Calcutta High Court (Appellete Side)
Mukteswar Shit & Anr vs State Of West Bengal on 20 August, 2014
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE.
Present:
The Hon'ble Justice Joymalya Bagchi
C.R.A. 253 of 2001
Mukteswar Shit & Anr.
-vs-
State of West Bengal
Mr. Arunabha Jana. ...For the Appellants.
Mr. Subir Banerjee. ...For the State.
Heard on : 20.08.2014
Judgment on : 20.08.2014.
Joymalya Bagchi. J.
The appeal is directed against the judgment and order dated
30/31.5.2001passed by the learned Additional Sessions Judge, Contai, Midnapore in Sessions Trial Case No.V/February/1999 convicting the appellant no.1 for commission of offence punishable under Section 376/363/366 of the Indian Penal Code and appellant no.2 for the offences punishable under Section 363/366 of the Indian Penal Code respectively and sentencing the appellant no.1 to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 376 of the Indian Penal Code and sentencing the appellant Nos.1 and 2 to suffer rigorous imprisonment for one year each and to pay a find of Rs.1,000/- each in default to suffer rigorous imprisonment for two months more for the offence punishable under Section 363 of the Indian Penal Code and to suffer rigorous imprisonment for two years each and to pay a fine of Rs.2,000/- each in default to suffer rigorous imprisonment for four months more for the offence punishable under Section 366 of the Indian Penal Code, all the sentences run concurrently.
The prosecution case as alleged against the appellants is that on 10.10.1995 at about 19.55 hours, P.W.9 Mukunda Shit, the father of the victim girl, Mitali Shit (P.W.11) lodged a written complaint with the local police station alleging that he used to carry on business in Calcutta while his wife was residing at Contai with his minor daughter and son. On 25.9.1995, Mitali Shit went to Kalindi Union High School for her studies but did not return from the school. On enquiry, the defacto complainant and his wife came to know that the victim was induced and kidnapped by the appellant no.1 from the school for immoral purposes. The defacto complainant and his wife came to the house of the appellant No.1 and could not find them. The father of the appellant no.1 drove them out from the house. It was further alleged that the appellants had secreted his daughter aged about 17 years for immoral purpose and ill motive. On the basis of such complaint, First Information Report being Ramnagar Police Station Case No.124 of 1995 dated 10.10.1995 under Sections 363/366 of the Indian Penal Code was registered against the appellants and one Balai Shit and Shib Prasad Shit. In the course of investigation, the victim was recovered and her statement was recorded under Section 164 of the Code of Criminal Procedure. In conclusion of investigation, charge sheet was filed against the appellants, Balai Shit and Shib Prasad Shit, the father and another relation of the appellant no.1 alleging commission of offence punishable under Sections 363/366/376/34 of the Indian Penal Code. The case, being sessions triable one, was committed to the Court of Sessions, Paschim Midnapore and transferred to the Court of the learned Additional Sessions Judge, Contai, Midnapore for trial and disposal. Charges were framed under Sections 363/109, 366/109 of the Indian Penal Code against the appellant no.2, Shib Prasat Shit and Balai Shit. Charge was framed under Sections 363/366/376 of the Indian Penal Code against the appellant no.1.
The prosecution examined as many as 13 witnesses including the victim girl as P.W.11. The defence of the appellants were one of innocence and false implication. It was the specific case of the appellants that the victim was a major and was in love with appellant no.1. In conclusion of trial, the learned Trial Judge by the impugned judgment and order convicted the appellant no.1 for commission of offences punishable under Sections 376/363/366 of the Indian Penal Code and appellant no.2 for commission of offences punishable under Sections 363/366 and sentenced them, as aforesaid. By the self-same judgment and order, the learned Trial Judge, however, acquitted Balai Shit and Shib Prasad Shit of the charges levelled against them.
Mr. Jana, learned counsel appearing for the appellants submitted that the prosecution case which hinges on the evidence of P.W.11 is highly improbable and unreliable in nature. There was inexplicable delay of lodging First Information Report. Evidence of P.W.11 shows that she did not protest against her kidnapping, wrongful detention even when she was taken through crowed places via public transport. It is further submitted that there was no investigation made as to the circumstances in which the appellant no.1 and the victim had allegedly cohabited. He further submitted that the evidence of the Doctor showed that the victim was a major aged between 18 to 20 years of age. He submitted that the case had not been proved beyond reasonable doubt and the appellants have been falsely implicated in order to cover up the love affair between the appellant no.1 and the victim girl.
Mr. Banerjee, learned Additional Public Prosecutor submitted that uncorroborated version of the victim is sufficient to bring home a charge of kidnapping and sexual assault. He submitted that the evidence of the father, P.W.9 was that the victim was about 16 years which was unchallenged in the cross-examination. He submitted that the victim upon being recovered promptly narrated her version to the learned Magistrate under Section 164 of the Code of Criminal Procedure implicating the appellants obviating any chance of tutoring or embellishment. He accordingly submitted that the conviction of the appellants be upheld.
P.Ws.1, 2 and 10 are independent witnesses who have not supported the prosecution case and have been declared hostile.
P.W.4 is a teacher of Kalindi Union High School. He also has not supported the prosecution case and has been declared hostile.
P.W.5 is a Doctor. He was attached to Contai Sub Divisional Hospital at the material point of time. He examined the victim on 14.10.1995 and opined that she had experience with sexual intercourse without any recent mark of any injury in her private parts and on her breasts. He also examined the appellant No.1.
P.W.6 is the Officer-in-charge of Ramnagar Police Station at the time of occurrence and received the written complaint lodged by P.W.9 which was treated as First Information Report.
P.W.7 is an aunt of the victim who stated that the victim was kidnapped and raped. In cross-examination, she admitted that she cannot say when and where she heard about kidnapping and that the Investigating Officer did not examine her and she is making such statement for the first time in Court.
P.W.8 is the Medical Officer who held ossification test on the victim and stated that her age is between 18 to 20 years.
P.W.9 is the father of the victim. He stated that the victim was about 16 years. She went to her school but did not return. As a result, First Information was lodged. About 8/10 days later, police recovered the victim from the sister's house of the appellant no.1 by breaking open the door at night.
P.W.11 is the victim. She stated that on 25.9.1995 she was a student of Class XI of Kalindi High School. She had gone to school to withdraw her scheduled caste grant. The school is situated at Contai. While returning from Contai in a bus, the appellants met her in the bus. They asked her to go to their residence for Puja. Initially she refused. Ultimately, she agreed to go to their house to see Puja. However, there was no Puja in the house of the appellant no.2. She suspected some mischief may be caused to her. It was around 1/1.30 P.M. on that date. The appellants kept her detained in the house of the appellant no.2 for three days. Thereafter, they took her to the house of sister of appellant no.2 at Bhagbanpur. Balai and the father of Mukteswar came at the place and asked her to marry appellant no.1 and they also threatened her. On the second day at Bhagbanpur, the appellant no.1 cohabited with her against her wish. On the third day, they said that they would take her home. They brought her to Contai to the house of one lawyer and obtained her signature on a paper. Then they took her to Contai Mahua Studio and took her picture with the appellant no.1 with vermilion on her forehead. They also put conch shell on her hands. Thereafter, she was taken to Kantai. Her father recovered her along with police from the house at Kantai. She was medically examined at the hospital. She recorded her statement before the learned Judicial Magistrate. The signature on the statement has marked as Ext.6/1.
In cross-examination, she admitted that she was acquainted with the appellant no.1. She was confronted with letters purportedly written by her but she denied the same, and they were marked as 'X' for identification. She admitted that her father used to say something to her when she talked with the appellant no.1. She denied that it was pre-arranged that she would meet the appellants at the bus stop. She admitted that she had to cross her parental house at Pichhabani while proceeding from Contai to Ramnagar. She admitted that she did not get down from the bus to take permission from her father to proceed to the house of the appellant no.2 at Ramnagar. She admitted that the bus was crowded when she was taken from Ramnagar to Bhagbanpur. She admitted that they got down at Bhagbanpur bus stand where there were shops and many people. She admitted that from Contai, she went by bus and then by Rickshaw to Kantai.
P.W. 13 is the investigating officer of the case. He seized a xerox copy of the admit card of the victim girl produced by her father with regard to the age of the victim. He stated that the victim recorded her statement under Section 164 of the Code of Criminal Procedure and thereafter Section 376 of the Indian Penal Code was added. In cross-examination the investigating officer admitted that he had not examined any witness at Contai wherefrom the victim girl was recovered. He admitted that no wearing apparel of the victim was seized.
The prosecution case is primarily based on the evidence of P.W. 11. It is trite law that in the case of kidnapping and sexual assault if the evidence of the victim is a reliable one and inspires confidence conviction can be recorded on her sole testimony. Hence it is relevant to examine as to whether the evidence of P.W. 11, the victim girl in the instant case, is credible or not. I find that the victim had stated that she had gone along with the appellants as they had told her that there was a puja in the house of the appellant no. 2. They were travelling in the bus from Contai to Ramnagar which required the victim to cross her parental house. In cross-examination she stated that she wanted to take permission of her parents before she proceeded. However, no explanation is given by her as to why she did not alight at her parental home and take permission before she proceeded to the house of appellant no. 2. She has claimed that she was detained at the house of appellant no. 2 for three days against her will. Thereafter, she was taken by bus from Ramnagar to Bhagabanpur where she had kept to the house of one of the sisters of the appellant no. 2. She admitted in cross-examination that she travelled in a crowded bus along with the appellants on the way from Ramnagar to Bhagbanpur and had alighted in Bhagbanpur bus stand which is a crowded place with many shops and various people. No explanation is forthcoming from her as to why she remained quiet and did not protest during her bus ride or at Bhagbanpur bus stand although she had been detained against her will for three days at the house of the appellant no. 2 at Ramnagar. Thereafter, she claimed that she was kept in the house of one of the sisters of the appellant no. 2 at Bhagawanpur for three days. On the second day, appellant no. 1 had cohabited with her against her will. Thereafter, on the third day, she was taken to a lawyer's place where she was compelled to sign on a blank document. She was also taken to a photo shop where her picture with appellant no. 1 was taken. Then she was taken by bus and by rickshaw from Contai to Kantai. Nowhere either in the lawyer's house or in the photo shop or in course of her travel by public bus or rickshaw through public thoroughfare she protested or sought for help although she has claimed that she had been subjected to sexual intercourse against her will at Bhagabanpur. Finally she was recovered by police at Contai. The appellants were not found at the place wherefrom she was recovered. She has also admitted that she was on talking terms with appellant no. 1 although she has denied any love affair with him. She admitted that her father was unhappy when she talked with appellant no. 1 and said something to her. It is, therefore, strange as to why the victim in spite of having opportunity to seek permission from her parents prior to the proceeding to the house of the appellant no. 2, chose not to do so. Complete silence of the victim, although she claimed to have been kidnapped, detained against her will and even subjected to sexual intercourse, during her travel in public conveyance through crowded places defies logic and runs counter to the normal course of human conduct. It is difficult to believe that an educated girl of sufficient maturity would remain quiet and not raise hue and cry when she was subjected to acts of detention and sexual assault against her will. I find her conduct to go to the house of the appellant no. 2 without permission of her parents and stay at various places along with appellants no. 2, willfully travelling from one point to another with the appellants via public transport through crowded places to improbabilise the prosecution case and probabilise the defence version that she was a free-agent and willingly accompanied the appellants from one place to another.
The aforesaid factual backdrop of the case raises the irresistible conclusion that the version of the prosecution case as narrated by P.W. 11 does not have a ring of truth about it and suffers from lack of credibility when tested on the anvil of normal conduct of a reasonable person of ordinary prudence.
The prosecution has also failed to prove that the victim was a minor beyond reasonable doubt. It has been strenuously argued that the evidence of the father that the victim was a minor was not subjected to cross-examination. I find that no question was put to the appellants in the course of their examination under Section 313 of the Code of Criminal Procedure with regard to such piece of evidence or on the issue of minority of the victim girl at all. On the other hand, the evidence of P.W. 8, doctor, who conducted the ossification test of the victim is that she was between 18 to 20 years of age. It is trite law that when a piece of evidence yields to dual interpretation, one in favour of the accused is to be accepted. Xerox copy of the admit card which was seized has not been proved in the course of trial. Accordingly, one can safely conclude that the victim was major aged above 18 years at the time of the alleged incident.
In view of the fact that the victim girl was major and she was studying in Class XI it is difficult to accept why she remained mum when she had ample opportunity to protest and raise hue and cry and save herself from the immoral acts of the appellants.
There is also inexplicable delay in lodging the First Information Report of the instant case. The girl was allegedly kidnapped on 25th September, 1995. First Information Report has been lodged on 10th October, 1995. There is no complaint or missing diary or any report to the police authorities as to the fact that the girl was missing. It has been stated by P.W. 9, father of the victim, that they were searching for the victim girl. If that be so, it defies logic as to why no missing diary was lodged by him. Inexplicable delay, in the light of the other attending facts and circumstances of the case, raises serious doubt as to the truthfulness of the prosecution version. It is true that love letters claimed purportedly written by the victim to the appellant no. 1, have not been admitted by her. However, she has admitted that she had talking terms with the appellant no. 1. She also admitted that her father used to say something to her whenever he found her to talk with appellant no. 1. These circumstances have however probabilised the defence of the appellant no. 1 that there was love affair between the victim and himself. In view of the fact that the victim is a major and her unnatural conduct in not raising hue and cry when she was in the company of the appellants while she was travelling in public transport through crowded places, it is difficult to accept the evidence of P.W. 11 that she was unwilling and she was kidnapped, detained and subjected to forcibly sexual intercourse by the appellants. In all probability, in order to save her from embarrassment, as she had eloped with appellant no.1, the prosecution case was concocted and she made statement in support of such prosecution version at the behest of her father, P.W.9.
Accordingly, I am of the view that the evidence of P.W. 11 in the factual matrix of the case is not a reliable one and does not inspire confidence. In Rajendra @ Raju vs. State of Maharashtra, reported in 2002 (7) SCC 721, the Apex Court set aside the order of conviction under Section 354/366 of the Indian Penal Code primarily on the ground that the evidence of the prosecutrix was inherently improbable as she travelled with the accused person in a scooter through busy and crowded places during day time and did not make any effort to raise hue and cry or escape. Similar conduct is exhibited by the victim, P.W. 11, in the instant case as she did not raise hue and cry while she was travelling in public transport through crowded areas although she claimed to have been kidnapped, wrongfully detained and sexually abused.
Considering the facts and circumstances of the case and in view of the aforesaid discussion, I set aside the judgement and order of conviction and sentence passed by the Trial Court and acquit the appellants of the charges levelled against them. The appellants, if on bail, shall be forthwith discharged from bail bonds.
Copy of the judgement along with Lower Court Records be sent down to the Trial Court at once.
(Joymalya Bagchi, J.) as/sd