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2010 DIGILAW 1471 (CAL)

Mithu Sardar v. STATE OF WEST BENGAL

2010-12-22

ASIM KUMAR RAY

body2010
JUDGMENT 1. THE judgment of the Court was as follows: This revisional application is directed against the judgment and order dated 4.9.2004 passed in Sessions Trial No. 4 (6) of 2001 by learned Judge, Special Court E.C. Act and Additional District and Sessions Judge, Alipur, South 24-Parganas thereby acquitting Tushar Kanti Guha @ Babu Guha and Anjali Chatterjee from the charges levelled against them under Sections 376/506 of the Indian Penal Code and under Sections 376/109 of the IPC. This revisional application has been filed by de facto complainant Mithu Sardar. 2. FACTUAL background in a nutshell, is that complainant/victim was a maid servant of Opposite Party No. 3, Anjali Chatterjee. On 12th Bhadra 1405 B.S. around 7/7.30 a.m. Anjali sent the complainant/petitioner to the house of O.P. No. 2 /Tushar Kanti Guha @ Babu Guha for bringing Rs.50/-. Accordingly, she had been to the house of O.P. No. 2 and found that he was standing in a grilled covered veranda. She was invited by him to come inside on the pretext to show the inner portion of his flat. She entered into his house. Tushar pulled and tightened her hands with the grill of the window by a rope and tightening her mouth with his lungi raped her against her will. She was threatened with the knife and asked not to disclose the incident to anyone. Tushar also promised to pay her money whenever she required. She narrated the incident to O.P. No. 3 Anjali Chatterjee who told her that the same is a common matter now-a-days and if she becomes pregnant Tushar will arrange for her abortion. The petitioner hearing such thing started crying and seeing that Anjali gave her Rs. 500/- as consolation which she refused. Anjali stated to the petitioner that the police persons are all under the control of Tushar and there will no fruitful result if she informed police. She informed police about the incident The petitioners replied that she would intimate the matter to the members of the political party and hearing the same Anjali called Tushar and made a consultation in a separate room. Thereafter, Tushar assured the petitioner to marry her and advised her to proceed to her native place as the month was Bhadra and the marriage could not have been solemnized. The petitioner disbelieved the same but got confidence when Anjali directed Tushar to bring sindur. Thereafter, Tushar assured the petitioner to marry her and advised her to proceed to her native place as the month was Bhadra and the marriage could not have been solemnized. The petitioner disbelieved the same but got confidence when Anjali directed Tushar to bring sindur. Accordingly Tushar brought sindur and promised to the petitioner that sindur will be offered in the month of Ashwin. it has been further alleged that the petitioner was not aware that the Tushar was a married person and when on 24th day of Ashwin the petitioner went to the house of Anjali along with her brother-in-law Anjali stated that Tushar did not cohabit with the petitioner. The matter Was informed to the members of club and local police station. It has been alleged further that Tushar told her that he will give her Rs. 10,000/- if she withdraws the complaint. Mr. Sekhar Basu, learned Counsel for the petitioner has contended that the evidence of a prosecutrix in a rape case is in the stature of the evidence of any injured witness and not of accomplish and the same alone is sufficient to prove the guilt of the opposite party Nos. 2 and 3. He has contended further that the delay of five months to lodge the FIR in the instant case was primarily caused due to the promise of marriage made to the petitioner by the OP. No. 2 as well as by O.R No. 3 in addition to that the petitioner being an illiterate lady went to different places to consult the matter and also due to severe threats at the instance of O.P. Nos. 2 and 3. He has also contended that the sexual offence is an unlawful interference of a woman's privacy and sanctity and the severe shock on her self-esteem and dignity and that is why the evidence of the prosecutrix should not be treated at per with other criminal offences. The learned Court below has failed to appreciate the deposition of prosecution witness, namely, prosecution witness Nos. 3,5 and 6 as well as other witnesses including the victim and has arrived at an erroneous finding on the sole ground that there was inordinate delay and the evidence on record is full of contradictions. The learned Court below has failed to appreciate the deposition of prosecution witness, namely, prosecution witness Nos. 3,5 and 6 as well as other witnesses including the victim and has arrived at an erroneous finding on the sole ground that there was inordinate delay and the evidence on record is full of contradictions. He has also contended that the political enmity which has been highlighted in the judgment cannot be the basis on which the evidence of the victim and other witnesses may be brushed aside. The learned Court below has made some observations against the victim in the body of the judgment lowering the dignity even of the Court. The observation of the Court touching the character of the victim should be expunged. He has also contended that principles of law laid down by the Supreme Court to deal with an offence punishable under Section 376 of IPC has not been followed by the Court while appreciating the evidence which is why there is manifest illegality in the judgment. Mr. Basu, learned Counsel of the petitioner has referred the decision reported in 1996 SCC (Cri) 316 to give support to his contention. The impugned judgment may be interfered with and set aside. 3. MR. Sudipto Maitra, learned Counsel of the O.P. Nos. 2 and 3 has contended that the place of occurrence was inside the locality. The victim was not a ten aged girl. She was adult. The offence alleged to have been committed during day time. The posture in which the offence was alleged to have been committed is improbable. The victim did not raise any alarm and there was delay of six months. The finding of the learned Court below is based on proper appreciation of the evidence on record and that may not be interfered with. There was no manifest illegality resulting in miscarriage of justice. MR. Mitra has referred the decision reported in 2009 (3) SCC (Cri) 585 in support of his contention. 4. MR. Swapan Kumar Mullick, learned Counsel of the State has not placed any positive argument but has contended that the judgment of the learned Court below does not calls for any interference. I have meticulously perused the record and the evidence both oral and documentary. I have minutely perused the decision cited by the learned Counsel of the parties. 4. MR. Swapan Kumar Mullick, learned Counsel of the State has not placed any positive argument but has contended that the judgment of the learned Court below does not calls for any interference. I have meticulously perused the record and the evidence both oral and documentary. I have minutely perused the decision cited by the learned Counsel of the parties. I have taken specific note of the rival submissions of the learned Counsel of both sides. It is a revision against an order of acquittal initiated by the de facto complainant but not by the State. In that factual scenario this Court's jurisdiction is practically very limited. It cannot go to the root of the matter and reappreciate the evidence on record by discussing it at length. In this premises it is relevant to see the guidelines of the Hon'ble Apex Court to be followed by a Court of revision. In the decision reported in AIR 1968 SC 707 (Mahendra Pratap Singh v. Sarju Singh) the Hon'ble Apex Court has observed that: "In D. Stephens v. Nosibolla only grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is misapprehensions of evidence. Again, in Logendranath Jha v. Shri Polailal Biswas, this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is "perverse" or "lacking in true correct perspective". It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court. This Court observes that it is not sufficient to say that the judgment under revision is "perverse" or "lacking in true correct perspective". It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court. Again in Chinnaswamy Reddy v. State of Andhra Pradesh, it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defence in the judgment under revision must be analogous to those actually indicated by this Court. As stated, not one of these points which have been laid down by this Court was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned Judge has reweighed the evidence from his own point of view and reached interferences contrary to those of the Sessions Judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and acted in breach of them." 5. FURTHER the Hon'ble Apex Court in a decision reported in 1975 (4) SCC 477 (Pakalpati Narayana Gajapathi Raju and Ors. v. Bonapalli Peda Appadu and Anr.) has observed that: "Section 439(1) of the Code of Criminal Procedure provides that in exercise of revisional jurisdiction, the High Court may exercise any of the powers conferred on a Court of appeal. This provision is made expressly subject to sub-section (4) of Section 439 under which nothing contained in the section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. This provision is made expressly subject to sub-section (4) of Section 439 under which nothing contained in the section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. Section 439 has been interpreted in several decisions of this Court which have taken the view that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, ought not to be exercised lightly and that it can be exercised only in exceptional cases where the interests of public justice require interference for the correction of manifest illegality or the prevention of a gross miscarriage of justice. (See: Satyendra Nath Dutta v. Ram Narain; Akalu Ahir v. Ramdeo Ram; Chaganti Kotaiah v. Gogineni Venkateshwara Rao). It is clear from these decisions that the revisional jurisdiction cannot be invoked merely because the Lower Court has not appreciated the evidence properly. The High Court has in its judgment referred to the decisions of this Court in applying those decisions it has transgressed the limits of its revisional powers." 6. THE Hon'ble Apex Court in the decision reported in 2002 Cri. LJ 3788 has observed that in the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial Court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 against a judgment of acquittal. Mr. Basu, learned Counsel appearing on behalf of the petitioner has contended that the evidence on record has not been rightly/properly appreciated by the learned Court below and the same is nothing but a manifest illegality resulting in the miscarriage of justice. It is the settled principles that the revisional jurisdiction cannot be invoked merely because the Lower Court has not appreciated the evidence properly. No defect of procedure has been pointed out at the time of advancing argument from the side of the petitioner. There was also no improper acceptance or rejection of evidence nor was there a defect of procedure or illegality in the conduct of the trial vitiating the trial itself. No defect of procedure has been pointed out at the time of advancing argument from the side of the petitioner. There was also no improper acceptance or rejection of evidence nor was there a defect of procedure or illegality in the conduct of the trial vitiating the trial itself. It has been repeatedly observed by the Hon'ble Supreme Court that in exercise of revisional jurisdiction against an order of acquittal at the instance of private party, the Court exercises only limited jurisdiction and should not constitute itself into an appellate Court which has been a much wider jurisdiction to go into the question of facts and law to convert an order of acquittal into one of conviction. It cannot be loss sight of that when a retrial is ordered, the dice is loaded against the accused and that itself must caution the Court exercising revisional jurisdiction. The Hon'ble Apex Court has made it clear repeatedly that the revisional Court ought not to exercise its jurisdiction lightly and in revision an order of acquittal may be set aside if there is an error on a point of law or no appraisal of the evidence at all. The learned Judge has made appreciation of the evidence on record and it has been highlighted that there is inordinate delay in making the FIR. According to prosecution the delay was caused, firstly, there was possibility of marriage with O.P. No. 2. Secondly, the victim went to different places for consultation and lastly out of fear she was unable to lodge the FIR. In that process six months had been elapsed. Ext.-A got a specific place in the judgment impugned. It transpires from the Exhibit-A that the victim girl, Mithu Sardar, her brother-in-law, Dilip Maity and one K.Das conjointly submitted an application before the Secretary, Vidyasagar Colony Committee expressing that they were unable to realise the incident which was complaint against the Babu Guha. They understood the matter afterward and found that it was nothing serious in nature for which they remained silent but after few days Councilor Biswananda Babu, Netai Majumdar and few local people created pressure upon them to file written complaint against Babu Guha for which they lodged the same to the Colony Committee. But they have realised the fact and withdrew the same thinking about the future of the girl. But they have realised the fact and withdrew the same thinking about the future of the girl. It has been clearly mentioned in the said, exhibited document that Biswananda Babu assured them that he will arrange for Rs. 2 lakhs from Babu Guha. 7. THE posture in which the offence was alleged to have been committed is highly improbable and there is an observation to that effect in the body of the judgment impugned. The evidence of doctor has been discussed. The doctor (P.W.7) gave specific opinion that the rupture noticed by him in the hymen of the victim girl was old but not more than of ten days and the learned Court below has taken that part of evidence of doctor and has observed that the victim was habituated in sexual intercourse with other person. This indicates that she is a fallen girl and it is risky to believe such girl because such a fallen girl may be used to harass and defame the rivals and for taking revenge. The observation of the learned Court touching the character of the girl is not judicious and healthy and the same be expunged. The behaviour of the victim girl after the alleged incident which has been reflected from the FIR, evidence on record and Exhibit-A is not the reflection of a girl who has claimed that she was subjected to such a crime. The evidence on record did not inspire the confidence of the learned Court as it was suffering from vital contradiction and the same was highly improbable. The testimony of the victim in this case has not been relied on as it was suffering from self contradiction in the light of the averment coming out from Exhibit-A. If the same is seen from that angle then I am of the considered view that the decision cited by learned Counsel for the petitioner is not helpful and befitting in the facts and circumstances of the instant case. 8. IN the instant case, admittedly there is six months delay in lodging the FIR. The Hon'ble Apex Court in the decision reported in 2009 (3) Supreme Court Cases (Cri) 585 has observed that in cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. The Hon'ble Apex Court in the decision reported in 2009 (3) Supreme Court Cases (Cri) 585 has observed that in cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. IN the instant case we do not get any positive evidence from expert like doctor as the victim was thought it fit not to go the P.S. with complaint or allegedly advised to go to different places for redress without reporting the matter to the observer of law and order situation of the society i.e. police and got her medically examined just after the incident. The victim was medically examined more than six months after the alleged offence and her examination and finding of the doctor is not at all helpful in connection with this case. Regard being had to the decision cited above and taking the background on which the case cropped up and the subsequent happenings, I do find reason and ample reasons to express that the judgment impugned does not suffer from any sorts of manifest illegality resulting in miscarriage of justice and as such does not call for any interference in it. 9. THE revisional application is devoid of merit. It is dismissed.