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2022 DIGILAW 355 (CAL)

Ariful Haque Mondal v. State Of West Bengal

2022-03-07

BIBEK CHAUDHURI

body2022
JUDGMENT Bibek Chaudhuri, J. - In a case under Section 376 of the Indian Penal Code (hereafter 'IPC' for short) it is accepted principle of appreciation of evidence that the testimony of the victim is vital and unless there are compelling reasons which necessitated looking for corroboration of her statement, the court should find no difficulty to act on the testimony of a victim in an offence of sexual abuse alone to convict the accused where her testimony inspires confidence. In other words, if the evidence of the prosecutrix is wholly trustworthy, cogent, believable and unblemished, conviction can be based on the sole testimony of the victim. 2. Because in an offence of rape, the evidence of the prosecutrix cannot be equated with the evidence of that of an accomplice. She is an injured witness, nay, better than an injured witness and the value of appreciation of evidence should be placed at the highest pedestal because with physical injury she suffers from agonising mental trauma through out her life. However, the above principal of appreciation of evidence of a prosecutrix' is only applicable where the prosecutrix evidence is of 'sterling quality'. In Rai Sandeep v. State (NCT of Delhi) reported in (2012) 8 SCC 21 the Hon'ble Supreme Court described who is a witness having sterling quality in the following words:- '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. 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. 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 can 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.' With the above introduction, let me now deal upon the instant appeal. 2. In Sessions Trial No.31(7) of 2016, the appellant was convicted by the learned trial court for committing offence under Section 376/342 of the Indian Penal Code. For the offence under Section 376 of the IPC, the appellant was sentenced to suffer rigorous imprisonment for seven (7) years with fine and default clause. The appellant was further sentenced to undergo simple imprisonment for one (1) year with fine and default clause for the offence under Section 342 of the IPC. 3. For the offence under Section 376 of the IPC, the appellant was sentenced to suffer rigorous imprisonment for seven (7) years with fine and default clause. The appellant was further sentenced to undergo simple imprisonment for one (1) year with fine and default clause for the offence under Section 342 of the IPC. 3. It is found from the Lower Court Record that during trial, prosecution examined twelve witnesses. Amongst them, the defacto complainant is the prosecutrix herself. PW-2 Jahanara Bibi is the Aunt, PW-3 Jamuna Mondal is the mother and PW-5 Mujibar Mondal is the father of the prosecutrix. PW-8 Dr. Sundarlal Hembram is the Medical Officer who held medico legal examination of the prosecutrix. The remaining witnesses produced on behalf of the prosecution were declared hostile. PW-12 is the investigating officer of the case. 4. It is needless to say that the evidence of PW-2, PW-3 and PW-5 is of little importance in the instant case because their evidence is in the nature of hearsay. Therefore, it is the prosecutrix whose evidence not only matters a lot but only material evidence. 5. The prosecutrix was examined as PW1 in the trial court. In her evidence she deposed on oath that on 21st February, 2016 at about 2 pm she was returning from her paternal home to her matrimonial home after taking bath. On her way to matrimonial home, the appellant suddenly caught hold of her and dragged her to his house forcibly. Then he took her to a room and committed rape upon her. Thereafter, the accused left the house keeping her inside the room under lock and key. She lodged a written complaint in the jurisdictional P.S on the very date of occurrence. Her statement was also recorded under Section 164 of the Code of Criminal Procedure. She was also examined by the Medical Officer and the report of Medico Legal Examination was also exhibited during the trial of the case. During cross examination the witness stated that the incident took place in the rest room of the accused which is not within his dwelling house. The rest room of the accused is situated in between the paternal home and matrimonial home of the defacto complainant/prosecutrix. 6. Mr. During cross examination the witness stated that the incident took place in the rest room of the accused which is not within his dwelling house. The rest room of the accused is situated in between the paternal home and matrimonial home of the defacto complainant/prosecutrix. 6. Mr. Bikash Ranjan Bhattacharya, learned Senior Counsel for the appellant submits that the de facto complainant herself admitted in her cross examination that houses of Sabur Mallick, Manir Mallick, Sahajahan Khan, Abutaleb Mondal and Shaker Khan are situated in the vicinity of the place of occurrence. It is also ascertained from her cross examination that there is one submersible pump and a pond near her matrimonial home and many villagers of their village take bath in that pond. Thus, it is contended by Mr. Bhattacharya that the de facto complainant did not state any reason as to why she had to go to her paternal home on the date of occurrence to take bath. 7. The de facto complainant further stated in her cross examination that when she was dragged to the room of the accused forcibly she sustained injury on her person. But the de facto complainant did not get herself examined by any Medical Officer to prove that she sustained injury while she was dragged by the accused towards his room. 8. It is further urged by Mr. Bhattacharya that the conduct of the de facto complainant before in course of and after the alleged incident is entirely unnatural. According to de facto complainant, the accused committed rape upon her against her consent forcibly. However, she did not try to resist the accused. She also did not raise hue and cry at the time of commission of such offence. Only after the accused left the room putting her inside under lock and key on the entrance door, the de facto complainant raised alarm for help. According to PW1 after about half an hour, one Noor Ali Mallick came to the place of occurrence hearing her cry. She told Noor Ali that accused had fled away keeping her locked inside the said room. Then Noor Ali left the place to find out the accused. He found the accused at the bus stand and took key of the lock from him. Thereafter the said Noor Ali opened the door of that room and the de facto complainant came out. Then Noor Ali left the place to find out the accused. He found the accused at the bus stand and took key of the lock from him. Thereafter the said Noor Ali opened the door of that room and the de facto complainant came out. It is pointed out by Mr. Bhattacharya that the de facto complainant did not state to the said Noor Ali that the appellant sexually harassed her. 9. The said Noor Ali Mallick was examined during trial as PW4. In his evidence he declined of having any knowledge about the incident dated 21st February, 2016. 10. It is also pointed out by Mr. Bhattacharya that the evidence of the de facto complainant suffers from contradiction with the written complaint lodged by her on the date of alleged incident at about 8.05 pm. In the written complaint the de facto complainant stated that the accused wrongfully confined her in the room and locked the main door and fled away. She raised hue and cry which attracted local people and they broke open the door of the said room and recovered her. The statement made in the written complaint, does not corroborate with the evidence of PW1. It is further submitted by Mr. Bhattacharya that PW1 was medically examined on the alleged date of occurrence. The Medical Officer did not find any injury in her private part. It is submitted by Mr. Bhattacharya that PW1 is a married lady. From her statement recorded under Section 164 of the Code of Criminal Procedure, it is ascertained that her marriage was held about 13 years back from the date of the incident. Therefore, there may not be any injury in the private part of the victim. However the prosecution case is that the victim was forcibly raped by the accused. In such a case it can be presumed that there was strong resistance by the victim at the time of occurrence. Unfortunately enough the Medical Officer did not find any injury in any part of her body. The statement of the PW1 in course of the evidence that she received injury when the accused forcibly dragged her to his room also proves to be false, because the Medical Officer did not find any such injury in her person. The accused was also medically examined on 22nd February, 2016. The statement of the PW1 in course of the evidence that she received injury when the accused forcibly dragged her to his room also proves to be false, because the Medical Officer did not find any such injury in her person. The accused was also medically examined on 22nd February, 2016. But the Medical Officer did not find any mark of injury, like nail mark, scratches etc on his body. In the written statement the victim stated her age as 25 years. If she offered resistance to the accused, there was every possibility that the accused sustained some injuries on her person. 11. I have independently perused the evidence on record. I am in agreement with the submission made by My Bhattacharya, learned Senior Counsel on behalf of the appellant that evidence of the prosecutrix suffers from vital contradictions. When she was allegedly dragged by the accused to his rest room she did not raise any hue and cry. She also did not raise any hue and cry when she was allegedly abused by the accused. Only after the accused left the room putting lock on the door of the room, the victim raised a hue and cry from inside. According to the victim Noor Ali Mondal @ Noor Ali Mallick came to the place of occurrence hearing her hue and cry. Surprisingly enough neighbouring people did not come to rescue her from the room of the appellant hearing her cry. Noor Ali Mondal did not support the prosecution case. It is highly improbable that an offender of rape after committing such offence would keep the prosecutrix confined in his room under lock and key and roam around the bus stand of the village. On the contrary, it is most natural that the accused would flee away after committing such offence and he would not confine the victim lady inside the room under lock and key to create evidence against him. Medico Legal Examinations of both the victim and the accused do not suggest commission of rape. 12. In view of such evidence of the prosecutrix I am not in a position to rely on the solitary testimony of the prosecutrix in support of the charge under Section 376 of the IPC. The evidence of PW1 is not of starling quality. Therefore, conviction under Section 376 of the IPC cannot be based on the solitary evidence of the prosecutrix. 13. The evidence of PW1 is not of starling quality. Therefore, conviction under Section 376 of the IPC cannot be based on the solitary evidence of the prosecutrix. 13. The learned trial judge convicted the appellant on the basis of certain judgments delivered by the Hon'ble Supreme Court. The decisions of the Hon'ble Supreme Court in S. Ramakrishna vs. the State, (2008) 11 JT 635 lays down the principle of appreciation of the evidence of a prosecutrix of a sex offence. It is held by the Hon'ble Supreme Court that the victim of an offence of rape cannot be equated with an accomplice. She is a competent witness under Section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. 14. In Rajindar vs. State of H.P, AIR 2009 SC 3022 , the Hon'ble Supreme Court remains that in the context of Indian culture a victim of sexual offence would not falsely implicate an innocent person. 15. However, in almost all the decisions arising out of the cases of sexual offence, it is held by the Apex Court that when the evidence of the victim of sexual violence does not suffer from basic infirmities and her evidence inspires confidence of the court, is worthy of credence and unblemished, conviction can be based on solitary testimony of victim. Whether the evidence of the victim is truthful, trustworthy and unblemished can only be decided by proper appreciation of evidence. 16. The evidence of the prosecutrix does not inspire confidence in the mind of this court. Therefore, the learned trial judge committed error in convicting the accused under Section 376 of the IPC. 17. So far as the conviction under Section 342 of the IPC is concerned, this court is of the view that there is absolutely no evidence that the accused wrongfully confined the victim in his room under lock and key. Beside the victim lady there is no independent witness to support the case of the prosecution with regard to the charge under Section 342 of the Indian Penal Code. I have already referred that the only independent witness in support of the charge under Section 342 of the IPC was Noor Ali Mallick. Beside the victim lady there is no independent witness to support the case of the prosecution with regard to the charge under Section 342 of the Indian Penal Code. I have already referred that the only independent witness in support of the charge under Section 342 of the IPC was Noor Ali Mallick. He was declared hostile by the prosecution in view of such circumstances, I have no other alternative but to hold that the learned trial judge also committed error in convicting the appellant under Section 342 of the IPC. 18. As a result the instant appeal is allowed on contest. 19. The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Fast Track 2nd Court, Paschim Medinipur in Sessions Trial No.31(07) of 2016 is set aside. 20. The appellant is acquitted from the charge and discharge from his bail bond. 21. Let a copy of this judgment be sent to the court below along with the lower court record.