MARAN CHANDRA PAUL Vs. STATE OF TRIPURA

JUDGEMENT

(1.) This is an appeal against the judgment dated 9-1-92 of the Additional Sessions Judge, South Tripura, Belonia in S.T.40 (S.T/ B) of 1988 convicting the appellant for the offence of rape under S. 376, IPC and sentencing him to R.I. for five years and a fine of Rs. 2,000/- and in default to suffer R.I. for three months more.

(2.) The brief facts of the case are that an FIR was lodged on 16-2-1986 by Smt. Saraswati Paul with the Officer-in-Charge of Baikhora P.S. alleging that a year back in the month of Baishakh the appellant came to her house during noon time in absence of her parents and forcibly cohabitated with her by tempting her to marry soon. She further alleged that during the said month of Baishakh, the appellant cohabitated with her for three concecutive days, but out of fear, she kept it secret from her parents and in the month of Magha when she had labour pain, her parents came to know that she was pregnant. Thereafter, with the help of a local doctor Sukumar Poddar, she gave birth to a male child who died three days after. Her father narrated the incident to eminent persons of the locality in the village and the appellant confessed his guilt but refused to marry her because the money offered to him by her father did not satisfy him. Pursuant to the said FIR an investigation was carried on by the police and a charge-sheet was filed on the basis of which a charge for the offence of rape under S. 376, IPC was framed by the Addl. Sessions Judge, South Tripura, Belonia against the appellant. In course of trial, the Radiologist of G. B. Hospital, Agartala was examined as P. W. 1, according to whom the age of the victim girl, Saraswati Paul, was between 14 to 16. Saraswati Paul was examined as P. W.2 who repeated her version in the FIR. Her father and mother have been examined as P.Ws.3 and 4 who stated that it is only during the month of Magha when their daughter had labour pain that they came to know about the cohabitation of their daughter with the appellant. Two local persons, P.Ws.5 and 6, however, have stated in their evidence that they know nothing about the incident. Another local person has been examined as P.W.7, who stated in his version that he had attended the meeting in the house of P.W.6 in which the appellant admitted his guilt but demanded cash money, ornaments, etc. for taking Saraswati Paul as his wife. Dr. Sukumar Poddar has also been examined as P. W.8, who stated that during the month of Pausha or Magha, he arranged delivery of a male child in the house of P.Ws.3 and 4 and the woman who delivered the child was identified as the wife of Nimai Paul, the brother of Saraswati Paul but on the following day, he heard that it was Saraswati Paul, who had given birth to a male child and not the wife of Nimai Paul. The Investigating Officer has been examined as P.W.9. No evidence was led on behalf of the appellant. On the basis of the aforesaid materials, the learned Addl. Sessions Judge convicted the appellant under S. 376 of IPC.

(3.) At the hearing of the appeal, the contentions raised by Mr. M. L. Roy, learned counsel for the appellant, were that delay of more than one year in the filing of FIR would show that the prosecution story was not at all believable. Further Dr. Sukumar Poddar, P.W.8, has stated in his evidence that the woman who delivered the child was identified as the wife of Nimai Paul and not Saraswati Paul, P. W.6 in whose house a meeting was alleged to have been heldand the accused-appellant is said to have confessed his guilt has himself denied in his answer to question put by the Court that no such meeting was held in his house regarding settlement of dispute between Saraswati Paul and the appellant. Mr. Roy, further submitted that assuming though not conceding that the appellant cohabitated with Saraswati Paul, the evidence of Radiologist, P.W.1, indicated that Saraswati Paul was not under 16 years of age and hence the sixth clause under S. 375 of IPC which applies only to a victim girl "under sixteen years of age" was not attracted. On the other hand, the evidence of Saraswati Paul (P.W.2) would show that cohabitation by the appellant with Saraswati Paul was with her consent. Therefore, no offence of rape had been committed by the appellant and the trial Court's finding in the impugned judgment that consent of Saraswati Paul was not material was entirely erroneous.