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Mangal Debbarma vs The State Of Tripura on 29 August, 2019

HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J)25 of 2016

1. Mangal Debbarma,
son of late Mangkarai Debbarma
of Village-Charankanta Para,
P.S. Ambassa, District : Dhalai,

2. Falakathar Debbarma,
son of Sri Rajendra Debbarma,
of Village-Charnakanta Para-2,
P.S. Ambassa, District : Dhalai

—-Appellant(s)
Versus

The State of Tripura
—- Respondent(s)

For Appellant(s) : Mr. Ratan Datta, Adv.

For Respondent(s) : Mr. A. Roy Barman, Addl. P.P.

Date of hearing : 11.07.2019

Date of delivery of
Judgment Order : 29.08.2019

Whether fit for
reporting : YES

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

Judgment Order

[Talapatra, J]

Both the appellants were charged under Section 376D and

Section 4 of the Protection of Children from Sexual Offences Act, 2012,

in short, POCSO Act separately and after a regular trial, they were

convicted under Section 376D of the IPC and under Section 4 of the

POCSO Act by the judgment dated 25.02.2016 delivered in case No.

Special (POCSO) 28 of 2015 by the Special Judge, Unakoti Judicial

District, Kamalpur [as it then was].

Page 2 of 25

2. Pursuant to the said conviction under Section 376D of the

IPC, by the order dated 25.02.2016, the appellants were sentenced to

suffer rigorous imprisonment for a period of twenty years, which is the

minimum imprisonment as prescribed and fine of Rs.10,000/- with

default stipulation but no separate sentence was awarded against the

conviction under Section 4 of the POCSO Act. The said judgment and

order dated 25.02.2016 are challenged in this appeal.

3. In the complaint filed by one Sunil Debbarma [PW-3], it was

revealed that when his daughter [the name is withheld for protecting

her identity] was returning home on 18.09.2014 at about 4 p.m. in the

afternoon from the house of informant‟s paternal uncle namely

Annabahadur Debbarma [PW-8] situated at Masimog para, the

appellants namely Mangal Debbarma and Falakathar Debbarma

restrained his daughter, gagged her mouth and took her inside the

jungle (forest) of Masimog para and raped her. His daughter came back

home and informed the entire incident to the informant. In the

complaint [Exbt.2] it has been also stated that the delay caused in

lodging the ejahar was for apprehension of social stigma. On the said

complaint dated 24.09.2014, Ambassa P.S. Case No.48/14 under

Sectionsection 376D of the IPC and Section 6 of the POCSO Act was registered

and taken up for investigation. On completion of investigation, the

police report was filed in the court of the Special Judge (POCSO) and

the charge was framed as stated, but those were denied by the

appellants claiming to face the trial.

4. In order to substantiate the charge, as many as fifteen

witnesses including the victim [PW-1] were examined by the

prosecution and fifteen documentary evidence [Exbts.1 to 15] including

the pupilage certificate [Exbt.9] and the SFSL report [Exbt.10] was
Page 3 of 25

introduced in the evidence. After recording of the prosecution evidence,

the appellants were separately examined under Section 13 of the

Cr.P.C. to have their response on the incriminating materials those

surfaced in the evidence. The appellants denied the evidence and

repeated their plea of innocence. Thereafter, having appreciated the

evidence, by the said judgment dated 25.02.2016, the Special Judge

returned the finding of conviction.

5. Questioning the legality of the judgment, Mr. R. Datta,

learned counsel appearing for the appellants has submitted that it is

apparent on the face of the record that there is no sustainable evidence

in respect of the identification of the appellants, even, the victim did not

assert that the appellants were known to her before the incident. That

apart, there is no medical testimony in support of the gang rape or

rape. But it is apparent that there was medical examination when the

vaginal swab was collected from the victim for purpose of sending to

the State Forensic Science Laboratory (SFSL). But on examination, it is

apparent from the testimony of PW-13 that no semen or seminal stain

or spermatozoa of human origin could be detected in the exhibits as

marked and described in Exbt.10. The report of the SFSL was admitted

in the evidence through PW-13. Mr. Datta, learned counsel has

submitted that the medical examination report has been suppressed

and the SFSL report [Exbt.10] does not implicate the appellants. Mr.

Datta, learned counsel has further submitted that no specific forensic

opinion was available in respect to Exbts.A to V. He has further

submitted that the seizure list by which the vaginal swab, the blood

sample etc. was seized has been marked as Exbt.14.

6. Mr. Datta, learned counsel has submitted that it is grossly

improbable that the victim of gang rape will have no injury on her
Page 4 of 25

private parts. That apart, Mr. Datta, learned counsel has challenged the

determination of age of the victim on the basis of the pupilage

certificate [Exbt.9] and the entry in the register of birth and death

[Exbt.14]. Mr. Datta, learned counsel has further submitted that even,

Arun Debbarma in whose house the village salish was held, has not

been examined.

7. In support of his contention, Mr. Datta, learned counsel has

referred to the testimony of Durjoy Reang [PW-12]. PW-12 has only

stated that as per record, the date of birth of victim is 10.01.2002.

According to Mr. Datta, learned counsel, the entire prosecution story

has caved in, in absence of credible evidence, inasmuch as, PW-1 [the

victim] has given a different story. She had been going to the house of

her grandfather and on the way, the incident took place. But the

informant had stated that when she was coming from her grandfather‟s

house, she was raped. Both the appellants were present in the salish

which was held two days after the occurrence in the house of the local

“Choudhury” (the community head). But the appellants denied their

involvement. Thereafter, PW-3 lodged the complaint and the victim was

examined under Sectionsection 164(5) of the Cr.P.C. [Exbt.1 series] but the

Magistrate was not examined in the trial. However, the statement was

admitted through the victim [PW-1].

8. Mr. Datta, learned counsel has finally stated that the

manner in which the examination under Section 313 has been carried

out, it is not only defective but it amounts to denial of opportunity of

explaining the position of fact by the victim. Mr. Datta, learned counsel

has illustrated his contention by referring to question No.15, in

particular. In support of his contention, Mr. Datta, learned counsel has

relied on few decisions of the apex court and this court. In Rinku Nath
Page 5 of 25

versus State of Tripura reported in 2018 Cri LJ 4668, this court had

occasion to observe as follows :

“21. We are of the view that some supporting evidence
was essential for the prosecution case to book the
accused-appellant for commission of rape. As already
mentioned above, the medical evidence does not
support the commission of rape and there is no other
corroborative evidence on record which may support
the statement of the prosecutrix. The present evidence
on record failed to satisfy the basic requirement of
Sec.375 SectionIPC and it appears from the statement of the
prosecutrix (PW-1) that there was no semblance of any
resistance or made any hue and cry that would certainly
have attracted the persons who are residing in the
nearby huts as it revealed from the hand-sketch map
(Exhibit-5) who were deliberately not made the
prosecution witnesses and she disclosed the fact to her
husband (PW-2) only when he noticed Rs.100/- which
the accused-appellant, according to PW-1, left behind
after the alleged rape being committed by him.

22. It is true that the version of victim is in great
command deserves respect and acceptability but if the
same under any circumstances casts some doubt in the
mind of the court on the veracity of the victims
evidence, then it is not safe to rely on the
uncorroborated version of the victim of rape in
isolation.”

According to Mr. Datta, learned counsel, the said analogy is

to be applied in the present context for their resemblance.

9. Another decision of this court in Nakul Sharma versus

State of Tripura [judgment dated 02.08.2016 delivered in

Crl.A(J)No.29 of 2016], has been referred. In that report, it was

observed that the prosecution had failed to establish the age of the

victim following the procedure as laid down in Alamelu and Another

versus State Represented by Inspector of Police reported in AIR

2011 SC 715 inasmuch as the apex court had occasion to observe as

follows :

“38. We may now take up the issue of Sekar’s
conviction under Section 376 IPC. Whilst upholding the
conviction of Sekar under Section 376 IPC, the High
Court has held that the girl would not have voluntarily
gone with Sekar. It has also been held that she was not
a major at the relevant time. In our opinion, both the
conclusions recorded by the High Court are contrary to
the evidence on record. We will first take up the issue
with regard to the age of the girl. The High Court has
based its conclusion on the transfer certificate, Ext. P-

Page 6 of 25

16 and the certificate issued by PW 8 Dr. Gunasekaran,
Radiologist, Ext. P-4 and Ext. P-5.

40. Undoubtedly, the transfer certificate, Ext. P-16
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 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.

41. We may notice here that PW 1 was examined in the
Court on 9-8-1999. In his evidence, he made no
reference to the transfer certificate (Ext. P-16). He did
not mention her age or date of birth. PW 2 was also
examined on 9th August, 1999. She had also made no
reference either to her age or to the transfer certificate.
It appears from the record that a petition was filed by
the complainant under Section 311 CrPC seeking
permission to produce the transfer certificate and to
recall PW 2. This petition was allowed. She was actually
recalled and her examination was continued on 26-4-
2000. The transfer certificate was marked as Ext. P-16
at that stage, i.e. 26-4-2000. The judgment was
delivered on 28-4-2000. In her cross-examination, she
had merely stated that she had signed on the transfer
certificate, Ext. P-16 issued by the school and
accordingly her date of birth noticed as 15-6-1977. She
also stated that the certificate has been signed by the
father as well as the Headmaster. But the Headmaster
has not been examined. Therefore, in our opinion, there
was no reliable evidence to vouchsafe for the truth of
the facts stated in the transfer certificate.

42. Considering the manner in which the facts recorded
in a document may be proved, this Court in Birad Mal
Singhvi Vs. Anand Purohit : 1988 Supp SCC 604,
observed as follows: (SCC pp. 618-19, para 14)

“14. …. The date of birth mentioned in the
scholars’ register has no evidentiary value
unless the person who made the entry or who
gave the date of birth is examined. ……

Merely because the documents Exts. 8, 9, 10,
11, and 12 were proved, it does not mean that
the contents of documents were also proved.

Mere proof of the documents Exts. 8, 9, 10, 11
and 12 would not tantamount to proof of all
the contents or the correctness of date of
birth stated in the documents. Since the truth
of the fact, namely, the date of birth of Hukmi
Chand and Suraj Prakash Joshi was in issue,
mere proof of the documents as produced by
the aforesaid two witnesses does not furnish
evidence of the truth of the facts or contents
of the documents. The truth or otherwise of
the facts in issue, namely, the date of birth of
Page 7 of 25

the two candidates as mentioned in the
documents could be proved by admissible
evidence i.e. by the evidence of those persons
who could vouchsafe for the truth of the facts
in issue. No evidence of any such kind was
produced by the respondent to prove the truth
of the facts, namely, the date of birth of
Hukmi Chand and of Suraj Prakash Joshi. In
the circumstances the dates of birth as
mentioned in the aforesaid documents have
no probative value and the dates of birth as
mentioned therein could not be accepted.”

43. The same proposition of law is reiterated by this
Court in Narbada Devi Gupta Vs. Birendra Kumar Jaiswal
: (2003) 8 SCC 745 where this Court observed as
follows: (SCC p.751, para 16)

“16. …. The legal position is not in dispute
that mere production and marking of a
document as exhibit by the court cannot be
held to be a due proof of its contents. Its
execution has to be proved by admissible
evidence, that is, by the „evidence of those
persons who can vouchsafe for the truth of
the facts in issue‟.”

44. In our opinion, the aforesaid burden of proof has not
been discharged by the prosecution. The father says
nothing about the transfer certificate in his evidence.
The Headmaster has not been examined at all.

Therefore, the entry in the transfer certificate cannot be
relied upon to definitely fix the age of the girl.”

Mr. Datta, learned counsel has submitted that in this case

also, the prosecution has failed to establish the age of the victim

following the above procedure and as such, the victim cannot be treated

as child or not having attained the age of consent.

10. Reliance has been placed as well on Md. Jamiruddin

Ahmed versus State of Assam reported in 2008 Cri LJ 586. In

Jamiruddin Ahmed (supra), the apex court had occasion to observe as

follows :

13. The Doctor in his opinion clearly stated that the girl
was about 7 years but below 11 years of age. He did not
find any symptom of sexual intercourse or any sexual
assault on the girl. On cross-examination he explained
that it was a fact that if a girl of less than 12 years was
subjected to sexual intercourse by an adult boy, there
was bound to rupture of fourchetty and abrasion of
labia majora and minora and there was every possibility
of tearing of hymen.

14. On bare perusal of the medical evidence it would be
clear that there was no element of offence of rape on
P.W. 4 and the girl did not suffer any injury on any part
Page 8 of 25

of her body as claimed by the prosecutrix in her
deposition as P.W. 4.

15. In such a situation supported by the medical report
of the Doctor, it can be easily held that there was no
symptom of sexual intercourse or any sexual assault on
the girl and the evidence of P.W. 4 is belied by the
medical evidence.

16. Having meticulously considered the testimony of
P.Ws. 4 and 5 and also having regard to the Judicial
pronouncement referred to in Yerumalla Latchaiah’s
case (supra) as well as upon hearing the learned
Counsel for the parties, we are of the considered
opinion that in the facts and circumstances of the case
in its totality, the testimony of P.W. 4 cannot be
accepted as the same has been totally Impeached by
medical evidence.

In this case, no medical examination report has been

produced. Except the oral evidence of the victim, there is no

corroborating forensic opinion and hence, Mr. Datta, learned counsel

has submitted that the incidence of rape has not been established by

legal evidence.

11. In Bibhisan versus State of Maharashtra reported in

(2007) 12 SCC 390 the apex court has curtly observed as follows :

“6. We have gone through the judgment of both the
courts below and also perused the necessary record. As
per the evidence of the doctor, there was no injury on
the body of the prosecutrix Anita. There was no sign of
semen on the private part of the body. Neither her
clothes were torn nor there was any presence of hair of
the accused on the private part of the prosecutrix. The
doctor after examining the prosecutrix deposed that the
girl was habituated to sexual intercourse. In view of
this evidence, we are of the opinion that the High Court
as well as the trial court has not correctly appreciated
the evidence and has wrongly convicted the appellant-
accused. The accused who has been charged
under Section 376 read with Section 511 IPC is entitled
to benefit of doubt.”

Such observation, however, made on consideration of the

medical and forensic report.

12. In Sham Singh versus The State of Haryana reported in

AIR 2018 SC 3976, the apex court has dwelled on a case of gang rape

under Section 376(2)(g) of the IPC, the pre-amended provision of

Section 376D of the IPC.

Page 9 of 25

In Sham Singh (supra), the apex court has disbelieved the

statement of the victim and one of the witnesses [PW-10] for the

reason that where the occurrence took place, that is the place where

the mother, children and sister of the accused persons were living. Such

a brutal offence of rape would not have been executed without

attracting the attention of anyone at that point of time and thus, it

appeared to the apex court that the prosecution version turned

seriously improbable and accordingly, the conviction was reversed by

acquitting the accused from the charge of gang rape.

13. In respect of examination of the accused under Sectionsection 313

of the Cr.P.C., a decision of this court in State of Tripura versus

Rashida Tripura Others [judgment dated 01.08.2017 delivered in

Death Sentence Reference No.01 of 2015] has been referred, where this

court had occasion to observe as follows :

“20. Section 313 of the Cr.P.C. embodies fundamental
principle of audi alteram partem. As stated, the
provisions of this section are mandatory and cast a duty
on the court to afford opportunity to the accused to
explain the incriminating material against him.
Therefore, the examination under Section 313 of the
Cr.P.C. is not an empty formality. It prescribes a
procedural safeguard for a person facing the trial to be
granted an opportunity to explain the facts and
circumstances appearing against him in the evidence
led by the prosecution. That safeguard cannot be
negated or compromised. Such examination can be
carried out by a Magistrate or a trial Judge at any stage
and this examination is in addition to the cross-
examination. The words appearing in subsection(1) of
Section 313 of the Cr.P.C. „to explain any circumstances
appearing in the evidence against him‟ is of paramount
importance. The accused facing the trial is entitled to be
asked about every piece of evidence which appears
incriminating and to respond in the way the accused
might consider to be made. However, it is open to the
accused whether he would avail the opportunity for
offering his explanation or he would not. But the
incriminating materials which are not put to the accused
for his response cannot be relied by the court for
conviction or any adverse observation. It is also well
settled that the accused person cannot be examined
together or collectively. It is imperative that each and
every question must be put to the accused separately
and their answers shall be recorded also separately.

Recording of the statement of the accused persons
simultaneously and putting same questions to all the
accused might cause prejudice to the accused. Hence it
Page 10 of 25

is not proper at all. Thus, the alluring convenience for
forming of common set of questions has to be avoided
in order to obviate probability of taking any undue
advantage by the prosecution.

21. The duty of the court while examining the accused
under Section 313 of the Cr.P.C. is not to put him the
entire evidence on record. The duty is to put specific
circumstances of incriminating nature upon which the
prosecution relies and which appears from the evidence
on record. The specificity must be in regard to the
circumstances appearing against the accused. The court
cannot absolve itself of its duty by putting general
questions without specifying the incriminating
circumstances. The Judges and Magistrates must realise
the importance of examination under this section. Each
and every incriminating circumstance revealed from
evidence must be put to the accused separately. Even if,
allegations are common, each accused shall be given
opportunity separately. The entire statement of the
witnesses are not to be put to the accused during their
examination under Section 313 of the Cr.P.C., only
material fact or details are to be put. Mere putting
questions to the accused that whether he has heard the
prosecution evidence and what he has to say would be
no compliance of Section 313 of the Cr.P.C. The
accused‟s attention should separately be drawn to every
inculpatory material so as to enable him explain it. This
is the fundamental attribute of fairness in the criminal
trial and failure in it may gravely imperil the validity of
the trial itself, if consequential miscarriage of justice
has flowed. However, where such an omission has
occurred, it does not ipso facto vitiate the proceeding.
„Prejudice‟ occasioned by such defect must be
established by the accused. In the event of any material
not being put to the accused, the court must ordinarily
eschew such material from consideration.

22. As stated, even the appellate court can call the
accused to extend the explanation on the material by
which he might have pleaded the prejudice and may
make cure the defect without throwing out the entire
prosecution case. The fundamental method of
examination is very simple i.e. to put materials simply
and separately. It is not sufficient compliance to string
together a long series of facts and ask what he has to
say about them. That is what we have witnessed in this
case. The accused shall be questioned separately about
each material circumstance which is intended to be
used against him. The questioning must be fair and
must be couched in a form which an ignorant or
illiterate person will be able to appreciate and
understand. Even when an accused person is not
illiterate, his mind is apt to be perturbed when he is
facing a charge of murder. He is therefore in no fit
position to understand the significance of a complex
question. Fairness therefore requires that each material
circumstance should be put simply and separately in a
way that an illiterate can readily appreciate and
understand. It is always better and safer in the
interests of better administration of criminal justice that
each and every circumstance emerging from the record
against the accused is put to him. Justice requires that
questions are put in a manner and style and form so as
to be easily comprehensible to the accused. It is better
if each question contains one circumstance only and not
Page 11 of 25

a combination of several circumstances, in order to
provide to the accused proper and adequate opportunity
to explain the circumstances against him. It is to be fair
and just that the circumstances are properly put to him
in the first place. That will not only help the accused but
also help the appellate court in correctly appreciating
the materials brought in the record. Where two material
questions are put to the accused person in a combined
and interpreted form those definitely will not conform to
the requirement of Section 313 of the Cr.P.C.”

14. In order to repel the submission made by Mr. Datta, learned

counsel appearing for the appellants, Mr. A. Roy Barman, learned Addl.

P.P. appearing for the state has submitted that the limited reading of

the evidence is to be averted and a complete reading or appreciation of

the evidence in totality would only unfold the prosecution case.

According to Mr. Roy Barman, learned Addl. P.P., PWs 2 and 3 are the

parents of the victim and they have corroborated what they had heard

from the victim [PW-1] and there is no incongruity. That apart, even

though, the victim was medically examined and some biological

elements and clothes of the victim were forensically examined but the

medical examination report was not introduced and the Forensic

Examination Report has not been supporting the prosecution case, in

any manner, but that cannot by itself made the statement of the victim

untrustworthy. That apart, the delay in lodging the complaint has been

explained. In addition to the said explanation, PW-3, the father of the

victim has categorically stated that as the matter was interfered by the

local “Choudhury” (the community head)”, the informant [PW-3] was

late in lodging the complaint [Exbt.2].

15. Mr. Roy Barman, learned Addl. P.P., in his rebuttal has

submitted that the statement made by the victim under Section 164(5)

of the Cr.P.C. is early disclosure of the occurrence which stands in tune

with the statement made in the trial. That apart, the appellants in

presence of the witnesses identified the place of occurrence and that
Page 12 of 25

can be treated as the fact, discovered in terms of Section 27 of Indian

Evidence Act. But Mr. Roy Barman, learned Addl. P.P. has submitted

that there is no reason to dis-believe the prosecutrix, inasmuch as, no

persuasive evidence has been placed on record that she had any reason

to lie against the appellants. In this regard, Mr. Roy Barman, learned

Addl. P.P. has relied heavily on the proposition as laid down by the apex

court in State of Punjab versus Gurmit Singh and Others reported

in (1996) 2 SCC 384 where the apex court has unambiguously laid

down the principle in respect of how to appreciate the evidence of the

prosecutrix. The relevant passage is reproduced hereunder :

“8. The grounds on which the trial court disbelieved the
version of the prosecutrix are not at all sound. The
findings recorded by the trial court rebel against realism
and lose their sanctity and credibility. The court lost
sight of the fact that the prosecutrix is a village girl. She
was a student of Xth Class. It was wholly irrelevant and
immaterial whether she was ignorant of the difference
between a Fiat, an Ambassador or a Master car. Again,
the statement of the prosecutrix at the trial that she did
not remember the colour of the car, though she had
given the colour of the car in the FIR was of no material
effect on the reliability of her testimony. No fault could
also be found with the prosecution version on the
ground that the prosecutrix had not raised an alarm
while being abducted. The prosecutrix in her statement
categorically asserted that as soon as she was pushed
inside the car she was threatened by the accused to
keep quiet and not to raise any alarm otherwise she
would be killed. Under these circumstances to discredit
the prosecutrix for not raising an alarm while the car
was passing through the Bus Adda is traverisity of
justice. The court over-looked the situation in which a
poor helpless minor girl had found herself in the
company of three desperate young men who were
threatening her and preventing her from raising any
alram. Again, if the investigating officer did not conduct
the investigation properly or was negligent in not being
able to trace out the driver or the car, how car that
become a ground to discredit the testimony of the
prosecutrix? The prosecutrix had no control over the
investigating agency and the negligence of an
investigating officer could not affect the credibility of
the statement of the prosecutrix. Trial Court fell in error
for discrediting the testimony of the prosecutrix on that
account. In our opinion, there was no delay in the
lodging of the FIR either and if at all there was some
delay, the same has not only been properly explained by
the prosecution but in the facts and circumstances of
the case was also natural. The courts cannot over-look
the fact that in sexual offences 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
Page 13 of 25

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. The prosecution has explained that as soon as
Trilok Singh PW6, father of the prosecutrix came to
know from his wife, PW7 about the incident he went to
the village sarpanch and complained to him. The
sarpanch of the village also got in touch with the
sarpanch of village Pakhowal, where in the tube well
kotha of Ranjit Singh rape was committed, and an effort
was made by the panchayats of the two villages to sit
together and settle the matter. It was only when the
Panchayats failed to provide any relief or render any
justice to the prosecutrix, that she and her family
decided to report the matter to the police and before
doing that naturally the father and mother of the
prosecutrix discussed whether or not to lodge a report
with the police in view of the repercussions it might
have o n the reputation and future prospects of the
marriage etc. of their daughter. Trilok Singh PW6
truthfully admitted that he entered into consultation
with his wife as to whether to lodge a report or not and
the trial court appears to have misunderstood the
reasons and justification for the consultation between
Trilok Singh and his wife when it found that the said
circumstance had rendered the version of the
prosecutrix doubtful. Her statement about the manner
in which she was abducted and again left near the
school in the early hours of next morning has a ring of
truth. It appears that the trial court searched for
contradictions and variations in the statement of the
prosecutrix microscopically, so as to disbelieve her
version. The observations of the trial court that the
story of the prosecutrix that she was left near the
examination center next morning at about 6 a.m. was
“not believable” as `the accused would be the last
persons to extend sympathy to the prosecutrix” are not
at all intelligible. The accused were not showing “any
sympathy” to the prosecutrix while driving her at 6.00
a.m. next morning to the place from where she had
been addicted but on the other hand were removing her
from the kotha of Ranjit Singh and leaving her near the
examination center so as to avoid being detected. The
criticism by the trial court of the evidence of the
prosecutrix as to why she did not complain to the lady
teachers or to other girl students when she appeared
for the examination at the center and waited till she
went home and narrated the occurrence to her mother
is unjustified. The conduct of the prosecutrix in this
regard appears to us to be most natural. The trial court
over-looked that a girl, in a tradition bound non-

permissive society in India, would be extremely
reluctant even to admit that any incident which is likely
to reflect upon her chastity had occurred, being
conscious of the danger of being ostracized by the
society or being looked down by the society. Her not
informing the teachers or her friends at the examination
centre under the circumstances cannot detract from her
reliability. In the normal course of human conduct, this
unmarried minor girl, would not like to give publicity to
the traumatic experience she had undergone and would
feel terribly embarrassed in relation to the incident to
narrate it to her teachers and others over-powered by a
feeling of shame and her natural inclination would be to
avoid talking about it to any one, lest the family name
Page 14 of 25

and honour is brought into controversy. Therefore her
informing to her mother only on return to the parental
house and no one else at the examination center prior
thereto is an accord with the natural human conduct of
a female. The courts must, while evaluating evidence,
remain alive to the fact that in a case of rape, no self-
respecting woman would come forward in a court just
to make a humiliating statement against her honour
such as is involved in the commission of rape on her. In
cases involving sexual molestation, supposed
considerations which have no material effect on the
veracity of the prosecution case or even discrepancies
in the statement of the prosecutrix should not, unless
the discrepancies are such which are of fatal nature, be
allowed to throw out an otherwise reliable prosecution
case. The inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are
factors which the Courts should not over-look. The
testimony of the victim in such cases is vital and unless
there are compelling reasons which necessitate looking
for corroboration of her statement, the courts should
find no difficulty to act on the testimony of a victim of
sexual assault alone to convict an accused where her
testimony inspires confidence and is found to be
reliable. Seeking corroboration of her statement before
relying upon the same, as a rule, in such cases amounts
to adding insult to injury. Why should the evidence of a
girl of a woman who complains of rape or sexual
molestation, be viewed with doubt, disbelief or
suspicion? The Court while appreciating the evidence of
a prosecutrix may look for some assurance of her
statement to satisfy its judicial conscience, since she is
a witness who is interested in the outcome of the
charge levelled by her, but there is no requirement of
law to insist upon corroboration of her statement to
base conviction of an accused. The evidence of a victim
of sexual assault stands almost at par with the evidence
of an injured witness and to an extent is even more
reliable. Just as a witness who has sustained some
injury in the occurrence, which is not found to be self
inflicted, is considered to be a good witness in the sense
that he is least likely to shield the real culprit, the
evidence of a victim of a sexual offence is entitled to
great weight, absence of corroboration notwithstanding.
Corroborative evidence is not an imperative component
of judicial credence in every case of rape. Corroboration
as a condition for judicial reliance on the testimony of
the prosecutrix is not a requirement of law but a
guidance of prudence under given circumstances. It
must not be over-looked that a woman or a girl
subjected to sexual assault is not an accomplice to the
crime but is a victim of another persons’s lust and it is
improper and undesirable to test her evidence with a
certain amount of suspicion, treating her as if she were
an accomplice. Inferences have to be drawn from a
given set of facts and circumstances with realistic
diversity and not dead uniformity lest that type of
rigidity in the shape of rule of law is introduced through
a new form of testimonial tyranny making justice a
casualty. Courts cannot cling to a fossil formula and
insist upon corroboration even if, taken as a whole, the
case spoken of by the victim of sex crime strikes the
judicial mind as probable. In State of Maharashtra vs
Chandraprakash Kewalchand Jain : (1990 (1) SCC
Page 15 of 25

550) Ahmadi, J. (as the Lord Chief Justice then was)
speaking for the Bench summarised the position in the
following words: (SCC p. 559, para 16)

“A prosecutrix of a sex offence cannot be put
on par with an accomplice. She is in fact a
victim of the crime. SectionThe Evidence Act nowhere
says that her evidence cannot be accepted
unless it is corroborated in material
particulars. She is undoubtedly a competent
witness under Section 118 and her evidence
must receive the same weight as is attached
to an injured in cases of physical violence. The
same degree of care and caution must attach
in the evaluation of her evidence as in the
case of an injured complainant or witness and
no more. What is necessary is that the court
must be alive to and conscious of the fact that
it is dealing with the evidence of a person
who is interested in the outcome of the
charge levelled by her. If the court keeps this
in mind and feels satisfied that it can act on
the evidence of the prosecutrix, there is no
rule of law or practice incorporated in
the SectionEvidence Act similar to illustration

(b) to Section 114 which requires it to look
for corroboration. If for some reason the
court is hesitant to place implicit reliance on
the testimony of the prosecurtix it may look
for evidence which may lend assurance to her
testimony short of corroboration required in
the case of an accomplice. The nature of
evidence required to lend assurance to the
testimony of the prosecutrix must necessarily
depend on the facts and circumstances of
each case. But if a prosecutrix is an adult and
of full understanding the court is entitled to
base a conviction of her evidence unless the
same is shown to be infirm and not
trustworthy. If the totality of the
circumstances appearing on the record of the
case disclose that the prosecutrix does not
have a strong motive to falsely involve the
person charged, the court should ordinarily
have no hesitation in accepting her evidence.”

[Emphasis added]

16. Mr. Roy Barman, learned Addl. P.P. has reiterated that a girl

in a tradition-bound and non-permissive society would extremely be

reluctant, even to admit that any incident which is likely reflect upon

her chastity has occurred being conscious of probability of being

ostracized by the society or being look down upon by the society. Thus,

Mr. Roy Barman, learned Addl. P.P. has contended that the trial court

has rightly believed the prosecutrix and there is no reason to discard

the evidence on the minor discrepancy, inasmuch as, it has clearly
Page 16 of 25

emerged from the statement that the victim was forcibly restrained,

pulled inside the jungle and subjected to sexual intercourse without her

consent and against her will. In this fact situation, the question of age

of the prosecutrix would pale into insignificance.

17. For appreciation of the submissions advanced by the

counsel for the parties, it would be apposite to survey the evidence as

recorded in the trial meaningfully.

18. PW-1 [the name is withheld for protecting her identity] is

the victim and was tested in terms of Section 118 of the Indian

Evidence Act by the trial court, having considered her as the witness of

tender age. On the day of recording her deposition, she was twelve

years of age and she was a student of Class-V when the occurrence

took place i.e. 18.09.2014 whereas her statement was recorded on

02.04.2015. The victim [somewhere referred as the prosecutrix] being

PW-1 has stated in the trial that one day at about 4 p.m. after coming

from the school she started for the house of her grandfather and on the

way, Mangal Debbarma and Falakathar Debbarma dragged her to a

jungle and raped her one by one removing her under garment. Her

mouth was gagged and for that reason, she could not raise alarm.

There were no huts nearby the place of occurrence. From that place,

the house of her grandfather is ten minutes away on foot. She has

categorically stated that Mangal Debbarma, the appellant No.1 raped

her first and thereafter Falakathar Debbarma, the appellant No.2 raped

her. She returned home and narrated the incident to her mother [PW-

2]. Her father was not at home at that time. Her mother informed her

father about the incidence. Her father [PW-3] approached the local

“Choudhury” for justice. A salish was organized. PW-1 has stated about

the occurrence in that salish but the appellants who were present in
Page 17 of 25

that salish denied the allegation. In that circumstances, the

“Choudhury” advised to lodge the complaint and thereafter, her father

lodged the complaint [Exbt.1]. She was taken to a doctor at Kulai

Hospital and produced before the Magistrate at Kamalpur. She identified

her statement made before the Magistrate [Exbt.1 series]. She had

identified the appellants in the trial. In the cross-examination, she has

admitted that the appellants were from a different village but just

adjacent to their village. She has denied the suggestion that there was

no incident of rape committed by the appellants.

19. PW-2, Buddhini Debbarma being the mother of the victim

has stated in the trial that her daughter on 18.09.2014 in the afternoon

at 4 p.m., coming from the school went out of the home. After a while,

she returned and she found her battered. She told her that while she

had been going to the house of her grandfather, Falakathar Debbarma

and Mangal Debbarma dragged her to a jungle and raped her. When her

husband returned home in the evening, she had reported him the said

incident. Her husband approached the local “Choudhury”. After 3/4

days, a salish was held. The appellants denied the act and then the

“Choudhury” advised them to lodge the case. She has categorically

stated that the appellants are known to them as they are the resident of

adjacent village, Chandrakanta Para. She identified them. She has

categorically stated in the trial as under :

“My daughter was 11 years old at the time of
the incident. She denied the suggestion made
contrary to what she had stated in the
examination-in-chief.”

The age of the victim as stated by PW-2 has not been

confronted by the defence.

20. PW-3, Sunil Debbarma being the father of the victim has

stated that on 18.09.2014 after coming from the school, his daughter
Page 18 of 25

took out a journey to reach his father‟s house. On the way, Mangal

Debbarma and Falakathar Debbarma dragged her in a nearby jungle

and raped her one by one by removing her garments. She returned

home and narrated the incident to her mother. When he returned home

at 9 p.m. his wife [PW-2] informed him about the incident. On the

following day, he had approached the local “Choudhury” for justice. The

“Choudhury” arranged the salish on 24.09.2014 but in the salish, the

appellants denied the act. Consequent thereupon, he filed the complaint

[Exbt.2] for taking action against the appellants. He has also stated that

at the time of occurrence, his daughter was 11-12 years old.

In the cross-examination, he has denied that his daughter

did not know the appellants for their not being from their village. He has

denied all other suggestions made to discredit his statements made in

the examination-in-chief.

21. PW-4, Debu Rani Debbarma is the witness of discovery of

the place by the appellant No.1, [Mangal Debbarma]. In his presence,

the appellant No.1 pointed out the place where the incident took place.

He had identified his signature on the memorandum of pointing out

[Exbt.3]. The appellant No.2, [Falakathar Debbarma] also identified the

place and the disclosure statement [Exbt.4] was identified by PW-4. In

the cross-examination, he has stated that the appellants were not

known to him prior to that day i.e. 25.09.2014.

22. PW-5, Swapna Debbarma is also another witness of such

discovery and she had identified her signature on the memorandum of

pointing out and the disclosure statement [Exbts.3, 4, 5 6]. She has

denied the suggestion that the appellants did not identify any place.

23. PW-6, Ranjan Debbarma has stated that PW-3 on

24.09.2014 stated him that the appellants raped his daughter in a
Page 19 of 25

jungle. He has further stated that in the salish, the appellants denied

the said allegation. He was examined by the Magistrate at Kamalpur

and he has identified his statement [Exbt.7 series] as recorded by the

Magistrate.

In the cross-examination, nothing could be elicited from

him.

24. PW-7, Biprajit Debbarma was also informed by PW-3, his

co-villager that his daughter was raped by Mangal and Falakathar of

their locality. But he has made a very „strange‟ statement that at the

salish, initially, the appellants denied the allegations but when it was

decided to inform the police, they admitted their guilt. He was also

examined under Section 164(5) of the Cr.P.C. The said statement,

[Exbt.8] has been admitted in the evidence. The defence could not elicit

any statement which might support their case.

25. PW-8, Annabahadur Debbarma has stated that PW-3

informed him on 24.09.2014 that Mangal Debbarma and Falakathar

Debbarma of their locality raped the daughter of PW-3. They arranged

the meeting. In that meeting, Mangal and Falakathar initially denied the

charge, but ultimately admitted to have committed rape on the victim.

This statement has not been confronted by the defence in the cross-

examination.

26. PW-9, Aruna Rani Kalai had simply stated in the trial that

she was informed by PW-2 that Mangal and Falakathar raped her

daughter. Those persons were known to her and she identified them in

the trial.

27. PW-10, Rabikanya Debbarma has stated in the trial that

PW-3 informed her that his daughter [referred by name] was raped by
Page 20 of 25

Mangal and Falakathar in a jungle. In the cross-examination nothing

could be elicited from her.

28. PW-11, Akshirai Debbarma has stated that on 18.09.2014

PW-3 had informed him that his daughter was raped by Falakathar and

Mangal. A salish was arranged in the house of Arun Debbarma but

Falakathar and Mangal did not confess their guilt and as such, the police

was informed. He identified the appellants in the trial.

29. PW-12, Durjoy Reang has produced the pupilage certificate

[Exbt.9] which was issued on 26.09.2014 by him being the Head-

master of Haripada Debbarma Para J.B. School where the victim was

studying from Class-I to Class-V. He has stated that her date of birth is

recorded as 10.01.2002. There was no cross-examination by the

defence.

30. PW-13, Sabyasachi Nath who was posted as the Scientific

Officer in SFSL on 27.09.2014 has made the following statement in the

trial :

“On that date our office received one sealed parcel
containing two exhibits in connection with ABS PS Case
No.48/14 being forwarded by SDPO Ambassa. The
exhibits parcel was endorsed to me by the Director for
examination and opinion. On examination of the said
exhibits no semen or seminal stain or spermatozoa of
human origin could be detected in the exhibits marked
as B,C,E,F,H,I, M,N,P,U and V. No opinion could be given
regarding presence of any foreign hair in the exhibits
marked as Exbt.C,I and U. This is the said report
prepared by me bearing my signature. On identification
marked as Exbt.10.”

For obvious reason, PW-13 was not cross examined by the

defence.

31. PW-14, Kirtijoy Reang was the Officer in charge of Ambassa

police station on 24.09.2014 . On that day, he had received the

complaint [Exbt.2] from PW-3 and registered the police case being ABS
Page 21 of 25

P.S. Case No.48/14. He had filled up the FIR form [Exbt.11] duly. He

was also not cross-examined.

32. PW-15, Mukta Ghosh a woman sub-inspector who was

posted on 24.09.2014 at Ambassa Police Station. She was endorsed the

case for investigation. On that very day, she had arranged for the

medical examination of the victim at Kulai District Hospital. Thereafter,

she had stated in the trial as follows :

“The doctor opined that the hymen of the girl was
ruptured and there were indications that she was
subjected to sexual intercourse. I also arrested the two
FIR named accused namely Mangal Debbarma and
Falakathar Debbarma of Charankanta Para and arranged
for their medical examination. The doctor opined that
both of them are capable of sexual intercourse under
normal circumstances.”

She identified in the trial, the seizure list [Exbts.12,13,14

15] by which she had seized the body fluids of the accused and wearing

apparels of the victim. She had sent the samples and seized materials

for forensic examination to the SFSL for their opinion. After completion

of the investigation, she was satisfied that a case under Section 376D of

the IPC and under Section 6 of the POCSO Act was well made out and

hence, she filed the final report. Since, the defence did not make any

reference to the age while cross examining the witnesses, including the

victim, it is not called upon to refer the content of those statements.

Moreover, their statements as referred in their depositions were not

contested.

33. From inspection of the pupilage certificate [Exbt.9] it has

surfaced that the date of birth of the victim is recorded in the admission

register as 10.01.2002. It further appears from [Exbt.14] that some

irrelevant pages unrelated to the victim have been admitted in the

evidence.

Page 22 of 25

34. Having scrutinized the testimony of PW-1 [the victim] this

court finds that her testimony is wholly reliable [see State of

Rajasthan versus Babu Meena :2013 4 SCC 206].

35. In view of the proposition of law as laid down in Ravindra

versus State of M.P. reported in (2015) 4 SCC 491 this court is of

the view that the oral testimony of PW-1 is sufficient to convict the

offenders as made by her and for that, no further corroboration is

required. It conforms to the standard as laid in Miller versus Minister

of Pensions reported in (1947)2 ALL ER 272. In Miller (supra), it

has been observed by Lord Denning as under :

“That degree is well settled. It need not reach certainty,
but it must carry a high degree of probability. Proof
beyond reasonable doubt does not mean proof beyond a
shadow of a doubt. The law would fail to protect the
community if it permitted fanciful possibilities to deflect
the course of justice. If the evidence is so strong
against a man as to leave only a remote possibility in
his favour which can be dismissed with sentence „of
course‟, it is possible but not in the least probable,‟ the
case is proved beyond reasonable doubt.”

True it is that under our existing jurisprudence in a
criminal matter, we have to proceed with presumption
of innocence, but at the same time, that presumption is
to be judged on the basis of conceptions of a reasonable
prudent man. Smelling doubts for the sake of giving
benefit of doubt is not the law of the land.”

36. In Sucha Singh and Another versus State of Punjab

reported in (2003) 7 SCC 643 as referred by the trial court, the apex

court has further evolved the principle by observing as under :

“20. Exaggerated devotion to the rule of benefit of
doubt must not nurture fanciful doubts or lingering
suspicion and thereby destroy social defence. Justice
cannot be made sterile on the plea that it is better to let
hundred guilty escape than punish an innocent. Letting
guilty escape is not doing justice according to law. (see
SectionGurbachan Singh v. Satpal Singh AIR 1990 SC 209).
Prosecution is not required to meet any and every
hypothesis put forward by the accused. (see SectionState of
U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840). A
reasonable doubt is not an imaginary, trivial or merely
possible doubt, but a fair doubt based upon reason and
common sense. It must grow out of the evidence in the
case. If a case is proved perfectly, it is argued that it is
artificial; if a case has some flaws inevitable because
human beings are prone to err, it is argued that it is too
imperfect. One wonders whether in the meticulous
hypersensitivity to eliminate a rare innocent from being
Page 23 of 25

punished, many guilty persons must be allowed to
escape. Proof beyond reasonable doubt is a guideline,
not a fetish.”

37. No fair doubt based on reason and common sense has

grown out of the evidence in the case in hand. Moreover, the post

occurrence conduct of the victim is so natural that it has consolidated

the genuineness of her version. The prosecution, however, has shown

its abject failure in admitting the medical examination report as

prepared by doctor Puspita Debbarma, the Medical Officer, Dhalai

District Hospital, Dhalai [see Exbt.14 and the testimony of PW-15]. It is

shocking, the way the prosecution was carried out in a case of gang

rape. Even the investigation has been trivialized when the appellants

were led to discover the place of occurrence on the basis of their

disclosure and when in presence of the witnesses, the said place was

located by them. When the victim was alive to show the place of

occurrence to the investigating officer, the discovery of the fact in

respect of the place of occurrence cannot come under the province of

Section 27 of Indian Evidence Act.

38. Mr. Datta, learned counsel appearing for the appellants has

referred the proposition of law as laid down in Alamelu(supra). In

Alamelu (supra) it has been observed that mere production and

marking of a document cannot be held to be a due proof of his

contents. Its execution has to be proved by admissible evidence, i.e. by

the evidence of those persons who can vouchsafe for truth of the fact in

issue. In that case, no evidence of that kind was produced. But in the

present case, the parents of the victim [PWs- 2 3] have categorically

stated in the trial that at the time of incident, their daughter was 11/12

years of age. That statement was not even confronted by the defence in

the cross-examination.

Page 24 of 25

Since, the parents have vouchsafed the age of the victim

which is corroborative of the entry in respect of the date of birth, in the

pupilage certificate [Exbt.9] the said date of birth can be accepted as

the date of birth of the victim. Hence, the victim was a child within the

meaning of the POCSO Act and below the consenting age.

39. So far the identification of the appellants are concerned,

unwaveringly, the victim has identified them. Not only the victim, other

witnesses from the victim‟s village have identified the appellants. It is

not strange that the boys from the neighbouring village, where the

villages are small in size and in the close vicinity, would be known to a

girl of the next village. The plea that has been raised is that the

explanation in respect of the delay in filing the complaint should not be

accepted by the court. True it is that the “Choudhury” [Arun Debbarma]

has not been examined in the trial but the other witnesses who were

present in the salish have clearly stated of holding of the salish and its

failure. Thus, the delay in lodging the complaint, according to the court,

is well explained and that cannot be used against the prosecution case

in any manner.

40. So far the forensic report is concerned, this court is of the

clear view that both PW-1[the victim] and her mother [PW-2] have

clearly stated that the undergarment of the victim was removed before

doing the forceful intercourse. Thus, absence of seminal stain in those

clothes is quite natural. Absence of spermatozoa in the vaginal swab

after such long delay cannot indicate to the falsity of allegation.

41. What Mr. Datta, learned counsel has contended in respect of

the manner of examination under Section 313 of the Cr.P.C., even

though, this court is in full agreement, but having due regard to the

question and answer, particularly, in respect of the question No.15
Page 25 of 25

which has been framed on the testimony of PW-15, this court does not

find any prejudice occurred to the appellants, inasmuch as, the

testimony of PW-15 is in respect of method of investigation only.

42. Having observed thus, we do not find any merit in this

appeal and accordingly, the same is dismissed.

Send down the LCRs forthwith.

JUDGE JUDGE

Sabyasachi B

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