PREMLAL JAMBEKAR Vs. STATE OF TRIPURA

JUDGEMENT

(1.) This appeal filed under Section 374 of the Criminal Procedure Code is directed against the judgment of conviction and order of sentence dated 06.03.2006 passed by the Asstt. Sessions Judge, West Tripura, Agartala, Court No. 2 in S.T (W.T/A) No. 99 of 2005 convicting the appellant under Section 376(2)(f) of the IPC and sentencing him to suffer R.I. for a period of 10(ten) years along with a fine of Rs. 5,000/-, in default of payment of fine he has been directed to suffer further R.I for two years with a direction that if the fine money is realized, rupees four thousand would be given to the victim girl through her father. As it reveals from the records, the prosecution was launched against the appellant on the strength of the complaint filed by Sajal Deb, the father of the victim stating inter alia that his daughter have been traceless from a place near by his fast food shop at Ushabazar on her way to home about 10 O'clock at night. It has been disclosed that the appellant finding her on the way took to his residence by alluring and raped his daughter. On the following day, when his daughter was recovered, the informant came to know about the incident from her. The Airport Police Station, registered a case against the appellant under Section 376 IPC being Airport P.S. Case No. 41 of 2004 and on completion of the investigation the charge sheet was filed against the appellant and accordingly it was committed the offence as alleged was exclusively triable by the Court of Session, to the Sessions Judge, West Tripura, Agartala who transferred the case for trial to the Asstt. Sessions Judge, West Tripura, Agartala, Court No. 2. The trial Judge framed the following charge against the appellant.

(2.) The informant, Sajal Deb while examined as the PW-1, stated that the victim came to his shop which is situated at Ushabazar during the Durga Puja festival at about 08.30 p.m. and around 9.30 p.m. she left for home. After sometimes his wife namely Basana Deb returned home to ascertain whether the prosecutrix/victim had returned home safely. But having not found the prosecutrix there the PW-1 and his wife started searching for their daughter. On the following morning at about 7 am they could learn that their daughter was found in the house of one Harimohan Sarkar at South Narayanpur. Immediately they rushed to the house. The house owner namely, Harimohan Sarkar informed them, their daughter/prosecutrix was in the room of the appellant, a tenant of his and a CRPF personnel. During that time a police van arrived there and their daughter, the prosecutrix was found in the room. At about 9.30 am police personnel assembled there, the appellant was not found in the room at that time. Harimohan Sarkar and his wife told the PW-1 and his wife that the appellant had left the place. He further stated that the prosecutrix told that the appellant put her on his bed. Thereafter the prosecutrix and her parents were taken to the Airport police station. A written complaint was filed there by the PW-1 which he marked as Ext. 1. Thereafter they accompanied the prosecutrix when the police directed them not to allow the prosecutrix to have a bath etc. The Police took the prosecutrix to the IGM Hospital, where she was admitted for four days as the prosecutrix complained of pain in her private parts.

(3.) The PW.2 a child witness namely, Swapan Sarkar after due test of his intelligence and maturity to comprehend was examined when he stated: