Calcutta High Court (Appellete Side)
Asarul Hoque @ Ali vs The State Of West Bengal on 17 May, 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. 270 of 2010
Asarul Hoque @ Ali ... Appellant (In Jail)
-Vs-
The State of West Bengal
For the Appellant : Mr. Kushal Paul
For the State :Mr. Manjit Singh, P.P.
Mrs. Anusuya Sinha
Heard on : 17.05.2013
Judgment on : 17.05.2013
Patherya, J.:
This is an Appeal from the Judgment and order of conviction dated 31st March, 2010 and sentence dated 1st April 2010 passed by the Additional District & Sessions Judge, Fast Track Court (1st), Raiganj, Uttar 2 Dinajpur in Sessions Trial No.02/2008 arising out of Sessions Case No.58/2007.
By the said order of conviction and sentence, the appellant was directed to suffer rigorous imprisonment for 10 years, and to pay a fine of Rs.6000/- in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 376 (2) (f) I.P.C.
Being aggrieved by the said order of conviction and sentence this appeal has been filed by the appellant.
The case of the prosecution is that Lili Khatun, a minor was sexually abused by one Asarul. The said offence was committed in the jute field at about 10 a.m. on 2.2.2007. As the appellant was known to the victim she went with him. She was found bleeding from her private parts and in an unconscious state. On gaining consciousness and return to her home she narrated the incident to her mother, P.W.3, who took her to the Raiganj District Hospital. Thereafter an F.I.R. was filed with the Raiganj Police Station by the de facto complainant and Raiganj Police Station Case No.37/07 was started under Section 376 (2) (f) I.P.C. on 2nd February 2007. Investigation was initiated and on completion of such investigation the Chargesheet under Section 376 (2) (f) I.P.C. was submitted. The matter was then committed to the Court of Sessions Judge who transferred the same to the Court of the Additional District & Sessions Judge, Fast Track Court (1st), Raiganj, Uttar Dinajpur. Charge under Section 376 (2) (f) I.P.C. was 3 framed and the same was read over and explained to the appellant who pleaded not guilty and claimed to be tried.
14 witnesses were examined by the prosecution and 11 documents exhibited. On consideration of the said evidence the trial Court passed the order of conviction and sentence. Hence this Appeal.
Counsel for the Appellant submits that P.W.1 who is the de facto complainant has been declared hostile. Therefore, his evidence is of no value. The de facto complainant has also stated that he did not lodge the complaint.
Although P.W.12 has stated that the complaint was drafted by him as told to him by the complainant, in cross-examination he has stated that the complainant was 22 or 23 years of age while the age of the de facto complainant as noted at the time of giving evidence has been mentioned as 40 years. Therefore, the person who lodged the complaint is in doubt.
P.W.2 is the victim girl who has not been declared hostile and who in her evidence has stated that on falling down upside down on the field a bamboo stick entered her private parts. Therefore, no case of sexual abuse under Section 375 and 376 (2)(f) has been established by the prosecution.
P.W.3 is the mother who has not been declared hostile and although she admits that the victim girl was sexually abused, but who committed the offence has not been mentioned by her. She has stated that Asraful, 4 the Appellant is her son-in-law and if he was involved in such an incident she would not have given her daughter in marriage to him.
P.W.8 is the doctor who admitted the victim girl to the Raiganj District Hospital while P.W.9 is the doctor who examined the victim girl.
P.W. 10 is the Radiologist who found the age of the victim girl to be more than 10 years but less than 12 years.
P.W. 11 is the pathologist of the Raiganj District Hospital. He examined the vaginal swab of the victim girl's private parts. On examination he found non-motile dead spermatozoa. Plenty R.B.C. epithetal cells seen in vaginal snare. D.N.A. test was suggested but no such test was carried out nor any step taken by the I.O., P.W.14 in this regard.
P.W.13 is a formal witness and except for recording the 164 statement had no role to play.
While the appellant has been named as the accused and the order of conviction passed against him, P.W.3 has stated that there were three or four persons with the name Asraful. Therefore, it was necessary for the appellant to be identified and for lack of identification no order of conviction could have been passed.
Counsel for the State-respondent in opposing the said Appeal submits that the victim girl when brought to the Raiganj District Hospital in her statement to the Dr. P.W.8 (Ext.2) has specifically stated that she 5 was forcefully raped by Ashraul Hoque on 2.2.07 at about 10.00 A.M. This statement made to the doctor P.W.8 matches with the 164 statement of the victim girl recorded by P.W. 13. The aforesaid statement made by the victim girl is corroborated by the report of P.W.9 who examined the victim girl on 3.2.2007 and report was submitted on 5.2.2007. Therefore, the order of conviction and sentence be upheld.
Having considered the submissions of the parties, the Appellant has been charged with the offence under Section 376 (2) (f) I.P.C. Admittedly, the victim girl was a minor that is below the age of 12 years. The incident was reported by P.W.1, the de facto complainant who at the time of giving evidence has been declared hostile and has stated that no complaint was filed by him. At this stage the said statement of P.W.1 is of no relevance as the ball was set in motion and investigation undertaken. But what is of importance, is the evidence of the victim girl herself being P.W.2. Admittedly, P.W.2 is the injured witness and her evidence would be of vital importance. On scrutinizing her evidence it appears that she has absolved the appellant of the charge of 376 (2) (f) I.P.C. by stating that while she was going to the field of mustard seeds she fell down upside down on the field, as a result one bamboo stick (Kanchi) entered or penetrated her private parts, and, committing sexual abuse by the appellant finds no mention in the evidence of P.W.2.
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P.W.3, the mother of the victim has also given a clean chit to the appellant when in her evidence she states that there are 3 /4 persons with the name Asraful in the village and if he was involved in such incident she would not have given her daughter in marriage to him. She has also not identified the person who committed the evil work on her daughter.
The evidence of P.W.4 and P.W.5 is of no value as though they were tendered for cross-examination, their cross-examination was declined.
The evidence of P.W.6 is nothing but hearsay. Therefore, no importance can be attached to it.
P.W.7 has been declared hostile.
P.W.8 was the first doctor who examined the victim girl though not internally. The examination of the private parts of the victim girl was carried out by P.W.9 who has found the hymen ruptured and perineal tear extending upto the fourchette and the tear was repaired. Therefore, from the evidence of P.W.9 what emerges is that the victim girl was subjected to sexual abuse but to ascertain the person who conducted such sexual abuse it was necessary for the I.O., P.W.14 to conduct a D.N.A. test as suggested by P.W.11, Pathologist. This exercise was not undertaken by P.W.1 and to that extent there has been a lapse on the part of the I.O. in conducting the investigation properly.
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Although the 164 statement has been recorded by the Magistrate, P.W.13 the victim girl has categorically stated in the 164 statement that she was sexually abused by one Asarul but in view of her substantive evidence given in Court the said statement made by her under Section 164 Cr.P.C. statement is of no importance. In fact from a reading of the evidence of the victim girl the commission of offence has not been pointed to any person far less the appellant.
Therefore, the order of conviction and sentence dated 31st March 2010 and 1st April 2010 cannot be sustained in the eye of law and is accordingly set aside.
Before parting, we must mention that the way the case was conducted by the prosecution is far from satisfactory. It may be quite possible that the defence was able to break down the witnesses of the prosecution but ways and means ought to have been found by the prosecution to prove its case to the best of its ability, which the prosecution has failed to do. It is totally unbelievable that in a case where the victim girl of 12 years who admittedly is below 16 years of age was subjected to sexual abuse and the question of with or without her consent not arising, the appellant has to be set free due to the complainant (P.W.1) being declared hostile, and him stating in cross-examination that he did not lodge the complaint.
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It is also unbelievable that in a case under Section 376 (2) (f) the mother, P.W.3 would have stood in the witness box and deposed in favour of the appellant. The victim girl, P.W.2 has also done similarly.
Rape is a heinous crime and to be perpetrated on a minor is more heinous.
It will not be out of place to mention that although P.W.2 has stated in her evidence something which is totally different from her 164 statement before the Judicial Magistrate, yet P.W.2 has not been declared hostile.
Similarly, the mother of the victim girl, P.W.3 has also not been declared hostile and we are therefore compelled to accept their evidence as it emerges.
On an overall consideration of the evidence we find that not only did the I.O., P.W.14 not conduct the case properly by not calling for the D.N.A. Report but no step was also taken by the prosecution's lawyer to prove the case of the prosecution with seriousness.
In view of the order of conviction and sentence being set aside, let the appellant Asarul Hoque @ Ali be released from the concerned Correctional Home forthwith, if not wanted in any other case.
Let a Photostat copy of the order passed this day be communicated to the Superintendent of the concerned Correctional Home. 9
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.