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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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