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Suraj Miah vs The State Of Tripura on 16 September, 2019

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HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl. A(J) No. 16 of 2018

Suraj Miah, son of Sri Mamtaj Miah, resident of Village-
Induria, P.S. Sonamura, District- Sepahijala, Tripura, Pin-
799131.
…..Appellant(s)

-V E R S U S-

The State of Tripura.

….. Respondent (s)

B_E_F_O_R_E
HON’BLE THE CHIEF JUSTICE MR. SANJAY KAROL

For Appellant(s) : Mr. Kohinoor N. Bhattacharjee, Advocate.
For Respondent(s): Mr. A. Roy Barman, A ddl. P.P.
Date of hearing : 01.05.2019
Date of judgment : 16.09.2019
Whether fit for reporting : Yes No
√ x

JUDGMENT

The present accused-appellant stands convicted

under Section 4 of the Protection of Children from Sexual

Offence Act, 2012 (hereinafter referred to as the POCSO Act).

Consequently, he stands sentenced to undergo rigorous

imprisonment for a period of 7(seven) years and also pay fine of

`20,000/- (rupees twenty thousand) and in default thereof,

simple imprisonment for a period of 6(six) months.

[2] Brief facts of the case being that on 20.04.2017, at

about 8.30 am, minor daughter of the informant, aged about 12

years and two other minor children were returning home from a

secluded place i.e. at the burial ground. Accused, Suroj Miah
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illegally detained the prosecutrix and forcibly took her to a

nearby tilla land (small hillock) whereby after pressing her

mouth with his hand committed an act of rape. She was

threatened not to disclose the incident to anyone. However,

seeing her condition, when queried, she disclosed the incident to

her mother, who in turn disclosed the same to her husband, i.e.

the informant. After consulting local headmen, a report was

lodged with the police.

[3] On receipt of such complaint, Srikanta Chakraborty,

(PW-10), Sub-Inspector, Sonamura, registered P.S. Case No. 23

of 2017 dated 20.04.2017 under Section 376 (2)(i) of SectionIPC and

Section 4 of POCSO Act, against the accused and entrusted the

investigation to SI Drabajoy Reang (PW-11). Police arrested the

accused who along with the prosecutrix was medically

examined. Prima facie finding the accused to have committed

the crime, prosecution presented the charge-sheet in court for

trial.

[4] Accused Suroj Miah, was charged for having

committed an offence punishable under Section 376(2)(i) of IPC

and also under Section-4 of the POCSO Act. To establish the

same, prosecution examined as many as 12(twelve) witnesses

and proved 12 (twelve) documents. The accused stands

convicted.

[5] This Court is thus called upon to examine the

correctness of findings and the judgment passed by trial court

with respect to conviction of the present appellant, Suroj Miah in
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case No. 23 of 2017, titled as the State of Tripura vs. Suroj Miah

arising out of FIR No.0023/2017 dated 19.04.2017 registered at

Police Station Sonamura under Section-4 of POCSO Act.

[6] The appellant through this criminal appeal is trying to

invite attention of this Court primarily on the four issues; (i) that

the trial court had overlooked the variations/contrasting

statement of prosecution witnesses (who were also eye

witnesses) as to the account of the incident; (ii)that the trial

court had failed to consider the contradiction (omission

amounting to contradiction) in the statements of the material

witnesses particularly in the statement of the prosecutrix and

her sister; (iii) that Dr. Shatabdi Paul (PW-12) in her testimony

and the medical report, opined that there were sign of sexual

intercourse but the report of the Scientific Officer Smt. Rupali

Majumder (PW-7) contained nothing to suggest that the accused

had committed the sexual assault upon the prosecutrix and (iv)

the trial court ignored the motive element behind the filing of

FIR i.e. bad blood/animosity between the appellant and the

family of the prosecutrix.

[7] Also, appellant brings to the attention of this Court,

of his understanding that the evidence was wrongly appreciated.

The appellant intends to assail the conviction which was found

on the basis of perverse appreciation of evidence.

[8] It is therefore, duty of Court of appeal to determine

as to whether reasoning adopted and conclusion arrived at by
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the trial court, emanate from correct and complete appreciation

of material placed by the parties or not.

[9] For establishing the prosecution’s case, testimony of

prosecutrix (PW-1), her sister (PW-4), her father (PW-2), her

mother (PW-3) and independent witnesses, (PWs 5 and 6)

needs to be examined.

[10] Unequivocally, prosecutrix does state that the

accused, whom she identifies and about which fact there is no

dispute, caught her and pressed her mouth with his hands and

then dragged her to the ground. There he forcibly undressed her

and committed rape by lying her on the ground. After

committing the act, he threatened her not to disclose the

incident, else her parents would be killed.

[11] This Court does not find such statements to have

been self-contradicted. Also from the cross-examination part of

her testimony, it cannot be said that credit of the witness stands

impeached. Though she is a child, yet she fully understands as

to what she is deposing. She distinctly remembers the sequence

of events and the incident and confidently narrates them in the

court. Her father corroborates such version, as also her mother

and sister.

[12] One cannot forget that parties hail from rural

background they are tribal people and easily do not have access

to the authorities. It is in this backdrop, father reported the

matter to the elected representative of ADC village, namely, Sri

Bishumani Tripura, PW-5 and another person, namely, Sri Jagat
Page 5 of 13

Chand Tripura who is the husband of an elected representative.

The incident was brought to their notice as early as it could be.

It is only thereafter, FIR came to be lodged.

[13] It is true that scientific evidence did not reveal any

tell tale signs of crime. It is also true that scientific analysis and

the samples collected of the private part of the parties, did not

link the accused to the crime, but then, there is an explanation

for the same. Prosecutrix had already had her bath and medical

examination was carried out much after the incident. In any

event, this Court finds testimony of the prosecutrix to be

absolutely inspiring in confidence.

[14] The learned counsel for the appellant-accused has

pointed out some omissions/contradictions in the statement of

the prosecutrix and other witnesses for discrediting the

prosecution version.

[15] Purported contradiction in the statement of the

prosecutrix (PW-1) and her sister (PW-4) about the incident of

sexual assault is highlighted.

PW-1 stated as below (Page 8 of Paper Book)

“…….on 19.04.2017 at about 8.30am myself along
with my two sisters, namely Rakhi Tripura and
Mangalpati Tripura on the way myself found Suraj
Miah of our village who was sitting near the
roadside. At that time he threatened my cousin
sister Rakhi Tripura and Mangalpati Tripura and
also asked them to leave that place and
accordingly out of fear they left that place…..”

PW-4 stated as below (Page 18 of Paper Book)
Page 6 of 13

“……After a while when we were returning back to
our house, on the way one Suraj Miah told us to
stop at that time of out of fear myself and my
younger sister ran away while Suraj Miah
restrained my cousin sister Anjana Tripura.”

[16] Bare perusal of above extracts do not reflect any

inconsistency. This Court does not find, both in essence and

substance, any difference, whatsoever, in the statements made

by them. Both statements clearly state that accused Suraj Miah

restrained PW-1 and threatened away PW-4 and her sister from

the scene. Such behavior implies nothing but that he had an evil

eye with an intent of executing the same.

[17] Further, learned counsel tries to discredit the

prosecutrix by posing as to why she did not leave the spot along

with her sister. To the understanding of this Court, learned

counsel erred in appreciating that as per statement of PW-1 and

PW-4, accused Suraj Miah had restrained the prosecutrix,

hence, she could not flee away. Moreover, all of them (PW-1,

PW-4 and her sister) were of young age and not mature enough

to have reacted in the way the learned counsel expects of an

adult person.

[18] As regards the question of not raising hue and cry or

reporting the matter/incident by the cousin sisters or other

relatives of the prosecutrix, the appellant accused must

understand that at the time he hushed away the minor sisters

from the scene, he had not exhibited his desire of causing

sexual assault. After all parties were not strangers.
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[19] The learned counsel has highlighted that statements

made by the prosecutrix in her testimony that “the accused

undressed himself and forcibly undressed myself” that “at the

place of occurrence there was some bushes”, that ” after the

incident I stated such facts to my cousin sister” that “I also

stated to Darogababu that after such incident my father went to

the house of the Suraj Miah and after a while returned and

inform that he did not find the Suraj Miah and his father” (page

9-10 of paper book) are not there in her statement recorded

under Section 161 or Section 164 of the Cr.P.C., as the case

may be. He, further, pointed that cousin sister of the prosecutrix

(PW-4) in her testimony had said that “I had stated to the

Darogababu that on that day Anjana was crying while returning

home and told that Suraj Miah committed misdeed with her” ,

but no such statement is found in her statement made under

Section 161 of Cr.P.C. Similarly, the statement made by the

father of the prosecutrix (PW-2) that ” I had stated to

Darogababu that after hearing about such incident from my wife

I asked my daughter about such incident when she also

disclosed such fact to me” and that “I also stated to Darogababu

that after hearing such incident form my daughter I went to the

house of Suraj Miah to inform such incident to his parents but

found them absent and subsequently told his younger son to tell

his parents to meet with me when they returned back to their

house” are found omitted in his statement made under Section

161 Cr.P.C. (Page-12 of the Paper Book).

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[20] The learned counsel for the appellant-accused has

emphasized that these omissions made by witnesses are

contradictions for the purpose of Section 162 of Cr.P.C.

[21] What is the meaning of contradiction in the context

of Section 162 Cr.P.C. has been aptly explained by the Apex

Court in SectionShashidhar Purandhar Hegde and Another v.

State of Karnataka (2004) 12 SCC 492 (two Judge Bench),

reads as under:

“12. The word ‘contradiction’ is of a wide
connotation which takes within its ambit all

material omissions and under the circumstances of
a case a court can decide whether there is one
such omission as to amount to contradiction. [(SectionSee
State of Maharashtra v. Bharat Chaganlal Raghani
and SectionOrs., Raj Kishore Jha v. State of Bihar. The
Explanation to Section 162 of the Code of Criminal
Procedure, 1973 (in short the ‘Code’) is relevant.
‘Contradiction’ means the setting of one statement
against another and not the setting up of a
statement against nothing at all. As noted
in SectionTahsildar Singh v. State of U.P., all omissions
are not contradictions. As the Explanation
to Section 162 of the Code shows, an omission to
state a fact or circumstance in the statement
referred to in sub-section (1) may amount to
contradiction if the same appears to be significant
or otherwise relevant having regard to the context
in which the omission occurs. The provision itself
makes it clear that whether any omission amounts
to contradiction in the particular context is a
question of fact.”

[22] In the considered view of this Court, discrepancy has

to be distinguished from contradiction. It is true that major and

material contradiction in the statement of witness is fatal for the
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prosecution case, but minor discrepancy/variation in evidence

would not make the prosecution case to be doubtful. In order to

ascertain as to whether discrepancy pointed out was minor or

not or that it amounted to a contradiction, it is required to be

proved from the circumstances of the case by keeping in view

the age, social status and the environment in which such

witness was making their statement.

[23] Whether and to what extent inconsistencies in

statements made by witnesses affect credibility of witness has

been deliberated upon by Hon’ble Apex Court in the past. The

Apex Court in SectionRammi v. State of MP, (1999) 8 SCC 649(two

Judge Bench) held as under:

“When eye-witness is examined at length it is quite
possible for him to make some discrepancies. No
true witness can possibly escape from making
some discrepant details. Perhaps an untrue witness
who is well tutored can successfully make his
testimony totally non-discrepant. But courts should
bear in mind that it is only when discrepancies in
the evidence of a witness are so incompatible with
the credibility of his version that the court is
justified in jettisoning his evidence. But too serious
a view to be adopted on mere variations falling in
the narration of an incident (either as between the
evidence of two witnesses or as between two
statements of the same witness) is an unrealistic
approach for judicial scrutiny.

25. It is a common practice in trial courts to make
out contradictions from previous statement of a
witness for confronting him during cross-

examination. Merely because there is inconsistency
in evidence it is not sufficient to impair the credit
of the witness. No doubt Section 155 of the
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SectionEvidence Act provides scope for impeaching the
credit of a witness by proof of inconsistent former
statement. But a reading of the Section would
indicate that all inconsistent statements are not
sufficient to impeach the credit of the witness. The
material portion of the Section is extracted below:

155. Impeaching credit of witness.- The credit of a
witness maybe impeached in the following ways by
the adverse party, or, with the consent of the
court, by the party who calls him.

(3) by proof of former statements inconsistent with
any part of his evidence which is liable to be
contradicted.

26. A former statement though seemingly
inconsistent with the evidence need not necessarily
be sufficient to amount to contradiction. Only such
of the inconsistent statement which is liable to be
contradicted would affect the credit of the
witness. Section 145 of the Evidence Act also
enables the cross-examiner to use any former
statement of the witness, but it cautions that if it is
intended to contradict the witness the cross-
examiner is enjoined to comply with the formality
prescribed therein. Section 162 of Code also
permits the cross-examiner to use the previous
statement of the witness (recorded under Section
161 of the Code) for the only limited purpose, i.e.
to contradict the witness.

27. To contradict a witness, therefore, must be to
discredit the particular version of the witness.
Unless the former statement has the potency to
discredit the present statement, even if the latter
is at variance with the former to some extent it
would not be helpful to contradict that witness,
(vide Tahsildar Singh and anr. vs. State of U.P.,
1995 Crl. LJ 1231)”.

Emphasis supplied]
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[24] Further the Apex Court in SectionPawan Kumar v. State of

U.P, (2015) 7 SCC 148, (two Judge Bench) while quoting

Rammi (supra) stated as follows:

“When a witness is examined at length it is quite
possible for him to make some discrepancies. No
true witness can possibly escape from making
some discrepant details. But courts should bear in
mind that it is only when discrepancies in the
evidence of a witness are so incompatible with the
credibility of his version that the court is justified
in jettisoning his evidence. [see SectionRammi v. State of
M.P. (1999) 8 SCC 649]. There is no doubt that
when two views are possible, the one which
favours the accused should be taken and the
accused should be acquitted by giving the benefit
of doubt. But in the instant case, the evidence on
record is trustworthy and consistent, and there is
only one view, which points to the guilt of the
accused. Though the learned counsel for the
appellant sought to point out minor discrepancies
in the evidence of the witnesses, but in the light of
the above judgment of the court, we are of the
considered opinion that such minor discrepancies
should not come in the way of the other strong
circumstantial evidence, cumulatively taken
together, forms a complete chain of events,
pointing towards the guild of the accused in the
commission of the crime.”

Similar view was taken by the Apex Court in SectionYogesh

Singh v. Mahahbir Singh, (2017) 11 SCC 195 (two Judge

Bench).

[25] In the present case it is true that in the earlier

statements, there are some omissions in the version of

prosecution witnesses particularly that of evidence of PW-1
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(who is a minor aged about 12 years). But, the omissions as

highlighted by the appellant-accused are not significant and are

merely trivial in nature. These are not material exaggerations or

embellishments. In our considered opinion such discrepancies in

the version of prosecution no way impeaches her credit,

rendering her statement to be false, untrue, cooked up or

unbelievable, or in any manner fatal to the prosecution case.

Insofar as the presence of the victim the accused, as also

incident is concerned there is neither any variation nor

exaggeration.

[26] It has come on record through the testimony of Dr.

Shatabdi Paul (PW-12), that after the occurrence of incident,

prosecutrix was got medically examined. On perusal of medical

evidence i.e. the statement and the medical examination report

of the prosecutrix (Exhibit-11) it is clear that she was subjected

to sexual assault. It is true that in the forensic report no foreign

material was found on her body (Exhibit-12). But it is also true

that the doctor on examination found the hymen of the

prosecutrix ruptured and it is nobodies case that prosecutrix, a

child, was of a loose moral character or had previously indulging

in any sexual activity or that such rapture was a result of and

cause of any other natural activity.

[27] Past hostility between the families of the accused and

victim on the ground that cattle of family of the prosecutrix had

damaged crop (paddy) of the accused and PW-5 had advised

her father to settle the matter of such dispute is presumed as a

circumstance of false implication. On perusal of testimony of
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PW-5 (page 20 of the Paper Book), this court finds that the

advice to settle the dispute was related to sexual assault upon

the prosecutrix and not over the damage caused to the paddy.

This Court does not find presence of past hostility to be a

motive to lodge a false complaint against the accused as it has

not been adequately substantiated to attract any significant

attention.

[28] For all the aforesaid reasons, this Court finds no

reason to interfere with the judgment passed by the trial court.

Trial Court has fully and correctly 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.

[29] The appeal against the impugned judgment of

conviction and sentence dated 30.01.2018 in case No. Special

(POCSO) 02 of 2017, titled as the SectionState of Tripura vs. Sri

Suraj Miah passed by learned Special Judge, Sonamura, West

Tripura, stands dismissed. Pending application(s), if any, also

stands disposed of

Send down the lower court records forthwith.

CHIEF JUSTICE

A.Ghosh

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