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Shri Bimal Acharjee vs State Of Tripura on 4 September, 2019

HIGH COURT OF TRIPURA
AGARTALA

Crl. A (J) 10 of 2014

Shri Bimal Acharjee,
S/o Late Dhirendra Acharjee of
Durganagar, P.S. Khowai,
District: West Tripura.
—-Appellant(s)
Versus

State of Tripura
—-Respondent(s)

For Appellant(s) : Mr. S Sarkar, Adv.
For Respondent(s) : Mr. A Roy Barman, Addl. PP.
Date of hearing : 21.06.2018.
Date of pronouncement :
Whether fit for reporting : YES/NO

HON’BLE MR. JUSTICE ARINDAM LODH

Judgment

Unsuccessful appellant has approached this Court against

the judgment dated 29.01.2014 passed by the leaned Addl.

Sessions Judge, Khowai, West Tripura in connection with

Sessions Trial No. 02(WT/K) of 2011 thereby convicting the

appellant to suffer RI for seven years and to pay a fine of

Rs.3,000/-, i.d. to suffer SI for three months for commission of

offence punishable under Section 376(1) of IPC and to suffer RI

for one year and to pay fine of Rs.1,000/-, i.d. to suffer SI for

one month for commission of offence punishable under Section

354 IPC. Both the sentences were ordered to run concurrently.

Further, the appellant was sentenced to suffer RI for six months

and to pay a fine of Rs.500/- i.d. to suffer SI for 15 days for
Page 2 of 32

commission of offence punishable under Section 451 of IPC,

which shall run consecutively to the aforesaid sentences.

2. Gravamen of the prosecution case is that on 25th

July, 2009, one Smt. Purnima Ghosh lodged a written

complaint/ejahar stating inter alia, that on 23rd July, 2009, she

being a group-D employee under the Khowai Block was engaged

in her duty for counting of votes of panchayet election. During

the relevant period, she was a tenant in the house of one Smt.

Puspa Ghosh at Office Tilla. On that date, before she left her

house she requested the landlady to take care of her child and

sleep with her children if she failed to return from duty at night.

Accordingly, the landlady spent the night with the children,

including the prosecutrix.

3. On 24.07.2009 at 6 a.m. the complainant returned

home and her daughter-prosecutrix (name withheld) reported

that at dead of night accused Bimal Acharjee banged the door

and the landlady who was sleeping with the prosecutrix opened

the door and allowed the accused to enter in to the room since

he was known to her. Then accused Bimal Acharjee requested

the landlady to go to her own hut and as per the instructions of

the mother of the prosecutrix, the said accused would sleep with

her daughter and then the landlady returned to her own hut and

Bimal locked the door.

Page 3 of 32

4. The accused first put off the light and on protest the

accused again put the lights on. Thereafter, the accused Bimal

Acharjee forcibly molested her daughter by kissing and touching

her breasts and raped her and thereafter he put something fluid

material from his penis in a sack. After committing the incident

the accused Bimal Acharjee talked with somebody on high

volume through his mobile and then he left. Again the land lady

entered into the house and then the prosecutrix narrated the

entire incident to the landlady. Thereafter, the landlady stayed

there for the night and at dawn she went to her own hut.

5. When the mother of the prosecutrix came back to her

hut, the land lady narrated the entire incident to the

complainant when she became puzzled but the landlady asked

her to keep mum as that would damage the reputation of the

house of the landlady. At about 9.00 a.m. the landlady left for

Agartala due to some reason best known to her.

6. The complainant, being the mother, examined the

body of her daughter and seeing everything she became puzzled

and she went to the BDO, Khowai and informed the incident in

detail. She also informed the said fact to the local MLA. In the

complaint, she also informed that the accused Bimal Acharjee is

a class-III employee of her office. After the incident, she first

saw the accused in the room of the BDO, Khowai on call by the

BDO.

Page 4 of 32

7. Thereafter, she went to the house of her brother-in-

law and with him she went to the Bar Library, Khowai and got

the ejahar written through an advocate-clerk and she lodged the

ejahar before the Officer-in-Charge of the Khowai Police Station.

8. Upon receipt of the ejahar on 25.07.2009, the

Officer-in-charge registered a case vide Khowai P.S. Case no.

64/2009 under Sections 376 of the IPC and entrusted the

investigation to Shyamal Debbarma, Sub-Inspector but

subsequently, the Officer-in-Charge of the Khowai P.S. Sri

Rangadulal Debbarma himself took up the task of investigation

on transfer of the former IO.

9. On completion of investigation, police submitted

charge sheet and the learned SDJM, Khowai, West Tripura took

cognizance of the offence under Section 376 IPC against the

appellant. The case was committed to the learned Addl.

Sessions Judge, Khowai, West Tripura for trial. The following

charges under Section 451/354/376 IPC were framed against

the appellant to which he pleaded not guilty and claimed to be

tried.

“C H A R G E
I, Sri Udit Choudhuri, Addl. Sessions Judge, Khowai, West Tripura, do
hereby charge you namely,
Sri Bimal Acharjee
as follows:-

Firstly, that, on 24.07.2009 Thursday, before dawn, at about 3 am in
the rented hut of the informant Smt. Purnima Das situated in the house
of one Sri Sunil Ch. Ghosh, of Office Tilla, Khowai, you committed house
trespass in the hut of the informant and remained there unlawfully for
the purpose of committing an offence punishable with imprisonment and
as such you have committed an offence punishable under Section 451 of
the Indian Penal Code and within my cognizance.

Page 5 of 32

Secondly, that, on the aforesaid date and time in the rented house of
the informant as mentioned above, you used criminal force to Smt.
Sushmita Ghosh, minor daughter of the informant, aged about 12 years,
intending to outrage her modesty or knowing it to be likely that you
thereby outraged her modesty and thereby committed an offence
punishable under Section 354 of the Indian Penal Code and within my
cognizance.

Thirdly, that, on the aforesaid date and time in the rented house of
the informant as mentioned above, you committed rape on Smt.
Sushmita Ghosh, minor daughter of the informant, aged about 12 years,
and thereby committed an offence punishable under Section 376(1) of
the Indian Penal Code and within my cognizance.
AND I hereby direct that you be tried on the said charges.”

10. As many as 11 witnesses have been examined to

prove the prosecution case. Some documents also have been

exhibited. After examination of the prosecution witnesses the

appellant was examined under Section 313 CrPC and hearing

the arguments of both sides, learned Addl. Sessions Judge,

Khowai, West Tripura passed the judgment of conviction and

sentence on 29.01.2014 convicting the appellant as afore-

stated.

11. The most vital witness is the prosecutrix herself who

has been examined as PW-2. She has deposed during the cross-

examination on trial that the incident took place in the

intervening night of 23rd /24th July, 2009 when she and her

brother (Biplab Ghosh) were sleeping along with their land lady,

Pushpa Rani Ghosh, who she used to called as ‘thamma’

because her mother was busy in election duty. On the request

of her mother, Smt. Purnima Ghosh, the land lady Pushpa Rani

Ghosh slept with them as she might not return back from her

duty during night. She has stated in her deposition that her age

was 13 years and her brother Biplab Ghosh is younger than her
Page 6 of 32

by 3 years. She has stated that it would be about 2.30 to 3.00

am, the accused-appellant Bimal Acharjee to whom she used to

address as ‘mami’ knocked at the door calling her name,

requesting them to open the door. The land-lady, Smt. Pushpa

Rani Ghosh who was sleeping with her opened the door when

Bimal Acharjee entered and asked Pushpa Rani Ghosh to go to

her own hut informing that her mother had sent Bimal Acharjee

to take care of them. The accused-appellant is a colleague of

her mother and on earlier occasion also he visited their house.

As such, the accused-appellant was known to the prosecutrix.

After the land-lady being left their company, Bimal Acharjee

locked the door from inside and put off the light when she

became frightened and told Bimal Acharjee that she should go

to the room of the land lady and the accused-appellant should

sleep with her younger brother. After that, the accused-

appellant again put on the light. Her younger brother was in

deep sleep. Thereafter, Bimal Acharjee forcibly removed her

‘white coloured tapejama’ and ‘green coloured pant’ and the

accused-appellant also removed his pant and then he started to

kiss her and also put pressure on her breast. Thereafter, the

accused-appellant pushed his penis into her vagina forcibly. She

suffered pain and tried to cry out, but she failed as the accused-

appellant put pressure on her mouth. After sometime, the

accused removed his penis and then he put some white colour

material from his penis in a sack which was used by them as

foot-mattress. She has further stated that thereafter, the
Page 7 of 32

accused wore his pant and lighted a cigarette and he started to

speak with somebody in high sound through his mobile phone,

but at that time also she remained naked. Hearing the sound of

the accused, her younger brother woke up and then hurriedly

she put on her dress. Then, the accused-appellant open the

door and walked away. Immediately after departure of the

accused-appellant, Pushpa Rani Ghosh entered into her hut

when Pushpa Rani Ghosh disclosed the prosecutrix that she had

seen the incident which took place through a small hole of

bamboo wall of their hut. The prosecutrix also narrated the

entire incident to Pushpa Rani Ghosh and after that Pushpa Rani

Ghosh left her hut. The prosecutrix and her brother were inside

their own hut with electric bulb lighted on. At dawn, she simply

opened the window. She has further stated that her mother

returned back at about 6.00 am of 24th July, 2009 when the

prosecutrix narrated the entire incident to her mother. Pushpa

Rani Ghosh then called by her mother to take tea. Accordingly,

her mother went there who disclosed the above fact to her

mother. At about 8/9 am, Bimal Acharjee again visited their hut

and seeing him, her mother scolded him when he went away.

Thereafter, her uncle Ratan Ghosh came and she again narrated

the incident to him. Thereafter, her mother went to office and

informed the fact to the BDO who was her Officer. At about

11.00 am, police came and examined the prosecutrix and other

persons there. Thereafter, police had taken the prosecutrix to

Khowai police station and from there she was taken to Khowai
Page 8 of 32

hospital and the Medical Officer examined her and from there

she was taken to her hut. After two days of the incident, the

police took her to the court where the Judicial Magistrate

recorded her statement. During the course of trial, the

prosecutrix identified the accused in the dock. She has further

stated that police personnel had also taken away her ‘tape jama’

and the ‘pant’ which she was wearing at the relevant time and

the police also took one ‘tubelight and sack’ on which Bimal

Acharjee poured the white fluid from his penis. She also

identified her ‘green coloured pant’ which was marked as MO-1.

She has also identified the seized sack marked as MO-2. She

also has identified the seized tube light which is marked as MO

3. She has further stated that her seized ‘tape jama’ was absent

in the court when the court asked for malkhana register and

found receipt of the ‘tape jama’, but the court inspector could

not give any explanation regarding missing of the seized ‘tape

jama.

During cross-examination, the prosecutrix has denied

the questions put by the defence that in that intervening night

of 23/24th July, 2009 neither her mother was on night-duty nor

requested the land lady, Pushpa Rani Ghosh to sleep with her

and her brother. She has further denied the question that she

was not aged about 13 years at the time of trial and she has

falsely stated that in the intervening night of the incident

Pushpa Rani Ghosh stayed with her in the hut. She has also
Page 9 of 32

denied the suggestion that the accused-appellant had ever

entered into the room of the prosecutrix on that night. Her

attention was drawn to her statement recorded under Section

161 and 164 (5) of the Cr.P.C. when the prosecutrix has

admitted absence of such statement that after Pushpa Rani

Ghosh left for her hut the accused-appellant locked the door

from inside and put off the light. The attention of the witness

was also drawn to her statement that she became frightened

and requested the accused-appellant that she should go to the

hut of the land lady and he should sleep with her younger

brother. She has denied the suggestion that she stated those

facts falsely being tutored by her mother. On being drawn her

attention to her statement recorded under Section 161 and

164(5) Cr.P.C. the statement since she was frightened, the

accused-appellant put on the light again. Her further attention

was drawn to her statement before the Judicial Magistrate that

her mother requested the land-lady to sleep with her and her

brother at their hut as she would be late in arriving due to her

engagement in election duty. The prosecutrix admits the

absence of such statement. The statement of the prosecutrix

recorded before the Magistrate that on the date of the incident,

her mother was engaged at her office for election duty, is found

absent in her statement recorded under Section 164(5) Cr.P.C.

her attention was further drawn to her statement to the police

or to the Magistrate that the accused had forcibly removed her

‘tape jama’ when she admitted the absence of such statement
Page 10 of 32

recorded under Section 161 and 164(5) Cr.P.C.. The attention of

the prosecutrix was also drawn to her statement that the

accused-appellant had forcibly opened her pant and also opened

his pant and forcibly pushed his penis into her vagina and after

sometime he removed his penis and dropped some white fluid

into a sack which was used by them as foot-mattress, when she

admitted absence of such statement recorded under Section 161

and 164(5) Cr.P.C. The statement of the witness recorded under

Section 161 and 164(5) Cr.P.C, it was also found absent on her

attention being drawn to her statement which was made during

the course of trial that the accused-appellant lighted cigarette

and after sometime he started to talk by a mobile phone in high

sound when she remained naked and her younger brother woke

up and she hurriedly put on her pant and that her brother woke

up hearing the sound of the accused talking with other over

mobile phone.

I have perused the statement of the prosecutrix in her

cross-examination where her remaining statement in

examination-in-chief are found absent in her statement

recorded under Section 161 and 164(5) Cr.P.C.

During her cross-examination, the prosecutrix denied the

suggestion from the defence that the accused-appellant visited

their hut on 24.07.2009 at about 8/9 am to claim Rs. 50,000/-

which he made advance to her mother and only to evade the

liability of her mother to refund Rs. 50,000/-, the prosecutrix
Page 11 of 32

lodged a false complaint against the accused-appellant being

tutored by her mother. When her attention was drawn to her

statement made in her examination-in-chief that her uncle

visited their house when she narrated the incident to her uncle.

Such statement is found in her statement recorded under

Section 161 and 164(5) Cr.P.C. On being asked, the prosecutrix

has stated that on 24.07.2009 she did not attend the school,

though it was open. She has denied the suggestion that her

mother lodged a complaint when another boy tried to open her

pant before filing of the instant case.

At this stage, on perusal of the statement of the

prosecutrix (PW-2) recorded under Section 164(5) Cr.P.C., it is

revealed that the statement against which attention of PW-2

was drawn are found missing in her statement recorded under

Section 164(5) Cr.P.C.

12. PW-4, Smt. Purnima Ghosh, the mother of the

prosecutrix has deposed the similar fact as was deposed by her

daughter (PW-2). She has further deposed that she informed

the fact to Mr. Samir Deb Sarkar, MLA and also to the BDO. She

also went to Bar Library, Khowai and got an ejahar being

written through an Advocate Clerk and thereafter she put her

signature on that and submitted the same to the police station.

She has identified her signature on the FIR. She has stated that

she saw the accused in the chamber of the BDO on being asked

by the BDO before she went to the police station. She has
Page 12 of 32

further deposed that the police has seized the wearing apparels

of her daughter and the ‘tape jama and a sack’ by preparing

seizure list where she put her signature. During her

examination, she has identified those as MO 1,2 and 3

respectively.

In her cross-examination, it is denied that she made a

false statement to evade her responsibility from paying Rs.

50,000/- which she received from the accused as lone. Her

attention was drawn to her statement made in the FIR that her

daughter reported to her that the accused also spread some

white fluid in a sack from his penis where she admitted the

absence of such statement in the FIR. She has admitted that

she has mentioned in the FIR that since the accused-appellant

threatened her son and daughter, her daughter did not wanted

to disclose the fact at the first instance.

13. PW-1, Ratan Ghosh, is the uncle of the prosecutrix.

According to him, he was informed about the incident from

Purnima Ghosh, who visited his house on the next date. He has

also deposed that Pushpa Rani Ghosh also informed him about

the incident which are described by PW-2 and PW-4.

14. The statement of PW-4 made in her deposition before

the trial court that after the alleged incident, the accused talked

with somebody with loud voice through mobile when her

daughter woke up and noticed the accused incident the hut and
Page 13 of 32

the land-lady came before her and narrated the entire fact to

her and the land-lady spent the remaining portion of the night

at her hut and told her to keep mum as that would damage the

reputation of her house are found absent in the FIR. Her

statement during the course of deposition that seeing the body

of her daughter and seeing everything she became puzzled is

also found absent in the FIR. The statement which she has

made during the course of deposition that she informed the

matter to the MLA and BDO are also not found in the FIR.

15. PW-5, Rajib Datta, was colleague of PW-3 who works

in the same office of BDO. According to him, PW-4 informed him

about her daughter being raped by the accused-appellant and

after that he advised PW-4 to take shelter of law. He has further

deposed that the accused-appellant came to the office on being

asked by the BDO, but he did not admit the allegation. To the

court, he has stated that normally the accused-appellant has

good reputation in the office who also discharge his duty in time

and he also was very friendly with other staffs.

In his cross-examination, he has stated that he did

not tell to the police that PW-4, the mother of the prosecutrix

visited his house accompanied by one Hindustani woman and

asked to go to his office, but the witness volunteers that the

police did not ask him any question in that regard. The

statement which the said witness made during his examination-

in-chief have not been stated in his examination under Section
Page 14 of 32

161 Cr.P.C. the statement under Section 161 Cr.P.C. has been

exhibited which is marked as Annexure A subject to proof by the

investigating officer.

16. PW-6, Biplab Ghosh is the brother of the prosecutrix.

He has stated during his examination that when he woke up at

the relevant point of time, he noticed that Bimal Acharjee

(whom he used to address as mamu) was saying something

over mobile with loud voice. He found his sister, the prosecutrix

sitting in a chair in the hut, but he did not find Pushpa Rani

Ghosh in the hut. After 5/6 minutes, Bimal Acharjee left the hut

asking them to sleep. Thereafter, his sister, PW-2 called Pushpa

Rani Ghosh. Thereafter, his sister stated something to Pushpa

Rani Ghosh taking her at their kitchen at a crying state. He has

further deposed that Sabita Ghosh and one Suruchi Gope also

used to stay in the house of Pushpa Rani Ghosh. He has further

stated that when he went to bed to sleep, he was in one side

and his sister was in another side and Pushpa Rani Ghosh was in

the middle. He has stated that on 25.07.2009 he met with the

police. Attention being drawn to his statement that he stated to

police that after departure of Bimal Acharjee, his sister called

the land lady Pushpa Rani Ghosh. Such statement is found

absent in his examination recorded under Section 161 Cr.P.C.

Attention was also drawn to his statement which he made

during his deposition before the court that he say his sister to

say something to Pushpa Rani Ghosh in crying state taking her
Page 15 of 32

to the kitchen. It is found that the said statement is absent in

his examination under Section 161 Cr.P.C.

17. PW-7, Basanti Telenga was also a colleague of the

mother of the prosecutrix who works in the same office. She has

stated in her deposition that 23.07.2007 was the day fixed for

counting of panchayat election votes and PW-3 and other staffs

were engaged in counting program. At about 2.30 am on the

following day, at night she and Purnima Ghosh both came out of

the office after completion of their duty. Since the house of

Purnima Ghosh is situated at a distance, she took her to her

house. In the morning of 24.07.2009, Purnima Ghosh came out

of the house to go to her own house and at about 10.30 am,

she again came to the office and met her and reported that on

the previous night at about 2.30/3.00 am, the accused-

appellant Bimal Acharjee has visited her rented hut and

requested the land lady who was sleeping with her children to

go to her hut, when Bimal Acharjee raped her daughter (PW-2)

in absence of Pushpa Rani Ghosh. She wanted to accompany

her to report the said incident to the BDO. when the said fact

was narrated to the BDO who advised them to take the shelter

of law. On the following day, she along with Purnima Ghosh

again visited the quarter of the BDO at about 8/8.30 am when

they met Bimal Acharjee where the BDO had discussed

something with Bimal Acharjee. Both PW-2 and PW-7 after

taking leave from the BDO went to take shelter of law and
Page 16 of 32

desired to inform the fact to the MLA first who also suggested

them to take shelter of law.

During her cross-examination, it is found that her

statement to the police that Purnima Ghosh reported the fact to

her at office was found absent in her 161 statement. Her other

statements in her deposition before the court are also found

absent in her statement recorded under Section 161 Cr.P.C.

which the witness herself admitted in the cross-examination.

Her statement under section 161 Cr.P.C. has been exhibited and

marked as Exhibit-3 subject to proof by the investigating officer.

18. PW-8, Biswajit Debroy, is the Advocate clerk who

drafted the ejahar based on the fact supplied by PW-2 on

25.07.2009. In his cross-examination, he has admitted that the

informant did nto state to him that the accused put off the light

and again he put on the light being resisted by her daughter and

that the accused first kissed her daughter rand touched her

breast and spread some white fluid from his penis in a sack and

the story that the accused talked with somebody with loud voice

from his mobile and when her son woke up and found the

accused inside the hut and that on the following day of the

incident, the land lady came before her narrating the entire fact

to him and that for the remaining portion of the night she slept

with the children of PW-4 and that the matter was reported to

the MLA. He has further stated in his deposition apart from his

engagement as Advocate clerk he also used to work as a
Page 17 of 32

reporter and when he tried to contact with the victim, PW-4 did

not allow him to talk with the victim.

19. PW-9, Dr. Dhanjoy Reang, who examined the victim

had given the following opinion:

(i) I did not find any mark of violence at the private parts, cheek, thigh
and breast of the victim;

(ii) I did not find any foreign hair around her private parts;

(iii) No semen was found around the private parts;

(iv) I found old rapture of hymen.

The report being identified marked as Exhibit-4. He

also collected the vaginal swab of the victim and sent the same

to SFSL with the help of police. The forwarding report being

identified marked as Exhibit-5, but this court finds that the

report (Exhibit-4) is silent about the date and time of

examination. It is also silent where he examined the victim and

who had identified the victim.

In cross-examination, he has stated that generally

police used to produce the victim. He has stated to the court

that when a patient is examined in the hospital, his/her name is

entered in the register of the hospital, but in respect of this

victim, there is no entry in the hospital record. The witness

volunteers that due to hurriedness, he failed to enter her name

in the hospital register. In his cross examination, he has stated

that the name of the patient is supposed to be entered into the

emergency register and he has examined the victim since case

number was there.

Page 18 of 32

20. PW-10, Rangadulal Debbarma is the first

investigating officer who being the O.C., Khowai police station

endorsed the case and started investigation. He has stated that

during the course of investigation, he recorded the statement of

the witnesses and also seized the wearing apparels ‘the tape

jama’ and the sack. On 26.07.2009, he arranged for

examination of the victim before the Medical Officer and

thereafter seized vaginal swab of the victim in two small

containers as collected by Dr. T. Reang. He has further stated

that the victim was taken to the hospital by one constable

accompanied by her mother. Lateron, he collected the medical

report from the hospital. Being asked by the court, he has

stated that the report of the Medical Officer does not bear any

registration number of the hospital and the date and time of the

examination was wanting in that report. During cross-

examination, he did not support the statement made by PW-1,

PW-2, PW-3, PW-5, PW-6 and PW-7 which they have deposed

before the court during the course of trial and supported the

statement of the said witnesses which he had recorded under

Section 161 Cr.P.C.

21. In the present case, the accused-appellant also have

examined three witnesses as DW-1, DW-2 and DW-3.

DW-1, Subrata Nath Sharma, is his statement has

stated that in response to the summon of the court, he

appeared before the court. He also received summon as
Page 19 of 32

prosecution witness, but he was not examined. He has stated

that on 23.07.2009, he performed duty in the panchayat

election for counting of votes. In that counting of votes, the

charge of providing refreshment to the deputed persons was

vested to Bimal Acharjee. Smt. Purnima Ghosh (PW-4) and Smt.

Basanti Telenga (PW-7) did not perform duty in that counting.

He has further stated that counting of votes started at 8.00 am

on 23rd July, 2009 and completed in the following day morning

at 6.00 am. He has deposed that the persons deputed for

counting of votes have no scope to go out of the counting hall

and that counting hall was protected by deployment of police

personnel. There is no substantial cross-examination.

DW-2, Sri Pradip Sarkar, was working as the BDO,

Khowai RD Block on 15.03.2010. At that time in response of an

application of one Bimal Acharjee seeking information under

RTI, he provided the information as sought for. The said witness

who also was in-charge of SPIO provided information regarding

memo of the Returning Officer (BDO), Khowai RD Block and also

supplied information regarding particulars of employees

deployed in the panchayat election, 2009 and he also had

identified those documents marked as Exhibit D-1 and his

signature on those documents as Exhibit D-2. The cross-

examination was declined to the said witness by the prosecution

DW-3, Smt. Sabita Gope, had stated that she knew

Purnima Ghosh who was her tenant in her house. She also knew
Page 20 of 32

Bimal Acharjee who was a frequent visitor in the hut of Purnima

Ghosh. She has stated that she came to the court as

prosecution witness in response to the summon, but she was

not examined. Narrating the incident, she has stated that in the

middle of July, 2009, on the day of counting of panchayat vote

she had seen Purnima Ghosh in her hut upto 9 to 10 pm. In the

early morning of the following day, she also had seen Purnima

Ghosh in her hut doing some household works and at that time,

the son and daughter of Purnima returned home after plucking

flowers and legs of the son of Purnima Ghosh was found stained

by bitumen when Purnima Ghosh scolded her son and daughter.

Thereafter, Bimal Acharjee came to the house of Purnima Ghosh

and it was about 8/8.30 am when there was an altercation in

between Bimal Acharjee and Purnima Ghosh relating to demand

of returning the loan money to Bimal Acharjee taken by Purnima

Ghosh few months back. She has further stated that in that

morning both son and daughter of Purnima Ghosh went to her

hut and had given some plucked flowers to her.

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

hut of Purnima Ghosh belongs to Pushpa Rani Ghosh. There is

no substantial cross to the said witness by the prosecution.

22. From the landscape of the above discussion of

evidences, it is found that PW-3, Pushpa Rani Ghosh, is the

independent witness. According to the prosecutrix, PW-3 was

sleeping with her and on being asked she left her company for
Page 21 of 32

her own hut. Further, the prosecutrix has stated that PW-3 had

just immediately after departure of the accused Bimal Acharjee

entered into the room of the prosecutrix when the prosecutrix

narrated the entire incident to PW-3 who also informed the

prosecutrix that she had seen the entire incident through a

bamboo hole of the hut to which the prosecutrix resided and

stayed at that night. But PW-3 in her deposition has stated that

she knows Purnima Ghosh who was a tenant and on that date of

the occurrence there was counting of panchayat election, but

Purnima Ghosh i.e. mother of the prosecutrix did not make any

request to her before she left for duty. So, the story of the

prosecutrix and her mother Purnima Ghosh, that Purnima Ghosh

requested PW-3 to stay with the prosecutrix during that night

has totally been contradicted by PW-3 in her evidence during

her examination. She was declared hostile. Her contention was

drawn to the statement she made under Section 161 Cr.P.C.

During her cross-examination by the prosecution, she had

totally denied that on 23.07.2009, Purnima Ghosh requested her

to sleep with her child if she fails to return that night from office

and accordingly, when Purnima Ghosh returned, she started to

sleep with her children at her hut. She also denied that she

peeped into the hut through the hole of the thatched wall and

noticed that Bimal Acharjee, the accused in a half naked

condition was lying upon the prosecutrix and the prosecutrix

was trying to resist her and seeing the same her body was

trembling out of fear and shame. During her cross-examination
Page 22 of 32

by the defence, that on receipt of the information about the

illness of her daughter, she left for Agartala on 24.07.2009 at

about 9.00 am. She has further stated that her house was

surrounded by bamboo made fencing with a height of about 5

feet and the entry gate was made by wood, which, if remains

locked from inside, nobody could enter into her house. She has

further stated that if a person intends to enter into her house,

then, it would have to be opened by inmates of the house. She

has further stated that when police examined her, then some of

her neighbours namely, Chinu Ghosh, Nripendra Ghosh, Jiban

Ghosh and Makhan Das were present and Chinu Ghosh is a

member of Panchayat. She has made a statement that she

heard from Purnima Ghosh, PW-4 i.e. mother of the prosecutrix

that about 2/3 months prior to the incidence she had taken a

loan of Rs.50,000/- from Bimal Acharjee.

23. Mr. S. Sarkar, learned counsel appearing for the

appellant submits that statement of the brother of the victim,

Sri Biplab Ghosh was recorded under Section 164(5) of Cr.P.C.

who is aged about 9 years and the victim herself is 12 years old.

Considering their age, a high degree of evidence is required as

they should be called as ‘starling witness’ and it would be very

risky to accept their version without any corroboration from

other witnesses. In support of his submission, Mr. Sarkar,

learned counsel has relied upon a decision in Rai Sandeep
Page 23 of 32

alias Deepu vs. State (NCT of Delhi) reported in (2012) 8

SCC 21, wherein the apex court in para 22 held as follows:

“22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and
caliber whose version should, therefore, be unassailable. The Court considering the
version of such witness should be in a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the status of the witness would be
immaterial and what would be relevant is the truthfulness of the statement made by
such a witness. What would be more relevant would be the consistency of the statement
right from the starting point till the end, namely, at the time when the witness makes
the initial statement and ultimately before the Court. It should be natural and consistent
with the case of the prosecution qua the accused. There should not be any prevarication
in the version of such a witness. The witness should be in a position to withstand the
cross- examination of any length and howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the factum of the occurrence, the
persons involved, as well as, the sequence of it. Such a version should have co-relation
with each and everyone of other supporting material such as the recoveries made, the
weapons used, the manner of offence committed, the scientific evidence and the expert
opinion. The said version should consistently match with the version of every other
witness. It can even be stated that it should be akin to the test applied in the case of
circumstantial evidence where there should not be any missing link in the chain of
circumstances to hold the accused guilty of the offence alleged against him. Only if the
version of such a witness qualifies the above test as well as all other similar such tests to
be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose
version can be accepted by the Court without any corroboration and based on which the
guilty can be punished. To be more precise, the version of the said witness on the core
spectrum of the crime should remain intact while all other attendant materials, namely,
oral, documentary and material objects should match the said version in material
particulars in order to enable the Court trying the offence to rely on the core version to
sieve the other supporting materials for holding the offender guilty of the charge
alleged”.

On the anvil of the above principles, if I test the

evidence of the prosecutrix, it becomes evident that the

prosecutrix has improved and exaggerated the story in her

deposition before the court at the time of trial. The statement

which she has made during the course of trial, are found absent

when her attention was drawn to her statement recorded under

Section 161 and 164(5) of the Cr.P.C. Similarly, the evidence of

PW-4, the mother as well as her brother, PW-6, are found

absent in the statements recorded under Section 161 and

164(5) of the Cr.P.C, which means that the statement of PW-3

that she was not asked by PW-4, the mother of the prosecutrix
Page 24 of 32

to stay with her daughter, is found to be correct. According to

this court, this crucial aspect of the prosecution case has raised

a serious doubt about the guilt of the accused-appellant herein.

Mr. Sarkar, learned counsel has also submitted that FIR

was lodged after 2(two) days and by the passage of time many

embellishment and many developments were caused. Mr.

Sarkar, learned counsel also has submitted that the wearing

apparels were also seized by the I.O. but the prosecution did

not produce any evidence in this regard including the SFSL

report, presumption of which also goes against the prosecution.

24. On the other hand, DW-1 and DW-3 were shown as

prosecution witness in the charge-sheet, but they were not

examined by the prosecution for the reasons best known to

them. In response to summon, they appeared before the trial

court and has stated that the accused-appellant was vested with

the charge of providing refreshment of the deputed persons of

the counting of votes which began at 8.00 am on 23rd July, 2009

and completed in the following day morning at 6.00 am. The

said witness has categorically stated that the persons deputed

for counting purpose has no scope to go out of the counting hall

as counting stations are protected by deployment of the police

personnel. DW-3, who resides in the same house, but in a

different hut has stated that Purnima Ghosh was her tenant and

the hut to which Purnima Ghosh and the prosecutrix used to

reside was situated at a distance of about 10/12 cubits. She has
Page 25 of 32

stated that earlier also she has come to the court as prosecution

witness in response to summon, but she was not examined.

Narrating the incident, she has stated that she saw Purnima

Ghosh in her hut upto 9.00 to 10.00 pm doing her household

works in the early morning of the following day. She has further

stated that at that time, son and daughter i.e. prosecutrix and

her brother returned to home after plucking flowers and the legs

of the son of Purnima Ghosh was found stained with bitumen

when Purnima Ghosh scolded her son and daughter. She has

further stated that Bimal Acharjee came to the house of

Purnima Ghosh relating to demand of making refund the loan

money to Bimal Acharjee which was taken by Purnima Ghosh

few months back. Moreso, she has stated that the prosecutrix

and her brother also went to her hut to give plucked flowers.

Her cross examination could not shake her evidence in chief.

There is no explanation from the prosecution side why the said

was withheld by the prosecution. This has raised serious doubt

in the prosecution case.

DW-2, the BDO, was the Incharge of State Public

Information Office of Khowai RD Block. In view of a RTI

application, he furnished the documents which are marked as

exhibit D/1 is a memo dated 22nd July, 2009 wherein DW-2

being the Returning Officer has distributed responsibility and

duty to be performed by the employees of the concerned Block

on the date of counting of votes. From these documents, it is
Page 26 of 32

found at column ‘g’ that Bimal Acharjee, LDC was given the

charge of refreshment which further supports the version of

DW-1. Further, in the list of deputed employees for counting,

the name of Purnima Ghosh, PW-4, mother of the prosecutrix is

not found. Further, I have noticed that Purnima Ghosh first

informed the matter to the BDO, DW-2, but he did not say

anything about the fact that PW-4 and PW-7 after coming to

know about the incident of rape from PW-2, PW-6 and PW-3,

they met with the BDO and explained the incident in detail.

25. The genus of the story that PW-4, the mother of the

prosecutrix was absent due to her duty for counting of votes,

but that genus is found to be false since the documentary

evidence (D-1) did not support that she was on duty on that

night, which makes the prosecution story more doubtful.

26. This court has considered the medical examination

report and the statement of the doctor, PW-9, who has stated

that after examination of the prosecutrix he did not find any

mark of violence on the private part, cheek, thigh and breast of

the victim. He did neither find any foreign hair round her private

parts nor any semen round her private parts. Further, the

doctor found old rapture of hymen. Needless to say, if the

hymen were found to be raptured recently, then it can easily be

revealed from the examination of the doctor. I have noticed that

the doctor did not indicate the date and time of examination of

the prosecutrix and who produced the victim before him and
Page 27 of 32

who had identified the prosecutrix. The doctor has further stated

that he has sent the vaginal swab of the prosecutrix to the SFSL

with the help of police, but the prosecution has failed to bring

the SFSL report into evidence. In view of the aforesaid fact, I

have given my anxious look to Section 114(g) of the Indian

Evidence Act, which reads as follows:

“(g)That evidence which could be and is not produced would, if produced, be
unfavourable to the person who withholds it”.

27. Applying the same law, this court hold the view that

it is the duty of the prosecution to produce the SFSL report and

non-production of the same will definitely draw an adverse

presumption against the prosecution story. Further, it is also the

duty of the prosecution to clarify how old the rapture of the

hymen is and how the same rapture was related to the rape in

the present case, but the prosecution has miserably failed to

give any clarification on this aspect. This court has further

noticed that PW-4, the mother has specifically stated that the

BDO had advised her to take shelter of law on 24 th July, 2009 at

9.00 am, but I find that there is no reasonable explanation what

prevented her to lodge the FIR on 24th July, 2009 and why she

lodged the FIR on 25th July, 2009 when the incident occurred in

the intervening night of 23rd/24th July, 2009. I may gainfully

refer a decision in Jalwanti Lodhin vs. The State, reported in

1953 CRI.L.J. 1344, wherein the Division Bench of the Patna

high has stated thus:

Page 28 of 32

“The whole controversy centres round the evidence of the child, Chanda (P. W. 11), aged
about six or seven years. When she was examined under S. 164, Criminal P. C., on 11-4-
1950, a day after the occurrence, she stated that she was asleep when Jalwanti (accused)
beat her mother on the head with a ‘martaul’ (hammer). It is not clear whether she had
woken up at the time of the actual assault. If she was indeed asleep and if there was
only one blow given, then it was not probable for her to see the fatal blow being struck.
Before the Committing Magistrate, this witness deposed that she was roused by the
sound and that she saw her mother being killed by her ‘mausi-ma’ (aunt), the accused,
with a hammer. She further said that the accused took her towards the ‘kotha’ and, on
returning to her mother, she again gave another blow with the hammer on the head. I
have already shown that, from the injuries on the persons of the deceased, it is difficult
to say whether two blows with a hammer were administered on the head. In the Court
of Session the witness gave a complete go-by to her previous statements and added that
the. police had instructed her to say so. She also made some very inconsistent and
improbable statements for which she can hardly be relied upon. It may be that according
to the provisions of S. 118, Evidence Act, she was a competent witness to give evidence
in Court, as, it appears from her deposition, she could understand the question put to
her and give rational answers thereto, but it has justly been laid down in – ‘Darpan
Potdarin v. Emperor’, AIR 1938 Pat 153 at p. 158 (A), that the evidence of children is
notoriously dangerous unless immediately available and unless received before any
possibility of coaching is eliminated. I would rather go further and advise closer scrutiny
of the evidence of child witnesses before the same is accepted by a Court of law. Kenny
has observed in his Outlines of Criminal Law at page 420 (1952 edition) that children are
a most untrustworthy class of witnesses, and it is found from common experience that
they often mistake dreams for reality, repeat glibly as of their own knowledge what they
have heard from others, although intelligent children are very often acutely observant of
facts and events external to themselves and remember them with great accuracy. His
observations have been adopted by a Division Bench of the Lahore High Court in ‘Abbas
Ali v. Emperor’, AIR 1933 Lah 667 at p. 668 (B). Children, in the age of about seven, are in
a stage of maturation when the higher mental processes are forming. They are then
creatures of will, emotion and action and sometimes subjected to hallucinations and
illusions. Karl Buhler in his book, The Mental Development of the Child, has said at page
85 : “The ‘fibs’ of childhood are known to every one. A little mite of 3 or 4 will tell us in
all seriousness that he has met a bear on his walk, and the like. These things must not be
regarded as serious moral lapses, for the child has a vivid imagination and often cannot
distinguish memories from events which have been merely imagined.” Dr. Hans Gross,
who has been described by many as the father of criminal research, has. set out in his
book, Criminal Investigation, 1934 edition, at pages 61-62, the nature and character of
evidence given by children. He has said that in one sense the best witnesses are children
of seven to ten years of age as at that time love and hatred, ambition and hypocrisy,
considerations of religion, rank, etc., are yet unknown to them. He has, however,
pointed out the great drawbacks which have made men distrustful of the capacity of
children. They are apt to say much more from imagination than they actually know. To
quote his words,
“the child, as yet devoid of principles, places great faith in the words of grown up
people; so, if a grown up person brings influence to bear on it, especially some time after
the occurrence, the child will imagine it has really seen what it has been led to believe”.
At another place the eminent author has remarked as follows :
“The result is the same, when the influence is undesigned. An important event happens;
it is naturally much talked of, all sorts of hypotheses are started, there is gossip of what
others have seen or might in certain circumstances have seen. ‘If a child, which has itself
seen something of the occurrence, hears these conversations, they become deeply
engraved on its own mind, and ultimately it believes it has itself seen what the others
have related’ ” (the underlining (here in ‘ ‘) is mine).
From the evidence on the record, I am rather inclined to think that this child witness
heard different versions from the crowd which had gathered at the time of the incident
and drew her own inferences from her imagination that her mother had been killed by
the accused”.

Page 29 of 32

28. Applying to the ratio of the above proposition, this

court is of the considered view that undoubtedly rape is the

most morally and physically reprehensible crime in a society, as

it is an assault on the body, mind and privacy of the victim.

Further, it not only degrades and defiles the soul of a helpless

girl/woman, but also shakes the very core of a life. I am not

unmindful of the fact that the rape is a crime against the entire

society and violates the human rights of the victim, apart from

being inflicted a serious blow to the supreme honour of a

woman, and offence, both, her esteem and dignity. Moreso, it

causes psychological and physical harm to the victim, leaving

upon her indelible marks.

29. Keeping this established aspect suffered by the

victim of rape, if this court consider the factual matrix of the

case and apply the principles laid down above by the Patna High

Court, there might be a delay in lodging the FIR when it is a

case of rape , but there must be reasonable explanation what

caused the delay in lodging the complaint to the police. In the

case in hand, the incident occurred in the intervening night of

23rd/24th July, 2009 and the matter was also informed to the

BDO and local MLA, though the matter went to public. Under

those circumstances, what prevented PW-4, being mother not to

lodge the FIR in the same day has not been explained. In the

instant case, I have already discussed that there are so many

improved versions and huge variations from the statements
Page 30 of 32

which the prosecutrix, her mother, her brother, her uncle and

PW-7 have stated in their statement recorded under 161 Cr.P.C.

I find force in the submission of learned counsel appearing for

the appellant that in the context of the said case, the delay of

lodging the FIR is fatal to the prosecution case and the appellant

deserves to get the benefit of doubt.

30. This court has further noticed that the very genesis

of the case started when PW-4, the mother, requested the land

lady (PW-3) to stay on the night of 23rd/ 24th July, 2009 as she

would be busy with the election duty on that night, as appeared

to be false. The genesis of the occurrence of the offence started

due to the absence of PW-4 at that night, but the statement of

DW-1 reveals that the appellant was all along on his duty which

he was vested with the Returning Officer (BDO) during the

entire night. The prosecution also could not unearth anything

from DW-2, the BDO, about any version between him and PW-4.

The local MLA was also not called by the prosecution. On the

contrary, the defence has been able to substantiate the

presence of the appellant in the election duty and also from the

evidence of DW-3, it is evident that PW-4, the mother was all

along with her children at that night and the prosecutrix and her

brother also plucked flower in the morning and also gave some

flowers to DW-3. The other circumstances also does not support

the prosecution case and there is completely missing of the

chain of circumstances. Moreover, in my opinion, if the genesis
Page 31 of 32

is found to be false, then the whole story would lead to be false.

Furthermore, I have noticed that the victim has so many

statements for the first time before the court. It would be

apposite to refer a decision in Pandurang Sitaram Bhagwat

vs. State of Maharashtra, reported in (2005) 9 SCC 44,

wherein the apex court in para 16 held as follows:

“16. The approach of the learned Trial Judge as noticed supra that ordinarily a lady
would not “put her character at stake” may not be wrong but cannot be applied
universally. Each case has to be determined on the touchstone of the factual matrix
thereof. The law reports are replete with decisions where charges under Sections
376 and 354 of IPC have been found to have been falsely advanced.

I also may gainfully refer to a decision in Panchhi and

others vs. State of U.P. with National Commission for

Women vs. State of U.P. and others reported in (1998) 7

SCC 177 wherein the apex court in para 11,12 and 13 has held

as under:

“11. Shri R.K. Jain, learned Senior counsel contended that it is very risky to place reliance on the
evidence of PW1, he being a child witness. According to the learned counsel, the evidence of a
child witness is generally unworthy of credence. But we do not subscribe to the view that the
evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a
witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that
evidence of a child witness must be evaluated more carefully and with greater circumspection
because a child is susceptible to be swayed by what others tell him and thus a child witness is an
easy prey to tutoring.

12. Courts have laid down that evidence of a child witness must find adequate corroboration
before it is relied on. It is more a rule of practical wisdom than of law.

13. PW.1 is one of the two survivors in the family (the other was a suckling child). It is greatly
probable that PW 1 would have escaped from the notice of the assailants otherwise he would not
have been spared as is clear from the fact that his younger sister Sony was also murdered. His
narration of the incident was quite natural though he saw only some part of the occurrence. That
part is so decisive as to clear all doubts regarding identity of the assailants”.

31. Applying the ratio decidendi to the above discussion

in regard to legal issues, this court is of the considered view

that the prosecution has failed to prove the case beyond

reasonable doubt and consequently, the appellant is entitled to

get the benefit of doubt. This court is conscious of the fact that
Page 32 of 32

in a matter of rape, the statement of the prosecutrix must be

given primary consideration but, at the same time the broad

principle that the prosecution has to prove its case beyond

reasonable doubt applies equally to a case of rape and there can

be no presumption that the prosecutrix would always tell the

entire story truthfully. In the present case, this court is at a loss

to understand what prevented the prosecutrix to divulge the

entire story of occurrence of the incident during her statement

recorded under Section 161 and 164(5) of the Cr.P.C and

further what prompted the prosecutrix to improvise her story

during her examination in course of the trial.

32. Hence, in the context of the instant case, it would be

very risky to hold that the appellant has committed the offence

charged against him under Section 376 of the IPC. The

judgment and sentence dated 29.01.2014 passed by the

Additional Sessions Judge, Khowai in Sessions Trial no. 02

(WT/K) of 2011 is interfered with. Accordingly, the appeal filed

by the appellant is allowed. I order his acquittal. Consequently,

the appellant shall be released forthwith, if not wanted in

connection with any other case.

JUDGE

Saikat

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