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2010 DIGILAW 1202 (CAL)

Sribash Sarkar v. STATE OF WEST BENGAL

2010-09-17

AMIT TALUKDAR, M.K.CHAUDHURI

body2010
JUDGMENT Amit Talukdar, J. 1. PURSUANT to a chargesheet submitted by P.W. 33, Hiten Kumar Mukherjee the sole Appellant hereinabove was arrayed in Sessions Trial No.6(2) of 2000 before the learned Additional Sessions Judge, First Court, Barasat to answer the following charge: "That you, on or about the 17/18.2.96 at about 01.30 hours committed rape on Kr. Jamuna Poddar at Debigarh near Grocery shop of Biswanath Haider, under Madhyamgram Municipality and thereby committed an offence punishable under section 376 of the Indian Penal Code." 2. SINCE he pleaded not guilty he was placed in the trial. The learned Trial Court upon conclusion of the Trial on 19.1.09 convicted the appellant in respect of the offence punishable under section 376(2)(f) of the Indian Penal Code, and directed him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/- in default suffer rigorous imprisonment for one year more. 3. THE prosecution in order to prove its case examined as many as thirteen (13) witnesses. 4. FOR a profitable discussion of the entire case before us it would be proper to set out the nature of evidence adduced on behalf of the prosecution. P.W. 1 was the author of the FIR. He was the father of the Victim-girl (P.W.2). P.W. 4 was her mother. P.Ws. 3, 6, 8 and 10 were the witnesses who came to the place and heard about the incident just after the occurrence. P.W.5, Superintendent of Barasat Sadar Hospital, certified with regard to potency of the appellant. P.W. 9, Professor Rama Saha Asstt. Professor of the Department of Pathology attached to the Saha Asstt. Professor of the Department of Pathology, attached to the Institute of Post-Graduate Medical Research 8a Institute at Kolkata at the relevant time was the Medical Officer of the Block Primary Health Centre, Madhyamgram. P.W. 9, Prof. Saha was the first Medical Officer who examined the Victimgirl (P.W.2). P.W.12, Dr. Goutam Bera of the Sub-Divisional Hospital, Barasat being referred to by Prof. Saha examined the Victim. P.W. 11 drew up the formal FIR (Ext.7) on the basis of the Written Complaint (Ext.1) filed by P.W. 1 and P.W. 13, on a completion of investigation, submitted chargesheet. We have been addressed at the Bar by Sri Saha with Sri Chowdhuri in support of the appeal and Mrs. Das with Sri Majumder for the State. P.W. 11 drew up the formal FIR (Ext.7) on the basis of the Written Complaint (Ext.1) filed by P.W. 1 and P.W. 13, on a completion of investigation, submitted chargesheet. We have been addressed at the Bar by Sri Saha with Sri Chowdhuri in support of the appeal and Mrs. Das with Sri Majumder for the State. It is submitted by Sri Saha for the appellant that at first, P.W.I lodged the FIR against the sole appellant on the premises of section 354 of the Indian Penal Code. There was no whisper with regard to the commission of any offence under section 376 of the Indian Penal Code. He laid great emphasis on this aspect of the matter as it was P.W. 1 who first heard about the incident from the Prosecutrix. But yet Sri Saha wondered as to how in the FIR, which was lodged on the very next day, this aspect was left out. He also invited out attention to the fact that the Victim had gone to the house of one Biswanath Haider for the purpose of playing Ludo. But neither Biswanath nor any one of his inmates was examined, in connection with this case. 5. REFERRING to the evidence of P.W.9, Prof. Saha, Sri Saha submitted that since she did not find any injury in context of the allegation of section 376 of the Indian Penal Code even though the prosecutrix was of a tender age the Prosecution case was liable to be disbelieved on this ground. He also showed from the evidence that P.W. 2 was nine years old at the relevant point of time. As such, the sole appellant was 38 years of age and the entire prosecution case did not match with the medical evidence. He also invited our attention to the Question No. 30 of the 313 Examinations held before the Trial Court and showed, therefrom that there was great chance of false implication due to rivalry existing between the parties. 6. MRS. Das for the State has read out from the evidence-on-record. She has submitted that simply the evidence of the prosecutirx (P.W.2) was sufficient to prove the prosecution case in the absence of any other supporting or medical evidence. MRS. Das submitted further that apart from the evidence of the prosecutirx (P.W.2) the supporting evidences of P.Ws. 6. MRS. Das for the State has read out from the evidence-on-record. She has submitted that simply the evidence of the prosecutirx (P.W.2) was sufficient to prove the prosecution case in the absence of any other supporting or medical evidence. MRS. Das submitted further that apart from the evidence of the prosecutirx (P.W.2) the supporting evidences of P.Ws. 6, 4, 10 and 8 who came just after the incident are quite sufficient to prove the prosecution case in its entirety. MRS. Das further submitted that since both Prof. Saha (P.W.9) and Dr. Bera (P.W.12) found injuries as noted by them the prosecution case could not be disbelieved outright. She further submitted that the question of enmity can cut both ways. If there is question of false implication there is also question of this incident out of grudge. Summing up her argument she laid great stress on the evidence of the Prosecutrix itself and submitted that the prosecution having been able to prove its case beyond any reasonable doubt the appeal is liable to be dismissed. After we have heard in details the submission of Shri Saha for the appellant and Ms. Das with Shri Majumdar for the State, we would proceed to appreciate the same in the light of the evidence that have been placed before us. 7. THE prosecution case, as unfurled through the evidence of P.W.I and P.W.2, relates to an incident in the night of 18.2.96. It was the night of Mahashivaratri. All knows that everybody stays awake on the Holy Festival Night. It was also the case of the family of the prosecutrix that they were celebrating Mahashivaratri on the said night. To remain awake, perhaps the children of P.W.1 and P.W.4 consisting amongst others the prosecutrix herself went to the house of one Biswanath Haider (not examined) and they engaged themselves in a game of ludo. It is lat this fateful time this appellant, came and informed the prosecutrix that she is called by her mother (P.W.4). Her Elder Sister, Jamuna also told her that since their mother is looking for them she should immediately leave. On her wayback home, it is the prosecution Case that the Appellant took the prosecutrix underneath a coconut tree and after disrobing her violated her. 8. SENSING the presence of P.W.1, the father of the prosecutrix he immediately dressed her up and left her. On her wayback home, it is the prosecution Case that the Appellant took the prosecutrix underneath a coconut tree and after disrobing her violated her. 8. SENSING the presence of P.W.1, the father of the prosecutrix he immediately dressed her up and left her. After having met P.W.1 she narrated the entire incident. P.W.3, P.W.4, P.W.6, P.W.8 and P.W.10 who came just after the incident were also apprised about the same and they narrated their versions as heard from the prosecutrix. We find from the evidence that a Written Complaint (Ext.1), scribed by Shri Jagannath Chakraborty (not examined), was placed before the Barasat Police Station which was treated, as the formal FIR (Ext.7) by it P.W.ll, Sri Kumar Tamang. 9. PURSUANT thereof the Prosecutrix was examined, at the Block Primary Health Centre by Prof. Saha (P.W.9) who found: "1. Patient was concious, co-operative alert.......... "2. Abression, bruise - not seen over exposed are of the body. "3. Breast - nothing abnormality detected, labia majora and minora- N.A.D. "4. hymen - slight bleeding was present. "5. Fourchette-N.A.D. "6. Thigh - N.A.D. "7. Foreign body- nil "8. No marks of violence seen "9. No mark/ strain of seminal fluid seen "10. No. scratch mark, bruise or abression, were present over private parts." 10. THEREAFTER she was referred to the Sadar Hospital, where P.W.12, Dr. Goutam Bera examined her and found "Her hymen was raptured. In case of forcible intercourse the female, organ may be raptured after crossing level libia." This examination was done on 02.3.1996 i.e. after a lapse of 15 days. In the meanwhile, as noticed above, the capability of the appellant was examined P.W.5, Dr. Swapan Kumar Chakraborty, Superintendent of the Sadar Hospital, Barasat. P.W.13 after assuming the charge of the investigation secured the arrest of the appellant on 27.5.96 and having examined the appellant before P.W.5 on the same date. 11. AFTER noticing the basic features of the prosecution case, as evident from the materials placed before us, we find the following salient features. 12. THE incident took place at 1-30 hours at the night of 17/18.2.96 formal FIR was lodged before the Police Station on 18.2.96 at 16.15 hours. 11. AFTER noticing the basic features of the prosecution case, as evident from the materials placed before us, we find the following salient features. 12. THE incident took place at 1-30 hours at the night of 17/18.2.96 formal FIR was lodged before the Police Station on 18.2.96 at 16.15 hours. In the said FIR there was no mention with regard to the allegation made under section 376 of the Indian Penal Code; although it cannot be lost sight of that P.W.I was the first person who was reported with regard to the incident by the prosecutrix herself in the fashion that we have noticed hereinabove and also was immediate witness to the dishevelled condition of the prosecutrix just after the incident, it passes beyond comprehension, as to why there was no mention of the allegation with regard to section 376 of the Indian Penal Code and that there was such a delay in lodging the FIR. If we see the evidence of P.W.9, Prof. Saha who examined the prosecutrix on the next morning at about 10-30 hours the injuries that have been noticed by us cannot be conclusively shown to prove the Charge against the appellant. The appellant was 38 years of age. The Prosecutrix was barely nine years. We can take notice of the evidence of P.W.9, Prof. Saha and also the state of injuries received by the Prosecutrix which are not commensurate with the factual situation. 13. THAT apart, the question of enmity, as rightly pointed out by Ms. Das may cut both ways. But in the present context of the case Shri Saha would be quite appropriate that apart from the question No. 30 in the 313 examination both P.W.I and P.W.2 had been given suggestion with regard to the business rivalry and the situation of the stall of the appellant before the shop of P.W.I. Enmity in this particular case has to be viewed with some importance. 14. THAT apart, neither Biswanath Haider nor any inmate of his house was examined. P.W.4, the mother of the prosecutrix has stated in her evidence that she found her daughter in a bare position which runs contrary to the evidence of her husband (P.W.1), P.W.2, the prosecutrix herself as well as the evidence of P.W.3, P.W.6, P.W.8 and P.W.10 who came just after the incident. P.W.4, the mother of the prosecutrix has stated in her evidence that she found her daughter in a bare position which runs contrary to the evidence of her husband (P.W.1), P.W.2, the prosecutrix herself as well as the evidence of P.W.3, P.W.6, P.W.8 and P.W.10 who came just after the incident. Having a wholesome appreciation of the entire evidence and materials on record, we feel that the evidence of the prosecutrix read in line with other witnesses does not inspire much confidence in the mind of the Court and it would be appropriate that benefit of doubt should be given and moreover the FIR being a very important piece of document, does not corroborate the entire prosecution case. It is well-settled that the maker of the FIR can either be discredited or corroborated by his previous statement in the same way by applying the logic of sections 145 and 157 of the Evidence Act. 15. NOTHING less nothing more. 16. BUT in the instant case the very genesis of the prosecution case stood shaken. Discrepancies and gaps in important, areas, were to such extent that it would the impossible to place implicit faith on the prosecution case. But in this case the entire composition of the prosecution case has been altered by way of such discrepancy. 17. ON account of our perception of the evidence in the light of the materials that we have seen, we feel that the appeal must succeed and the conviction and sentence recorded by the learned Trial Court is hereby set aside. 18. APPELLANT is directed to be released forthwith. I agree.