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2018 DIGILAW 761 (CAL)

Mohan Halder v. State of West Bengal

2018-10-12

RAJASEKHAR MANTHA

body2018
JUDGMENT : RAJASEKHAR MANTHA, J. 1. The instant appeal is directed against the judgment and order dated 31st January 2006 passed by the learned Additional Sessions Judge, First Track Court- IV, Alipore, South 24 Parganas, in Sessions case No. 14 (5)/04 and Sessions Trial No. 7(6)/04 whereby the appellant was convicted and sentenced to seven years imprisonment under Section 376 of the Indian Penal Code and was fined Rs.3,000/- in default to suffer RI for two months. 2. The prosecution case is that the appellant on 10th February 2003 at about 10:30 pm went to the house of the prosecutrix and asked her to accompany him to their uncle’s house. 3. At the uncle’s place the appellant and the uncle consumed country liquor. The appellant proposed to drop the prosecutrix home but the appellant however took the victim to nearby field where he made the victim lie down and started to take off her garments. When the victim girl protested the appellant threatened to kill her. The appellant also slapped the victim girl to secure her consent and silence. He thereafter committed sexual intercourse on her. The victim girl deposed that after the incident she left the field and returned to her house. PW 6, mother of the victim and the prosecutrix lodged a complaint with the Canning Police Station on 12th February 2003. The victim was above 17 years of age, at the time of the incident. 4. The victim girl was sent for medical examination 16 days after the incident where the medical examiner found the hymen ruptured and that it was not habitual in nature. There was no external injury marks found but there was evidence of intercourse. The vaginal swab and smear were prepared and sent for F.S.L. report by the Medical Examiner. The same was however not collected or produced in evidence in course of the trial. 5. The prosecution examined as many as 14 witnesses. PW 1 (the victim girl). There was no external injury marks found but there was evidence of intercourse. The vaginal swab and smear were prepared and sent for F.S.L. report by the Medical Examiner. The same was however not collected or produced in evidence in course of the trial. 5. The prosecution examined as many as 14 witnesses. PW 1 (the victim girl). PW 2 (uncle of the victim girl) PW 3 (grandmother of the victim girl) PW 4 (acquaintance of the victim girl) PW 5 (acquaintance of the appellant and the victim girl) PW 6 (mother of the victim girl) PW 7 (grandfather of the victim girl) PW 8 (Medical Examiner) PW 9 (another Medical Examiner) PW 10 (the Assistant Sub-Inspector) PW 11 (doctor who conducted the ossification test) PW 12 (the A.C.J.M.) PW 13 (the scribe of the complaint) PW 14 (the I.O.) 6. The Sessions Judge found favour with the evidence of the victim girl and held the prosecution case proved. He found that the evidence of the mother and the relations of the prosecutrix even if not corroborative were normal and probable. 7. The appellant would argue firstly that there was admittedly a family dispute with regard to sharing of fish in a pond that was originally joint family property. The prosecutrix and her family are stated to have been deprived of their share of the fish from the said pond. The appellant would argue that the appellant was implicated in the instant case falsely and out of family vendetta in connection with such dispute. The appellant would next argue that there were serious discrepancies in the evidence of the prosecutrix as to how she left the place of occurrence. While the victim girl deposed that she walked back to her residence, the mother of the victim girl, PW 6, had stated that the victim girl was found by her lying in the field and she took her home. In the complaint to the Police Station as also in the statement under Section 164 of the Cr.P.C. the prosecutrix had stated that she went home from the place of occurrence on her own. 8. It was further argued that the prosecutrix and the prosecution had only charged the appellant of a single incident of rape, whereas the mother of the victim in her evidence had stated that a second incident of rape occurred in nearby banana grove on the same night. 8. It was further argued that the prosecutrix and the prosecution had only charged the appellant of a single incident of rape, whereas the mother of the victim in her evidence had stated that a second incident of rape occurred in nearby banana grove on the same night. The prosecutrix in the statement under Section 164 of the Cr.P.C. had also alleged two incidents of rape like her mother. It was also argued by the appellant that the victim girl in course of cross-examination had stated that she enjoyed intercourse on the said night while in the examination in chief she had stated that she was crying during the incident. 9. It was also argued that the victim girl was sent for medical examination16 days after the incident and the F.S.L. report of the vaginal swab and smear was not produced by the prosecution in evidence. Even the garments worn by the victim at the time of occurrence was not sent for chemical examination by the police authorities despite being seized. Hence, according to Counsel for appellant, the charge against the appellant could not have been deemed proved. 10. Per contra the State would argue that conviction under Section 376 ofthe Indian Penal code can be made relying upon sole evidence of the prosecutrix, if the same is found to be reliable, consistent and corroborated by the medical and F.S.L, reports. Corroboration by independent and other witnesses may not be required in such circumstances. The prosecution relied upon the decision of Supreme Court in Y. Srinivasa Rao Vs. State of AP. He also relied upon a case of Karnel Singh Vs. State of MP reported in (1995) 5 SCC 518 Paragraph 7. The prosecution also relied upon the case of State of HP Vs. Srikant Sikari reported in AIR 2004 SC 4404 . 11. The appellant relied upon the decision of the Supreme Court in the case of Dilip and another Vs. State of MP reported in (2001) Volume 9 SCC Page 452 and another decision of the Supreme court in Narendar Kumar Vs. State of NCT reported in (2012) 7 SCC 171 particularly Paragraph 29 and 30 thereof. “29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. State of NCT reported in (2012) 7 SCC 171 particularly Paragraph 29 and 30 thereof. “29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide Tukaram v. State of Maharashtra [ (1979) 2 SCC 143 : 1979 SCC (Cri) 381 : AIR 1979 SC 185 ] and Uday v. State of Karnataka [ (2003) 4 SCC 46 : 2003 SCC (Cri) 775 : AIR 2003 SC 1639 ] .) 30. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. The conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of the prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix's case becomes liable to be rejected.” 12. In the case of Ramdas Vs. State of Maharashtra reported in (2007)2 SCC 170 , the Supreme Court held as follows: “23. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix's case becomes liable to be rejected.” 12. In the case of Ramdas Vs. State of Maharashtra reported in (2007)2 SCC 170 , the Supreme Court held as follows: “23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not find her evidence to be of such quality. 25. In the instant case there are two eyewitnesses who have been examined to prove the case of the prosecution. We have rejected outright the evidence of PW 5. We have also critically scrutinised the evidence of the prosecutrix, PW 2. She does not appear to us to be a witness of sterling quality on whose sole testimony a conviction can be sustained. She has tried to conceal facts from the court which were relevant by not deposing about the earlier first information report lodged by her, which is proved to have been recorded at the police station. She has deviated from the case narrated in the first information report solely with a view to avoid the burden of explaining for the earlier report made by her relating to a non-cognizable offence. Her evidence on the question of delay in lodging the report is unsatisfactory and if her deposition is taken as it is, the inordinate delay in lodging the report remains unexplained. Considered in the light of an earlier report made by her in relation to a non-cognizable offence, the second report lodged by her after a few days raises suspicion as to its truthfulness.” 13. In State of Karnataka Vs. Moujanna reported in (2000) 6 SCC Page 188 at Paragraph 18 the Supreme Court held as follows : “18. Considered in the light of an earlier report made by her in relation to a non-cognizable offence, the second report lodged by her after a few days raises suspicion as to its truthfulness.” 13. In State of Karnataka Vs. Moujanna reported in (2000) 6 SCC Page 188 at Paragraph 18 the Supreme Court held as follows : “18. Before parting with the case, we wish to put on record our disapproval of the refusal of some government hospital doctors, particularly in rural areas, where hospitals are few and far between, to conduct any medical examination of a rape victim unless the case of rape is referred to them by the police. Such a refusal to conduct the medical examination necessarily results in a delay in the ultimate examination of the victim, by which time the evidence of the rape may have been washed away by the complainant herself or be otherwise lost. It is expected that the appellant State will ensure that such a situation does not recur in future.” 14. I have carefully considered the arguments and the decisions relied upon by the parties. It is trite law that an accused can be convicted under Section 376 of the Indian Penal Code on the sole evidence of the prosecutrix. Corroboration from other witnesses need not be always relied upon. However to prove the occurrence of rape/intercourse medical examination and the chemical examination reports are vital. More so instant case where DNA test was not conducted. 15. In the instant case it is found that the victim girl was sent for medical examination 16 days after the incident. There is clear unexplained failure on the part of the officials of the Canning Police Station in this regard. A medical examination of a Rape Victim conducted after 16 days of the incident cannot be of any conclusive value. Valuable evidence may no longer exist at the 16 days. Hence the ruptured of the hymen as indicated by the medical officer cannot be conclusively linked to the appellant. 16. What is however fatal to the case is that the F.S.L. report of the vaginal swab and smear have not seen in the light of the day. The said report has not been produced in evidence by the prosecution. The said report has not ever been collected from the laboratory. 16. What is however fatal to the case is that the F.S.L. report of the vaginal swab and smear have not seen in the light of the day. The said report has not been produced in evidence by the prosecution. The said report has not ever been collected from the laboratory. Even assuming for the sake of the argument that such report in fact exists, the samples having been taken from the victim girl 16 days after the incident are unlikely to reveal any conclusive results to implicate the appellant. The medical report and the F.S.L. report if obtained in time would have indicated the actual role played by the appellant in the commission of the offense in which he was charged. 17. Even the garments worn by the victim were not sent for chemical-examination by the police. The F.S.L. report in respect of garments would have revealed blood/semen and would have been vital to prove the case of the prosecution. 18. It is in this context that the corroboration of the version of the victimmust be tested vis-a-vis the evidence of the other witnesses. There is serious inconsistency between the statement of the victim girl under Section 164 of the Cr.P.C. and the evidence tendered in her examination in chief. In the statement under Section 164 of the Cr.P.C. the victim girl had stated and referred to two incidents of forced sexual intercourse on the fateful night on 10th of February 2003. One in the open field and another after sometime in a banana grove. The mother of the victim girl in her examination in chief had also stated that there were two instances of intercourse/rape on the said night. However, very strangely the victim girl referred to only one incident of intercourse in the open field and the same version is also evident from the complaint transcribed by a family friend issued under the thumb impression of the victim girl and proved in course of trial. One of the wonder as to why the second incident of rape if at all was not deposed by the victim girl or did not form part of the prosecution case. There are also serious in the consistencies between the PWs on the actual facts surrounding the incident. 19. One of the wonder as to why the second incident of rape if at all was not deposed by the victim girl or did not form part of the prosecution case. There are also serious in the consistencies between the PWs on the actual facts surrounding the incident. 19. The PW 1 had stated that her mother did not allow the victim to go anywhere with the appellant yet the victim voluntarily went away with the appellant. As to why the victim voluntarily accompanied the appellant without her mother’s permission. Despite serious family disputes remains unexplained. 20. The PW 2 and PW 6 stated that the victim and appellant went to localshop to buy Muri and Chop (Rice Crispies and fritters). This has been denied by the PW 1. The shopkeeper was neither named as a witness in the chargesheet and was not produced in event. The said fact if proved would have shown some relationship between the appellant and the victim, based on which she accompanied him to the field. This coupled with evidence that she enjoyed the intercourse with the appellant and the suppression of the second intercourse in the banana field may indicate voluntary participation in the act of sexual intercourse with the appellant. 21. The State would argue that the appellant did not even suggest in defence that he had not committed any intercourse much less rape and that he was being falsely implicated by the victim girl and her family. 22. It is now well-settled that it is for the prosecution to prove a case before the Trial Court in the absence of any conclusive proof of such case, the presence or absence of defence is totally irrelevant. In any event in the examination of the 313 of the Cr.P.C. the appellant had wholly denied the incident and had stated that charge was false and concocted. 23. In the above circumstances, I am of the view that the prosecution has miserably failed to prove its case. The appellant could not have been convicted and sentenced on the evidence before the Court below. 24. In those circumstances, the impugned order of sentence and conviction is hereby set aside and the appellant is acquitted on the benefit of doubt. 25. The appeal is allowed. 26. There shall be no order as to costs. 27. The appellant could not have been convicted and sentenced on the evidence before the Court below. 24. In those circumstances, the impugned order of sentence and conviction is hereby set aside and the appellant is acquitted on the benefit of doubt. 25. The appeal is allowed. 26. There shall be no order as to costs. 27. Urgent Xerox certified copy of this judgment, if applied for, be supplied to the parties on urgent basis.