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2003 DIGILAW 634 (CAL)

SADIFUL SK v. STATE OF WEST BENGAL

2003-12-16

ALOK KUMAR BASU

body2003
ALOK KUMAR BASU, J. ( 1 ) THIS appeal is directed against the judgment and order dated 27th june. 2002 passed by the learned Additional Sessions Judge, 2nd Court, nadia in connection with Sessions Trial Case No. lll (March) of 2002 arising out of Sessions Case No. 2 (4) 2001 whereby the present appellants were convicted under Section 376 (2) (g) of the Indian Penal Code and were sentenced to suffer R. I. for seven years each and also to pay a fine of Rs. 2000/- each in default further R. I. for six months. ( 2 ) THE prosecution case leading to finding of conviction and sentence runs as follows : that one Iduyara Khatun, daughter of Kashem Sk. was raped by both appellants at about 10 A. M. on a date which was four days prior to commencement of 'roja' in the year 2000 AD when said Iduyara Khatun had been to a nearby banana bagan of one Moinuddin Sk. for grazing goats and also for collecting dry leaves therefrom. ( 3 ) SOON after the occurrence, Iduyara reported the matter to her parents and her father immediately informed the persons in charge of local mosque for intervention and a Salish was also held but the accused persons did not turn up at the Salish. The father of the victim girl thereafter at the advice of local people finally submitted a written complaint at local Thanarpara ps. on 1st January, 2001 and police started investigation of the same. After close of investigation ultimately charge-sheet was submitted against both the appellants under Section 376 (2) (g) of the I. PC. It is pertinent to mention that in course of investigation the victim girl also gave a statement under Section 164 of the Cr. P. C. before the learned Judicial Magistrate. ( 4 ) DURING trial before the learned Additional Sessions Judge, on perusal of the case diary and after hearing both the appellants as well as the state charge was framed against the present appellants under Section 376 (2) (G) of the I. PC. and the accused persons preferred to face the trial by denying the charge so framed. ( 4 ) DURING trial before the learned Additional Sessions Judge, on perusal of the case diary and after hearing both the appellants as well as the state charge was framed against the present appellants under Section 376 (2) (G) of the I. PC. and the accused persons preferred to face the trial by denying the charge so framed. The prosecution side in course of trial examined as many as fifteen witnesses to prove the veracity of the prosecution case and that apart the written compliant of the father of the victim girl, the statement of the victim girl recorded under Sections 164 of the cr. P. C. and injury report of both appellants as well as o the victim girl were marked exhibits for consideration of the Trial Court. ( 5 ) THE learned Additional Sessions Judge on perusal of the evidence placed before him both oral as well as documentary and after considering the submissions of the prosecution as well as of the appellants finally came to the conclusion that prosecution has proved beyond all shadow of doubt that Iduyara Khatun aged about fifteen years was ravished by both the accused persons on the date and time as given by Iduyara Khatun during her statement both before the learned Magistrate and also before the learned trial Judge and which was mentioned in the written compliant of her father. The learned Additional Sessions Judge while discussing the points taken by the accused persons challenging the prosecution case recorded his observa- tion that there was no need of any corroboration of the testimony of the victim giri regarding the commission of rape on her by both the accused persons by any medical evidence when soon after the occurrence the victim girl reported the incident to her parents and who in their turn conveyed the same to the local people. The learned Trial Judge also recorded his observation that as both the accused persons and the victim girl were forwarded for medical examination long after the incident of rape there could not be any mark of injury on the private part of either of the accused persons or on the private part of the victim girl and hence, in the facts and circumstances of the present case the statement of the victim girl would be the main pivot of the prosecution case and when the statement of the victim girl appeared to be unshaken during cross-examination and was sufficiently corroborated by her previous statement given before the police as well as before the learned judicial Magistrate, there was no reason to disbelieve her statement and there was no ground not toaccept that statement and to record an order of conviction against both the accused persons under Section 376 (2) (g) of the i. P. C. ( 6 ) THE learned Additional Sessions Judge, as it appears from the order regarding sentence of both the accused persons, exercised his judicial discretion in the matter of awarding sentence, because, though under the provisions of the I. P. C. the minimum sentence could have been ten years imprisonment but with a provision for reduction of the same below ten years on recording sufficient reasons, the learned Trial Judge exercised that discretion and awarded sentence of seven years R. I. for both the accused persons. ( 7 ) THE present appellants through their petition of appeal and also through their learned Advocate sought to challenge the order of conviction and sentence impugned in this appeal mainly on the following grounds :- it has the submission of the learned Advocate for the appellants that no clear date of occurrence ever surfaced either in the written compliant or in the statement of vital witnesses of the prosecution including the victim girl herself and her parents. The learned Advocate contends that even if the date given by'the victim girl is taken on its face value, from the date of the FIR it is clearly established that the information regarding the occurrence was lodged after 34 days and this will at once demolish the prosecution case altogether simply on the ground that it would be really difficult to accept that in a case of this nature the parents would make such an inordinate delay in lodging the FIR when the local Police Station was not far away. ( 8 ) THE learned Advocate for the appellants next contends that from the record it is an undisputed position that there is no medical report support- ing the prosecution version of the case, on the contrary, if, any reliance is placed on the medical report available with the record the prosecution case gets a big jolt. The learned Advocate submits that from the medical report it is found that no mark of injury on any part of the body of the victim girl was noticed not to speak of in any injury on her private part and in a case of alleged rape and ravishing by more than one person on a minor girl there must be mark of injury on the back of the girl and also on other parts of her body. The learned Advocate, therefore, concludes that there is no corrobora- tion in the form of medical evidence which is very much necessary before holding a person guilty under Section 376 of the I. P. C. ( 9 ) FINALLY, it is the contention of the learned Advocate for the appellants that both the order of conviction as well as order of sentence are liable to be set aside as the entire trial is vitiated for grave omission in the matter of examination of both the accused persons under Section 313 of the cr. P. C. The learned Advocate contends that it is the necessary pre-condition before asking the accused persons to answer on the questions drawn from fact and circumstances gathered from prosecution evidence that there should be reasonable caution to the accused person that under the provision of law he would not be bound to answer the questions, but, if any answer is offered the same would be used against him to sustain any order of conviction. The learned Advocate contends that the examination of both the accused persons under Section 313, Cr. P. C. was illegal and improper as there was no such caution and as examination of accused person soon after evidence is an integral part of trial as a result of this omission entire trial is vitiated. ( 10 ) THE learned Advocate representing the State respondent has supported the order of conviction and sentence impugned in this appeal and with reference to the evidence on record the learned Advocate submits that from the evidence of victim girl it would appear that she stood the ordeal of cross-examination steadily and their appears practically nothing in her cross-examination to impeach her credibility. The learned Advocate for the state further contends that it has been held in several decisions that where the Court finds the testimony of the victim girl true and acceptable after applying all the necessary tests, there is no need of any medical corrobora- tion. The learned Advocate for the State contends that there is no merit in the present appeal and there is no substance in the contention of the appellants that due to error or omission in examination of accused persons under section 313, Cr. P. C. , the trial was vitiated, because, neither the appellants in their petition of appeal nor their learned Advocate during argument pointed out what prejudice they suffered for such alleged error or omission in the matter of examination of the accused persons under Section 313 of the cr. P. C. The State, therefore, submits that appeal should be dismissed and both the order of conviction and sentence should be confirmed. ( 11 ) I have considered submissions of both the sides with reference to the fact and evidence on record and I have also taken into account the grounds of appeal as available from the petition filled by the appellants. ( 12 ) THE learned Advocate for the appellants in fact reiterated the grounds taken by the appellants in the petition of appeal and those grounds relate to three points, first challenging the FIR on the ground of unusual delay, second on the ground of lack of medical evidence and finally, on the ground of error and omission in the matter of examination under Section 313, cr. P. C. ( 13 ) SO far the first ground of attack is concerned we cannot forget the background of the victim and her parents and also the custom and convention of their community and we must also take into account that at the relevant time the most important religious festival of their community was to commence and as the occurrence took place which is prior to that religious festival and as soon after occurrence the parents of the victim girl approached the local people first through the headman of local Mosque and then through a 'salish', the delay in lodging the FIR must be accepted to be quite reasonable. Generally, Court raises its eye-brow on delayed FIR on the ground of falsity of the same, but, in the given facts and circumstances when there is enough evidence on record to support the prosecution case that soon after occurrence villagers were informed and due to commencement of the festival and due to a settlement within the community parents of the victim took some time, there is no ground to place any importance on the first ground of attack of the appellants on the question of delayed FIR. ( 14 ) IN a case of physical assault on women which is codified under section 376 of the I. P. C. Court will insist for medical evidence when the accused persons would make the Court ponder over the actual possibility of the said occurrence or when at the first instance the statement of the victim girl appears not to be trustworthy or there is sufficient suggestion from the side of the accused person regarding questionable character of the victim girl. It is a settled position of law that during trial of an offence under Section 376 of the I. P. C. , Court will assess the testimony of the victim girl in the particular background of the case and if after considering cross-examination of the said victim girl and having regard to other relevant facts and circumstances the testimony of the victim girl appears to be reasonably acceptable, Court would be reluctant to call for further corroboration in the form of medical evidence if there is no such medical evidence for some reasons well explained by the prosecution side. ( 15 ) IN the present case, the victim girl was referred to the doctor for examination after a gap of almost 35 days and naturally there cannot be any mark of violence or injury on any part of her body including the private part. The only question that should be considered whether the evidence of the victim girl can be really accepted in this regard from the earlier statement of the victim girl before the police, the statement recorded by the learned judicial Magistrate under Section 164, Cr. P. C. and from the evidence of other witnesses who had the information soon after the occurrence. I do not find any ground to raise any question about credibility of the victim girl and it is very important to mention at this juncture that there is no suggestion from the side of appellants that out of enmity or out of a pressure tactics to squeezing the money, the parents of the victim girl hatched a conspiracy against the accused persons and lodged a false case. Thus, the second ground of attack of the appellant also holds no ground at all. ( 16 ) FINALLY, my attention has been drawn to the examination of the appellants under Section 313, Cr. P. C. and the learned Advocate for the appellants has pointed out error by not giving any caution to them. It is undisputed that examination of accused persons soon after close of prosecu- tion evidence is an integral part of the trial and it is also a valid and vital legal right of the accused persons whereunder he can explain relevant facts and circumstances which may help the Court to appreciate his stand at the time of recording the judgment. But, it is settled position of law that error or omission that occurs in the matter of examination of accused persons under section 313, Cr. P. C. would not by itself vitiate the trial and under the order of conviction and sentence untenable in law unless the appellants succeed in showing the prejudice suffered by them during trial for such error or omission in the matter of examination under Section 313 of the Cr. P. C. would not by itself vitiate the trial and under the order of conviction and sentence untenable in law unless the appellants succeed in showing the prejudice suffered by them during trial for such error or omission in the matter of examination under Section 313 of the Cr. P. C. On careful scrutiny of the entire case record I do not notice anything which will go to show even in a distinct manner that the accused persons were prejudiced for not giving any caution to them during their examination under section 313, Cr. P. C. and it is also important to point out that no answer of the accused persons given during examination has been used by the learned trial Judge in recording his order of conviction. ( 17 ) THUS, having regard to the submissions of both the appellants as well as of the respondent State and after considering the fact and evidence on record along with relevant provisions of law. I am of clear view that prosecution succeeded in establishing its case beyond all shadow of doubt and the learned Trial Judge did not commit any error either in fact or in law in recording the order of conviction against the appellants under Section 376 (2) (g) of the I PC. ( 18 ) FINALLY, regarding the question of sentence, nothing has been urged either from the appellants or from the State respondent and on examination of the relevant provision of the I. PC. I find that the learned Trial Judge exercised his discretion in the matter of reduction of sentence from 10 years to 7 years after recording acceptable reason and hence, there is no ground for any prejudice on the part of the appellant regarding the awarding of sentence. ( 19 ) THUS, the present appeal being devoid of any merit is dismissed. Let the Lower Court record along with a copy of this judgment be forwarded to the concerned trial Court at once for information and for necessary com- pliance so that both the appellants may serve out the remaining part of their sentence imposed by the learned Trial Judge. ( 20 ) A copy of this judgment be handed over to the learned Advocate for the appellants free of costs.