IN THE HIGH COURT OF TRIPURA

AGARTALA

CRL.A(J) No.10 of 2019

Sri Bahadur Debbarma,

son of late Pran Krishna Debbarma of
Lenti Bari, P.S. Champahour, District-
Khowai Tripura

………… Appellant
–Versus–
The State of Tripura
………… Respondent

For the Appellant (s) : Mr. D. Debbarma, Adv.

For the Respondent (s) : Mr. S. Debnath, Addl. PP

Date of hearing : 01.07.2020

Date of delivery : 07.10.2020

of Judgment & order
YES NO
Whether fit for reporting : √

HON’BLE MR. JUSTICE S. TALAPATRA

HON’BLE MR. JUSTICE S.G CHATTOPADHYAY

JUDGMENT & ORDER

[Talapatra, J]

The appellant was charged under Section 376(2) (i) of

the Indian Penal Code, the IPC in short, and under Section 4 of

Protection of Children from Sexual Offences Act, 2012, the POCSO

Act in short. After regular trial, the appellant has been convicted

under Section 376 (1) of the IPC by the judgement dated

30.07.2018 delivered in Special POCSO 12 of 2016 by the Special

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Judge (POCSO), West Tripura, Khowai. Pursuant to the said

judgment, the appellant has been sentenced to suffer rigorous

imprisonment for 10 years and to pay fine of Rs.1,00,000/- with

default stipulation. It has been observed by the Special Judge that

if the fine is realized, the said money shall be paid to the victim as

compensation for her and for her minor child born out of rape.

The benefit of Section 428 of the Cr.P.C. has been extended and

as such, the detention as suffered by the appellant shall be set off

from the term of imprisonment.

[2] By means of this appeal filed under Section 374(2) of

the Cr.P.C., the said judgment and order of conviction and

sentence dated 30.07.2018 have been challenged.

[3] The genesis of the prosecution is located in the written

complaint [Exbt.5] filed by one Radhakanta Debbarma[PW-1],

revealing that his minor daughter [name withheld for protection of

her identity] was suspected of something ‘untoward’ when his wife

asked their daughter about her health. Then he came to learn that

about 4 month’s prior to that day, in one evening [dust], his

daughter had gone to the rubber garden located at the backside

of that house of Bahadur Debbarma of their village for grazing

cow. At that time, Bahadur Debbarma, aged 55 years, committed

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rape on his daughter. After commission of rape, Bahadur

Debbarma threatened his daughter not to disclose that incident to

anyone. PW-1’s wife informed the said culpable act to the wife of

Bahadur Debbarma when she had gone to that house of Bahadur

Debbarma. Even the wife of Bahadur Debbarma requested PW-1’s

wife not to disclose the said occurrence to anyone. On the

following day, Bahadur Debbarm’s wife came to the house of PW-

1. Thereafter, PW-1’s wife had taken their daughter to Khowai for

medical check up. The doctor told them that their daughter was

having pregnancy for four months. Thereafter, PW-1’s wife

informed the matter to the village elders. Bahadur Debbarma

came to their house and told them not to file any case as he

would pay money as well as land to them. But the village elders

advised PW-1 to inform the police in the matter. Accordingly, the

oral complaint was filed by PW-1 on 19.09.2015 to the Officer-in-

Charge, Champahour Police Station, Khowai. Based on the said

ejahar, Champahour P.S case No.2015CPHPS023 was registered

under Section 376(2) (i)/506 of the IPC and under Section 4 the

POCSO Act. The case was investigated by Ramulas Sangma [PW-

11], a Sub-Inspector of Police posted in the said police station. On

completion of investigation, the police report chargesheeting the

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appellant, Bahadur Debbarma, was filed under Sections 376/506

of the IPC and under Section 4 of the POCSO Act. The appellant

was arrested during the investigation.

[4] As the appellant denied the charge and claimed to face

the trial, the prosecution in order to substantiate the charge,

adduced as many as 13 witnesses including the forensic expert

[PW-2], the medical officer who examined the victim [PW-13], the

victim [PW-5], the victim’s father and the informant [PW-1] and

the victim’s mother [PW-2]. Fourteen documentary evidence were

adduced by the prosecution including the medical examination

report of the victim [Exbt.14] and the forensic report in respect of

DNA matching [Exbt.12]. The victim’s statement was also

recorded under Section 164(5) of the Cr.P.C. The defence did not

lead any evidence. After the prosecution evidence was recorded,

the appellant was examined under Section 313 of the Cr.P.C.

where he had reiterated his plea of innocence and termed those

evidence incriminating him as false and fabricated. He had also

taken the plea that his blood sample was never collected. He had

also denied that he ever committed to give land and money for

the victim. After appreciating the evidence as well as the

arguments so placed by the prosecution and the defence, the trial

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judge has believed the prosecution’s story and observed that the

DNA test has conclusively proved the involvement of the appellant

in the rape. However, since the prosecution has failed to prove

the age of the victim of the said sexual assault, the appellant

could not be convicted under the provisions of POCSO Act and not

even under Section 376 (2)(i) of the IPC. The conviction was

under Section 376(1) of the IPC for forceful intercourse without

consent.

[5] Mr. D. Debbarma, learned counsel appearing for the

appellant has submitted that there is huge delay in filing the

complaint in the police station. The delay is more than 4 months.

According to the first information report, the incident took place 4

month’s prior to 19.05.2015, the day when the complaint was

filed in the police station. According to Mr. Debbarma, learned

counsel, lot of parlays had taken place and in order to exploit the

appellant, the case was embellished. On the basis of such

complaint, the investigation which commenced has failed to churn

out the truth. Mr. Debbarma, learned counsel has further

submitted that discrepancy between the date of occurrence which

has also not ascertained and the age of pregnancy is highly

material but that was completely overlooked by the trial Judge.

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Mr. Debbarma, learned counsel has also submitted that the

complaint has been filed out of ‘family rivalry’. According to Mr.

Debbarma, learned counsel, the trial Judge has relied the

evidence of PWs-1,2 & 4 without exercising requisite caution

knowingfully well that they are highly interested in the outcome of

the trial. PWs-3,7 and 8 are also interested witness but they are

all hearsay witness. Moreover, Mr. Debbarma, learned counsel,

has submitted that the appellant has categorically stated in his

statement recorded under Section 313 of the Cr.P.C. that from

him no blood sample was collected. Thus, the result of the DNA

test is irrelevant for purpose of returning conviction. The

conviction being based on surmise and unsustainable material be

interfered with and set aside. In support of his contention, Mr.

Debbarma, learned counsel has relied on a few reports in Rajoo

and Others vs. Stat of M.P., reported in AIR 2009 SC 858 the

apex court has observed that ‘the basic principle that ordinarily

the evidence of a prosecutrix should not be suspect and should be

believed, the more so as her statement has to be evaluated at par

with that of an injured witness and if the evidence is reliable, no

corroboration is necessary. Undoubtedly, the aforesaid

observations must carry the greatest weight and we respectfully

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agree with them, but at the same time they cannot be universally

and mechanically applied to the facts of every case of sexual

assault which comes before the Court. It cannot be lost sight of

that rape causes the greatest distress and humiliation to the

victim but at the same time a false allegation of rape can cause

equal distress, humiliation and damage to the accused as well.

The accused must also be protected against the possibility of false

implication, particularly where a large number of accused are

involved. It must, further, be borne in mind that the broad

principle is that an injured witness was present at the time when

the incident happened and that ordinarily such a witness would

not tell a lie as to the actual assailants, but there is no

presumption or any basis for assuming that the statement of such

a witness is always correct or without any embellishment or

exaggeration. Reference has been made in State of Punjab vs.

Gurmit Singh & Ors. : (1996) 2 SCC 384 to the amendments in

1983 to Sections 375 and 376 of the India Penal Code making the

penal provisions relating to rape more stringent, and also to

Section 114A of the Evidence Act with respect to a presumption to

be raised with regard to allegations of consensual sex in a case of

alleged rape. It is, however, significant that Sections 113A and

 Page 8 of 26

113B too were inserted in the Evidence Act by the same

amendment by which certain presumptions in cases of abetment

of suicide and dowry death have been raised against the accused.

These two sections, thus, raise a clear presumption in favour of

the prosecution but no similar presumption with respect to rape is

visualized as the presumption under Section 114A is extremely

restricted in its applicability. This clearly shows that in so far as

allegations of rape are concerned, the evidence of a prosecutrix

must be examined as that of an injured witness whose presence

at the spot is probable but it can never be presumed that her

statement should, without exception, be taken as the gospel

truth. Additionally her statement can, at best, be adjudged on the

principle that ordinarily no injured witness would tell a lie or

implicate a person falsely. We believe that it is under these

principles that this case, and others such as this one, need to be

examined.’

[6] Even though Mr. Debbarma, learned counsel has

placed reliance on State of Himachal Pradesh vs. Mange Ram,

reported in AIR 2000 SC 2798 and Uday vs. State of

Karnataka, reported in AIR 2003 SC 1639 but those reports

are remotely relevant in the context of the case. Both the reports
 Page 9 of 26

primarily are concerned with consent on misconception of fact or

sexual intercourse on promise of marriage. No such plea can be

raised by the defence in this case inasmuch the victim never

stated that there was promise of marriage or on misconception of

fact she allowed the appellant to have sexual intercourse with her.

On the aspects of paternity, another decision has been placed for

consideration by Mr. Debbarma, learned counsel in Kaini Rajan

vs. State of Kerala, reported in 2013 Cri.L.J. 4338, where the

apex court had occasion to observe as follows:

“19. Behaviour of the parents of the prosecutrix viz. PW3 and

PW4 also appears to be strange. On their evidence they stated
that they came to know about the relations between the
appellant and the prosecutrix when they found her pregnant.
Prosecutrix had told them that the appellant had agreed to marry
her. They knew the appellant and his family already. However,
there is not even a whisper that they approached the appellant or
his family members for marrying the prosecutrix. They
straightaway went to the police station to lodge the report, that
too after the birth of the child. All these factors cast a doubt on
the prosecution version. The version of victim, in rape commands
great respect and acceptability, but, if there are some
circumstances which cast some doubt in the mind of the court of
the veracity of the victim's evidence, then, it is not safe to rely on
the uncorroborated version of the victim of rape.”

[7] Mr. Debbarma, learned counsel has, based on the

proposition of law as raised in Kaini Rajan (supra), contended

that the victim’s statement is bereft of any materials. That apart,

in the cross-examination, she has stated thus:

“Today police brought me before the court.

I also adduce my evidence as per dictation of police officer.

First time when I appeared before the court I also adduced my

evidence as per dictation of police officer. My parents are also
present today. On the first day when I came to the court my
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parents were also with me and on that occasion they also

dictated me.”

Thus, it is evidently clear that the victim’s statement

cannot be relied at all. Even in the examination-in-chief, the

victim did not furnish the details of the rape. For purpose of

reference, the entire the examination-in-chief with the

observation of court is reproduced hereunder:

“About two months back on a certain day Bahadur raped me in a

garden at about 1100 hours. After committing rape accused
threatened. I was also examined by the Medical Officer. I was
produced before the court and stated that when I was collecting
firewood accused committed rape upon me. Bahadur is known to
me. He is present and is identified. [Repeatedly questions asked
to the witness through the interpreter but no rational answer
give by the witness.]”

[8] Thereafter, Mr. Debbarma, learned counsel has

submitted that the DNA is the genetic blueprint for life and is

virtually content in every cell. No two persons, except identical

twins have ever had identical DNA. DNA testing can make a

virtually positive identification when the two samples match it

exonerates the innocence and helps to convict the guilty.

According to some opinions, the DNA testing hits the nail on the

head of the accused and is the last and clinching piece of evidence

which shows that it is the accused and the accused alone who

committed the rape of the victim. Mr. Debbarma, learned counsel

has relied on a decision of the Gujarat High Court in State of

Gujarat vs Jayantibhai Somabhai Khant [judgment dated

 Page 11 of 26

30.04.2015 in R/CR.A/224/2012] where it has been observed as

follows:

“36. We are not unmindful of a decision of this Court in the case

of Premjibhai Bachubhai Khasiya va. State of Gujarat : 2009 Cri
LJ 2888 wherein a Division Bench of this Court observed that if
the DNA report is the sole piece of evidence, even if it is positive,
cannot conclusively fix the identity of the miscreant, but if the
report is negative, it would conclusively exonerate the accused
from the involvement or charge. It was observed that science of
DNA is at a developing stage and it would be risky to act solely
on a positive DNA report. This decision was rendered more than
four and a half years back. Science and Technology has made
much advancement, and world over DNA analysis technology is
being relied upon with greater confidence and assurance. We do
not think that the Indian Courts need to view the technology with
distrust. Of course, subject to the laboratory following the usual
protocols, DNA result can be of immense value to the
investigators, prosecutors as well as courts in either including or
excluding a person from involvement in a particular act. The said
decision of this Court must be viewed in the background of the
facts in which it was rendered. It was a case where the accused
were charged with offence under Sections 363, 366, 376 read
with Section 114 of the Indian Penal Code. All important
witnesses including the prosecutrix herself had turned hostile
and did not support the prosecution. Despite which, the trial
Court handed down conviction primarily on the basis of DNA
report which opined that the DNA profiling of the foetus matched
with that of the appellant original prime accused. It was in this
background while reversing the conviction, the above noted
observations were made. It can thus be seen that mere
establishment of the identity of the father of the foetus in any
case would not be sufficient to record conviction of the accused
for rape and gang-rape under Sections 363, 366 and 376 of the
Indian Penal Code. The said decision, in our opinion, therefore,
cannot be seen as either rejecting the reliability of the DNA
technology or laying down any proposition that in every case the
DNA result must be corroborated by independent evidence before
the same could be relied upon.”

[9] Mr. S. Debnath, learned Addl. PP appearing for the

State has quite emphatically submitted that the decision of the

Gujarat High Court cannot be the universal illustrator of all

occasions. In that case, the victim herself did not support the

prosecution case but here, the victim has categorically stated that

she was raped by the appellant. True it is that expected

 Page 12 of 26

elaboration has not been placed by the victim or in the cross-

examination, her statement about the police assistance may

create confusion, but this statement cannot be treated at par with

the tutored statement. That apart, PW-10 has clearly stated that

he had collected the DNA sample of the appellant and he sent it

and thereafter to the SFSL, Narsingarh. Similarly he had collected

the blood sample of the victim and her baby. The said statement

was not contested by way of cross-examination by the defence.

Therefore, the challenge regarding sampling cannot stand

inasmuch as the prosecution has proved the sampling to the hilt.

Since the state has not challenged the finding of the trial judge in

respect of age of the victim, it is of no utility to argue on that

aspect. The case of the prosecution has been proved in conformity

to the standard and no doubt has been left unanswered. In

Deepak Gulati vs. State of Haryana, reported in AIR 2013 SC

2071, the apex court has shed light on the sensitivity involved in

the prosecution of reprehensible crime of rape. It has been

observed as follows:

“17. Rape is the most morally and physically reprehensible crime

in a society, as it is an assault on the body, mind and privacy of
the victim. While a murderer destroys the physical frame of the
victim, a rapist degrades and defiles the soul of a helpless
female. Rape reduces a woman to an animal, as it shakes the
very core of her life. By no means can a rape victim be called an
accomplice. Rape leaves a permanent scar on the life of the
victim, and therefore a rape victim is placed on a higher pedestal
than an injured witness. Rape is a crime against the entire
 Page 13 of 26

society and violates the human rights of the victim. Being the
most hated crime, rape tantamounts to a serious blow to the
supreme honour of a woman, and offends both, her esteem and
dignity. It causes psychological and physical harm to the victim,
leaving upon her indelible marks.”

[11] Mr. Debnath, learned Addl. PP has submitted that the

psychological harm as caused to the victim is of enormous

proportion and the court should take into consideration while

appreciating her testimony else the victim who is finding survival

a challenge would be deprived of justice.

[12] For appreciation of the submissions advanced by the

learned counsel for the appellant and the state, it would be

appropriate to make a short survey of the evidence as recorded in

the trial.

PW-1, Radhakanta Debbarma lodged the

complaint[Exbt.1] stating that the victim [his daughter] on a

certain date at about 1200-1300 hours was raped by the

appellant. After lapse of 4 months, his daughter disclosed the fact

to his wife. At that time, on examination by the doctor, his

daughter was found 4 month’s pregnant. There was village

meeting over that issue. In the meeting, the appellant was

instructed to pay Rs.16,000/- and give 2 kanies of land in the

name of his daughter. But the appellant did not abide by.

Thereafter, PW-1 lodged the said complaint. He has denied the

 Page 14 of 26

suggestions contrary to what he had stated in the examination-in-

chief. He has also denied the suggestions that there was no

village meeting or instruction on the appellant to pay money or

give certain amount of land in favour of the victim. But PW-1 has

admitted that there are few houses nearby the rubber garden

where his daughter was raped. The neighbour work there

throughout the day. In the northern side of the said garden, a

road runs. In the vicinity, there is a shop of the appellant. The

people visit that shop for purchasing articles. Kamalpur road

situate adjacent to the said rubber garden. On the said road,

there is frequent movement of vehicles.

[13] PW-2, Shantirani Debbarma is the mother of the

victim. According to her, on a certain day at about 1200 hours her

daughter [even though PW-2 has named, but for purpose of

protecting her identity the name is withheld] went inside the

rubber garden for grazing cow. At that time, the appellant

committed rape on her daughter. She has disclosed that after

about 1 month of the occurrence, her daughter informed her. At

that time, she was pregnant. The local headman was informed.

There was a village meeting where the appellant asked ‘to pay

some cash money and 2 kanies of land in the name of my

 Page 15 of 26

daughter’. But the appellant did not abide by the said decision.

Afterwards, the said complaint was lodged by her husband. PW-2

had identified the appellant in the trial. She has also stated that in

the month of Poush last, her daughter gave birth to a child. Her

daughter was living with them with her baby. In the cross-

examination, she had denied the suggestion contrary to what she

had stated in her examination-in-chief, but she has clearly stated

that she cannot say the contents of the seizure list [Exbt.2] on

which the police officer did take her signature.

[14] PW-3, Smt. Asharani Debbarma has testified in the

trial that the victim went to rubber garden for grazing cow. At

about 2 pm at Lenti Bari, the appellant did ‘wrong’ to the victim in

the rubber garden. After about 4 months, the appellant informed

her about the occurrence. At that time, she was not physically fit.

The victim is her relative. She has also stated about the village

meeting and instruction to the appellant to pay Rs.17,000/- and

to transfer 2 kanies of land in favour of the victim. But the

appellant did not abide by. As a result, a case was filed against

him. PW-3 also corroborated that the victim gave birth of a child.

The victim and the child were living with her parents. She has

denied the suggestions to contradict her statement in the

 Page 16 of 26

examination-in-chief. She has stood by her statement made to

the police officer.

[15] PW-4, Smt. Archana Debbarma is a women Sub-

Inspector of Police. On 21.09.2015, she recorded the statement of

the victim in Kakborok using the Bengali script.

[16] PW-5, the victim has been reproduced extensively

when recording the submission of Mr. Debbarma, learned counsel

appearing for the appellant.

[17] PW-6, Sayani Sen was the Staff Nurse on

16.03.2016. She stood as the witness of seizure of the blood

sample of the victim and her baby by the seizure list [Exbt.4].

She and one doctor, Bikram Debbarma, collected the blood

samples containing in one gauge paper and thereafter, the sample

was handed over to the investigating officer.

[18] PW-7, Iswar Chandra Debbarma has stated that 5/6

months ago, parents of the victim informed him that the appellant

had sexual intercourse with the victim and the victim had become

pregnant and on that day, the victim’s pregnancy was 4/5 months

old. PW-7 has further testified that over that issue, there was a
 Page 17 of 26

village meeting. It was decided in the village meeting that the

appellant would make payment of Rs.17,000/- and transfer a

piece of land measuring 2 kanies in favour of the victim but the

appellant did not fulfil the said commitment. He had denied the

suggestions contrary to what he had stated in the examination-in-

chief. But he did not confirm whether at the time of occurrence,

the victim was a student of Bangshirambari School.

[19] PW-8, Swarajit Debbarma has stated that both the

victim and the appellant are known to him. One year prior to the

day of recording the deposition in the trial, he was informed that

the victim had been raped by the appellant in a rubber garden.

The victim had become pregnant. A village meeting was convened

but according to him, the appellant did not attend the said

meeting. But it was decided in the meeting that a piece of land

measuring 2 kanies would be transferred in the name of the

victim. Even the parents of the victim was assured of making

payment of some cash money. According to PW-8, the distance

between the rubber garden of Bahadur and Jharia is about 3 Kms.

He has denied the suggestion that Bahadur did not attend the

Salish nor did he make any commitment of giving 2 kanies of land

and cash money to the victim.

 Page 18 of 26

[20] PW-9, Dhirendra Debbarma was the teacher-in-charge

of Sahadas Baishnabbari S.B. School [a primary section] on

02.02.2016 when he handed over a copy of the admission register

to the investigating officer. He had denied the suggestion that the

victim was not a student of that school or he was not the teacher-

in-charge in the year, 2014.

[21] PW-10, Dr. Bikram Debbarma was a medical officer at

Khowai District Hospital on 16.03.2016. He has admitted that he

did collect blood sample of Bahadur Debbarma for DNA profiling.

After the samples were prepared and seized those were sent to

SFSL, Narshingarh for DNA profiling. The blood sample was

collected from the victim and the baby.

[22] PW-11, Remulas Sangma had investigated the case.

He has narrated in the trial how he did carry out the investigation

by making seizure, recording the statements of the witnesses. He

has also stated that he did receive the blood samples for DNA

test. It has been mentioned by him in the trial that the victim

gave birth of a baby prior to collection of blood for DNA test. He

has also stated in the trial that he seized the admission register of

the Sahadas Bashnabbari Senior Basic School by preparing the

 Page 19 of 26

seizure list [Exbt.10]. After completion of investigation, since a

strong prima-facie case had surfaced, PW-11 filed the

chargesheet sending up the appellant to face the trial under

Section 376/506 of the IPC. In the cross-examination, he has

stated that no ossification test was done. PW-11 has categorically

stated in the trial that Asharani Debbarma [PW-3] did not state

him that Bahadur Debbarma committed rape on the victim. Even

he has denied in the cross-examination that Bahadur did not give

any commitment to pay Rs.17000/- or to transfer 2 kanies of land

in favour of the victim.

[23] PW-12, Dr. Subhankar Nath was the Deputy Director

cum Assistant Chemical Examiner in DNA typing division in State

Forensic Science Laboratory [SFSL], Narshingarh. He has narrated

in the trial that in connection with Champahour PS case

No.2015/CPH/023 dated 19.09.2015, the SDPO, Khowai had sent

the Exhibits.A, B & C, as marked by the SFSL, for forensic

examination and DNA profiling. Exhibit-A, one sealed paper

envelop carrying 7 seals of SDPO, Khowai and 8 signatures

obtained on 16.03.2016. Exhibit-A contained bloodstain gauge,

said to be the blood sample of baby. Exhibit-B was a sealed paper

envelop having 6 seals of SDPO, Khowai and 7 signatures dated

 Page 20 of 26

16.03.2016 with the stamp impression of the emergency medical

officer of Khowai District Hospital. Inside the said envelop, it was

the bloodstain gauge, said to be the blood sample of the victim.

Similarly, Exhibit-C is the bloodstain gauge, said to be the blood

sample of the appellant. The DNA profiling was carried out within

a period from 30.03.2016 to 12.04.2016. DNA was extracted from

Exbts. A,B & C and thereafter, the DNA profiling was done as

regards 3 Exbts. [Exbts.A, B & C]. Thereafter, PW-12 has testified

in the trial as follows:

“On the basis of the observations it is opined that (1) …..[the

name of the victim as withheld by this court] is the biological
mother of the Baby Bahaduri Debbarma and (2) Shri Bahadur
Debbrama is the biological father of baby Bahaduri Debbarma.
The allelic distribution of genetic prolifilr of Exhibit-A,B and C has
shown in the annexure A. The report was prepared by me and
signed by me on 12.04.16. which was forwarded by the Director
to the Forwarding Authority on 12.04.16.”

PW-12 admitted the said report [Exbt.12 series] in the

evidence. He has explained the process of the said profiling in the

following words:

“The amelogenin gene is responsible for sex chromosome of

human being. The human male having with one X and one Y
chromosome and the human female having 2 chromosome. In
the allelic distribution table at amelogenin marker in exhibit-A
there are XX chromosome has been expressed indicating that
Bahaduri Debbarma is female in sex. In case of exhibit-B two X
chromosome has been expressed in a amelogenin marker
indicating the exhibit-B blood also a female blood i.e. the blood
sample of …..[name withheld]. Whereas in exhibit-C at
amelogenin maker XY chromosome has been expressed
indicating the blood sample of the male blood, i.e., blood sample
of Bahadur Debbarma.”
 Page 21 of 26

In the cross-examination also he has further

elaborated about the process and the signs of DNA profiling by

stating that DNA is a double helic structure consists of sugar

phosphate and nitrogenous base are of two types namely, purine

and pyrimidine. Purine are of two types viz. adenine and guanine.

Pyrimidine are of two types viz. cytosine and thymine. According

to PW-12, it is mandatory to study the nitrogenous basis to

generate the DNA profile and comparison.

[24] PW-13, Dr. Supriya Debbarma, a medical officer

working in Khowai District Hospital on 19.09.2015 has testified

the trial to state that on that day the victim who was aged about

14 years was produced in the hospital by the police with alleged

history of rape. On obtaining the consent from the father of the

victim girl, Radhakanta Debbarma [PW-1] and following the due

process, he had examined the victim. She found her hymen had

old rupture. She was carrying pregnancy of 24 weeks. For

purpose of confirmation of pregnancy urine test and thereafter,

ultra sonography were done. She has stated that she opined in

her report [Exbt.14] that the victim was pregnant and carrying

the foetus of 24 weeks. She did not find any sign of violence on

her body, no foreign public hair near the private parts. She
 Page 22 of 26

prepared the report on the prescribed form and she had duly

singed the said report. She had denied that the girl was not 14

years of age in the cross-examination.

[25] The trial Judge has correctly observed that age of the

victim could not be proved by the required evidence. The trial

Judge while appreciating the evidence of the victim has recorded

that ‘the examination of the prosecutrix shows that non-

responding to the questions of interpreter indicates that the

prosecutrix was under immense pressure. In such like it [sic]

becomes the duty of the court to ensure that the witness

deposing freely, without any pressure’. The trial Judge, thus, has

criticized the proceeding of the trial in an unusual manner. This is

highly inappropriate. If the trial Judge felt any inadequacy in the

testimony, he might have exercised his power as provided under

Section 311 of the Cr.P.C. for purpose of elucidation and

clarification. Regarding the report of the DNA Typing Division of

SFSL, what Mr. Debbarma, learned counsel appearing for the

appellant has submitted, cannot be accepted inasmuch as in

Jayantibhai Somabhai Khant (supra) Gujarat High Court has

expressed certain reservations even after observing that the DNA

result can be of immense value to the investigators, prosecutors

 Page 23 of 26

as well as to the court in either including or excluding a person

from involving in a particular act. But as the victim did not

support the prosecution case by stating that she was violated, the

Gujarat High Court has observed that mere determination of

parentage would not be sufficient to record conviction of the

accused for rape. The said report has also clearly noted that they

were not laying down any proposition that in every case the DNA

result must be corroborated by independent evidence.

The science of DNA profiling has been so perfected that

unless the procedure is compromised, the accuracy of result

cannot be doubted. When the DNA profiling is done properly it

results are infallible.

[26] What we have observed in this case is that there had

been no cross-examination of PW-12 in respect of the process of

DNA profiling nor its result has been questioned. PW-12 has

stated about the process that he had followed for purpose of DNA

extraction and its matching. Hence, there cannot be any doubt

about the results which have been definitely recorded in the

report [Exbt.12]. What has been submitted by Mr. Debbarma,

learned counsel in respect of the testimony of PW-5 requires

further attention. The victim has clearly stated that she was raped
 Page 24 of 26

in a garden at about 1100 hours and after committing rape, the

appellant threatened her. She had also stated in the trial that

when she was collecting firewood, the appellant committed rape

on her. The demeanour as recorded by the trial Judge in our

considered opinion does not reflect adversely on the testimony of

the victim. In the cross-examination, what she stated is that (i)

the police brought her before the court (ii) she adduced her

evidence as per dictation of the police officer and (iii) when she

appeared first time in the court she had made the statement as

per dictation of the police officer. But on the following line, she

has stated that on the day when she came to the court, her

parents were also with her. The question, therefore, is whether

she was tutored or not. It cannot be lost sight of that the victim

has been tormented and she is under serious duress. Her

testimony was translated from Kokborok. When a positive

statement has been made in the examination-in-chief and later

on, she had made the statement that whatever she had stated

was as per the dictation of the police officer, it might apparently

destroy her positive statement substantively, but the result of the

DNA test cannot be subsided as there had been no cross-

examination or denial. But one aspect cannot be just brushed

 Page 25 of 26

aside that the victim stood by her statement made in the

examination-in-chief by stating that it is not a fact that I was not

raped by Bahadur about 2 month’s back in a garden at 1100

hours. Also it is not a fact that I was not threatened by the

accused or that I was not examined by medical officer or that I

gave false statement in the court for the first time. This statement

cannot be treated to have stated as per dictation of the police. On

reading of the entire testimony, this court is dissuaded to come to

an inference that the victim was indicating that she had made a

false statement before the court as per the dictation of the police

officer. Hence, in a cumulative assessment of the evidence, we do

not have any hesitation to hold that the prosecution has proved

the charge beyond reasonable doubt. Hence, there is no reason to

interfere with the finding of conviction or the order of sentence.

[27] In the result, the appeal stands dismissed. The

appellant shall serve out the sentence.

Before we part with the records, we are persuaded to

give direction for compensation to the victim under Section 357A

of the Cr.P.C. in terms of the Victim Compensation Scheme and

for that purpose, the State Legal Services Authority shall

determine the quantum of compensation that to be awarded

 Page 26 of 26

having all regards to the said scheme, as we consider the

compensation as proposed by the trial court may not reach the

victim in her hour of need. The rehabilitation of the victim of rape

is the state’s responsibility. Such compensation be paid latest by

2[two] months from the date when the State Government shall

receive the recommendation from the State Legal Services

Authority. The State Legal Services Authority shall invariably

determine the compensation in the manner as noted above within

a period of one month from the day of receiving a copy of this

judgment.

A copy of this judgment be forwarded to the Member

Secretary, Tripura State Legal Services Authority, Agartala.

Send down the LCRs forthwith.

JUDGE JUDGE

Sujay