IMPORTANT POINT
It is unbelievable to say that a mother would put her daughter entire life at stake by involving her in a serious matter like rape.

JUDGMENT

This appeal by the convict is directed against the judgment and order of conviction and sentence dated 06.06.2019 delivered in Sessions Trial (T-1) 31 of 2015 by the Addl. Sessions Judge, Court No.5, West Tripura, Agartala. The appellant has been convicted under Sections 376(2)(f) of the IPC and sentenced to suffer rigorous imprisonment for 10 years and also to pay a fine of Rs.5000/- and in default of payment of fine the appellant shall also suffer further simple imprisonment for 2 (two) months.

2. Genesis of the prosecution is rooted in the complaint filed by one Anju Das (PW-4) disclosing that on 10.09.2012 the informant went out of her house for performing works under REGA leaving the victim alone in her house. Around 4 pm accused (Pintu Ghosh) allured the victim on the pretext of feeding chocolate, chips etc and took the victim to his house and committed rape upon the victim therein. On hearing alarm of the victim, Smt. Manti Ghosh (PW-5) wife of elder brother of accused rescued the victim when the accused fled away.

3. Based on the said complaint dated 11.09.2012, Agartala PS case No. 246 of 2012 under Section 376(2)(f) of the IPC was registered and taken up for investigation. On completion of the investigation, final report was submitted in the court sending up the appellant to face the trial. The said case was registered in the court of the Chief Judicial Magistrate, West Tripura, Agartala. Since the offences disclosed in the police report are exclusively triable by the court of Sessions, on taking cognizance, the police papers were committed to the court of the Sessions Judge. In due course, the case was transferred to the court of the Asst. Session Judge, Court No.1 West Tripura, Agartala, from where the case was withdrawn and made over to the court of Additional Sessions Judge herein after referred to as the trial court.

4. The trial court on 15.01.2014 framed the charge against the appellant under Section 376(2)(f) of the IPC for committing rape upon a minor girl (the name has been withheld for protection of her identity) aged about 4 years, daughter of Sri Dilip Das of West Dukli, Kali Tilla Madhuban. The appellant pleaded innocence and claimed to face the trial.

5. In order to substantiate the charge prosecution adduced 8 witnesses and introduced 9 documentary evidence including the medical examination report (Exbt-9). On completion of the recording of the prosecution evidence, the appellant was examined under section 313 of the CrPC to have his say on the incriminating material those surfaced in the evidence led by the prosecution. The appellant reiterated his plea of innocence and stated the evidence as brought against him are fabricated. On appreciation of the evidence, the trial judge returned the finding of conviction by the impugned judgment having observed that from the evidence of the victim and her mother (PW4) it has been established beyond reasonable doubt that she was taken by Pintu in his house by telling that he would give her chips and chocolate etc and then the accused undressed her and inserted her penis into her vagina is also not only admissible and relevant as to the conduct of the victim girl but also constitutes corroboration of her statement being made immediately after return of PW4. As per provisions of section 157 of the Evidence Act, read with illustration (j) to section 8 of the Evidence Act.

6. The said finding of conviction has been challenged by the appellant broadly on the grounds that the said finding has emerged from improper appreciation of evidence inasmuch as appreciation has not been carried out by the established canons. It would have inferred that the prosecution story is unnatural, improbable and fabricated one. The evidence of PW-2, in particular, cannot inspire any confidence for the purpose of convicting the appellant. Thus, the charge having not been proved beyond reasonable doubt. The appellant is entitled to acquittal from the charge by setting aside