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2022 DIGILAW 147 (CAL)

Tinku Sk. v. State Of West Bengal

2022-01-31

BIBEK CHAUDHURI

body2022
JUDGMENT 1. The instant appeal is directed against the judgment and order of conviction and sentence dated 27th January, 2017 passed by the learned Additional Sessions Jude, 1st Fast Track Court at Berhampore in Sessions Case No. 252/2009 corresponding to Sessions Trial No. 3(02)/2011 thereby convicting the appellant for committing offence under Section 376 read with Section 511 of the Indian Penal Code and sentencing him to suffer simple imprisonment for three years and to pay fine of Rs.10,000/-, in default, to suffer simple imprisonment for six months. On 19th August, 2008, the de facto complainant lodged a complaint before the learned Chief Judicial Magistrate, Murshidabad under Section 156 (3) of the Code of Criminal Procedure stating, inter alia, that she is a widow. She has been running her livelihood selling cloths. On 17th August, 2008 at about 6 p.m. she was returning to her house after purchasing some printed saree from the shop of one Morjem Hossein. On the way to her house when she reached Goatipara near a banana garden, the accused caught hold of her. There was a scuffling between the de facto complainant and the accused and the saree which she was purchased from the shop of Morjem Hossein fell from her hand scatteredly on the road. With the intention to commit rape, the accused pressed the mouth of the de facto complainant and forcibly took her inside the banana garden. Then, the accused made her lie down on the ground and unrest her. When he attempted to rape her, the de facto kicked the accused violently on her abdomen and somehow left the place and rushed towards the road. She raised hue and cry which attracted many people near the spot. Seeing them, the accused fled away inside the banana garden. The de facto complainant informed the incident to the local Police Station but police did not take any action against the accused. The learned Chief Judicial Magistrate upon receiving complaint sent the same to the local Police Station directing the Officer-in-Charge to start a specific case treating the same as FIR. From the endorsement made in the said complaint, it is ascertained that Police received the complaint on 15th September, 2008 and started Daulatabad Police Station Case No. 66/2008 dated 15th September, 2008 under Sections 376/511 of the Indian Penal Code. From the endorsement made in the said complaint, it is ascertained that Police received the complaint on 15th September, 2008 and started Daulatabad Police Station Case No. 66/2008 dated 15th September, 2008 under Sections 376/511 of the Indian Penal Code. The materials-on-record further reveals that on completion of investigation Police submitted charge-sheet against the accused under Sections 376/511 of the Indian Penal Code. After the case being committed to the Court of the learned Sessions Judge, Murshidabad, it was transferred to the 1st Fast Track Court of the learned Additional Sessions Judge at Berhampore, Murshidabad for trial and disposal. The learned Trial Judge framed charge against the accused under Sections 376/511 of the Indian Penal Code as the accused pleaded not guilty trial of the case commenced. In course of trial, prosecution examined 10 witnesses. No witness was, however, examined on behalf of the accused/defence. It is, however, ascertained from the examination of the accused under Section 313 of the Code of Criminal Procedure that the accused had taken the plea of denial of the prosecution case. The learned Trial Judge on due consideration of evidence on record held that the prosecution was able to prove the charge against the accused and convicted him for committing offence under Sections 376/511 of the Indian Penal Code and sentenced him accordingly. The said judgment and order of conviction and sentence is assailed in the instant appeal. At the outset, it is pertinent to record that the de facto complainant deposed during trial of the case as P.W. 1. The prosecution, however, could not examine the said Morjem Hossein who was cited as witness no. 1 in the petition of complaint. P.W. 2, Siraj Sk., P.W. 3, Kamal Sk., P.W. 4, Pintu Sk. did not support the prosecution case and they were declared hostile by the prosecution. P.W. 5, Mafizul Sk. was tendered by the prosecution for crossexamination. However, the said witness was not cross-examined by the defence. P.W. 6, Dr. S. K. Mondal and P.W. 7, Dr. S. K. Kanjilal were retired Medical Officers attached to Berhampore District Hospital who medically examined the accused and the de facto complainant respectively. P.W. 9, Abu Bakkar Mondal is the father of the de facto complainant. P.W. 8 is the first Investigating Officer and P.W. 10, Badar Sk. is a resident of village Ghasipur. S. K. Kanjilal were retired Medical Officers attached to Berhampore District Hospital who medically examined the accused and the de facto complainant respectively. P.W. 9, Abu Bakkar Mondal is the father of the de facto complainant. P.W. 8 is the first Investigating Officer and P.W. 10, Badar Sk. is a resident of village Ghasipur. It is ascertained from the evidence of P.W. 1 who is the de facto complainant and victim of the case that on the date of occurrence at about 6 p.m. she was returning her home after purchasing saree. She also stated that she used to carry on business of selling saree at the relevant point of time. In her evidence she stated on oath that when she reached Goatipara near a banana garden, accused Tinku Sk. forcibly took her away inside the said banana garden. Then he forcibly untied her saree and laid her down on the ground. Thereafter, the accused was trying to commit some immoral act upon her. The de facto complainant somehow kicked him on his abdomen and left the place running towards the road. When she reached the road, she saw 2/4 persons on the road. She narrated the incident to them. The said people told her to go to her house and assured her that similar type of incident would not take place in future. The de facto complainant returned to her house and narrated the incident to her parents. Then she went to the Police Station and informed the incident to Police. But Police did not take any action against the accused. Then she lodged a petition of complaint under Section 156(3) of the Code of Criminal Procedure against the accused. In cross-examination, suggestion was put to the de facto complainant that no such incident took place with her. The de facto complainant, however, denied the said suggestion. It is already recorded that almost all other witness except the father of the de facto complainant did not support the prosecution case. They were declared hostile. The evidence of P.W. 3 is absolutely contradictory to the prosecution case. According to P.W. 3, on the date of occurrence at about 5/6 p.m. He was returning from village Ghasipur. Accused Tinku Sk. was also going with him. Both of them met the de facto complainant on the way. The de facto complainant asked Tinku Sk. The evidence of P.W. 3 is absolutely contradictory to the prosecution case. According to P.W. 3, on the date of occurrence at about 5/6 p.m. He was returning from village Ghasipur. Accused Tinku Sk. was also going with him. Both of them met the de facto complainant on the way. The de facto complainant asked Tinku Sk. where he was going, Tinku replied that he was going to their village. At this, the de facto complainant proposed him to go to the village with her. Both of them then went away. Thus, except the de facto complainant no other witness corroborated the incident that took place at village Goatipara. I am not unmindful to note that seeking corroboration of an incident of rape or attempt to rape is adding to the miseries of the de facto complainant. But it is expected that the witnesses who saw the de facto complainant running towards the road from banana garden shouting, would corroborate the said fact during trial of the case. However, not a single witness corroborated the evidence of the de facto complainant in their deposition. The father of the de facto complainant was not present near the place of occurrence. He heard the incident from the de facto complainant. Therefore, his evidence being in the nature of hearsay cannot be of any help in favour of the prosecution. The learned Trial Judge convicted the accused relying on the solitary evidence of the de facto complainant. According to the learned Trial Judge, the de facto complainant/victim is not an accomplice of an offence, her evidence should be taken into consideration at higher pedestal than the evidence of even an injured witness. If the evidence of the victim is trustworthy, cogent and unblemished, conviction can be based on the basis of solitary evidence of the prosecutrix. In support of his contention he refers to the following decisions of the Hon'ble Supreme Court:- (i) State -Vs.- Chandra prokash, (1990)1 SCC 550 ; (ii) State of Punjab -Vs.- Gurmit Singh, (1996) 2 SCC 384 . In support of his contention he refers to the following decisions of the Hon'ble Supreme Court:- (i) State -Vs.- Chandra prokash, (1990)1 SCC 550 ; (ii) State of Punjab -Vs.- Gurmit Singh, (1996) 2 SCC 384 . It is no longer res integra that while evaluating the evidence of a prosecutrix in a case of rape or attempt to rape, the Court must remain alive to the fact that in a case of rape, no self respecting woman will come forward in a Court just to make a humiliating statement against her son such as involvement in the commission of rape on her. The evidence of a prosecutrix should not be suspected and should be believed. If her evidence is believable and free from any glaring contradiction, no corroboration is necessary. [See Hon'ble Supreme Court in the case of Gurmit Singh (supra), Ranjit Hazarika -Vs.- State of Assam, 1998 (8) SCC 635 and Raju -Vs.- Sate of M. P., (2008) 15 SCC 133 ]. In the case of Raju -Vs.- State of Madhya Pradesh reported in (2008) 15 SCC 133 , it is observed and held by the Supreme Court in paragraphs 11 and 12 as under:- 11. 'It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.' 12. 'Reference has been made in Gurmit Singh's case reported in 1996 (2) SCC 384 ; 1996 SCC Crl. 316 to the amendments in 1983 to Sections 375 and 376 of the Indian Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. 316 to the amendments in 1983 to Sections 375 and 376 of the Indian Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is, however, significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined'. In the subsequent decision of the Hon'ble Supreme Court in the case of Rai Sandeep @ Deepu -Vs.- State of NCT of Delhi, reported in (2012) 8 SCC 21 , the Hon'ble Supreme Court had the occasion to consider who can be said to be 'sterling witnesses'. It is observed and held as under :- 22. 'In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version an be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged'. In case of Krishan Kumar Malik -Vs.- State of Haryana reported in 2011 (7) SCC 130 , it is observed and held that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. Bearing the above-mentioned principles as to the appreciation of evidence, if we consider the instant case, it is found that the de facto complainant failed to produce any document to prove that she used to deal with saree business at the relevant point of time. Such evidence was absolutely necessary because there would not have been any occasion to go through the road near Goatipara banana garden on the date of occurrence at about 6 p.m. Had she not gone to the shop of one Morjem Hossein to purchase saree? Secondly, no witness on behalf of the prosecution with whom the de facto complainant met on the road immediately after the occurrence supported the prosecution case. Thirdly, it is claimed by the prosecutrix that she lodged a complaint against the accused on the very date of occurrence. However, she could not produce any copy of the FIR or general diary in support of her claim. The alleged incident took place on 17th August, 2008. The de facto complainant lodged petition of complaint before the learned Chief Judicial Magistrate on 19th August, 2008. There is no document to show that the de facto complainant informed the matter to the higher officers of the Police Force. Even the petition of complaint under Section 156(3) of the Code of Criminal Procedure was not supported by affidavit. Last but not the least, according to the de facto complainant, she was dragged inside the banana garden by the accused. Surprisingly enough, she did not sustain any injury on her body when she was dragged by the accused. In view of such lacuna in the prosecution case, the learned Trial Judge committed gross error placing reliance on the solitary testimony of the de facto complainant. For the reasons stated above, I have no other alternative but to hold that the judgement and order of conviction and sentence passed by the learned Additional Sessions Judge, 1st Fast Track Court at Berhampore, Murshidabad in Sessions Case No. 252/2009 corresponding to Sessions Trial No. 3(02)/2011 cannot be sustained. Accordingly, the instant appeal is allowed on contest, however, without cost. The accused is acquitted from the charge, set at liberty and release from his bail bond.