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HIGH COURT OF TRIPURA
AGARTALA
Crl.A(J) No.67/2017
Sri Pramanik Dey, S/O. Sri Jagadish Dey, resident of Barabil, P.O.-
Singhicharra, P.S.- Khowai, District-Khowai Tripura.
…. Convict-Appellant(s).
Versus
The State of Tripura, Represented by its Secretary-cum-
Commissioner to the Department of Home, Government of
Tripura, P.O.-Kunjaban, P.S.-New Capital Complex, District-West
Tripura.
—- Respondent(s).
For Appellant(s) : Mr. Debesh Chandra Roy, Advocate.
For Respondent(s) : Mr. A. Roy Barman, Addl. P.P.
HON’BLE THE CHIEF JUSTICE MR. SANJAY KAROL
Date of hearing and judgment : 29th March, 2019.
Whether fit for reporting :
Yes No
√
JUDGMENT ORDER(ORAL)
The present accused-appellant stands convicted for
having committed an offence punishable under Section 363 of
Indian Penal Code (hereinafter referred to as IPC) and Section 4 of
the Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as POCSO Act). In relation to an offence
under IPC, he stands directed to undergo rigorous imprisonment
for a period of 1(one) year and pay fine of `1,000/- (rupees one
thousand) and in default thereof, simple imprisonment for a
period of 1(one) month; and in relation to an offence under
POCSO Act, he stands directed to undergo rigorous imprisonment
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for a period of 7(seven) years and pay fine of `1,000/- (rupees
one thousand) and in default thereof, simple imprisonment for a
period of 1(one) month.
2. Briefly stated, it is the case of the prosecution that on
28.12.2013, the accused-appellant, forcibly took away the
prosecutrix in a vehicle and made her spend the night in the
house of his relative. The following day, she was taken to the
forest where she was subjected to sexual assault. Finding his
daughter not to return home from her private tuition, Sri Badal
Das Choudhury (PW-6), father of the prosecutrix, lodged a report
with the police. Soon the police traced them and custody of the
daughter was handed over to her father and the accused arrested.
The investigation was conducted by Inspector Narayan
Chakraborty (PW-17) and S.I. Palash Datta (PW-18). Prosecutrix
was got medically examined, so also the accused. Prima facie
finding the accused to have committed the crime, prosecution
presented the charge-sheet in the Court for trial. Significantly,
prosecution arrayed friends of the accused as accomplice.
3. Accused Priyatosh Dey, Mitan Dey and Sajal Dey were
charged for having committed an offence punishable under
Section 366A read with Section 34 of IPC. Independently, accused
Pramanik Dey (appellant herein) was charged for having
committed an offence punishable under Section 366A and 376(1)
of IPC, as also under Section 4 of the POCSO Act.
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4. To establish the said charge, prosecution examined as
many as 18(eighteen) witnesses. Statement of the accused-
appellant under Section 313 Cr.P.C. is also recorded, in which he
took the defence that Rinku pressurized me to elope with her. OP
of her own left her house. I am innocent. I did not commit rape
upon her. I do not like to adduce evidence in my defence.
5. Only accused Pramanik Dey stands convicted in relation
to both the offences, i.e. under Section 363 of IPC and Section 4
of POCSO Act; and the other accused stand acquitted in relation to
which State has not preferred any appeal.
6. This Court is thus called upon to examine correctness
of the findings returned and the judgment passed by the learned
trial Court with respect to conviction of the present appellant, Sri
Pramanik Dey in case No. S.T.(T-1) 16 of 2014, titled as The State
of Tripura vs. Sri Pramanik Dey others arising out of FIR
No.176/13 dated 30.12.2013 registered at Police Station Khowai
under Sections 366(A)/376(2)(i)/342/109/34 IPC.
7. It is a settled principle of law that the first Court of
appeal is required to examine the evidence in extensio for
ascertaining as to whether the reasoning adopted and conclusion
arrived at by the trial Court, emanates from the record based on
correct and complete appreciation of material placed by the
parties. It is equally settled principle of law that the accused,
unless so proven otherwise, is presumed to be innocent. It is
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equally settled principle of law that burden to establish the guilt of
the accused is upon the prosecution, which, under all
circumstances, must be established beyond reasonable doubt. It is
equally settled principle of law that in a case involving crime
against women, and more so of sexual assault, statement of the
prosecutrix is to be considered as that of any other witness and
not an accomplice to the crime. It is equally settled principle of
law that conviction can be based on the sole testimony of the
prosecutrix without corroboration, if otherwise the Court is
satisfied and convinced with regard to the veracity of her
deposition.
8. In crux, in the instant case, it is the case of the
prosecution that on 28.12.2013, at about 1500-1530 hours, while
the prosecutrix had gone to attend her private tuition, at a place
known as Singicherra, the accused kidnapped her; and with an
intent of having illicit intercourse took her away to different
places; made her spend the night away from her parents; and
ultimately ravished her in the forest. According to the prosecution,
at that time, prosecutrix was a minor.
9. Through the testimony of Sri Badal Das Choudhury
(PW-6) and Smt. Rina Das Choudhury (PW-7), parents of the
prosecutrix, it has come on record that finding the prosecutrix not
to have returned home, after attending her private tuition, they
searched for her and only when they failed to locate her, lodged
the report at the police station. The F.I.R. in relation to the crime
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was registered on 30.12.2013 at Police Station Khowai. The delay
of 2(two) days in registration of the F.I.R. stands fully explained
not only by these witnesses but also by the Police Officers (PW-17
PW-18) inasmuch as the victim was first searched at different
places including the house of the sister of the accused and only
thereafter formal F.I.R. was registered.
10. It has come on record through the testimony of Dr.
Maitu Debbarma (PW-5), medical officer, who examined the
prosecutrix, that at the time of occurrence of the incident,
prosecutrix was minor. She was below 18 years of age. Even
before this Court, the issue of age is not raised, more, and rightly
so, in view of the defence taken by the accused emanating from
the cross-examination of the witness (PW-8, the prosecutrix).
11. Learned Additional Public Prosecutor rightly invites
attention of this Court to the decision rendered by the Apex Court
in Rameshwar S/O Kalyan Singh vs. The State of Rajasthan,
AIR 1952 SC 54, laying down four principles to be kept in mind
requiring corroboration of statement of the victim. Significantly,
even in the said decision, the Apex Court clarified that there
cannot be any hard and fast rule with regard thereto, for the main
test is whether statement made by the prosecutrix was made as
early, as can reasonably be expected, in the circumstances of the
case and before that there was opportunity for tutoring or
concoction or not. The relevant portion of the judgment reads as
under:
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“19. There is a class of cases which considers that though
corroboration should ordinarily be required in the case of a grown
up woman it is unnecessary in the case of a child of tender years.
Bishram. v. Emperor, A.I.R.(31) 1944 Nag. 363, is typical of that
point of view. On the other hand, the Privy Council has said
in Mohamed Sugal Esa v. The King, A.I.R. (33) 1946 P.C. 3 at p.5,
that as a matter of prudence a conviction should not ordinarily be
based on the uncorroborated evidence of a child witness. In my
opinion, the true rule is that in every case of this type the rule about
the advisability of corroboration should be present to the mind of
the judge. In a jury case he must tell the jury of it and in a non-jury
case he must show that it is present to his mind by indicating that in
his judgment. But he should also point out that corroboration can be
dispensed with if, in the particular circumstances of the case before
him, either the jury, or, when there is no jury, he himself, is
satisfied that it is safe to do so. The rule, which according to the
cases has hardened into one of law, is not that corroboration is
essential before there can be a conviction but that the necessity of
corroboration, as a matter of prudence, except where the
circumstances make it safe to dispense with it, must be present to
the mind of the judge, and injury cases, must find place in the
charge, before a conviction without corroboration can be sustained.
The tender years of the child, coupled with other circumstances
appearing in the case, such, for example, as its demeanour,
unlikelihood of tutoring and so forth, may render corroboration
unnecessary but that is a question of fact in every case. The only
rule of law is that this rule of prudence must be present to the mind
of the judge or the jury as the case may be and be understood and
appreciated by him or them. There is no rule of practice that there
must, in every case, be corroboration before a conviction can be
allowed to stand.
20. I turn next to the nature and extent of the corroboration
required when it is not considered safe to dispense with it. Here,
again, the rules are lucidly expounded by Lord Reading in
Baskerville’s case, (1916) 2 K.B. 658, at pages 664 to 669. It would
be impossible, indeed it would be dangerous, to formulate the kind
of evidence which should, or would, be regarded as corroboration.
Its nature and extent must necessarily vary with the circumstances
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of each case and also according to the particular circumstances of
the offence charged. But to this extent the rules are clear.
21. First, it is not necessary that there should be independent
confirmation of every material circumstance in the sense that the
independent evidence in the case, apart from the testimony of the
complainant or the accomplice, should in itself be sufficient to
sustain conviction. As Lord Reading says:
“Indeed, if it were required that the accomplice
should be confirmed in every detail of the crime, his
evidence would not be essential to the case, it would be
merely confirmatory of other and independent testimony.”
All that is required is that there must be
“some additional evidence rendering it probable that
the story of the accomplice (or complainant) is true and
that it is reasonably safe to act upon it.”
22. Secondly, the independent evidence must not only make it
safe to believe that the crime was committed but must in some way
reasonably connect or tend to connect the accused with it by
confirming in some material particular the testimony of the
accomplice or complainant that the accused committed the crime.
This does not mean that the corroboration as to identity must
extend to all the circumstances necessary to identify the accused
with the offence. Again, all that is necessary is that there should be
independent evidence which will make it reasonably safe to believe
the witness’s story that the accused was the one, or among those,
who committed the offence. The reason for this part of the rule is
that:
“a man who has been guilty of a crime himself will
always be able to relate the facts of the case, and if the
confirmation be only on the truth of that history, without
identifying the persons, that is really no corroboration at
all…It would not at all tend to show that the party accused
participated in it.”
23. Thirdly, the corroboration must come from independent
sources and thus ordinarily the testimony of one accomplice would
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not be sufficient to corroborate that of another. But of course the
circumstances may be such as to make it safe to dispense with the
necessity of corroboration and in those special circumstances a
conviction so based would not be illegal. I say this because it was
contended that the mother in this case was not an independent
source.
24. Fourthly, the corroboration need not be direct evidence
that the accused committed the crime. It is sufficient if it is merely
circumstantial evidence of his connection with the crime. Were it
otherwise,
“many crimes which are usually committed between
accomplices in secret, such as incest, offences with
females” (or unnatural offences) “could never be brought
to justice.”
25. Next, I turn to another aspect of the case. The learned
High Court Judges have used Mt. Purni’s statement to her mother as
corroboration of her statement. The question arises, can the
previous statement of an accomplice, or a complainant, be accepted
as corroboration?
26. That the evidence is legally admissible as evidence of
conduct is indisputable because of Illustration (j) to section 8 of the
Evidence Act which is in these terms:
“The question is, whether A was ravished. The facts
that, shortly after the alleged rape, she made a complaint
relating to the crime, the circumstances under which, and
the terms in which, the complaint was made are relevant.”
But that is not the whole problem, for we are concerned
here not only with its legal admissibility and relevancy as to conduct
but as to its admissibility for a particular purpose, namely
corroboration. The answer to that is to be found in section 157 of
the Evidence Act which lays down the law for India.
27. Section 157 states that:
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“In order to corroborate the testimony of a witness,
any former statement made by such witness relating to the
same fact at or about the time when the fact took place, or
before any authority legally competent to investigate the
fact, may be proved.”
The section makes no exceptions, therefore, provided the
condition prescribed, that is to say, “at or about the time etc.,” are
fulfilled there can be no doubt that such a statement is legally
admissible in India as corroboration. The weight to be attached to it
is, of course, another matter and it may be that in some cases the
evidentiary value of two statements emanating from the same
tainted source may not be high, but in view of section 118 its legal
admissibility as corroboration cannot be questioned. To state this is,
however, no more than to emphasise that there is no rule of thumb
in these cases. When corroborative evidence is produced, it also has
to be weighed and in a given case, as with other evidence, even
though it is legally admissible for the purpose on hand its weight
may be nil. On the other hand, seeing that corroboration is not
essential to a conviction, conduct of this kind may be more than
enough in itself to justify acceptance of the complainant’s story. It
all depends on the facts of the case.”
12. Both the medical evidence, i.e. the statement of Dr.
Arindam Debbarma (PW-16) and the medical examination report
of the victim girl (Exhibit-8), clearly exhibit that prosecutrix was
subjected to sexual assault. It is true that no mark of injury was
found on her body, but then it is equally true that the doctor on
examination, found tear marks on the private parts and the
hymen of the prosecutrix also ruptured. The doctor positively
opined evidence of sexual intercourse being there. Now,
significantly on this aspect also, there is not much of cross-
examination by the accused.
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13. This now takes the Court to the other ocular evidence
on record. Let us examine as to what really the prosecutrix has to
state about the entire incident. Can it be said that her statement
inspires confidence? Can it be said that the witness is not tutored?
Can it be said that the witness is worthy of credence? Can it be
said that her statement, even remotely, is doubtful or uninspiring
in confidence? Having minutely examined the same, this Court is
of the considered view that the witness, in her deposition is
absolutely clear and consistent with regard to the nature of the
events which took place unfailingly and convincingly, she narrates
the events which took place.
14. At this juncture, one notices that prior to her deposition
in Court during trial, which was on 21.08.2015, she had got her
statement recorded under Section 164 Cr.P.C. before the
Magistrate, which is marked as Exhibit-4. The said statement was
recorded on 31.12.2013 and stands proven on record not only by
her but also by the concerned Magistrate (PW-4). Both the
statements, i.e. her deposition during trial and previous statement
before the Magistrate are clear and consistent without any
blemish, contradiction, discrepancy or improvement.
15. In Court, she states that on 28.12.2013, at about 3
p.m. while she was proceeding towards the house of her private
tutor at Puranbazar, accused Pramanik Dey “restrained” her and
forcibly took her in a vehicle (Van) towards Kamalpur. From
Kamalpur, she was taken to Paijabari and made to stay in the
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house of sister of Pramanik Dey. At that time, friends of the
accused were also present. She spent the night in the house of
the sister of the accused, but the following morning, at about 7-8
a.m., accused brought her to the jungle where he detained her
whole day and night. In the forest, she was subjected to sexual
assault. Following morning, her father and other persons of the
locality came with the police searching for her in the house of the
sister of the accused. From the forest, she was recovered by
certain persons who brought her to the house of the sister of the
accused, from where she was taken back to her house. With the
lodging of the report, she was got medically examined and her
statement recorded in Court. Now, significantly, in the cross-
examination part of her testimony, she is emphatic that in the
vehicle, accused threatened her. This she explains the reason as
to why she did not disclose anything to the occupants of the
vehicle. She denies having any love affair with accused Pramanik
Dey or having asked the accused to marry her.
16. This Court finds her version to have been corroborated
by her parents (PW-6 PW-7). This was immediately after she
was recovered by the police.
17. Mr. A. Roy Barman, learned Additional Public
Prosecutor, rightly invites attention of this Court to the decision
rendered by the Apex Court in Radhakrishna Nagesh vs. State
of Andhra Pradesh, (2013) 11 SCC 688, opining that while
appreciating the evidence of the prosecutrix, the court must keep
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in mind that in the context of the values prevailing in the country,
particularly in rural India, it would be unusual for a woman to
come up with a false story of being a victim of sexual assault so
as to implicate an innocent person.
18. In the instant case, one finds the parties to hail from
the remotest corner of the State of Tripura. In the context of
Indian culture, a woman-victim of sexual aggression, would rather
suffer silently than falsely implicate someone, for a statement of
rape is extremely humiliating experience for a woman and unless
she is a victim of sexual assault, she would ordinarily not blame
anyone for the alleged crime.
19. In Yedla Srinivasa Rao vs. State of A.P., (2006) 11
SCC 615, the Apex Court held as under:
“15. In this connection reference may be made to the
amendment made in the Indian Evidence Act. Section 114 A was
introduced and the presumption has been raised as to the absence
of consent in certain prosecutions for rape. Section 114-A reads as
under:
“114 A- Presumption as to the absence of consent in
certain prosecutions for rape.- In a prosecution for rape
under clause (a) or clause (b) or clause (c) or clause (d) or
clause (e) or clause (g) of sub-section (2) of Section
376 of the Indian Penal Code (45 of 1860), where sexual
intercourse by the accused is proved and the question is
whether it was without the consent of the woman alleged
to have been raped and she states in her evidence before
the court that she did not consent, the Court shall presume
that she did not consent.”
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20. In the instant case, there is nothing on record to
establish previous friendship between the accused and the
prosecutrix. In view of the defence taken by the accused in his
statement under Section 313 Cr.P.C., under the provisions of the
Evidence Act, it was his duty to furnish some reasonable
explanation of the stand taken by him. Why would the prosecutrix
elope with the accused? They are not from the same village or the
families known to each other or the victim and the accused having
studied in the same school or having similar background or met in
the past. What would a poor girl hailing from a remote area do
when she is threatened and intimidated and forcibly taken away in
a vehicle? All these cumulatively leads to the unflinching
conclusion of the prosecution having established its case, beyond
reasonable doubt, and the accused having committed the offence
for which he stands convicted. Statement of the prosecution
corroborated by her parents and medical evidence fully establishes
such charge.
21. At this stage, attention of the Court is invited to an
application seeking compounding of the offence filed before the
trial Court. The Court is of the considered view that keeping in
view the nature of the offence, it rightly stood not considered
favourably.
22. For all the aforesaid reasons, this Court finds no reason
to interfere with the judgment passed by the trial Court. The Court
has fully and correctly appreciated the evidence placed on record
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by the parties. There is no illegality, irregularity, perversity in
correct and/or complete appreciation of the material so placed on
record by the parties.
23. The appeal against the impugned judgment of
conviction and sentence dated 24.10.2017 in case No. S.T.(T-1)
16 of 2014, titled as The State of Tripura vs. Sri Pramanik Dey
others passed by the learned Additional Sessions Judge, Khowai,
West Tripura stands dismissed.
Pending application(s), if any, stands disposed of.
24. Send down the lower court records forthwith.
(SANJAY KAROL), CJ
Pulak