Calcutta High Court (Appellete Side)
Tapas Routh And Another vs The State Of West Bengal on 21 March, 2013
Author: Patherya
Bench: Asim Kumar Ray, Patherya
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present: The Hon'ble Justice Nadira Patherya
And
The Hon'ble Justice Asim Kumar Ray
C.R.A. No. 154 of 2006
Tapas Routh and Another ... Appellants
-Vs-
The State of West Bengal
For the Appellants : Mr. Milon Mukherjee
Mr. Sourav Chatterjee
Mr. Rudradipta Nandy
For the State : Mr. Binay Panda
Mr. S. Mahapatra
Heard on : 20.03.2013 & 21.03.2013
Judgment on : 21.03.2013
Patherya, J.:
This is an Appeal filed from the Judgment and order of conviction dated 14th February, 2006 and sentence dated 15th February, 2006 passed by the Additional Sessions Judge, Additional Court, Contai, Purba 2 Medinipur in Sessions Trial No.III/January/2001 corresponding to G.R. Case No.241/1997.
By the said order of conviction and sentence, the appellants were sentenced to 10 years rigorous imprisonment each and to pay a fine of Rs.5000/- each, in default to suffer rigorous imprisonment for one year for the offence punishable under Section 376 I.P.C. and to suffer rigorous imprisonment for one year each and to pay a fine of Rs.500/- each, in default to suffer rigorous imprisonment for one month for the offence punishable under section 342 I.P.C. The said sentence would run concurrently.
Being aggrieved by the said order of conviction and sentence this appeal has been filed by the appellants.
The case of the prosecution is that while the victim was proceeding to the ration shop on 28th September 1996 at 8.00 a.m. she was accosted by a person who made her smell something which numbed her senses, as a result whereof she became senseless. When she regained her senses, she found herself in a lodge at Digha the name of which was disclosed to her by a boy. She was detained at that lodge till 30th September, 1996. Thereafter, she was taken to Abakash Lodge whereat she was detained till 2nd October 1996. On 3rd October, 1996 with the help of the Manager of Abakash Lodge she managed to escape from the clutches of the appellants, left Digha and reached Calcutta. Both the lodges were at Digha. An F.I.R. was filed on 3rd 3 April 1997 and on the basis thereof Digha Police Station Case No.10/97 dated 3.4.97 under Sections 341/323/376/34 I.P.C. was registered for investigation. On completion of investigation a Chargesheet was submitted under the sections mentioned above against the appellants.
The Learned Sub-divisional Judicial Magistrate, Contai, on receipt of the Chargesheet took cognizance of the offence and committed the case to the Court of Sessions. The Sessions Judge, Purba Medinipur on receiving the case records transferred the same to the Trial Court where the case was registered as Sessions Trial No.III/January/2001. Charges were framed against the appellants under Sections 342/323 and 376 read with Section 34 I.P.C. Those charges were read over and explained to the appellants and on pleading not guilty the case was set for trial.
In all 12 (twelve) evidence were examined by the Prosecution and no evidence was adduced on behalf of the defence.
After perusing the evidence on record-both documentary and oral and examining the appellants under Section 313 CrPC on 14th February 2006 an order of conviction was passed against the appellants, and on 15th February 2006 the appellants were sentenced under Section 376 and 342 I.P.C. The appellants were however acquitted under Section 323 I.P.C. Hence, this Appeal.
Counsel for the appellant submits that the date of occurrence was 28th September 1996 and the offence continued till 2nd October 1996. 4 Admittedly, on 3rd October 1996 the victim returned to Calcutta. But the F.I.R. was filed on 3rd April 1997 and in the registered F.I.R. there is no reason assigned for the delay in lodging of the F.I.R. The charges have been framed under Sections 342, 323 &. 376 I.P.C in respect of Chalantika Lodge and under Sections 376 and 376/34 I.P.C. in respect of Abakash Lodge. The appellants have been acquitted of the charge framed under Section 323 I.P.C. Therefore, it is only in respect of the offence committed under Sections 342 and 376 I.P.C. at Chalantika Lodge and under Sections 376 and 376/34 I.P.C. at Abakash Lodge for which the appellants were found guilty.
There is no charge under Section 342 I.P.C. in respect of Abakash Lodge. In fact the Charge should have been framed under Section 376 (2)
(g) I.P.C. instead of the Charge under Section 376 I.P.C. simpliciter.
That there was consent by the victim for her stay at Abakash Lodge will be evident as no charge under section 342 I.P.C. has been framed against the appellants in respect of Abakash Lodge. The only Charge framed in respect of Abakash Lodge is under Section 376 and 34 I.P.C.
P.W.1 and P.W.2 have been declared hostile and therefore their evidence need not be looked into.
P.W.3 is the doctor who examined the appellant no.1, on 4.4.1997, but found that there was no violence inflicted on her. In fact Amal Das, the 5 appellant was not subjected to any medical examination to ascertain his potency but nonetheless he has been convicted and sentenced.
P.W.4 is the Magistrate who recorded the 164 statement. P.W.5 is the injured witness namely, the victim and from her evidence what emerges is that due to smell of scent she lost her consciousness and was removed which she came to know once she regained consciousness at 7 p.m. on the date of the incident. She came to know from a little boy who was working in the place where she was first confined i.e. Chalantika lodge where she was brought by a blue ambassador car. This she was informed by a boy aged about 10/12 years but he has not been examined. In the F.I.R. also there is mention of the blue car.
In fact the scribe of the F.I.R. who is one Amiya Dutta was not examined.
P.W. 5, the victim in her evidence has stated that the windows of the hotels where she was kept could be closed from inside the room but no attempt was made by her to open the said windows from inside or to flee. Therefore, the case of wrongful confinement is unbelievable.
The I.O. (P.W.7) has also stated that he did not collect the medical report of P.W.2 and did not send him for medical examination. He also stated that nothing incriminating was found against the appellant no.2 in 6 the Chargesheet. Therefore, the impugned order be set aside against the appellant no.2.
P.W.8 is the owner of A section of Chalantika Lodge where the appellant No.1 worked.
P.W.9 is the owner of B Section of Chalantika Lodge where the appellant No.2 worked.
From a look at the Sketch Map prepared by P.W. 12 it will appear that the names of either lodge has not been specified. Therefore the P.O. has not been fixed.
P.W.5 has specifically stated in her evidence that her parental house was at Contai Sub-Division and Digha falls in such Subdivision. Therefore, for the prosecutrix not to know of her whereabouts is unbelievable.
During the time of the alleged confinement the victim stayed in Digha for 10/12 days in one set of clothing which were blood stained but such wearing apparels or clothing has not been seized by the Investigating Officer. It was with the help of the Manager that the victim left Abakash Lodge on 3rd October 1996. If the victim could escape on 3rd October 1996 she should have done so much earlier with the help of the same Manager but there is no charge in respect of wrongful confinement in Abakash Lodge. In fact the Manager has also not been examined by the prosecution or the I.O. The fact that the victim was tied to the wooden cot has been 7 disbelieved as the accused persons have been acquitted under section 323 I.P.C. It was a duty cast on the prosecution to prove its case, which the prosecution has miserably failed to do so and therefore the order of conviction and sentence be set aside.
Counsel for the State in opposing the appeal submits that P.W.5 in her evidence has categorically stated that she was subjected to sexual abuse without her consent. The incident was reported by her to the boarders of Chalantika Lodge and to the Manager of Abakash Lodge.
The victim has narrated in her evidence in detail the sexual offence committed on her and that she was wrongfully confined at Chalantika Lodge and therefore the evidence of the prosecutrix ought to be given great importance as held in A.I.R. 2006 S.C. 381.
P.W.6, husband of the victim has also stated in his evidence that by registered post a complaint was lodged with the Digha Police Station on 15.11.1996 and a diary was also lodged at Beliaghata P.S. on the return of the victim. P.W.6 had purchased medicines for the victim and administered them to his wife. The treatment was done by one Dr. S.K. Hajra and not in any hospital. The incident was informed to P.W.6 by the victim after 3 to 4 days of the incident at his house.
P.W.8 is the owner of A Section of Chalantika Lodge and from the Salary Register produced it appears that the appellant no.1 was working in 8 the said lodge. Between 26th September 1996 and 30th September 1996 the appellant no.1 was on leave.
P.W.9 who is the owner of Block 'B' of Chalantika Lodge. He produced the acquittance roll for the first time in Court. This related to the second appellant. The acquittance roll had not been produced before the I.O.
P.W.12, the I.O. has admitted that no sketch map was prepared for Abakash Lodge and in the Sketch Map prepared by him there is no mention of Chalantika Lodge. Non-mentioning in the Sketch Map of the Lodge by name will not disprove the case of the prosecution as the I.O. in his evidence has specifically stated that the place of occurrence was Chalantika Lodge. Therefore, the place of occurrence has been identified.
That S.K. Hajra treated the victim is also evident from the evidence of P.W.6 and therefore it cannot be said that for the first time the victim was medically examined on 4.4.1997.
Therefore the order of conviction and sentence be upheld. Having considered the submissions of the parties, the charge levelled against the appellants was initially under Sections 342, 376 and 323 IPC in respect of Chalantika Lodge and 376/34 IPC in respect of Abakash Lodge. In respect of the Charge under Section 323 I.P.C. the appellants have been acquitted. Therefore, that leaves us with the charge under 9 Sections 376 and 342 I.P.C. There is no Charge under Section 342 I.P.C. framed against the appellants in respect of Abakash Lodge.
The appellant no.2 was not medically examined as will appear from the evidence of P.W.7 (I.O.) who has further gone to state along with P.W. 12 (I.O.) that the medical report of the appellant no.2 was not collected. In fact P.W.7 did not find anything incriminating against the appellant no.2 in the Chargesheet. Therefore without the appellant no.2 being medically examined, the order of conviction and sentence passed against him cannot stand and is accordingly set aside.
Therefore, this leaves us with the appellant no.1.
P.W. 5, the victim has stated in her evidence that she was wrongfully confined by the appellant No.1 at Chalantika Lodge. She has also stated in her cross-examination by the defence for the appellant No.l that the windows of the said hotels could be closed from inside the room where she was staying. Therefore, she could have opened the said windows from inside. But no such attempt was made by her either in Chalantika Lodge or in Abakash Lodge, from where the assistance of the manager was taken to escape. She has not mentioned of any attempt made by her to escape from Chalantika Lodge. The victim has also stated that she has read upto Class- VIII and that she raised a hue and cry in both the said hotels. Boarders came to her rescue but they could not enter or help her as the doors were closed. Doors can be closed in two ways either from outside or from inside. If it was closed from inside, it was well within the powers of the victim to 10 open the doors and if it was closed from outside it could have been broken by the boarders who came to her rescue. Therefore, since 20th September, 1996 to 30th September, 1996 no attempt was made by the victim to flee from the clutches of the appellants or from the said lodge and although initially we were not inclined to deal with the term under Section 342 I.P.C. but in the light of such evidence we cannot but hold that even the charge under Section 342 I.P.C. was not established by the prosecution. Digha is situated in the Contai Sub-division of East Midnapore commonly known as Purba Midnapore. P. W. 12 in his evidence has stated that he went to Contai sub-divisional Hospital to get the medical examination report of the appellant No.2. Therefore, the Contai Sub- divisional Hospital would cover the area of Digha. The victim has stated in her evidence that her paternal house was at Palpara, P.S. Patashpur under Contai Sub-division and that she after marriage used to go to her father's house. If that be so it is unlikely that the victim will not know the place where she was brought by the appellants. Therefore, to believe the victim that she never came to Digha prior to the incident is unbelievable.
The date of incident was between 20th September, 1996 to 2nd October, 1996. On 3rd October, 1996 admittedly the victim escaped. But the F.I.R. was filed only on 3rd April, 1997 and no reason has also been assigned nor any explanation given for such delay. Therefore, in the instant case delay in filing the F.I.R. will be fatal as the incident occurred on and from 28.9.1996 and continued till 2.10.1996. The victim returned to her 11 home on 3rd October, 1996, therefore the F.I.R. could have been filed anytime after 3rd October, 1996. Instead the same was filed on 3rd April 1997. No reason has also been assigned for the delay. The victim in the instant case is also not a minor. On the contrary the victim is a married lady and a major and the reason for the delay of 6 months remains unexplained.
While P.W.6, the husband of the victim has stated that medicines were purchased by him for his wife and that she was treated by one private doctor namely, Doctor S.K. Hajra. For what she was treated is not known. This was the first time when the victim was being administered medicines and no document in respect thereof has been exhibited. The next medical examination has been undertaken on 4.4.1997 after the filing of the F.I.R. But no injury or violence due to sexual abuse was found on the victim as will be evident from Exhibit-5. Therefore, no incriminating evidence has been found against the appellant No.1.
The boy aged 10-12 years who entered the room of the victim in Chalantika Lodge disclosed to her that she was taken to the lodge by a blue colour ambassador. But the boy has not been examined. The manager who helped the victim to flee from Abakash Lodge has also not been examined and it is quite possible that in the event the said two persons if examined their evidence would have gone against the case of the prosecution. No F.I.R. was filed on 4th October, 1996 i.e., immediately on return of the victim. Although P.W.6 has stated in his evidence that he sent a complaint 12 to Digha Police Station by registered post on 15.11.1996, P.W.12 has denied receipt thereof. P.W.6 has stated in his cross-examination that though he lodged a diary at Beliaghata P.S. but he did not remember the date on which it was lodged. Later in the cross-examination he has said after 3 to 4 days of the incident his wife, the victim narrated the incident to him and he did not lodge any information with Beliaghata P.S. or complain to Digha P.S. Therefore the evidence of P.W.6 regarding the filing the F.I.R. by registered post or otherwise prior to 3.4.1997 cannot be accepted. In fact the F.I.R. which was sent by registered post on 15.11.1996 according to P.W.6, the husband, cannot be believed in view of the evidence of I.O., P.W.12 who has categorically stated that he did not receive it.
From a reading of the medical examination Report of the victim (Exhibit 5) no injury was found in the private parts of the victim. The victim in her cross-examination has stated that she tried to resist the appellants from committing forcible rape upon her by placing her two thighs together and it was because of such forcible sexual abuse that her private parts were injured and blood was coming out. She had also bitten the appellants who tried to commit forcible sexual abuse upon her. She had resisted them with her two hands and in fact blood was coming out from the cheek of the appellants. If this be true then violence was inflicted on her and some sign of violence would have been detected in her private parts. But this does not emerge from a reading of the medical report. No bruise has also been found on her.
13
Another very important issue that needs to be considered in this appeal is the fixing of the P.Os. Admittedly, there were two. Chalantika Lodge and Abakash Lodge. P.W.12 in his evidence has stated that he started the investigation and prepared the sketch map.
According to him, no sketch map of Abakash Lodge was prepared. Therefore, Abakash Lodge was not fixed. He has further gone to state in his evidence that the sketch map prepared by him relates to Chalantika Lodge although he admits that there is no mention in the sketch map of Chalanatika Lodge. He tried to explain P.O. mentioned in the index as Chalantika Lodge. This in fact is not what appears from the sketch map and the explanation sought to be given in his evidence therefore, cannot be accepted. In the sketch map prepared by P.W.12 the index is as follows:
A- P.O. B- Lodge C - Lodge D- Lodge E- Petrol Pump F- Pitch Road G- Sibalay X-ing H- Digha - Contai Pitch Road (Forshore Road) A has been mentioned as P.O. in the rough sketch map, but whether it is Abakash Lodge or Chalantika Lodge has not been specified. Therefore, without fixation of P.O. the case of the prosecution could not 14 have been held to be proved. It is only through the evidence of P.W. 12, an explanation for the P.O. is sought to be fixed. This is nothing but an improvement. As neither lodges has been identified in the rough sketch map and the place of occurrence not identified, the order of conviction dated 14th February, 2006 and the sentence dated 15th February, 2006 cannot be sustained in the eye of law and are accordingly set aside.
For all the reasons above the appeal is allowed and disposed off. The bail bonds furnished be cancelled.
Urgent certified photocopy of this order, if applied for, be given to the parties upon compliance with all requisite formalities.
(Asim Kumar Ray, J.) (Patherya, J.)
I agree.