1. This appeal is directed against the judgment dated 23rd August, 1999 by the Assistant Sessions Judge, North Tripura, Kailashahar in Sessions Trial No. 53(N.T/K) of 1988 convicting the first appellant under Section 376 and 363 of the Indian Penal Code (for short 'IPC) and other two appellants under Section 363 of IPC. While the first appellant has been sentenced to undergo rigorous imprisonment for 5 years each under Section 376 of I.P.C. and 363 of I.P.C, the second and third appellants have been sentenced to undergo rigorous imprisonment for 5 years under Section 363 of I.P.C. A further direction has been given by the learned trial Court that in case of the first appellant both the sentences would run consecutively.
2. I have heard Mr. S. M. Ali, learned counsel for the appellants and Mr. D. Sarkar, learned Public Prosecutor assisted by Mr. R. C. Debnath, learned Special Public Prosecutor for the respondent.
3. The factual matrix leading to the criminal proceedings may be noticed thus:—
The first appellant Narayan Chanda was the private tutor of the victim girl Smt. Laxmi Rani Paul, the daughter of the informant Rajendra Paul (P.W. 1). She was minor at the time of alleged occurrence. As per the birth certificate issued by the Additional District Registrar, North Tripura, Kailashhar (Ex.4/ 1), her date of birth being on 18-11-1982. According to her version given to the Chief Judicial Magistrate, North Tripura, Kailashahar on 15-12-1997, she and the first appellant developed a love affairs followed by sexual intercourse after the said appellant gave her promise to marry. She became pregnant in due course and her pregnancy was terminated by medicine given to her by the said appellant. When her physical condition deteriorated following termination of pregnancy, she had to disclose the affairs to her mother (P.W.5) who then arranged for her recovery. This affairs to her mother (P.W. 5) who then arranged for her recovery. This discloser annoyed the first appellant as he clearly forbade her. On the date of occurrence (18-11 -1997) she went to the nearby jungle for urination when all the three appellants suddenly pounded on her and forced her to take something like crushed tablet rendering her unconscious. She regained her sense only the following j day in the Kailashahar Hospital.
4. Her father (P.W. 1) lodged the first information report (FIR) on 21 -11 -1997 alleging that his daughter was missing since 12 noon on 18-11-1997. On the same day he lodged a missing information at 4 O'clock in the afternoon. At 6.30 in the evening his daughter was found hanging inside a well She was recovered unconscious and sent to hospital for treatment. On the following day she disclosed to him that the first appellant Narayan Chanda had forcibly taken her to the jungle and beaten at various places oF her body. She did not disclose to him even 3 (three) days after the occurrence that she was kidnapped or raped or administered any medicine. What she stated to her father is that due to physical assault she came to be unconscious.
5. During the course of investigation what has prima facie surfaced is that the first appellant committed rape on the minor victim causing thereby pregnancy. On 18-11-1997 she was kidnapped by him with the assistance from other 2 (two) appellants. On the basis of the charge-sheet against the appellants under the above provisions a full dressed trial was held in the Court of Assistant Sessions Judge, North Tripura, Kailashahar.
5A. Once it is established from the birth certificate of the victim that she was minor at the time of alleged occurrence, the question of her consent to sexual intercourse with the first appellant came to be irrelevant. During the course of trial, the learned trial Court examined 14 witnesses including the victim herself who gave a statement during investigation recorded under Section 164 of the Code of Criminal Procedure (for short 'Cr. P.C.') by the Chief Judicial Magistrate, North Tripura, Kailashahar. Though the starting point of investigation was the FIR lodged by the father of the victim (P.W.I) which only disclosed physical assault by the accused-persons on the victim, the course of investigation brought to the fore the chain of events which reached the final stage on 18-11-1997, the date mentioned in the FIR about the physical assault. From the statement of the victim it has come to light that her private tutor had given her promises and obtained her consent for sexual intercourse rendering her pregnant. Thus, an offence under S. 376 of the IPC surfaced. As the victim got pregnant, she was forced to take medicine for termination of her pregnancy by her private tutor who warned her not to disclose the affair. But her deteriorating health forced her to disclose everything to her mother which en raged her private tutor and to teach her a les son she was again subjected to physical assault on 18-11-1997. The statements of other witnesses created a circumstantial evidence supporting the allegation of the victim and placing reliance on the evidence of the witnesses and other materials on record, the learned trial Court had no hesitation to record a finding of guilt against the first appellant under Section 363 and 376 of I.P.C. and against the other two appellants Under Section 363 of I.P.C. only.
5B. The learned counsel for the appellants has shown several inconsistencies in the prosecution story. Firstly, in the FIR itself, lodged by the father of the victim, there is no mentioned about the second and third appellants taking any part in the alleged occurrence. According to the informant, he learnt a bout, the alleged occurrence from his daughter when she regained sense in the hospital. A perusal of the FIR would show that she did not tell him that she was kidnapped or raped by the appellants though only in her subsequent statement recorded on 15-12-1997, after a period of 27 days she disclosed that she had sexual intercourse with the first appellant. No explanation has been offered why her the first time after such a long period she disclosed about her affair with her private tutor. It is not difficult to find an answer of this question as she had developed an affair with her private tutor which she wanted to keep secret. According to her, the first appellant gave her promises to marry and so she accepted his proposal for physical relationship. As no force was applied by the first appellant for obtaining sexua1 favour from her, she was initially reluctant to disclose her secret. But when a regular criminal case was registered and investigation was in progress she might have been persuaded to speak out the truth and only then on 15-12-1997 she made a statement to the learned Chief Judicial Magistrate e. Though there may be minor discrepancies in her statement under Section 164 of Cr. P.C. and the statement before the learned trial Court, what has finally emerged wit h all credibility is that with her consent the: first appellant had sexual intercourse wit h her which amounts to rape as she was be low 16 years of age at time of occurrence. In the said statement under Section 164 of Cr.P.C. she made no allegation that she was kidnapped by anybody. According to her, on the date of occurrence she went to the nearby jungle for urination when all of a sudden, the three appellants caught hold of her and forced her something into her mouth. 5 She lost her senses immediately after that, tin her deposition before the learned trial Court she, however, stated that when the appellants had lifted her from the house on 18-11-1997 at noon, no other inmate was present in the house. She complained that the first appellant had assaulted her inside the jungle only for the reason that she had disclosed her affair with him to her mother. Thereafter a tablet was pushed into her mouth which rendered her senseless. The other part of the story regarding her developing an affair with the first appellant, having sexual intercourse and becoming pregnant has also been narrated in her deposition before the learned trial Court. True it is, for the first time the ingredients of an offence under Section 363 of the IPC were introduced which are in sharp contrast with her statement under Section 164 of Cr.P.C. She also uttered nothing to her father about the appellants lifting her from her house. It is the submission of the learned counsel for the appellants that the inconsistencies surfaced in her two statements and her failure to disclose any thing about kidnapping and rape by the appellants to her father rendered the entire prosecution story untrustworthy.
6. Learned Public Prosecutor on the other hand made a strong submission that the minor inconsistencies in the statements of the victim cannot be a reason to disbelieve the substantial part of her statement that taking advantage of her age and proximity the first appellant committed rape on her little realizing that such physical contact would finally land her in trouble and her lover would turn to be prosecutor in the long run, she surrendered herself to the sexual approaches of her private tutor. According to the learned Public Prosecutor, reasons are not far to seek about non disclosure of the sexual affair between the two at the first instance by the victim. The evidence of other witnesses would strongly support the story of the victim and, therefore, it is a fit case for convicting the appellants which has beer i correctly done by the learned trial Court.
7. From the- rival submission set up above, the task remains with the Court to separate grains from the chaff and not to be swept away by the inconsistencies strewn here and there in the prosecution case. What has emerged clear from any inconsistency from the bundle of evidence and materials is that the first appellant was the private tutor of the victim girl. She was found missing on 18-11 -1997 and immediately a missing information was lodged. Then in the evening at 6.30 she was found unconscious into a mud well near the house of the informant. She was taken to hospital and she regained sense on the following morning she disclosed to her father that the first appellant had physically assaulted her. Gradually the story started to unwind itself from the version of the victim recorded by the learned Chief Judicial Magistrate. The sexual relationship and consequent pregnancy came to light. A closer examination of her two statements would leave no doubt that she had to agree to take medicine for termination of her pregnancy which, however, had adverse effect on her health. Her deteriorating health condition forced her to disclose everything to her mother which infuriated her private tutor leading to the occurrence on 18-11-1997. A careful examination of the evidence of other witnesses would show that what the victim girl has disclosed to the learned trial Court and before the learned Chief Judicial Magistrate, North Tripura, Kailashahar found support therefrom. The medical examination report has given a clear indication that her hymen was not intact and her vagina was roomy. As the examination had taken place days after the occurrence, no external injury could be seen. As she was below 16 years at the time of alleged occurrence the rupture in hymen is an indication that she was subjected to sexual intercourse confirming thereby her statement before the Court about physical intimacy with the first appellant.
8. The submission of the learned counsel for the appellants that there is no ingredient of Section 363 of I.P.C if we strictly go by the statement of the victim seems to have merit. Though participation of the second and third appellants in forcing some tablet in her mouth has been alleged in her statements, there is no whisper in her statement under Section 164 of Cr.P.C. that she was kidnapped by any of the appellants. Thus, considering the above facts and circumstances in its entirety, I am of the considered view that the charge under Section 363 of the IPC has not been proved well, and, therefore, all the appellants are acquitted of the said charge. The discussion made above leads me to the irresistible conclusion that the first appellant was responsible for sexual intercourse with the minor girl and even though the same was done with her consent the offence amounts to rape. This being the position, the conviction of the first appellant under Section 376 of IPC has to be upheld which I hereby do. As regards the sentence, I am of the considered view that the ends of justice will be met if the first appellant is sentenced to undergo 3 (three) years5 rigorous imprisonment instead of 5 (five) years. Accordingly the said sentence is reduced from 5 (five) years rigorous imprisonment to 2 (two) years, from which, the period, if any, already in custody shall be set off.
9. In the result and for the foregoing discussions, this criminal appeal is partly allowed acquitting the appellants from the charges under Section 363 of IPC and affirming the conviction of the first appellant Shri Narayan Chanda under Section 376 of I.P.C. with reduced sentence of 2 (two) years.
Order accordingly.
