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Sri Samar Das vs The State Of Tripura on 14 December, 2018

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HIGH COURT OF TRIPURA
AGARTALA

CRL. A. (J) 09 of 2014

Sri Samar Das, S/O. Lt. Sachindra Das,
Of – North Padma Bill, P.S. – Panisagar,
District – North Tripura.
……….. Convict-Appellant.

– Vs. –
The State of Tripura.
……….. Respondent

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

For the appellant : Mr. Ratan Datta, Advocate.

Ms. R. Purkayastha, Advocate.

For the respondents : Mr. A. Roy Barman, Addl. P.P.

Date of hearing : 16.11.2018.

Date of delivery of : 14.12.2018.
Judgment order

Whether fit for : Yes
reporting

JUDGMENT ORDER

(Sanjay Karol, CJ.)

The following important issues arise for consideration in the

present appeal: (a) As to whether a minor witness is competent to

testify in the Court in terms of Section 118 of the Indian Evidence Act,

1872 (hereinafter referred to as the Evidence Act) and whether her

deposition can be considered for examining the guilt of the accused; (b)

As to whether her testimony necessarily requires corroboration; and (c)

As to whether testimony of the parents of the victim can be considered,

applying the doctrine of res gestae, in view of Section 6 of the Evidence

Act.

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2. Assailing the judgment of conviction, wherein appellant Samar

Das stands convicted for having committed an offence punishable under

Section 376(1) IPC, learned counsel has made two submissions- (a) the

appellant, on the date of the alleged crime, was a juvenile, hence the

trial stands vitiated; (b) in any event, there is no corroborative medical

evidence establishing the alleged crime.

3. We are dealing with a case where the appellant, who

undisputedly claims himself to be more than 16 years of age, as on 28 th

of September, 2012, the date of the crime, allegedly subjected the

prosecutrix, aged 6 years, to a sexual assault.

4. In short, it is the case of prosecution that on 28th of September,

2012, accused subjected the prosecutrix to sexual assault. The incident

occurred when her parents had gone out to the Uptakhali Primary

Health Centre for getting their son medically treated. On return, they

saw the accused flee away and their daughter i.e. the prosecutrix

crying, when she narrated the incident firstly to her father and later to

her mother. Written complaint was lodged with the police, whereafter

an FIR No.58/12 dated 28.09.2012, (Exbt.1) was registered at

Panisagar Police Station, North Tripura, Dharmanagar. During the

course of investigation, prosecutrix was medically examined; statement

of the witnesses recorded; documents for establishing certain facts,

both of the accused and the prosecutrix obtained and taken on record;

also other scientific evidence taken on record. With the completion of

investigation, chalan was presented in the court for trial. The accused

was charged for having committed an offence punishable under Section

376(1) IPC to which he did not plead guilty and claimed to be tried.

5. With the prosecution having examined 15 witnesses, statement

of the accused under Section 313 Cr.P.C. was recorded in which he
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pleaded innocence. Despite opportunity being afforded, no evidence

was laid by him.

6. The trial judge, after appreciating the evidence and discussing

the same, by assigning reasons, concluded the prosecution to have

established its case beyond reasonable doubt.

7. In Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171,

the apex Court has cautioned the Court to adopt the following

approach:

―The courts while trying an accused on the charge of rape, must deal
with the case with utmost sensitivity, examining the broader
probabilities of a case and not get swayed by minor contradictions or
insignificant discrepancies in the evidence of the witnesses which are
not of a substantial character.‖

8. The accused in his defence, in his statement under Section 313

Cr.P.C., pleaded that as on the date of the alleged crime, he was 16

years and 9 months of age. To establish such fact, before this court,

learned counsel invites attention to the school certificate dated 2 nd of

April, 2011, indicating date of birth of the accused to be 25th of

December, 1995. The certificate is issued by the Headmaster, Teacher-

in-charge of the school where the accused is stated to have completed

his studies up to VIIth class. We notice that this certificate was put to

Sri Radhika Ranjan Nath (P.W. 15) for proving the same. But then he

denies having issued the same. There is another certificate dated 3rd of

October, 2012 issued by the very same person and exhibited as Exbt.8.

In this certificate, date of birth of the accused is recorded as 10th of

December, 1993 and the accused having completed his course for class

VIII. If this certificate is accepted then obviously, as on the date of the

crime, accused was more than 18 years of age. Significantly, when we

examine the testimony of P.W. 15, we notice the witness to have denied
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having issued any such certificate dated 2nd of April, 2011, on which

reliance is placed by the accused. According to the witness, it does not

bear her signatures. We see no reason to disbelieve this witness despite

his extensive cross-examination. It could not be elicited that contents of

the document, Exbt.P8 to the extent of date of birth are false or

incorrect. The relevant record of the school was produced to establish

such fact. It is true that this witness admits the entry pertaining to the

passing of class (VIII) to be wrong, but then this fact itself could not

falsify the document or other contents thereof. On the issue of correctly

recording date of birth, there is nothing rendering his testimony to be

unbelievable or the witness to have deposed falsely.

9. Not only that, accused does not refute the testimony of the

Investigating Officer, Sri Arun Debbarma (P.W. 11), who does state that

he had made a prayer to the Juvenile Justice Board, Kailashahar for

getting the school certificate of the accused. Before us, findings

rendered by the learned trial court in Para 22 of the impugned

judgment, to the effect that the Juvenile Justice Board, after conclusion

that at the time of the offence accused had attained the age of

majority, could not be pointed out to be false, incorrect or not borne out

from the record. We have checked up the record and find there is order

dated 06.10.2012 passed by the said appropriate authority, specifically

holding the accused not to be a juvenile.

10. Thus, we see no merit in the first submission made by the

learned counsel.

11. Coming to the second submission, we may only state that it is

not the law of the land that statement of the prosecutrix or her parents

requires to be corroborated by any medical evidence.
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12. The Apex Court had the occasion to deal with the case where

there was a conflict between medical evidence and ocular evidence of

the prosecution and Dayal Singh v State of Uttaranchal, (2012) 8 SCC

263 (SCC p.283, paras 35036) wherein the Court observed that

possibility of some variations in the exhibits, medical and ocular

evidence cannot be ruled out. But it is not that every minor variation or

inconsistency would tilt the balance of justice in favour the accused.

Only where contradictions and variations are of a serious nature, which

apparently or impliedly are destructive of the substantive case sought

to be proved by the prosecution, they may provide an advantage to the

accused. The Courts, normally, look at expert evidence with a greater

sense of acceptability, but it is equally true that the courts are not

absolutely guided by the report of the experts, especially if such reports

are perfunctory, unsustainable and are the result of a deliberate

attempt to misdirect the prosecution.

13. It is also a settled principle of law that where the eyewitness

account is found credible and trustworthy, medical opinion pointing to

alternative possibilities may not be accepted as conclusive. [Dayal

Singh (supra)].

14. After all the expert witness is expected to put before the Court

all materials inclusive of the data which induced him to come to the

conclusion and enlighten the court on the technical aspect of the case

by examining the terms of science, so that the court, although not an

expert, may form its own judgment on those materials after giving due

regard to the expert’s opinion, because once the expert opinion is

accepted, it is not the opinion of the medical officer but that of the

Court.

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15. Reiterating its earlier view in Mohd. Iqbal v. State of Jharkhand,

(2013) 14 SCC 481; Narender Kumar v. State (NCT of Delhi), (2012) 7

SCC 171, the Apex Court in Mukesh v. State of Chhattisgarh, (2014) 10

SCC 327, has held that sole testimony of prosecutrix is sufficient to

establish commission of rape, even in the absence of any corroborative

evidence.

16. Be that as it may, we find the version of the prosecutrix and her

parents to be absolutely inspiring in confidence with regard to the

occurrence of the incident and culpability of the accused in relation

thereto. Contrary to what is argued, in fact, we find the doctor to have

clearly deposed the factum of rupture of hymen as a result of sexual

assault.

17. Independent of our aforesaid observations, to satisfy our

judicial conscience, also for appreciating the evidence, being first court

of appeal, we have carefully considered and appreciated the entire

evidence lead by the prosecution. The prosecution case primarily rest

upon the testimonies of the prosecutrix (P.W.5), her parents, namely,

Sri Subash Das (P.W. 1) and Smt. Alpana Das (P.W. 2) and the doctor,

namely, Dr. Pulak Chakma (P.W. 13).

18. Since much emphasis is laid on the absence of corroborative

evidence that of the doctor, we first consider what is so deposed by this

person.

19. On medical examination conducted on the 28th of September,

2012, the doctor found that except for two small scratches in the pubic

area and mouth, there were no external injuries on the body of the

prosecutrix. The hymen, on physical examination, was not intact which

the doctor clarifies, was ruptured due to sexual assault. Cross-

examination part of the testimony of this doctor, suggesting that the
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report is silent whether the victim was raped or not or as to whether

rupture of the hymen was fresh or old, in our considered view, would

not matter at all, for neither the doctor is a witness to the crime nor is

the timing of rupture of the hymen important for considering the act of

sexual assault and as such would not be a relevant fact.

20. It is a settled principle of law that absence of injuries on the

external or internal parts of the victim by itself cannot be a reason to

disbelieve the testimony of the prosecutrix. (See: Mukesh v. State of

Chhattisgarh, (2014) 10 SC 327); State of Haryana v. Basti Ram,

(2013) 4 SCC 200; O.M. Baby (Dead) by Legal Representative v. State

of Keral, (2012) 11 SCC 362; and State of U.P. v. Chhotey Lal, (2011) 2

SCC 550).

21. We notice the victim is a child. Her age at the time of crime to

be just 6 years. It is a settled principle of law that while appreciating

the testimony of a child witness, the court must adopt a careful and

cautious approach. It needs to be ensured that the child is speaking the

truth, voluntarily and is totally uninfluenced of any external factor. It

needs to be doubly assured that the child is not tutored.

22. In cases involving sexual molestation and assault require a

different approach – a sensitive approach and not an approach which a

court may adopt in dealing with a normal offence under penal laws.

Child rape cases are cases of perverse lust for sex where even innocent

children are not spared in pursuit of sexual pleasure. It is a crime

against humanity. In such cases, responsibility on the shoulders of the

courts is more onerous so as to provide proper legal protection to these

children. Their physical and mental immobility call for such protection.

Children are the natural resource of our country. They are the country’s

future. Hope of tomorrow rests on them. In our country, a girl child is in
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a very vulnerable position and one of the modes of her exploitation is

rape besides other modes of sexual abuse. These factors point towards

a different approach required to be adopted. It is necessary for the

courts to have a sensitive approach when dealing with cases of child

rape. The effect of such a crime on the mind of the child is likely to be

lifelong. A special safeguard has been provided for children in the

Constitution of India in Article 39. This is what stands laid down by

Hon’ble the Apex Court in State of Rajasthan versus Om Prakash,

(2002) 5 SCC 745.

23. In Shyam Narain v. State (NCT of Delhi), (2013) 7 SCC 77, the

Apex Court held that the youthful excitement has no place. It should be

paramount in everyone’s mind that, on one hand, the society as a

whole cannot preach from the pulpit about social, economic and political

equality of the sexes and, on the other, some pervert members of the

same society dehumanize the woman by attacking her body and ruining

her chastity. It is an assault on the individuality and inherent dignity of

a woman with the mindset that she should be elegantly servile to men.

Rape is a monstrous burial of her dignity in the darkness. It is a crime

against the holy body of a woman and the soul of the society and such

a crime is aggravated by the manner in which it has been committed.

We have emphasised on the manner because, in the present case, the

victim is an eight year old girl who possibly would be deprived of the

dreams of ―Spring of Life‖ and might be psychologically compelled to

remain in the ―Torment of Winter‖. When she suffers, the collective at

large also suffers. Such a singular crime creates an atmosphere of fear

which is historically abhorred by the society. It demands just

punishment from the court and to such a demand, the courts of law are

bound to respond within legal parameters. It is a demand for justice
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and the award of punishment has to be in consonance with the

legislative command and the discretion vested in the court.

24. In this backdrop we proceed to discuss the testimony of the

child witness. But before that the issue with regard to her competence.

25. Section 118 of the Evidence Act reads as under:-

―118 Who may testify. –All persons shall be competent to testify
unless the Court considers that they are prevented from
understanding the questions put to them, or from giving rational
answers to those questions, by tender years, extreme old age,
disease, whether of body or mind, or any other cause of the same
kind.‖

26. In Dattu Ramrao Sakhare v. State of Maharashtra, (1997 (5)

SCC 341), held that: (i) A child witness if found competent to depose to

the facts and reliable one such evidence could be the basis of

conviction. (ii) Even in the absence of oath the evidence of a child

witness can be considered under Section 118 of the Evidence Act

provided that such witness is able to understand the answers thereof.

(iii) The evidence of a child witness and credibility thereof would depend

upon the circumstances of each case. (iv) The only precaution which the

Court should bear in mind while assessing the evidence of a child

witness is that the witness must be a reliable one and his/her

demeanour must be like any other competent witness and there is no

likelihood of being tutored. (v) The decision on the question whether

the child witness has sufficient intelligence primarily rests with the trial

Judge who notices his manners, his apparent possession or lack of

intelligence, and said Judge may resort to any examination which will

tend to disclose his capacity and intelligence as well as his

understanding of the obligation of an oath. (vi) This precaution is

necessary because child witnesses are amenable to tutoring and often
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live in a world of make beliefs. (vii) Though child witnesses are pliable

and liable to be influenced easily, shaped and moulded, but if after

careful scrutiny of their evidence, the Court comes to the conclusion

that there is an impress of truth in it, there is no obstacle in the way of

accepting the evidence of a child witness.

27. In Golla Yelugu Govindu vs. State of Andhra Pradesh, (2008) 16

SCC 769, the Apex Court while reiterating its earlier view held that:-

―11. 6.Indian Evidence Act, 1872 (in short the ‘Evidence Act’)
does not prescribe any particular age as a determinative factor to
treat a witness to be a competent one. On the contrary, Section 118
of the Evidence Act envisages that all persons shall be competent to
testify, unless the Court considers that they are prevented from
understanding the questions put to them or from giving rational
answers to these questions, because of tender years, extreme old
age, disease whether of mind, or any other cause of the same kind. A
child of tender age can be allowed to testify if he has intellectual
capacity to understand questions and give rational answers thereto.
This position was concisely stated by Brewer J in Wheeler v. United
States (159 U.S. 523). The evidence of a child witness is not required
to be rejected per se; but the Court as a rule of prudence considers
such evidence with close scrutiny and only on being convinced about
the quality thereof and reliability can record conviction, based
thereon. (See Surya Narayana v. State of Karnataka (2001) 1 SCC

1.‖

28. Recently, in State of Himachal Pradesh v. Sanjay Kumar alias

Sunny, (2017) 2 SCC 51, the Apex Court held as under:

―30. By no means, it is suggested that whenever such charge of
rape is made, where the victim is a child, it has to be treated as a
gospel truth and the accused person has to be convicted. We have
already discussed above the manner in which testimony of the
prosecutrix is to be examined and analysed in order to find out the
truth therein and to ensure that deposition of the victim is
trustworthy. At the same time, after taking all due precautions which
are necessary, when it is found that the prosecution version is worth
believing, the case is to be dealt with all sensitivity that is needed in
such cases. In such a situation one has to take stock of the realities
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of life as well. Various studies show that in more than 80% cases of
such abuses, perpetrators have acquaintance with the victims who
are not strangers. The danger is more within than outside. Most of
the time, acquaintance rapes, when the culprit is a family member,
are not even reported for various reasons, not difficult to fathom. The
strongest among those is the fear of attracting social stigma. Another
deterring factor which many times prevent such victims or their
families to lodge a complaint is that they find whole process of
criminal justice system extremely intimidating coupled with absence
of victim protection mechanism. Therefore, time is ripe to bring about
significant reforms in the criminal justice system as well. Equally,
there is also a dire need to have a survivor centric approach towards
victims of sexual violence, particularly, the children, keeping in view
the traumatic long lasting effects on such victims.

31. After thorough analysis of all relevant and attendant
factors, we are of the opinion that none of the grounds, on which the
High Court has cleared the respondent, has any merit. By now it is
well settled that the testimony of a victim in cases of sexual offences
is vital and unless there are compelling reasons which necessitate
looking for corroboration of a statement, the courts should find no
difficulty to act on the testimony of the victim of a sexual assault
alone to convict the accused. No doubt, her testimony has to inspire
confidence. Seeking corroboration to a statement before relying upon
the same as a rule, in such cases, would literally amount to adding
insult to injury. The deposition of the prosecutrix has, thus, to be
taken as a whole. Needless to reiterate that the victim of rape is not
an accomplice and her evidence can be acted upon without
corroboration. She stands at a higher pedestal than an injured
witness does. If the court finds it difficult to accept her version, it
may seek corroboration from some evidence which lends assurance
to her version. To insist on corroboration, except in the rarest of rare
cases, is to equate one who is a victim of the lust of another with an
accomplice to a crime and thereby insult womanhood. It would be
adding insult to injury to tell a woman that her claim of rape will not
be believed unless it is corroborated in material particulars, as in the
case of an accomplice to a crime. Why should the evidence of the girl
or the woman who complains of rape or sexual molestation be viewed
with the aid of spectacles fitted with lenses tinged with doubt,
disbelief or suspicion? The plea about lack of corroboration has no
substance {See Bhupinder Sharma v. State of Himachal Pradesh,
(2003) 8 SCC 551}. Notwithstanding this legal position, in the instant
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case, we even find enough corroborative material as well, which is
discussed hereinabove.‖
(Emphasis supplied)

29. In Radhakrishna Nagesh v. State of Andhra Pradesh, (2013) 11

SCC 688, the apex Court held as under:

―33. It will be useful to refer to the judgment of this Court in
the case of O.M. Baby v. State of Kerala, (2012) 11 SCC 362, where
the Court observed:-

“17. ….. If the totality of the circumstances appearing on
the record of the case disclose that the prosecutrix does
not have a strong motive to falsely involve the person
charged, the court should ordinarily have no hesitation in
accepting her evidence.

18. We would further like to observe that while
appreciating the evidence of the prosecutrix, the court
must keep 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.‖

30. In the instant case, we do find the prosecutrix to have deposed

that one day around noon, when her parents had taken her brother to

the hospital for treatment of the fracture which he had suffered on his

hand, the accused, whom she does identify, came to her house and by

folding her hands took her to the nearby jungle, where he committed an

act of rape. She understands the meaning of the word ‗rape’. She did

try to resist but failed. She narrated the incident to her aunt (jethi). She

also narrated the incident to her father. We find the witness to have

withstood the test of effective cross-examination. She stuck to her

version so deposed in the examination-in-chief part of her testimony.

She appears to be a truthful and reliable witness and her deposition to

be inspiring in confidence. She denies having been tutored by her

parents or aunt and only for the reason that she came to the court with
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her aunt would not be a ground to infer it otherwise. After all, she is a

child and had to be escorted to the court. She does state that at the

time when accused came, she was playing in her house with her sister

Riya Das. Such deposition, in any manner does not help the accused for

it is nobody’s case that such sister was older in age and attending to

the prosecutrix. It has also come in her un-rebutted testimony that she

cried for help by when her father arrived and the accused left the spot.

We notice that immediately, prosecutrix narrated the incident to her

parents, who arrived at the spot. Hence, we find, through her inspiring

testimony, about which we have no doubt, the prosecutrix, rather with

confidence to have fully established the prosecution case.

31. As already discussed, it is a settled position of law that solely

on the testimony of the prosecutrix, even that of a child, fully inspiring

in confidence, accused can be held guilty of the charged offence. In the

instant case, we find the prosecution to have proven its case, through

her testimony, of which we have no doubt.

32. Independently we discuss the law with regard to admissibility of

statements of the parents, for they are in the nature of hearsay.

33. Section 6 of the Evidence Act reads as under:-

―6. Relevancy of facts forming part of same transaction.–Facts
which, though not in issue, are so connected with a fact in issue as to
form part of the same transaction, are relevant, whether they
occurred at the same time and place or at different times and
places.‖

34. In Rameshwar v. The State of Rajasthan (AIR 1952 SC 54), the

Supreme Court has held that previous statement of the prosecutrix to

her mother, immediately after the occurrence, is not only admissible

and relevant as to her conduct, but also constitutes corroboration of her

statement under the provisions of section 157 of the Evidence Act. In
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order to come to the aforesaid conclusions, illustration (j) to section 8

of the Evidence Act was relied upon. In that case, the victim, named

Purni, was 7/8 years old. She was not administered oath, but was held

to be competent witness and, therefore, duly examined and her

statement believed.

35. The Apex Court in Sukhar versus State of U.P., (1999) 9 SCC

507 has held that Section 6 of the Evidence Act is an exception to the

general rule whereunder the hearsay evidence becomes admissible. But

for bringing such hearsay evidence within the purview of said Section,

what is required to be established is that it must be almost

contemporaneous with the acts and there should not be an interval

which would allow fabrication. Also ―the statements sought to be

admitted, therefore, as forming part of res gestae, must have been

made contemporaneously with the acts or immediately thereafter. The

aforesaid rule as it is stated in Wigmore’s Evidence Act reads thus :

“Under the present Exception [to hearsay] an utterance is by

hypothesis, offered as an assertion to evidence the fact asserted (for

example that a carbrake was set or not set), and the only condition is

that it shall have been made spontaneously, i.e. as the natural effusion

of a state of excitement. Now this state of excitement may well

continue to exist after the exciting fact has ended. The declaration,

therefore, may be admissible even though subsequent to the

occurrence, provided, it is near enough in time to allow the assumption

that the exciting influence continued.”

36. Earlier the Apex Court in Gentela Vijayavardhan Rao v. State of

A. P., (1996) 6 SCC 241, considering the law embodied in Section 6 of

the Evidence Act held that the principle of law embodied in the said

Section is usually known as the rule of res gestae recognised in English
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law. The essence of the doctrine is that a fact which, though not in

issue, is so connected with the fact in issue “as to form part of the same

transaction” becomes relevant by itself. This rule is, roughly speaking,

in exception to the general rule that hearsay evidence is not admissible.

The rationale in making certain statement or fact admissible under

Section 6 is on account of the spontaneity and immediacy of such

statement or fact in relation to the fact in issue. But it is necessary that

such fact or statement must be a part of the same transaction. In other

words, such statement must have been made contemporaneous with

the acts which constitute the offence or at least immediately thereafter.

But if there was an interval, however slight it may be, which was

sufficient enough for fabrication then the statement is not part of res

gestae.

37. In Balram Prasad Agrawal versus State of Bihar and others,

(1997) 9 SCC 338, the Apex Court reiterated the principle laid down in

the case of J. D. Jain v. Management of State Bank of India, AIR 1982

SC 673: (1982) 1 SCC 143 wherein a Bench of three learned Judges

speaking through Baharul Islam, J. in paragraph 10 of the Report has

made the following observations : (AIR p. 676, para 10: SCC p.148,

paras 21 and 22)

―The word ‘hearsay’ is used in various senses. Sometimes it means
whatever a person is heard to say; sometimes it means whatever a
person declares on information given by someone else.
(See Stephen on Law of Evidence).

The Privy Council in the case of Subramaniam v. Public Prosecutor,
(1956) 1 WLR 965 observed:

‗Evidence of a statement made to a witness who is not
himself called as a witness may or may not be hearsay. It is hearsay
and inadmissible when the object of the evidence is to establish the
truth of what is contained in the statement. It is not hearsay and is
admissible when it is proposed to establish by the evidence, not the
truth of the statement but the fact that it was made. The fact that it
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was made quite apart from its truth, is frequently relevant in
considering the mental, state and conduct thereafter of the witness or
some other persons in whose presence these statements are made’.‖

38. Applying the aforesaid principles, we find the testimonies of the

parents, even if hearsay in nature, being in close proximity to the time

of crime and relating to the act which is in issue, substantially

contemporaneous to the acts in issue to be proven as a fact, can be

referred to and relied upon for establishing the prosecution case. From

the discussion hereinafter if we find the same to be inspiring in

confidence we would not hesitate in relying thereupon for ascertaining

the truthfulness of the genesis of the prosecution case.

39. P.W. 1 corroborates the version of the prosecutrix of having

taken her brother (his son) to the hospital for treatment and on return

finding the prosecutrix crying in the jungle and the accused fleeing

away. Also that the prosecutrix narrated the incident to him, whereafter

a written complaint (ejahar) was lodged at the Panisagar Police Station.

Complaint is Exbt.1. Subsequently, police got the prosecutrix examined

in the hospital. He identifies the accused in court. In cross-examination,

he admits that in the ejahar there is no reference of his having noticed

the prosecutrix cry, but then this would not in any manner render the

witness to be unreliable or shatter his testimony, for ejahar is not a

detailed manuscript of the incident or encyclopedia of the crime. We

notice that the accused is a neighbour and as such, the child had no

cause of concern, worry, apprehension, or danger in going with him to

the jungle. He was not a stranger.

40. The accused wants the court to believe that there are houses of

others in the neighbourhood and that, inferentially, had the incident,

actually occurred, neighbours would have heard the cries and arrived at
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the spot. Well this is a mere suggestion and nothing more than that and

as such, would not, in any manner impeach the credit of the witness.

41. We find that even P.W. 2 has fully corroborated the version of

the prosecutrix and her father. Simply because in her version recorded

by the police, there is no reference that on her return from the hospital

she hadn’t seen the prosecutrix lie on the bed and/or cry would not

render her statement of the prosecutrix having narrated the incident to

her to be false or unbelievable. Even if it is an improvement, it wouldn’t

render her testimony to be false or the witness to be unbelievable.

42. We notice that Sri Kripesh Das (P.W. 9) and Smt. Malati Das

(P.W.12) were the neighbours of the complainant, and have also

testified of having heard the prosecutrix being raped by the accused,

though these statements are only in the nature of hearsay.

43. Sri Pradyut Ch. Dutta (P.W. 14) is the Officer-in-charge,

Panisagar Police Station, who recorded the FIR and Sri Arun Debbarma

(P.W. 11) is the officer, who conducted the investigation.

44. Conjoint reading of testimonies of all the witnesses only

establishes, beyond reasonable doubt, the prosecution case of the

investigation having been carried out in a just, fair and transparent

manner.

45. Thus, when cumulatively viewed the testimonies of the victims

and as corroborated by their mothers, squarely point towards the guilt

of the accused, beyond reasonable doubt, and in our considered view

the prosecution to have proved its case by leading clear, cogent,

convincing and reliable piece of evidence.

46. We hold the victims to be witnesses, competent to depose in

accordance with law; their testimonies fully proving the prosecution
Page 18 of 18

case; fully corroborated by ocular and documentary medical evidence

and the testimonies of their mothers who also could depose and narrate

the incident, in accordance with law.

47. For all the aforesaid reasons, we find no reason to interfere with

the judgment passed by the trial Court. The Court has fully appreciated

the evidence placed on record 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. Hence, the appeal is

dismissed.

48. The appeal against the impugned judgment an order of conviction

and sentence dated 08.11.2013 in S.T. 13 (NT/D) of 2013 titled as The

State of Tripura vs. Sri Samar Das passed by the learned Additional

Sessions Judge, North Tripura, Dharmanagar stands dismissed.

49. Transmit the L.C. record forthwith.

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

sima

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