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2018 DIGILAW 65 (CAL)

Rajesh Sk. v. State of West Bengal

2018-01-09

ASHA ARORA

body2018
JUDGMENT : ASHA ARORA, J. 1. This appeal is directed against the judgment and order of conviction and sentence dated March 7, 2012 passed by the learned Additional Sessions Judge, rd Fast Track Court, Jangipur, Murshidabad in Session Trial No.2/March/2011 arising out of Sessions Case No.24 of 2011 whereby the appellant Rajesh Sk. and two others have been convicted for the offence punishable under section 354 IPC and sentenced to suffer imprisonment for two years each and to pay a fine of Rs.10,000/- each, in default of which to suffer further imprisonment for six months each. 2. Prosecution case in brief is that on January 8, 2009 at about 9.30/10.00 PM, the appellant Rajesh Sk., who was known to the defacto complainant Sundari Khatun, set out with her and her uncle’s daughter Rehana Khatun for his house at Bagsirapara. On the way, the appellant took them to an abandoned room at Aurangabad Balika Vidyalaya where four friends of the appellant came. It is further alleged that the appellant embraced Sundari Khatun forcibly and pressed her breast. He also tried to pull her trouser but she managed to escape by biting his finger. Two of the companions of the appellant named Hanif Sk and Abdul Sk sexually assaulted Rehana Khatun while the appellant and two others aided in the commission of such offence. When Sundari Khatun raised cries, the accused persons fled away. While fleeing, the accused persons took away the gold necklace, silver ‘tora’ and gold earrings of Rehana. 3. On the basis of the written complaint of Sundari Khatun, Suti Police Station Case No.4 of 2009 dated 9th January 2009 under sections 376(2)(g) and 379 IPC was initiated against the appellant and four others. Investigation into the case culminated in the submission of the charge-sheet under sections 376(2)(g) and 379 IPC against all the accused persons including the appellant. The learned trial Judge framed charge under section 376(2)(g) and 379 IPC against the appellant and two other accused persons who pleaded not guilty to the indictment and claimed to be tried. During the trial, prosecution examined nineteen witnesses and exhibited several documents. 4. Defence version in short is innocence and complete denial of the prosecution story. 5. The learned trial Judge framed charge under section 376(2)(g) and 379 IPC against the appellant and two other accused persons who pleaded not guilty to the indictment and claimed to be tried. During the trial, prosecution examined nineteen witnesses and exhibited several documents. 4. Defence version in short is innocence and complete denial of the prosecution story. 5. On conclusion of trial, the learned Judge found that though the charge under section 376(2)(g) and 379 IPC could not be established, the offence punishable under section 354 IPC has been proved against the accused persons. The accused were accordingly convicted and sentenced as aforesaid for the offence punishable under section 354 IPC. 6. The point for determination is whether the conviction and sentence of the appellant for the offence punishable under section 354 IPC is sustainable. 7. The main thrust of argument of the learned counsel for the appellant is that the two victims are majors and consenting parties as the appellant was known to them. It is submitted that the entire story of the prosecution is false and concocted. As the allegation of rape and theft made out in the FIR could not be established, the learned trial Judge was not justified in convicting the appellant under section 354 IPC. It is canvassed that the appellant being admittedly known to the victims, there was no reason why they did not disclose his name to the medical officer who examined them. It has also been argued that the evidence of the two victims is contradictory to each other on material points and cannot be relied upon. Prosecution story is full of discrepancies and inconsistencies. 8. Learned counsel appearing for the State countered that the conviction and sentence of the appellant for the offence punishable under section 354 IPC is justified in the facts and circumstances of the case. 9. Prosecution case hinges mainly on the evidence of the two victims. PW 1 Sundari Khatun is the de facto complainant and one of the victims. She has testified in her evidence that about two years ago at night at about 9.30/10.00 pm the accused Rajesh Sk took her and her uncle’s daughter Rehana Khatun to see the Moharam fair. 9. Prosecution case hinges mainly on the evidence of the two victims. PW 1 Sundari Khatun is the de facto complainant and one of the victims. She has testified in her evidence that about two years ago at night at about 9.30/10.00 pm the accused Rajesh Sk took her and her uncle’s daughter Rehana Khatun to see the Moharam fair. On the way, Rajesh took them to an abandoned room at Aurangabad Girls High School where there were four other accused persons who threatened them with a knife and told them to hand over their ornaments. Due to fear she and Rehana handed over their ornaments to the accused persons. PW 1 further stated in her evidence that accused Rajesh touched her body and pressed her breast but she managed to escape by biting his finger. The companions of Rajesh caught her and pressed her mouth with a piece of cloth where after they committed rape upon Rehana Khatun. When she (PW1) raised cries, the accused persons fled away. In her cross-examination PW1 stated that she took Rehana to her house with serious bleeding injuries and she herself also sustained bleeding injuries on her body and was medically treated by a doctor. Curiously enough the medical officer (PW 15) who examined the two victims did not find any injury or mark of injury on any part of their body. It is also significant to note that there is nothing in the evidence to suggest that the two victim girls were medically treated for their alleged injuries on the date of the incident or on the following day. 10. PW 2 Rehana Khatun is another victim who deposed almost in a similar manner by testifying that on the date of the incident the accused Nagar, Mala Sk., Abdul and Hanif committed rape upon her in a room at Aurangabad Girls High School. According to PW 2 she and her cousin Sundari (PW1) had been to Maharam fair wherefrom the accused Rajesh, on the pretext of taking them to his house, took them to a room near Aurangabad Balika Vidyalaya where four others were waiting. The accused persons took away their ornaments and accused Rajesh touched the body of her cousin who managed to escape by biting the finger of Rajesh while the other four accused persons committed rape upon her by threatening her with a knife. The accused persons took away their ornaments and accused Rajesh touched the body of her cousin who managed to escape by biting the finger of Rajesh while the other four accused persons committed rape upon her by threatening her with a knife. It has been stated by PW2 in her cross-examination that they met Rajesh at the moharam fair and there from he took them to an abandoned room. The evidence of PW 2 on this point is contradictory to that of PW 1 who testified that she and her cousin Rehana were taken by the accused Rajesh to see the Maharam fair. In her cross-examination PW 2 stated that she sustained bleeding injuries on her private parts but the medical evidence of PW 15 does not corroborate her testimony in this regard. 11. The evidence of PW 4, PW 5, PW6, PW7 and PW 12 who are related to the victim girls is hearsay. There is nothing in the evidence to show that the victims girls were medically treated by any doctor for their alleged injuries. On the contrary, from the medical evidence of PW 15 it transpires that no mark of injury was found on any part of the victims’ body. It is also interesting to note that as per the statement of the two victim girls before the medical officer (PW 15), they were physically assaulted by some persons but the names of the persons were not disclosed to PW 15. Admittedly the appellant Rajesh Sk. was known to the two victim girls who remained silent before the medical officer (PW 15) and chose not to disclose his name. The post occurrence conduct of the victims was far from natural. Who prevented the victims from lodging a complaint promptly at the police station which is about 1½ km. distant from the place of occurrence as according to PW 1 accused fled away from the site when she raised cries. According to PW 2 there are many houses around the room where the incident took place. In her cross-examination PW2 stated that she raised cries for a few minutes before the incident but surprisingly no one came to the aid of the victims on hearing their cries. This is indeed an incredible story which is far from believable. The evidence of the two victims does not inspire confidence and is far from creditworthy. In her cross-examination PW2 stated that she raised cries for a few minutes before the incident but surprisingly no one came to the aid of the victims on hearing their cries. This is indeed an incredible story which is far from believable. The evidence of the two victims does not inspire confidence and is far from creditworthy. In the absence of cogent, credible and convincing evidence the learned trial Judge was not justified in recording an order of conviction and sentence under section 354 IPC against the appellant. 12. For the reasons afore stated, the impugned judgment and order of conviction and sentence passed by the learned trial Judge warrants interference and is liable to be set aside. 13. Consequently the appeal is allowed by setting aside the impugned judgment and order of conviction and sentence. The appellant is hereby acquitted and discharged from his bail bond 14. A copy of this judgment along with the lower court records be sent forthwith to the trial court. 15. Urgent photostat certified copy of this judgment if applied for, be given to the applicant upon compliance of requisite formalities.