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2016 DIGILAW 635 (CAL)

Ranjan Das @ Rona v. State of West Bengal

2016-08-11

SIDDHARTHA CHATTOPADHYAY

body2016
Siddhartha Chattopadhyay, J.: Doubting the correctness of the judgment dated 22.07.2014 and order of conviction dated 23.07.2014 passed by the Additional Sessions Judge, Fast Track Court, Haldia in Sessions Trial No. 48 of 2013 arising out of Sutahata Police Station Case No. 304/12, the convict/appellant has preferred this appeal under Section 374 (2) of the Code of Criminal Procedure of 1973 and by the impugned judgment, learned Trial Court had found the appellant guilty under Section 326 of the Indian Penal Code as well as under Section 307 of the Indian Penal Code and convicted him to suffer rigorous imprisonment for seven years and to fine of Rs.10,000/- for each offence. 2. According to the appellant, the learned Trial Court failed to appreciate the evidence of the prosecution witnesses in it’s proper perspectives. The learned Trial Court ignored the substantial omissions and contradictions in the evidence and as a result the said Court has come to an erroneous finding, which is required to be set aside. The learned Public Prosecutor Mr. Manjit Singh appearing on behalf of the prosecution argued that the impugned judgment does not call for any interference as the evidence of prosecution witnesses are trustworthy. 3. In such circumstances, factual aspect has to be revisited. At the very outset, I may be permitted to say if anybody wants to read the F.I.R. through his inner eyes, he would see that the F.I.R. has been written not by the ink but by the tears of the victim. During the pendency of trial and appeal, obviously the said tears became a glacier. 4. Sieving doubt unnecessary details, the prosecution case in a capsulated form is such that on 01.12.2012 at or about 7:45 p.m. while the victim was returning to her house with her brother on a bicycle and reached near Begunaberia Hospital, the convict/appellant threw acid on the victim’s eyes and face. As a result, the victim as well as his brother sustained acid burn injuries and they screamed for help. On hearing the same, local villagers rushed to the spot and took the victim to Haldia Sub-Divisional Hospital by ambulance and thereafter she was removed to Nil Ratan Sarkar Medical College and Hospital at Calcutta for better treatment. As a result, the victim as well as his brother sustained acid burn injuries and they screamed for help. On hearing the same, local villagers rushed to the spot and took the victim to Haldia Sub-Divisional Hospital by ambulance and thereafter she was removed to Nil Ratan Sarkar Medical College and Hospital at Calcutta for better treatment. It has also been mentioned in the F.I.R. itself that the victim lost her husband four years back and she is the mother of one male child and one female child. Thereafter, she began to live with this appellant as husband and wife for about 22 days on the assurance of the accused that he would marry her. He also promised to look after her children. But her such type of marital life became a jinxed matrimony. After enjoying her company, the appellant refused to take care of her siblings. As a result, the victim had given up his company and came back to her parents’ house. Disclosing the ill-episode of this ill-omened victim, her father lodged the F.I.R. and set the law into motion. 5. The defence case as it appears to me from the trend of cross-examination and examination of the appellant under Section 313 of the Code of Criminal Procedure is his innocence and that he has been falsely implicated. The appellant has also taken a defence that the victim had an illicit affair with one Sudipta Kar and also used to have illicit relationship with different persons and different places and for that reason anybody except the appellant might have caused the offence. It was also contended by the defence that out of suspension he has been falsely implicated. 6. Criminal trial is accused oriented and it is presumed that the accused is an innocent till the guilt is proved. Keeping this maxim in my mind I want to sail through the evidence. 7. P.W. 1, is the F.I.R. maker. He is the father of the victim. He is not the eye-witness. After coming to know about the fact, he had been to hospital to see her daughter. In his examination in chief, he has categorically narrated the prosecution case. He faced the cross-examination and further stated that at the relevant point of time, it was dark and there is no light post beside the road. He is not the eye-witness. After coming to know about the fact, he had been to hospital to see her daughter. In his examination in chief, he has categorically narrated the prosecution case. He faced the cross-examination and further stated that at the relevant point of time, it was dark and there is no light post beside the road. He took his daughter to the hospital and in the meantime, he heard that a salish was held in that area. In course of cross-examination, he could not recollect whether the victim was having a maroon coloured shawl or not. Referring this part of his evidence, learned Counsel appearing on behalf of the appellant contended that the appellant had been falsely implicated. It seems to me that non-mentioning of such fact, is neither an omission nor a contradiction on the ground that the alleged incident took place on 01.12.2012 and this P.W. 1 was examined on 27.08.2013 i.e. nearly after nine months from the date of incident. During this period, memory may be faded. 8. P.W. 2 is the victim herself. In her examination in chief as well as in course of cross-examination she had given an ocular manifestation of the crime committed against her. She has divulged all her agonies. She was going with her brother sitting on the left side of the cycle. She failed to say if any salish was held in their village on that day or not. Quite rightly, this has been stated by her, because soon after the incident she was taken to Haldia Hospital for her treatment and naturally she had no knowledge if salish was held or not. This is not at all a contradiction on her part. The Investigating Officer had examined her on 10th February. It has been contended by the learned Defence Counsel that prompt recording of the statement of the victim was required. It is quintessential. It is in evidence that the victim was initially taken to the Haldia Hospital and thereafter she was sent to Nil Ratan Sarkar Medical College and Hospital at Calcutta for her better treatment. Her eyes and face were affected highly. She became almost blind due to sudden attack by acid. Since the said acid sprinkled her face, it can be safely said that she was not in a condition to give any statement to the police instantly. Her eyes and face were affected highly. She became almost blind due to sudden attack by acid. Since the said acid sprinkled her face, it can be safely said that she was not in a condition to give any statement to the police instantly. So when she came back, the Investigating Officer has examined her. There is no irregularity in it. This apart, recording of statement of the witness at belated stage does not ipso facto render a passport of acquittal to the accused. P.W. 2’s evidence remain unshaken and she stood like a ‘Rock of Gibraltar’. Her evidence is trustworthy on following reasons: She is the victim herself. She knew the appellant for quite a considerable period. The appellant had every axe to grind because the victim herself disassociated with his company, when the appellant refused to take care of her siblings. After going to Nil Ratan Sarkar Medical College and Hospital at Calcutta, she had given the name of the appellant to the doctor concerned and the said doctor concerned, while giving evidence as P.W. 12, categorically stated “as stated by the patient on way home one person namely Ranjan Das threw acid over her face. The victim sustained acid burn injuries.” The doctor himself has given opinion that “on examination patient conscious. Acid burn over whole face, neck, part of upper back scatter patches over right forearm.” The said report prepared by the doctor concerned has been marked exhibited. In course of cross-examination, his such evidence stands in its entirety. 9. P.W. 3 is not an eye-witness but soon after the occurrence he proceeded to the spot and found the victim lying on the road with acid burn injuries on her face. According to him, the victim was taken to hospital and from there she was referred to Calcutta Nil Ratan Sarkar Hospital. In course of cross-examination he has stated that on the date of incident a salish was held in the village where the appellant was also present. They called upon Ranjan Das from Horekhali Bazar and after salish, they handed over the appellant to the police. 10. P.W. 4 is the brother of the victim, who also accompanied the victim on that day by the said cycle. He also sustained injuries on his left hand. He was treated by a quack doctor of that locality. They called upon Ranjan Das from Horekhali Bazar and after salish, they handed over the appellant to the police. 10. P.W. 4 is the brother of the victim, who also accompanied the victim on that day by the said cycle. He also sustained injuries on his left hand. He was treated by a quack doctor of that locality. In course of cross-examination, it was suggested to him how the victim was taken to hospital and in reply he had categorically stated that his parents came and arranged the ambulance and took his sister to hospital but he did not go with his parents. He has also suffered minor injury and so he had gone to a quack doctor for his treatment. In course of cross-examination, he firmly stated that acid like water was thrown from the front side of his elder sister. This evidence stands on two counts:- Firstly, the victim sustained injury on her whole face. If attack was made from the front side, only in that case injury would be on the face. Secondly, this witness was paddling cycle and the victim was in the said cycle as a pillion rider. As a result, when the victim shouted, both of them fell down from the cycle. Doctor has also opined that victim sustained acid burn injury in her face. P.W. 5 and 6 were declared hostile. P.W. 7, is the mother. She is not an eyewitness. She has corroborated the prosecution case. She has identified the wearing apparels of the victim. During her cross-examination the defence could not encash in anything in their favour. P.W. 8 corroborated P.W. 7 in the same tone and tune. Her evidence is also trustworthy. P.W. 9 is the first doctor before whom the victim was initially taken he opined that the injury was grievous and it was marked Ext.2/a. P.W. 10 is the uncle of the victim. He is not a witness to the occurrence. P.W. 11 is the Investigating Officer of this case. In cross-examination and examination in chief he has narrated how he had conducted investigation. In cross-examination he had admitted that he could not say what type of acid was there inside the bottle. He also admitted that he did not seize any muffler or monkey cap of Madhumita. P.W. 11 is the Investigating Officer of this case. In cross-examination and examination in chief he has narrated how he had conducted investigation. In cross-examination he had admitted that he could not say what type of acid was there inside the bottle. He also admitted that he did not seize any muffler or monkey cap of Madhumita. According to him, the witness Raju (victim’s brother) did not tell him that he had also sustained injury on his left hand. Other parts of his evidence were in the form of denial. P.W. 12 is the doctor of Nil Ratan Sarkar Medical College and Hospital at Calcutta and he actually rendered proper medical treatment to the victim. His report is marked Ext.7. 11. At the time of argument learned Lawyer for the appellant wanted to high light some variations, omissions and contradictions in the evidence and submitted that the benefit should go in favour of the accused. It would not be out of place to mention that credibility of the testimony depends much on judicial evaluation of totality and not on isolated scrutiny. Omission to state a fact or circumstances, in the statement referred to under Section 162(1) of the Cr.P.C. may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context for which such omission occurs. Whether any omission amounts to contradiction in the pretext is purely a question of fact. The court has to circumspect the facts, consider the common course of natural events, human conduct and thereafter, consider whether it is material or significant and whether it is best fitted with the circumstances or not. It is the guideline of the Hon’ble Apex Court that even if a person does not say a particular thing before the police officer, he may say that fact before the court. If such statement is trustworthy in that case, there is no legal embargo on the part of the court to accept that version. This court may rely on the decision reported in 2003 SCC (Criminal) 170 (Alamgir –Vs.-State of N.C.T. Delhi). This court is not oblivious to the fact that sometime witnesses are overawed with the court atmosphere and sometime swayed away by sugar coated artful advocacy. This court may rely on the decision reported in 2003 SCC (Criminal) 170 (Alamgir –Vs.-State of N.C.T. Delhi). This court is not oblivious to the fact that sometime witnesses are overawed with the court atmosphere and sometime swayed away by sugar coated artful advocacy. Regarding discrepancies it is made crystal clear by the Hon’ble Apex Court in a decision reported in 2002 Crl.L.J. 2645, wherein the Hon’ble Apex Court held that “in a case of discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders the court should not attempt to jump over the same.” In this instant case there is a very minor discrepancy, so I can tread upon it. I am not at all interested to allow the truth to be scarified at the altar of hyper technicality by making the society as a casualty. 12. The learned Counsel appearing on behalf of the appellant further argued that the prosecution failed to establish the motive in this case. In this regard, I can say that there is no canon that the motive has to be proved in all cases. When there is ocular manifestation of the offence by the eye-witnesses and particularly the victim the same is inconsequential. This apart, it is in F.I.R. as well as in evidence that after loosing her husband the victim began to reside with the appellant for about 22 days on the promise of the appellant that he would marry her and take care of her children. But when the appellant refused to maintain her children, being an Indian mother, she left her company and came back to parents with her siblings. Therefore, grudge if any, was of the appellant and this is the ‘serpent in the grass.’ Therefore, the motive to attack is amply manifested. The learned Counsel further argued that near the hospital more the alleged incident took place and there is a locality but none of them came to support the prosecution. In my view, it has no basis at all. It is true that there is evidence that near the said road there is a locality. This court cannot keep it’s conscience into a cold storage regarding normal phenomenon of our society. There is absolute inertia of the common people to come to court. In my view, it has no basis at all. It is true that there is evidence that near the said road there is a locality. This court cannot keep it’s conscience into a cold storage regarding normal phenomenon of our society. There is absolute inertia of the common people to come to court. Even if they come, they do not like to say anything against the criminal lest they incur wrath of the accused person. In such circumstances, the local people, normally, are inclined to follow “self-preservation is the first law of nature”. Not only that it is also well settled that the evidence is to be weighed and not counted. If the evidence of solitary witness passes through the touchstone of credibility and if after repeated careful scrutiny of the evidences, the court comes to a conclusion that there is an impress of truth in it, then there is no embargo in the way of accepting his evidence. 13. Learned Defence Counsel made forceful submission as to rendering benefit of doubt. This legal phrase has stolen away many valuable judicial hours of the judges, law-lovers and law-thinkers. It would be an auto limitation if anybody ventures to define it. Ratiocination of the following cases reported in AIR 1978 (SC) page 1097, AIR 1988 (SC) 1998 (1994) 1 HCC 73 are “so long many chaff, cloud, dust remains, the criminals are clothed with this protective umbrella to receive benefit of doubt. The duty of the court within permissible limit is to find out the truth”. The court should not lose sight of reality of life and cannot afford to take an unrealistic approach by giving elasticity to the phrase ‘benefit of doubt’. On perusal of the evidence, I am of the view that the prosecution has proved the case. 14. Of late, rate of crimes are ticking very fast. Acid attack upon a victim lady defaced her face and body. She has to bear the distraught mental pain till her respiratory system works. Question of remission of sentence does not arise. The duty of the state and society as a whole is to rehabilitate her so that she can ensure her life and liberty in a decent manner. Beastly act of the appellant shakes the conscience of all human beings. Accordingly, the punishment as imposed by the Trial Court must be maintained. Question of remission of sentence does not arise. The duty of the state and society as a whole is to rehabilitate her so that she can ensure her life and liberty in a decent manner. Beastly act of the appellant shakes the conscience of all human beings. Accordingly, the punishment as imposed by the Trial Court must be maintained. In addition to that, I direct the District Judge & District Magistrate, Purba Medinipur to take appropriate step to pay compensation of Rs.3,00,000/- to the victim within a month from this day from the fund of District Legal Services Authority. This order is mandatory in nature. This apart, the victim should be treated as a physically handicapped person under the Disability Act and she shall be bestowed with all the privileges that a physically handicapped person enjoys. Accordingly, CMOH Purba Medinipur is directed to place this matter before the concerned board for issuing disablement certificate (with percentage) after observing all legal formalities to the victim. This may be the sacrament of penance on behalf of our society. 15. In the result, the criminal appeal fails. Judgment and order of sentence of the Trial Court are hereby affirmed. Learned Public Prosecutor, High Court is directed to send a copy of this judgment to the concerned authorities to implement this order in toto and to ensure that it is implemented. 16. Let a copy of this judgment and LCR be sent to the learned Court below for information and taking necessary action. Let a plain copy of the order as prayed for by the learned Public Prosecutor be handed over on his undertaking. 17. Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.