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2014 DIGILAW 799 (CAL)

Saidul Sk. v. State of West Bengal

2014-08-21

JOYMALYA BAGCHI

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JUDGMENT Joymalya Bagchi, J. The appeal is directed against the judgment and order dated 07.02.2005 passed by the learned Additional Sessions Judge, 1st Fast Track Court, Lalbagh, Murshidabad in Sessions Trial No. 2 of September, 2003 (Sessions Serial No. 66 of 2003) convicting the appellant no. 1 for commission of offence punishable under section 376/511 of the Indian Penal Code and appellant no. 2 for commission of offence punishable under section 376/511/109 of the Indian Penal Code and directed them to suffer sentence of rigorous imprisonment for five years and to pay fine of Rs. 10,000/- (Rupees Ten Thousand) each in default to suffer rigorous imprisonment for six months more with further direction of half of the fine amount, if paid, be handed over to the victim girl Urmila Khatoon as compensation. The prosecution case, as alleged, is that on 22.05.2002 the defacto complainant Maharam Shah lodged complaint at Murshidabad Police Station alleging that on 21.05.2002 at about 5 p.m. his daughter Urmila Khatoon along with other village women went to village Tentulia to attend Pusparath Mela. When Urmila was returning home it had already become dark, and accused Prasanta Mondal offered to take her back home from the Mela. Urmila was initially unwilling but on assurance of Prasanta agreed to return home with him. On the way back at about 9.30 p.m. at Kantapole of village Tentulia, the appellant and others dragged Urmila into a jute field. The appellant no. 2 pressed her mouth and removed her blouse while others pressed her hand and throat. Appellant no. 1 lifted her wearing apparel and committed rape on her. It is also alleged that the appellant no. 2 molested her. The victim raised alarm and the miscreants including Prasanta Mondal fled away. The victim was taken to Lalbagh Hospital where she was admitted for treatment. Pursuant to such information Murshidabad P.S. Case No. 50 of 2002 dated 22.05.2002 under section 376(2)(g) was registered for investigation against the appellants Prasanta Mondal and two others. In conclusion of investigation, charge sheet was filed under section 376(2)(g) of the Indian Penal Code against the appellants, Prasanta Mondal and two others. The case being a sessions triable one was committed to the Court of Sessions Murshidabad and transferred to the Court of learned Additional Sessions Judge, 1st Fast Track, Lalbagh, Murshidabad for trial and disposal. In conclusion of investigation, charge sheet was filed under section 376(2)(g) of the Indian Penal Code against the appellants, Prasanta Mondal and two others. The case being a sessions triable one was committed to the Court of Sessions Murshidabad and transferred to the Court of learned Additional Sessions Judge, 1st Fast Track, Lalbagh, Murshidabad for trial and disposal. Charge was framed under section 376(2)(g) IPC against the appellants and Prasanta Mondal. The accused persons pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined 13 witnesses and exhibited a number of documents. The defence of the appellant for one of innocence and false implication. In conclusion of trial, the learned Judge by judgment and order dated 07.02.2005 convicted the appellant no. 1 for commission of offence punishable under section 376/511 of the Indian Penal Code and appellant no. 2 for commission of offence punishable under section 376/511/109 of the Indian Penal Code and directed them to suffer sentence of rigorous imprisonment for five years and to pay fine of Rs. 10,000/- (Rupees Ten Thousand) each in default to suffer rigorous imprisonment for six months more with further direction that half of the fine amount, if paid, be handed over to the victim girl Urmila Khatoon as compensation. By the self same judgment and order the trial Court however acquitted Prasanta Mondal of the charges levelled against him. Learned counsel appearing for the appellants submitted that the prosecution has failed to prove that the appellants were the responsible for the alleged incident. He submitted that all the witnesses including the victim Urmila (P.W. 5) was declared hostile and did not name or identify the appellants during trial. He prayed for setting aside of the judgment and order of conviction and sentence. Mr. Nandy, learned counsel appearing for the State submitted that PW 5 had admitted that an attempt to rape had been made on her on the fateful day at the place of occurrence. Such claim was supported by medical evidence. He further submitted that PW 4 scribe of the FIR stated that PW 5 defacto complainant had narrated the incident and FIR was written by him as per such dictation of PW 5. I find that most vital witnesses of the case is the victim (PW 5) and her father (PW 6). Such claim was supported by medical evidence. He further submitted that PW 4 scribe of the FIR stated that PW 5 defacto complainant had narrated the incident and FIR was written by him as per such dictation of PW 5. I find that most vital witnesses of the case is the victim (PW 5) and her father (PW 6). Both of them have not been supported the prosecution case and have been declared hostile. PW 6 stated that he did not lodged the complaint to the police over the incident. He however admitted his signature in the FIR. He also admitted that the victim was hospitalized for three days. He was declared hostile. PW 5 the victim herself stated that on the date of incident some people stalked her, dragged her and tried to rape her. She could not recognise them and did not identify the appellants in Court as her assilants. She admitted that she was treated in hospital. PW 11 Medical Officer attached to the Sub-divisional Hospital, Lalbagh treated the victim and exhibited the report of such medical examination as Exhibit 4. PW 13 proved the report of ossification test of the victim showing that she was more than 17 years of age. PW 4 is the scribe of the FIR who stated that he wrote the FIR as per the instruction of the PW 6, the defacto complainant and father of the victim. PW 1 is the Judicial Magistrate who recorded the statement of the victim girl under section 164 Cr. P.C. He exhibited such document as Exhibit 1. PW 12 is the Investigating Officer of the case. Other witnesses have been declared hostile and have not supported the prosecution case. An analysis of the prosecution evidence shows that though PW 5 has admitted the incident of attempt to rape her on the fateful date, she stated that she did not know the persons who attempted such sexual assault upon her. She has not identified the appellants during trial. In cross-examination, she stated that the appellants were not the persons who committed the offence. She however admitted her signature in her statement under section 164 Cr. P.C. PW 6 her father and the defacto complainant has also not supported the prosecution case. He has denied that he has lodged FIR. She has not identified the appellants during trial. In cross-examination, she stated that the appellants were not the persons who committed the offence. She however admitted her signature in her statement under section 164 Cr. P.C. PW 6 her father and the defacto complainant has also not supported the prosecution case. He has denied that he has lodged FIR. It is true that PW 4 the scribe of the FIR has stated that FIR was written as per the instruction of PW 6. Neither the FIR nor the statement of the victim recorded under section 164 Cr. P.C. can be said to be substantive pieces of evidence on the basis of which a conviction may be founded. I am of the view that when the victim had not deposed in Court that the appellants were the perpetrators of the alleged offence then it was incorrect on the part of the learned Judge to rely on her statement recorded under section 164 Cr. P.C. during investigation to come to a finding guilt of him against the appellants. Finding of guilt is therefore based on patently inadmissible evidence and his liable to be set aside. For the aforesaid reasons, I set aside the judgment and order of conviction and sentence imposed upon the appellants and acquit of charges levelled against them. The appeal is allowed. The appellants shall be discharged from their respective bail bonds. Lower Court Records along with copy of the judgment be sent down to the lower Court at once.