MINTU MUHURI Vs. STATE OF TRIPURA

JUDGEMENT

(1.) HERAD Mr. B. Deb, learned counsel appearing for the appellants. Heard also Mr. P. Bhattacharjee, learned Additional Public Prosecutor, Tripura.

(2.) THIS appeal is directed against the judgment and order dated 5.3.03 passed by the learned Additional Sessions Judge, South Tripura, Udaipur in Case No. S.T. 85(ST/U) of 2000 convicting and sentencing the convict appellant No.1 to suffer rigorous imprisonment for 2 years and to pay a fine of Rs.2,000/- and in default of payment of fine to suffer further imprisonment for 3 months, and also for convicting and sentencing the convict appellant No.2 to suffer rigorous imprisonment for 2 years and to pay a fine of Rs.2000/- and in default of payment of fine to suffer further imprisonment for 3 months for committing offence under Section 354 of IPC read with Section 109 of IPC.

(3.) MR. B. Deb, learned counsel for the appellants submits that although the convict appellants were acquitted of charge under Section 306 and 376 IPC, the convict appellant No.1 was convicted and sentenced under Section 354 IPC while the convict appellant No2. was convicted and sentenced under Section 354/109 IPC which is not sustainable under the law, inasmuch as, there is no cogent and reliable evidence for awarding such conviction and sentence against them. According to MR. B. Deb, learned counsel, the learned trial Court awarded the aforesaid conviction and sentence based on the evidence of interested and related witnesses only which are not corroborated by evidence of any independent witness. He refers to the evidence of PW 4, PW 5, PW 6, PW 8, PW 9 and PW 10, who are father, brother, mother, uncle, aunt and sister of the victim respectively. No villager has been examined as witness by the prosecution although the alleged incident took place in the village at around 8.30 p.m. The learned counsel also points out that PW 1, PW 2, PW 3 are co-villagers and independent witnesses. They have given only heresay evidence. Their evidence carries no evidentiary value. The alleged outrage on the modesty of victim girl took place on 14.1.98 at about 8.30 p.m. and the victim girl committed suicide by pouring kerosene and setting fire on 15.1.98 at 10 a.m., but the FIR lodged only on 16.1.98 about 5 p.m. without any explanation on the delay which has a vital effect on the prosecution case. Such an unexplained delay renders the prosecution story false and unbelievable. The learned counsel further submits that PW 5, brother of the victim, who claims to be an eye witness, is not really an eye witness to the alleged sexual assault on the victim because PW 5, as per his own evidence, was detained forcefully by an unknown boy and accused/appellant No.2 and there was no possibility of witnessing the incident after his sister (victim) was taken to the back side of a house. Moreover, evidence of PW 5 is full of inconsistencies and contradictions besides being uncorroborated by any witness. As for contradiction, the defence refers to the statements of PW 5 recorded under Section 161 CrPC by the investigating officer (marked as Ext.'A' and 'B'). The aforesaid witness was confronted with the said statements but he failed to give satisfactory reply. In such circumstances, the learned counsel for the appellants argued in great force that the evidence of so called eye witnesses, particularly, PW 5 is not at all acceptable as cogent and reliable for convicting the accused/appellants and for this reason the convict appellants should be declared innocent and acquitted. In support of above submissions, he relies on the decisions of this Court in Sanjit Debbarma @Khurumpui, reported in (2008) 2 GLR 326 and Vijay Singh Vs. State of M.P. reported in 2005 Crl. L.J. 299.