Suk Bahadur Subba Vs. State of Sikkim - Court Judgment

Excerpt:
- - 4. the learned counsel for the appellant has challenged the conviction on the ground that the evidence produced by the prosecution is entirely untrustworthy inasmuch as the victim was a tutored witness and her evidence was intrinsically unreliable and the evidence of the other witness taktuk bhutia also lacked credence and further that the medical evidence on record is inconsistent with the prosecution story. the victim has deposed that the appellant had been known to her for about nine months prior to the date of the incident and was a frequent visitor to her house and was well known to her parents. the learned trial court justified the role played by taktuk bhutia by observing that it was only natural for a normal person to condemn and react angrily when he saw with his own eyes an indecent scene committed on a minor girl it is difficult to subscribe to the comments made by the learned trial court. the fact that he tutored the victim and put undue pressure on the victim and her father to prosecute the appellant in an attempt to see that the appellant was punished shows that he was not an independent witness :it is true that the appellant could not prove enmity with taktuk bhutia but it has to be remembered that it is the duty of the prosecution to prove beyond reasonable doubt guilt against the accused and the prosecution has failed to do so, in the present case.r. dayal, j.1. this appeal by the appellant suk bahadur subba is directed against the judgment dated 23rd march, 1987 of the learned sessions judge, in-charge, sikkim, convicting him under section 376 read with section 511 of the indian penal code and sentencing him to rigorous imprisonment for two years.2. the prosecution case, in brief, is as under:on30th august, 1985, the victim bonglimaya subba, then aged about 11 years who was living with her parents, had gone down from her residence to take bath, wash her clothes and fetch water from the water tap (dhara) and when she was coming back home, the appellant suk bahadur subba met her on the way and asked her as to where her father was and then the victim told him that he had gone to a place known as 17th mile. on getting this information the appellant taking advantage of the victim's father's absence, caught hold of her by her wrist and took her to the nearby paddy field, laid her on the ground, lifted her lungi and started commiting rape on her. at that time, the victim's mother called out the victim's name as 'kanchi' from somewhere, and on hearing that voice the accused freed the victim and started going down the hill from the scene of occurrence. as he.was going down, the witness taktuk bhutia (pw-2) called him back and took him to the residence of the victim and thereafter to the panchayat secretary along with the father of the victim and some witnesses. from there the victim and the victim's father went to the nearest police check-post i.e., rang rang check post on the advice of the panchayat secretary. from the police check post the victim was sent to the mangan hospital and there she was medically examined. on the next day, that is, 31st august, 1985, the father of the victim nandaram subba lodged a written complaint at the mangan police station under section 376 ipc on the basis of which formal fir was recorded.3. after investigation, the officer-in-charge mangan police station submitted charge-sheet against the appellant under section 376 ipc but the learned trial court framed charge under section 376 read with section 511 of the ipc. after recording evidence and recording the statement of the accused under section 342 of the code of criminal procedure, 1898 and giving opportunity to the appellant to produce his evidence, the learned trial court accepted the prosecution version and convicted him as stated above.4. the learned counsel for the appellant has challenged the conviction on the ground that the evidence produced by the prosecution is entirely untrustworthy inasmuch as the victim was a tutored witness and her evidence was intrinsically unreliable and the evidence of the other witness taktuk bhutia also lacked credence and further that the medical evidence on record is inconsistent with the prosecution story.5. as regards direct evidence about the incident, two witnesses namely, bangtimaya subba(p. w.-l)andtaktukbhutia(p. w.-2) have entered the witness box. the victim bangtimaya subba was about 11 years of age at the time of the incident and was about 12 years at the time when her evidence was recorded. the learned trial court made a note of the fact that the witness was able to understand the questions and give rational answers thereto and, therefore, was fit to give evidence as a witness. the victim has deposed that the appellant had been known to her for about nine months prior to the date of the incident and was a frequent visitor to her house and was well known to her parents. she also admitted that both used to tease each other prior to the date of the incident. she has deposed that on the date of the incident, she went below her house to wash her clothes and when she was coming back home, the accused met her on the way and asked her about the whereabouts of her father and when she told him that the father had gone to a place known as 17th mile, he caught hold of her by her wrist and took her to the paddy field where he laid her on the ground, lifted her lungi which she was wearing at that time and committed sexual intercourse with her as a result of which she suffered pain on her private parts. she further stated that she asked the appellant not to indulge in the act but he refused and then she slapped him with her left hand but he continued in the act. she further deposed that at that time her mother called out her name as 'kanchi' from somewhere and on hearing that voice, the appellant released her and went away from that place and then she herself came back home; on reaching home she found taktuk bhutia (p. w.-2) already in her house and he asked her whether she had indulged in the sexual intercourse with her free will or under duress, to which question she replied that she had been subjected to it by force. after some time, her father also came back home. she had further stated that three persons namely, pirangey saila, pirangey kancha and dorombey were working in a bhatti near her house and they came to her house on getting a signal from taktuk bhutia and then all of them went to the house of the panchayat secretary to report the matter. the panchayat secretary asked her father to go to the rang rang check post and then they went to the check post where a chit was given to her and then they went to mangan hospital where she was medically examined. on the next day the fir was lodged. in the cross-examination she made some disturbing admissions. she admitted that taktuk bhutia taught her how to make the statement before the police which implied that she was a tutored witness. this inference is further reinforced by her admission that she had stated under section 161 cr. p.c, before the police that her mother had also seen the incident with her own eygs, at the instruction of taktuk bhutia who had threatened that he would give her slaps if she did not make such statement before the police. she also admitted that her father cultivated the land of taktuk bhutia and that taktuk bhutia had threatened her father that if he did not take any police action against the appellant, he would remove him from his land, which implied that prosecution was not launched voluntarily by her father but on account of the threat of taktuk bhutia. then she admitted that it was not possible for any person to see the incident because of the surrounding standing paddy plants, which throws doubt on the testimony of taktuk bhutia (pw-2), the other witness who deposed that on the date of the incident at about 12 or 1 p.m., in the noon when he was going down to see his cardamom field, he saw the appellant and the victim indulging in sex act below the victim's house in the paddy field which belongs to him but which is cultivated by the victim's father nandram subba as a kutiadar, from a distance of about 25 to 30 feet. according to him, after seeing the incident, he signalled to the three persons who were working nearby in a dera to come to the place where he was standing. he did not shout at the accused because, as stated by him, if he had made any noise, the appellant would have run away. further, he has deposed that after sometime, the appellant finished the sex act and began proceeding down the hill and the victim started going up hill towards her house and at that time he called the appellant who came towards him. the witness then asked the appellant as to why he had done such an evil act on the victim and then the appellant replied that he had not done anything evil on her whereupon he showed to the appellant the paddy, plants which had been trampled upon by them while doing the sex act and then all these persons went first to the victim's house and then to the panchayat secretary's. in the cross-examination, the witness stated that when he was watching the incident he saw and heard one slap being given by the victim to the appellant. but admittedly he did not hear any other noise nor anybody calling the name of the victim. nandram subba, (pw-3) is the father of the victim. he deposed that on the date of the incident at about 12 noon he came back home with the cows when he saw in his house taktuk bhutia (pw-2), gangaram and two other persons along with the appellant and then taktuk bhutia informed him that the appellant had raped his daughter in the paddy field a little while earlier and then the matter was reported to the panchayat secretary. man bahadur limboo (pw-7) is another witness who has deposed that he along with gangaram and manikumar was engaged by one karma bhutia to construct his bhatti in his cardamom field on the date of the incident when at about 11 a.m. taktuk bhutia who was standing at a distance of 20 feet from him was waving his hands towards him and then all the three went to taktuk bhutia and then the latter led them to the paddy field and showed them that portion of the paddy field where the standing paddy plants had been trampled upon and then taktuk bhutia told them that at that spot the appellant had committed sexual intercourse with the daughter of nandram subba he further deposed that then on seeing the appellant moving downwards, taktuk bhutia called the appellant and then the appellant came to them. then taktuk bhutia is said to have asked the appellant as to what he was doing with the girl and then the appellant replied that he was having sexual intercourse with her. further the witness has stated that then they took the appellant to the house of nandram. three other witnesses namely, gangaram subba (pw-4), mani kumar (pw-5) and man prasad subba (pw-6) were tendered for cross-examination.6. medical examination of the victim was conducted by doctor tapan sarbajna (pw-9) on 30-8-85. in his opinion the age of the victim was about 11 years on the date of the medical examination and medical examination disclosed 'slight discharge (whitish) around external vaginal orifice' and hymen was intact but 'slightly reddened and deep seeded.' the vaginal walls were pinkish-red and cervix within normal size with some whitish discharge. aspiration of whitish discharge and swab were taken in normal saline vials and slides for pathological examination. he proved his report ex. p-4 where he also stated that there was no mark of physical laceration, contusion or trauma. he could not conclusively suggest whether there was any kind of sexual assault on the victim.7. the appellant was examined on the next day, that is, 31-8-85 by the same doctor i.e., p.w.-9. his age was given as about 20 years. he found 'bruise over left lower eyelid which was about 24 hours old', 'bruise at the backside of the left side of the chest 2' x 1', 'and bruise over right thigh about 1' x 1'. according to the doctor, these injuries could be caused by fist blows or by any blunt weapon. in the cross-examination, the doctor deposed that he had also examined the garments worn by the victim but he did not find any mud stain or any semen marks on her garments. he also said that the injuries could not have been caused by slaps by a small girl except the injury on the eye. investigation was done by the officer-in-charge, mangan, leyrab bhutia (pw-10) who has, amongst other things, stated that on 31-8-85 during investigation he seized one nylon underwear from the person of the appellant and one cotton lungi from the victim in the presence of witnesses vide seizure memo ex. p-2 and sent the seized articles to calcutta for chemical test but the report has not yet been received. in the cross-examination, he has stated that the witness taktuk bhutia had told him that he had himself witnessed the appellant committing rape on the victim and when he made hue and cry the appellant ran away but was caught by the villagers.8. it is thus clear that the medical evidence does not support the oral evidence. according to the evidence of the victim, there was penetration of the penis of the appellant into her vagina. taktuk bhutia (pw-2) also said that the sex act was complete. but the medical evidence does not substantiate this and could not suggest any sexual assault. the doctor did not find any semen marks on the garments of the victim though the investigating officer deposed that the lungi had semen marks. there is no report of chemical examination about it to support the prosecution's case. rather, the victim has deposed that the lungi was seized by the investigating officer after 3/4 days of the incident when it had already been washed by her. her father nandram subba also stated in his cross-examination that the lungi was seized after three days of the incident by the police. not only does all this not support the oral evidence but also casts doubt on the fairness of the investigation.9. it is true that the charge framed against the appellant is of making an attempt to rape and not of complete rape and so penetration was not necessary to prove the charge. yet the fact cannot be ignored that the evidence was adduced to prove complete rape including penetration. credibility, of evidence is to be tested on the basis of the depositions made and not on what depositions would have been sufficient to prove the charge. then the victim has deposed that the appellant released her on hearing her name being called out by her mother; but the mother has not entered the witness box. it is not known why the mother had called her and whether the mother saw the incident. in the face of the victim's statement her mother was a material witness and the fact that she was withheld, raises an adverse inference against the prosecution. further, the victim has said that when she reached back home she found taktuk bhutia already in the house. it is not understandable how taktuk bhutia could reach the house before the victim herself because whereas the victim came home direct from the scene of occurrence, taktuk bhofia according to his evidence, took three witnesses to the scene of the incident, had some talk with the appellant and it was only then that he along with others proceeded to the house of the victim. in fact, according to the evidence of taktuk bhutia, the victim was already in the house when he reached there along with others. then whereas taktuk bhutia (pw 2) and man bahadur limboo (pw 7) have deposed that the three persons who were working near the scene of occurrence for constructing a bhatti remained with taktuk bhutia from the place where taktuk bhutia saw the incident till all of them came to the victim's house, the. victim has deposed that the three persons were summoned by taktuk bhutia by making signal from her house. if the three persons were with taktuk bhutia, jt is not understandable how they could be seen working in a bhatti near the victim's house by the victim. another contradiction between the evidence of taktuk bhutia and man bahadur limboo is that whereas the former has stated that the appellant on being asked by him at the scene of occurrence as to why he had done an evil act on the victim, the appellant replied that he had not done anything evil, the latter said that the appellant admitted to have committed sexual intercourse with her then according to the evidence of taktuk bhutia and man bahadur limboo, on being called after the incident, the appellant voluntarily came to talk to taktuk bhutia; but the investigating officer has deposed that taktuk bhutia had stated before him that the appellant on being called ran away and was caught by the villagers. thus the evidence produced by the prosecution is contradictory in material particulars. rather the evidence of the victim is proved to be tutored by the other eyewitness taktuk bhutia (pw 2). one material witness namely, the mother of the victim has been withheld by trie prosecution. medical evidence does not support the prosecution's case. the defence case is that taktuk bhutia gave evidence against him and also put undue pressure on the victim and victim's father to prosecute him, because of some enmity. the learned trial court justified the role played by taktuk bhutia by observing that it was only natural for a normal person to condemn and react angrily when he saw with his own eyes an indecent scene committed on a minor girl it is difficult to subscribe to the comments made by the learned trial court. it is understandable if a person guides the father of the victim involved in such a case and helps him seek legal redress but it is going too far if such a person threatens the victim's father that if prosecution is not launched, the father would be deprived of the enjoyment of the land and then to tutor the witness. it is quite risky to hold an accused guilty on the basis of the evidence of a tutored child of tender age. in the present case, apart from the fact that the victim's evidence is tutored, it is found to be improbable in the face of the medical evidence and material contradictions in oral testimony. it is doubtful if taktuk bhutia saw any incident as stated by him, though he says that he saw the incident. as stated earlier, the victim has herself stated that it was not possible to see the incident because of the surrounding standing paddy plants. the other three witnesses who are said to have come near him, on being signalled, could also not see the actual incident. the fact that he tutored the victim and put undue pressure on the victim and her father to prosecute the appellant in an attempt to see that the appellant was punished shows that he was not an independent witness : it is true that the appellant could not prove enmity with taktuk bhutia but it has to be remembered that it is the duty of the prosecution to prove beyond reasonable doubt guilt against the accused and the prosecution has failed to do so, in the present case.10. in the result, the appeal is allowed, the impugned judgment is set aside and the appellant is acquitted of the charge brought against him. the appellant is in custody. he be set at liberty forthwith.