed) in her examination- in-chief has stated the entire facts of what she has stated in the complaint that she was detained on the road while proceeding towards her house and the appellants forcefully had taken her away from the clutches of her husband and his friend, to a Saw Mill where she was raped first by the two appellants herein and thereafter, by another two accused-persons who arrived at the Saw Mill on being called by the accused-appellants and then, she was forced to accompany en route to Sekerkote by riding a bike when all of them were apprehended by the police. Strange enough the cross-examination was conducted after a period of one year. This is a very unfortunate affair which will be appropriately looked into at the later stage of this judgment.
15. In her cross examination the prosecutrix made a total volte face of the fact of rape she stated in her examination-in-chief before the learned trial Court. P.W.-1 has stated during her cross examination on behalf of the accused-persons that she did not know the accused-persons at all and she was threatened and tutored by the police [CASE NUMBER] officials to lodge a complaint against the accused and the entire story of rape was the outcome of illegal interference of police officials. She categorically stated that she was not taken to the Mahalaxmi Saw Mill on that night and the accused persons never raped her. She was declared hostile by the prosecution and put on cross examination. However, in the cross examination by the prosecution she did not contradict the statements she deposed at the first instance of her cross-examination by the defence i.e., on behalf of the accused-persons.
16. P.W-2, Sri [ENTITY], was the eyewitness, who saw her before she was taken away by the two accused- respondents. He has also stated that the two accused persons threatened the husband of the prosecutrix as well as his friend [ENTITY]. The said P.W.2 was also threatened by the two accused persons and that episode was occurred at the garage in which said P.W.-2 used to work.
17. The P.W.-3, [ENTITY] is the friend of the husband of the prosecutrix. He in his examination-in-chief has stated that while they were proceeding on that night at about 9.30 P.M the two accused-persons riding a motor bike approached them and enquired about the wife of [ENTITY] and they pushed him and threatened with dire consequences.
[CASE NUMBER] He ran away to a safe distance and from there he found that the accused was assaulting [ENTITY] with fists and blows. After that, they were taken to the garage but he did not dire to go to that garage and stranded on the road. After a considerable period, he found a mobile police van and he narrated the entire incident to the police personnel. They together with police personnel began to search for the prosecutrix. After about an hour the prosecutrix was recovered on a place near Sekarkote on Agartala-Bishalghar Road. The two accused-persons namely [ENTITY] and [ENTITY] were arrested and the prosecutrix was found in a precarious condition. On the following day, he was informed by [ENTITY], i.e., P.W.-4 that his wife was raped by four accused-persons and they were taken to police station. The police personnel seized the motor bike and the wearing apparels of the accused persons as well as the victim girl. He also put his signature in the seizure list. During his cross examination he has stated that there were few other garages opposite to the Jute Mill by the side of the Agartala-Bishalghar main road and there were number of truck vehicles parked in these garages. He also noticed that some workers were working in the garage from where the abductors stopped them. The accused-persons were not known to him. He was also interrogated by the police at the police station and at that time, he found four accused-
[CASE NUMBER] persons at the police station. But he could not say whether [ENTITY] had contacted marriage with the prosecutrix.
18. The statement of the witness that he does not know whether P.W.-4, [ENTITY] had married the prosecutirx castes a serious doubt about his credibility for the reason that it is the specific statement of the prosecutrix that [ENTITY] (P.W-
3) is the friend of her husband [ENTITY] (P.W-4). Here, the statement of P.W.-4 seems to be unnatural.
19. The P.W.-4, Sri [ENTITY] who is the husband of the prosecutrix, has also deposed the similar fact as has been stated by P.W.-3 that the two accused-persons detained them on road and took away the victim girl who came by riding a motor cycle. After about 20 minutes the police personnel accompanied by [ENTITY], i.e., P.W.-3 arrived and enquired the whereabouts of the prosecutrix. Then, someone over mobile phone told them that they have taken his wife near tea garden and, accordingly, they went to a tea garden but the accused-persons were not found available. At that time, one worker of the garage received another call and from their conversation over telephone he came to learn one [ENTITY] was talking to the worker of the garage. Again, they went to the garage and the police personnel found [ENTITY] was available there and he was arrested. [ENTITY] was taken to the police station and on [CASE NUMBER] interrogation he divulged that his wife was taken away near Kuri Pukur by the accused [ENTITY]. The police proceeded towards the Kuri Pukur keeping P.W.-4 and [ENTITY] in the police station. After about 20/25 minutes police arrived at the police station, arrested three persons and also recovered his wife. The wearing apparels of his wife and the accused persons were seized. His wife was sent for medical examination.
20. Other witnesses are not so important to discuss in deciding the instant appeal
21. Here also, the prosecution story appears to be doubtful because according to P.W.-1, P.W.-2, P.W.-3 and P.W.-4 none of the accused persons were known to them, then, how one of the accused could make a call to the mobile of P.W.-4.
22. I have taken note of the medical examination reports and the forensic expert as well as the evidence of Doctor who examined the body of the victim just after the occurrence of the incident.
P.W-22, Dr. [ENTITY] is the Senior Scientific officer-cum-Assistant Chemical Examiner, who is posted at Tripura State Science Laboratory and conducted the following test which are reproduced in verbatim:
[CASE NUMBER] " (1) Blood test- Chemical test and microscopic examination.
(2) [ENTITY] test- Chemical test and microscopic examination (3) Saliva test - Chemical test and microscopic examination Blood stain detected in Exbt G was very much insufficient for further serological examination.
Results of exbts - Blood Stain could not be detected seminal stains/spermatozoa of human origin could not be detected in Exbt-A. Exhibit B- blood stain could not be detected, seminal stain/spermatozoa of human origin could be detected.
Exhibit C - blood stain could not be detected, seminal stain/spermatozoa of human origin could not be detected.
Exhibit D - seminal stain/spermatozoa of human origin could be detected.
Exhibit E - blood stain could be detected. Exhibit F - saliva stain could not be detected. Exhibit G - Blood stain could not be detected. Seminal stain/spermatozoa of human origin could not be detected.
Exhibit H - Blood stain could not be detected. seminal stain/spermatozoa of human origin could not be detected.
Exhibit I - Blood stain could be detected. Exhibit J - Saliva stain could not be detected. Exhibit K - Blood stain could not be detected. Seminal stain/spermatozoa of human origin could be detected.
Exhibit L - Blood stain could be detected. Exhibit M - Saliva stain could not be detected. Exhibit N - Blood stain could not be detected Seminal stain/spermatozoa of human origin could not be detected.
Exhibit O - Blood stain could be detected. Exhibit P - Saliva stain could not be detected. Exhibit Q - Blood stain could not be detected. Seminal stain/spermatozoa of human origin could not be detected.
Exhibit R- Blood stain could be detected. Exhibit S - Saliva stain could not be detected." This report has been marked as Exbt-25.
[CASE NUMBER]
23. From Exbt-25, it is revealed that there is no mark of violence or semen neither in the body of the victim prosecutrix nor in her private parts, though, the victim lady was taken to the hospital immediately after the incident. It must not be forgotten that the present prosecution case is a case of gang rape.
24. P.W.23 is the Medical Officer who medically examined the prosecutrix after the occurrence of the incident. In his examination he deposed that no injury mark was found in the vagina though he opined that recent sexual intercourse could not be excluded. In his cross examination, he has stated "there was no injury on the labia mazora and labia minora in the vaginal canal". In case of forcible sexual intercourse the sign of violence must be in labia majora and labia minora"
25. Mr. [ENTITY], learned Addl. Public Prosecutor appearing for the State-appellant in his usual fairness has submitted that in view of the statements of the prosecutirx, entire case of prosecution fails. Furthermore, there are full of contradictions between the statement of prosecution witnesses. The medical and scientific examination also do not support the prosecution case.
[CASE NUMBER]
26. I have perused the findings and decision of the learned Sessions Judge, who after considering the medical evidence as well as the statement of the prosecutrix came to the conclusion that the accused-persons initially were not known to the prosecutrix. The investigating officer also did not hold any T.I. parade to identify the accused-persons in course of investigation of the case for confirming their identity and the persons responsible for committing the crime. It is also held by the learned Sessions Judge from the evidence of the scientific officer as well as the doctor that it was not proved that the accused [ENTITY] and [ENTITY] were involved in committing the offence of gang rape on the victim. From the definition of rape it is found that mere sexual intercourse does not amount to rape, if it was done with consent. For argument sake, if this Court holds that there was sexual intercourse, even then, it was not proved beyond reasonable doubt that it was against the will or wishes of the victim prosecutrix.
27. Mr. [ENTITY], learned senior counsel assisted by Mr. [ENTITY], learned counsel and Mr. [ENTITY], learned counsel appearing for the appellants has placed reliance on a decision of the Honble Apex Court in [PRECEDENT] reported in [PRECEDENT] wherein the Honble Apex Court held as under:
[CASE NUMBER] " 39. In an appeal preferred under [SECTION] of the [ACT], no doubt, it is true that High Court has ample powers to go through the entire evidence and to arrive at its own conclusion but before reversing the finding of acquittal, following conditions should be always kept in mind namely,
(i) the presumption of innocence of the accused should be kept in mind;
(ii) if two views of the matter are possible view favourable to the accused should be taken;
(iii) the appellate court should take into account the fact that the trial judge had the advantage of looking at the demeanor of witness; and
(iv) the accused is entitled to benefit of doubt. But the doubt should be reasonable that is the doubt which rational [CASE NUMBER] thinking man with reasonable honesty and consciously entertained, more so, when the larger question with regard to treating Exh. P29 and Exh. P30 as dying declarations itself had become questionable."
28. In the decision of Madathil [ENTITY]an Vs. State of Kerala reported in 2017, Crl.L.J at para-8, the Apex Court observed as under:-
"It is a well settled principle of law that if two views are plausible, the view which goes in favour of acquittal has to be adopted. This legal principle has been reiterated by this Court in the case of [PRECEDENT] by the Public Prosecutor and Anr. In the case of [PRECEDENT], this Court has held that in the absence of any manifest illegality, perversity or miscarriage of justice, the order of acquittal passed by the Trial Court may not be interfered by the High Court in exercise of its appellate jurisdiction. The aforesaid view has further been reiterated by this Court in the following two cases viz. [PRECEDENT]. and [PRECEDENT]."
[CASE NUMBER]
29. Mr. [ENTITY], learned senior counsel has submitted that P.W-3 and P.W.-4 though have not supported the version of the prosecutrix, but the prosecution did not declare them as hostile. On this issue Mr. [ENTITY], learned Sr. Counsel has placed reliance on the decision of [PRECEDENT]; [PRECEDENT] whereby the Apex Court at para 29 and 20 as held as under:-
" 29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from [ENTITY], [ENTITY] had been examined as a prosecution witness in this case as P.W.1. He however, did not support the prosecution. The prosecution never declared P.W.1 "hostile". His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence.
30. A similar question came up for consideration before this Court in Raja [ENTITY] v. State of Rajasthan. In that case, the evidence of the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared "hostile". The High Court however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution."
30. In the case of Raja [ENTITY] Vs. State of Rajasthan reported in (2005) 5 SCC 272, the Apex Court has observed as under:-
"But the testimony of PW 8 Dr. [ENTITY], who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW.5 making the deceased believe that unless she puts the blame on [CASE NUMBER] the appellant and his parents she would have to face the consequences like prosecution proceedings. It did not occur to the Public Prosecutor in the trial court to seek permission of the Court to heard (sic declare) PW 8 as a hostile witness for reason only know to him. Now, as it is , the evidence of PW 8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW 8's testimony can be sidelined."
31. The proposition and principles drawn by the Apex Court in aforesaid decisions are squarely applicable in the case in hand.
32. In the light of the above discussions and after careful and meticulous scrutiny of the evidence and materials on record, this Court is the opinion that learned Sessions Judge, has not committed any patent error to come to a conclusion that the charges under [SECTION] of [ACT] against the accused persons namely [ENTITY] and [ENTITY] have not been proved beyond shadow of doubt and, accordingly, the appeal stands dismissed being devoid of merit.
33. Before parting with the matter, this Court could not restrain itself to criticize the conduct of the learned Trial Judge. I do not find any answer what led the learned Sessions Judge to cross examine the prosecution after a lapse of 1(one)year. This is not at all expected from a responsible Sessions Judge. He should have understood [CASE NUMBER] that due to such delay, there could be a lot of changes, by the passage of time, since in our country there is no methodology to protect the safety and security of witnesses, it cannot be ruled out that witnesses can be won over. This unreasonable delay in conducting trial is highly deprecated. Cross-examination should be held on consecutive dates. If, it is not possible due to some unforeseen compelling circumstances, then also, it must be held within a very short period. In future, it is expected that the trial Courts shall restrain themselves from such casual approach.
34. The judgment and order of acquittal passed by the learned Sessions Judge, West Tripura, Agartala is hereby affirmed and upheld. However, there shall be no order as to cost.
JUDGE [ENTITY]