Calcutta High Court (Appellete Side)
Santosh Jaiswal @ Santosh Kumar Jaiswal vs The State Of West Bengal on 7 December, 2017
Author: Debi Prosad Dey
Bench: Debi Prosad Dey
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debi Prosad Dey
CRA 186 of 2009
Santosh Jaiswal @ Santosh Kumar Jaiswal............Appellant
Vs.
The State of West Bengal......Respondent
For the Appellant : Mr. Subir Banerjee
: Mr. Jayanta Banerjee
: Mr. Sandip Bandyopadhyay
For the State : Mrs. Anasuya Sinha
Heard on : 13.11.2017, 28.11.2017
Judgment on : 07.12.2017
Debi Prosad Dey, J. :-
1. This appeal is directed against the judgement and order of conviction dated 25th February, 2009/26th February, 2009 passed by the learned Additional Sessions Judge, Fast Track, 3rd Court, Siliguri in sessions trial no. 19 of 2006 (sessions case no. 22(s) 2006) whereby and whereunder learned Judge has convicted the appellant for the offence under Section 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.5,000/- only in default to suffer simple imprisonment for 1 year.
2. Being aggrieved by and dis-satisfied with such judgement and order of conviction, the appellant has preferred this appeal on amongst other grounds that learned Trial Judge could not appreciate the evidence of the victim in its true perspective since the victim did not ever complained of any such sexual assault by the appellant and that the victim has categorically stated in her cross examination that she had filed such case only in order to compel the appellant to marry the victim.
3. The further ground of this appeal is that learned trial Court did not consider the settled principle of law that mistake of fact does not come under the purview of Section 90 of the Indian Evidence Act and the Hon'ble Apex Court has been pleased to settle the law in very many decisions but learned trial Court did not at all consider the settled principle of law and thereby came to an erroneous decision by convicting the appellant.
4. The case of the prosecution as unfolded in the first information report is that the victim aged about 23 years, developed an intimacy with the appellant for a long time and about 2 years ago from the date of filing such first information report the victim and the appellant started having physical relationship and the appellant assured the victim to marry her. On 15th April, 2005 at about 9 a.m. the victim came to Siliguri and thereafter went to a hotel named after Shine in City along with the appellant and the appellant forcibly committed rape on the victim against her will. The victim thereafter went to the police station at about 10.30 p.m. and lodged a written complaint.
5. On the basis of that written complaint Matigara police station case no. 32 of 2005 dated 15th April, 2005 was started against the appellant under Sections 493/376 of the Indian Penal Code.
6. The victim was thereafter examined by the doctor and her statement was recorded under Section 164 of the Code of Criminal Procedure by learned Magistrate. After completion of investigation the investigating officer submitted charge sheet against the present appellant.
7. The appellant was charged under Sections 493 and 376 of the Indian Penal Code. The contents of charge were read over and explained to the appellant to which he pleaded 'not guilty' and claimed to be trial.
8. In order to bring home the charges under Sections 493 and 376 of the Indian Penal Code the prosecution has examined as many as 10 witnesses. The appellant pleaded 'not guilty' for alleged occurrence during his examination under Section 313 of the Code of Criminal Procedure but the appellant did not adduce any defence witness.
9. Learned trial Court acquitted the appellant for the offence under Section 493 of the Indian Penal Code but convicted the appellant for the offence under Section 376 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for a term of 7 years and to pay a fine of Rs.5,000/- in default to suffer rigorous imprisonment for 1 year.
10. Learned Advocate appearing on behalf of the appellant contended that learned trial Court has not properly appreciated the evidence of the victim as well as the case of the prosecution as unfolded in the First Information Report. It is further submitted that the victim never stated on oath before the trial Court that she was subjected to such sexual torture by the appellant, on the contrary she had relied on her statement made in the First Information Report. She also did not whisper anything about her statement recorded under Section 164 of the Code of Criminal Procedure. Learned Advocate appearing on behalf of the appellant contended that 'rape' is a legal conclusion that has to be arrived at on the basis of the statement of the victim and the doctor is not at all competent to say as to whether rape was committed or not simply on the ground that the evidence of the doctor is opinionative in nature and such opinion of the expert cannot be take the place of proof. Learned Advocate appearing on behalf of the appellant has relied on the decisions reported in (2013) 7 SCC 675 (Deepak Gulati Vs. State of Haryana) and (2003) 4 SCC 46 (Uday Vs. State of Karnataka) in support of his contentions learned Advocate for the state however supported the judgment delivered by learned trial Court on the ground that the victim has categorically stated that she was subjected to sexual torture by the appellant inside a hotel on 15th April, 2005 and the doctor has fully corroborated the factum of rape. In that view of this case, learned Advocate for the State contended that learned trial Court was justified in recording the conviction of the appellant under Section 376 of the Indian Penal Code and in sentencing the appellant for rigorous imprisonment for 7 years.
11. It would not be out of place to mention in brief about the evidence on record in order to come to a logical finding as to how far learned trial Court was justified in recording such conviction against the appellant and in sentencing the appellant to suffer rigorous imprisonment for 7 years. Prosecution witness no. 1 Bablu Dan is a resident of Mallaguri and on 15th April, 2005 he was present in Shine City Hotel at Mallaguri. According to prosecution witness no. 1 Santosh Jaiswal and one Uma Jaiswal (female) had been to the hotel and requested for providing them one room and accordingly room no. 104 of their hotel was allotted in their favour. This witness had sent the bill of that room through one of the employees of their hotel and thereafter he remained busy with other works of the hotel. On being directed that Santosh Jaiswal replied that he wanted to stay in such hotel for some time along with his wife. Prosecution witness no. 1 has also proved a signature on the seizure list vide exhibit 1/1. In his cross examination this witness has stated that he has got no document to show that on the fateful date he was working as manager of hotel Shine City at Mallaguri. This witness has also refused to identify the appellant on dock stating inter-alia that the person kept inside the dock did not disclose his name as Santosh Jaiswal. The Register maintained by hotel has been produced in Court and marked exhibit 8. It is therefore apparent from the scrutiny of the entire evidence witness no. 1 that some person named after Santosh Jaiswal along with his wife might have stayed in room no. 104 of the hotel but the witness could not identify the appellant as the person who had disclosed his name as Jaiswal and that the person who had stated in room no. 104 of that hotel on 15th April, 2005. Therefore, the evidence of prosecution witness no. 1 does not prove conclusively that on 15th April, 2005 the victim accompanied by the appellant had been to such hotel and stayed there. This witness also had no occasion to identify the victim as the person, who accompanied the appellant to that hotel on that fateful date. In absence of any such identification, it is not possible to hold simply on the basis of exhibit 8 (register of the hotel) and on the basis of such statement of prosecution witness no. 1 that victim and the appellant stayed in that particular hotel on 15th April, 2005.
12. Prosecution witness no. 2 a lady constable no. 1366 Rajani Chhettri was posted at Matigara police station on 15th April, 2005. Be it mentioned here that the hotel Shine City is situated at Mallaguri and as per prosecution witness no. 1 one Santosh and Uma had been to the hotel in the morning time. Prosecution witness no. 2 Rajani Chhettri on the other hand stated that at about 10.30 p.m. the victim came to the police station and stated that one Sanjay Jaiswal took her to Shine City Hotel alluring her to marry and do "Kharap Kaj" in such hotel. Such information was recorded in the official Register of the police station and thereafter they went to the hotel as well as to the residence of Santosh Jaiswal. The Panty of the victim was seized under a proper seizure list. The signature of witness no. 2 has been marked as exhibit 2/1. In his cross examination the witness has fairly stated that she has had no personal knowledge as to whether rape was committed on the victim or as to whether there was any love affairs in between the appellant and the victim. The witness appears to be formal in nature and does not prove that victim was subjected to any sexual torture by the appellant. Prosecution witness no. 3 Shri Priyajit Chatterjee was posted as Judicial Magistrate, 2nd Court, Siliguri and on 19th April, 2005 as per the direction of the then learned Sub-Divisional Judicial Magistrate, Siliguri he recorded the statement of victim under Section 164 of the Code of Criminal procedure. The said statement of the victim has been marked exhibit 3.
13. Curiously enough the prosecution did not confront the victim in respect of her statement that was recorded by learned Magistrate and which has been marked as exhibit 3. The victim also did not whisper anything about recording of such statement by learned Magistrate.
14. It is well settled principle of law that the statement recorded under Section 164 of the Code of Criminal Procedure is not substantial evidence but the said statement may be used for the purpose of contradiction or corroboration. That having not been done, the statement recorded under Section 164 of the Code of Criminal Procedure (exhibit 3) cannot be taken into consideration in deciding the actual dispute.
15. The victim has been examined as prosecution witness no. 4. In order to appreciate the entire evidence of the victim I would like to reproduce the same herein below:
"This is the F.I.R. lodged by me by my own handwriting against accused Santosh Jaiswal. After writing the F.I.R. I put my signature in English.
Accused committed torture on me by giving promise to marry me on 15.4.05. I was raped by the accused and he promised to marry me. In my F.I.R I stated everything. F.I.R. is marked as Ext. 4. The witness identified the accused person on the dock. Police investigated the case. I was medically examined. The incident of rape occurred in Hotel Science City. I was acquainted with the accused since my childhood.
Cross Examination by the defence:-
My father died in the year 1988. We used to run our family by family pension and by doing cane works. I know accused has a show room for cane works. My mother and I for a long time used to supply cane works to the Show Room and we used to get daily wages for that work. I read upto B.A. 2nd Year. I went to Science City only on one occasion. After lodging of the F.I.R. I sworn in an affidavit to the effect that I lodged the F.I.R. falsely as I had love affairs with accused Santosh Jaiswal and in order to marry her I put false allegation of sexual harassment against him. This is that affidavit. The affidavit is marked as Ext-A. After the demise of my father my mother became my guardian. On that date my mother also sweared an affidavit. This is the affidavit bearing the signature of my mother. The signature of Rama Chakravorty is marked Ext.B. Subsequently we also informed the P.S. about the actual fact. I do not know Rakesh Roshon @ Munna. I had no dispute with said Rakesh Roshan. Rakesh Roshon never did anything in my residence in dark at night.
Not a fact that Rakesh Roshon and I were produced before Jalpaiguri Court in connection with the said incident.
At present I am married and I am spending my matrimonial life in peace.
Not a fact that I lodged the F.I.R. falsely as I had one sided love towards accused Santosh Jaiswal."
16. It is evident from such evidence of the victim that she is acquainted with the appellant since her childhood and she used to supply cane work to the show room of the appellant and thereby she became intimate with the appellant. Admittedly, the victim is aged about 23 years and she read up to B.A., 2nd Year. The victim has admitted in her cross examination that she sworn in an affidavit by stating inter-alia that she had lodged the first information report falsely since she had love affair with Santosh and in order to marry Santosh she had put false allegations of sexual harassment against him. Not only that, the victim has further admitted in her cross examination that her mother had also sworn in another affidavit corroborating her that the false information was lodged against the appellant in order to compel the appellant to marry the victim.
17. It is, therefore, apparent that for a long time the victim and the appellant were known to each other on account of supply of cane work to the show room of the appellant and that the victim wanted to marry the appellant. It is also apparent from the cross examination of the victim that such case was started at the behest of the victim only in order to put pressure upon the appellant to marry her. It may be that both the parties developed intimacy due to their association with each other since their childhood and the victim thus developed a desire to marry the appellant. The cross examination of the victim has virtually destroyed the entire case of the prosecution and there is absolutely no scope to ignore altogether the cross examination of the victim which clearly reveals that the victim is an intelligent lady aged about 23 years and she had requisite intelligence to understand the impact of physical relationship with the appellant without having any marital tie between the parties.
18. It has been observed by the Apex Court in Uday Vs. State of Karnataka(supra) "Keeping in view the approach that the Court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown up girl studying in a college. She was deeply in love with the appellant. She was however aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily, and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.
There is another difficulty in the way of the prosecution. There is no evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition from them. Even the prosecutrix stated that she had full faith in him. It appears that the matter got complicated on account of the prosecutrix becoming pregnant. Therefore, on account of the resultant pressure of the prosecutrix and her brother the appellant distanced himself from her."
19. The self - same proposition of law has also been accepted by the Hon'ble Apex Court in the decision reported in Deepak Vs.. (Supra) "The instant case is factually very similar to the case of Uday(Supra), wherein the following facts were found to exist: I. The prosecutrix was 19 years of age and had adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to. II. She was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor.
III. It was difficult to impute to the accused knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her.
IV. There was no evidence to prove conclusively, that the appellant had never intended to marry the prosecutrix.
23. To conclude, the prosecutrix had left her home voluntarily, of her own free will to get married to the appellant. She was 19 years of age at the relevant time and was, hence capable of understanding the complications and issues surrounding her marriage to the appellant. According to the version of events provided by her, the prosecutrix had called the appellant on a number given to her by him, to ask him why he had not met her at the place that had been pre- decided by them. She also waited for him for a long time, and when he finally arrived she went with him to the Karna Lake where they indulged in sexual intercourse. She did not raise any objection at this stage and made no complaints to anyone. Thereafter, she also went to Kurukshetra with the appellant, where she lived with his relatives. Here to, the prosecutrix voluntarily became intimate with the appellant. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the appellant at the Birla Mandir. Thereafter, she even proceeded with the appellant to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married in court at Ambala. However, here they were apprehended by the police.
24. If the prosecutrix was in fact going to Ambala to marry the appellant, as stands fully established from the evidence on record, we fail to understand on what basis the allegation of "false promise of marriage" has been raised by the prosecutrix. We also fail to comprehend the circumstances in which a charge of deceit/rape can be leveled against the appellant, in light of the afore-mentioned fact situation."
20. Therefore, in absence of any identification from any of the witnesses it cannot be said that the appellant and the victim had been to Shine City hotel on 15th April, 2005 in the morning. The prosecution has failed to produce any witness to show that in fact the victim and the appellant were inside room no. 104 of Shine City Hotel on that fateful date. No article from that room has been seized by the prosecution in order to justify that in fact any such offence was committed in the said room on that fateful date. Prosecution witness no. 2 has categorically stated that immediate after having such information from the victim, they had been to the hotel but did not seize any material from inside the room of the said hotel.
21. Prosecution witness no. 5 is an employee of Shine City Hotel but he could not say anything about the alleged occurrence or about the appellant or the victim. This witness has been declared hostile and I do not find any material in the evidence of prosecution witness no. 5 either in favour of the prosecution or in favour of the defence.
22. Prosecution witness no. 6 SI Pranab Sikdar was posted as officer in charge of Matigara police station on the fateful date and he endorsed the case to sub inspector P. S. Chanda for investigation. The endorsement of prosecution witness no. 6 and the formal FIR have been marked exhibit 4(a) and exhibit 5. This witness is a formal witness. Prosecution witness no. 7 Assistant Sub-Inspector of Police was present when the motorcycle of the appellant was seized and he has proved his signature on the seizure list vide exhibit 6.
23. Prosecution witness no. 8 Assistant Sub-Inspector of Police Ranjit Kr. Pal signed on the seizure list prepared by the investigating officer at the time of seizure of the Panty of the victim vide exhibit 2. Prosecution witness no. 9, Dr. Saibal Gupta however on after examination of the victim has stated that there were evidences of recent forcible sexual intercourse within 24 hours of conducting such examination of the victim and the doctor found injuries both in the private parts as well as on other parts of the body.
24. In his cross examination the doctor has admitted that he did not find any lacerated injury on the private parts of the victim at the time of examination and he mentioned in his report that the rupture of hymen was old one. The doctor has further agreed that the lacerated injury or rupture of hymen may be caused otherwise than sexual intercourse.
25. The doctor has further admitted that it is not possible for him to find regarding recent sexual intercourse without having FSL report.
26. Rape is a legal conclusion which has to be drawn from the evidence of the victim. The evidence of the doctor is opinionative in nature and cannot take the place of proof. It is absolutely not possible on the part of the doctor to say conclusively that the victim was subjected to sexual assault that too within 24 hours from the date of examination. The doctor can examine the victim clinically and then can point out the injuries apparent on the private parts or on the person of the victim. The doctor did not find any injury either in the private parts or on the body of the victim. It is evident from such evidence of the doctor that the hymen was ruptured long ago. In that view of this case the doctor is not at all competent to say whether the victim was subjected to recent forcible sexual intercourse or not. The victim herself has categorically stated in her case that such case was started only to put pressure on the appellant so that the appellant got married with the victim. The victim has even filed an affidavit admitting such fact and which has been admitted in evidence as exhibit A on behalf of the appellant. The affidavit in the same line of the mother of victim has also been admitted in evidence and marked exhibit B on behalf of the appellant. She has admitted in her cross examination that such case was filed only to put pressure on the appellant so that the appellant could marry the victim. Therefore, the evidence of the doctor will not prove that the victim was subjected to sexual torture on the fateful date by the appellant.
27. Prosecution witness no. 10 S.I., P. S. Chanda investigated the case and submitted charge sheet against the present appellant. The seized panty of the victim was sent for FSL examination and the expert did not find any semen on such panty of the appellant. There is absolutely no mention in the report of the doctor that the victim was undergoing period. The blood sample of the victim was not obtained by the investigating officer. The blood sample of the appellant was also not taken by the investigating officer. Therefore, it would be difficult to hold that the panty of the victim was smeared with the blood of the victim or smeared with the blood of of the appellant.
28. Curiously enough the appellant was never examined by any doctor to ascertain that the appellant was capable of having sex. The prosecution is duty bound to prove that the appellant is capable of having sex. That having not been done, the benefit of doubt must go in favour of the appellant.
29. There is a marked departure of the case of the prosecution compared with the information divulged in the first information report. It has been clearly stated in the first information report that the victim had physical relationship with the appellant for a long time on the assurance of the appellant that he would marry the victim.
30. The victim is aged about 23 years and she used to supply cane works to the show room of the appellant. The victim is intelligent enough to understand that any such proposal of marriage would obviously be negated by the family members of the appellant for the appellant due to the social position of both the parties. However, the victim developed intimacy with the appellant and they might have established physical relationship between themselves on the assurance of marriage of the appellant. Lastly the victim had requisite intelligence to realize the impact of unbrridled sex with the appellant on the promise of marry and in any view of the circumstances, it cannot be said that even if there be any such relationship between the parties, the said fact would come within the purview of Section 376 of the Indian Penal Code. The prosecution has also failed to prove that on the fateful date the appellant and the victim were in room no.. 104 of Shine City Hotel. The victim and the appellants were never identified by any competent person of that hotel to establish that they were there in that hotel on 15th April, 2005. No article from that room has been seized by the prosecution to show that any such occurrence took place inside that room on 15.04.2005. The victim herself has admitted by filing an affidavit that a false case was started against the appellant only in order to marry him. The mother of the victim, is also the author of another affidavit in the same line, who has not been examined by the prosecution. However, such affidavit of mother of the victim has been marked exhibit B on behalf of the appellant.
31. The proposition of law as enunciated by the Hon'ble Apex Court in the decisions referred to hereinabove have also supported the case of the appellant in the context of the given facts and circumstances. In the result the appel succeeds. The order of conviction and sentence passed by learned Additional District and Sessions Judge, Fast Track, 3rd Court, Siliguri in sessions trial no. 19 of 2006 and in sessions case no. 22(S) /06 is thus set aside. The appellant Sanjay is found 'not guilty' for the offence under Section 376 of the Indian Penal Code and he is acquitted from the said charge. The appellant be set at liberty forthwith if not required to be detained in connection with any other case.
32. Let a copy of this judgement be forwarded to the trial Court forth with for information and necessary action.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Debi Prosad Dey, J.)