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2012 DIGILAW 573 (CAL)

Rahid Ali Sk. v. State of West Bengal

2012-06-29

Raghunath Bhattacharya

body2012
JUDGMENT Raghunath Bhattacharya, J. : 1. This appeal is directed against the judgement and order of conviction passed by A.D.J, Fast Track Court, Berhampore, Murshidabad on 05.09.2008 thereby convicting Rahid Ali Sk. to suffer R.I. for seven years and to pay fine of Rs. 15,000/- I.D. to suffer R.I for another six months for commission of offence under Section 376 I.P.C. The convict i.e. Rahid Ali is also sentenced to suffer further R.I. for one year and to pay fine of Rs. 3,000/- I.D. to suffer R.I. for another a month for commission of offence under Section 417 I.P.C. If the amount is released as order by the Court below 50% of the same would be remitted in favour of the prosecutrix towards compensation. 2. A thumbnail sketch of the prosecution case is that on 22,.01.2005 Sehenija Khatun lodged a written complaint to the local P.S. to the effect that on 02.05.2004 in the dead of night accused Rahid Ali committed rape on her against her will on threat of dire consequences to her life. 3. Allegedly thereafter the accused i.e. Rahid Ali used to commit rape against her will on which she became pregnant. On being heard from the victim the accused promised her to marry and continued to cohabit with her on which she conceived for seven months. Lastly, on 08.01.2005 in the night accused forcibly cohabited with her and directed her for abortion. She was not agreed to that proposal on which accused refused to marry her. 4. On the basis of written complaint police took up investigation of this case and after completion of investigation submitted charge sheet against the accused persons under Section 376/417 I.P.C. 5. After considering the materials-on-record and on hearing the submission of both sides a charge under Section 376/417 I.P.C. was framed against the accused on 07.09.2005 to which the accused pleaded not guilty and claimed to be tried. Now only point for consideration is whether the learned Trial court is justified in passing the sentence a mentioned above. 6. In order to bring home the charge leveled against the accused persons as many as 13 witnesses were examined from the side of the prosecution whereas no witnesses was examined from the side of the defence. Out of the 13 prosecution witnesses P.W. 1 Sehenija Khatun is the victim girl, P.W. 2 Noornisha Bibi is a relative of the victim girl. Out of the 13 prosecution witnesses P.W. 1 Sehenija Khatun is the victim girl, P.W. 2 Noornisha Bibi is a relative of the victim girl. P.W. 3, 4 and 6 are the co-villagers. P.W. 5 Mansur Sk. is a distant relation of the victim girl i.e. P.W. 1. P.W. 8, 9, 11 and 13 are the doctors who examined the victim girl as well as the accused person. P.W. 7 and P.W. 10 are respectively the scribe of the First Information Report and O.C. of the local P.S. who are formal witnesses in this case and P.W. 12 Amrita Kumar Ghosh who is attached to Rejinagar P.S. was the I.O. of this case. 7. Before going into the details about the ocular versions of P.W. 1 and 2 the victim girl and her relatives let me examine the other witnesses. P.W. 3 Abu Sk. has deposed in this case and he heard that PW. 1 became pregnant by the accused Rahid Ali. During the course of cross-examination he admitted that he was not examined by the I.O. and first time he disclosed the incidence before any person. P.W. 4 was tendered by the prosecution. So far P.W. 6 Akali Sk. was concerned he knew the victim girl and when victim girl was pregnant about seven months then the village Salish was held at their village and in the said Salish victim girl discloses that she became pregnant by the accused. But in the said Salish accused did not take part. During the course of cross-examination P.W. 6 admitted that he was not examined by the I.O. and what he has stated for the first time. So, in my opinion the ocular versions of P.W. 5 and 6 have no value in the eye of law. P.W. 7 is a scribe of the First Information Report and has no personal knowledge, in respect of incident and what he has written as per the dictation of the P.W. 1 i.e. the victim girl and during the course of the cross-examination P.W. 7 admitted that he has no personal knowledge about the incident. P.W. 8 Dr. Souvik Das, attached to Beldanga Rural Hospital at the relevant time but in the evidence he admitted that he has not examined to the victim girl and he has not personal knowledge about her incident. P.W. 8 Dr. Souvik Das, attached to Beldanga Rural Hospital at the relevant time but in the evidence he admitted that he has not examined to the victim girl and he has not personal knowledge about her incident. P.W. 9 examined the accused and according to him he was capable of sexual intercourse. He has also a formal witness. P.W. 10 is a S.I. of police attached to Rejinagar P.S. at the relevant time. He filled up the form of First Information Report and endorsed the case to S.I. Amrita Kumar Ghosh for investigation. P.W. 11 Dr. S. Dutta was attached to Berhampore Sadar Hospital as Medical Officer on that date he examined the victim girl, brought an identified by one of the Constable of the local P.S. On examination he opined that the victim girl i.e. Sehenija Khatun was capable of sexual intercourse but according to doctor rape could not be ascertained as because there is no mark of injury on her private parts and no foreign body was detected. Ossification test was not conducted as victim girl carrying for 28 weeks. During the course of the cross-examination Dr. Dutta admitted that he did not mention the history and the background of the pregnancy of the patient at the time of examination. P.W. 12 is the I.O. of the case. P.W. 13 Dr. Sanjay Ray who is attached to Beldanga Rural Hospital and Dr. Ray only proof the discharge certificate and bed ticket of the victim girl when he was admitted at the hospital with the complain of labour pain and she gave birth to a male baby. These are the evidence adduced from the side of the prosecution in order to bring home charge leveled against the accused person. 8. On principle the evidence of a victim of sexual assault stands on par with the evidence of an injured witness as she is the best witness and is not likely to exculpate the real offender. The Court must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim’s version. No woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the lid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion. No woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the lid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion. A girl or a woman in the traditional bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had every occurred she would be conscious of the danger of being ostracized by the society including her own family members, relatives, friends and neighbors etc. as observed by the Hon’ble Apex Court in different judgement. So having regard to the above principles, considering the facts and circumstances of the present case taking not account the demeanour and delivery and reading the straightforwardness of the above witnesses (P.W. 1) who swore to the facts before us, there is hardly any reason to disbelieve her testimony and this Court has no other alternative but come to the finding that none but the accused Rahid Ali committed sexual intercourse with her resulting in her pregnancy and giving birth to a male child. 9. Learned Lawyer for the State Ms. Sinha I must admit has tried her level best to bring home the charge leveled against the accused person. I like to mention that the petition of complaint was lodged at Rejinagar P.S. on 22.01.2005 while the incident took place on 02.05.2004 i.e. after lapse of nearly eight months. On recital of the F.I.R. it appears that appellant committed rape upon the victim girl i.e. P.W. 1 against her will. Thereafter as per the recital of the First Information Report the appellant used to co-habit with the victim girl on several occasions resulting her pregnancy. When victim girl as per recital of the First Information Report was carrying for seven months she narrated the incident to her mother. Now admittedly what was duly pointed out by learned State Advocate Ms. Sinha that victim girl is a rustic lady. She put her L.T.I. on the petition of complaint yet after careful scrutiny of the four corners of the First Information Report I do not find any whisper whether same was read over and explained to the victim girl and admitted by her to be correct. Sinha that victim girl is a rustic lady. She put her L.T.I. on the petition of complaint yet after careful scrutiny of the four corners of the First Information Report I do not find any whisper whether same was read over and explained to the victim girl and admitted by her to be correct. It is needless to mention that there shall be doubt on the mind of the Court about the recital of the First Information Report or to be more correct truthfulness of the First Information Report. Secondly it was in the First Information Report the victim narrated the incident to her mother. Though victim was staying with her mother yet she was not produced by I.O. to depose in this case. I find I.O. took the pain to produce the witness who reside in a different village but there is no reason cited by the I.O. about non-production of mother of victim girl as a witness. Thirdly victim was not produced before the Magistrate for recording her statement under Section 164 Cr.P.C.. It was vehemently argued by Ms. Sinha that her statement was recorded under Section 161 Cr.P.C. and she was cited as a witness in this case. So, there is a little difference for non-production of victim before the Magistrate for recording her statement under Section 164 Cr.P.C. One must appreciate the argument put forward by Ms. Sinha. But in her mind she must admit that there is a gulf of difference between a statement recorded under Section 164 and that of under Section 161 Cr.P.C. But due to the callous childish and casual investigation done by the I.O. there is no other way to the State Lawyer but to argue the case in this fashion in order to convince the Court to prove that the none else but the accused committed the offence and judgement passed by the Trial Court should be affirmed. In my opinion if I.O. have shown 1/4th of the zeal what was shown by the State Advocate at the time of argument. I am quite sure that the fate of the case will be otherwise. Moreover, in the opinion of the Doctor who was examined P.W. 11as has come to the findings that victim girl was capable of sexual intercourse and rape could not be ascertained. Moreover, the age of the victim girl has not been established properly. I am quite sure that the fate of the case will be otherwise. Moreover, in the opinion of the Doctor who was examined P.W. 11as has come to the findings that victim girl was capable of sexual intercourse and rape could not be ascertained. Moreover, the age of the victim girl has not been established properly. As per the recital of the First Information Report victim girl was 16 years of old whereas during the course of the cross examination she stated that she was nearly 17 years old. Whereas doctor is of opinion that victim was more than 16 years of age and she attains puberty. So, she has a grown up lady. 10. As per the argument put forward by State Advocate Ms. Sinha that the accused ought to be more correct, the appellant committed rape upon the victim girl and when she became pregnant he gave a proposal of marriage. But fact remains lacuna or laches in the prosecution story which I pointed out earlier cannot be cured, as a result it is well settled rule that if a full grown girl just like to P.W. 1 consents to the act of sexual intercourse and continues to indulge in such activity until she became pregnant. It is an act of promiscuity on her part and not an act induced by misconception of facts and the accused cannot be roped on a charge of rape. In view of aforesaid discussion this Court though appreciating the endevour and zeal shown by the learned State Advocate yet due to callous investigation on the pat of the police of Rejinagar P.S. the charge leveled against the accused must be not be proved beyond reasonable doubt and I am last person to uphold the judgement passed by the learned Trial Court. Though the endevour, effort and zeal shown by Ms. Sinha is really praiseworthy yet due to childish, callous and casual investigation by the investigating agency it is impossible for this Court to uphold the conviction and sentence passed by the learned Trial Court. 11. In view of aforesaid discussion appeal is hereby allowed. The order of conviction and the sentence imposed by the learned Trial Court is hereby set aside. The accused/appellant Rahid Ali Sk. is in custody so he set at liberty forthwith and be released from his bail bond at once. 12. 11. In view of aforesaid discussion appeal is hereby allowed. The order of conviction and the sentence imposed by the learned Trial Court is hereby set aside. The accused/appellant Rahid Ali Sk. is in custody so he set at liberty forthwith and be released from his bail bond at once. 12. Let a copy of this judgement along with the Lower Court Record be sent down before the learned Court immediately. 13. Urgent photostat certified copy, if applied for, be handed over to the parties as early as possible.