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2020 DIGILAW 313 (CAL)

Raju Lohar v. State Of West Bengal

2020-02-28

JAY SENGUPTA

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JUDGMENT Jay Sengupta, J. - The appellants are challenging a judgment and order of conviction dated 17th August, 2016 and sentence dated 18th August, 2016 passed by the learned Additional Sessions Judge, Fast Track Court - I, Islampur, Uttar Dinajpur in Sessions Trial No. 49 of 2015 arising out of Sessions Case No. 57 of 2015, thereby convicting the appellants under Section 376 (2) (g) read with Section 511 and Sections 323 and 448 read with Section 120B of the Penal Code and sentencing them to suffer rigorous imprisonment for five years and to pay a fine of Rs. 20,000/- each for the offence under Section 376 (2) (g) read with Section 511 of the Penal Code, to suffer one year's rigorous imprisonment and three month's rigorous imprisonment for the offences under Sections 323 read with Section 120B of the Penal Code and Section 448 read with Section 120B of the Penal Code, respectively, the sentences having to run concurrently. 2. On 6th August, 2012 at about 10.55 hours PW 1, the victim lady, lodged an FIR with the Chopra Police Station alleging commission of offences under Sections 457, 376(2) (g), 323 and 506 of the Indian Penal Code against seven accused/appellants. She alleged that on 5th August, 2012 at about 11 p.m., the accused came to her house for buying 'bidi'. Her husband was away on work. She along with her three children ran their family by maintaining a grocery shop. The appellant Raju Lohar came to her house in drunken condition. She was then sleeping with her children. The accused Pittar Kujur woke her up and entered into the room along with the other accused and started the violence. The appellant Raju Lohar beat her up mercilessly and they tore her wearing apparel. The accused beat her up brutally. After she shouted, her children started crying. While the other appellants forcibly caught hold of her hands and legs, the appellant Raju Lohar ravished her. After that they threatened her not to disclose the incident or else, they would kill her and her children. After completion of investigation, a charge-sheet was submitted by P.W. 4, the Investigating Officer. 3. After she shouted, her children started crying. While the other appellants forcibly caught hold of her hands and legs, the appellant Raju Lohar ravished her. After that they threatened her not to disclose the incident or else, they would kill her and her children. After completion of investigation, a charge-sheet was submitted by P.W. 4, the Investigating Officer. 3. On 17th August, 2015, the learned Additional Sessions Judge, Fast Track Court - I, Islampur, Uttar Dinajpur, framed charges against the seven accused persons/appellants under Sections 457, 376(2)(g), 323 and 506 of the Indian Penal Code and on 4th August, 2016 under Section 448 read with Section 120B of the Indian Penal Code, Section 323 read with Section 120B of the Penal Code, Section 376(2) (g) read with Sections 511/120B of the Indian Penal Code and under Section 511 of the Indian Penal Code coupled with the principal offences under the Penal Code. 4. The appellants pleaded not guilty and claimed to be tried. At the conclusion of the trial, the impugned order and judgment of conviction and sentence was passed against the appellants. 5. On a careful perusal of the evidence on record, it appears that PW 1 was the de facto complainant and the victim lady. During trial, she deposed only about the forcible opening of the door. She did not say anything about the incident of rape or assault that she had mentioned in her First Information Report. Although she failed to support the prosecution case, she was not declared hostile. PW 2 was the minor son of PW 1. He only deposed that the accused had asked them to open the door, but they did not open it. He went on to depose that no incident happened thereafter. He further deposed that on the next day a quarrel took place between the accused and her maternal uncle and that PW 1 received an injury on the backside of her head. He too was not declared hostile. Both PWs 1 and 2 accepted in their re-examinations that they had made statements before the learned Magistrate. However, they went on to say that they were tutored to make statements before the learned Magistrate. PW 3 was the brother of PW 1. He deposed that on the fateful night the accused asked to open the door, but the door was not opened. The accused then kicked at the door. However, they went on to say that they were tutored to make statements before the learned Magistrate. PW 3 was the brother of PW 1. He deposed that on the fateful night the accused asked to open the door, but the door was not opened. The accused then kicked at the door. Thereafter he came and protested when a quarrel took place. When PW 1 came to save him, she fell down. He too was not declared hostile. PW 4 was the Investigating Officer of the case. He had the victim lady as also the accused medically examined. After completion of investigation he filed the charge sheet. PW 5 was the Medical Expert who was brought in as the doctor who treated the victim lady could not be found for being cited as witness. He deposed from the report of the treating doctor that some injuries were found to have been caused on the victim lady including multiple abrasions over her back, left shoulder and anterior part of chest, below the breast on the right side and on the anterior aspect of both the knees. There was swelling seen over the left elbow. All the abrasions showed the effects of dragging and resistance. Marks of violence were seen on her body. Her hymen was found ruptured. Caruncuale myrithiform was seen. It was difficult to infer whether penetration had taken place or not. At last, the accused/appellants were examined under Section 313 of the Code. 6. Mr. Swapan Kumar Mallick, learned counsel appearing on behalf of the appellants, submitted as follows. The prosecution case was altered from the commission of an offence to the attempt to commit such offence. This would confuse any accused. The victim lady herself and her relatives did not support the prosecution case so far as the allegations of rape or attempt to rape and most other things are concerned. Despite this they were not declared hostile. As such, their evidence would be binding on the prosecution. The injury report, being Exhibit 5, was not proved by anyone who could have proved such document. Although the prosecution case was initially all about committing rape, the learned trial court had to scale it down arbitrarily to an attempt to commit rape. Despite this they were not declared hostile. As such, their evidence would be binding on the prosecution. The injury report, being Exhibit 5, was not proved by anyone who could have proved such document. Although the prosecution case was initially all about committing rape, the learned trial court had to scale it down arbitrarily to an attempt to commit rape. If read with the evidence of PW 1, it would mean that her brother PW 3 came to the scene on the next day and whatever incident as regards the assault that could come to light pertained to such next day. Relevant questions and several important aspects were not put to the accused in their examination under Section 313 of the Code. In fact, wrong questions were put to the accused. There is no evidence or other materials on record to sustain the conviction and sentence or, for that matter, to remand back the case for examination of the accused under Section 313 of the Code afresh. 7. Mr. Imran Ali, learned counsel appearing on behalf of the State, submitted as follows. The evidence adduced in the case clearly supported the prosecution case. PW 5 was brought in as a Medical Expert and Exhibit 5, the medical report, was placed through him. Even otherwise, no objection was given by the defence when Exhibit 5 was marked. Out of fear or for any other reason, the victim and her relations might have decided not to support the prosecution case in clear terms. But, the documentary evidence supported the prosecution. 8. I heard the submissions advanced on behalf of the parties and perused the evidence and other materials on record. 9. The thrust of the defence was that initially the prosecution case was all about commission of an offence of gang rape, but subsequently it had to be watered down to an attempt to commit such offence, among other things. It is true that initially the case was started, inter alia, with the allegation of Section 376 (2) (g) of the Penal Code. However, possibly due to the absence of any positive opinion about penetration, alternative/additional charges were also framed alleging attempts to commit such offences. There is nothing irregular in this. Moreover, since the alternative charges were framed before the commencement of the trial, there is no way in which the accused could have been misled or become confused with it. However, possibly due to the absence of any positive opinion about penetration, alternative/additional charges were also framed alleging attempts to commit such offences. There is nothing irregular in this. Moreover, since the alternative charges were framed before the commencement of the trial, there is no way in which the accused could have been misled or become confused with it. No prejudice was caused to the accused in this regard. 10. It is indeed true that although the victim lady PW 1 made clear allegations against the accused in the First Information Report and substantially supported the same in her examination under Section 164 of the Code, during trial she did not support the prosecution case. In fact, she went on to depose that she was tutored before the Learned Magistrate, while being cross-examined during trial. Nor did her son or other relatives support the prosecution case. Quite significantly, they were also not declared hostile by the prosecution. Turning of hostile can be because of several reasons, either because the new stand was the real truth or because the witnesses were threatened or won over or subjected to other undue influence or the like. One has to admit that when a victim does not support a case under Section 376 (2) (g) of the Penal Code, it assumes great significance. But, these have to be read in conjunction with the attending circumstances and juxtaposed with other relevant evidence and materials on record. It is also a settled law that if a witness does not support the prosecution case and is not declared hostile, the prosecution becomes bound by such evidence again. However, other circumstances, if any, would not be effaced from the record due to the failure of the prosecution to declare its witnesses hostile. 11. Admittedly, a statement of the victim was recorded soon after the incident under Section 164 of the Code of Criminal Procedure. Although the Learned Magistrate did not depose during trial, such statement was proved by the victim lady herself despite that the victim lady gave out during crossexamination that she was tutored to depose before the Learned Magistrate. She did not deny putting her signature on the said statement in which at a very early point of time, she clearly spelt out the glory details of the torture that she was subjected to. 12. She did not deny putting her signature on the said statement in which at a very early point of time, she clearly spelt out the glory details of the torture that she was subjected to. 12. Although the victim lady and her relatives did not support the prosecution case so far as commission of the gravest of offences alleged are concerned, they did substantially agree that at the dead of night on the fateful day, the accused came knocking at the door of the appellant trying to break it open. It was only the aftermath that was subsequently retracted by the victim and her relatives during trial. There is also evidence regarding subsequent interaction and intimidation by the accused on the following day. These go to show the desperate nature of the appellants and the influence they commanded in the area. Otherwise, no one would dare to go to the victim and threaten her. In the instant case it is not disputed that the accused came to the victim on the fateful night. There is also ample evidence to show that the accused tried to break open the victim's door and subsequently enter into an altercation on the next day over the last night's incident. 13. Pw 4, the Investigating Officer, deposed that he had the victim lady medically examined. PW 5 was a Medical Expert who was brought in as the doctor who treated the victim lady could not be found for being cited as a witness. He deposed from the report of the treating doctor about the injuries that the victim lady had suffered including multiple abrasions over her back, left shoulder and anterior part of chest, below the breast on the right side and on the anterior aspect of both the knees. There was swelling seen over the left elbow. All the abrasions showed the effects of dragging and resistance. Marks of violence were seen over her body. Hymen was found ruptured. Caruncuale myrithiform was seen. The medical evidence clearly supported the prosecution case. It was only the absence of a clear opinion about penetration that possibly prompted framing of the charges read with Section 511 of the Penal Code. Witnesses may lie, but documents do not. As regards the technical point regarding admissibility of this document i.e., Exhibit 5, it is true that the doctor who prepared the report could not be found. It was only the absence of a clear opinion about penetration that possibly prompted framing of the charges read with Section 511 of the Penal Code. Witnesses may lie, but documents do not. As regards the technical point regarding admissibility of this document i.e., Exhibit 5, it is true that the doctor who prepared the report could not be found. Nevertheless, the document was collected by the Investigating Officer and was explained by a Medical Expert. Most significantly, no objection was raised on behalf of the accused when the document was placed before the Court and used as an exhibit. Being a formal document that too of a scientific expert, the same can very well be used in a trial in view of Sections 293 and 294 of the Code. 14. The contention of the defence that certain relevant aspects were not put to the accused in their examination under Section 313 of the Code is to a certain extent correct. Medical evidence in respect of the injury report as explained by the Medical Expert was not put to the accused in clear terms. So was the case for Exhibit 4, the examination of the accused under Section 164 of the Code. The prejudice to the accused was thus implicit in not placing these aspects to them. However, this is not a very old case. But, the case involves allegations of commission of very grave offences. The examination of the accused took place in the middle of 2016 and the impugned judgment was also passed soon thereafter. The accused had also enjoyed the privilege of suspension of sentence since December 2016. Therefore, it will not be prejudicial to the accused if a direction is passed for a fresh examination of the accused under Section 313 of the Code. On the issue of remanding back a case for fresh examination of the accused under Section 313 of the Code, reliance is placed on the decision of the Hon'ble Apex Court in the case of Nar Singh Versus State of Haryana, 2015 1 SCC 496 . 15. I refrain from giving definite findings on the question of guilt of the accused appellants as I intend to remand back the matter for fresh examination of the accused. 15. I refrain from giving definite findings on the question of guilt of the accused appellants as I intend to remand back the matter for fresh examination of the accused. However, certain aspects of the case were discussed here only to prima facie assess whether it would at all be expedient to remand back the matter for examination of the accused afresh under Section 313 of the Code. Accordingly, the discussions on the merits of the case herein, being for such limited purpose, shall not come in the way of the learned Trial Court in independently assessing the evidence afresh. 16. In view of the above discussions and in the interest of justice, I set aside the judgment and order of conviction and sentence and remand back the case to the Learned Trial Court for a fresh examination of the accused under Section 313 of the Code and direct the Learned Trial Court to proceed from then on and pronounce a fresh judgment and order in accordance with law after hearing the arguments of the parties and assessing the evidence afresh. 17. It is reiterated that the Learned Trial shall not be swayed by any observation made by this Court on merits as the same was only for deciding the issue whether the examination of the accused under Section 313 of the Code was required to be held afresh or not. 18. With these observations, the appeal is disposed. 19. Let a copy of this judgment along with the Lower Court records be sent down to the learned Trial Court forthwith by a Special Messenger for information and necessary action. 20. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.