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Convict vs The State Of Tripura on 20 June, 2019

HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J)53 of 2015

Sri Pappan Acharjee,
son of late Dibendu Acharjee,
resident of West Dewanpasha,
P.O. P.S. Dharmanagar,
District : North Tripura

—-Convict-Appellant(s)
Versus

The State of Tripura
—- Respondent(s)

For Appellant(s) : Mr. P.K. Ghosh, Adv.

For Respondent(s) : Mr. B. Chowdhury, P.P.

Date of hearing : 05.04.2019

Date of delivery of
Judgment Order : 20.06.2019

Whether fit for
reporting : YES

HON’BLE MR. JUSTICE S. TALAPATRA
HON’BLE Mr. JUSTICE ARINDAM LODH

Judgment Order

(S.Talapatra J)

The appellant, Gouranga Acharjee was charged for

committing rape of a minor girl [hereinafter referred to as the victim for

protecting her identity] under Section 376(1) of the IPC and he was

separately charged for committing offence of aggravated penetrative

sexual assault under Section 6 of the Protection of Children from Sexual

Offences Act, 2012, hereinafter, referred to as the POCSO Act. By the

judgment dated 14.07.2015 delivered in Case No.

Special(POCSO)0000001/15 by the Special Judge, North Tripura,
Page 2 of 21

Dharmanagar, he was convicted under Section 376(1) of the IPC and

under Section 6 of the POCSO Act.

2. Pursuant to the said conviction, the appellant has been

sentenced to suffer rigorous imprisonment for ten years and to pay a

fine of Rs.2000/- with default stipulation under Section 6 of the POCSO

Act, 2012 but no separate sentence has been awarded under Section

376(1) of the IPC in view of the provision of Section 42 of the POCSO

Act which provides that when for the same offence one accused is

convicted under any Section of the SectionIPC and simultaneously under any

Section of the POCSO Act, then, the sentence be imposed under the

Section which carries greater degree of punishment on the accused

person. The said judgment and order of conviction and sentence are

questioned in this appeal.

3. The prosecution against the appellant has been launched

when the Officer-in-Charge Dharmanagar Police Station, Dharmanagar

received a written complaint [Exbts.2, 8 10] from one Gouranga

Acharjee [PW-2] stating that his daughter [the victim] who was aged

about sixteen years two months had been raped by the appellant

sometime in the end of the month of Baisakha of 1420 BS taking the

advantage of his and his wife’s absence from their house. But the family

members could not sense anything about the incident for long, but on

observing the changing physical condition of their daughter, they

enquired when the victim stated the name of the accused who had

forcible intercourse with her. The victim had also stated that the

appellant threatened the victim that if anything is disclosed, she would

be killed or driven away from the village.

4. On the day of filing of the said complaint i.e. on 18.12.2014,

according to the informant, his daughter was eight months pregnant.
Page 3 of 21

Based on the said complaint, Dharmanagar P.S. Case No.2014 DMN 110

under Section 376 was registered and taken up for investigation. After

the investigation was complete, the final police report was submitted in

the Special Court (for the POCSO Act) sending up the appellant to face

the trial. The Special Court framed the charge as stated, to which the

appellant pleaded innocence and claimed for trial.

5. In order to substantiate the charge, the prosecution

adduced as many as twelve witnesses including the victim [PW-1] and

introduced nine documentary evidence including the medical

examination report of sexual assault [Exbt.11], medical report for age

determination [Exbt.6] and pupilage certificate [Exbt.5]. After the

prosecution evidence was recorded, the appellant was examined under

Section 313 of the Cr.P.C. when he reiterated his plea of innocence and

stated that he has committed any offence and the evidence are all false.

That apart, he has stated that the victim was in association with

unknown young boys and he had informed that conduct to his father

[PW-2] and for that she became angry and filed a false case against

her. Thereafter, having appreciated the evidence, the appellant was

convicted under Section 376(1) of the IPC and Section 6 of the POCSO

Act and sentenced, as stated.

6. Mr. P.K. Ghosh, learned counsel appearing for the appellant

has submitted that the trial court while returning the finding of

conviction has perversely observed that the charge of rape against the

accused [Pappan Acharjee] stood conclusively established by clear,

cogent and convincing evidence. According to Mr. Ghosh, learned

counsel, the age of the victim has not been established for purpose of

determining whether the victim was below eighteen years of age at the

time of alleged occurrence by legal evidence. Further, according to Mr.
Page 4 of 21

Ghosh, learned counsel the victim was more than eighteen years of age

and she had reached the consenting age.

7. Mr. Ghosh, learned counsel has submitted that from the

examination report [Exbt.6] it has surfaced clearly that all permanent

teeth of the victim had erupted fully except the third molar teeth. Mr.

Ghosh, learned counsel by producing a permanent teeth chart from an

undisclosed source has contended that if all the teeth are erupted, the

age of the victim would be more than eighteen years.

8. Having read the evidence, Mr. Ghosh, learned counsel has

further submitted that no DNA profiling was carried out to identify the

paternity of the baby. That apart, Mr. Ghosh, learned counsel has stated

that whatever the age as determined by a dental surgeon, is subject to

a variation of two years and as such, no definite conclusion can be

drawn from the evidence that the victim was below eighteen years of

age and as such, the benefit should go to the appellant. In this regard,

Mr. Ghosh, learned counsel has referred to the evidence of PW-7, Dr.

Biswajit Paul, the dental surgeon [in the cross-examination].

9. In support of age, except the medical report for

determination of age, the prosecution has introduced the

school/pupilage certificate [Exbt.5]. No statutory certificate of birth as

issued by the registrar of births and death has not been collected by

any person for production of the same in the trial. Mr. Ghosh, learned

counsel has therefore submitted that the content of the school

certificate is in-admissible in the evidence, unless, the primary source is

disclosed. The person being competent who made such disclosure, has

to give evidence for vouching the fact of birth. That apart, Mr. Ghosh,

learned counsel has submitted that after eight months from the date of

occurrence, the information was lodged in the police station by PW-2
Page 5 of 21

framing the appellant and there is no whisper why the victim or her

family members remained silent for five months as they have claimed

that after three months of pregnancy, the victim informed the appellant

about the said pregnancy. In support of his contention, Mr. Ghosh,

learned counsel has referred a few decisions. In Maheshwar Sahu

versus State of Bihar reported in 2001 Cri.(L.J.)1035, the Patna

High Court has observed as follows :

“Admittedly, she had pregnancy of 6 to 7 months when
abortion was done. It does not look probable that the
mother of the girl could not know about the pregnancy
of 6 to 7 months of her daughter. This throws grave
doubt on her testimony and the case of prosecution. She
has said in her cross-examination that she had severe
pain in her stomach and she was weeping and her
mother enquired from her and she (P.W. 3) told her that
Maheshwar had administered tablet to her for abortion
of pregnancy. She has further said in her cross-
examination that on hearing the sound of her weeping
the neighbours had informed her mother but no one had
come to her and even after the arrival of her mother no
neighbour had come. It is strange that on hearing the
sound of weeping of a girl neighbours will not come to
see the girl and they will only inform her mother. She
had said in her cross-examination that she was bleeding
when her mother had arrived and no Dai or Chamain of
the village had been called. It also looks surprising and
improbable that a girl will suffer abortion of pregnancy
of 6 to 7 months and no Dai or Chamain or expert hand
will be called for her aid. She has also said in her cross-
examination that in the morning her sister-in-law
(Bhabhi) came to her and no one had taken her for
medical treatment anywhere. It looks strange and
highly improbable that a lady who suffers abortion of 6-
7 months old pregnancy will not be provided medical
treatment or medical aid. She has also said in her cross-
examination that the child aborted was a male child.
This shows that she had a developed pregnancy and the
child had taken shape. She has said in her cross-
examination that no medical treatment was given to her
even after abortion. It does not look probable that after
abortion of such a developed pregnancy a lady will not
require any medical help. The above facts throw grave
doubt on the evidence of P.W. 3 Tulaspati Kumari and
the prosecution case.”

10. Reliance has also been placed on Sambhu Chakraborty

versus The State of Tripura reported in (2013) 1 TLR 535 where

this court had occasion to observe that for non-examination and

withholding of the passengers, who were travelling in the said vehicle at

the time of seizure, an adverse inference has to be drawn against the
Page 6 of 21

prosecution under Section 114(G) of the Evidence Act. In support of his

aforesaid contention, he has placed reliance on a decision of the apex

court in Zahira Habibullah Sheikh (5) SectionAnr. v. State of Gujarat

Ors.,: (2006) 3 SCC 374 : (AIR 2006 SC 1367), wherein the Apex

Court has noted, inter alia, that :

“The Court is not empowered under the provisions of
the Code of Criminal Procedure to compel either the
prosecution or the defence to examine any particular
witness or witnesses on their side. This must be left to
the parties. But in weighing the evidence, the Court can
take note of the fact that the best available evidence
has not been given, and can draw an adverse
inference”.

Having referred this principle, Mr. Ghosh, learned counsel

has placed before this court that the best evidence such as

determination of the paternity of the fetus has been withheld from the

court and hence, the adverse inference is bound to be drawn against

the prosecution.

11. Finally, Mr. Ghosh, learned counsel has referred a decision

of this court in Ananda Kirti Jamatia versus State of Tripura

reported in (2018) 2 TLR 76,where this court has observed in respect

of determination of the age based on the pupilage certificate or the

school certificate, as follows :

33. In this respect, we may gainfully refer to a decision
in Ravinder Singh Gorkhi Vs. State of UP, reported in
(2006) 5 SCC 584 wherein the Apex Court at para-38
and 39 has held, as under:

“38. The age of a person as recorded in the school
register or otherwise may be used for various
purposes; namely, for obtaining admission; for
obtaining an appointment; for contesting election;
registration of marriage; obtaining a separate unit
under the ceiling laws; and even for the purpose of
litigating before a civil forum, e.g. necessity of
being represented in a court of law by a guardian or
where a suit is filed on the ground that the plaintiff
being a minor he was not appropriately represented
therein or any transaction made on his behalf was
void as he was minor. A court of law for the purpose
of determining the age of a party to the lis, having
regard to the provisions of Section 35 of the
Evidence Act will have to apply the same standard.

No different standard can be applied in case of an
Page 7 of 21

accused as in a case of abduction or rape, or similar
offence where the victim or the prosecutrix
although might have consented with the accused, if
on the basis of the entries made in the register
maintained by the school, a judgment of conviction
is recorded, the accused would be deprived of his
constitutional right under Page 13 of 23 SectionArticle 21
of the Constitution, as in that case the accused may
unjustly be convicted.

39. We are, therefore, of the opinion that that until the
age of a person is required to be determined in a
manner laid down under a statute, different standard of
proof should not be adopted. It is no doubt true that the
court must strike a balance. In case of a dispute, the
court may appreciate the evidence having regard to the
facts and circumstance of the case. It would be a duty
of the court of law to accord the benefit to a juvenile,
provided he is one. To give the same benefit to a person
who in fact is not a juvenile may cause injustice to the
victim. In this case, the appellant had never been
serious in projecting his plea that he on the date of
commission of offence was a minor. He made such
statement for the first time while he was examined
under Section 313 of the Code of Criminal Procedure.”

34. In the decision of Alamelu Vs. State, represented by
Inspector of Police, reported in (2011) 2 SCC 385, the
Apex Court has held that the date of birth mentioned in
the transfer certificate would have no evidentiary value
unless the person who made the entry or who wrote the
date of birth is examined. We may refer to para 40 of
the said decision [scc.P.395, para 40] which reads as
under:

“40. Undoubtedly, the transfer certificate, Ex.P16
indicates that the girl’s date of birth was 15-6-1977.
Therefore, even according to the aforesaid
certificate, she would be above 16 years of age (16
years 1 month and 16 days) on the date of the
alleged incident, i.e., 31-7-1993. The transfer
certificate has been issued by a government school
and has been duly signed by the Headmaster.
Therefore, it would be admissible in evidence under
Section 35 of the Evidence Act, 1872. However, the
admissibility of such a document would be of not
much evidentiary value to prove the age of the girl
in the absence of the material on the basis of which
the age was recorded. The date of birth mentioned
in the transfer certificate would have no evidentiary
value unless the person, who made the entry or
who gave the date of birth is examined.”

[Emphasis added]

12. Mr. Ghosh, learned counsel has stated that the trial court

has failed to make the assessment of the evidence on the touchstone of

the dispassionate judicial scrutiny.

13. From the other side, Mr. B. Chowdhury, learned PP

appearing for the State has submitted that if the victim’s evidence is
Page 8 of 21

straight-forward, cogent and if believed is sufficient to prove the

prosecution case and that stood corroborated by medical evidence, it is

enough to return the conviction. In this regard, Mr. Chowdhury, learned

PP has referred to a decision of the apex court in Vahula Bhushan

alias Vahuna Krishnan versus State of Tamil Nadu reported in

1989 Supp (1) SCC 232 where the apex court had occasion to

observe that there is no rule of law that the testimony of a single

witness cannot be accepted and the conviction cannot be based on such

evidence, if believed. The testimony of a single witness if it is straight

forward, cogent and if believed is sufficient to prove the prosecution

case. The accused can be convicted on the testimony of such a single

witness.

14. Mr. Chowdhury, learned PP has succinctly submitted that

our society unfortunately does not have any empathy for a rape victim

and that creates the darkness of stigma. The victims cannot come out

of the appalling darkness with courage. Unless, contingency becomes so

driving that they are compelled to come out either for saving their life

or for any other reason the heinous crime of rape is buried. The delay in

respect of launching the prosecution relating to the offence of murder

cannot be given much weightage unless, it is shown that such delay

was deliberate and for any other purpose or the delay has caused great

prejudice to the accused.

15. Mr. Chowdhury, learned PP has also referred a decision of

the apex court in State of Rajasthan versus N.K. The Accused

reported in (2000) 5 SCC 30 to observe that the parents of the rape

victim would adversely be chary to such an incident gaining publicity

because it would have serious implications for reputation of their family
Page 9 of 21

and also on the married life of the victim. In such perspective, the apex

court has observed as follows:

“15. We may however state that a mere delay in lodging
the FIR cannot be a ground by itself for throwing the
entire prosecution case overboard. The Court has to
seek an explanation for delay and test the truthfulness
and plausibility of the reason assigned. If the delay is
explained to the satisfaction of the Court it cannot be
counted against the prosecution. SectionIn State of Rajasthan
v. Narayan: 1992CriLJ3655 this Court observed :

“True it is that the complaint was lodged two
days later but as stated earlier Indian society being
what it is the victims of such a crime ordinarily consult
relatives and are hesitant to approach the police since it
involves the question of morality and chastity of a
married woman. A woman and her relatives have to
struggle with several situations before deciding to
approach the police…..”

16. SectionIn State of Punjab v. Gurmit Singh and Ors.: (1996)
2 SCC 384, this Court has held :

“The courts cannot overlook the fact that in
sexual offence delay in the lodging of the FIR can be
due to variety of reasons particularly the reluctance of
the prosecutrix or her family members to go to the
police and complain about the incident which concerns
the reputation of the prosecutrix and the honour of her
family. It is only after giving it a cool thought that a
complaint of sexual offence is generally lodged.”

[Emphasis added]

16. Mr. Chowdhury, learned PP appearing for the State has

submitted that from the complaint [PW-2] itself it appears that

immediately after the disclosure made by the victim, the complaint

[Exbts.2, 8 10] was lodged. Therefore, there is no delay from the

date of knowledge of PW-2.

17. Mr. Chowdhury, learned PP has submitted, based on

principle laid down in Radhu versus State of Madhya Pradesh

reported in (2007) 12 SCC 57, that if the evidence of the prosecutrix

[the victim] when read as a whole, is found to be full of discrepancies

and cannot inspire confidence, no conviction can be returned on the

basis of such testimony. The gaps in the evidence, or discrepancies in

the evidence or the other circumstances if the testimony makes highly
Page 10 of 21

unreliable, and its probative value in most of the cases cannot be

reinforced by corroboration.

Here is a case where no such elements are there in the

evidence of the victim [PW-1].

18. Conversely, it is settled law that a prosecutrix complaining

of having been a victim of the offence of rape is not an accomplice of

the perpetrator. There is no rule that her testimony cannot be acted

without corroboration in material particulars. Her testimony has to be

appreciated on the principle of probabilities, just as the testimony of

any other witness. A high degree of probability having been shown to

exist can instill confidence of the court. However, if the court of facts

may find it difficult to accept the version of the prosecutrix on its face

value, it may search for evidence, direct or circumstantial, which would

lend assurance to her testimony. Assurance is short of corroboration.

Reference may be made to a long list of decisions, some of which are:

Rameshwar versus State of Rajasthan:AIR 1952 SC 54,

Sidheswar Ganguly versus State of West Bengal:AIR 1958 SC

143, Madho Ram versus State of Uttar Pradesh:(1973) 1 SCC

533, State of Maharashtra versus Chandraprakash Kewalchand

Jain:(1990) 1 SCC 550, Madan Gopal Kaddad versus Naval Dubey

:(1992) 3 SCC 204, State of Rajasthan versus Narayan : (1992)

3 SCC 615, Karnel Singh versus State of Madhya Pradesh:

(1995) 5 SCC 518, Bodhisattwa Gautam versus Subhra

Chakraborty: (1996) 1 SCC 490 SectionState of Punjab v. Gurmit

Singh and Ors.: (1996) 2 SCC 384. We may quote from the last

referred of the above decisions, where the rule for appreciating the

evidence of the prosecutrix in such cases has been succinctly summed

up in the following words:

Page 11 of 21

“…If evidence of the prosecutrix inspires confidence, it
must be relied upon without seeking corroboration of
her statement in material particulars. If for some
reason the court finds it difficult to place implicit
reliance on her testimony, it may look for evidence
which may lend assurance to her testimony, short of
corroboration required in the case of an accomplice. The
testimony of the prosecutrix must be appreciated in the
background of the entire case and the trial court must
be alive to its responsibility and be sensitive while
dealing with cases involving sexual molestations.”

19. For purpose of appreciating the submissions as advanced by

the learned counsel for the parties it would be appropriate to make a

meaningful survey of the records of evidence.

20. PW-1 [the victim] has stated in the trial that she cannot

remember the exact date of occurrence. But she has stated that it

occurred on a day in the last part of the month of last Baishaka. She

was doing household works in the kitchen of their house. It was about

10/11’o clock in the morning. All on a sudden the accused, Pappan

Acaharjee of their village appeared in the kitchen and caught hold of

her. He slapped her and pushed her on the ground. Thereafter, he

undressed her by force. He had also disrobed himself and penetrated

his genital organ into her genital organ and thus committed rape upon

her. He warned her to abstain herself from disclosing the incident to

anybody. He threatened her that if she revealed to her parents or

anybody, he would kill her. She has stated that she did not tell it to

anybody in fear of the accused. When she became pregnant and

symptoms of her pregnancy became visible, her mother asked her

about who made her pregnant. She has told in the trial that she

revealed everything to her mother. Thereafter, her father lodged a

complaint at the police station against the accused. The police produced

her before the Magistrate where her statement was recorded by the

said officer. She signed her statement after the statement was

recorded. After the case was registered, she was taken for medical
Page 12 of 21

examination and treatment. Medical examination was carried out at

Dharmanagar hospital. She has further submitted in the trial that she

read in Dewanpassa JB School, nearby their house from class-I to class-

V. Thereafter, she read in Sribhumi H.S. School upto class-VIII and

discontinued her study after class-VIII. She has stated further in the

trial that she gave birth to a daughter who died 1 ½ months after her

birth. She identified the accused in the dock. She has categorically

stated that at the time of occurrence she was only 15 years of old.

In the cross-examination, PW-1 [the victim] has stated that

the accused was a married man and he has children. He works in a

grocery shop. He used to attend his work at 10/11 am and return home

after 5 pm. His wife, Anju Acharjee, lived in the adjoining house. The

house of the accused is situated at 10/12 cubits away from their house.

She has asserted that even though, she told the Magistrate that the

accused undressed her and disrobed himself and thereafter, he

penetrated his sexual organ into her genital organ but no such

statement was found recorded under Section 164 of the Cr.P.C. After

appearing in their kitchen, the accused was slapped her but before this

the accused had never done anything wrong to her. But she denied the

suggestion that many young men used to visit their house. She denied

the suggestion that at the time of occurrence, she was nineteen years

old. To a query by the court, the accused has stated that the accused

used to visit their house against her will. He has touched her body

several times and wanted to have physical relationship with her. But

she never allowed him to have such relationship. After about eight

months of the occurrence when she told her parents about the fact, her

father informed the matter to the uncle of the accused namely Pradip

Acharjee. The accused became furious and attacked them in a group
Page 13 of 21

and throttled her. He had a lathi in his hand with which he tried to

assault her. She denied the suggestion that the accused had falsely

implicated in the case.

21. PW-2, Sri Gouranga Acharjee who is the informant has

stated that the accused raped his sixteen years old daughter at the end

of the month of Baishaka of 1421 BS. His daughter first disclosed the

matter to her mother that she was raped by the accused, when she

became pregnant. The matter was also informed to Dewanpassa Gram

Panchayat, but they advised PW-2 to take recourse of law. As a result of

the rape committed on her, she became pregnant and had given birth

of a girl child. The police seized the school certificate of his daughter

which was issued from Dewanpassa JB School where his daughter used

to read from class-I to class-V.

In the cross examination, he has stated that his wife came

to know about the occurrence when the period of her daughter was

missed after 2/3 months of the occurrence. Her mother then told him

about the occurrence. Someone of their village informed the police

about that occurrence. When the police visited their house, he got the

complaint written and lodged it with the police officer in their house. In

the cross-examination, PW-2 has also stated as follows:

“When the matter was reported to Anil Majumder,
Panchayat Member, the accused and many other in a
group came to my house and wanted to know from us
as to why the accused was implicated in this case. We
are socially oustracised in our village. It is not a fact
that due to false implication of the accused on charge of
rape the society has oustracised our family. It is not a
fact that my daughter was 19 years old at the time of
occurrence. It is not a fact that to hide the actual age of
my daughter I have not given her birth certificate to
police. It is not a fact that I have filed a false case
against the accused. It is not a fact that accused did not
commit rape on my daughter. It is not a fact that the
accused is not responsible for pregnancy of my
daughter.”

Page 14 of 21

22. PW-3, Smt. Milan Acharjee is the mother of the victim has

stated that taking the advantage of her and her husband’s absence, the

accused who is a neighbour raped her daughter. Seeing her inflated

belly, she asked her what had happened to her. In reply, she had told

to PW-3 that she became pregnant and she told her that the accused

committed rape upon her and in fear of the accused, she did not tell it

to her. Immediately, she informed her husband and thereafter, they

informed Anil Majumder, Panchayat Member and sought her advice. He

advised to take recourse of law and accordingly, the complaint was filed

by her husband [PW-2].

In the cross-examination, she has stated that she has

explained everything to the police officer. She denied the suggestion

that the accused never warned her daughter and requested her to

abstain from attending street-side gathering outside his house. She

denied such suggestion that for that reason, the accused has been

falsely implicated in a case of rape by her daughter. PW-3 has denied

that the accused was not responsible for pregnancy of her daughter or

she further denied the suggestion that at the time of occurrence, her

daughter was nineteen years old.

23. PW-4, Smt. Archana Acharjee is a witness from the

neighbourhood. She has categorically stated as follows :

“Accused Papan Acharjee told me that ……[the name
withheld for protecting her identity] was pregnant for 3
months. For knowing the truth I sent my daughter
Amita Acharjee to ……[the name withheld for protecting
her identity] …………[the name withheld for protecting
her identity] told Amita that she was having her period
and she was not pregnant. After about 8/9 months the
symptoms of her pregnancy became visible. I saw her
inflated belly. Then I asked ……[the name withheld for
protecting her identity] as to who caused her
pregnancy. She told me that accused Pappan Acharjee
caused her pregnancy. A daughter was born to her.
After about 1 ½ months of her birth, the daughter
died.”

Page 15 of 21

In the cross-examination, PW-4 has however stated that the

accused told her that he had known about the pregnancy from the

villagers. She has also stated that the victim did not tell her that the

accused raped her. She has in the cross-examination stated that

villagers came to know about her pregnancy when the victim was

pregnant for three months. This witness was not re-examined by the

prosecution.

24. PW-5, Smt. Amita Acharjee, the daughter of PW-4 has

stated in the trial that the victim was known to her. When the accused

told her mother that the victim was pregnant, her mother sent her to

the victim for verifying the truth. She met the victim, but the victims

stated that she was having periods. Subsequently, when the sign of

pregnancy became visible, everybody in the village came to know about

her pregnancy. The victim told her mother that the accused caused her

pregnant. Subsequently, a daughter was born to the victim and the

daughter died a month or above after her birth. In the cross-

examination, she has also stated that the victim did not make any

allegation against anybody.

25. PW-6, Sri Nirmal Das is the seizure witness of the school

certificate which was seized by preparing a seizure list [Exbt.4]. He has

identified the school certificate [Exbt.5].

26. PW-7, Sri Biswajit Paul is a dental surgeon, posted in the

Dharmanagar hospital on 20.12.2014 when he carried out the age-

determination test of the victim. According to his opinion, she was

sixteen years of age subject to maximum one year variation. However,

in the cross-examination, he has stated that age determined by the

dental surgeon may be subject to variation of two years. But he has
Page 16 of 21

categorically denied that the victim was more than eighteen years of

age.

27. PW-8, Sri Saptam Bhattacharjee is a Medical Officer posted

in Dharmanagar hospital on 29.12.2014. When he conducted the ultra

sonography of the victim to determine as to whether she was pregnant,

it was found that she was carrying pregnancy of 32 weeks one day and

the expected date of delivery was 22.02.2015. The report was

accordingly prepared and that report [Exbt.7] has been admitted in the

evidence by PW-8.

28. PW-9, Sri Nanda Dulal Saha is the in-Charge, Officer-in-

Charge of Dharmanagar police station on 18.12.2014 and he registered

the Dharmanagar P.S. Case No.130/2014 under Section 376 of the IPC

and Sections 4 and 6 of the POCSO Act, 2012.

29. PW-10, Smt. Swarna Debbarma has stated that she was

endorsed the investigation of Dharmanagar P.S. Case No.130/2014 and

she has narrated how she conducted the investigation including sending

the victim for recording her statement under Section 164(5) of the

Cr.P.C. She has also prepared a site map of the place of occurrence.

She has admitted in the cross-examination that during the investigation

she did not come across any evidentiary materials to the effect that the

victim was assaulted by the accused by lathi after the case was filed.

But she has denied that the father of the victim knew about the

occurrence two months before lodging of the FIR. She denied that the

victim at the time of occurrence was nineteen years of age.

30. PW-11, Plaban Majumder is a scribe who wrote the ejahar at

the dictation of PW-2.

31. PW-12, Dr. Manna Bhattacharjee examined the victim

medically and found her hymen was torn but there was no mark of
Page 17 of 21

external injury either in her genital part or any part of her body. He had

prepared the report [Exbt.11]. In the cross-examination, he has stated

that hymen may be torn due to some other reasons, beyond rape. In

the school certificate [Exbt.5] the date of birth of the victim is recorded

as 16.09.1999. About the age determination report [Exbt.6] sufficient

details are provided. The report of ultrasonography clearly shows that

the fetus was of 32 weeks 1 day. Her age is recorded in the report

[Exbt.6] as 16 years. The medical examination report for the sexual

assault [Exbt.11] is perused by this court where the statement of the

victim has been recorded to have stated that she was raped by the

accused in her house in absence of her parents. That apart, the doctor

opined that the hymen was found torn. In the statement recorded under

Section 164(5) of the Cr.P.C., the victim has categorically given the

description how she was subjected to the intercourse under criminal

force and before the occurrence how the accused tried to sexually abuse

her. But out of fear as the accused had threatened her, she did not

reveal the incident to anyone.

32. After scrutinizing the records and appreciating the

submissions as advanced by the counsel for the parties, the pertinent

questions which falls for response from the court are (i) whether the

victim was below the consenting age or majority (ii) whether the sexual

intercourse, if the victim is not minor, was consensual (iii) whether the

appellant has raped the victim and (iv) whether the delay in filing the

complaint can be fatal in this case.

33. Let us first address the question of delay in filing the

complaint as raised by the appellant. PW-2 has filed the complaint as it

appears without any delay from the day of his knowledge that he

acquired from his wife who gathered the knowledge from the victim
Page 18 of 21

when she located the signs of pregnancy. On the face of it, there is no

delay but whether PW-4 can be believed for the early disclosure as she

has stated that the villagers came to know about the pregnancy when

the victim was pregnant for 3 months. But PW-4 has categorically

stated that the victim denied that she was pregnant. PW-4 was

persuaded by the appellant to verify whether the victim was pregnant

or not. The statement of PW-4 that the villagers knew when the victim

was 3 months pregnant cannot be believed on the face of it as the

victim not only to her but even to her daughter [PW-5] denied to have

become pregnant.

34. Having appreciated the facts that has surfaced in the

evidence and in terms of the observation made in Gurmit

Singh(supra), it is held that there is a general reluctance to report the

sexual offence for prevailing social attitude towards the raped victims.

Moreover, the delay has been explained in this case quite reasonably

and moreover, there is no evidence to show that there was any parley

or manipulation by the victim. Even though, the accused has tried very

hard to show that the victim was of easy virtues. The appellant even

indicated that as he raised voice and informed her father, she retaliated

by framing him in the case. This court is not inclined to accept such

theory in the present context.

35. Determination of age of the victim is the main stay of

objection in this appeal. In this regard, for the appellant, the decision of

the apex court in Ravinder Singh Gorkhi versus State of U.P.:

(2006) 5 SCC 584 and Alamelu versus State, represented by

Inspector of Police: (2011) 2 SCC 385 have been relied. That apart,

the decision of this court in Ananda Kirti Jamatia :(2018) 2 TLR 76

(supra) is structured on those decisions has been relied for the
Page 19 of 21

appellant. The apex court has observed that a court of law for the

purpose of determining the age of a party to the lis, having regard to

the provisions of Section 35 of the Evidence Act will have to apply the

same standard of proving the content. No different standard can be

applied in case of an accused in a case of abduction or rape, or similar

offence where the victim or the prosecutrix might have consented with

the accused. If on the basis of the entry made in the admission register

maintained by the school, the judgment of conviction is recorded, the

accused might be deprived of his constitutional right under SectionArticle 21 of

the Constitution for fair trial inasmuch as he would not be in a position

to question the source of such information, recorded in the register.

It would be the duty of the court, therefore, to verify the

age. Even though, the certificate is admissible under Section 35 of the

Evidence Act but that admissibility of document would be of much

evidentiary value to prove the age “in the absence of the material” on

the basis of which the age was recorded.

36. In this case, not only the school certificate, but both the

parents have asserted the age of the victim. Even the age as asserted

by the parents has been corroborated by the ossification test, as carried

out by PW-7. Therefore, it can safely be held that the age of the victim

on the day of occurrence was below 18 years. Thus, there is no

question of consensual sex. The proof of intercourse is enough to hold

that the accused [the appellant herein] has committed the rape on the

victim.

37. Now the paramount question whether the accused [the

appellant herein] has committed the rape. True it is that the

investigating agency committed a serious lap by not carrying out the

DNA test by profiling the victim, the appellant and the new born baby
Page 20 of 21

for matching their DNA. This court is persuaded to express serious

displeasure in respect of the manner in which the investigations was

carried out. In the age of Forensic Science, this is the minimal what is

expected of the investigating agency. Be that as it may, that cannot be

treated as the end of the journey and cannot entail in an acquittal of the

appellant. The victim [PW-1] appears to be fully trustworthy. Her

evidence is cogent, not affected by any embellishment, rather her

truthfulness is explicit on her statement. Even, if the statement as

recorded under Section 164(5) is taken into consideration by judicial

notice, then also it would be apparent that she was consistent from the

first instance. The victim has gone through a painful journey and atleast

no probable reason has been brought in the record to believe that it was

an act of retaliation from the victim. It is only natural that the victim

had nothing to get from that relation as the appellant was married and

was having his young children. Even, no suggestion was made to the

victim from the defence that as the appellant had complained to her

father in respect of licentious behaviour, she had implicated the

appellant. Only suggestion that has been made to the victim that she

was having relation with some young men and the accused cautioned

her but she denied such suggestion. It is apparent that the appellant

had a close liaison with PW-4. Even, PW-4 did not indicate any such fact

in the trial. Even when such suggestion was put to PW-3, she has

categorically denied any such suggestion that the accused warned her

daughter and requested her from attending such “Adda”. So the

suggestions are at variance. Even suggestion was made to PW-2. But

again, it’s a divergent suggestion which was denied. The defence has

failed to probabilize such story from the evidence. On the contrary, this

court has reasons to believe the evidence of PW-1 as injured witness.
Page 21 of 21

This court does not find any reason to interfere with the

impugned judgment of conviction and hence, this appeal stands

dismissed with no interference in the sentence.

Send down the LCRs forthwith.

JUDGE JUDGE

Sabyasachi B

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