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2001 DIGILAW 362 (CAL)

Debendra Nath Roy v. State of W. B.

2001-06-27

Narayan Chandra Sil, Nure Alam Chowdhury

body2001
JUDGMENT N.C. Sil, J. : The present appeal was directed against the judgment and order of conviction passed by Shri M.R. Roy, the Additional Sessions Judge, Siliguri on 31.8.1987 in connection with sessions case No. 12 of 1987 whereby the learned trial Judge was pleased to convict the accused/appellant Debendra Nath Roy and sentenced him to undergo rigorous imprisonment for 7 years and also to pay a fine of Rs. 2,000/- in default rigorous imprisonment for one year for the offence under section 376 I.P.C. 2. In the instant case prosecution had examined as many as six witnesses while three witnesses had been examined on behalf of the defence before the learned trial Court. 3. It was one Lalita who want to pluck ‘Moog Kalai’ from their own field at some distance from the residence in the afternoon of 17th Shravan of 1393 B.S. when the appellant Debendra Nath Roy caught hold of her from behind and put her down in the field and raped her there. Deben thereafter threatened her on the point of knife not to disclose the incident to any other persons. Lalita came back to her house but did not disclose the incident to anybody till after two months when she realised with the suspension of menstruation that she had conceived. She narrated the incident to her mother who in turn narrated the same to her husband, Sachin. Sachin narrated the incident to one Kalidas Das, a young-star of the village and both Sachin and Kalidas then went to the house of Deben where they found both Deben and his father. On being charged by the complainant party, Deben confessed his guilt that Lalita was conceived by him and agreed to marry Lalita. But the marriage could not take place as there was no date of marriage in the months of Ashwin and Kartick and so both Sachin and Kalidas had to come back with the assurance that the marriage would take place in the month of Agrahayan but after some time Deben was missing and the marriage could not be taken place, as assured. Thereafter both Sachin and Kalidas went to the Police Station to lodge the complaint but the police declined to take the complaint and advised to seek redress before the court of law. Thereafter both Sachin and Kalidas went to the Police Station to lodge the complaint but the police declined to take the complaint and advised to seek redress before the court of law. Accordingly, the complaint was lodged before the learned SDJM, Siliguri on 8.12.1986 and this is what about the prosecution case in short. 4. After having examined some witnesses including the victim girl the learned SDJM committed the case to the court of the Sessions Judge, Darjeeling and the learned Sessions,. Judge had transferred the case to the court of the learned Additional Sessions Judge, Siliguri who framed the charge against the convict/appellant under section 376 I.P.C. After trial the learned Sessions Judge found the convict/appellant guilty for committing the offence under section 376 I.P.C. and convicted him for the term as stated earlier. 5. It is thus incumbent upon us to determine as to whether the learned Additional Sessions Judge was justified in convicting the appellant for committing offence under section 376 I.P.C. and thereby to determine whether the charge under section 376 I.P.C. had been established from the evidence adduced before the learned trial Court against the appellant. It appears that ab many as six witnesses had been examined on behalf of the prosecution before the learned trial court and three witnesses had been examined on behalf of the defence. 6. Ms. Pronati Goswami learned Advocate appearing for the appellant has argued before us that there was inordinate delay in lodging the complaint and such delay was not properly explained. She has also pointed out to the contradictions galore from the evidence of the witnesses examined before the learned SDJM on S.A. and thereafter before the learned trial Court. She has also drawn our attention to the defence case and tries to impress upon us that the appellant had been falsely implicated in this case due to political rivalry and also for the village rivalry. It is also pointed out by her that the victim girl is a woman of questionable character and she got pregnant by some other person. It is also stated by the learned Advocate for the appellant that P.W. 5 Kalidas Das is an interested and partisan witness since he had lost the election for being secretary of a club to the appellant. 7. Mr. It is also stated by the learned Advocate for the appellant that P.W. 5 Kalidas Das is an interested and partisan witness since he had lost the election for being secretary of a club to the appellant. 7. Mr. Kazi Safiullah learned P.P. assisted by Miss Bhaswati Pal learned Advocate appearing for the State has argued before us that since there is no eye witness of the occurrence the veracity of the evidence of the victim girl is to be checked form the facts and circumstances and the evidence adduced in the instant case. It is pointed out by them that the reports of the doctors as also their evidence as P.Ws. 4&6 find nexus between the fact of pregnancy and the occurrence of rape. Decision 8. The very substractum of the prosecution case rests on the fact of rape upon the prosecutrix, Lalita by the appellant/convict, Deben. It is the prosecution case that when Lalita went to pluck ‘Moog Kalai’ in the field on 17th Shravan of that year Deben all on a sudden furtively coming from behind caught hold of her and raped her in the field. Lalita was threatened by the convict/appellant not to disclose the incident to any other persons. This fact finds support from the evidence of the other witnesses examined in this case. The other witnesses are the parents of the victim girl (P.Ws. 2 & 3). P.Ws. 4 & 6 are the Medical Officers. One Kalidas Das is the P.W. 5. He also stands to corroborate the evidence of the witnesses for the prosecution but on scrutiny it appears that Kalidas Das is a highly interested witness who had lost the election to the appellant and who led the prosecutrix and her father to the court of the learned SDJM, Siliguri for filing the complaint against the appellant. We are really chary to consider the evidence of the P.W. 5 to support the conviction of the appellant and this will prompt us to concentrate ourselves on the evidence of the P.Ws. 1, 2 & 3 more than the evidence of P.W. 5. 9. The learned Advocate for the convict/appellant has seriously argued before us on the inordinate delay in filing the complaint before the learned SDJM, Siliguri. 1, 2 & 3 more than the evidence of P.W. 5. 9. The learned Advocate for the convict/appellant has seriously argued before us on the inordinate delay in filing the complaint before the learned SDJM, Siliguri. It appears from the examination of the victim girl on S.A. before the learned SDJM, Siliguri that one month after the incident she disclosed to her mother as the convict Deben was not present in the house. 10. It is in the evidence of the father of the victim girl that in the last part of Ashwin he come to learn about the incident from his wife. The mother of the victim girl stated in her examination on S.A. that in the last part of Ashwin her daughter narrated the incident to her mother who reported the same to her husband. The other witness Kalidas Das also stated something in his examination on S.A. Thus, there appears a sharp contradiction in the evidence of the victim girl on one hand and in the evidence of others examined on S.A. as regards the time of information the victim girl had given to others. According to the victim girl it was only after one month of the incident that she had given the information to her mother but according to the other witnesses examined on S.A. it was about after two months. 11. Then again, it appears from the record of the learned Lower Court that the complaint was filed before the learned SDJM, Siliguri on 8th December, 1986 i.e. on rough calculation after about four months from the date of occurrence. The explanation of this delay given by the prosecution is due to the assurance of marriage given by the appellant/convict Deben and thereafter his abscondence from his residence. Lalita stated on her examination on S.A. that when Kalidas and her father went to the house of Deben, he had confessed his guilt but thereafter he escaped from his house. The victim girl is conspicuously silent as regards the assurance of marriage given by Deben. The mother of the victim girl stated absolutely nothing in her examination on S.A. as regards the confession of the convict/appellant for commitment of rape on Lalita, far to speak of giving any assurance of marriage. The victim girl is conspicuously silent as regards the assurance of marriage given by Deben. The mother of the victim girl stated absolutely nothing in her examination on S.A. as regards the confession of the convict/appellant for commitment of rape on Lalita, far to speak of giving any assurance of marriage. The father of the victim girl and also Kalidas stated in their examination on S.A. that Deban had confessed his guilt and assured to marry Lalita. They have further stated that Deban had escaped from his house after having given such assurance. There appears no sense as to so easily Deben had confessed his guilt before the father of the victim girl and Kalidas. The father of the victim girl is not an illiterate person and from the evidence adduced before the learned trial court there appears no plausible explanation as regards such inordinate delay. 12. Then again, although the victim girl and her mother did not accompany the P.W.5 and the father of the victim girl to the house of Deben, they stated about the confession of guilt made by Deben but they remained conspicuously silent as regards the assurance of marriage purported to have been given by Deben. Besides, from the nature of the evidence adduced before the learned trial court by the prosecution party there is again no explanation as to why the uninterested close neighbours of the victim girl had not been examined as witness in the instant case. All those aspects had escaped the notice of the learned trial Judge. 13. P.Ws. had brought out the story at the time of their examination before the learned trial court as regards the time of missing of the convict/appellant. They had also introduced altogether separate story subsequently when they had stated before the learned trial court that Deben and his father were present when the father of the victim girl and the P.W.5 went to the house of Deben. They are all silent as regards the presence of the father of Deben at the time of their examination on S.A. 14. Regarding the extra judicial confession made by the convict/appellant and the assurance of marriage given by him, both the victim girl and her mother are silent in their examination on S.A. before the learned S.D.J.M., Siliguri. They are all silent as regards the presence of the father of Deben at the time of their examination on S.A. 14. Regarding the extra judicial confession made by the convict/appellant and the assurance of marriage given by him, both the victim girl and her mother are silent in their examination on S.A. before the learned S.D.J.M., Siliguri. It was only the father of the victim girl and the P.W.5 who is again a highly interested witness had stated in their examination on S.A. about such confession and assurance purported to have been made by the convict/appellant. If we keep the evidence of the P.W.5 aside there is virtually no independent corroborative evidence of such confession and assurance. 15. It further appears from the records of the learned SDJM. Siliguri, that he of his own, had referred the victim girl to the Medical Officer for ascertaining the fact of pregnancy. Thus, the P.W.6 had confirmed the pregnancy of Lalita after radiological examination. 16. The delay in filing the complaint is required to be explained properly generally in the criminal cases but it is true that the situation is somewhat different when it is the case under section 376 I.P.C and the prosecution party is illiterate and rustic. In the instant case the father of the victim girl is not an illiterate person and we have already observed that such inordinate delay of about four months in filing the complaint has not been properly explained. 17. We are not at all oblivious of the fact that Lalita gave birth to a child and according to the prosecution case the same is an outcome of the said rape. We are also anxious as to why the said Lalita should give the parental status on the convict/appellant sparing the actual perpetrator. In fact, the question of sexual intercourse, be that as in the form of rape or otherwise comes first and then the question of conception and delivery come. If the fact of intercourse in the form of rape is not established and if it is not fixed that the convict/appellant had done so, it becomes immaterial by whom the child was born. 18. The defence case also deserves consideration in this regard. As many as three witnesses had been examined in this case on behalf of the defence. If the fact of intercourse in the form of rape is not established and if it is not fixed that the convict/appellant had done so, it becomes immaterial by whom the child was born. 18. The defence case also deserves consideration in this regard. As many as three witnesses had been examined in this case on behalf of the defence. D.W.1 is a class-door neighbour of the appellant and he has got some land contiguous to the land of the father of the victim girl. D.W.2 stated that Lalita had illicit relation with one Mahen and he brought the said fact to the notice of the local Pradhan. D.W.3 is the Anchal Pradhan. He had stated in his evidence that Lalita had illicit relation with Mahen Mistry. He corroborated the evidence of the D.W.2 as regards the complaint made by the D.W.2 to him on the incident of Lalita with Mahen. It appears from the cross-examination of the D.W.3 that he belongs to a rival political party of the father of Lalita. Although the defence has tried to make out a case that Lalita had illicit relation with Mahen and she got pregnant by him, there appears no sufficient evidence adduced before the learned trial court to substantiate the same. 19. On our further scrutiny it appears that the learned trial Judge had clubbed a number of questions at the time of examination of the convict/appellant under section 313 of Cr.P.C. which is not at all warranted under the Procedure of Criminal Code. 20. Thus, having considered all the aspects as discussed above it is only felt justiciable that the appellant/convict should be given the benefit of doubts. The present appeal is, thus, allowed on contest and the judgment and order of conviction passed by the learned trial Judge are hereby set aside. The appellant/convict may be released from the bail bond, if any, forthwith. The record of the learned lower court along with a copy of this judgment be sent down forthwith. Nure Alam Chowdhury, J.: I agree. Appeal allowed.