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2011 DIGILAW 112 (CAL)

Suresh Poddar v. The State of West Bengal

2011-01-25

KALIDAS MUKHERJEE, MD.ABDUL GHANI

body2011
JUDGMENT : MD. ABDUL GHANI, J.: The present two appeals are directed against the judgment of conviction and sentence dated 15th September, 1988 passed by the learned Assistant Sessions Judge, Burdwan in Sessions Trial Case No. 22 of 1988 corresponding to Sessions Case No.144 of 1987 sentencing the appellants, namely, Suresh Poddar and Santi Bauri to suffer R.I for 8 years and to pay fine of Rs.2,000/-I.D to suffer R.I for 1 year and to suffer R.I for 5 years and to pay fine of Rs.500 and in default to suffer R.I for 3 months respectively for the offence under Section 376 IPC and 376/114 IPC respectively. Prosecution case, in short, is that on 28th April 1984 at about 3 PM the victim girl Fulmani Mandi (P.W-1) boarded a bus at Burdwan for going to Memari and when the bus reached Shaktigarh, victim learnt that the bus would not go to Memari as the same was meant for Barsul and, as such, she got down from the bus at Shaktigarh. In the meantime appellant Suresh found the victim girl standing at Shaktigarh bus stand and took her to the house of appellant Santi Bauri. It has been alleged that appellant Suresh committed rape upon the victim girl in the house of Santi Bauri. At about 6.30 pm two other persons along with the aforesaid appellant Suresh forcefully took the victim girl to the nearest field and all of them, one after another, committed rape upon her and fled away. Victim sustained bleeding injuries in different portions of her body including her mouth and private parts. Thereafter the victim took shelter in the nearest rice mill of Shaktigarh wearing petticoat and blouse only and reported the incident to the manager and other employees of the said mill. The employees of the mill provided a wearing sari to the victim girl and allowed her for halting the night in the said mill. On the following day early in the morning when the victim girl was proceeding towards Memari, she suddenly happened to see a police jeep and informed the police about the incident. Police then took the victim girl to Shaktigarh and arrested both the appellants as per her identification. On the following day early in the morning when the victim girl was proceeding towards Memari, she suddenly happened to see a police jeep and informed the police about the incident. Police then took the victim girl to Shaktigarh and arrested both the appellants as per her identification. Subsequently, police took the victim girl and the appellants to Burdwan Police Station and prepared the FIR which was signed by the victim girl and was lodged with the said Police Station for taking legal action. Upon receiving the aforesaid FIR, OC Burdwan Police Station, started Case No.66 dated 29th April, 1984 Under Section 376/34/114 IPC against the present two appellants and three others. The case was taken up for investigation and finally Charge Sheet under Section 376/114 IPC was submitted against the present two appellants and three others, namely, Sk. Hara, Nur Hossain and Buta Thakur who are still absconding. Thereafter the learned Trial Judge upon hearing the learned Counsel for both the parties and also considering the materials on record framed charges under Section 376 and 376/114 IPC against the appellants Suresh Poddar and Santi Bauri respectively. The said charges were read over and explained to the appellants to which they pleaded not guilty and claimed to be tried. It would be explicit from the materials on record that the learned Trial Judge after going through the evidence and materials on record and also upon hearing the learned Counsel for the parties concerned as well as giving due regard to the position of law held both the appellants guilty of the charges framed against them and passed order of sentence as stated above. Mr. Manjit Singh, learned Counsel appearing for the appellants while arguing the case drew our attention to the evidence of all the P.Ws including Dr. Samudra Chakrabarty (P.W-10) and strongly urged that the oral testimony of victim girl (P.W-1) being discrepant as also devoid of credibility, no reliance could be placed upon the prosecution story, inasmuch as, the victim’s evidence suffers from materials inconsistency and contradiction, especially, in relation to the contents of the FIR (Ext.1) as also some other important materials including the statement under Section 164 Cr. PC (Ext.2) recorded by Judicial Magistrate (P.W-9). Referring to the oral testimony of P.W-1 as also the oral testimony of Dr. PC (Ext.2) recorded by Judicial Magistrate (P.W-9). Referring to the oral testimony of P.W-1 as also the oral testimony of Dr. Samudra Chakrabarty (P.W-10) and some other P.Ws, learned Counsel for the appellants has pointed out and detected some discrepancy and emphatically contended that according to P.W-1 she was having no experience about sexual intercourse, while (P.W-10) Dr. Samudra Chakrabarty opined that the victim girl was habituated in sexual intercourse. Doctor’s evidence further discloses nothing about the injuries found anywhere in the body of the victim girl. He has further submitted that in the present case there is no corroborative and convincing evidence leading to the story of rape and accordingly the prosecution case cannot be said to have been established and proved in the eye and estimation of law. In support of his submission, learned Counsel appearing for the appellants has relied upon the ruling reported in 2007(1) Supreme Court Cases (Cri) 161 Sadashiv Ramrao Hadbe Vs. State of Maharashtra and Another and strongly argued that in view of the principles laid down in the ruling in question, the impugned judgment of conviction deserves to be set aside, inasmuch as, the oral testimony of the victim girl (P.W-1) cannot be said to be reliable for reasons of its inconsistent and discrepant nature and character. On the other hand, Mr. R.K. Ghoshal, learned Counsel appearing for the respondent State of West Bengal referring to the oral testimony of P.W-1, the contents of the statement recorded under Section 164 Cr.P.C (Ext.2) and some other materials including the contents of the FIR (Ext.1) and strenuously submitted that there being no serious discrepancy in regard to the alleged incident of rape upon the victim girl the impugned judgment of conviction cannot be called in question and the same should be supported and upheld. In support of his contention, he has further argued that, although, no T.I parade could be held for identification of the appellants, the prosecution case cannot be said to be weak as the appellants were identified by the victim girl during trial of the case on dock. In fine, the learned Counsel appearing for the State has urged that it is a fit case wherein the impugned judgment of conviction needs no interference by this Court. In fine, the learned Counsel appearing for the State has urged that it is a fit case wherein the impugned judgment of conviction needs no interference by this Court. On scrutiny of the record it could be detected that out of the eleven witnesses examined in this case, P.W-4 and P.W-5 happen to be the public witnesses. Both the witnesses came to depose for proving their signatures in the seizure list (Ext.3), but none of the said two witnesses could say anything about the contents of the seizure list. According to prosecution story as revealed in the body of the FIR (Ext.1) appellant Suresh Poddar and two other persons committed rape upon the victim girl (P.W-1), But from the contents of the charge framed against appellant Suresh, in all four persons including appellant Suresh committed rape upon the victim girl. From the evidence of P.W-1 it could be gathered that appellant Suresh Poddar alone committed rape upon the victim and two other persons could not commit rape upon her as she fled away to the nearby rice mill of Shaktigarh. Of course, from the contents of the statement under Section 164 Cr.P.C (Ext.2) it could be seen that appellant Suresh Poddar and two other persons committed rape upon her on point of knife. It is true that nowhere in the evidence of the P.Ws or in the body of the FIR (Ext.1) the story of knife has been indicated. Further it transpires from the oral testimony of P.W-1 that while she reached Shaktigarh, appellant Suresh told her to take shelter in the house of appellant Santi Bauri stating that the sky was cloudy and there was chance of rain and storm, as has been indicated in the body of the statement recorded under Section 164 Cr.P.C by Judicial Magistrate (P.W-9) (Ext.2). Further it reveals from the oral testimony of S.I. Indrajit Mukherjee (P.W-11) that the appellants were taken to his Jeep from a hotel of Shaktigarh, while in the evidence of P.W-1, there is no such version regarding such story of taking the appellants to the police Jeep from a hotel. According to P.W-1 police seized her petticoat and blouse under a seizure list (Ext.3), but seizure list does suggest that no blouse was ever seized in connection of this case. According to P.W-1 police seized her petticoat and blouse under a seizure list (Ext.3), but seizure list does suggest that no blouse was ever seized in connection of this case. From the oral testimony of P.W-1 it would appear that the incident was reported to victim’s mother and the people of rice mill of Shaktigarh. True it is that, neither victim’s mother nor anybody from rice mill has been examined in this case. Although, from the contents of the chemical report (Ext.4), it transpires that the seized sari was stained with human semen, but in the circumstances of the case, it cannot be conclusively said that the semen was that of the appellant Suresh Poddar. As a matter of fact, the prosecution story appears to be inconsistent, uncorroborated and contradictory as to incident of alleged rape and abatement of such rape. The evidence of police personnel viz. P.W-2, P.W-3, P.W-6, P.W-7 and P.W-8 is also not consistent with the FIR story. It may also be noted down that the I.O who submitted Charge Sheet has not been examined in this case. In this context, it may be brought into discussion that in a case like the present one, any accused could be convicted on the basis of the sole testimony of the prosecutrix provided the evidence is capable of inspiring confidence in the mind of the Court. Here in the instant case, the version given by the prosecutrix is unsupported by the medical evidence as well as the whole surrounding circumstances. Non-examination of any person from the rice mill where the prosecutrix took shelter on the night of the incident as also non-examination of victim’s mother weakens the prosecution story. Further, in this context, it may be added that no T.I parade was held for ascertaining the identity of the appellants. Of course, there is whisper in evidence of P.W-1 that both the appellants were identified by the victim girl during trial. In this context, it may be pertinent to point out that in a criminal trial where the accused persons are kept inside the accused dock, their identification by any person or witness becomes easier than the actual procedure for ascertaining identification in T.I parade. In this context, it may be pertinent to point out that in a criminal trial where the accused persons are kept inside the accused dock, their identification by any person or witness becomes easier than the actual procedure for ascertaining identification in T.I parade. As a matter of fact, want of marks of injury anywhere in the body of the victim girl (P.W-1), want of appropriate identification of the appellants, want of examination of any people from rice mill as also the mother of the victim girl and inconsistent story of the prosecution gathered from the FIR (Ext.1), the oral testimony of P.W.1 and some other witnesses as also the statement recorded Under Section 164 Cr.P.C (Ext.2) by Judicial Magistrate (P.W-9) have created a serious doubt about the prosecution story. Presence of semen on the undergarment of the prosecutrix cannot be said to be sufficient, by itself, to prove the offence. Furthermore, the Doctor who examined the prosecutrix on 30th April, 1984 opined that the victim girl (P.W-1) was habituated in sexual intercourse, while the evidence of victim girl was otherwise that prior to incident she was having no such experience. Further it has been manifested in the oral testimony of the victim girl (P.W-1) that she hails from the District of Bankura and as per her evidence on the date of incident she alone was going to Memari in the district of Burdwan to attend her work as a day labourer. Normally a day labourer young girl of a different district does not go to attend such work alone in the afternoon of a day. Thus having regard to the totality of the evidence and all other surrounding circumstances of the case, prosecution story cannot be taken to be reliable and believable. Therefore, having heard the learned Counsel for both the parties and also giving due consideration to the evidence and materials on record as also the position of law so highlighted in the ruling relied upon on behalf of the appellants reported in (2007) 1 SCC (Cri) 161 (supra) we are satisfied to conclude and hold that the learned Trial Judge while disposing of the case misdirected himself in appreciating the evidence and materials on record and, therefore, was not justified in holding the appellants guilty of the charges framed against them. Accordingly, we set aside the impugned judgment of conviction. Accordingly, we set aside the impugned judgment of conviction. Resultantly, the appellants are acquitted of the charges. The appeal is, therefore, allowed. This judgment governs the judgment of CRA No.462/88 and CRA 53/89. Let a copy of the judgment along with the lower Court records be sent down to the learned Court below immediately. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.