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Sri Ranjit Reang vs The State Of Tripura on 24 January, 2019

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HIGH COURT OF TRIPURA
AGARTALA

CRL A (J) 14 OF 2015

Sri Ranjit Reang,
S/o Lt. Kunjamani Reang of
Vill. Saikarbari, P.S. Anandabazar,
District-North.
—-Appellant(s)
Versus

The State of Tripura

—-Respondent(s)

For Appellant(s) : Mr. Ratan Datta, Advocate.
Ms. Simita Chakraborty, Advocate.
For Respondent(s) : Mr. Amitabha Roy Barman,
Addl. Public Prosecutor.

HON’BLE THE CHIEF JUSTICE MR. SANJAY KAROL
HON’BLE MR. JUSTICE ARINDAM LODH

Judgment reserved on: 23rd November, 2018

Date of Pronouncement: 24th January, 2019

Whether fit for reporting: NO

JUDGMENT

(A. Lodh, J)

Heard Mr. R. Dutta, learned counsel representing the

appellant as well as Mr. A. Roy Barman, learned Additional Public

Prosecutor, State of Tripura.

2. This Criminal Appeal (Jail) has been directed against the

judgment and order dated 28.03.2015, rendered by the learned

Sessions Judge, North Tripura, Dharmanagar in Sessions Case

No.ST/T-1/0000016/2014 whereby the appellant was found to be

guilty of commission of offence of rape upon the victim prosecutrix

(P.W.9) and accordingly, convicted and sentenced him to undergo

rigorous imprisonment for 10 (ten) years under Section 376 (2)(f) of
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IPC and also to pay a fine of `3000/- only, in default to payment of

fine, to suffer further R.I. for 6 (six) months.

3. The prosecution case, in a nutshell, is that one Smt.

Dantairung Reang (P.W.6), the mother of the victim, lodged a written

FIR on 27.10.2010 with the Officer-in-Charge of Kanchanpur Police

Station against the accused-appellant Ranjit Reang alleging inter alia,

that on 22.10.2010, at about 6:30 pm, the accused had committed

rape upon her 9(nine) years old daughter (name has been kept

withheld to protect her identity) when she was sleeping in her hut.

The mother, i.e. the informant and her husband were not at home at

the time of occurrence. It is further alleged that when the accused

started committing rape upon the victim she raised alarm and

following her alarm, Smt. Naisowti Reang (P.W.2) rushed to the hut,

entered the room and saw the accused Ranjit Reang in a naked state

and was scuffling with the victim girl but instantly fled away from the

place of occurrence on seeing P.W.2. It has been alleged that P.W.2

had seen the accused in committing rape upon the victim.

4. Having received the information, the informant-mother of

the victim along with her husband rushed to their house and found

their victim daughter lying in unconscious state. They took up the

matter with the local community leaders and the local leaders

imposed a fine of `2,800/- upon the accused Ranjit Reang, but, the

parents of the prosecutrix were not satisfied. That prompted the

informant to lodge the FIR with the O.C., Kanchanpur P.S. as stated

above, on 27.10.2010, i.e. after 5(five) days of the occurrence of

alleged rape.

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5. On receipt of the information, the Officer-in-Charge of the

Kanchapur P.S. registered a case bearing Kanchanpur P.S. Case

No.87/2010, under Section 376(1) of IPC.

6. Being endorsed, S.I. Jayanta Das took up the

investigation and produced the victim girl to Kanchanpur hospital for

her medical examination. Dr. S. Bhattacharjee, P.W.13 examined the

victim at Kanchanpur Sub-Divisional hospital and recorded his

observation in his report (Exbt.7) to the effect that he found no

physical signs of significance to suggest that the victim was sexually

assaulted. The medical officer found no mark of injury or wound in her

private part. Thereafter, I.O. examined the material witnesses of the

case and recorded their statements under Section 161 of Cr.P.C.,

arranged ossification test for determining the age of the victim.

Subsequently, I.O. also produced the victim girl before the learned

Sub-Divisional Judicial Magistrate, Kanchanpur for recording her

statement under Section 164(5) of Cr.P.C. Finally, after collection of

evidence, the I.O. submitted charge-sheet against the appellant Ranjit

Reang for committing offence punishable under Section 376 of IPC.

7. On committal of the case, learned Additional Sessions

Judge having found prima facie materials framed the following charge

against accused Ranjit Reang, the appellant herein:

“That on 22-10-2010 A.D. at about 18.30 hours at
Sakaibari in the house of the informant under Kanchanpur
police station, you committed rape on the victim (name
withheld by me), a minor girl, aged about 9 years, the
daughter of the informant, and thereby committed an offence
u/s 376 of IPC and within my cognizance.

And I do hereby direct that you be tried for the
said charge.”

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8. The accused pleaded not guilty to the charge and claimed

to stand the trial.

9. In course of trial, to substantiate the charge, prosecution

has examined as many as 14 witnesses including the informant

Dhantairung Reang (P.W.6), Smt. Naisowti Reang (P.W.2), two

doctors namely Dr. Tushar Kanti Choudhury (P.W.12) and Dr. Sutap

Bhattacharjee (P.W.13), Sri Jayanta Das, I.O. as well as the

prosecutrix (P.W.9), the victim girl.

10. The defence did not adduce any evidence and the accused

pleaded to be innocent in his examination under Section 313, Cr.P.C.

11. On appreciation of the evidence and materials on record,

both oral and documentary and also upon hearing learned counsel of

the parties, the learned Sessions Judge found the accused-appellant

guilty of the offence of rape under Section 376 (2)(f) and accordingly,

convicted and sentenced him as already noted above.

12. Being aggrieved by and dissatisfied with the sentence, the

accused-appellant preferred this appeal from jail.

13. Assailing the impugned conviction and sentence, Mr. R.

Dutta, learned counsel appearing for the appellant has drawn

attention to this Court primarily to the evidence of P.W.9, the victim

girl who was admittedly a minor aged about 9 to 11 years as per

ossification report, the evidence of P.W.2 and the doctors.

13.1 According to Mr. Dutta, learned counsel for the appellant,

the delay in lodging the FIR is fatal to the instant case as by that time

the informant/complainant and other prosecution witnesses were able

to improvise the story of the incident. He further submits that the
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victim girl (P.W.9) who was admittedly a minor and aged between 7

to 11 years, being the child witness cannot be said to be credible and

unsafe to rely upon as she was appeared to be tutored and the same

cannot, therefore, be the basis of conviction. It is forcefully contended

by the learned counsel that the medical examination report (Exbt.7)

does not support the oral version of the prosecutrix (P.W.9) as well as

the eye witness to the incident Smt. Naisowti Reang (P.W.2) who is

the grand-mother of the victim girl. According to Mr. Dutta, learned

counsel, no credible corroborative evidence came out from either of

the prosecution witnesses to substantiate the charge against the

appellant. He further submits that the conviction and sentence as

returned by the learned trial Judge are based on conjectures and

surmises and are liable to be set aside.

13.2 Mr. Dutta, learned counsel has relied upon the following

decisions in support of his contention:

i. 2008 Cri.L.J. 586 [ Md. Jamiruddin Ahamed Vs.
State of Assam];

ii. 2008 Cri.L.J. 721[Bibhishan Vs. State of
Maharashtra]

iii. 2008 Cri. L.J. 2192 [Chinta Sinku Vs. The State of
Jharkhand]
iv. (2014) 1 TLR 690 [Dinesh Debbarma Vrs. State of
Tripura]

14. On the other hand, Mr. A. Roy Barman, learned Addl.

Public Prosecutor appearing for the State submits that the case is well

proved and the ingredients of Section 375 of IPC have been proved

beyond reasonable doubt and the conviction and sentence passed by

the learned trial Judge stands good.

15. Before delving upon the submissions canvassed by the

learned counsel for the appellant and the learned Addl. Public
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Prosecutor, it would be necessary and apt to appreciate and evaluate

the evidence of P.W.2, the eye witness, the prosecutrix (P.W.9) and

P.W.12 13, the two doctors.

16. P.W.9 the prosecutrix in her examination in course of trial

has testified that on the day of occurrence it was 6:30 pm when she

and her younger sister were present in her hut. Her parents went on

invitation in the house of others on the occasion of ‘Laxmi puja’ and

there was a light of solar energy in their hut. At that time, the

appellant Ranjit Reang entered into her hut by opening the lock given

by her parents and the accused Ranjit forcefully made her naked and

he himself open her pant and thereafter forcibly committed rape upon

her. She cried out of pain and immediately P.W.2 Naisowti Reang

came but seeing P.W.2, the accused Ranjit Reang ran away holding

his pant. After that, her parents came and she reported the incident

to them. She identified the accused in the dock.

In her cross-examination she has stated that she did not

state to the police that accused committed rape by removing his pant

and after arrival of P.W.2 he ran away holding his pant, however, she

denied the suggestion that she deposed against the appellant falsely

being tutored.

17. P.W.2 in her examination-in-chief has stated that after

hearing the cries of the prosecutrix she went to her hut from her hut

and she witnessed Ranjit Reang committing forceful intercourse with

the prosecutrix against her will and seeing her, accused Ranjit ran

away. She identified Ranjit in the dock.

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

cries of the prosecutrix some neighbouring persons went there, but,
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by that time, she brought the victim girl to her hut. She specifically

named one Manik Reang who went to her house after the incident.

18. P.W.12, Dr. Tushar Kanti Choudhury deposed that he

examined the victim girl on 27.03.2011 to determine her age and he

found that she was about 9 to 11 years on the date of examination.

He identified the examination report which is marked as Exbt.6.

19. P.W.13, Dr. Sutap Bhattacharjee in his deposition has

stated that on 27.10.2010 being Medical Officer at Kanchanpur Sub-

Divisional Hospital has examined the victim girl. He has categorically

stated in his report that on examination he did not find any physical

sign of significance in any part of the body of the victim girl which

may suggest that she has been sexually assaulted. He further has

remarked that no injury was found in and around the private parts of

the victim girl. He identified the report which is marked as Exbt.7.

20. P.W.14, the I.O. has deposed that he seized the wearing

apparels of the victim girl and the seizure list on identification was

marked as Exbt.1/3. In his cross-examination, he has stated that he

filed the charge-sheet on the basis of oral evidence of the prosecution

witnesses.

21. The mother and father of the victim girl, i.e. P.W.6 and

P.W.7 respectively, in their evidence have replicated the statement of

the victim girl as well as P.W.2. P.W.6 has stated that in the morning

she had noticed some swelling at her vagina. She has further stated

that the matter was reported to their village community leaders for

settlement.

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22. P.W.3, P.W.4 and P.W.5, are the village community

leaders and they have stated that in the meeting Ranjit, the appellant

had admitted his guilt and they imposed a fine of `2,800/- upon him

to which the parents of the prosecutrix were not satisfied.

23. To justify the commission of offence of rape for which the

victim suffered pain of such penetration, the evidence of P.W.2 who

claimed to be the eye witness to the alleged occurrence and the

evidence of P.W.13 who examined the victim girl medically, in my

considered view, are very important.

24. P.W.2 in her evidence has categorically stated that she

was the witness to the incident and had seen the accused in a state of

committing intercourse against the will of the victim girl (P.W.9). On

plain reading of the said evidence of P.W.2, we may say that the

accused was in a position of intercourse and it gets fortified from the

statement of mother-complainant (P.W.6) that she noticed swelling at

the vagina of victim. In our opinion, the said swelling was caused due

to the violence leading to definite presumption of slightest degree of

penetration into the private part of the prosecutrix which satisfies the

doctrine of ‘carnal knowledge’ to constitute the offence of rape.

Resultantly, the medical report which was heavily relied upon by

learned counsel of the appellant would not carry weight in the nature

of this case. The FIR was lodged after 5(five) days, and by that time,

the said swelling must have been healed up.

At this stage, we are to consider the principle of

appreciating oral testimony of the victim as well as P.W.2

conjunctively with the medical jurisprudence in this regard.
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25. ‘Rape’ or ‘Raptus’ is when a man hath carnal knowledge of

a woman by force and against her will (Co. Litt.123-b); or as

expressed more fully, rape is the carnal knowledge of any woman,

above the age of particular years, against her will; or of a woman

child, under that age, with or against her will’ (Hale PC 628). The

essential words in an indictment for rape are rapuit and carnaliter

cognovit; but carnaliter cognovit, nor any other circumlocution

without the word rapuit, are not sufficient in a legal sense to express

rape; 1 Hon.6, la, 9 Edw. 4, 26 a (Hale PC 628). In the crime of rape,

‘carnal knowledge’ means the penetration to any the slightest degree

of the organ alleged to have been carnally known by the male organ

of generation (Stephen’s “Criminal Law” 9th Ed. P.262). In

‘Encyclopedia of Crime and Justice’ (Volume 4, page 1356) it is stated

“…. Even slightest penetration is sufficient and emission is

unnecessary”. In Halsbury’s Statutes of England and Wales (Fourth

Edition) Volume 12, it is stated that even the slightest degree of

penetration is sufficient to prove sexual intercourse. It is violation

with violence of the private person of a woman-an-outrage by all

means. By the very nature of the offence it is an obnoxious act of the

highest order.

26. The findings in a criminal case would depend upon the

facts and circumstances of each case. Under the Indian criminal

jurisprudence, the accused has two fundamental protections available

to him in a criminal trial or investigation. Firstly, he is presumed to be

innocent till proved guilty and secondly, that he is entitled to a fair

trial and investigation. It is now settled that even the slightest degree

of penetration is sufficient and emission is unnecessary to constitute

the offence of rape.

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27. In the case at hand, the prosecutrix made a categorical

statement that the accused made her naked and committed rape on

her against her will. She was aged about 9 to 11 years. P.W.2 has

specifically stated that she had seen the accused in a state of

committing intercourse with the prosecutrix. P.W.6, the mother, Smt.

Dantairung Reang in her deposition has clearly stated that she noticed

some swelling at her vagina. It is now well settled and no more res

integra that if the oral testimony of the prosecutrix inspires

confidence and appears to be trustworthy, then, her sole testimony is

enough to convict an accused of committing the offence of rape.

According to us, it is not always necessary that intercourse has to be

completed, and the law is that even the touch to the private part of

the female organ is enough to constitute the offence of rape. Thus, we

repel the submission of learned counsel for the appellant and the

decisions as referred to by the learned counsel are factually different

from the present case before us.

28. It is now well-neigh settled that there is no hard-and-fast

rule that conviction recorded in favour of accused must get support

from medical evidence, if the oral testimony of the prosecutrix other

relevant evidence is found to be trustworthy and inspire confidence of

the Court. We re-iterate that in the present case the oral testimony of

the 9 years old victim girl and P.W.2 remain unshaken in the cross

examination. This Court does not find any consistency in the oral

testimony of the victim as well as the P.W.2. Thus, in the facts of the

case in hand, we can safely dispense with the medical examination

report (Exbt.7).

29. We have carefully perused the decisions rendered in

Jamirudding (supra), Bibhisan (supra), Chinta Sinku (supra)
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and Dinesh Debbarma (supra) but in our considered view, the facts

and circumstances of those cases are quite distinguishable from the

facts and circumstances of the instant case before our hand.

30. In Dinesh alias Buddha Vrs. State of Rajasthan,

reported in (2006) 3 SCC 771, the Supreme Court in Para 9, 10 and

11 has observed thus:

“9. The physical scar may heal up, but the mental
scar will always remain. When a woman is ravished,
what is inflicted is not merely physical injury but the
deep sense of some deathless shame. An accused
cannot cling to a fossil formula and insist on
corroborative evidence, even if taken as a whole, the
case spoken to by the victim strikes a judicial mind as
probable. Judicial response to human rights cannot be
blunted by legal jugglery.

10. It is to be noted that in sub-section(2)
of Section 376 I.P.C. more stringent punishment can be
awarded taking into account the special features
indicated in the said sub-section. The present case is
covered by Section 376(2)(f) IPC i.e. when rape is
committed on a woman when she is under 12 years of
age. Admittedly, in the case at hand the victim was 8
years of age at the time of commission of offence.

11. In the Indian Setting refusal to act on the
testimony of the victim of sexual assault in the absence
of corroboration as a rule, is adding insult to injury. A
girl or a woman in the tradition bound non-permissive
society of India would be extremely reluctant even to
admit that any incident which is likely to reflect on her
chastity had ever occurred. She would be conscious of
the danger of being ostracized by the society and when
in the face of these factors the crime is brought to light,
there is inbuilt assurance that the charge is genuine
rather than fabricated. Just as a witness who has
sustained an injury, which is not shown or believed to
be self-inflicted, is the best witness in the sense that he
is least likely to exculpate the real offender, the
evidence of a victim of sexual offence is entitled to
great weight, notwithstanding the absence of
corroboration. A woman or a girl who is raped is not an
accomplice. Corroboration is not the sine qua non for
conviction in a rape case. The observations of Vivian
Bose, J. in Rameshwar v. The State of Rajasthan (AIR
1952 SC 54) were:

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“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…”.

31. Having viewed so, the Apex Court at Para 13 has held

thus-

“13. The legislative mandate to impose a sentence,
for the offence of rape on a girl under 12 years of age,
for a term which shall not be less than 10 years, but
which may extend to life and also to fine reflects the
intent of stringency in sentence. The proviso to Section
376(2) IPC, of course, lays down that the court may,
for adequate and special reasons to be mentioned in
the judgment, impose sentence of imprisonment of
either description for a term of less than 10 years.
Thus, the normal sentence in a case where rape is
committed on a child below 12 years of age, is not less
than 10 years’ RI, though in exceptional cases “for
special and adequate reasons” sentence of less than 10
years’ RI can also be awarded. It is a fundamental rule
of construction that a proviso must be considered with
relation to the principal matter to which it stands as a
proviso particularly in such like penal provisions. The
courts are obliged to respect the legislative mandate in
the matter of awarding of sentence in all such cases.
Recourse to the proviso can be had only for “special
and adequate reasons” and not in a casual manner.
Whether there exist any “special and adequate reasons”
would depend upon a variety of factors and the peculiar
facts and circumstances of each case. No hard-and-
fast rule can be laid down in that behalf of universal
application.”

32. We find no special and adequate reasons to reduce the

sentence recorded against the appellant herein. We already have hold

that even the touch or slightest degree of penetration constitutes the

offence of rape and considering that the prosecutrix is aged between

9 to 11 years, we are not inclined to interfere with the conviction and

order of sentence passed by learned Sessions Judge. Accordingly, the

conviction and sentence to suffer rigorous imprisonment for 10 (ten)
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years along with fine as declared by the judgment dated 28.03.2015,

is hereby affirmed and upheld.

33. Consequently, the appeal preferred by the accused-

appellant fails and dismissed.

34. Send down the L.C. records along with a copy of this

judgment.

(ARINDAM LODH),J (SANJAY KAROL),CJ

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