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2004 DIGILAW 695 (CAL)

RATAN DAS v. STATE OF WEST BENGAL

2004-10-12

AMITAVA LALA, P.K.DEB

body2004
AMITAVA LALA, J. ( 1 ) THIS is an old appeal. It arises out of an order of conviction of the learned Assistant Sessions Judge, Jalpaiguri in the Sessions Case No. 135 of 1997 and Sessions Trial No. 30 of 1997 being dated 24th February, 1999 under section 376 of the Indian Penal Code. The convict was produced for the purpose of pronouncement of sentence. However, rigorous imprisonment for 8 years and to pay fine in default further imprisonment was ordered. He is suffering imprisonment for about last 6 years. As per the deposition of the mother, victim got married one year after incident. Record says she has husband, father-in-law and mother-in-law. Accused got married after the incident. Record says he has one daughter. There is no doubt at least about one fact that both the families are co-villagers. Intrinsic evidence does not rule out possibility of marriage amongst themselves but failed. Against this social background now the case of the parties and reasons for coming to conclusion by the learned trial Judge has to be adjudged. It is further to be remembered that all such facts and figures were available before the learned Trial Judge. ( 2 ) THE victim's case is that on the fateful day at about 7 p. m. when the victim attended nature's call in a nearby field the accused came there from behind and caught hold herself. Then he put 'gamcha' on her mouth and tied down the same. He put her down in a nearby place. Thereafter he forcibly took away her chastity. The accused put his male organ inside the victim's vagina forcibly. The accused threatened her not to disclose the fact. The victim was lying at the place for sometime since she was feeling very much unwell. Blood came out from the private parts. She was feeling sick. She returned home and narrated the matter to her mother. They started going to the house of the father of the accused. Victim's mother shouted about taking chastity of her daughter by the accused. Altercation took place between them and the accused's father and other persons of the family. The mother was assaulted. Mother then returned home with the victim. She narrated the facts to the neighbours and demanded intervention. 'salishi' was convened by the local Panchayat. The accused and the family members did not turn up. Altercation took place between them and the accused's father and other persons of the family. The mother was assaulted. Mother then returned home with the victim. She narrated the facts to the neighbours and demanded intervention. 'salishi' was convened by the local Panchayat. The accused and the family members did not turn up. After expiry of 7 days they wanted to make police complaint. At that stage police advised them to lodge complaint in the Court. Victim was medically examined. According to the victim she was 14 years old at the time of the incident. ( 3 ) IN her cross-examination she said that she never studied in school. Her age was specifically challenged by the defence saying that she was 19 to 20 years old at the relevant point of time. Victim's mother stated in her examination that at the time of incident the age of her daughter was 13 to 14 years. But as per ossification test of the doctor held in or around 6 months of the incident victim's age was in between 18 and 19 years. Mother again said that victim was given marriage after one year of the incident. Learned Trial Judge never felt to enquire whether the victim was given under-age marriage or not although it has a sound corroborative effect with the ossification test. For the sake of argument one may say that even today giving under-age marriage by the rustic villagers is not a news. At the same time giving marriage in a rustic village after one year of such publicly known incident might be a news. It is a matter of believable testimony not the emotion. Chastity of a girl will be given utmost importance but that does not necessarily mean respect of a boy will be totally ignored with a prefixed mind. Learned Trial Judge ignored the defence case and held margin of error ascertained by radiological test is two years of either side. Therefore, the age of the victim was in the margin of 16 years. The victim was not sufficiently grown up. According to us either side does not necessarily mean one side. No explanation is given by the learned Judge about higher side when marriage of the victim was solemnized after one year of incident. Therefore, the age of the victim was in the margin of 16 years. The victim was not sufficiently grown up. According to us either side does not necessarily mean one side. No explanation is given by the learned Judge about higher side when marriage of the victim was solemnized after one year of incident. ( 4 ) ACCORDING to us, the essentials for conviction for causing rape are as follows : (I) Actual act of sexual intercourse which is deemed as proved if penetration of male organ, (complete or partial) into the vagina is proved; (ii) The act must have been committed on a woman i. e. any female of any age even the wife below 15 years of age; (iii) It must be against her Will or without her consent, the consent of a girl below 16 years of age and consent under fear of injury or death or misconception being immaterial. ( 5 ) HENCE determination of age of the victim is vital piece of evidence to attract second or third ingredients. The ossification test of the doctor does not restrict the age of the victim at 18 years or 19 years so that error of 2 years plus/minus can be taken. But it says age of the victim in between 18 years and 19 years. As per medical jurisprudence such determination of two periods would be correct and not liable to any error. The learned Trial Judge committed an error by fixing the age of the victim out of his own ignoring the ossification test and arrived at a perverse finding. ( 6 ) THEREFORE, for the purpose of coming to conclusion about conviction on the ground of 'rape' the element of the physical relationship under the first ingredient without the consent is to be proved beyond doubt. Reactions that crime against women evoke, range from silence and inaction to manipulation of evidence (by either side sometimes) and actually blaming the victimized person. Rape is committed in secret and the statement of the victim along with the medical evidence is taken as proof of the crime. False charges of rape are not uncommon and medical evidence may assist in finding the truth or otherwise of the accusation. Rape is committed in secret and the statement of the victim along with the medical evidence is taken as proof of the crime. False charges of rape are not uncommon and medical evidence may assist in finding the truth or otherwise of the accusation. Act us reus in a case of rape is linked with the consent of the victim and it is discovered by examining it in relation to the state of mind of the victim. ( 7 ) THE evidence of the Medical Officer examined the victim 20 days after the incident is as follows : (1) There was no sign of injury on her private parts or any other parts of her body. (2) There was no foreign body on her private parts. (3) No mark of semen was there. (4) Public hair was normal and there was no other sign that can suggest recent rape. (5) The hymen was not having any recent tear, but introitus is admitting two fingers with some difficulties but intercourse is possible. (6) Vagina swab was sent for pathological examination for detection of presence/absence of sperms. ( 8 ) HE explained that there was tear in the hymen but the same was not recent one. In the cross-examination the doctor said that if rape is committed on such type of girl by a young person forcibly and if any severe injury is caused either in the private parts or in any other parts of the body of the girl like cut injury the same will be visible after 20 days. However, he also said that unless the injuries are serious in nature no sign of committing rape will be visible after 20 days. He did not notice any severe rupture on her private parts. The rupture which he found may cause little bleeding which would stop automatically. Had the rupture was severe in nature in that case admitting of two fingers in the introitus (vaginal opening) would have been much easier. Ultimately, he opined that it could not be said whether the victim was habituated to sexual intercourse or not and on the other hand he stated that rupture of hymen which he noticed in private parts of the girl might be caused by rape or by any other means. Ultimately, he opined that it could not be said whether the victim was habituated to sexual intercourse or not and on the other hand he stated that rupture of hymen which he noticed in private parts of the girl might be caused by rape or by any other means. ( 9 ) CAN the plain reading of the evidence of the Medical Officer prescribes proof of committing rape recently by the accused upon the victim completely or partially beyond doubt. Our answer is 'no'. There is no iota of evidence of complete rape. Even element of partial, described by the relative term 'recent' without explanation gives total benefit of doubt in favour of the accused. ( 10 ) EVEN thereafter learned Judge convicted the accused on the following issues : (1) Did the accused commit rape on Nisa Das on the date, time and place as alleged by the prosecution? (2) Has the prosecution been able to prove the charge framed against the accused person beyond reasonable doubt? ( 11 ) WE are not inclined to repeat the analysis once more. Only we want to test the veracity irrespective of our basic observations as above and independently. We are concerned that in such type of cases importance is to be given to the evidence of victim and her mother. Two complaint cases were lodged by them. The present is the outcome of one. The other is arising out of assault allegedly caused by the male and female members of the accused towards victim and her mother due to shouting and altercations and allegations made by them on this occasion. The learned Trial Judge completely overlooked the evidences given by them in the case of assault where the family members of the accused stated to be acquitted. According to him both the incidents happened in two different transactions. Accused of both the cases are different. Present case is to be judged on the basis of the evidence adduced by the prosecution. We are surprised to see that evidential value of the victim and her mother in both the cases was not considered having been part and parcel of the record of this case and thereby the learned Judge completely misdirected himself. Present case is to be judged on the basis of the evidence adduced by the prosecution. We are surprised to see that evidential value of the victim and her mother in both the cases was not considered having been part and parcel of the record of this case and thereby the learned Judge completely misdirected himself. Victim and her mother deposed therein that the accused outraged the modesty of the victim which cannot be a case of rape under section 376 but punishable under section 354 of the Indian Penal Code for a period of 2 years. Yet the learned Judge did not doubt the cause. In further no case of hiding the cause by the victim for a considerable period about the incident of rape in the victim's society is available here. It was publicly known immediately after the alleged occurrence admittedly. Even thereafter no police complaint was lodged. For the purpose of salishi by the Panchayat 7 valuable days expired and when the report was made to police, it directed to lodge a complaint to the Court of Law. Admittedly, no allegation was made to the police by the girl which was tested at the trial. They have completely suppressed the factum of medical treatment caused on the next day of occurrence as deposed by the victim in the other complaint case. Yet mother of the victim said that she saw the marks of blood on the pant and frock of the victim when she returned home and disclosed the matter to her. The victim said police saw the said frock and pant but did not seize. The lady Investigating officer was examined before the Court. She had not only recorded the evidence of the victim under section 161 of the Code of Criminal Procedure but also gave her evidence before the learned Trial Judge. The important parts of her evidence in cross-examination are as follows : (I) "the witness stated to me that Ratan (accused) used to visit her house frequently and that she used to talk with Ratan on the road". (ii) "witness also stated to me that the incident occurred near the bamboo bush i. e. where the P. O. house of Jiten Das was situated". (iii) "the witness did not state to me that accused threatened her by saying that he would kill her if she disclosed the matter to anybody". (ii) "witness also stated to me that the incident occurred near the bamboo bush i. e. where the P. O. house of Jiten Das was situated". (iii) "the witness did not state to me that accused threatened her by saying that he would kill her if she disclosed the matter to anybody". (iv) "the witness stated to me that at the time of incident she did not raise any 'checha machi' or tried to resist any case of 'mara mari' ". (v) "the witness did not state to me that after the incident blood came out from her private parts and she sustained swelling injury on her chest (?) or that she was feeling unwell after the incident or she was lying at the spot for some time". ( 12 ) IF the evidences of victim and her mother before the learned Trial Judge, before the lady investigating officer in this matter and before the Chief Judicial magistrate in connection with C. R. Case No. 433 of 1992 arising out of the other complaint cases in connection thereto are seen side by side contradictions galore will come out. ( 13 ) IN this case, mother said that she did not medically examined her victim daughter at her accord prior to the institution of this case. The accused had no visiting terms with them and he did not visit their house prior to the incident. The accused was not like her son. She did not state in this criminal case before the learned Magistrate that she used to see the accused as her son. Her daughter said that she knew accused from before as he was her co-villager. He did not used to visit their house frequently. She can not remember whether she stated to the police that accused used to visit their house frequently or she used to hold talk with him on the road. Surprisingly before learned Chief Judicial magistrate (Jalpaiguri) in the other case, the mother stated that previously she used to look after accused as her son but some days prior to incident he stopped visiting her house. She did not take her daughter either to the hospital or to the private doctor till before meeting the learned Advocate to file the case. The victim said that she did not know the accused and have never seen him before the time of the incident. She did not take her daughter either to the hospital or to the private doctor till before meeting the learned Advocate to file the case. The victim said that she did not know the accused and have never seen him before the time of the incident. According to the victim, on the next day, she herself and her mother got themselves medically treated by a doctor of the village. Then she stated a very important fact that she also got herself medically treated in respect of her previous incident which took place at 7 p. m. Such doctor was not examined by the learned Trial Judge taking a plea that no doubt can be shown on the basis of the other case stands on a different footing. But how could the evidential value of witnesses therein can be ignored, is best known to him. No rationality of finding of fact is forthcoming from the analysis. It is to be remembered mere application of principle of the Supreme Court and High court judgements can not correct the finding unless and until such principle factually made applicable in this case. Cases of barbarism can not be equated with doubtful affair of cohabitation. ( 14 ) IN the case of 1994 SCC (Cri) 503, Ram Nivas vs. State of Karnataka, the accused was examined. The doctor admitted that he could not give exact opinion whether the rape had been taken place or not because of the absence of spermatozoa. Here also no spermatozoa was available irrespective of other facts. In such situation Supreme Court itself examined the evidence minutely and held that evidence of the victim was highly untrustworthy and gave the benefit of doubt in favour of the accused. The case of 1996 C Cr LR (SC) 50, State of punjab vs. Gurmit Singh and Ors. , is factually distinguishable in nature. Offences were under sections 363,366,368 and 376 of the Indian Penal Code. The appeal was preferred to the Supreme Court under section 14 of the Terrorist Affected areas (Special Courts) Act, 1984. Such matter was arising out of a cause of gang rape. The victim was forced to take liquor and thereafter rape was committed by them taking her by a car in a distant place and taken back and left her nearby a school. She was admittedly a school girl. Such matter was arising out of a cause of gang rape. The victim was forced to take liquor and thereafter rape was committed by them taking her by a car in a distant place and taken back and left her nearby a school. She was admittedly a school girl. She narrated the incident immediately on the next day to her mother and accordingly to her father. The matter was taken to the Sarpanch for the compromise and being failed it was reported to the police. Save and except the similarity of taking the matter to the Panchayat or Sarpanch factum of such case is no way nearer to this case. ( 15 ) IT is well-known that a rapist not only violates the victim's privacy and personal integrity but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim but a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. But at the time of doing so the Court can not shut its eyes in respect of any element of doubt. In 1997 Cr. LJ 817, Pratap Misra and Ors. vs. State of orissa, the Supreme Court held that when the Court below presumed that the allegation of rape was true without their being sufficient evidence and without even examining the possibility of consent it will infer a wrong finality. ( 16 ) IN 2000 (1) SCC 247 , State of H. P. vs. Lekh Raj and Anr. , the Supreme court discussed the matter elaborately how the Court will come to a definite conclusion in respect of the determining the issue in case of criminal jurisprudence precisely in a case of rape. Factually, in that case date of lodging complaint was the next date of occurrence. Identification parade was made. The High Court mainly relied upon the medical evidence and finding that 'no dead or alive' spermatozoa was seen. Such dead or mobile spermatozoa either in the vagina or in the cervix of the prosecutrix ruled out the possibility of the prosecutrix having been subjected to sexual intercourse, alleged by the prosecutrix. Identification parade was made. The High Court mainly relied upon the medical evidence and finding that 'no dead or alive' spermatozoa was seen. Such dead or mobile spermatozoa either in the vagina or in the cervix of the prosecutrix ruled out the possibility of the prosecutrix having been subjected to sexual intercourse, alleged by the prosecutrix. Following the ratio of 1990 (1) SCC 550 :1990 SCC (Cri) 210, State of Maharashtra vs. Chandraprakash Kewalchand Jain, it was held that spermatozoa can be found if the woman is examined within 12 hours after intercourse, thereafter they may be found between 48 arid 72 hours but in a dead form. If the prosecutrix washed herself by then, the spermatozoa may not be found. In the instant case doctor examined the victim on the next day but such fact was suppressed. Doctor was not called to examine but in that case the court after satisfying itself regarding the presence of semen on the clothes of the prosecutrix held that the absence of semen or spermatozoa in the vaginal smear and slides, cannot cast doubts on the creditworthiness of the prosecutrix. It was further held that the presence of spermatozoa, dead or alive, would differ from person to person and its positive presence depends upon various circumstances. Otherwise also the presence or absence of spermatozoa is ascertained for the purpose of corroboration of the statement of the prosecutrix. If the prosecutrix is believed to be a truthful witness in her deposition, no further corroboration may be insisted. Corroboration is admittedly only a rule of prudence. There is no denial that the seized salwar had stains of blood and semen on it. The mere fact that some different marks were noted on the sealed packet was by itself no ground to discard the otherwise reliable evidence of the prosecutrix. The High Court has completely ignored the medical evidence specifying the injuries on the person of the prosecutrix which proved and established the struggle and resistance shown by her at the time of commission of the offence of rape. Ultimately, Supreme Court made an observation in respect of social justice. The High Court has completely ignored the medical evidence specifying the injuries on the person of the prosecutrix which proved and established the struggle and resistance shown by her at the time of commission of the offence of rape. Ultimately, Supreme Court made an observation in respect of social justice. In doing so, it further held that hypertechnical imagination should not be allowed to absolve the Court of its responsibility of shifting the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the particular facts of each case, the social position of the victim and accused, the larger interest of the society particularly law and order problem and degrading values of life inherent in the prevailing system. Rational, realistic and genuine approach of administering justice in a criminal trial has to be followed. However, coming back to the appropriate conclusion in reversing the order of acquittal as against one of the respondents Supreme Court firmly relying upon few facts - urgency of the situation, distance and particularly the establishment of the fact that she did not consent to sexual act, but complained against it to the police as aforesaid. Last but not the least, the forensic examination stains over the sealed clothes. Examination report said that presence of human blood and semen was available. It was also noticed that she was a widow. Then the supreme Court held that the Sessions Judge arrived at a conclusion beyond reasonable doubt. ( 17 ) IN the instant case, doctor examined the victim on the next date of occurrence. But such fact was suppressed by the victim and her mother at the time of giving evidence here. Learned Judge disbelieved the report of the doctor, ossification test and the statement of lady investigating officer. Learned Judge totally ignored the evidential value of the victim in other case about medical treatment by a doctor on the next date of occurrence. Such doctor did not examine to prove the semen or spermatozoa in the appropriate place or places of the body of the woman. Learned Judge only arrived at the conclusion on the basis of the surmise and conjecture that the village girl can not keep the wearing apparels properly or the same might have been washed only to apply the principle of various judgements like above to satisfy the test with a predetermined mind. Learned Judge only arrived at the conclusion on the basis of the surmise and conjecture that the village girl can not keep the wearing apparels properly or the same might have been washed only to apply the principle of various judgements like above to satisfy the test with a predetermined mind. He has committed error upon believing the victim and her mother as truthful witnesses when various contradictions about co-habitation, medical treatment and test, relationship between the victim and the accused and/or their family members and other issues were existable. No rational, realistic or genuine approach of administering justice in a criminal trial has been followed. He has only proceeded with some stray materials to fit with the laying down principles without ascertaining the truth of the case. It is obvious that the Court has greater responsibility upon the shoulder while trying an accused on charges of rape but that does not necessarily mean that Court will act like a 'kazi' with a pre-determined mind. Any order of conviction may take a valuable period of life of such person which cannot be returned. The question of benefit of doubt is occupied the substantial arena of the criminal jurisprudence. One should not be forgetful about the same with any ego or emotion only to punish a boy against a girl. Therefore, totality does not say 'no' to the appellant. As a result whereof appeal should be allowed. ( 18 ) THEREFORE, appeal is hereby allowed. Order of conviction is hereby set aside. The appellant is acquitted of the charge. The Lower Court records be sent down at the earliest not beyond 48 hours of this order. The appropriate police, jail authorities are directed to release the appellant immediately upon receiving the copy of the judgement and order and the case records, if any, and upon completing the formalities. ( 19 ) LET an urgent xeroxed certified copy of this judgement, if applied for, be given to the learned Advocates for the parties within two weeks from the date of putting the requisites. Appeal allowed.