Calcutta High Court
Munni Rajak vs Sumit Banerjee And Anr. on 18 January, 2002
Equivalent citations: (2002)1CALLT251(HC), 2002(1)CHN735
JUDGMENT A Talukdar, J.
1. An Order of acquittal recorded by the learned Assistant Sessions Judge, First Court, Hooghly in Sessions Trial No. 141 of 1997 thereby absolving the accused opposite party in CRR No, 1577 of 1999 has given rise to these two Revisional Applications. While the petitioner, in CRR No. 1577 of 1999, who was the victim girl, moved this Application being aggrieved with the Order of acquittal passed in favour of the accused opposite party. The petitioner in CRR No. 1651 of 1999 who was the scribe of the FIR, was examined as P.W.3 during the trial for expunction of certain remarks made against him in the body of the judgment passed by the learned trial Judge.
2. Since both the matters were heard together, this common judgment will dispose of both the Revisional Applications.
3. Shri De, learned Senior Advocate appearing for the petitioner in both the Revisional Applications has questioned the order of acquittal passed in favour of the accused opposite party on several grounds. He has firstly submitted that the learned trial Judge has failed to appreciate the evidence of PWs. 1, 4 and 5 in their proper perspective. The Order of acquittal, according to Shri De. was a result of total misconception of the evidence and legal position. He has submitted that the evidence was sufficient for the charge under Section 376 of the Indian Penal Code. He also referred to the evidence of PWs. 1, 5 and 4 in great details and prayed for setting aside the order of acquittal as it has occasioned in a failure of justice. He further submitted that the learned trial judge while coming to his conclusion had stressed too much reliance on the statement of PW. 1, recorded under Section 164 of the Code of Criminal Procedure (Ext. 5) which was not a substantive piece of evidence; moreover, there was a subsequent prayer for recording of a fresh statement which was turned down by the learned trial Judge. Shri De referred to the order dated 08.7.96 passed by the learned trial Judge in this regard. He also submitted that the surrounding circumstances and the evidence of PW. 1 read in conjunction with those of PWs. 4 and 5 (her Parents) were sufficient to prove the charge against the accused.
4. The learned senior Advocate for the petitioner further submitted that certain unequivocal circumstances were totally overlooked by the learned trial Judge. Firstly, the fact that the girl was aged about 14 years and there were evidence of molestation and attempt to outrage her molesly and further that the accused had pulled off the lower undergarment of the PW.1 and he himself had also put of his dress and the accused further had caused touch of his male organ into the counterpart of PW.1 and the undergarment of PW.1 was wet with the semen as transpired from the Seizure List (Ext. 3). These were overwhelming circumstances, according to the learned Senior Advocate which were totally left out by the learned trial Judge before arriving at his conclusion as a result of which it suffered from the vice of non-appreciation of the evidence and other materials on record and has to be set aside.
5. The learned senior Advocate for the petitioner has relied on a Written Notes of Argument and also a decision of the Supreme Court reported in 1998 SCC (Crl) 76 : State of Maharashtra v. Rajendra Jawanmal Gandhi in support of his contention that the provisions of Section 511, IPC could have also been applied by the learned trial Judge.
6. So far as the expunclion of remarks are concerned, Shri De submitted that the learned Judge was not correct in making the observations against the petitioner--Ashok Ghosh who figured as PW 3 during the trial and had scribed the FIR (Ext. 1). According to Shri De the observations were totally uncalled for and had no manner of nexus with the proper disposal of the case. He has prayed for expunging the said remarks as it has caused unnecessary wrong to the petitioner (PW. 3).
7. As a part of his submission for expunging the remarks, in question Shri De relied on two Supreme Court decisions first one was A.M. Mathur v. Pramod Kumar Gupta : and the other was The State of Uttar Pradesh v. Mohammad Naim : .
8. The learned Advocate appearing for the State supports the order of acquittal as according to him the materials are not sufficient to have found the accused guilty of the charge framed against him.
9. Shri Balai Chandra Roy the learned senior Advocate appearing for the accused opposite party with Shri Ashimesh Goswami and Smt. Tapati Chatterji supported the order of acquittal and submitted that as there was no evidence against the accused so as to find him guilty, the learned trial Judge had no option but to come to the impugned conclusion which should not be interfered with by this Revislonal Court in the absence of any patent Illegality and/or other jurisdictional infirmity. Shri Roy by placing the entire case before this Court submitted that the evidence on record was not convincing and rightly the order of acquittal was passed by the learned trial Judge. Shri Roy further submitted that there was absolutely no evidence to sustain the charge under Section 376 of the Indian Penal Code. He showed that the learned trial Judge had discussed all the evidence. It cannot be said that the Judgment in question was perverse so as to invite the powers of the Revislonal Court to interfere. He has prayed for leaving the said Order of acquittal as intact referring to the decisions of the Supreme Court in the case of K, Chinnaswamy Reddy v. State of Andhra Pradesh : and Mahendra Pratap Singh v. Sarju Singh and Anr.: on the proposition that unless and until there is some grave illegality which has surfaced during the trial an order of acquittal cannot be interfered with. The power of the High Court has to be exercised very sparingly and in only exceptional cases the same can be used. Shri Roy has prayed for dismissing the Revisional Application having no merit.
10. I have heard the submissions made at the Bar and have considered the decisions cited. I have also gone through the written Notes of argument submitted by the learned senior Advocate for the Petitioner. At the outset that although there is no dispute with the part of the proposition enunciated by Shri Roy, learned senior advocate for the accused opposite party that the Revisional Court should be extremely slow in interfering with an order of acquittal unless and until there is some perversity and/or other patent illegality this Court should not interfere. I do agree with Shri Roy that unless the Order of acquittal has resulted in a miscarriage of justice, the Revisional Court could not be justified in interfering with the order of acquittal passed validly by a learned trial Court. I also most reverentially bow down to the ratio enunciated in the said decisions of the Hon'ble apex Court on the aforesaid proposition propounded by Shri Roy.
11. Let me now proceed further and see as to whether the argument of Shri De, learned Senior Advocate for the petitioner can be sustained and the order of acquittal be interfered with keeping in mind the caution and the guidelines laid down in the said decisions.
12. The confection of the prosecution case rests on the evidence of PW1--the victim girl, PWs 4 and 5 her Mother and Father respectively. From a plain reading of such evidence one. and only one picture emerges. In the night of 27.4.96 while PW. 1 was a sleeping in her room within the quarters of the Mother Dairy Plant at Dankuni in the dead of the night at about 1.00--2.00 a.m. the accused opposite party entered into the said room and had foisted himself upon the unfortunate helpless victim (PW. 1) while he was intoxicated and the lower-garment of PW.1 being pulled off had plunged his male organ into the counterpart organ of PW. 1 by giving a threat to her as not to shout and disclose his identity as 'Sumit uncle' not to be afraid of. Hearing her shout PWs 4 and 5 (the Parents) who were sleeping in the 'Varandah' came inside the room and switched on the light and found the accused who threatened them that if the incident is disclosed then they will suffer serious harm. PW.1 further submitted that the discharge of the accused fell on her underwear. Both PWs. 4 and 5 deposed also that by giving threat, the accused after catching his trouser. fled away. The learned trial Judge found since the Medical Report (Ext.6) contained no marks ol" injury on the private parts of PW.1; no foreign body was found and her hymen was intact and further that FSL Report (Ext.4) did not support the allegation of rape. He came to the conclusion: "So from the evidence of I.O, I am of the opinion that as routine work he has filed chargesheet in this case implicating the accd. persons." and "and ... I have no hesitation to hold that the accd. person has been falsely implicated in this case and the prosecution has failed to prove miserably the charge so levelled against the accd. person beyond any reasonable doubt." This finding of learned trial Judge, in my view, is not compatible with the evidence and other materials on record. It is a result of non-appreciation of material evidence and was also the child of a stereo-type oblivious attitude of the trial Court to a burning issue. Definitely this is an illegality which has resulted in such infirmity, unless corrected, shall itself amount to an injustice which this Court cannot be a party to.
13. Firstly, I find that from the evidence of PW.1 and PW.2 it transpires that the lower-garment ol" PW.1 was drenched with the ejaculation of the accused who illegally trespassed in the room where PW.1 was sleeping in the wee hours of 27.4.96 in the campus of the Mother Dairy Plant to satisfy his carnal desire on a defenceless minor girl. This undergarment was seized by PW.8. The Seizure List (Ext.3) supports this position. The Seizure List (Ext. 3) was prepared contemporaneously on 27.4.96 at about 7.50 hours i.e. a few hours after the incident. This was a very vital piece of evidence. The Seizure was effected by PW.8 who has corroborated the same. The learned trial judge did not, at all, advert to this aspect. It was also incumbent duly of the Investigating Agency to have sent the said garment for Chemical Examination to match the discharge with the group of the accused Opposite Party; this not having been done. Was it also the duty of the trial Court to rest on its oars and be content with the remissness of the Investigating Agency instead of eliciting the actual truth?
14. Simply referring to the opinion of the doctor (Ext. 6) (wrongly mentioned as Ext.4 by the learned trial Judge in the sixth penultimate paragraph of the Judgment) the learned trial Judge came to his conclusion that there was no case made out. I have carefully considered both Ext. 6, Medical Report and the Report of the Examination of the Forensic Science Laboratory (F.S.I) (Ext. 4). I find that Dr. Amal Mukherjee who examined PW. 1 on 27.4.96 of the Sub-Divisional Hospital, Sreerampore although a charge-sheeted witness was not examined by the Prosecution.
15. Was it not incumbent upon the learned trial Judge to have examined him under Section 311, Cr.PC.?
16. Further. I find from a rummaging of the Records of G.R. Case No. 407 of 1996 on the basis of a prayer of 30.5.96 by the Investigating Officer for examination of the accused opposite party and pursuant thereof the Superintendent of Walsh Hospital on 7.6.96 examined the accused opposite party. The said Report was not at all even touched by the learned trial Judge. The Report finds place at running page 13 also as No. 12 just after te Charge-sheet and Bail Bond submitted by the accused opposite party from the records of the learned sub-Divisional Judicial Magistrate, Sreerampore.
17. That apart, I further find the evidence of PW. 1 shows there was infringement of her female organ by counterpart of the accused. If that be so, can it be said that when there was such penetration, the explanation of Section 375, IPC which reads as follows:
"Penetration is sufficient or constitute the sextual intercourse next to the offence of rape"?
was not complete?
18. Taking into account the overall evaluation of the evidence and other materials on record by the learned trial Judge I am of the definite opinion there has been serious miscarriage of justice by way of oversight of material evidence and erroneous appreciation of the evidence and as also violation of fundamental legal principles, the order of acquittal has to be set aside.
19. The learned trial Judge found too much fault with regard to the right of PW.5 to live in the quarters of the Mother Dairy Plant. Fault was also found for the failure of the parents (PWs. 5 and 4) of PW.1 to inform the security guards in the campus of Mother Dairy Plant and it is failure to furnish the documents about the complaint made to the General Manager of the Plant and the statement of PW.1 (Ext.5) recorded under Section 164, Cr.PC which was recorded in such a fashion which in least said the better and also picked up defect in the deposition of P.W.3 by dubbing him as :--
"This PW.3 intentionally made incorrect statement knowing fully well that this accd. person is his political rivalry and accd. person is a leader of CITU union of Mother Dairy and he i.e. PW.3 is a leader of INTUC Union and as per the statement of the victim girl this PW.3 had given protection to the victim girl and her parents from eviction from their quarters of the Mother Dairy".
20. While I refrain myself from making any comment about the learned trial judge's reliance on Ext.5, I find the circumstances which have been highlighted by him if at all are of any consequence; they are so minor in nature that even if they are added together were not sufficient to discredit the prosecution case in its totality and affect the substratum of the same. The evidence of PW.1 was quite glaring, illuminating and quite convincing and at the same time credit-worthy, apart from being supported by PWs. 4 and 5.
21. The manner in which the order of acquittal had been recorded by finding defects in the fabric of the prosecution case reminds me of the hallowed findings of the Hon'ble Supreme Court in State of Punjab v. Gurmit Singh :
".....The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony it may look for evidence which may land assurance to her testimony, short of corroboration required in the case accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
Perhaps the directives of the Highest Court of the Land must be crying in the wilderness of the shabbily maintained records of sessions trial No. 141 of 1997 carried by the unfortunate victim of this case before this Court for remeding some wrong.
22. It is such a wrong that not only the victim has been wronged but also wronged is the Criminal Justice, also wronged in not adverting to the provisions of Section 91, Cr.PC, Section 165 of the Evidence Act.
23. I also agree with Shri De the learned Senior Advocate that the position as emerging from the evidence of PW I and also PWs. 4 and 5 who have entered the room where PW. 1 was sleeping made the accused beat the hasty retreat. The learned trial Judge, I am afraid, with due respect did not focus its attention on this aspect as to whether the offence of Section 511 was applicable; also the fact that the accused had entered the room of PW1 and had in the process tried to outrage her modesty which evidence was very much there. The learned trial Judge seem to have turned a Nelson's Eye to the materials for the offence of criminal trespass, outraging of modesty and also attempt to commit the actual offence. These circumstances coupled with the ones discussed here-in-above had rendered the Order of acquittal, completely bad in law. I also find the decisions cited by Shri De:- State of Maharashtra v. Rajendra Jawanmal Gandhi (supra) quite comes to his rescue.
24. Lest it may even unconsciously influence in any way the mind of the learned trial Court, I refrain myself from embarking on further details.
Thus far no further.
25. Since I am of the view that the matter has to be sent on remand for fresh decision in accordance with law by the learned trial Court after setting aside the Judgment and Order of acquittal by necessary implication, the observation made by the learned trial Judge against the P.W.3 stands obliterated.
26. I also wish I could have stopped there. However, that is not so to be.
27. I am in total agreement with Shri De the learned Senior Advocate the observations by the learned trial Judge was not only unwarranted, if not uncharitable and had no bearing with the proper disposal of the trial and no link with the merit. The decisions cited by him [A.M. Mathur v. Pramod Kwnar Gupta (supra) and The State of Uttar Pradesh v. Mohammad Nain (supra)l are absolutely apposite. In the event the learned trial Judge found whether rightly or wrongly the prosecution has failed to prove its case and the accused deserves an order of acquittal it could have disbelieve the said witness but definitely sweeping comments touching on testimonial integrity of the witness (PW.3) in this case was not at all Justified under any circumstance.
28. In such view of the matter I direct that the said observations would stand totally expunged from the records.
29. Appreciating the fact, the limited resources and the constraints under which the learned trial Courts function I find that the evidence recorded by the learned trial judge in hand-writing are in many places not very legible; the records also is not maintained in a very legible manner. This makes difficult reading for a Superior Court which has been called upon to asses efficacy of its finding which can only be arrived at after proper perusal of the evidence and scrutiny of the records if the same is not legible enough to read it makes the task of the Superior Court very much uphill.
30. It is impressed upon the learned trial Court that in the event the deposition cannot be typed out due to infrastructure difficulty effort should be made to write out the same in as far as practicable in clear and distinct handwriting so as to enable the Courts above to look into it clearly and come to its decision, also to write out important orders having bearing on the merit of the case in their own handwriting legibly which has not unfortunately been done herein resulting in serious impediment in unfurling the details. I am very much conscious that the learned Presiding Officers have to work in challenging circumstances so far as the infrastructural aspect of Court Administration is concerned and may have to face many odds establishment wise but while it is equally important for us to effectively discharge our judicial function. It is equally nice to see the said records are maintained properly, legibly and in a neat and clean fashion. This wish of this Court if translated into action would definitely go to trim the otherwise torn, shabby and decrepit pale records which are being generated in the trial Courts and ultimately when it is transmitted before the magnificent portals of the Highest Temple of Justice in the State the condition of the records are as such that while it is any body's pity it is the nightmare of the Court to plough through and unravel the issue impugned.
31. The learned Registrar (Judicial Service) is requested to send the relevant extract of the portion of this Judgment to all the learned sessions Judge of the State who will in turn cause circulatory intimation upon all the Presiding Officers under their respective Judgeshlp for effective compliance of the direction.
32. For this purpose office is directed to place the File before the learned Registrar (Judicial Service) forthwith.
33. Accordingly, I send the matter back on remand before the learned trial Court for fresh decision in accordance with law and thereafter, to arrive at its independent finding without being even slightly/remotely guided by the order of remand. Both the Revisional Applications--CRR No. 1577 of 1999 and CRR No. 1651 of 1999 are allowed. The Judgment and order of acquittal dated 05.07.99 passed in connection with Sessions trial No. 141 of 1997 is set aside and the Revisional Application being CRR No. 1577 of 1999 is allowed and the matter is sent back on remand; while CRR No. 1651 of 1999 is also allowed and the observation made against the Petitioner (PW.3) is expunged.
No order as to costs.