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2008 DIGILAW 555 (CAL)

Arati Barui v. STATE OF WEST BENGAL

2008-05-16

PARTHA SAKHA DATTA

body2008
Judgment :- 1. The petitioner who is the mother of the victim lodged an FIR with the O.C. Kakdwip Police Stalion on 24.3.2007 alleging that in the evening of the previous day i.e. 23.3.2007 her minor daughter had gone to field bring cattle. The accused-O.P. No. 2 summoned her daughter to the field through her neighbour Ramkrishna Pattanayek. There the accused-O.P. No. 2 sat on the chest of her daughter and attempted to commit rape. At that time her minor grand son Shantimoy having come to see the incident informed her. The complainant then immediately rushed to the place of occurrence and saw the incident. The culprit then fled away. 2. On this complaint Kakdwip Police Station registered case No. 43 dated 24th March, 2007 against the O.P. No. 2, under Section 376/511 of the I.P.C. Upon completion of investigation charge-sheet was submitted against the O.P. No. 2 under Section 376/511 of the I.P.C. 3. The learned Additional Sessions Judge, Fast Track Court, Kakdwip recorded the order of acquittal of the charge under Section 376 of the I.P.C. by his judgment and order dated 31.7.2007 in ST Case No. 5(5) oi 2007 against which the defactocomplainant has come up in this revision on the ground that the learned Judge in the Court below overlooked the evidence of the eye-witnesses and that it was against the natural conduct of a village rustic minor girl to bring a false allegation against a person and that the grounds on which the order of acquittal was recorded are not at all convincing. 4. In order to appreciate the merit of the revisional application it is necessary to traverse in brief the evidence of the witnesses. The prosecution examined 10 witnesses. The victim is P.W. 3 who says that at 6.00 p.m. she had gone to the field for bringing cattle with her nephew Shantimoy Barui. The accused (O.P. No. 2) dragged her by pulling her hand and compelled her to lie down beside a betel leaf plantation (pan boroz). Then the accused tore her dupatjama and removed her pant. He lay upon her. He put his penis into her vagina. Seeing this Shantimoy left for home weeping. Her mother came and then the accused fled away. This witness was cross-examined at great length. The place where cow was fastened was at the distance of ten minutes walk from her home. He lay upon her. He put his penis into her vagina. Seeing this Shantimoy left for home weeping. Her mother came and then the accused fled away. This witness was cross-examined at great length. The place where cow was fastened was at the distance of ten minutes walk from her home. It takes 10 minutes to go to the pan boroz. The accused is the son-in-law of her uncle Khagen Barui; and relationship between her family and that of Khagen Barui was not cordial and she did not visit the house of Khagen Babu, nor her family members did ever. Prior to the incident she never talked to the accused. She gives a topography of the place of occurrence. The tank is on the eastern side of the pan boroz. There is bamboo grove beside the bank. The accused dragged her to the southtern side of the pan boroz where the cattle was kept. Pan boroz was open not surrounded by any fencing. She raised alarm when accused dragged her to the field. She produced the torn garments to the police. Initially the accused tore her upper portion of the garment and then removed her pant. He sat upon her, opened chain of his pant, placed his penis into her vagina. She sustained some minor injuries on her back, waist and hip. On the following day her mother came to an Advocate and then to police station. 5. P.W. 1 Arati Rani Barui says that her daughter had gone to bring cattle from the grazing fiold which was at a distance of 10 to 15 minutes walk from her house. 10-15 minutes after her leaving home her grand son Shantimoy Barui came running and told weeping that somebody was killing P.W. 3. She immediately went to the place of occurrence with Shantimoy and found the accused upon the body of the victim. Seeing her the accused fled away and the victim lay naked on the ground. She rescued her and put clothes on her and helped her to wear the same. Her daughter told her that a person named Ramkrishna asked her to accompany him to the accused but she refused to go towards Ramkrishna. Accused sent Ramkrishna to call the victim. Then the victim went to bring back the cattle and then the incident took place. Her daughter told her that a person named Ramkrishna asked her to accompany him to the accused but she refused to go towards Ramkrishna. Accused sent Ramkrishna to call the victim. Then the victim went to bring back the cattle and then the incident took place. It appears from her cross-examination that the accused is the son-in-law of Khagendra Nath Barui who is the brother of her husband. Khagendra was also informed of the incident and he assured of taking step. It was suggested to the witness that because of her injury in her leg she could only limp. The witness affirmed her injury but denied that she would walk limping. Pan boroz is.to the south-eastern side of her house and there is a public pathway to the east of the pan boroz which means the metalled road. Pan boroz is visible from her house. She reiterated in her cross-examination that she rushed to the place of occurrence through the agricultural land straight and seeing her the accused fled away. 6. P.W. 2 Kaltol Kumer Pan is an Advocate of Kakdwip Court. As was narrated by P.W. 1, he scribed the complaint and he read it over and explained the same to her. 7. P.W. 4 is Jiten Barui, the father of the victim. He learnt of the incident from his wife. It appears from his cross-examination that on the same night he reported the matter to his brothers i.e. Manobendra Barui and Khagendra Barui. He did not report the matter to anybody else but again says that he narrated the incident to Panchanan Mondal, Tapu Mondal, Chitta Pattanayek, Buddhadev Pattanayek and Monoranjan Pattanayek. 8. P.W. 5 Siblal Barui, the brother of P.W.3 says that after returning home at 7-00 p.m. he came to know of the incident from his mother (P.W.1). 9. P.W.6 is Ramprasad Pattanayek. His evidence is that accused had asked him to call the victim during the evening. He called her but she refused. Then she went to bring back the cattle and he found the accused dragging her and then lying upon her body. In cross-examination he says that near the house of P.W. 3 the accused asked him to call her. Then he went to the house of P.W.3 and called her. P.W. 3 refused to go to the accused. Then P.W. 3 went to bring cattle. He also accompanied her. In cross-examination he says that near the house of P.W. 3 the accused asked him to call her. Then he went to the house of P.W.3 and called her. P.W. 3 refused to go to the accused. Then P.W. 3 went to bring cattle. He also accompanied her. The pan boroz was in the southern side of the house of P.W. 3. The accused was near pan boroz. At the time he, P.W. 3, accused and some one person were present. He did not report the incident to anybody. When accused held the victim he fled away. 10. P.W. 7 Joykrishna Barui is another brother of P.W.3 and is a reported witness. 11. P.W. 8 Dr. Karabi Haider examined the victim on 25.3.2007 and prepared a report (Ext. 3). Her report is to the effect that hymen was not ruptured, no external injury on the body was found. There was no sign of injury in the private part of the body nor was there any venereal diseases. Before the doctor who examined the injured victim at 11.30 a.m. on 25.3.2007 the victim told that when she had been to the field to bring cattle at about 6-00 a.m. on 23.3.2007 the accused forcibly took her beside a pan boroz and stripped of her frock and pant and then he lay on her body in the field without removing his shirt and pant and this was seen by Ram Prasad Pattanayek. The doctor said in the report that the patient was slightly mentally retarded. 12. P.W. 9 Saibal Datta, the Judicial Magistrate, Kakdwip recorded the statement of the victim under Section 164 of the Cr.P.C. He stated in cross-examination that the victim did not state to him that the accused tore her wearing apparels and removed the same. She did not state to him that in consequence of penetration by the accused she suffered any bleeding injury on her private part. She did not state to him that the accused discharged semen on her vagina. 13. P.W.10 is I.O. He did not find any torn clothes at the place of occurrence. He examined one Shantimoy Barui, aged about 3 and 1/2 yrs. and recorded his statement. The defacto-complainant did not state in the FIR, nor the victim did state under Section 161 of the Cr.P.C. that the accused tore her waring apparels. 13. P.W.10 is I.O. He did not find any torn clothes at the place of occurrence. He examined one Shantimoy Barui, aged about 3 and 1/2 yrs. and recorded his statement. The defacto-complainant did not state in the FIR, nor the victim did state under Section 161 of the Cr.P.C. that the accused tore her waring apparels. The place of occurrence has been depicted to be a field. The pan boroz is to the east of the place of occurrence and to the west of which there is open field and to the western side of the pan boroz there is plantation of betel leaf of the complainant. 14. The limitation of this Court to the exercise of the revisional jurisdiction in the matter of a judgment against acquittal is well settled. Normally, the Court does not overturn a judgment of acquittal simply on the ground that the reasoning arrived at by the learned trial Court may be pitted against any other equally compatible reasoning as may be thought of by the Court of revision. That is to say, the mere fact that an alternative view or a view other than the one taken by the trial Court is equally possible is no ground to interfere in the revisional jurisdiction with the judgment of acquittal. It is only when it would appear that the appreciation of evidence was contrary to the provision of the law, or that a man of ordinary prudence would not arrive at a finding as arrived at by the trial Court as being contrary to reason or when the grounds of acquittal are based on consideration of insignificant and trifling matters not touching upon the merit of the prosecution case, or when the reasonings of the trial Court are manifestly absurd or where the judgment of the trial Court does not take into consideration of the material evidence transpiring against the accused the Court of revision has to in such circumstances interfere. But all the way, it is not to be forgotten that this is a revisional application and the State has not preferred any appeal against the judgment of acquittal. 15. The learned Advocate for the petitioner referred to the decisions in Mahendra Pratap Singh v. Sarju Singh and Anr., AIR 1968 SC 707 ; State of Rajasthan v. Shri Narayan. AIR 1992 SC 2004 ; Madho Ram and Anr. 15. The learned Advocate for the petitioner referred to the decisions in Mahendra Pratap Singh v. Sarju Singh and Anr., AIR 1968 SC 707 ; State of Rajasthan v. Shri Narayan. AIR 1992 SC 2004 ; Madho Ram and Anr. v. The State of UP., AIR 1973 SC 469 ; Deo Naiain v. Sfafe of U.P., AIR 1973 SC 473 ; Sfafe of Tamil Nadu v. Ravi @ Nehru, (2006)5 Supreme 204 ; Popular Muthiah v. Sfafe of Tamil Nadu, (2006)5 Supreme 210 ; Vishnu @ Undrya v. Sfafe of Maharashtra, (2005)8 Supreme 165 ; Sedco Forex International Drill. Inc. and Ors. v. Commissioner of Income Tax, Dehradun and Anr., (2005)8 Supreme 174 ; Om Prakash v. Sfafe of Uttar Pradesh, (2006)4 Supreme 313 : (2006)2 C Cr LR (SC) 110; Sfafe of H.P. v. Karanvir, (2006)4 Supreme 319 : (2006)2 C Cr LR (SC) 231 ; Ramdas and Ors. v. Sfafe of Maharashtra, (2006)8 Supreme 635 : (2007)1 C Cr LR (SC) 72 ; Union of India and Ors. v. Dull Chand, (2006)8 Supreme 644 ; Sfafe of M.P. v. Dayal Sahu, (2005)6 Supreme 583 ; Sfafe of Kerala v. Kurissum Motlil Antony, (2006)8 Supreme 823 ; R. K. Agarwal v. Sfafe of Rajasthan and Anr., (2006)8 Supreme 825; Sfafe of Rajasthan v. Biram Lai, (2005)3 Supreme 423 ; Zoroastrian Cooperative Housing Society Limited and Anr. v. District Registrar Cooperative Societies (Urban) and Ors., (2005)3 Supreme 428 ; Santosh Kumar v. State of M.P., (2006)6 Supreme 648 ; Krishna Bhagya Jala Nigam Ltd. v. Mohammed Rafi, (2006)6 Supreme 653 ; Gurcharan Singh v. State of Haryana, AIR 1972 SC 2661 ; Guddu @ Santosh v. State of M.P., (2006)2 C Cr LR (SC) 171 ; Sfafe of U.P. v. Ganga Ram and Ors., (2005)7 Supreme 329 ; M/s. Anand Nishikawa Co. Ltd. v. Commissioner of Central Excise, Meerut., (2005)7 Supreme 335 ; S. Sudershan Reddyand Ors. v. Sfafe of Andhra Pradesh, (2006)6 Supreme 1 ; Tafa Cummins Ltd. v. Sfafe of Jharkhand and Ors., (2006)6 Supreme 7 ; Daya Singh and Ors. v. Sfafe of Punjab, AIR 1965SC333. 16. The learned trial Court has assigned certain reasons which need to be taken care of. The first ground is that according to the learned Judge the victim stated that the wearing apparels might show the sign of resistance and semen of the accused. v. Sfafe of Punjab, AIR 1965SC333. 16. The learned trial Court has assigned certain reasons which need to be taken care of. The first ground is that according to the learned Judge the victim stated that the wearing apparels might show the sign of resistance and semen of the accused. Non-seizure or non-production of the wearing apparels of the victim or of the accused would cast reasonable doubt about the veracity of the prosecution case. According to the learned Judge, the Court did not get any opportunity to ascertain whether the wearing apparels of the victim was stained with semen of the accused or whether the wearing apparels of the victim got torn or not. 17. It is submitted by the learned Counsel for the petitioner that this can hardly be a judicial approach to a case of rape. It is well settled that evidence of slight penetration into the organ of the victim would constitute rape. Discharge or no discharge of semen is quite immaterial. It is not the evidence of the victim that in course of sexual intercourse the accused discharged his semen. She only stated that she showed to the I.O. her apparels and that her apparels were torn. Even if, her version lo the effect that she produced before the I.O. her apparels is not true or is mistaken or is a clever extraction through cross- examination, will that be a material consideration so far as guilt of the accused is concerned. A defect in investigation cannot vitiate the trial of a case. Therefore, even if there has not been any seizure of the wearing apparels of the victim or of the accused that can hardly have any impact on appreciation of evidence in a trial. 18. Secondly, it is argued that the learned Judge in the Court below harped on the discrepancy between the evidence of P.W. 1 and P.W. 3 and this discrepancy is one of the grounds of acquittal. According to P.W.1, the victim had been to the field being accompanied by a little boy called Shantimoy. Shantimoy returned homo weeping to tell the victims mother that somebody was killing the victim. According to P.W.1, the victim had been to the field being accompanied by a little boy called Shantimoy. Shantimoy returned homo weeping to tell the victims mother that somebody was killing the victim. P.W. 1 accompanied by the boy had been to the place of occurrence to find the accused upon the victim and she (victim) stated to her that it was one Ramkrishna who called her to see the accused but she refused to see the accused. But the victim did not state in her evidence that though she was called by Ramkrishna under instruction of the accused she refused to go to the accused and Ramkrishna watched the incident of alleged rape. Again, the victim stated before the learned Magistrate under Section 164, Cr.P.C. that being called by Ramkrishna she had been to the place of occurrence and Ramkrishna watched the alleged incident of rape. Can it be that this contradiction as detected by the learned Judge has any direct bearing to the appreciation of evidence on the fact in issue ? The fact in issue is whether the accused committed rape or attempted to commit rape upon the victim or not at the stated time and place. This contradiction between 164, Cr.P.C. statement of the victim and her evidence or the contradiction between her evidence and the evidence of P.W. 1 with regard to the Ramkrishna episode cannot deter the learned Judge to assess evidence of the victim with regard to the alleged commission of rape. 19. Thirdly, it is argued that the learned Judge pointed out delay of 24 hours in lodging the FIR but there is plethora of decisions to hold that the delay in lodging the FIR in a rape case is not vital unless such delay directly hits the veracity of the prosecution case. II has been held by the Supreme Court in many decisions that in Indian society women feel shy of reporting the case of rape to the police station and given psyche of the Indian womanhood delay in lodging the FIR by itself cannot upset the prosecution case unless the Court comes to the finding that the delay in lodging the FIR contributed to false implication or embellishment and colouring over the actual occurrence. 20. 20. Fourthly, it is argued that according to the learned Judge, the FIR was scribed by P.W. 2 in the presence of P.W.1 and P.W. 3 but none of them told P.W.2 that P.W.3 was raped by the accused and the learned Judge has questioned as to why the story of rape was not mentioned in the FIR. In the FIR scribed by P.W.2 it was written that the accused called the victim to the field through Ramkrishna, that the accused sat on the chest of the victim and attempted to commit rape and having seen the incident the boy Shantimoy informed her and then she (P.W.1) rushed to the field and saw the incident. True, attempt to commit rape is not the same thing as commission of rape. The FIR is explicit on the point that the victim came to the field when the accused sat on the chest of the victim. Significantly, the FIR was not lodged by P.W.3, the victim herself. Even if according to the learned Judge the actual commission of rape was not mentioned in the FIR lodged by P.W.1, the question would remain for consideration whether the offence alleged in the FIR or the evidence adduced in support of the FIR would or would not constitute an attempt to commit rape. P.W.1 is a village woman, semi-literate in the sense that she somehow was able to put her signature. Nowhere in evidence of P.W. 2 is it found that it was the victim who narrated the incident to him when he scribed the FIR. According to P.W. 8, the victim is a slightly mentally retarded person. All that P.W. 2 says that it was P.W.1 who gave the narration and in terms of her narration P.W. 2 scribed the FIR and read it out to her. The learned trial Court did not think it fit to examine the minor boy, as he was found unable to testify. 21. The learned Advocates for the opposite party supported the judgment and argued that judgment impugned does not at all call for interference as it is a reasoned one. 22. The learned trial Court did not think it fit to examine the minor boy, as he was found unable to testify. 21. The learned Advocates for the opposite party supported the judgment and argued that judgment impugned does not at all call for interference as it is a reasoned one. 22. Now, the learned Judge has not addressed the question as to whether the evidence of the victim to the effect that when she had been to the field to bring cattle accused dragged her to the pan boroz, undressed her and then committed sexual assault upon her is believable or not. The learned Judge pointed out the following contradictions. a. Non-seizure of wearing apparels by the I.O. or non-production of the same before the I.O. by the victim. b. The victim failed 1o say the distance covered by the accused while dragging her to the pan boroz. c. The victim did not state in her evidence that in spite of being called by P.W.7 Ram Prasad Pattanayak under instruction from the accused she refused to go to the accused while before the learned Magistrate she stated that being called by P.W.7 she had been to the place of occurrence. d. Delay of more than 24 hours in filing the FIR. e. The allegation of commission of rape came for the first time through the statement of the victim under Section 164 of the Cr.P.C. with no explanation as to why such allegation was not mentioned in the FIR. f. Learned Judge observed that neither P.W.1 nor P.W. 3 has said that Ram Prasad Pattanayak was present at the place of occurrence. g. Victim stated in cross-examination that she cried for help but if she had really cried for help how was it that P.W.1 and her husband or other member of the family failed to hear such cry. h. P.W.6 ran away but did not report the incident and such conduct on the part of the P.W.6 is doubtful. i. Medical evidence negates rape j. Before the doctor the victim did not say that she was raped by the petitioner. k. The victim did not tell the doctor that there was attempt to commit rape. Therefore, there could not be any attempt to commit rape. I P.W. 3 stated in her cross-examination that she showed her injury to the doctor but the doctor did not find any injury. k. The victim did not tell the doctor that there was attempt to commit rape. Therefore, there could not be any attempt to commit rape. I P.W. 3 stated in her cross-examination that she showed her injury to the doctor but the doctor did not find any injury. m. Victim said that sexual assault continued for 30 minutes which was not believable. 23. As rightly argued, non-seizure of the wearing apparel by the I.O. cannot be the ground for negation of the prosecution case. The learned Judge lamented that the Court did not get opportunity to ascertain whether wearing apparel of the victim was stained with semen of the accused or were torn. Law is well settled that the discharge of semen is not the sine qua non of establishment of a charge under Section 376. The victims evidence, if otherwise convincing to the learned Judge, cannot be turned down only on the ground of non-seizure of the wearing apparel of the victim by the I.O. The second ground that the victim failed to say the distance covered by the petitioner in dragging her is to say the least, not at all a point for consideration. It must not be forgotten that at the material point of time the victim was minor belonging to a poor rural family having no education and that too she was mentally retarded slightly. She fell prey to cross-examination by a sophisticated defence Advocate and many a things were extracted from her mouth by putting leading questions and then they were capitalized to demolish the prosecution case. With regard to the third ground it has no be said that Ram Krishna and P.W. 6 Ram Prasad Pattanayak are not two different persons. According to P.W. 6 the petitioner asked him to call the victim who refused to go and then subsequently, victim went to the field, while in her examination in-chief the victim did not say that P.W. 6 called her on being asked by the petitioner. But before the learned Magistrate the victim stated in exact terms what P.W.6 had stated. The learned Judge has not observed as to how the consequence of not mentioning of calling her by the accused through Ram Prasad is destructive of the prosecution case and whether this contradiction emboldens the learned Court to disbelieve the evidence of victim so far the fact in issue is concerned. The learned Judge has not observed as to how the consequence of not mentioning of calling her by the accused through Ram Prasad is destructive of the prosecution case and whether this contradiction emboldens the learned Court to disbelieve the evidence of victim so far the fact in issue is concerned. The question is whether the learned Judge was disbelieving the evidence of the prosecutrix that she was dragged by the petitioner to the pan boroz and that she was sexually assaulted by the petitioner. The learned Judge has not directly answered whether in broad terms the evidence of the victim was proving or not proving the case under Section 376 read with Section 511 of the I.P.C. As to the ground that allegation of rape came lor the first time before the learned Magistrate under Section 164 of the Cr.P.C. It has been submitted that the incident allegedly took place on 23.3.2007 while the victims statement was recorded by the learned Magistrate on 29.3.2007. FIR was lodged not by the victim but by her mother and in the FIR it has been stated that the petitioner sat on the chest of the girl and attempted to commit rape. The FIR maker is the mother of the victim and a lawyer scribed the FIR in terms of narration by the P.W. 3. As to the ground that P.W. 1 and P.W. 3 did not state that Ram Prasad was present at the time of occurrence or not, the learned Judge has not assigned reason whether omission to refer the episode of Ram Prasad will be a ground to disbelieve the evidence of P.W. 6 more particularly when it is submitted that evidence of P.W. 6 was not adduced before the Court for the first time and his evidence remained unshaken although and he was examined by the I.O. The observation of the learned Judge that if the victim had really cried out for help it could have been within the hearing of her mother. This is really a very insignificant matter. Why P.W. 6 ran away from the field cannot be the ground to disbelieve the evidence of the prosecutrix if the evidence of the prosecutrix is otherwise convincing. As to the medical evidence law is clear that absence of injury in the private part of the girl does not necessarily negate rape. 24. This is really a very insignificant matter. Why P.W. 6 ran away from the field cannot be the ground to disbelieve the evidence of the prosecutrix if the evidence of the prosecutrix is otherwise convincing. As to the medical evidence law is clear that absence of injury in the private part of the girl does not necessarily negate rape. 24. Charge-sheet was submitted under Section 376 read with Section 511 of I.P.C but the learned Judge framed charge under Section 376 of the I.P.C. and was not pleased to find the appellant guilty of that charge. 25. I address to the learned Judge in the Court below the question while the learned Judge was of the opinion that charge under Section 376 was not substantiated, was there any effort on the part of the learned Judge to analyze evidence of the witnesses so as to find out whether an attempt to commit rape has or has not been established ? Simply because the victim did not tell the doctor that there was no penetration, can a man of ordinary prudence hold that there was no attempt to commit rape ? The broad facts are the victim had been to the field either being called by P.W. 7 or without being called by P.W. 7. In the field she was dragged by the petitioner towards the pan boroz. She was undressed and the petitioner sat on the body of the girl. Shantimoy rushed to the mother of P.W. 3. P.W. 1 the mother of the victim came to the field and saw the position and supplied clothes. Ramkrishna ran away. If the learned Judge is of the express opinion on the evidence adduced that the incident as narrated by the victim did not at all take place or/and is a total falsity then so far as the learned Judge is concerned there ends the matter. If according to the learned Judge rape has not been proved because of the contradictions all of which are not of magnitude at all, then the learned Judge was duty bound to ascertain whether evidence justified or did not justify a finding on attempt to commit rape particularly when FIR was drawn up under Section 376/511 of the I.P.C. and charge sheet was submitted under that Section of the law. Either with regard to the charge under Section 376 of the I.P.C. or with regard to the charge under Section 376 read with Section 511 of the I.P.C. the learned Judge has to say either the incident did not at all take place or that there was colouring and embellishment over actual occurrence or that the victim was consenting party if she however was major. 26. In the circumstances, I allow the revisional application and set aside the judgment and order ol the learned Judge and remand the case back to the learned trial Court lor rehearing on the basis of the evidence already on record and for decision in accordance with law. I make it clear that I have made no observation touching upon the merit of the case and no part of my observation must influence the learned Judge. 27. Copy of the order shall be sent to learned Additional Sessions Judge, Fast Track Court, Kakdwip for information and necessary action. 28. The Lower Court Record of this case shall be sent down immediately.