Calcutta High Court (Appellete Side)
Gurupada Das vs The State Of West Bengal on 14 February, 2020
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Before :
The Hon'ble Justice SAHIDULLAH MUNSHI
And
The Hon'ble Justice MD. NIZAMUDDIN
C.R.A. No. 483 of 2014
Gurupada Das
... Appellant/Accused
-Versus
The State of West Bengal
... Respondent
Mr. Kallol Mondal,
Mr. Sabir Ahmed,
Ms. Amrita Chel
Mr. Souvik Das
Mr. Anamitra Banerjee
... for the appellant
Mr. A. K. Maiti
Mr. S. Bardhan
Mr. N.P. Agarwala
... for the State
Heard on : 07.01.2020, 08.01.2020, 10.01.2020 & 13.01.2020.
Judgment on : February 14, 2020
Sahidullah Munshi, J.: This appeal is against the judgment and order of
conviction dated 19th May, 2014 passed by the learned Additional District and
Sessions Judge, 1st Court, Purba Medinipur at Tamluk in Sessions Trial No. 1(12)
of 2012 arising out of Sessions Case No. 259(9) of 2012 convicting the appellant
under Section 376(2)(f) of the Indian Penal Code and sentencing the convict to
suffer rigorous imprisonment for life with fine of Rs.50,000/-, in default to suffer
further imprisonment for 6 months for the offence punishable under Section
376(2)(f) IPC. In short the prosecution case is that on 26.05.2012 at about 10.00
am de facto complainant's daughter (victim girl / prosecutrix) aged about 5 years
while playing outside her house after coming back from school, accused
Gurupada Das called her and took her on his bicycle to a nearby bush near his
house and then allured her in the name of buying biscuit and new garment.
Thereafter, the appellant made a bed with short cloth. It has been alleged that
the accused tried to make the victim sleep and committed offence upon her
person. As the de facto complainant, accused and victim were known to each
other because the appellant's brother Prasanta was the son-in-law of the victim's
grandfather, there had been a conversation between the accused and the
complainant over telephone and, thereafter, the victim was sent by the appellant
to the complainant through his brother, Prasanta.
Alleged incident took place on 26th May, 2012 at 10.00 am but the
complaint was registered on 31st May, 2012. In the complaint it was stated that
due to treatment of the victim the complainant was busy and could not lodge the
complaint in time.
The appellant faced trial before the Court of the learned Additional District
and Sessions Judge, 1st Court, Purba Medinipur at Tamluk in Sessions Trial no.
1(12) of 2012 corresponding to Sessions Case no. 259(9) of 2012 to answer the
charges pertaining to commission of offence punishable under Section 376(2)(f) of
Indian Penal Code, 1860. The said case arose out of Nandakumar Police Station
No. 148/12 dated 31.05.2012 under Section 376(2)(f) of Indian Penal Code, 1860
(G.R.- 777/12) which in turn had been registered for investigation on the basis of
the aforesaid complaint lodged by the complainant Smt. Bhabani Goswami.
It is the further case of the prosecution that after commission of offence,
the accused took the victim girl to a pond nearby his house washed her whole
body and called the de facto complainant to take her daughter. It is the
complainant's assertion that she took the victim immediately to Nandakumar
Block Primary Health Centre (BPHC) and after hearing the entire incident from
the victim, she lodged complaint at a belated stage as she was busy with her
daughter's treatment.
On the basis of the written complaint lodged by the de facto complainant,
mother of the prosecutrix, Nandakumar Police Station started a case being no.
148 of 12 dated 21.05.2012 under Section 376(2)(f) IPC and the accused pleaded
not guilty and claimed to be tried.
In the trial, prosecution has examined as many as 13 witnesses. After
consideration of the documents marked exhibits and the witnesses cited by the
prosecution as also the examination of the accused under section 313 of the
Code of Criminal Procedure, learned Court below came to a finding that the
accused is guilty of committing the offence for which charge was framed.
On perusal of the charge as was framed on 18th December, 2012, Mr.
Mondal appearing for the appellant pointed out that severe discrepancies appear
whereby the learned Judge has simply implicated the accused with the charge of
committing rape under Section 376(2)(f) of IPC as the accused had taken the
victim to a jungle located nearby his house on a bicycle. According to him
framing of the charge is wrong. He also pointed out that in the complaint it is
clearly written by the de facto complainant that her daughter was lured by the
accused by promising to buy biscuits and garment for her whereas in the charge
instead of the word 'lure' the word 'seduce' has been used which is different from
what has been used in the FIR. According to Mr. Mondal the entire prosecution
proceeded on a wrong footing inasmuch as the framing of charge is defective.
PW1 is the victim. Her statement was recorded by the learned Magistrate
under Section 164 of the Code of Criminal Procedure and the same has been
tendered in evidence and marked as Exbt.4.
Mr. Mondal appearing for the appellant submitted that written complaint
which was treated as FIR was lodged after a period of 5/6 days of the incident.
Alleged occurrence is 26.05.2012 whereas the complaint was lodged on 31.05.12.
According to him explanation for this delay has not been satisfactorily explained.
He further submitted that version of the prosecution becomes more improbable
as PW12 the Investigating Officer of this case deposed in Court that it was he
who sent the victim for medical examination and the First Information Report
which was lodged after a delay of 5/6 days, presumably, such delay was caused
due to the victim's admission in BPHC. Mr. Mondal further submitted that the
occurrence of the offence which was noted during framing of charge is not in
harmony with the statement made by the victim girl before the learned
Magistrate while recording her statement under Section 164 of the Code of
Criminal Procedure inasmuch as according to the victim, appellant called her
when she was returning from her school but during the framing of charge it was
stated that the victim was taken away when she was playing in the bank of a
tank near 'her house'. Mr. Mondal next submitted that during framing of charge
the word 'rape' was nowhere mentioned which is violative of the provisions of
Section 211 of the Code which deals with the contents of charge. According to
Mr. Mondal, the charge is defective. He submitted that there are several
discrepancies in the statements of PW1 and the same is contrary to her
statement made under Section 164 of the Code and/or deposition before the trial
Court. He submitted that important witnesses through whom the description of
the occurrence could have been recovered have neither been cited nor have been
examined by the prosecution. Therefore, prosecution has really acted in a half
hearted manner and because of lack of evidence or weak evidence the
prosecution case is bound to suffer a severe jolt, and, resultantly, the judgment
and order of conviction is liable to be set aside and the appellant should be set
free.
Mr. Mondal in course of his submission has relied on the following
decisions:
• Krishan Kumar Malik -Vs. - State of Haryana reported in (2011) 7
SCC 130;
• Raja and Ors. -Vs. - State of Karnataka reported in (2016) 10 SCC
506;
• Bhaiyamiyan alas Jardar Khan and Anr. -Vs. - State of Madhya
Pradesh reported in (2011) 6 SCC 396;
• Sudhansu Sekhar Sahoo -Vs. - State of Orissa reported in (2002)
10 SCC 743;
• Kanju Mohammed alias Khumani and Anr. -Vs. - State of Kerala
reported in (2004) 9 SCC 193 &
• T.T. Antony -Vs. - State of Kerala reported in (2001) 6 SCC 181.
Mr. Maiti, learned advocate appearing for the State submitted that the
appellant was rightly convicted by the trial Court and the argument advanced by
the Appellant that there are contradictions apparent on the face of the evidence
adduced by the prosecution, according to Mr. Maiti, impugned judgment and
order of conviction does not call for any interference. He submitted that the order
under challenge should be confirmed. He submitted that evidence of the
prosecutrix, when she is a minor, and the allegation is of rape, her sole testimony
will be sufficient to inflict punishment upon the accused person or persons
inasmuch as she is not an accomplice where corroboration is necessary. He
submitted that when a minor is a victim of rape, according to the law declared by
the Hon'ble Apex Court sole testimony of the prosecutrix will be sufficient to
impose punishment on the accused. He submitted that even if there is any delay
in lodging the complaint that itself is not so fatal that can lead to a situation
where the accused can claim acquittal. He also submitted that the argument
advanced by the appellant that there are several omission and/or attempt on the
part of the prosecution to improve the case from where it started, but such
improvement/omission does not amount to contradiction and even if there are
contradictions those are not such an extent that it can lead to acquittal of the
accused. Mr. Maiti further submitted that the law relating to the offence under
Section 376 of IPC is very sensitive and severe punishment has been prescribed
under the Code which all Courts are to consider with such seriousness as the
Court requires because such punishments are deterrent in nature and Court
should impose maximum punishment prescribed under the Code. He submitted
that even slightest penetration would amount to the commission of offence under
Section 376 of IPC and therefore, the evidence even if it is not a direct one but if
the prosecutrix has stated it in her 164 statement before the learned Magistrate
or before the Court the possibility of commission of such an offence should be
believed by the Court, irrespective of sufficiency of evidence. He also submitted
that the accused never took the plea during his examination under Section 313
of the Code of Criminal Procedure, to justify that he never committed the offence
rather he has pleaded his innocence only. According to Mr. Maiti the suggestion
given on the basis of the evidence adduced by the prosecution had even not been
contradicted by the defence during its turn of cross-examination. As a result of
which the appellant cannot get any order of acquittal but the order by which the
accused has been sentenced and should remain un-altered. According to Mr.
Maiti under no circumstances the appellant should get any order of bail.
Mr. Maiti in course of his submission relied on the following decisions:
• Wahid Khan -Vs. - State of Madhya Pradesh reported in (2010) 2
SCC 9
• Dharam Das and Ors. -Vs. - State of U.P. reported in AIR 1973 SC
2195.
• State of H.P. -Vs.- Shree Kant Shekari reported in (2004) 8 SCC
153
• Bhimrao Anna Ingawale and Ors. -Vs.- State of Maharashtra
reported in AIR 1980 SC 1322
• Leela Ram (Dead) Through Duli Chand -Vs.- State of Haryana and
Anr. reported in (1999) 9 SCC 525
• State of Punjab -Vs.- Gurmit Singh and Ors. reported in (1996) 2
SCC 384
Citing Wahid Khan (supra) Mr. Maity, learned counsel appearing for the
State drew attention of this Court to the observations made by the Hon'ble Apex
Court with regard to the medical examination report. He submitted that even if it
is found in the medical examination report that hymen is intact, possibility of
commission of offence of rape cannot be ruled out if there is a slightest
penetration is evident and the Court might uphold the order of conviction. In the
present case as we have already pointed out that occurrence of the offence is in
doubt and commission of offence has not been conclusively proved beyond any
reasonable doubt. This case has no manner of application. Corroboration of the
prosecution's story by the medical evidence even if not taken into consideration
in this case, prosecution has not proved that the appellant committed sexual
offence upon the person of the victim.
Mr. Maiti next submitted a decision in Dharam Das (supra) (supra) of the
Hon'ble Apex court to submit that exaggeration and falsehood in the prosecution
evidence are on points destructive of the substance of the prosecution story.
Prosecution case cannot be held to be not believable simply because of
exaggeration or falsehood on point which do not touch the core of the
prosecution story. Mr. Maiti submitted that such exaggeration need not be given
undue importance. Each case has its own fact. The fact on which the evidence
was led were duly considered by the Hon'ble Apex Court in the decision cited by
Mr. Maiti. Ratio that has been laid down in the decision has no bearing in the
present case where the present appellant has been able to show that the trial
Court failed to appreciate the evidence on record. We have already pointed out
that it is not a matter of exaggeration or falsehood on some points but the core
issue whether the appellant took the victim or not has not been proved by the
prosecution save and except the connecting link Prasanta brought victim to the
house of the PW6. Nobody has seen the accused/appellant to take the victim girl
from the house of the PW6 where she was playing after coming back from school
and then she was taken by the accused on a bicycle and to a bush. She was
playing with Puja before she was taken by the accused and she was brought by
Prasanta to the house of PW6. Neither Puja nor Prasanta has been examined.
The chain is incomplete. As to what happened in between is completely invisible.
Therefore, this decision has no manner of application in this case.
State of H.P. (supra) cited by Mr. Maiti to argue that testimony of victim
can be relied on even without any corroboration in material particulars. There is
no doubt about this proposition of law but fact remains testimony of this victim
should inspire confidence of the Court and to gain such confidence other
circumstantial evidence on record have to be considered but simply of a victim
saying that she has been subjected to physical violation someone cannot be
penalized under the provisions of Section 376(2)(f) of IPC without commission of
offence being proved beyond reasonable doubt.
State of Punjab (supra) has been cited on the same line by Mr. Maiti to
show that corroboration is not necessary to consider the evidence of a victim of
sexual assault. This well known decision of the Hon'ble Apex Court has laid down
various guidelines to conduct a trial in respect of a child victim but the ratio in
that case is not applicable in the present one. Question of corroboration by other
witnesses may not be necessary but if the Court finds that the genesis of the case
is wrong and unbelievable then the Court has a duty to consider the benefit of
doubts to acquit the accused. Keeping in mind the principle laid down by the
Hon'ble Apex Court in Pankaj -Vs. - State of Rajasthan reported in 2016 (4)
AICLR 652 (S.C.).
As regards the submission made by the learned counsel for the appellant
with regard to delay of 5 days in lodging the complaint the prosecution has
sought to explain that such delay was caused as the complainant was busy with
the treatment of her daughter/victim. The complainant in her written statement
has stated that "... Prasanta Das left my daughter to my house. Then and there
admitted at the Nandakumar Khejurbera B.P.H.C. She is admitted there until now.
I am praying to you after knowing all about the incident from my daughter." This
version of the de facto complainant does not get corroboration from the
subsequent act and the evidence adduced by the other witnesses. The delay we
have to consider whether justifiable or not. If delay of 5 days in lodging the
complaint could be justified from the circumstances apparent on the record then
one should appreciate that there are bona fide reasons for lodging the complaint
at an earlier stage and if we find that the explanation which was sought to be
given in the written complaint does not get corroboration by other evidence on
record then Court cannot rely on such evidence and particularly, the version of
the written complaint lodged by PW6 the mother of the victim. This PW6 in her
evidence before the Court deposed that on the day of occurrence, her daughter,
the victim, came back from I.C.D.S. School and thereafter, she was playing with
her friend (Puja) on the bank of a tank located nearby the complainant's house.
On coming to learn that one of her relatives took her daughter on a bicycle, after
one hour she spoke to the appellant over cell phone and the appellant told her
that he had taken the victim to his house, when the de facto complainant
requested the appellant to send her daughter to her house at 3.00 pm and
thereafter, the brother of the appellant, Prasanta brought the victim back to the
de facto complainant. According to de facto complainant when she found the
victim she noticed abrasion injury inside her mouth and took her to the B.P.H.C.
for treatment. According to the de facto complainant victim was admitted to
B.P.H.C. and there she remained in the hospital for about 6 days. She further
stated that after 6 days the victim was taken to Purba Medinipur District
Hospital and after 5/6 days she lodged the written FIR with the Officer-in-charge,
Nandakumar police over the incident. While considering such evidence of PW6 it
appears that the same shows a vital contradiction with that of the evidence of the
Medical Officer (PW9) examining the victim and the contents of Exbt.2 being the
injury report of the victim. We have given a serious thought to the contents in the
injury report (Exbt.2) which was prepared by the Medical Officer /Gynecologist
posted at Khejurberia B.P.H.C. on 02.06.2012. Medical Officer at B.P.H.C. who
initially treated the victim deposed that on examination he found certain injuries
at posterior vaginal mucosa - in the process of healing; small tear at external
anal sphincter in the process of healing; 1 cm tear at the skin from posterior and
of vaginal opening towards anal - in the process of healing; no active bleeding
was found on the date of examination; no foreign body was detected at perineum
or inside the vagina. He further deposed that on the day of admission, the patient
was not in a position to speak due to severe bleeding and the doctor recorded
statement of the victim's grandfather Narayan Goswami (PW2). According to him
"Sonali sustained injury due to fall from a running bicycle". According to the
victim's mother the occurrence was on 26.05.2012 and immediately she got her
admitted in the B.P.H.C. where the victim remained for 5/6 days. But
surprisingly, no document namely, bed-head ticket in support of the victim's
admission in the hospital is forthcoming; doctor says the victim was in serious
condition and not in a position to speak due to severe bleeding and was treated
but no treatment sheet is available on record; no prescription is available also
and the recording of examination as is found from the record is that on the day
when the victim was admitted of her injuries were in the process of healing and
"No active bleeding was found on the date of examination" if the patient was
admitted on 26th May, 2012 and when the doctor says she was admitted with
severe bleeding there is no reason to appreciate that the doctor did not prescribe
for the patient on the day when she was admitted; there can be no reason to
show that no active bleeding was found on the date of examination and why the
doctor instead of writing "on the date of admission" wrote "on the date of
examination". In the cross-examination, however, the doctor deposed that victim
was admitted to B.P.H.C., on 26.05.2012 and she was examined by the doctor at
about 1.00 pm. Doctor noted the injuries found on the clinical examination of the
patient along with his opinion. Doctor further deposed that he recorded the
opinion only on 02.06.2012.
It is quite suspicious firstly, because the patient was admitted without any
bed head ticket, secondly, she was admitted on 26.05.2012 due to severe
bleeding but no prescription was given; no treatment sheet is available on record;
although the patient was under medical supervision constantly why the doctor
recorded his opinion only on 2nd June, 2012. It will be more surprising to note
the evidence of another doctor (PW10) who treated the victim subsequently is the
doctor posted at Purba Medinipur District Hospital on 3rd June, 2012 where she
was admitted on the reference being made by the B.P.H.C. Hospital considering
serious nature of the patient. This doctor PW10 recorded the statement and
prescribed medicine.
This PW10 on clinical examination found one old lacerated wound on the
posterior fourchette. No other injury was found. He prescribed medicines for the
patient for healing up the injury. On 05.06.2012 the patient was discharged from
the hospital. Report of this doctor PW10 along with bed head ticket has been
marked as Exbt.3. PW10 reveals that when the patient was admitted to Purba
Medinipur Hospital the doctor recorded the statement of history of assault by
Gurupada Das on 26.05.2012.
Exbt.3 reveals a clinical note-sheet signed by the doctor "Referred from
Khejurbria B.P.H.C. H/O sexual assault by Gurupada Das as stated by Bhawani
Goswami (Mother of the victim) 26/5/12. Abrasion inside the mouth seen. Vaginal
examination not done at E.R. due to lack of examination facilities.
MOIC (signature illegible)"
Then again with some overwriting, '2' had been changed to 3/6/12 and it
was recorded "H/o Sexual assault 9 days back by one Gurupada Das - Admitted
& treated at Khejurberia BPHC..." We find again in Exbt.2, the medical report,
issued by Khejurbera BPHC Hospital, that the finding of the doctor was made on
2nd June, 2012 under the heading 'remark' whereas on the reverse page of that
report under item no.9 it is noted that finding at 6.45 pm on 2/6/12 under the
head 'f' "Recording statement - 02/06/12 (today) on the day of admission.
(i) From patient - because of profuse bleeding and decreased consciousness
and pain - patient was unable to give statement.
(ii) From Narayan Chandra Goswami - he stated that ...this injury due to fall
on ground from a running cycle - in spite of asking whether any sexual assault."
In the selfsame page under paragraph 'g' it is written "For further
investigation patient was referred to DH (Tamluk) next day (03/06/12)
S/D Medical Officer
Khejurberia B.P.H.C"
It is rather surprising that when a medical officer referred the patient on
2nd June, 2012 he writes that the patient was referred to the next day on 3rd
June, 2012 whereas from the District Hospital's endorsement it appears that on
3rd June, 2012 she was treated by another doctor in another hospital vide Exbt.3.
This shows a serious contradiction to the extent that the patient may have been
treated at Tamluk Hospital where the bed head ticket and the doctor's report was
marked as Exbt.3 and statement of the patient party was recorded but in the
previous hospital where allegedly the victim was treated from 26.05.2012 it
cannot be the doctor's opinion that she had been referred to on 03.06.12 for
further investigation, when such endorsement was made on 02.06.12. It is quite
possible that the endorsement of 02.06.12 by the Medical Officer under the seal
of Khejurberia B.P.H.C was manufactured, subsequent to the treatment of the
victim at Tamluk Hospital on 03.06.12. Although, in the remark column it is
written that the injury is in the process of healing and other symptoms are also
in the process of healing why was it necessary to refer the patient to District
Hospital is also not available from Exbt.2. The more serious thing which has
been noticed by us is that the treatment-sheet is not available in the hospital and
it has not been produced before the Court. Screening of evidence of PW9 and
PW10, if those are read together, it is apparent that the victim was not admitted
at Khejurberia BPHC on 26.05.2012 as has been stated in the written complaint
by PW6. While the complaint was registered on 31.05.12 and P.S. case no.
148/12 dated 31.05.12 was started by Nandakumar Police. It is more surprising
to note that in his examination-in-chief the Investigating Officer deposed "I sent
the victim girl to Khejurberia B.P.H.C. for medical examination. Subsequently, she
was referred to Tamluk Hospital by the attending Medical Officer of Khejurberia
B.P.H.C." This deposition if considered seriously it is apparent that the victim girl
was sent for medical examination but not medically examined before the
complaint was lodged and indicates that she was admitted for the first time on
3rd June, 2012 before the Tamluk District Hospital as is evident from two
different note-sheet of the hospital on the same day by the doctor. One at the top
of Exbt.3 without any date and the next note with date on 03.06.12 after
overwriting '2'. There is no document in support of the admission of the victim on
26th May, 2012 the only endorsement is of 02.06.12 when the FIR was forwarded
to the concerned Magistrate that will be apparent from the First Information
Report. This is also a lacuna on the part of the prosecution as to why the case
was referred to the learned Magistrate on 02.06.12 while the FIR was lodged on
31.05.12. From the cross-examination of the Investigating Officer it further
reveals that FIR was received on 21.05.12 and on the same day the case was
endorsed to him for investigation but he did not record the statement of Bhabani
Goswami (PW6). However, IO tried to show an excuse for not recording statement
of PW6 on the ground that the victim girl was admitted in hospital but when in
cross-examination he was asked although, the victim was released on 05.06.12
why could he not record the statement, no answer is forthcoming. In such view of
the case the FIR does not get any corroboration from the evidence on record.
Having regard to the falsity of the FIR the charge brought against the appellant
gets eroded and the accused will surely get the advantage of benefit of doubt. It is
true that the victim girl was produced before the learned Magistrate and her
statement was recorded under Section 164 of the Code of Criminal Procedure.
The learned Magistrate was examined as PW11 where he deposed in Court that
he recorded statement of the victim but there are some contradiction with regard
to the statement of the victim girl and the evidence of the mother (PW6),
grandfather (PW2). This PW2 the grandfather in his cross-examination deposed
that accused Gurupada Das is the elder brother of his son-in-law /Prasanta. It is
on record that after it was learnt by PW6 that her daughter was taken away by
the accused she had talk over cell phone with the accused when she requested
him to send back the victim and thereafter, this Prasanta brought the victim to
the house of PW6. This PW6 is an important witness who made the victim
immediately after the occurrence. There is serious allegation that the victim was
bleeding profusedly after the commission of offence by the accused but no
answer is forthcoming on behalf of the prosecution why Prasanta was not cited
as a witness who could have given the vivid picture of the injury, severe or
ordinary or not at all of the victim. Unfortunately, this witness has not been
examined for the reason best known to the prosecution. The presence of this
witness is important when we find that this Prasanta is an important witness. A
suggestion was given on behalf of the accused in cross-examination that
Prasanta has no enmity with the accused. In this case further lacunae is
apparent to the extent that neither the cell-phone was seized nor any attempt
was made to recover the telephonic conversation between the accused and the
mother (PW6) of the victim (PW1) apart from the fact that Prasanta has not been
examined by the prosecution. We have noticed another discrepancy in the matter
when in the charge framed by the Court below it has been mentioned that
accused took the victim to a jungle nearby his house by riding on his bicycle
whereas PW2/grandfather in cross-examination deposed "There is no bush by the
side of the said road." Further contradiction we have noticed is that the victim
girl PW1 deposed in Court "I came back from the school and thereafter, I started
playing on the bank of a tank located near our house. At that time Gurupada came
there and took me to a nearby bush." The statement before the Court does not
corroborate the statement recorded under Section 164 Cr.P.C. before the learned
Magistrate.
It is also on record from the evidence of PW2 and PW6 who deposed that
the victim was playing when she was taken away by the appellant to a place near
his (accused) house but this is contrary to what the victim herself in her evidence
in Court stated. She stated that the appellant allegedly took her to a bush near
her (victim) house.
Another discrepancy is apparent on the evidence that victim girl while
playing with her friend (Puja) near the bank of a tank near her house when
allegedly the victim was taken away by the accused. This "Puja" would have been
an independent child witness who could assist whether or not the victim was
taken by the accused but this Puja has not been examined by the prosecution.
She was not even cited as a witness by the prosecution. This stand taken by the
prosecution caste a shadow of doubt which has not been removed by any cogent
evidence. It has been already pointed out that victim was in the custody of the
accused after the commission of offence, as has been deposed by the mother PW6
of the victim and this PW6 had a conversion with the accused for sometime when
PW6 asked the accused to return the victim to her house but ultimately, the
victim came back to the house of PW6 with Prasanta, brother of the accused.
This Prasanta took the girl from the custody of the accused and supposedly,
returned her to her mother PW6 but this Prasanta has not been examined by the
prosecution. He was not even cited as a witness by the prosecution and although,
it has been alleged that the victim was profusedly bleeding after the incident took
place. In her statement before the learned Magistrate the victim stated that after
the occurrence of the alleged offence the accused bathed the victim and
thereafter, Prasanta took her to the victim's mother. Since Prasanta has not been
cited as a witness and not examined it gives a shadow of doubt not explained by
the evidence of Investigating Officer. The other possible reason for the accused
being implicated in the instant case that he was the brother of Prasanta having
strained relationship with him and when Prasanta is the son-in-law of PW2
/grandfather of the victim. From the cross-examination of PW2 it is apparent
that there might be some enmity between Prasanta and Gurupada as has been
suggested by the prosecution by the defence but this has not been clarified by
the prosecution even when the IO had been examined. The Investigating Officer
has drawn a sketch map but in that sketch map he has not drawn the location of
the so called bush as is evident from the deposition of PW6, the complainant
mentioned in the written complaint. In his cross-examination the Investigating
Officer admitted that "The bushes are not shown in my sketch map." Admittedly,
the victim was released from Purba Medinipur District Hospital on 05.06.2012 as
is revealed from Exbt.3, it is not understood why the victim was examined by the
Investigating Officer on 12.06.2012 and nothing has been recorded in support of
such delay. The other lacking on the part of the prosecution namely (1) victim's
wearing apparels were never sent to FSL despite those were seized by the
Investigating Agency; (2) Potency test of the accused has not been done by the
Investigating Authority; (3) Bicycle through which the victim was taken away has
never been seized, although, victim never had stated either in her 164 statement
or in her deposition before the Court that she was carried by the accused
through a bicycle.
Krishan Kumar Malik (supra) has been cited by Mr. Mondal to argue that
delay in lodging of FIR is fatal for the prosecution case. This is a settled
proposition of law that if there is any delay prosecution has to satisfactorily
explain such delay. If no explanation is offered by the complainant why this delay
has been caused prosecution case must suffer a severe jolt. In the instant case as
we have already pointed out the genesis of the case appears to be doubtful and
certainly the complaint was lodged on 31.05.12 whereas the commission of
offence took place on 26.05.12 at 10.00 am. We have already pointed out that
she was examined by the doctor for the first time on 02.06.2012 and the
Investigating Officer in his evidence stated that the complaint was received on
31.05.2012. in between 26.05.12 and 31.05.12 what happened, no explanation is
forthcoming. Although, from the formal FIR it is revealed that distance between
place of occurrence and the police station is only 6 km. There is also no
explanation as to why the complaint was forwarded to the learned Magistrate on
2nd June, 2012 while it was received by police on 31.05.12. Therefore, the
decision cited by Mr. Mondal is applicable in the present case and apposite on
the fact situation of the present case.
Mr. Mondal has also pointed out before this Court that according to
Section 6 of the Evidence Act the prosecution is under obligation to examine the
res gestae witnesses. In the present case both Puja and Prasanta appear to be res
gestae witnesses otherwise the chain could not be said to have been completed.
Thus, these two persons would have been the best wishes to lend support to the
prosecution story.
Section 6 of the Evidence Act is set out below
6. Relevancy of facts forming part of same transaction.--
Facts which, though not in issue, are so connected with a fact in
issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Section 6 is of the Act is an exception to the general rule where even hearsay evidence becomes admissible if the evidence sought to be adduced is contemporaneous with the acts and there should not be an interval which would allow fabrication. Admittedly, here the victim was playing with Puja just before she was being allegedly taken away by the accused and she was handed over by Prasanta to her mother allegedly taking her from the accused, therefore, in absence of examination of these two persons the missing link are not found complete.
Raja and Ors. (supra) cited by Mr. Mondal to argue that although it is settled principle of law that evidence of prosecutrix in cases of rape, molestation and other physical outrages may be construed to be of an injured witness, it should be so much so that no corroboration is necessary but at the same time it is ruled that an accused must also be protected against the possibility of false implications. This decision of the Hon'ble Apex Court distinguishes the ratio ruled in State of H.P. (supra) reported in (2004) 8 SCC 153.
In our opinion when the prosecution has not been able to prove the commission of offence by the accused to the hilt as obligated in law the accused person is definitely entitled to the benefit of doubt and there is no other alternative before the Court but to allow the appeal and to hold that prosecution has not been able to prove the case beyond reasonable doubt.
Bhaiyamiyan (supra) has been cited by Mr. Mondal on the same ground for which Krishan Kumar Malik (supra) has been cited. This decision also deals with the fate of the prosecution case where delay in lodging complaint has not been properly explained. In this case there was a delay of 60 hours and FIR could not be lodged at the police station, although, the distance was only 7 km. the Hon'ble Apex Court held that the explanation for delay not satisfactorily explained.
Sudhansu Sekhar Sahoo (supra) has been cited by Mr. Mondal on the question and/or manner of appreciation of evidence. This is also on the issue of delay in lodging the complaint.
Next decision cited by Mr. Mondal in T.T. Antony (supra) on the issue whether immediately after lodging of complaint and the police initiated the case, it should be transmitted to the Magistrate within 24 hours. In the present case the case was initiated on 31.05.2012 whereas it was transmitted to the Magistrate on 02.06.2012 but no satisfactory explanation has been offered by the prosecution. Resultantly, the prosecution should suffer a prejudice and the accused gets the benefit of doubt. Section 154 of the Code of Criminal Procedure deals with lodging of a complaint in respect of a cognizable offence, Section 154 of the Code of Criminal Procedure is set out below:
S.154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
Every information relating to the commission of a cognizable offence, if given orally by the complainant shall be reduced into writing and thereafter, it directs that it would be read over to the informant. Section further requires that every such information whether given in writing or reduced to writing shall be signed by the informant and thereafter, the substance of such information shall be entered into the diary. It will be relevant to note that a further directive contained in Sub-section (1) of Section 157 Cr.P.C. provides that immediately after receipt of information, the Officer-in-charge of the police station shall send the report of every cognizable offence to a Magistrate empowered to take cognizance of the offence and thereafter, to proceed to investigate or to depute his subordinate officer to investigate the facts and circumstances of the case. Sub- section (2) of Section 157 entitles the informant to receive a copy of the information as recorded under Sub-Section (1) free of costs. Sub-section 3 says that in the event of an Officer-in-charge of a police station refusing to record information as provided under Sub-section (1), the person aggrieved thereby may send the substance of such information in writing and by post with the superintendant of police concerned who has given an option either to investigate the case himself or direct the investigation to be made by a police officer subordinate to him, in the manner provided by Cr.P.C., if he is satisfied that the information discloses the commission of a cognizable offence. Any police officer to whom investigation is entrusted by the superintendant of police has all the powers of an officer-in-charge of the police station in relation to that offence. In that view of the matter and the requirement under Section 157 Cr.P.C the purpose of making this provision in the Code is to ensure that there is no possibility of extortion or exaggeration in the complaint before the police. Mere delay in dispatch of the FIR itself may not be good ground to throw away the prosecution case in its entirety but sending the report to the concerned Magistrate is an important circumstance which provides a basis to raise suspicion that the FIR is the result of consultation and deliberation and it was recorded much later than the date and time mentioned in it and discloses that the investigation is not fair. Therefore, this important criteria, if not fulfilled and subsequently if the prosecution is not able to highlight the reasons therefor, the prosecution case is bound to suffer prejudice.
Evidence of PW9, PW10 and PW12 if read together it cannot be wiped out that there was a possibility of not the accused having committed sexual assault upon the victim inasmuch as PW2 stated before the Doctor (PW9) that PW1 victim suffered injury due to fall from a running bicycle and doctor in the note- sheet noted that PW2 stated that injury caused due to fall from the bicycle despite asking whether was there any sexual assault or not. This gives rise to a suspicion in the evidence adduced by the prosecution and it does not show that prosecution has been able to prove the case against the accused beyond any reasonable doubt.
Therefore, judgment of conviction delivered by the Court below and sentence imposed in pursuance thereof cannot be sustained and the same is liable to be set aside. Accordingly, the order of conviction and sentence are hereby set aside.
The accused/appellant is set free.
The concerned correctional Home is directed to release the appellant forthwith. Department is directed to communicate a copy of this order to the concerned jail authority.
The Criminal Section is directed to send down the records to the learned Court below together with a copy of the judgment forthwith to the concerned learned trial Court.
Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities.
I agree.
(Md. Nizamuddin, J.) (Sahidullah Munshi, J.)