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Sri Pramanik Dey vs The State Of Tripura on 29 March, 2019

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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

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