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2011 DIGILAW 483 (CAL)

Sabitri Barman v. STATE OF WEST BENGAL

2011-04-04

KANCHAN CHAKRABORTY

body2011
JUDGMENT Kanchan Chakraborty, J. 1. THE challenge in this appeal is to the judgment and order passed in Sessions Case No. 162 of 2004 [S.T. 7(4) of 2005] dated 28.7.2005 by the Additional District and Sessions Judge, 5th Fast Track Court, Malda whereby the opposite party Nos. 2 and 3 were found not guilty to the charges under section 376 (2) (g) read with section 34 of the IPC and were acquitted therefrom. 2. SABITRI Barman lodged one FIR in Habibpur Police Station of District- Malda on 18.10.2010 alleging therein that on 10.10.2002 while she was sleeping in her bed room, Sunil Roy and Kanka Barman entered into the room. Kanka Barman caught hold her mouth tightly while Sunil Roy committed rape on her. Hearing odd sounds, the parents of SABITRI Barman came there and seeing them Sunil and Kanka left the place through the window. SABITRI Barman recognized Sunil Roy and Kanka Barman by the light of a kerosine lamp. Hearing alarm the co-villagers reached the house of SABITRI Barman. All of them had gone to the house of Kanka Barman. A 'salish' was held wherein Sunil Roy and Kanka Barman admitted their guilt. The delay in lodging the FIR was caused because SABITRI Barman expected something in her favour in the 'salish'. On the basis of the said FIR, the Habibpur Police Station Case No. 107 of 2002 dated 18.10.2002 was started against the opposite party Nos. 2 and 3 under sections 357, 376/34 of IPC. In course of investigation the witnesses available were examined by the I.O. who also seized under garments, Kerosine lamp, wearing apparels of the prosecutrix under seizure list, got the statement of the prosecutrix recorded under section 164 Cr. PC and got the prosecutrix examined medically. After completion of the investigation, a chargesheet was filed against the opposite party Nos. 2 and 3 under sections 376 (2) (g), 457/34 of IPC. The trial was conducted by the learned District and Sessions Judge, 5th Fast Track Court at Malda. As many as sixteen (16) witnesses were examined on behalf of the prosecution. No witness was examined on behalf of the defense. The learned Trial Court, after considering the evidence on record, found that the prosecution failed to establish the charges against the respondent Nos. 2 and 3 and, accordingly, recorded their acquittal. As many as sixteen (16) witnesses were examined on behalf of the prosecution. No witness was examined on behalf of the defense. The learned Trial Court, after considering the evidence on record, found that the prosecution failed to establish the charges against the respondent Nos. 2 and 3 and, accordingly, recorded their acquittal. The prosecutrix/de facto complainant SABITRI Barman has come with this revision application challenging the legality, validity and propriety of the judgment and order of acquittal on the grounds that - i) that the learned Court failed to consider and appreciate the evidence on record in its proper perspective; ii) the judgement of the learned Court is based on conjecture and surmise; iii) the learned Court overlooked the material and substantive pieces of evidence and put unnecessary importance on irrelevant and immaterial evidence/issue while recording acquittal, iv) the learned Court erred in coming to a conclusion that the delay in lodging the FIR was not properly explained; v) the learned Court erred in not accepting the prosecution case of seizure of 'jangia' on the place of incident belonging to the opposite party Sunil Roy; vi) that the learned Court did not put any importance on the extra judicial confession made by the opposite party No. 2 before the prosecution witnesses Nos. 1,3,4 and 5; vii) that the learned Court should not have discarded the evidence of the prosecutrix which was supported by other witnesses simply because she was a major girl; and viii) that the judgment and order impugned being otherwise bad in law are liable to be set aside and order of retrial be passed. The point for decision is whether the judgement and order impugned are sustainable in law and an order of re-trial is necessary. 3. MR. Angshuman Chakraborty, learned Counsel appearing for the petitioner submits that the learned Trial Court overlooked the material and relevant portion of the evidence of the prosecution witnesses. The learned Court did not rely on the prosecutrix's statement mainly on the ground that she was a major girl and that she made inconsistent statements in course of trial. MR. Chakaraborty contended that there is no inconsistency in the statement of the prosecutrix. She, while lodging the FIR, might not have stated the incident in details but that fact alone does not necessarily imply that her statement in the Court is to be discarded and disbelieved. MR. MR. Chakaraborty contended that there is no inconsistency in the statement of the prosecutrix. She, while lodging the FIR, might not have stated the incident in details but that fact alone does not necessarily imply that her statement in the Court is to be discarded and disbelieved. MR. Chakraborty contended that the learned Trial Court made out a third case by coming to a conclusion that the prosecutrix was a consenting party to a sexual intercourse. That was not at all the case even of the defense. No question even in form of suggestion was put to the prosecutrix by the defense in course of her cross-examination suggesting that the prosecutrix was a consenting party to the sexual intercourse. 4. THE learned Court, Mr. Chakraborty contended, was absolutely wrong in coming to a conclusion that the delay in lodging the FIR was not properly explained. He contended that over the issue there was a village meeting and the prosecutrix was waiting for the out come of the meeting. When she found that the co-villagers failed to take a decision, she did not wait and lodged the FIR after 8 days. In such type of case, such a delay appears to be normal one and the learned Court ought to have accepted the reason for delay explained sufficiently by the prosecution. Mr. Chakrbaorty contended that the learned Court was absolutely wrong in not accepting the statements of the P.Ws. 1,3,4 and 5 who stated that the respondent No. 2 made extra-judicial confession admitting his guilt. THE evidence of the P.Ws. 1,3,4 and 5 in that regard is consisting and corroborating. THE learned Trial Court failed to appreciate the evidence in its proper perspective. Mr. Chakraborty also contended that the statement under section 164 of the Cr. PC of the prosecutrix has been wrongly considered by the learned Trial Court in order to justify acquittal of the opposite parties. THE judgment and order impugned is completely a perverse one and is liable to be set aside in this revision application. Mr. Kasem Ali Ahamed, learned Counsel appearing for the opposite party/ State of West Bengal supported the contention of Mr. Chakraborty and contended that this judgement should be set aside because the learned Trial Court failed to appreciate the material and relevant evidence on record in its proper perspective. Mr. Mr. Kasem Ali Ahamed, learned Counsel appearing for the opposite party/ State of West Bengal supported the contention of Mr. Chakraborty and contended that this judgement should be set aside because the learned Trial Court failed to appreciate the material and relevant evidence on record in its proper perspective. Mr. Ahamed contended further that the learned Trial Court put unnecessary importance on unimportant and irrelevant evidence/issues in order to justify the order of acquittal which is to be deprecated. 5. MR. Kallol Mondal, learned Counsel appearing for the opposite party Nos. 2 and 3 contended that this Court while exercising its revisional jurisdiction can not re-appreciate the evidence and reverse a judgment of acquittal. In support of his contention he has referred to the decisions in D. Stephens vs. Nossiballa, reported in AIR 1951 SC 196 ; Logendranath Jha vs. P. Lal, reported in AIR 1951 SC 316 ; Chinnashawmi vs. State of A.P., reported in AIR 1962 SC 1788 ; Mahendra Pratap Singh vs. Sarjee Singh, reported in AIR 1968 Supreme Court 707; Akalu Ahir vs. Ram Deho Ram, reported in 1973 SCC (Cri) 903; Banshi Lal vs. Lakhan Singh, reported in AIR 1986 SC 1721 ; Jagganath Chowry vs. Ramayan Singh, reported in 2002 SCC (Cri) 1181; Thankappan Nadau vs. Gapala Krishnan, reported in 2003 SCC (Cri) 1205; Satajit Banerjee vs. State of W.B., reported in 2005 SCC (Cri) 276 and Jahar vs. Mangal Prasad, reported in 2008(2) SCC (Cri) 1989. 6. MR. Mondal also contended that the learned Trial Court had considered all the points starting from belated lodging of the FIR to extra judicial confession, seizure of the under garments as well as contradiction in the statements of the prosecution witnesses. Therefore, this Court should not interfere into the finding of facts by exercising its revisional jurisdiction. The view of the Hon'ble Apex Court in Stephens (supra), Nossibala (supra), Chinnashwami (supra), Banshilal (supra) was consistently followed by the Hon'ble Court in almost all the cases referred to by Mr. Mondal. It is now settled principle of law that only in glaring cases of injustice resulting from some violation of fundamental principles of law by the Trial Court, this Court is empowered to set aside the order of the acquittal and direct a retrial of the acquitted accused. The power should be exercised sparingly and with great care and caution. Mondal. It is now settled principle of law that only in glaring cases of injustice resulting from some violation of fundamental principles of law by the Trial Court, this Court is empowered to set aside the order of the acquittal and direct a retrial of the acquitted accused. The power should be exercised sparingly and with great care and caution. The mere circumstances that a finding of facts recorded by the Trial Court may, in the opinion of Trial Court, be wrong, will not justify setting aside the acquittal and directing re-trial. Though the settled principle is not to interfere ordinarily with order of acquittal, the High Court can do so in exceptional cases to prevent gross mis-carriage of justice and to set right a patent wrong or error of (law and fact) which would otherwise caused irreparable injury. The Hon'ble Apex Court cautioned that the power is not to be exercised lightly when invoked by private complainant. It could be exercised in exceptional cases where the interest of justice requires interference for the correctness a manifest illegality or the prevention of gross mis-carriage of justice. This jurisdiction is not ordinarily invoked merely because the lower Court has taken a wrong view or mis-appreciated the evidence. 7. IN the instant case, the learned Trial Court, as it appears from the judgment impugned as well as the evidence recorded in course of trial, discussed all the points raised before him. Learned Court found that the reason for delay in lodging FIR was not acceptable. There was delay of 8 days in lodging the FIR. According to the FIR, the 'salish' was held immediately after the incident wherein the opposite party Nos. 2 and 3 admitted their guilt. But the prosecutrix could not lodge the FIR immediately thereafter. She took 8 days to file the FIR. No other reason has been given in the FIR. IN her statement under section 164 of Cr. PC (Ex. 3) she stated that immediately after the incident her mother called on the covillagers who gathered there and caught the opposite party No.2 Kanka Barman. A meeting was held but no one accepted the decision taken in the meeting. She stated further that opposite party No. Sunil Roy was caught after words who assured of giving money. But neither Kanka nor Sunil paid any money. 8. A meeting was held but no one accepted the decision taken in the meeting. She stated further that opposite party No. Sunil Roy was caught after words who assured of giving money. But neither Kanka nor Sunil paid any money. 8. IN course of examination as P.W. 1, the prosecutrix has stated the similar fact to the effect that immediately after the incident the co-villagers assembled in their house and apprehended Kanka Barman who confessed his guilt. The villagers told that they would decide the matter on the following day. But no decision was taken by the co-villagers in the village meeting. Seven (7) days thereafter, she lodged the complaint in the police station. If the facts averred by the prosecutrix in FIR, made under section 164 Cr. PC and as P.W. 1, read together, I find that the reason of delay in lodging FIR can not be said to have been established satisfactorily. The meeting of the co-villagers was held immediately after the incident wherein opposite party Kanka Barman confessed his guilt. But no decision was taken by the villagers in the meeting. If so, it is not understood why prosecutrix waited for seven (7) more days to lodge the FIR. What she was waiting for? Money or marriage - no believable explanation was given. On that count I must say that the learned Trial Court had reason enough to hesitate to accept the prosecution case that the delay was in lodging FIR was explained properly. As far as extra judicial confessional statement of the opposite party Kanka Barman is concerned, I find that the P.Ws.1,3,4 and 5 made no statement before the I.O. that O.P. Nos. 2 and 3 made any such statement in their presence. They have not stated what actually was stated by Kanka. Mere statement that Kanka confessed his guilt is not enough. Extra judicial confession can not be used against the co-accused. Sunil made no such statement before any one. The witnesses, as found by the learned Trial Court, did not make any statement to that effect before the I.O. The evidence of P.W. 15 was taken into consideration by the learned Trial Court. The evidence of the P.W. 16 i.e. the I.O. of the case was also considered by the learned Trial Court while appreciating the prosecution case on extra judicial confession. The evidence of the P.W. 16 i.e. the I.O. of the case was also considered by the learned Trial Court while appreciating the prosecution case on extra judicial confession. The learned Court found that there were inconsistencies in the statements of the witnesses in this regard. Question of re-appreciation of the evidence where there exists a straight finding of fact and law on the issue, does not arise. 9. IT is true that the learned Trial Court put importance on some irrelevant issues like size of window and structure of the room. But in the overall assessment, the learned Trial Court considered the evidence of all the witnesses and came to a conclusion that the prosecution failed to establish the case beyond reasonable doubt. Learned Court found that a kerosine lamp was not sufficient enough for the purpose of identification of the miscreants allegedly committed the offence of rape. He disbelieved the statement of P.Ws. 3 and 4 that they witnessed the incident of rape and the opposite party Nos. 2 and 3 to jump through the window. 10. THE learned Trial Court found that the statement made by the prosecutrix under section 164 Cr. PC speaks of payment of money by opposite party Sunil Roy. It is not clear why the opposite party promised to make payment to the prosecutrix. Prosecutrix was not supposed to take any action with a hope that payment would be made. But it is clear that as payment was not made, she had to file the FIR. This fact appears to be peculiar and significant enough to raise reasonable doubt in the mind of Court. The manner in which the offence alleged has been committed appears to be highly improbable and learned Trial Court made an observation to that effect in the judgement impugned. The fact that the opposite party Sunil Roy promised her to pay money has not been stated by the prosecution in her examination in chief as well as in cross-examination. But, she stated that fact while she got her statements recorded under section 164 Cr. PC. This peculiar conduct of the prosecutrix is also a ground for raising suspension in the mind of Court as to the genuinely of the offence alleged. I find that the learned Trial Court made an observation on the issue in the judgment. But, she stated that fact while she got her statements recorded under section 164 Cr. PC. This peculiar conduct of the prosecutrix is also a ground for raising suspension in the mind of Court as to the genuinely of the offence alleged. I find that the learned Trial Court made an observation on the issue in the judgment. The P.W. 3 and P.W. 4 made some statements which are not consistent with each other on material points. The P.W. 4, the father of the prosecutrix tried to explain the delay in his examination-in-chief but that was not supported by any other witnesses. No where he stated about the promise to pay money by opposite party Sunil Roy. The P.W. 5 denied in her cross-examination that any issue of meeting the expenses of marriage ceremony of Sabitri Barman which Sunil Roy was raised. He stated that he did not make any statement to that effect to the police. But the I.O. has denied that fact. The Sabadipathi of Habibpur Panchayat samity was examined as P.W. 11 in the trial. He said that he had no knowledge about the incident. P.W. 14 another co-villager also did not support the case of the prosecution. P.W. 15 another co-villager stated that he knew nothing more than what Sabitri Barman told her. 11. TO be stated precisely, no one of the locality has supported the case of the prosecution. The learned Trial Court has taken note of these facts in the judgment impugned. It appeared to the learned Trial Court that it would be risky and dangerous to rely the evidence of the prosecutrix, her father and mother only and record conviction. 12. THEREFORE, considering the facts and circumstances of the case, the evidence on record and the judgment impugned I find that there is no manifest illegality in the judgment impugned resulting in miscarriage of justice necessitating interference of this Court in this revision. This Court declines to upset the findings of facts recorded by the learned Judge and order of acquittal passed by it by exercising its revisional jurisdiction. Accordingly, the revision fails. The revision application is, thus, disposed of. P.K.G.