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IN THE HIGH COURT OF TRIPURA
Deepak Gupta, Utpalendu Bikas Saha, JJ.
Kartik Saha - Appellant
Versus
State of Tripura - Respondent
Criminal Appeal (J) No. 13 of 2012 and [Alongwith Criminal Appeal (J) No. 18 of 2012 and 2 of 2013]
Decided On : 13-02-2014
RAPE - Criminal Law - Indian Penal Code (IPC) - Section 376(2)(g), Section 307, Section 34 - The judgment discusses the conviction of the appellants under section 376(2)(g) and section 307 read with section 34 of the Indian Penal Code (IPC). The court analyzes the evidence presented by the prosecution and the arguments of the defense counsels. It also highlights the contradictions in the statements of the witnesses and the prosecutrix, the medical evidence, and the conduct of the investigating officer. The court finds one appellant guilty of rape and modifies his sentence, acquits another appellant due to lack of proper identification, and upholds the conviction and sentence of the third appellant. The judgment also points out several procedural and legal lapses in the case, directing disciplinary proceedings against the investigating officer.
Fact of the Case:
The prosecutrix, a student, was allegedly raped by the appellants. The incident occurred at a school fair, and the prosecutrix was taken to the police station and then to the hospital. The medical examination revealed injuries, and the appellants were tried and convicted. The defense argued lack of evidence, contradictions in the prosecutrix's statement, and procedural lapses by the investigating officer.
Finding of the Court:
The court found one appellant guilty of rape and modified his sentence, acquitted another appellant due to lack of proper identification, and upheld the conviction and sentence of the third appellant. The court also pointed out several procedural and legal lapses in the case, directing disciplinary proceedings against the investigating officer.
Issues: The issues revolved around the credibility of the prosecutrix's statement, the identification of the appellants, the medical evidence, and the procedural conduct of the investigating officer.
Ratio Decidendi: The court relied on the consistency of the prosecutrix's statement, the medical evidence, and the corroborative testimony of witnesses to establish the guilt of one appellant. It also highlighted the lack of proper identification and procedural lapses in the case, leading to the acquittal of another appellant and the upholding of the conviction of the third appellant.
Final Decision: The court modified the sentence of one appellant, acquitted another appellant, and upheld the conviction and sentence of the third appellant. It also directed disciplinary proceedings against the investigating officer for procedural and legal lapses.
JUDGMENT
Deepak Gupta, C.J.These three appeals are being decided by a common judgment since they arise out of one judgment delivered by the learned Additional Sessions Judge, North Tripura, Kamalpur in case No. S.T. 42 (N.T./KMP)/2009 whereby the appellants were convicted under section 376(2)(g) and section 307 read with section 34 of the Indian Penal Code (IPC). The learned trial Court sentenced all the three appellants to undergo rigorous imprisonment (RI) for 10 years with a fine of Rs. 3,000/- and in default of payment of fine to suffer simple imprisonment (SI) for 3 (three) months in connection with the conviction under Section 376(2)(g) of the I.P.C. All the appellants were also sentenced to undergo RI for 4 (four) years with a fine of Rs. 2,000/- and in default of payment of fine to suffer SI for 2 (two) months in regard to the commission of offence punishable under Section 307 read with Section 34 of the I.P.C. In case of two of the appellants, Prasanta Das and Prafulla Debnath, the sentences were ordered to run consecutively and in respect of Kartik Saha the sentences were directed to run concurrently.
2. The prosecution story in brief is that the prosecutrix was raped by the appellants on 22.12.2008 at about 11.30 p.m. The prosecutrix was a student of the Gandacharra school and was living in the hostel. A science fair was being held at the school. According to the prosecution, Prasanta Das called the prosecutrix behind the hostel on the pretext that he wanted to talk to her and, thereafter, he and the other two appellants forcibly raped the prosecutrix and thereafter tried to kill her by throttling. The prosecutrix informed the night guard, P.W. 2 and his wife P.W. 3 who in turn took her to the superintendent of the hostel P.W. 11. The Superintendent contacted the Headmaster of the school and thereafter all these persons along with P.W. 5 a retired teacher went to the Police Station and the matter was reported to the police at midnight. Admittedly, no FIR was lodged at midnight. No GD entry has been proved on record as to what action the police took when the prosecutrix along with her hostel superintendent and other teachers went to the Police Station. The FIR by the police was recorded at 6.05 a.m. on 23.12.2008 after a written complaint was filed by the prosecutrix. Thereafter the police investigated the matter, recorded the statement of the witnesses and filed charge sheet against the accused. The accused have been tried and convicted as aforesaid. Hence this appeal.
3. We have heard Sri. S Chakraborty, learned counsel for the appellant Prasanta Das, Sri. Sekhar Dutta, learned counsel for the appellant Prafulla Debnath, Sri. S Kar Bhowmik, learned counsel for the appellant, Kartik Saha and Sri. R.C. Debnath, learned Additional Public Prosecutor for the State.
4. Sri Chakraborty, learned counsel for the appellant Prasanta Das, contends that the impugned judgment is totally illegal and liable to be set aside. According to him, there is no evidence to show that any rape was committed; he further submits that the doctor has not given any final opinion that rape was committed and that no spermatozoa was found in the private part of the prosecutrix. He also submits that the complaint was admittedly written by the sister of the prosecutrix but neither the sister nor any other relatives have been examined. According to Sri Chakraborty, the original version has been suppressed and he submits that when the prosecutrix along with the other persons visited the Police Station at about midnight there was no allegation of rape and, therefore, neither any GD entry nor any FIR was recorded. He also submits that there was some affair between the accused and the prosecutrix and she had filed this case with a view to teach a lesson to the Prasanta Das as he had refused to marry her. Lastly, it is submitted by Sri Chakraborty that the story of the prosecutrix does not inspire confidence and conviction cannot be sustained on the basis of h
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