STATE OF TRIPURA Vs. SAMIR SHIL

JUDGEMENT

(1.) The State of Tripura preferred this Criminal appeal against the judgment / order dated 30.1.1997 of acquittal recorded by the learned Additional Sessions Judge, West Tripura, Agartala in Session Trial No. 5 (W.T./S) of 1995.

(2.) Three accused persons, namely, Shri Dulal Chandra Debnath, shri Samir Shil and Shri Dulal Ghosh were tried on the charge under Section 366/.376 (2) (g) of the Indian Penal Code. The allegation against them was that on 21.5.1991 at about 10/11 p.m. (night) while the prosecutrix was asleep in her house, six miscreants trespassed into her house, pressed her mouth with cloth and forcibly dragged her out in a vacant place adjacent to the western side of her house and committed rape one after another. Miscreant further threatened her not to divulge the incident to anybody otherwise she would be killed. She was able to identify three of the miscreants as they were previously known to her. On the basis of F.I.R. the case was registered and the statement of the prosecutrix got recorded under Section 164 Cr. P.C. by Judicial Magistrate, 1st Class and after completion of investigation charge sheet was filed, trial commenced and concluded on acquittal. Hence, this appeal. The prosecution examined as many as 12 P.Ws while the defence none. Unfortunately, the prosecutrix could not be examined during trial as she already died before the commencement of trial. The cause of death of the prosecutrix was not brought on record during trial nor was there any allegation that the death of the prosecutrix was any way connected with the incident of alleged rape.

(3.) No eye witness was available and normally at such dead hours of night availability of the eye witness could not be expected in the remote village. Only the F.I.R. Ext. P/5 as had been made by the informant and the medical evidence of Dr. P.W. 11 appear to be material in the present case. F.I.R. was lodged by the prosecutrix herself. She made oral allegation to the Police officer on the following day and the Police Officer recorded the same and the prosecutrix put her left hand thumb impression. In the F.I.R. description of the incident remain recorded and the name of the three accused persons are also available. The learned trial court held that the F.I.R. being not a substantive piece of evidence, none could be convicted on the basis of the F.I.R. itself.