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2020 DIGILAW 240 (CAL)

Prabir Sarkar v. State Of West Bengal

2020-02-18

SHIVAKANT PRASAD

body2020
JUDGMENT Shivakant Prasad, J. - The appeal is directed against the judgement of conviction dated March 23, 2015 and order of sentence dated March 24, 2015 passed by the learned Additional Sessions Judge, First Court at Jhargram, Paschim Medinipur, in Sessions Trial No. 5 (8) 13 convicting the appellant for commission of offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year more. 2. The appellant has preferred this appeal on the ground that the appellant has been falsely implicated in the instant case, which is an outcome of personal grudge and rivalry between the family members of the appellant and the victim lady over a landed property. 3. Prosecution case leading to the present appeal is that on complaint of the prosecutrix, a first information report being no. 89 dated October 3, 2011 under Sections 376/506 of the Indian Penal Code was registered in the Binpur Police Station for investigation. In conclusion of investigation, charge sheet was submitted under Sections 376/506 of Indian Penal Code and the case was committed to the Court of Sessions. The learned Sessions Judge after taking cognizance under Section 193 of the Code of Criminal Procedure transferred the case to the court of the Additional Sessions Judge, First Court at Jhargram, Paschim Medinipur, for trial and disposal. Charges were framed under Sections 376/506 of Indian Penal Code and the same was read over and explained to the appellant. The appellant pleaded not guilty and claimed to be tried. 4. In the course of trial, prosecution examined as many as eight (8) witnesses to substantiate the charges levelled against the appellant. 5. On completion of the evidence of prosecution witnesses, the appellant was also examined under Section 313 of the Code of Criminal Procedure, but no evidence was adduced on his behalf. He deposed that he had been falsely implicated in the instant case due to family disputes over landed property. 6. In conclusion of trial, the trial court by the impugned judgement and order convicted and sentenced the appellant as aforesaid. 7. The prosecutrix deposed that commission of rape was made on her forcibly by holding out threat by the appellant, when she was alone in her paternal house. 8. Prosecution witnesses no. 6. In conclusion of trial, the trial court by the impugned judgement and order convicted and sentenced the appellant as aforesaid. 7. The prosecutrix deposed that commission of rape was made on her forcibly by holding out threat by the appellant, when she was alone in her paternal house. 8. Prosecution witnesses no. 1 and 2 are the parents of the prosecutrix. The prosecution witness no. 1 deposed that the appellant is the son of her elder brother in law, that is to say, the nephew of prosecution witness no. 2. Thus, he happens to be the cousin brother of the victim lady/prosecutrix. She deposed that when the prosecutrix was alone in the house, the appellant had entered into their house and committed rape on the prosecutrix by holding out threat with dire consequences. This evidence of prosecution witness no. 1 is undoubtedly hearsay evidence, since in cross-examination, she stated that Prasanta Chowdhury, who happens to be the husband of the victim lady, intimated her about the incident. The victim lady also deposed that subsequently she narrated the incident to her parent immediately upon their returning home and she also informed about the incident to her husband. Thus, hearsay evidence of prosecution witness no. 1 does not find corroboration as to who had really communicated her about the incident. The prosecution witness no. 2 being the father of the victim lady deposed that he had heard about the incident of rape from the villagers and that he was not interrogated by the investigating agency. Therefore, no amount of his testimony can be relied in evidence. 9. Be that as it may, the evidence of prosecution witnesses no. 1 and 2, being the parent of the victim lady, are hearsay evidence which cannot be relied to bring home the charges levelled against the appellant. 10. Prosecution witness no. 3, namely, Mousumi Sarkar, is the wife of the appellant. She deposed that she had no knowledge about any incident relating to rape of the victim lady by her husband. 11. Prosecution witness no. 4 is the prosecutrix, who deposed that on the day of incident, that is, on October 1, 2011 she was alone in her parental house and other members of the family had gone to market. Availing such opportunity the appellant had entered into her room, undressed her and raped her forcibly. 11. Prosecution witness no. 4 is the prosecutrix, who deposed that on the day of incident, that is, on October 1, 2011 she was alone in her parental house and other members of the family had gone to market. Availing such opportunity the appellant had entered into her room, undressed her and raped her forcibly. At that time, she raised alarm, but nobody came forward to rescue her. She deposed that subsequently she narrated the incident to her parents and informed her husband over phone. But the fact of communication to her husband about the incident over phone has not been proved in the sense that there was no seizure of phone. 12. According to the learned advocate appearing for the appellant, police did not seize the wearing apparels of the victim lady and admittedly the village is densely populated and when she raised her voice, somebody ought to have come to rescue her but no villager has been cited as witness in corroboration of the prosecution case. Prosecution witness no. 4 was examined by the doctor prior to lodging the first information report. The complaint which has been lodged is delayed by three days, but the delay has not been properly explained. If the incident was reported by the victim lady to her mother, she would have reported the incident to the police station. The prosecution witness no. 4 gave a statement before the learned Magistrate and while going to the Magistrate's court she had discussed with her husband with regard to the case. Such statement has been marked as Exhibit-2 to corroborate the fact as deposed by prosecution witness no. 4. 13. It would appear from the statement of the victim lady made before the learned Magistrate under Section 164 of the Code of Criminal Procedure that she did not want to say anything about the incident as she was mentally disturbed and could not recollect anything about the incident. She stated before the learned Magistrate that she had disclosed the incident to her husband over phone after the accused fled away. Even the victim lady requested the learned Magistrate to release the accused as the accused had got proper lesson being detained in jail custody for about two days and he had a child of six months. 14. Prosecution witness no. 5 being the husband of the prosecutrix has been declared as hostile. Even the victim lady requested the learned Magistrate to release the accused as the accused had got proper lesson being detained in jail custody for about two days and he had a child of six months. 14. Prosecution witness no. 5 being the husband of the prosecutrix has been declared as hostile. He admitted in his evidence that the appellant is his brother in law. Thus, obviously the evidence of prosecutrix does not find corroboration in the evidence of prosecution witness no. 5. 15. Prosecution witness no. 7 is the doctor who examined the victim lady. He deposed that he did not find any external injury on any parts of the body, no vaginal injury or injury to any private parts. There was no bleeding, no ulceration nor any vaginal discharge found. He proved his report being Exhibit-4. 16. Prosecution witness no. 8 is the investigating officer. He proved the sketch map of the place of occurrence being Exhibit-5 and the formal first information report being Exhibit-6. He admitted that he did not seize any wearing apparel or even did not seize any inquiry report from Jamboni police station. 17. The learned trial judge observed that the absence of injury or foreign particle in the private parts of the victim lady is not fatal to the prosecution case. In this regard, the learned trial judge referred a decision of the Supreme Court in the case of State of Maharastra vs. Chandra Prakash Kewolchand Jain, 1990 1 SCC 550 wherein the Supreme Court held that spermatozoa can be found if the woman is examined within twelve hours after the incident and thereafter it may be found within 44 and 72 hours but in dead form and if the prosecutrix washes herself in the meantime, the spermatozoa may not be found. 18. The learned trial judge also took into consideration the decision rendered in the case of Ranjit Hazarika vs. State of Assam, 1998 8 SCC 635 to hold that the doctor's opinion could not be thrown out otherwise there were cogent and trustworthy evidence on the part of the prosecutrix. In a case of commission of rape on a major lady, who happens to be the mother of two children, there may not be any sign of injury or foreign particle in the private parts of the victim lady. 19. I have respectfully gone through the documents. In a case of commission of rape on a major lady, who happens to be the mother of two children, there may not be any sign of injury or foreign particle in the private parts of the victim lady. 19. I have respectfully gone through the documents. In the given facts of the case, there is no whisper in the medical report of the doctor examining the victim lady about presence or absence of sperm or stain on the private parts. However, in the given case, the investigating officer has not taken steps even for forensic report in respect of the vaginal swab. Since the case was lodged three days after the incident of alleged rape, there was no scope even for presence of foreign body in the private parts of the victim lady. It is true that doctor's opinion is an opinion evidence and in case of conflict between the medical opinion and the version of the prosecutrix, the evidence of the prosecutrix has to be relied on. But the testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be live to its responsibility and be sensitive while deciding such cases. It is also a settled law that evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. (See: The State of Punjab vs. Gurmit Singh & ors., 1996 AIR(SC) 1393 ) 20. In my view, the case which has been instituted suffers from some doubt in the context of the fact that the appellant is admittedly a cousin brother of the victim lady and he used to look after the landed property belonging to her father. The version of the prosecutrix creates some suspicion in the prosecution case. It is true that absence of external injury on the private part or in any part of the body of the victim lady would not be one reason for confusion but once again I reiterate that in case of a commission of rape on a healthy married woman having children, the victim lady may not incur any injury but would require some amount of corroboration. 21. 21. In this case, I find that the version of the husband of the victim lady is in general term rather he has been declared hostile, which gives a sense in judicial mind that there may be personal grudge out of the rivalry between the two families being the family of her father in law and the family of the elder uncle of the victim lady over the landed property. 22. In view of the aforesaid discussion, I am of the opinion that it would be prudent to extend the benefit of doubt to the appellant and to acquit him of the charges levelled against him. Accordingly, the appeal is allowed and the judgment and order of conviction and sentence is set aside. 23. Let a copy of the judgment along with the lower court records be sent down to the trial court at once. 24. Photostat certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.