Calcutta High Court
Md. Yasin vs The State Of West Bengal on 20 February, 2002
Equivalent citations: (2002)2CALLT546(HC), 2002(2)CHN333
JUDGMENT N.A. Chowdhury, J.
1. This appeal on behalf of the appellant Md. Yasin, is directed against the judgment and order dated 7.12.90 of conviction and sentence passed by an Additional Session Judge, Asansol in Sessions Case No. 161/87 convicting the appellant on the charges punishable under Sections 376 IPC and 302/34 IPC and sentencing him to RI for 10 years and to pay fine of Rs. 2000/- in default to suffer RI for a further period of 2 years for his conviction under Section 376 IPC and also sentencing him to imprisonment for life and to pay fine of Rs. 5000/- in default to suffer RI for a further period of 3 years of his conviction under Section 302/34 IPC and all the sentences of imprisonment were ordered to run concurrently.
2. Prosecution case, in brief, it appears, that on 21.4.85, in the evening, one Goutam Das (victim since deceased), aged about 19 years of Puranahat under P.S. Hirapur, along with one girl Amba Bose (victim of gangrape (PW2) aged about 16/17 years, went towards Rahamatnagar but Goutam did not return home till late hours of the night. Goutam's adjacent neighbour Anil Baran Das (PWI) of Puranahat returned home from his duty at about 10-30 P.M. on that day and found Juthika Das (PW19), mother of Goutam, standing on the road anxI.O.usly, and on asking her, PWI came to know that Gautam had gone out of their house at 5-30/6 P.M. without telling her anything and had not returned home till then. On hearing this, PWI, did not enter his house and took 2/3 boys with him and went out in search of Goutam. After proceeding a little, they came to know that Goutam had gone towards Rahamatnagar along with a girl named Amba (PW2) towards the evening, PWI then collected 3/4 more people totalling 7/8 persons including Arup (PW4) his son, and Bapi, Biswanath Goswami (PW8), neighbour of Goutam, for searching Goutam at Rahamatnagar. On the way, at Chasipara, by the side of Rahamatnagar, they learnt that the son of Shyama Bouri and two other boys had kidnapped a boy and a girl and took them towards the vacant place inside the jungle situated to the north of Chasipara and there was no human dwelling within half a mile on the southern side of that place. In the midst of search by some people of Chasipara, they found out the deadbody of Goutam lying near a mound between Dhobatalao and rail line. Then those people of Chasipara told PWI and his searching associates that before PWI and his searching associates went to search for Goutam in the locality, they came across a girl coming towards Chasipara and they had handed over the said girl to Hirapur P.S.
3. In that fateful night between 21.4.85 & 22.4.85 at about 23-05 hrs. sub-inspector U. C. Bhattacharjee (PW 28, the I/O) was incharge of Hirapur P.S. as his O.C. was out for mobile duty. At that time one Ashok Kumar Sapan of Chasipatti Rahamatnagar came to the P.S. and reported that many people of Puranhat had assembled at Chasipatti and there was an apprehension of peace. PW 28 recorded that information in G.D. Entry No. 1125 dated 21.4.85 and informed the O.C. of his P.S. over R.T. Simultaneously he left for Chasipatti along with some force and arrived at Chasipatti at 2-35 A.M. On 22.4.85 and found that his O.C. had already arrived there and one Anil Das of Puranhat (PWI) made a statement before the O.C. which was duly recorded by the O.C. which was treated as F!R and the investigation of the case was entrusted to him and there after the dead body of Goutam Das was detected and identified by one Anup Das (PW4) and others which was lying by the side of a mound near a pond. PW 28, the I.O. held inquest on the dead body with a T-short shirt and Jangia and a Trousers wrapped around the neck of the deceased. During further search, one light green whitish polyester full sleeve bush shirt with repairing marks on the front left side, one pair of black striped swet chappal, one pair of ladies' chappal and one pair of hawai chappal identified to be of the deceased Goutam Das, found nearby, were also seized by the I.O. under a seizure list. A sketch map of the P.O. with index was also prepared by the I.O. The wearing apparels of the victim Amba Bose (PW 2) were also seized and in view of the statement of the victim (PW 2) that one of the victims had pox marks in his face, the I.O. went in search of the appellant but did not find him in his house.
4. On the basis of the statement of the victim girl PW 2 Section 376 IPC was added in the case on the prayer of the I.O. The statement of the victim girl was recorded under Section 164 Cr. PC and the appellant was arrested on 1.5.85 and he was identified in the T.I. Parade by the victim girl (PW 2). After completion of investigation, charge-sheet was submitted against the appellant and two others namely Zahir and Mumtaz showing Zahir and Mumtaz as absconding and by order dated 10.4.87 the learned Additional Sessions Judge Asansol filed the case against the two absconders and by his order dated 10.4.87, the case was committed against the appellant to the Court of Sessions and the appellant was ultimately placed on trial before the learned Additional Sessions Judge Asansol on the charges under Section 376 and under Section 302/34 IPC and convicted and sentenced as above.
5. Prosecution examined 28 witnesses in support of the prosecution case. Among them PWs 1, 3, 4, 6, and 7 are the residents of Puranhat who had gone out with others in search of Goutam and came to know on their arrival at Chassipara by the side of Rahamatnagar that the son of Shyama Bauri and two other boys had kidnapped a boy and a girl and took them towards the vacant place within jungle to the north of Chassipara and these witnesses also stated in their evidence that they heard from the people of Chassipara that they came across a girl who had been weeping and coming towards chassipara and the said girl was made over to Thana and those witnesses searched out the dead body of Goutam lying near a mound in a field with a trousers wrapped around his neck.
6. PW 2 Amba Bose is the victim of rape in the case. She deposed that on 21.4.85 darkness set in, she sat with Goutam on a culvert near Rahamatnagar when three unknown boys came there and on being asked by her, Gautam told her that they were his friends. She also gave description of those three boys as well as of their wearing apparels and identified the appellant Md. Yasin to be one of those boys having marks of pox on his face and wearing white trousers and a white full sleeve shirt with green stripes. She specifically stated that the appellant Md. Yasin caught hold of her hand and told her that she-would be required to go with him. When it was already dark and this appellant then took her along the road by holding her hand and the other two boys as well as Goutam also went with them. She further deposed that she and Goutam were taken to a lonely place in the field, where the short boy stayed guarding her while the appellant and the other boy took away Goutam from her. The short boy then compelled her to undress herself and threatened her that unless she did so, Goutam would be killed. He then committed rape on her and thereafter the appellant and the other boy also committed rape on her one after another. Thereafter the appellant and the other two boys asked her and Goutam to wait saying that they would bring a torch light and thereafter the short boy kept her sitting on the point of pistol and the appellant and the other boy took Gautam away and she could not find out Gautam any more. However, the short boy, on notice of some people approaching with light, fled away and she also ran after him and she was rescued by the people of Chassipatti and she told them that she was not finding Gautam and Gautam had been taken away by three boys. She also deposed that she was unable to say anything else as she was not asked anything besides what she had told and they had been insisting on her going to the police station and she was made over to the police where her wearing apparels were seized and she was sent to hospital for medical examination and she made a statement before a Magistrate and identified the appellant Md. Yasin in T.I. parade held by Magistrate at Asansol Special Jail.
7. PW 5. PW 13 and PW 25 deposed about return of PW 2 from the field and taking her to thana by the RG party men. PW 13 also deposed that the girl wanted to say something but he asked the boys of the RG party to take her to PS without listening to what she intended to tell them and PW25 also deposed that in the same evening she saw the girl (the victim PW 2} and three boys to proceed towards east.
8. PW 8, a neighbour of Goutam only heard about the missing of Goutam and also about the girl that she was found by the people of Chassipara and made over to thana. He also went to see the dead body of Goutam.
9. PW 10 also went in search of Goutam and deposed about the dead body of Goutam.
10. PW 11 a tailor of Rahamatnagar and PW 12 his employee identified the shirt (Mat. Ext. VIII) of the appellant and deposed that once that shirt was repaired in their shop for some tear marks of its left side in the front portion.
11. PW 14 & PW 15, neighbours of the appellant were declared hostile by the prosecution.
12. PW 16, the then Judicial Magistrate first class at Asansol recorded the statement (Ext. 7) of the victim girl under Section 164 of the Criminal Procedure Code.
13. PW 17, another Judicial Magistrate Asansol held T.I. parade of the appellant on 13.5.85 in Asansol Special Jail and in his evidence stated that the victim girl Amba Bose identified the appellant alleging that the appellant had called her and taken her to the held by pulling her and catching her by the hands and she further alleged that the appellant had ruined her life.
14. PW 18 is the father of the deceased Goutam and he stated in his evidence that he heard that Goutam was going towards Rahamatnagar with a girl and at that time son of Shyama Bauri and two others kidnapped and killed him.
15. PW 19 mother of Goutam identified the wearing apparels of Goutam.
16. PW 20, medical officer attached to S. D. Hospital Asansol, examined the victim girl on 22.4.85 at 11 A.M. and he stated in his evidence that in reply to the question asked by police he stated that it could not be ascertained whether the victim was raped or not and that no marks of vl.O.lence on the thighs, elbows or cheeks or any other part of the body of the victim could be detected and that no foreign body like hair was found present on the private parts of the victim and that there was no note in his report as to whether the hymen was ruptured or not.
17. PW 21, a police constable escorted the dead body of Goutam to the Hospital.
18. PW 22, medical officer attached to S. D. Hospital as Specialist Surgeon, held the post mortem examination of the deceased Goutam Das on 22.4.85 at 1.30 P.M. identified by the constable, (PW 21) and found abrasions on both elbow joints and forehead and also nine abrasions on the neck and echymosis on chest wall. He also deposed that on dissection he found fracture of ribs of both sides (within 6 to 9) and larynx and trachea congested and haematoma present on both the lungs and in his opinion the cause of death was due to Asphyxia as a result of throttling and injury on chest which were ante-mortem and homicidal in nature.
19. PW 23, medical officer (dental) of Asansol S. D. Hospital examined the victim girl on 2.9.85 to ascertain the age of the girl and in his opinion the age of the girl was between 16-17 years on the date of the examination.
20. PW 24, is the mother of the victim PW 2 and she deposed about going of Amba (PW 2) to see television in her friend's house and as Amba didn't return after 10 P.M. she came out of her house on hearing some noise in the neighbourhood when she was told that Goutam had been missing and PW 2 had gone with Goutam and PW 2 had been taken to thana and accordingly she went to thana and met PW 2 there and she was told by PW 2 that three boys had taken away Goutam and also raped her. In cross-examination she stated that PW 2 was not a girl of bad character and when she was returning from thana at night she heard that Goutam had been murdered and his body was detected.
21. PW 25, a resident of Chassapatti Rahamatnagar deposed that about 5 or 6 years ago, one evening she saw a girl and three boys to proceed towards the east along the road and at about 11 P.M. when she was sleeping on her room she got up on being attracted by the noise of 25/30 boys of Puranahat and came out of her room and found Bholababu (Darogababu) to take the girl from the field to thana.
22. PW 26, Shiblal Mahato a resident of Chassapatti was declared hostile by the prosecution as he stated in his examination-in-chief that he did not remember if anything happened 5/6 years ago in the evening at Dhobiatola.
23. PW 27, a medical officer of radiology department, S D Hospital, Asansol, stated in his evidence that on 19.6.85 one Amba Bose was referred to radiology department for ossification test but he did not find any x-ray plates or x-ray report and in cross-examination he stated that there was no endorsement or note in the relevant document with reference to which he deposed as to whether the patient at all turned up or whether she did not turn up on 6.7.85 for her x-ray.
24. PW 28, is the investigating officer of the case. He stated in his evidence that on 24.2.85 at about 00.30 hrs. he could detect a dead body lying by the side of a highland in the neighbourhood of which a pond was situated and the members of the public identified the deadbody to be the dead body of the victim Goutam Das wearing a striped T-short shirt and Jangia and a trousers wrapped around his neck. He also stated that he could gather during inquest of the dead body of Goutam from the witnesses at the spot that the victim was killed by strangulation by means of the trousers and he seized the Jangia and the T-short shirt of Goutam from his person at the spot and also seized the trousers wrapped around his neck under a seizure list (Ext. 6). He further stated that during further search he could seize one light green polyester full sleeve bush shirt with repairing marks on the front left side between 01 and 02.15 A.M. and he also seized one pair of black striped swet chappal and one pair of ladies' chappal from the field and at 00.55 hrs., seized a pair of hawai chappal which was identified to be of the deceased Goutam Das. He also stated that on 23.4.85 he submitted prayer before the learned SDJM Asansol for adding Section 376 IPC in the case.
25. That no witness was examined on behalf of the defence and the defence case as could be gathered from the trend of cross-examination and the examination of the appellant under Section 313 of the Code of Criminal Procedure is that the appellant was innocent and he has been falsely implicated on political ground.
26. It appears that it was submitted on behalf of the appellant before the learned trial Judge that there was no eye-witness to the murder of Goutam Das and the medical evidence of PW 20 negatives the story of alleged rape of PW 2 and in any event she might have been raped by the deceased Goutam Das and PW 2 not having disclosed the incident of rape on her to anybody immediately after she was found out, her story of rape on her should be disbelieved. It was also submitted on behalf of the defence that the appellant was shown to PW 2 several times at the thana and the marks of pox on the face of the appellant made the T.I. parade meaningless for the appellant. It was also submitted that the seized repaired full sleeve striped shirt was not the shirt of the appellant and the entire prosecution case being based on the evidence of PW 2 whose evidence cannot be relied upon for the discrepancies in her evidence, the prosecution failed to prove the charges against the appellant beyond reasonable doubt and as such the appellant was entitled to be acquired in the case.
27. The learned trial Judge, on consideration of the facts, circumstances, materials and the evidence on record in its totality, found the appellant guilty of both the charges and convicted and sentenced him as above.
28. The learned advocate appearing on behalf of the appellant before this Court submitted that in view of the evidence of the medical officer (PW20) who examined the victim girl that it could not be ascertained whether the victim was raped or not in as much as there was no mark of vl.O.lence on the thigh, elbows, cheek or any other parts of the body, the charge of rape under Section 376 IPC has not been proved beyond reasonable doubt. It is also submitted that there being no eye-witness to the commissI.O.n of murder of Goutam Das and the appellant being shown in the thana to PW 2 several times and the appellant having pox marks in his face, identification at the appellant in the T.I. parade by PW 2 has completely lost its significance for the purpose of conviction of the appellant on any at the charges under Section 376 IPC or 302/34 IPC.
29. It is also submitted that Section 34 of the Indian Penal Code is not applicable in the charge of Section 302/34 IPC in as much as the presence, participation and pre-plan of the appellant with others have not been proved by the prosecution by adducing any evidence on record. Lastly, it is submitted that the entire prosecution case hinges on the evidence of PW 2, the victim girl, but her evidence is full of discrepancies apparent on the face of the record and accordingly cannot be relied upon for the purpose of conviction of the appellant under Section 376 IPC or under Sections 302/34 IPC and in the aforesaid circumstances the appeal should be allowed in the interest of Justice.
30. Learned advocate appearing on behalf of the State supported the Judgment of the trial Court.
31. Considering the submission on behalf of the appellant and the State and the facts, circumstances, materials on record and the evidence on record in its totality we do not find any cogent or justified reason to differ with the findings of the learned trial Judge, inspite of the minor discrepancies in the evidence of PW 2 which, in our view do not disprove the charge against the appellant or make the conviction and sentence unsustainable in law.
The appeal therefore fails and the judgment and order of conviction and sentence of the learned trial Judge is affirmed and the appeal stands dismissed.
N.C. Sil, J.
32. I agree.