TAPANDAS Vs. STATE OF TRIPURA

JUDGEMENT

(1.) Four appellants having been convicted under Section 376 (1) IPC and three of them also under Section 354 IPC on the charge of committing rape and outraging modesty in Sessions Trial No. 147 (WT/A) of 1999,have challenged in this appeal their conviction and sentence imposedby the learned Addl. Sessions Judge, West Tripura, Agartala by the impugned judgment dated 10.12.01.

(2.) The facts as set in by the prosecution is that on 9.6.98 at about 6 p.m. when the victim Saraswati Das, an unmarried girl aged about 20 years was returning home from her brother's shop, the appellants gettingher alone on the road suddenly swooped on her, dragged her in a nearby bush and while appellant Tapan Das committed rape on her the other 3 appellants aided him by pressing her down to the earth. She managed to raise cry which attracted some villagers including one Sarma of the Tripura State Rifles (TSR) who rescued and brought her to her house. The victim immediately narrated the incident to her mother and they went to the Bishalgarh Police station where she lodged complaint at 9 p.m. On the same night, she was examined by the Medical Officer who found live spermatozoa on her private parts and scratches on her breasts and other part of her body. The Police took up investigation and in due course submitted the chargesheet against all the 4 appellants. The trial court examined 10 witnesses and found all the appellants guilty. While appellant Tapan Das was convicted under Section 376 (1) IPC and sentenced to 7 years Rigorous Imprisonment, the other 3 appellants Umesh Das, Benu Das and Sanjit Das were convicted under Section 376 TPC read with Section 109 IPC and sentenced to suffer RI for 3 years. They were also convicted under Section 354 IPC and sentenced for RI for 1 year. No fine was imposed as the victim admitted that she was givenRs. 15,000/- Later. Against this conviction and sentence, the present appeal has been filed.

(3.) While convicting the appellants after a full dressed trial, the trial court mainly relied on impeccable deposition of the victim (PW 1) supported by her mother (PW 2) and Medical Officer (PW 5). The appellants are the residents of the same village, namely, Sukanta colony where the victim also resides with her parents and other family members. It is alleged that the relatives of the appellants had earlier raped her elder sister Lakshmi Rani Das and in this connection a case was pending at the time of present occurrence. The mother (PW 2) stated that appellant Tapan Das was her next door neighbour and that her daughter used to complain to her that whenever she was alone Tapan used to disturb her. However, the victim in the FIR which was lodged three hours after the occurrence disclosed the names of all the four appellants leaving no scope for defence to allege embellishment or false implication, as observed by the trial court. The Medical Officer (PW 5) examined her at 10 p.m. on the same night and found scratch marks on her right axilla, whitish materials around her private parts where he found live spermatozoa. Though the Medical Officer was of the opinion that there was no signs of penetration, the trial court held that penetration partial or full was not necessary for the purpose of rape. The presence of spermatozoa was enough to show that the rape was actually committed, though there was no penetration. This decision of the trial court has support in several decisions of the Apex court. The prasecution case having thus been proved mainly by these three witnesses which could not be dislodged or discredited by defence, the trial court convicted the appellants mainly under Section 376 IPC. As Tapan had committed the actual rape while other 3 aided him, the trial court held that other 3 appellants were liable to be convicted under Section 376 IPC read with 109 IPC and for touching her body they were also liable to be convicted under Section 354 IPC. Though Tapan was also liable for the same offence, but there is no such separate conviction and sentence on him.