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Prosecution unsuccessful infer Section 376 – Accused Acquitted.

SIKKIM HIGH COURT

Bench: JUSTICE Meenakshi Madan Rai

Tula Ram Rai
Vs.
State of Sikkim On 08 MAY 2017

JUDGEMENT

1. The Appellant is before this Court, assailing a Judgment and Order on Sentence, both antiquated 17-08-2015, of a Learned Judge, Fast Track Court, South and West Sikkim, during Gyalshing, in Sessions Trial (F.T.) Case No. 09 of 2014, convicting and sentencing him as follows;

(a) to bear severe seizure of 7 years and to compensate a excellent of Rs. 1,000/- (Rupees one thousand) only, underneath Section 376 of a Indian Penal Code, 1860 (for brief “IPC”).

(b) Simple seizure for a duration of one year underneath Section 506 of a IPC and

(c) Simple seizure for a duration of one year and excellent of Rs. 5,000/- (Rupees 5 thousand) only, underneath Section 457 of a IPC.

The default prerequisites appears jointly for Sections 376 and 457 of a IPC. The sentences of seizure were systematic to run concurrently, duly environment off a duration already undergone by a Appellant.

2. The Prosecution box is that, Exhibit 1, a created FIR was perceived from P.W. 1, a victim, on 08-07-2014, informing therein that, on 07-07-2014 during around 10 p.m. while she was alone and defunct in her house, a Appellant tore a cosmetic roof of her house, entered therein and intimately assaulted her, melancholy her with genocide if she approached a Police. On receipt of a Complaint, it was duly purebred as Gyalshing Police Station (G.P.S.) Case No. 36/2014 opposite a Appellant and review taken up.

3. Investigation so conducted suggested that a Appellant was a jack-of-all-trades and detached family of a plant who used to visit her house. That, a day before a incident, he had perceived an volume of Rs. 4,000/- (Rupees 4 thousand) only, from his employer, one Phurzang Bhutia, with that he paid off his impost and after partaking of wine went to a residence of a plant during around 2200 hours, wakeful that she was alone. Meanwhile, a father and daughter of a plant being out in Darjeeling for personal work and a plant being alone fell asleep. The Appellant entered a room by a cosmetic roof of a victim’s residence and raped her notwithstanding her cries for help, pursuant to that he slept in her room, while a plant went to an adjacent request room and slept there. Next morning, she reported a matter to P.W. 6, a Ward Panchayat and lodged Exhibit 1. Meanwhile, a Appellant had absconded and took preserve in a residence of several kin during Gangtok, Tashiding and eventually during Rongli, from where he was taken into control by a Rongli Police and eventually arrested during Gyalshing by a Investigating Officer (for brief “I.O.”). That, a plant had been intimately assaulted by a Appellant about eleven months before to a benefaction occurrence that she had brought to a notice of P.W. 2, her father who, however, took no action. The plant was medically examined, blood representation was drawn from a Appellant and a Exhibits forwarded to State Forensic Science Laboratory, Tripura, for DNA comparison. On Completion of investigation, Charge-Sheet was submitted opposite a Appellant underneath Sections 376/506/323/457 of a IPC.

4. The Learned Trial Court framed Charge opposite a Appellant underneath Sections 376(2)(f), 376(2)(n), 506 and 457 of a IPC. On a defence of “not guilty”, a Prosecution examined thirteen witnesses to settle a case. The Appellant afterward was examined underneath Section 313 of a Code of Criminal Procedure, 1973 (for brief “Cr.P.C.), to capacitate him to explain a resources appearing in a justification opposite him, arguments were listened and a impugned Judgment and Sentence were conspicuous as minute hereinabove.

5. It is a row of a Appellant before this Court that infact a act was consensual that would be clear from a fact that a Prosecution has unsuccessful to settle as to how a Appellant came into her residence by a ceiling. No hazard was hold out to her before a elect of a rape as apparent from Exhibit 1 and a chairman of a plant was abandoned of any injuries, solely for some bruises rescued on her genital. That, nonetheless P.W. 1 alleges rape by a Appellant, though a justification of P.W. 2, her father is to a outcome that P.W. 1 usually told him that a quarrel had ensued between them, detached from that she did not recount any other occurrence to him, thereby concealing a act from him for fear of repartee as it was consensual. P.W. 2 is also unknowingly as to how a roof came to be torn.

6. The successive justification canvassed was that a occurrence occurred on 07-07-2014 during around 2200 hours, though remained unreported to a Police until a following morning and notwithstanding a claim of passionate assault, she continued to sojourn in a same residence with a Appellant and infact slept in a successive room while he slept in a room where a corruption was committed. The plant and review prove that she is associated to a Appellant while P.W. 2 denies such relationship, heading to anomalies in a Prosecution case. The justification of P.W. 1 also reveals that instead of going to a Police, a successive morning during around 9 a.m. she initial approached to a Panchayat Vice President, P.W. 6, who suggested her to news a matter to a Police. That, this act of a plant would prove that she initial done an bid to impact a compromise, though as P.W. 6 did not respond positively, she approached a Police. The seizure of a articles of wardrobe from her have not been valid by a Prosecution and nonetheless a DNA Report per to spermatozoa and blood being that of a Appellant might have tallied, it is not applicable in a deficiency of explanation of seizure of a camisole of a victim. The Appellant did not rush divided a successive morning, though was found operative during a construction site during Rongli where he was traced. Hence, a impugned Judgment and Order on Sentence be set aside.

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7. For a Prosecution, a justification modernized was that a corruption was infact committed by a Appellant on holding out a hazard to a plant as apparent from her evidence. That, a cosmetic roof being ripped is demonstrative of a fact that a Appellant had forcibly entered a residence of a plant and after committing a corruption absconded from Gyalshing and was after traced during Rongli, that also points to his guilt. Reliance was placed on a preference of Ranglal vs. State of Rajasthan MANU/RH/0611/2005 : 2006 CRI.L.J. 1453 and on State of Punjab vs. Gurmit Singh and Others MANU/SC/0366/1996 : (1996) 2 SCC 384 wherein it was hold that a testimony of a prosecutrix contingency be appreciated in a credentials of a whole box and a Trial Court contingency be alive to a shortcoming and be supportive while traffic with cases involving passionate molestations. Therefore, a preference of a Learned Trial Court ought not to be disturbed.

8. we have deliberate a submissions that were done during length and given due care thereof. we have also delicately perused a documents, justification on record and a impugned Judgment and Order on Sentence.

9. The doubt before this Court for integrity would be either a Learned Trial Court erred in convicting a Appellant underneath a aforesaid Sections?

10. In sequence to arrive during a scold finding, it is essential to delicately and meticulously span a justification of a Prosecution Witnesses.

11. In a initial instance, it is impending to indicate out that had a Appellant motionless to dedicate a corruption he would apparently not have told anyone of his goal and, therefore, a whole Prosecution box depends on a justification of a victim. Of course, it goes though observant that she is a usually Prosecution Witness to a offence. In this context, a Hon’ble Apex Court in Wahid Khan vs. State of Madhya Pradesh MANU/SC/1850/2009 : (2010) 2 SCC 9 has hold as follows;

“18. Thus, in a box of rape, testimony of a prosecutrix stands on a standard with that of an harmed witness. It is unequivocally not compulsory to insist for certification if a justification of a prosecutrix inspires certainty and appears to be credible. ………”
12. In Gurmit Singh MANU/SC/0366/1996 : (1996) 2 SCC 384 a Apex Court celebrated that while evaluating justification in an corruption of rape a Courts contingency sojourn alive to a fact that in a box of rape, no self-respecting lady would come brazen in a Court to make a degrading matter opposite her honour such as is concerned in a elect of rape on her. It was elucidated as follows;

“8. ……..The courts must, while evaluating evidence, sojourn alive to a fact that in a box of rape, no self-respecting lady would come brazen in a justice usually to make a degrading matter opposite her honour such as is concerned in a elect of rape on her. In box involving passionate molestation, ostensible considerations that have no element outcome on a sincerity of a assign box or even discrepancies in a matter of a prosecutrix should not, unless a discrepancies are such that are of deadly nature, be authorised to chuck out an differently arguable assign case. The fundamental bashfulness of a females and a bent to disguise snub of passionate assign are factors that a courts should not overlook. The testimony of a plant in such cases is critical and unless there are constrained reasons that obligate looking for certification of her statement, a courts should find no problem to act on a testimony of a plant of passionate attack alone to crook an indicted where her testimony inspires certainty and is found to be reliable. Seeking certification of her matter before relying on a same, as a rule, in such cases amounts to adding insult to injury. Why should a justification of a lady or a lady who complains of rape or passionate molestation, be noticed with doubt, dishonesty or suspicion? The justice while appreciating a justification of a prosecutrix might demeanour for some declaration of her matter to prove a legal conscience, given she is a declare who is meddlesome in a outcome of a assign leveled by her, though there is no requirement of law to insist on certification of her matter to bottom self-assurance of an accused. The justification of a plant of passionate attack stands roughly on a standard with a justification of an harmed declare and to an border is even some-more reliable. Just as a declare who has postulated some damage in a occurrence, that is not found to be self inflicted, is deliberate to be a good declare in a clarity that he is slightest expected to defense a genuine culprit, a justification of a plant of a passionate corruption is entitled to good weight, deficiency of certification notwithstanding. Corroborative justification is not an needed member of legal faith in each box of rape. Corroboration as a condition for legal faith on a testimony of a prosecutrix is not a requirement of law though a superintendence of anticipation underneath given circumstances. It contingency not be ignored that a lady or a lady subjected to passionate attack is not an confederate to a crime though is a plant of another person’s lust and it is crude and unattractive to exam her justification with a certain volume of suspicion, treating her as if she were an accomplice. ……..”
13. With a above observations in mind, we now embark on an hearing of a justification furnished. The Appellant, as per a victim, was famous to her and on a applicable night when she was alone, during around 10.15 p.m. he entered her residence by a cosmetic roof and committed a corruption on her. When she switched on a light she famous a Appellant who threatened to kill her if she reported a matter to a Police. She also found him to be entirely inebriated and after committing a corruption he fell asleep. In a pronounced situation, she left a room and went into a request room of her husband, bolted a doorway from inside and slept. The successive morning during around 9 a.m. she went to a residence of a Panchayat Vice President, P.W. 6 to news a matter who suggested her to proceed a Police, a corruption being serious. She serve claimed to have seen a ripped roof from where a Appellant done his entrance usually in a morning. Considering that she has settled that he entered from a roof and as no trapdoor exists therein being admittedly done of plastic, so how a drop was not conspicuous to her when he done a radical entrance indeed needs to be mulled over. She also certified that she has had no earthy family with her father after a birth of their daughter. Admittedly, one Deepak, Mahesh and Arjun are her neighbours and reside successive to her house, though she did not take chance to assistance from them on a applicable night, nonetheless a Appellant, as per her, had depressed asleep. She admits to being ignorant and so would not be in a position to review a essence of Exhibit 1, though detached from being incompetent to brand Exhibit 1, she admits that a essence were not review over to her. She alleges rape by a Appellant before to a benefaction incident, though concedes that no news was done by her in a faith that he would not repeat such an act. Her matter underneath Section 164 of a Cr.P.C. and her deposition in Court do not uphold even if a former is to be looked into usually for confirmatory purposes. P.W. 2 appears to be unknowingly of a passionate assault, being uninformed of it by a plant who told him usually of a quarrel with a Appellant.

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14. The justification of P.Ws 3 and 4 are of no assistance to a Prosecution box and P.W. 5 and P.W. 9 purported to be a seizure declare for M.O. we to M.O. IV unsuccessful to strew light on a articles seized or a ownership. Further, a seizure witnesses were asked to brand M.O. we to M.O. IV that are as follows;

When usually a above 4 M.Os were purported to be seized in a participation of a dual seizure witnesses, it can't be fathomed as to where Exhibit ‘C’, a underwear, sent to a SFSL, Tripura, emerged from. The I.O’s justification has done an bid to fill adult a lacuna by identifying a underwear as M.O. IA, though M.O. IA finds no discuss in a articles exhibited by a Prosecution as available in a impugned Judgment. The news of P.W. 12 a Deputy Director-cum-Assistant Chemical Examiner, Government of Tripura, in Exhibit 9 suggested that he examined Exhibit ‘C’, one pinkish colour underwear, allegedly of a plant and found seminal stains therein and found a DNA therein to compare a blood on a stained compress cloth, pronounced to be performed from a Appellant. As P.W. 5 and P.W. 9 have no inkling of a tenure of a articles seized, most reduction of a underwear, tampering of a exhibits during a theatre of review can't be ruled out. P.W. 7, a Gynaecologist, examined a plant on 08-07-2014 during around 5.15 p.m., during a District Hospital, Gyalshing and, inter alia, found love in a stomach and reduce behind of a victim. She available as follows;

“On internal examination:

1. Linear erosion (bright red) about 1.5 cm over a labia majora right side.

2. Redness benefaction over a labia minora right side.

3. Old hymenal rip present.

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………….

Final opinion: a above story and clinical commentary are revealing of blunt injury, however, lab news prepared by Dr. A.T. Sherpa shows deficiency of spermatozoa.”

Thus, apparently there are injuries over her genital, though a fact of such damage being a outcome of rape has to be valid over a reasonable doubt, that is not forthcoming.

15. In perspective of a whole justification on record, what can be culled out is that a Appellant entered a room from a cosmetic ceiling, a drop of that remained neglected by a plant compartment a successive morning. P.W. 13, a I.O. has unsuccessful to chuck any light on how this was achieved, thereby indicating to trashy investigation. According to a victim, after a occurrence a Appellant threatened to kill her though he slept in a same room though inflicting any damage on her. What needs to be mulled over is if a Appellant was in a inebriated faint and fell asleep, successive thereto, because did she not find assistance from her neighbours, allegedly one Deepak, Mahesh and Arjun. Instead, she went into another room and clearly slept unperturbed. It is indeed abominable that after such a horrific and dire occurrence she would continue to sojourn underneath a same roof with a Appellant that too usually bolting a doorway from inside, though not holding stairs to secure from a outward a doorway of a room in that a Appellant slept. Neither a plant nor a I.O. have cordial a Court as to when a Appellant left a victim’s house. Evidently a plant left during 9 a.m. to surprise a Panchayat Vice President, what time a Appellant left is a poser that remained unearthed. Another misdate that emanates from her justification is that a successive morning she listened a Appellant knocking on a doorway to a room where she was, though she did not open it. Investigation has unsuccessful to exhibit a judicious finish of a acts of that morning inasmuch as it is wordless as to what transpired after he knocked on a victim’s door. Also, one is wakeful that life in a encampment starts during a arise of dawn, though evidently a plant besides carrying no qualms and apprehensions about sleeping underneath a same roof as a assailant, took her possess time a successive morning and went to a residence of P.W. 6 usually during 9 a.m.

16. Thus, a clever comment of a justification on record fails to enthuse certainty to capacitate this Court to strech a anticipating that a corruption committed was of rape and not a consensual act. In perspective of a assemblage of a resources hereinabove, there appears to be no credit in a deposition of a plant per a claim of rape. Although a majority of probabilities exists, though this does not sufficient to settle a Prosecution case, that contingency be valid over all reasonable doubt, that in a light of a aforesaid discussions has unsuccessful to achieve a benchmark.

17. Consequently, a assailed Judgment and Sentence of a Learned Trial Court deserves to be and is accordingly set aside. The Appeal succeeds and a Appellant is clear of a offences underneath Sections 376, 506 and 457 of a IPC.

18. Consequently, a Appellant be set during autocracy forthwith, unless compulsory in any other case.

19. Fine, if any, deposited by a Appellant as per a assailed Order on Sentence of a Learned Trial Court, be refunded to him.

20. Copy of this Judgment be transmitted forthwith to a Learned Trial Court for information along with a strange annals associated to this case.

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