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2013 DIGILAW 275 (CAL)

Habu Mahara v. STATE OF WEST BENGAL

2013-05-15

ASIM KUMAR RAY, NADIRA PATHERYA

body2013
Judgment :- Patherya J. This appeal has been filed against the judgment and order of conviction and sentence dated 29th August, 2009 and 31st August, 2009 respectively passed by the Additional Sessions Judge, Fast Track, 1 st Court, Suri, Birbhum in Sessions Trial No. 1/June/2009 arising out of Sessions Case No. 71 of 2009. By the said judgment and order of conviction and sentence the appellant was sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 10,000/- in default to suffer further R.I. for one year for the offence punishable under Section 376 IPC. The case of the prosecution is that the victim was sexually abused by the appellant in the early hours of 20th September, 2008 in her house at Jorashibtala, Chandnipara under Suri Police Station. On receiving the said information the defacto complainant rushed to the spot and admitted the victim in the hospital for treatment. An FIR was lodged and Suri P.S. Case No. 207 of 2008 dated 22.9.2009 was initiated and investigation started under Section 376 IPC. On completion of investigation charge-sheet was submitted against the accused person under Section 376 IPC. Thereafter the case was committed for trial to the Court of Sessions Judge, Birbhum who transferred the case to the Court of Additional Sessions Judge, Fast Track, 1st Court, Birbhum for disposal. Charges were framed under Section 376 IPC to which the appellant pleaded “not guilty” and claimed to be tried. In course of trial 9 witnesses were examined by the prosecution and documents exhibited. On the basis of the evidence so also statement recorded under Section 313 CrPC the appellant was convicted and sentenced to suffer 10 years rigorous imprisonment along with fine of Rs. 10,000/-in default to suffer further R.I. for one year. Being aggrieved by the said judgment and order of conviction and sentence this appeal has been filed. Counsel for the appellant submits that PW 1 is the FIR maker/defacto complainant. She is the mother of the victim girl. She was informed by her grand son Shivaji Mahara of the incident but Shivaji has not been examined as a prosecution witness. The incident took place at 5 a.m. on 20th September, 2008 and the FIR was filed on 22nd September, 2008 at 21.35 hours. She is the mother of the victim girl. She was informed by her grand son Shivaji Mahara of the incident but Shivaji has not been examined as a prosecution witness. The incident took place at 5 a.m. on 20th September, 2008 and the FIR was filed on 22nd September, 2008 at 21.35 hours. Although in her evidence PW 1 has stated that the doctor reduced the statement of the victim into writing and also obtained her L.T.I. thereafter the paper was handed over to be deposited with the Suri P.S. and accordingly she had deposited the paper with the P.S. at about 2/2-30 p.m. on the same day, i.e. 20th September, 2008. If this were true then the police would have registered a case on 20 th September, 2008. In fact no paper was deposited and a formal FIR was recorded on 22nd September, 2008. Therefore the evidence of PW 1 ought not to be relied on. PW 2 the victim girl has corroborated that her son Shivaji informed her mother of the incident. She has in her cross-examination stated that as instructed by the police she made the narration to the Magistrate. PW 6 is the doctor who admitted the victim girl to the Suri Sadar Hospital and the treatment sheet were marked as Exhibit-5 series. PW 6 has categorically stated that on the day of admission he asked the patient about the incident and on that day she did not disclose the name of the accused therefore the allegation made against the appellant is nothing but an improvement by PW 2 in her evidence. Before the Dr. (PW 6) PW 2 has said “somebody” while in her 164 statement without mentioning any name “Dewar” (younger brother-in-law) has been mentioned. It is in the evidence in Court that for the first time the name of the appellant has been mentioned. Therefore this is nothing but an improvement in the evidence of PW 2. There has been delay in filing the FIR and no reason has been ascribed for such delay. It is in the evidence in Court that for the first time the name of the appellant has been mentioned. Therefore this is nothing but an improvement in the evidence of PW 2. There has been delay in filing the FIR and no reason has been ascribed for such delay. Although it has been stated by PW 1 that the paper given to her by the doctor was given to the police but this has not been corroborated by the evidence of PW 6 (Dr) or PW 7 I.O. If the paper written by the doctor was brought on record possibly the said document would have gone against the case of the prosecution therefore it has been withheld. The knowledge of the defacto complainant PW 1 is nothing but hearsay as PW 2 has not stated in her evidence that she informed her mother of the incident. PW 1 heard it from Shivaji. PW 1 (mother) has stated that she heard of the incident from her daughter PW 2 in the presence of the doctor but the statement recorded has not been corroborated. The post occurrence conduct of the appellant ought to be considered. Therefore the burden of proof was on the prosecution and the graver the offence the stricter the proof as held in (2003) 12 SCC 377 . It is true that the evidence of the injured witness is of great importance and in the light of her evidence no other evidence need be considered. There must also be consistency in her statements right from the initial stage till evidence is given in Court as held in (2012) 8 SCC 21 . A delayed FIR without reason is fatal as held in (2012) 3 C Cr LR (Cal) 388. Reliance is placed on 2002 CrLJ 472 (Hurji –vs.- State of Rajasthan) for the proposition that as there is no consistency in the statements made by the victim PW 2 right from the initial stage till evidence is given therefore she cannot be described as a sterling witness and her evidence ought not to be considered in view of the inconsistency. Therefore the order of conviction and sentence be set aside. In opposing the said appeal counsel for the State submits that questions should have been put to the prosecution witnesses by the defence under Section 145 of the Evidence Act, 1872. Therefore the order of conviction and sentence be set aside. In opposing the said appeal counsel for the State submits that questions should have been put to the prosecution witnesses by the defence under Section 145 of the Evidence Act, 1872. To contradict was the task of the defence as there is no contradiction to the case of the prosecution before the Trial Court such contradiction cannot be raised before the High Court. PW 1 in her evidence has stated that she gave a paper to the police but may be the same was so cryptic that it was not necessary to initiate investigation on basis thereof. PW 8 has also not been cross-examined with regard to the paper therefore the onus was on the defence to prove the paper written by the doctor and given to the police by PW 1. There is no delay in filing the FIR. A role of a doctor is to look for injuries and not naming any person is inconsequential. Reliance is placed on (2004) 12 SCC 414 and (1985) 4 SCC 80 . PW 2 has stated in her evidence that when she was subjected to sexual abuse by the appellant, she was in her sense. She has not identified the appellant in her 164 statement recorded and all that she has mentioned is Dewar (younger brother-in-law). Shivaji need not be examined as the injured witness has been examined. For the consequences of withholding a material witness, reliance is placed on AIR 2001 SC 2075 . PW 2 is a sterling witness and as the medical report supports the sexual offence there is no reason to set aside the order of conviction and sentence. Having considered the submissions of the parties, the prosecution examined 9 witnesses in all. Out of these 9 witness, PW 3, PW 7, PW 8 and PW 9 are formal witness. PW 1 (mother) and PW 5 (brother) are interested witness. PW 2 is the injured witness and so of vital importance. PW 6 is the Dr who examined the victim and so an important witness. PW 1 (Mother) has stated in her evidence that PW 2 (victim) disclosed the incident to her but PW 2 (victim) has not corroborated the statement of PW 1. PW 2 is the injured witness and so of vital importance. PW 6 is the Dr who examined the victim and so an important witness. PW 1 (Mother) has stated in her evidence that PW 2 (victim) disclosed the incident to her but PW 2 (victim) has not corroborated the statement of PW 1. The evidence of PW 1 is nothing but hearsay as PW 1 heard it from Shivaji Mahara, her grandson who has not been examined. PW 6 is the Dr. who examined the victim on 4.10.2008. Prior thereto the victim had been admitted to Suri Sadar Hospital where a vaultair was repaired. Some vaginal bleeding was also found from forceful intercourse. This will appear from the BHT marked Ext. 5/5. Thereafter the victim was discharged but from Ext. 5/5 the name of the assailant will not appear. On 4.10.2008 at 4 p.m. the victim was examined by PW 6. While recording the case history the victim stated initially that she had been assaulted by somebody and the name of Habu Mahara has been put in bracket with a question mark while in her 164 statement no name has been mentioned. All that has been mentioned is Dewar. It is only in evidence the name of the appellant has been mentioned. PW 6 in his evidence has stated that on the day of admission the victim did not disclose any specific name of the accused. Therefore in the light of the said evidence, the prosecution was not able to prove the appellant’s guilt. In her 164 statement the victim has stated that her Dewar pulled her down from the wooden bed where she was lying. If this be so, the victim while resisting the appellant ought to have sustained injuries but no external injury or stains were found on her body or clothing. No injury was found in the private parts either (Ext. 5 series). Therefore the victim girl being a consenting party cannot be ruled out. She was 20 years of age and by no means a minor. PW 2 in her evidence has stated that it was at the instruction of the police, she made her statement to the Magistrate. Therefore the 164 statement of PW 2 is valueless. The evidence of PW 5 is nothing but an improvement as he was not examined by the IO. PW 2 in her evidence has stated that it was at the instruction of the police, she made her statement to the Magistrate. Therefore the 164 statement of PW 2 is valueless. The evidence of PW 5 is nothing but an improvement as he was not examined by the IO. For the said reasons the order of conviction and sentence dated 29.8.2009 and 31.8.2009 cannot be sustained in the eye of law and is set aside. Let the appellant be released forthwith from the concerned Correctional Home and for such purposes, a photostat copy of the order be sent to the Correctional Home. The Appeal is allowed and disposed off. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance with all requisite formalities. Asim Kumar Ray, J. I agree.