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 21accused 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
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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
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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
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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
