JUDGMENT
A.B. Pal, J.
1. The five appellants herein have been convicted for committing rape on a minor girl and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 2000/- each, in default to suffer further rigorous imprisonment for six months. While the 1st appellant-Pradip Kumar Deb has been found guilty of committing rape, an offence punishable under Section 376(1) of the Indian Penal Code (for short IPC), the other four appellants, namely, Sri Dharamjit Nath, Kantu Nath, Banamali Malakar and Amar Malakar have been guilty of committing gang rape punishable under Section 376(2)(g) of I.P.C. By this appeal they have assailed the judgment dated 16-2-2001 passed by learned Additional Sessions Judge, North Tripura, Dharmanagar in ST 32 (NT/D) of 1999 whereby they have been convicted and sentenced as aforesaid.
2. The victim was only 10 years’ old when she was allegedly raped in the month of July, 1997. Though during investigation and trial her name has been disclosed ignoring the mandate of Section 228-A of I.P.C, I do not propose to disclose her identity again in this judgment keeping in mind the observation of the Supreme Court in State of Karnataka v. Putta Raja in . The observation of the Apex Court appearing in para 3 of the said judgment is gainfully quoted below (para 2):
We do not propose to mention the name of the victim. Section 228-A of I.P.C. makes disclosure of identity of the victim of certain offences punishable. True it is, restriction does not relate to printing or publication of judgment by High Court, or also lower Court.
But keeping in view the social object of preventing social victimization or ostracism of the victim of sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgment, be it this Court. High Court or lower Court, the name of victim should not be indicated. We have chosen to describe her as victim in this judgment.
I may only hope that all the trial Courts shall in future go by the above principle in letter spirit, by not disclosing the name and other particulars of the victim of sexual offence in the judgment.
3. The victim was admittedly a maid servant in the house of the 1st appellant-Pradip Kumar Deb, engaged two months before the occurrence. She came from a poor family with her father expired during her early childhood. During the absence of Asha Rani Deb (P.W. 7). the wife of the 1st appellant, in the last week of July, i 997 when she went to her parents’ house at Silchar, the said appellant had taken the opportunity to ravish the victim who was alone and helpless in his house. He committed rape on her more than once during the period 26-7-1997 to 28-7-1997. He threatened her that discloser of the occurrence to her mot her or anybody else would compel him to kill her. The victim child, frightened as she was, did not dare to go to her mother and tell her about the heinous offence perpetrated on her by her own master of her father’s age.
Her tragedy did not end there. More was waiting to invade and destroy her yet-to-blossom womanhood. On 30-7-1997 in the evening her master dropped her in the house of the 2nd and 3rd appellant-Sri Dharmajit Nath and Sri Kantu Nath, who are full blood brothers. They were close neighbours of the 1st appellant. In that house she was first raped by Banamali Malakar, the 4th appellant herein, followed by Amar Malakar, Dharmajit Nath and Kantu Nath one after the other committing thereby the alleged offence of gang rape. The victim bled profusely and fainted.
On 2nd August, 1997 Asha Rani (P.W. 7) returned home and noticed fresh and old bloods in the wearing apparel of the victim. Though the child refused to disclose initially, for the apparent reason of fear, Asha Rani suspected that the blood could not be due to menstruation at the age of ten and the girl might have been sexually abused. She went to victim’s mother (P.W, 1) Smt. Renubala Deb and apprised her of when she had noticed. The shocked mother rushed to the house of the 1st appellant and pressed her daughter to disclose the reason of bloodstains on her dress. Under pressure, the child broke into tears and narrated only the later part of the tale, what had happened in the house of Dharmajit and Kantu on the night of 30-7-1997. She did not disclose even to her mother that before she was gang raped on 30-7-1997, she had been earlier ravished by her own master. The poor mother was so much helpless that she had first, approached the village elders for justice and finally on their advice lodged the First Information Report on 6-8-1997, about a week after the. last crime of gang rape was committed. In the police station she was accompanied by the 1st. appellant and his wife (P.W. 7). The contents of the FIR was, for obvious reasons, confined to the occurrence of 30-7-1997 in the house of Dharmajit and Kantu.
4. During the course of investigation the victim was examined when for the first time she disclosed to the Investigating Officer that she was first ravished by her master on 26-7-1997, 27-7-1997 and 28-7-1997 when she was alone with him in his house. Out of fear, shame and threat she did not disclose the onslaught on her by the 1st appellant. She was sent to the Sub-Divisional Judicial Magistrate for recording her statement under Section 164(5) of the Criminal Procedure Code which was accordingly done on 13-8-1997. Again she stated to the learned Sub-Divisional Judicial Magistrate that when Asha Rani went to her parents’ house at Silchar she was alone in the house with the 1st appellant who raped her four times. On 30-7-1997 her master dropped her in the house of Dharmajit and Kantu on the pretext of her security during his absence. There she was gang raped. She was sent for medical test by the Investigating Officer. The investigation was closed with the charge-sheet against all the five appellants for raping the victim by the 1st appellant and gang raping her by four others.
5. The learned trial Court placed much reliance on the evidence of the victim child and her mother in the face of other non-official witnesses (P.Ws. 3, 5 and 7) making about turn. Asha Rani, the wife of the 1st appellant is expected to turn hostile to save her husband whose name transpired few days after she gave a statement to the Investigating Officer on 6 8 1997. In her statement to police which has Exhibited P-3, she supported the part of the story narrated by the victim child that 30-7-1997 that she was gang raped by Dharmajit, Banamali,’ Amar and Kantu. When her husband was also implicated by the victim in her statement to police; and then to the Magistrate, she, for obvious reasons, turned hostile and deposed before the Court that when she had left for Silchar the victim, child was in the custody of her mother. In her eagerness to explain the blood found on her dress the witness stated that the child might have fallen from a tree during her absence. She has not admitted that she had accompanied the informant to the police station for lodging the FIR. None should be surprised for her somersault. But the other witness Ratish Rn. Das (P.W. 3) and Paresh Ch. Sarma (P.W. 5) also turned hostile refusing to state anything about the occurrence, not even what the informant mother disclosed to them. It only ruefully shows that, the witnesses had changed their boat to sail with the offenders who undoubtedly were stronger than the poor informant and her ravished child.
6. Thus, the learned trial Court was left with only the testimony of the victim child and her mother and the circumstances surrounding the alleged offence. Though the medical report about capability of the appellants for sexual intercourse is available on record, the important report of the medical test of the victim girl has been missing without any explanation from the investigating and the prosecuting agencies and without any effort to bring if on record at any stage of the trial, for reasons best known to them. This has obviously given a handle to the defence to clamour noises that as the report would have disproved the allegation against the appellants it had been intentionally suppressed. The flip side of the argument may be that as the report might have confirmed the prosecution case, it had been stolen at the instance of the defence. Be that as it may, the learned trial Court after careful appreciation of the evidence found no reason to disbelieve the victim, girl whose version was found consistent throughout the investigation and trial with strong support from the circumstantial evidence. Based on the same he rendered the judgment of conviction and sentence against all the five appellants which is under challenge, in the present appeal.
7. I have heard learned Counsel for the parties.
8. Mr. Somen Saha, learned Counsel for the appellant-Pradip Kumar Deb submits that his client, whose name was not in the FIR, has been later implicated when he refused to depose against the other appellants. This plea which has not been taken at any stage during trial including his examination under Section 313, Cr. P.C. cannot now have any substance, more so for the reasons that no explanation has been offered why he refused to be a witness against the other appellants when the victim was working as a maid servant in his house and during the period of employment she had been subjected to sexual assault. Nonetheless, subsequent implication of the 1st appellant by the victim lends more credibility to the statement made in the FIR lodged by her mother. She was honest and truthful inasmuch as she stated in the FIR what exactly she had learnt from her daughter at that point of time. She made no exaggeration. It is to be always kept in mind that the poor helpless and tortured victim was in utter confusion and fear because of the threats from her perpetrator. Understandably, while disclosing the sordid tale to her mother in the house of her master, she did not: have enough courage to speak out the other part involving her master who was the first invader to her precious sexual purity. But. with the passage of time and when she was given the opportunity to faithfully state her story exclusively, she could gather courage and disclosed what was done to her by the 1st appellant. The sequence of events leading to the full disclosure of the whole crime scene, if appreciated carefully, the contents of the FIR, where the 1st appellant was not implicated, would shine as truth about one scene of the crime, the other scene to be revealed later by the victim herself.
Mr. Saha has pointed out that though the victim was examined by medical officer, the report of the test, which is essential to decide whether she was at all raped, has not been brought on record and in the absence of the same the findings that she was raped by the appellants is not legally sustainable. This submission of Mr. Saha has no substance if the entire episode is carefully gone into. It is not in dispute that the victim child was sick due to profuse bleeding from her private parts which, according to the wife of the appellant, was due to her fall from a free, a story without any roots. When there is nothing to disbelieve the statement of the ten years’ old girl about the injury sustained by her in private parts, non-examination of the doctor or non-production of the medical report cannot be fatal for the prosecution case. In State of M.P. v. Dayal Sahu reported in 2005 AIR SCW 4839 : 2005 Cri LJ 4375, the Apex Court observed (para 12):
Once the statement of prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reason which necessitate the Courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Non-examination of doctor and non-production of doctor’s report could not be fatal for the prosecution case if the statement of prosecutrix and prosecution witnesses inspires confidence.
9. In view of the law enunciated by the Apex Court, as above, and in the absence of any infirmity in the statement of the prosecutrix, the arguments of Mr. Saha on non-production of the medical report or non-examination of the doctor has no substance. There cannot absolutely be any reason for a 10 year old child, who is not even expected to know much about sex, to implicate her own master falsely who has been providing her food and shelter. No reason whatsoever could be shown by the said appellant why the victim, who could be his own child, had to falsely implicate him as her rapist.
10. Mr. Ratan Dutta, learned Counsel for the three appellants -Dharmajit, Kantu and Amar, placed a submission that the two appellants-Dharmajit and Kantu are full blood brothers and it is an unthinkable proposition that the two brothers together had raped a girl. Referring to the deposition of the victim herself he submitted that in the house of Dharmajit she was first raped by Banamali alias Bana Malakar who had first carried her from the kitchen to the bed room for committing rape. Though she claimed that she could identify Banamali by the light of the lamp, she herself admitted that she could not identify others as the light was put off and there was complete darkness. Even if it is believed that the other three appellants-Dharmajit, Kantu and Amar were present in the house, there is nothing in her statement to hold with definite certainty that after Banamali she was raped by Dharmajit, Kantu and Amar. According to Mr. Dutta, the two brothers lost their father only few days before the alleged occurrence and on 30-7-1997 and there was a Kirtan on that evening in their house in connection With the Sradha ceremony. In the absence of any strong evidence to the contrary, it is difficult to take at face value the omnibus statement of the prosecutrix that after Banamali she was raped by two brothers and Amar though in the same breadth she stated that she could not identify them due to darkness. She, however, asserted that she could definitely identify the first monster Banamali.
11. I have made a closer examination of the deposition of the victim where she has stated that she was first raped by Banamali whom she could distinctly identify. But as the lamp was put off by him during the intercourse, she could not identify the other three animals who devoured her flesh one after the other, though she suspected that two brothers and Amar might be the culprits. As she is the only witness to the occurrence in the house of Dharmajit and as there is no other evidence to materially corroborate her, her evidence has to be given strict and careful appreciation. I am inclined to accept the argument of Mr. Dutta that the two brothers could not rape a girl in their own house though it is possible that within their knowledge the victim was raped by Banamali whom she could distinctly identify. As she conceded in cross that she could not identify other three rapists, the two brothers and Amar are entitled to get the benefit of doubt.
12. Mr. R. C. Debnath, learned Special P.P. has made a strong argument that the learned trial Court has shown much leniency in awarding the sentence though the offence is heinous and the statement of the prosecutrix alone can be the basis for their conviction. This argument has undoubtedly strong substance for the reason that the entire case of the little poor child being raped by her master and others has been rightly found on terra firma by the learned trial Court on the basis of the statement of the victim alone. But again, it is because of her own statement that she could not identify’ other three offenders who raped her after Banamali, it would not be safe to convict the two brothers and Amar. As regards the offence and punishment in a case, such as this, the Supreme Court has made important observations in State of Punjab v. Ramdeb Singh in . The Apex Court observed in para 1 is quoted below:
Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity – it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Bodhisattwa Gautam v. Subhra Chakraborty the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life contained in Art. 21 of the Constitution of India (in short “the Constitution”). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized Judge, in our opinion, is a better statutory armour in cases against women than long clauses of penal provisions, containing complex exceptions and provisos.
13. As regards the delay which has also been clamoured on by the learned Counsel for the appellants, the Supreme Court in the said judgment observed that delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the grounds of delay in lodging the FIR. In the case on hand the occurrence had taken place in the last week of July and the FIR was lodged on 6th August only when the wife of the 1st appellant noticed blood stains in the garments of the victim and she brought the matter to the notice of her mother. Therefore, the delay has sufficient reason considering the facts and circumstances of the case particularly the threat and fear perception which prevented the victim from disclosing the matter earlier.
14. Though a helpless poor girl was brutally ravished by some animals in human form, no suitable provision exist for her rehabilitation. It is a sorry state of affairs prevailing in our unkind society. Such a victim certainly deserves, in my considered view, suitable relief against the huge loss of her dignity, honour, chastity and for the trauma she had to suffer. In the facts and circumstances of the case it is possible to mould and impose a hefty amount of fine which could be given for her rehabilitation. A lesser term of imprisonment with higher amount of fine can be one way of moulding such a relief. Keeping in mind the upper most necessity of rehabilitation of the poor child who might have to live with a stigma through out her life, I am inclined to provide such a relief, which would stand her in good stead.
15. In the result and for the reasons aforementioned this appeal is partly allowed acquitting the appellants-Dharmajit Nath, Kantu Nath and Amar Malakar. The conviction of Pradip Kumar Deb and Banamali Malakar under Section 376(1), I.P.C. is, however, upheld. It is to be appreciated that the offence committed by Pradip Kumar Deb, the master of the victim is graver than that of Banamali. He is the first monster destroying her womanhood before it could blossom. However, keeping in mind the question of suitable rehabilitation of the victim, I direct that Pradip Kumar Deb shall be liable to suffer five years rigorous imprisonment with a fine of Rs. 25,000/- (rupees twenty five thousand), in default another two years rigorous imprisonment. Banamali shall be liable to undergo three years’ rigorous imprisonment with a fine of Rs. 25,000/- (rupees twenty five thousands) in default another two years’ imprisonment. The entire amount of fine if realised within three months shall be paid to the victim girl. The learned trial shall ensure the money is suitably invested for her benefit and no amount goes to any middleman.
Appeal allowed in part.
Send down the records. The two convicts, if on ball, shall surrender to the trial Court forthwith. The other three appellants, on acquittal, are set at liberty. The sureties, if any, shall stand discharged.