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HIGH COURT OF TRIPURA
AGARTALA
Crl. A(J) 13 of 2023
Karam Ali @ Maharam Ali
Appellant(s)
……
Versus
State of Tripura
.......Respondent(s)
For the Appellant(s) : Mr. Subrata Sarkar, Sr. Advocate.
Ms. V. Poddar, Advocate.
For the Respondent(s) : Mr. Raju Datta, PP
Date of hearing & delivery
of Judgment & order : 30.07.2024.
Whether fit for reporting : No __
HON’BLE MR. JUSTICE T. AMARNATH GOUD
HON’BLE MR. JUSTICE BISWAJIT PALIT
J U D G M E N T & O R D E R(ORAL)
[T. Amarnath Goud, J]
Heard Mr. S. Sarkar, learned senior counsel assisted by
Ms. V. Poddar, learned counsel for the appellant. Also heard Mr. R.
Datta, learned PP appearing for the State-respondent.
[2] This present appeal is filed under Section 374 of the
Code of Criminal Procedure, 1973 against the judgment and order
of conviction dated 19.07.2022 and sentence dated 21.07.2022
passed by the learned Addl. Sessions Judge, Gomati Judicial
District, Udaipur in connection with case No. Sessions Trial 04 of
2020 convicting the appellant to suffer rigorous imprisonment for
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life and to pay a fine of Rs. 20,000/- only in default to suffer
rigorous imprisonment for one year for the commission of the
offence punishable under Section 376(1) of Indian Penal Code,
1860.
[3] The prosecution story in brief is that the prosecutrix
lodged a written ejahar to the O.C. of R.K. Pur Women PS alleging
that on 09.08.2019 at around 9 AM morning time she had gone to
nearby Tepania forest to collect firewood. At around 3 PM, while she
was preparing to return, at that time, accused Karam Ali alias
Maharam Ali (appellant herein) suddenly came there and taken her
towards the deep of the jungle forcefully. It was also alleged that
the accused Karam Ali alias Maram Ali committed rape upon the
prosecutrix there forcefully. Returning back to the house, the
prosecutrix informed the matter to her son and nearby people and
decided to take the shelter of law. The ejahar was received on
09.08.2019 at around 21:05 hours and a case was registered vide
No. 2019 WRP 042 under Sections 376 of IPC then the case was
endorsed to the WSI of police for its investigation.
[4] During investigation, the IO visited the POs, prepared
hand sketch maps with separate indexes, prepared seizure memos
after the collection of swabs, petticoat etc., arranged for medical
examination of victim and sent swabs for forensic examination,
examined available witnesses and recorded their statements u/sec.
161 of Cr.P.C. On completion of the investigation, the IO has laid
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down the charge sheet vide R.K. Pur Women PS C/S No.01/2020
dated 14.01.2020 under Section 376 of IPC against accused Karam
Ali @ Maharam All to face the trial.
[5] Learned Judicial Magistrate First Class, Udaipur, Gomati
Judicial District received the charge sheet on 17.01.2020 and
thereafter, on 24.01.2020, the learned Chief Judicial Magistrate,
Gomati Judicial District, Udaipur on perusal of the same, took
cognizance of offence under section 376 of IPC. The case record
was transferred then to the Court of learned JMFC, Court No.03,
Udaipur, Gomati Judicial District. On 17.02.2020, the case has been
committed to the Court of learned Sessions Judge, Gomati Judicial
District, Udaipur and subsequently, the same has been transferred
to Addl. Sessions Judge, Gomati Judicial District, Udaipur vide order
dated 19.02.2020 for trial in according to law.
[6] On received of the case record, the Court of the learned
Addl. Sessions Judge, Gomati Judicial District, Udaipur framed
charge on 11.03.2020 for commission of offences punishable under
Section 376 of IPC against the accused person namely Karam Ali to
which he pleads not guilty. Thereafter, to prove the charge,
prosecution has examined as many as 12 witnesses including the IO
of the case. After the closure of prosecution evidences, the accused
person was examined under Section 313 Cr.P.C to which he claimed
to be innocent and also declined to adduce any DWs on his behalf.
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[7] Learned Court below, upon hearing both the parties and
observing all the factual evidence on record, by order dated
19.07.2022, held the accused person, appellant herein guilty under
Section 376(1) of the IPC and convicted to suffer the sentence
under the said Section. Thereafter, on 21.07.2022, learned Court
below sentenced the accused to suffer rigorous imprisonment for
life with fine of Rs.20,000/- under Section 376(1) of the IPC in
default of payment of fine, to suffer rigorous imprisonment for
one(1) year. Hence, the present appeal is preferred by the accused
person, appellant herein.
[8] Mr. S. Sarkar, learned senior counsel assisted by Ms. V.
Poddar, learned counsel for the appellant contends that the learned
trial Court below convicted the appellant merely on conjectures and
surmises. There are material discrepancies between the statements
of the witnesses and this fact was not at all considered by the
learned trial Court below. He submits that the complainant in the
ejahar contended that on 09.08.2019 at about 3 P.M., when she
was preparing to bring the firewood home, the accused dragged
away her into the depth of jungle. But, in her deposition the
complainant i.e. P.W.1 deposed that the incident was taken place at
around 12 hours. It is contended that prosecution could not prove
its case beyond reasonable doubt. He, therefore, urges this Court to
set aside the impugned order and sentence passed by the learned
Court below.
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[9] On the contrary, Mr. R. Datta, learned PP appearing for
the State submits that prosecution has successfully proved the
charge levelled against the accused person before the Court below.
For the purpose of same, prosecution relied on the versions of
victim and other prosecution witnesses supported by the medical
evidence as well forensic expert evidence. It is further contended
that the victim categorically stated that on the alleged date of
incident, accused taken her forcefully towards deep jungle by
holding her legs and there committed sexual assault upon her. He,
submits that in the offence of rape, statement of the victim is of
utmost importance and law in this regard is settled that on the sole
statement of the victim, the accused can be convicted. However, in
the case in hand, P.W.2, P.W. 4, P.W.5, P.W.9 (Medical Officer) and
P.W. 11 (Forensic Expert) corroborated the version of victim and
defence side failed to counter them.
[10] During the course of argument, learned PP, to oppose
the submission made by the learned senior counsel for the
appellant, has placed reliance on the judgment of Hon’ble Supreme
Court passed in Birbal Nath v. State of Rajasthan and others
reported in 2023 SCC OnLine SC 1396. The contents of the said
judgment as referred by the learned PP, read as follows:
“….20. No doubt statement given before police during
investigation under Section 161 are “previous statements”
under Section 145 of the Evidence Act and therefore can be
used to cross examine a witness. But this is only for a
limited purpose, to “contradict” such a witness. Even if the
defence is successful in contradicting a witness, it would not
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always mean that the contradiction in her two statements
would result in totally discrediting this witness. It is here
that we feel that the learned judges of the High Court have
gone wrong.
21. The contractions in the two statements may or may not
be sufficient to discredit a witness. Section 145 read with
Section 155 of the Evidence Act, have to be carefully
applied in a given case. One cannot lose sight of the fact
that PW-2 Rami is an injured eye witness, and being the
wife of the deceased her presence in their agricultural field
on the fateful day is natural. Her statement in her
examination in chief gives detail of the incident and the
precise role assigned to each of the assailants. This witness
was put to a lengthy cross examination by the defence.
Some discrepancies invariably occur in such cases when we
take into account the fact that this witness is a woman who
resides in a village and is the wife of a farmer who tills his
land and raises crops by his own hands. In other words,
they are not big farmers. The rural setting, the degree of
articulation of such a witness in a Court of Law are relevant
considerations while evaluating the credibility of such a
witness. Moreover, the lengthy cross examination of a
witness may invariably result in contradictions. But these
contradictions are not always sufficient to discredit a
witness may invariably result in contradictions. But these
contradictions are not always sufficient to discredit a
witness. In Rammi v. State of M.P., (1999) 8 SCC 649, this
Court had held as under:
“24. When an eyewitness is examined at length it is
quite possible for him to make some discrepancies.
No true witness can possibly escape from making
some discrepant details. Perhaps an untrue witness
who is well tutored can successfully make his
testimony totally non- discrepant. But courts should
bear in mind that it is only when discrepancies in the
evidence of a witness are so incompatible with the
credibility of his version that the court is justified in
jettisoning his evidence. But too serious a view to be
adopted on mere variations falling in the narration of
an incident (either as between the evidence of two
witnesses or as between two statements of the same
witness) is an unrealistic approach for judicial
scrutiny.”………………….”
[11] Heard the submissions made at the Bar. Perused the
material evidence on record.
[12] On perusal of record and upon hearing the submissions
made by both the parties, this Court is of the view that the
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impugned order dated 19.07.2022 passed by the Court below
convicting the accused under Section 376(1) of the IPC needs no
interference. However, in so far as the sentence of the Court below
dated 21.07.2022 awarded to the accused appellant herein to suffer
rigorous imprisonment for life is concerned, the same is on the
higher side. This Court is of the considered opinion that the same
should be reduced to ten years rigorous imprisonment under
Section 376(1) of the IPC instead of rigorous imprisonment for life.
Accordingly, the impugned sentence dated 21.07.2022 awarded by
the Court below is modified to the extent as indicated above. It is
needless to mention that the period of detention already undergone
by the convict shall be set off.
In view of the above, the instant appeal is partly allowed
and thereby, the same is disposed of. As a sequel, miscellaneous
application(s), pending if any, shall also stand closed.
B. PALIT, J T. AMARNATH GOUD, J
Sabyasachi G.
Digitally signed by RAJKUMAR
RAJKUMAR
SUHANJIT SINGHA
SUHANJIT SINGHA Date: 2024.08.02 17:00:21
+05'30'