Research › Search › Judgment

Calcutta High Court · body

2018 DIGILAW 816 (CAL)

Palash Das v. State Of West Bengal

2018-11-22

JOYMALYA BAGCHI, MADHUMATI MITRA

body2018
JUDGMENT : JOYMALYA BAGCHI, J. 1. The appeal is directed against the judgment and order dated 01.10.2013 and 03.10.2013 passed by the learned Additional District and Sessions Judge, Kalna, Burdwan, in Sessions Case No. 54 of 2007/ Sessions Trial No. 18 of 2007 convicting the appellant for commission of offence punishable under Sections 342/376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for three months more for the offence punishable under Section 376 of the Indian Penal Code and to suffer rigorous imprisonment for one year and also pay a fine of Rs.1,000/-, in default, to suffer rigorous imprisonment for 15 days more for the offence punishable under Section 342 of the Indian Penal Code. Both the sentences to run concurrently. 2. The prosecution case as alleged against the appellant is to the effect that three to four months prior to the incident, the appellant along with one Subhas and Ashis raped the victim and a criminal case was registered against them. Subsequently, appellant was released on bail. Thereafter the victim when missing from 30.12.2006 and the matter was reported to Purbasthali Police Station being Purbasthali P.S. G.D.E. No. 1493 dated 31.12.2006. On 01.01.2007 father of the de facto complainant found the victim lying senseless in an adjacent field near his home. A rope was tied around her waist and there was vermilion on her forehead and conch shell bangles on her hand. He informed the matter to the local authorities as well as the police. Victim was taken to Kalna hospital where she regained her sense. She disclosed before the medical officer that the appellant who had committed rape upon her four months ago had forcibly taken her to an unknown place and after putting vermilion on her forehead and conch shell bangles on her hand had raped her again. She was kept confined in a room. Subsequently she was dumped near her house and the appellant ran away. On the complaint of the father of the victim (P.W. 1), Purbasthali P.S. Case No. 01/2007 dated 01.01.2007 under Sections 342/376 of the Indian Penal Code was registered for investigation. She was kept confined in a room. Subsequently she was dumped near her house and the appellant ran away. On the complaint of the father of the victim (P.W. 1), Purbasthali P.S. Case No. 01/2007 dated 01.01.2007 under Sections 342/376 of the Indian Penal Code was registered for investigation. In conclusion of trial chargesheet was filed against the appellant and the case, being a sessions triable one, was committed to the Court of Sessions and transferred to the Court of the Additional District and Sessions Judge, Kalna, Burdwan for trial and disposal. 3. Charges were framed under Sections 342/376 of the Indian Penal Code and the appellant pleaded not guilty and claimed to be tried. 4. In course of the trial, prosecution examined 8 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. 5. In conclusion of trial, learned trial judge, by judgment and order dated 01.10.2013 and 03.10.2013 convicted and sentenced the appellant, as aforesaid. 6. Nobody appears for the appellant. 7. Ms. Khan, learned Counsel is requested to appear as amicus curiae. She argued that it has come from the evidence of P.W. 8, Investigating Officer, that place of occurrence is under Nabadwip Police Station, District - Nadia. Hence, the trial court did not have territorial jurisdiction to try the offence. She also submitted that there is no corroborative evidence to show that the victim had been taken to the place of occurrence and ravished. Evidence of P.W. 3, victim, is also unclear as to how she had been taken to the place of occurrence. Hence, there is no evidence with regard to the manner and course in which the alleged offence was committed and the place of occurrence has not been proved beyond reasonable doubt. It is also argued that there was prior enmity between the parties as the appellant had been implicated in an earlier case of rape and hence the evidence of P.Ws. 1 and 3 are to be taken with a pinch of salt. Appeal is, thus, liable to be allowed. 8. On the other hand, Mr. Das, learned Counsel appearing for the State has submitted that the appellant had been accused of raping the victim earlier. Upon being released on bail he abducted the victim and confined her in a room and committed rape. Appeal is, thus, liable to be allowed. 8. On the other hand, Mr. Das, learned Counsel appearing for the State has submitted that the appellant had been accused of raping the victim earlier. Upon being released on bail he abducted the victim and confined her in a room and committed rape. Thereafter she was left behind in a field adjacent to her house in a tied condition with vermilion on her forehead and sankha on her hand. P.Ws. 1, 3 and 5 are corroborated by P.W. 6, a neighbour. Medical evidence also supports the prosecution case of forcible rape. Hence the appeal is liable to be dismissed. 9. P.W. 3 is the victim and the most vital witness in the instant case. She deposed that the incident occurred on a Saturday, that is, 30.12.2006. On that day in the evening she had gone to answer nature's call behind the cowshed. When she got up after relieving herself appellant tied her and forcibly took her away. She was taken to a shallow machine room far away from her home. She asked the appellant why he had brought her there. The appellant forcibly raped her and told her that he would not leave her easily as he had been imprisoned due to her. Three to four months prior to the incident the appellant and one Ashis and Subhas had raped her. They were arrested and had been behind bars. The appellant kept her tied in a room and he did not return in the night and on the next morning he returned with sankha and sindur. He put sankha on her hand and sindur over her forehead. From Saturday to Monday, appellant kept her tied in the room and did not provide her food. Subsequently he threw her in a field adjacent to her house. On Monday morning she regained her consciousness at about 7 a.m in the hospital. She narrated the incident to her father and others including police. Police seized her wearing apparels. She stated the incident to the Magistrate. She proved her signature in front of the Magistrate. 10. In cross-examination, she stated that she could not recollect whether cultivation was going on or names of the owners of the land around the room where the incident occurred. She knew the appellant for last five years as he was a local person. 11. She proved her signature in front of the Magistrate. 10. In cross-examination, she stated that she could not recollect whether cultivation was going on or names of the owners of the land around the room where the incident occurred. She knew the appellant for last five years as he was a local person. 11. P.W.1 & P.W. 5 are the parents of the victim. 12. P.W.1 her father, deposed that three years ago on a Saturday in the month of Poush her daughter went missing. She was aged about thirteen years. In spite of search, they could not trace her out. He lodged missing diary at Purbasthali P.S. Even on the next day, i.e. Sunday she was untraceable. In the morning of Monday her daughter was found lying under a mango tree on the western side of his house. She was wrapped with orna. There was a towel on her body and her hands were tied at the back and there was vermilion (sindur) on her forehead. She was unconscious. He called his neighbours and local villagers to the spot. He informed the police. Police took his daughter to the hospital. At the hospital her daughter told the doctor that the appellant had her and put vermilion on her forehead and raped her in a shallow machine room. Thereafter he returned home. He lodged complaint which was scribed by Debasis Sarkar. He put his LTI on the complaint. Police seized the wearing apparels of her daughter. Four months prior to the incident the appellant along with others had raped his daughter. They were in custody for three months as he had lodged complaint. After being enlarged on bail the appellant committed this offence. 13. P.W.5, mother of the victim has corroborated the evidence of P.W.1 & 3. 14. P.W.6, Kanai Pal is a neighbour. He deposed that he heard from the mother of the victim that victim was missing since 1st January. She was found near her house. Her father admitted her to the hospital. In the hospital he heard from the victim and her mother that the appellant had abducted and raped her in a shallow machine room. Police seized wearing apparels of the victim under a seizure list. He signed on the seizure list. 15. P.W.7 & 8 are the investigating officer in the instant case. 16. In the hospital he heard from the victim and her mother that the appellant had abducted and raped her in a shallow machine room. Police seized wearing apparels of the victim under a seizure list. He signed on the seizure list. 15. P.W.7 & 8 are the investigating officer in the instant case. 16. P.W.8, Kalyan Roy was posted as second officer of Purbasthali P.S. The case was endorsed to him for investigation. He took up the investigation of this case. He proved the formal F.I.R. (Ext.4). He visited the place of occurrence which is hut of Baneswar Halder of village Sadgoppara under Nabadwip P.S., District- Nadia. He examined witnesses. He drew up rough sketch map with index (Ext.6). He sent requisition for medical examination to the SD Hospital, Kalna and prepared seizure list. Upon his transfer the investigation was taken over by P.W.7 who submitted charge sheet. 17. From the evidence on record, particularly, that of P.W.3 it appears that the appellant nursed a grudge against the victim as he had been imprisoned on the allegation of rape at her behest. Upon being released on bail, the appellant had abducted the victim on 30.12.2006. He took her to a shallow pump room and committed rape. It has been argued that the room is situated within Nabadwip P.S. beyond the territorial jurisdiction of the trial court. Hence, the court lacked of territorial jurisdiction to entertain the case and conduct trial. I find that such issue had not been raised by the appellant at the initial stage of the proceeding. It had been raised belatedly in the course of arguments after the prosecution evidence has been recorded in the instant case. 18. Section 462 Cr.P.C. reads as follows: “462. Proceeding in wrong place.- No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.” 19. A perusal of the said provision would show that finding, sentence or order of criminal court shall be set aide on the premise that the trial has been conducted in a wrong sessions division until it appears that such error had occasioned a failure of justice. Applying the aforesaid provision of law to the facts of the case, I am unable to convince myself as to any failure of justice had been caused to the appellant who willingly submitted himself to the trial before the trial court at Kalna in the sessions division of Bardhaman and only at the fag end of trial had raised the issue of territorial jurisdiction. Hence, I am of the opinion that the impugned judgment and order is not liable to be set aside on the aforesaid premise as the issue of lack of territorial jurisdiction had not been raised at the earliest opportunity and had not occasioned a failure of justice. It has been argued that there is no medical evidence supporting the prosecution case of forcible rape was adduced. It is true that the medical officer who treated the victim at Kalna Hospital had not been examined. However, evidence of P.W.3 and her parents including an independent witness, namely, P.W.6 unequivocally show that upon her recovery in an unconscious condition, the victim had been admitted to Kalna Hospital. Dr. Sadhan Mondal who treated the victim at Kalna Hospital was cited as a witness in the charge-sheet. Perusal of the order sheet of the trial court shows that on 11.1.2011 the said witness was present in court but was not examined as the presiding officer was on leave. The witness could have been summoned and examined on a subsequent date by the prosecution. It was even open to the trial Court to summon the medical witness for examination as a court witness if it considered his evidence necessary for a just decision of the case. However, in view of the fact that the doctor who treated the victim at Kalna Hospital had, in fact, attended the court for examination but was not examined due to systematic reasons, I do not wish to draw an adverse inference against the prosecution case on such score. However, in view of the fact that the doctor who treated the victim at Kalna Hospital had, in fact, attended the court for examination but was not examined due to systematic reasons, I do not wish to draw an adverse inference against the prosecution case on such score. I am fortified to arrive at such conclusion in view of the oral evidence on record which unequivocally establish hospitalisation of the victim in an unconscious condition upon her recovery on 1st January, 2007. No challenge has been thrown to their evidence by the defence during cross-examination 20. It has been argued that the appellant had been earlier accused of similar allegation and, therefore, he was falsely implicated in the instant case. It is also argued that no records of the earlier case was produced before the trial court. 21. I have considered the aforesaid submission in the light of the evidence on record. Evidence of P.W.3, the victim has been corroborated not only by her parents but also by an independent witness, P.W.6 who claimed that the victim narrated the incident of forcible rape on her. It is nobody's case that P.W.6 has inimical relation with the appellant. Hence, I am of the opinion that the version of forcible rape as narrated by the victim (P.W.3) finds support from other evidence on record and ought not to be rejected. 22. In the light of the aforesaid discussion, I am of the view that the conviction and sentence imposed on the appellant may be upheld. 23. Accordingly, the appeal is dismissed. 24. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure. 25. I record my appreciation for the able assistance rendered by Ms. Khan as amicus curiae in disposing of the appeal. 26. Copy of the judgment along with L.C.R. be sent down to the trial court at once. 27. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. Madhumati Mitra, J. : I agree.