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2011 DIGILAW 78 (CAL)

Md. Jahiruddin v. The State of West Bengal

2011-01-20

ASHIM KUMAR BANERJEE

body2011
JUDGMENT : ASHIM KUMAR BANERJEE. J. The facts involved herein are somewhat peculiar and has a distinctive characteristic. According to the petitioners, it was a case under Section 376 as the respondent Nur Mohammed committed rape upon the victim being the wife of the complainant/ petitioner above named. According to the respondent, he was attacked by a group of which the petitioner was a party and during scuffle he was hit by a sharp weapon causing injury to his back. Hence, the petitioner was guilty of the offence committed inter alia under Section 326 read with Section 307. Both of them lodged separate complaints. The Police initiated two cases on the basis of the said complaints. The case, where the petitioner group was involved as accused, resulted in conviction before the Trial Court. In the other case where the respondent was accused of committing rape, he got acquittal from the trial Court. From the order of conviction, the petitioner group preferred an appeal where they were successful. The accused in the said case Tohid Ali and Nazel Haque were acquitted by this Court. Against the acquittal of Nur Mahammad the petitioner filed the instant application which was heard by me on the above mentioned dates. It was not in dispute that both the cases arose from one single incident occurred on July 31, 1992. According to the petitioner, Nur Mohammed ravished Sultana (not real name) the legally married wife of petitioner herein Md. Jahiruddin. On the date of occurrence, the accused managed to enter first floor room through an open window and ravished Sultana against her will. Earlier the accused wrote love letters to Sultana. Sultana did not respond. Initially, Sultana tried to resist when she was overpowered. She raised alarm. Nearly “four hundred” people assembled and surrounded whole area so as to apprehend the wrong doer but the accused managed to escape and at that time Sultana with the help of a Chopper (Kathari) injured Nur Mohammed on his back. During scuffle, Sultana’s wearing apparels were completely torn. Sultana did not lodge complaint contemporaneously as her husband was out of station. Fact remains, the complaint was lodged after about twenty one days. In the other case, Tohid Ali and Nozel Haque were convicted under Section 326 for assaulting Nur Mohammed on his shoulder by means of a Chopper (Hasua). During scuffle, Sultana’s wearing apparels were completely torn. Sultana did not lodge complaint contemporaneously as her husband was out of station. Fact remains, the complaint was lodged after about twenty one days. In the other case, Tohid Ali and Nozel Haque were convicted under Section 326 for assaulting Nur Mohammed on his shoulder by means of a Chopper (Hasua). Tohid assaulted by Tangi on his shoulder whereas Nozel assaulted him on his thaigh by Tangi. It was the case of the defence that Nur Mohammed got injury through Sultana when he committed sexual intercourse with her by entering her bed room through the open window. The learned Judge of this Court in appeal set aside the conviction by observing that seizure of the weapon and the wearing apparel of Sultana could not support the case of the prosecution of the alleged assault of Nur Mohammed by Tohid and/or Nozel. The learned Judge of this Court allowed the appeal and set aside the conviction. Coming back to the present case, the petitioner lodged a complaint after twenty one days about the alleged incident of rape. According to his complaint, since he was out of station his wife could not lodge the complaint contemporaneously. The analysis of the judgment of the learned trial Court reveals:- (i) At the time of trial, the victim stated that she could not lodge the complaint as the Police Officer Anil Seal being the Investigating Officer in the other case threatened her with dire consequence. Anil kept her under wrongful confinement in her father’s place and thereby prevented her from lodging the complain. Pertinent to note, the father and husband of the victim are both members of the Police Force. (ii) No complaint as to the physical injury was made by the victim although, the written complaint would hint to physical injury. (iii) The Chopper used by the victim was not seized. (iv) No love letter was produced during trial. (v) The relations of the victim did not lodge any contemporaneous complaint with the Police. (vi) The incident happened during late in the evening at the time of monsoon. However, four hundred odd people gathered and surrounded the house. Even then, the accused managed to escape. Mr. Sourav Mukherjee, learned counsel contended that this Court acquitted Tohid and Nozel in the other case disbelieving the case of Nur Mohammed. (vi) The incident happened during late in the evening at the time of monsoon. However, four hundred odd people gathered and surrounded the house. Even then, the accused managed to escape. Mr. Sourav Mukherjee, learned counsel contended that this Court acquitted Tohid and Nozel in the other case disbelieving the case of Nur Mohammed. Hence, the other story being the story of rape must be held to be proved. He also contended that the learned Judge in paragraph 8 of the said decision relied on the statement of the victim that Police seized the weapon as well as her wearing apparel on the assurance that they would initiate proceeding as against Nur Mohammed under Section 376. Despite such assurance, when the Police failed to initiate proceeding the victim was compelled to approach the learned Magistrate under Section 156 of the Criminal Procedure Code. Mr. Mukherjee further contended that the delay was natural in view of the fact that the lady being a house wife could not take decision of her own in absence of her husband who was out of station. He also contended that the very fact that she was confined in her parental home by Anil Seal, should also be take into consideration as sufficient explanation for delay. On the issue of injury, Mr. Mukherjee contended that since the victim was a married woman there might not be any injury caused to her private parts, that would not preclude the Court from believing her statement if it was otherwise convincing. Mr. Mukherjee contended that the defence was obliged to support their alibi by cogent evidence. They chose not to adduce any evidence which would rather strengthen the case of the prosecution that found corroboration from PW-3 and 4. In support of his contentions Mr. Mr. Mukherjee contended that the defence was obliged to support their alibi by cogent evidence. They chose not to adduce any evidence which would rather strengthen the case of the prosecution that found corroboration from PW-3 and 4. In support of his contentions Mr. Mukherjee relied on the following decisions:- (i) 2004 Volume-VII Supreme Court Cases Page-775 (Sri Narayan Saha And Another -VS- State of Tripura) (ii) 2005 Volume-III Supreme Court Cases Page-594 (State of Uttar Pradesh –VS-Pappu Alias Yunus and Another (iii) 2005 Volume-X Supreme Court Cases Page-714 (State of Rajasthan –VS- Biram Lal) (iv) 2006 Volume-III Supreme Court Cases Page-771 (Dinesh Alias Buddha –VS-State of Rajasthan) (v) 2006 Volume-I Supreme Court Cases Page-283 (Vishnu Alias Undrya –VS- State of Maharashtra) (vi) 2007 Volume-XII Supreme Court Cases Page-122 (B.C. Deva Alias Dyava –VS-State of Karnataka) (vii) 2008 Volume-I Supreme Court Cases Page-234 (State of Madhya Pradesh –VS-Babulal) (viii) 2010 Volume-VIII Supreme Court Cases Page-191 (Vijay Alias Chinee –VS-State of Madhya Pradesh) Opposing the application, Mr. Swapan Kumar Mullick, learned counsel appearing for the State contended that sitting in revisional jurisdiction the Court was only to examine whether there was any manifest illegality crept in the judgment and order impugned. The revisional Court was not competent to re-appreciate the evidence. Mr. Mullick further commented on the alleged story of wrongful confinement. According to him, it was most unusual that she would be confined in her parental home particularly when her father was a constable and such confinement was to stop her from lodging the complaint with the Police. In any event, no contemporaneous complaint of confinement was ever made either by the victim or by her relatives. Mr. Mullick contended that the lady did not examine herself before the doctor to support her case of alleged rape. No incriminating evidence came out in evidence to support the case of rape. Such finding of fact was not available for review by a revisional Court. Mr. Mullick distinguished the cases cited at the Bar and contended that State was not aggrieved by the decision of the Court below and the revisional application should be dismissed. Replying to the submissions made and on behalf of the State Mr. Mukherjee contended that delay was reasonably explained by the victim. The medical examination was redundant as there was already delay of twenty-three days. Hence, it was not done. Replying to the submissions made and on behalf of the State Mr. Mukherjee contended that delay was reasonably explained by the victim. The medical examination was redundant as there was already delay of twenty-three days. Hence, it was not done. The weapon was produced during trial although the same was seized in other case. Hence, there was no scope for the learned Judge to discharge the accused. I have considered the rival contentions and the precedents cited at the Bar. I fully agree with Mr. Mukherjee when he says that the evidence of the victim should be taken as sacrosanct if it inspired confidence in Court. No corroboration was necessary in a case of alleged offence under Section 376 while signing the judgment of conviction. Fact remains, as to whether the Court was able to convince itself on the complaint made by the victim. From the facts discussed above, it appears that there was previous enmity between the two groups. Previous enmity would cut on both ways. It might be that one group commits the offence as and by way of revenge on the other group. It might also be, one group accuses the other on false pretext although there was no such incident at all. The learned Judge, on finding of facts, ultimately came to a conclusion that the evidence did not inspire confidence in Court, rather the suspicion raised in the mind of the Court was not removed successfully by the prosecution. The revisional Court, in my view, would have hardly any scope to re-apprise the evidence. Interference could only be made when there was illegality or flagrant injustice caused by the judgment and order impugned. In my view, Mr. Mukherjee was not able to convince me on that score. From the facts discussed above few questions still remain unanswered. An incident of rape would ordinarily last for about 15/20 minutes, particularly when the victim stated to have resisted the accused. Within such short span of time four hundred people gathered on being alarmed by the victim. They surrounded the house even then the accused managed to escape. This is unusual. I have carefully examined the decision of the learned single Judge in the other case referred to above. The learned Judge did not specifically accept the statement of the victim that she was subjected to rape or that she injured the accused by Chopper. They surrounded the house even then the accused managed to escape. This is unusual. I have carefully examined the decision of the learned single Judge in the other case referred to above. The learned Judge did not specifically accept the statement of the victim that she was subjected to rape or that she injured the accused by Chopper. The learned Judge considered the entire evidence and rival contentions and ultimately came to conclusion that the prosecution story in the other case was not proved. Such decision, in my view, could not be the basis to write a judgment of conviction in the present case as erroneously suggested by Mr. Mukherjee. There is one more unusual thing. The father and the husband were from Police Force. Husband was out of station. She could not lodge her complaint as she was confined at her parental home. No explanation was forthcoming as to whether her farther took any step to have such complaint registered at the Police Station, particularly when his daughter was subjected to such heinous torture. In my view, the learned trial Judge, on appreciation of facts that came out during trial, discharged the accused. There is no scope for the revisional Court to upset such finding. The application fails and is hereby dismissed. Urgent Xerox certified copy will be given to the parties, if applied for.