Calcutta High Court (Appellete Side)
Helu Pramanik @ Krishna Gopal & Ors vs State Of West Bengal on 4 April, 2022
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item No. 32
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Bivas Pattanayak
C.R.A. 652 of 2013
Helu Pramanik @ Krishna Gopal & Ors.
-Vs-
State of West Bengal
For the Appellant : Mr. Partha Pratim Das, Adv.
For the State : Mr. Saibal Bapuli, ld. A.P.P.,
Mr. Arani Bhattacharyya, Adv.
Heard on : 04.04.2022.
Judgment on : 04.04.2022
Joymalya Bagchi, J. :-
Appellants have assailed the judgment and order dated 8 th July
2013 and 9th July, 2013 passed by the learned Additional Sessions
Judge, Fast Track, 3rd Court, Malda in Sessions Case 103 of 2009
(Sessions Trial No.8(5) 2009) convicting the appellant No. 1 for
commission of offence punishable under Section 376 of the Indian Penal
Code and all the appellants under Sections 306/34 of the Indian Penal
Code and sentencing the appellant No. 1 to suffer rigorous imprisonment
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for eight years and to pay fine of Rs. 10,000/-, in default, to suffer
rigorous imprisonment for six months more for the offence punishable
under Section 376 of the Indian Penal Code and to suffer rigorous
imprisonment for eight years and to pay a fine of Rs. 10,000/-, in default,
to suffer simple imprisonment for six months more for the offence
punishable under Sections 306/34 of the Indian Penal Code and
directing the appellant Nos. 2 and 3 to suffer simple imprisonment for
two years and to pay a fine of Rs. 5,000/- each, in default, to suffer
simple imprisonment for three moths each for the offence punishable
under Sections 306/34 of the Indian Penal Code.
Prosecution case as alleged against the appellants is to the effect
that the deceased Soma Pramanik was married to one Monmotho
Pramanik of Boalia village eight years ago. Monmotho used to work in
Delhi and returned to his village once in 6-7 months. Four days prior to
the incident, Soma telephoned her father (P.W. 1) and asked him to come
to her matrimonial home. She also telephoned her husband Monmotho
(P.W. 6) and complained that appellant No. 1 had ravished her.
Monmotho returned to his native village on 08.05.2006. On the next day
i.e. 09.05.2006, P.W. 1 came to the matrimonial home of his daughter.
He found his daughter weeping. She disclosed to him appellant No. 1 had
committed rape on her. He had told her not to disclose the incident to
anyone otherwise he would murder her son. Even then, she disclosed the
incident to Promotha Pramanik, her elder brother-in-law. He, however,
did not take any step. Her sisters-in-law, i.e., appellant Nos. 3 and 4
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abused her and called her unchaste. P.W. 1 consoled his daughter and
stated that he would take steps in the matter. He went to the residence of
his relation Niranjan Pramanik for lunch. Thereafter, he heard the
information that his daughter had committed suicide by hanging around
4.00 p.m. Police came to the place of occurrence and held inquest over
the body. On 12.05.2006, P.W. 1 lodged written complaint against the
appellants and Promotha Pramanik which was registered as Chanchal
P.S. Case No. 59 of 2006 dated 12.05.2006 under Sections 498A/306 of
the Indian Penal Code. In conclusion of investigation, charge sheet was
filed under Sections 498A/306/34/376 of the Indian Penal Code.
Charges were framed under Section 376 I.P.C. against the appellant No. 1
and under Sections 498A/306/34 I.P.C. against the appellants and one
Promotha Pramanik. In course of trial, prosecution examined 16
witnesses and exhibited number of documents. Defence of the appellants
was one of innocence and false implication.
In conclusion of trial, the trial Judge by the impugned judgment
and order dated 8th July, 2013 and 9th July, 2013 convicted and
sentenced the appellants, as aforesaid. Promotha Pramanik was
acquitted of the charges levelled against him.
Mr. Partha Pratim Das, learned Advocate appearing for the
appellants submits it is unclear when appellant No. 1 had committed
rape. Charge framed against the appellant No. 1 with regard to rape is
defective since the date stated in the charge is 09.05.2006 i.e. the day on
which the victim committed suicide. There is no evidence that the
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appellants had incited the victim to commit suicide. Suicide note
(Exhibit-10) is doubtful. The note had not been sent for examination by
handwriting expert. Though P.W. 1 sought to prove the handwriting of his
daughter, he admitted in cross-examination, he was unable to read the
note. P.W. 5, mother of the deceased stated her daughter could somehow
sign her name. A.S.I., Bikash Halder who purportedly seized the suicide
note had not been examined. There is no reflection of the suicide note in
the inquest report prepared by the said police officer. Although P.W. 6
spoke of seizure of suicide note, he has not identified the handwriting in
the said note. Comparison of the signature of the deceased in the suicide
note (Exhibit-10) by the trial court with the one appearing at Sl. No. 10 in
the document produced by the defence appears to be inaccurate. There is
no reflection of the existence of the suicide note in the first information
report. Hence, the suicide note appears to be of doubtful origin and has
not been proved in the present case. Appellants, therefore, are entitled to
an order of acquittal.
Mr. Arani Bhattacharyya, learned Advocate appearing for the
State submits evidence of the prosecution witnesses particularly P.Ws. 1,
4, 5, 6 and 14 show that the victim had been forcibly raped by appellant
No. 1. When she tried to get succor, appellant Nos. 2 and 3 abused her by
calling her unchaste and assaulted her. Out of remorse, she committed
suicide. Suicide note was seized at the earliest point of time which is
supported by P.Ws. 1, 4, 5 and 6. Hence, the prosecution case is proved
beyond doubt.
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P.W. 1, Kamal Mandal, is the father of the deceased while P.W. 4
(Animesh Pramanik) and P.W. 5 (Smt. Sabita Mandal) are her uncle and
mother respectively. P.Ws. 1, 4 and 5 deposed 4/5 days prior to the
incident, the deceased had telephoned P.W. 1 and requested him to come
to the matrimonial home. After 4 days, P.Ws. 1, 4 and 5 went to the
matrimonial home of the deceased. They found that her husband had
also returned from Delhi. She complained she had been raped by
appellant No. 1. Other accused persons had ill treated her. P.W. 1
consoled her and stated he would take steps in the matter. Thereafter, he
went to the house of his relation Niranjan Pramanik for lunch. Around
3.30/4.00 p.m. they were informed victim had committed suicide. P.W. 14, Smt. Mouri Kundu, maternal aunt of the deceased, has corroborated their version.
Evidence of the aforesaid witnesses i.e. P.Ws. 1, 4 and 5 is also corroborated by the husband P.W. 6. He deposed on 04.05.2006 he received a phone call from his wife who expressed distress as she had been raped by appellant No. 1. She also stated appellant No. 1 had threatened to kill her son if she disclosed the incident. Hearing this P.W. 6 returned to his native village on 08.05.2006. His wife again narrated the incident to him. He told his wife he would consult co-villagers. He asked his elder brother Promotha why no steps had been taken. Promotha stated his wife was telling a lie. He told his wife to lodge complaint but she refused to do so as it would be a slur on her chastity. 6 On the next day P.W. 1 came to his house and there was a talk over the incident with his wife. Subsequently, his wife committed suicide.
From the aforesaid evidence it appears that the victim lady used to stay alone with her children. Her husband ordinarily stayed at Delhi in connection with his employment. Taking advantage of the situation, appellant No. 1 had ravished the lady. On 04.05.2006 she informed the incident to her husband. She also told her husband that appellant No. 1 had threatened to kill her child if she intimated the incident to anyone. On or about the same day she had also requested her father to come to her matrimonial home. The conduct of the victim lady in disclosing the incident of rape to her husband as well as requesting her father to immediately come to the matrimonial home proves that on or before 04.05.2006 appellant No. 1 had committed rape on her.
Mr. Das argues date of the incident has been stated as 09.05.2006 in the charge. In view of the evidence on record, I am of the view the aforesaid date quoted in the charge is an inadvertent error. However, such defect in charge has not caused prejudice to the appellant No. 1. Evidence on record unequivocally shows on or before 04.05.2006 the victim had been ravished by appellant No. 1. The said appellant was wholly aware of the prosecution case levelled against him and from the tenor of cross-examination it appears that he had not been misled in his defence. Wrong quoting of the date of occurrence in the charge, therefore, in my opinion, has not caused prejudice to the appellant No. 1 and resulted in a mistrial. Even accepting the prosecution evidence, Mr. Das 7 contends the exact date of commission of rape has not been proved. It is true the deceased in her communication to her husband (P.W. 6) or father (P.W. 1) did not specify the exact date of rape. However, from the deposition of P.Ws. 1 and 4 it appears on or before 04.05.2006, the victim was raped by appellant No. 1.
Evidence has come on record that the victim stayed alone with her minor children in the same house with appellant No. 1 at the relevant point of time. This circumstance gave ample opportunity to appellant No. 1 to sexually exploit her. He even threatened to kill her son if she disclosed the incident. Appellant No. 1 was her brother-in-law and the other in-laws did not believe her. Victim was, therefore, hesitant to elaborate the facts even when she narrated the incident to her husband or parents. Accordingly, she did not state the exact date while narrating the incident of rape to them. To disbelieve the victim due to such lapse would be an insensitive approach to appreciate the evidence on record. Statements made by the victim to P.Ws. 1 and 6 prior to her death relating to the incident of rape is admissible under section 32(2) of the Evidence Act as transactions leading to her death. Thus, I am of the view the charge of rape against appellant No. 1 is proved in the instant case.
The other charge i.e. abetment to suicide punishable under Section 306 I.P.C. is primarily sought to be proved through the suicide note (Exhibit-10). Let me see whether the suicide note (Exhibit-10) is a reliable document or not. It is the prosecution case that the suicide note 8 was seized by ASI, Bikash Halder. The said police officer has not been examined in the instant case.
Only P.W. 16, Jitendranath Sarkar, second investigating officer who reseized the suicide note upon taking over investigation on 03.07.2006 has been relied on by the prosecution to prove the seizure of the suicidal note. Though seizure list prepared in connection with the seizure of the suicide note by ASI, Bikash Halder was marked as "Exhibit-3", I am unable to understand in the absence of examination of the seizing officer how the document was proved. Be that as it may, apart from relations of the deceased and her husband there is no independent witness to the seizure of the suicide note. F.I.R. was registered on 12.05.2006 by P.W. 1 (father of the deceased) who was a signatory to the seizure list prepared on 10.05.2006 with regard to the recovery of the suicide note. However, there is no reference to the existence of the suicide note in the F.I.R. lodged by P.W. 2 two days after the so-called recovery of the note. These circumstances give rise to serious doubt whether the suicide note had been recovered on 10.05.2006 as claimed by the prosecution. With regard to the authorship of the suicide note, the same is sought to be proved by P.W. 1 (father of the deceased). Though father of the deceased may be a reliable witness to prove the handwriting of his daughter, in the present case P.W. 1, in cross-examination, admitted he was unable to read the note. Hence, his identification of the handwriting of his daughter is highly risky. P.W. 5 (mother of the deceased) also throws serious doubt with regard to the authorship of the note. She 9 states her daughter was barely able to sign her name. If so, it is incomprehensible how the suicide note came to be authored in clear and good handwriting. Admittedly, the document had not been sent for handwriting expert. Trial Court proceeded to compare the signature in the suicide note with a document containing the signature of the deceased at serial No. 10 produced by defence and identified by her husband (P.W. 6) to be in her handwriting. This Court has compared two documents and it appears that there are significant and palpable differences in the signature affixed to the suicide note by a matured hand and the slanted and shaky signature appearing at serial No. 10 of the document with which P.W. 6 has been confronted. Moreover, P.W. 6 did not corroborate P.W. 1 that "Exhibit-10" was in the writing of his wife.
In view of the aforesaid materials on record, I find it difficult to come to a firm conclusion that the suicide note was, in fact, in the handwriting of the deceased.
Even if the suicide note is not proved, Mr. Bhattacharya, argues other evidence on record would disclose how the appellants abated the suicide. Appellant No. 1 had ravished the victim. She did not find support from her other in-laws. Her sisters-in-law, appellant Nos. 2 and 3, abused her. Although I find strength in the argument of the prosecution with regard to the conduct of the appellant No. 1 who had raped the victim immediately prior to the commission of suicide, her implication of the sisters-in-law is not corroborated by other evidence on record. Evidence of P.Ws. 1, 4 and 5 in this regard are general and 10 omnibus in nature. P.Ws. 1 and 4 merely stated that the appellant Nos. 2 and 3 had abused the victim. They did not allege that the said appellants had called her unchaste which appears only from the evidence of P.W 5. P.W. 6, her husband, is completely silent with regard to any torture inflicted upon the victim by the appellant Nos. 2 and 3. Thus, there is ample evidence on record the appellant No. 1 had taken advantage of the absence of her husband and ravished the victim. He was her brother-in- law and out of fear and shame she was unable to lodge complaint. Unable to bear the agony and humiliation, she committed suicide. Sexual predation by appellant No. 1 of the hapless victim drove her to commit suicide. Hence, charge under section 306 of I.P.C. is wholly established against appellant No. 1. However, oral evidence with regard to conduct of the appellant Nos. 2 and 3 in abetting the suicide of the victim is too sketchy. As I am doubtful as to the genuineness of the suicide note, I am of the opinion it may not be safe to come to an irresistible inference that the said appellants had abetted the suicide of the victim.
Accordingly, conviction and sentence of the appellant No. 1 are upheld. Conviction and sentence of the appellant Nos. 2 and 3 are set aside. Appeal is partly allowed.
It appears that the appellant No. 1 has already served out his sentence. He shall be forthwith released from custody, if not already released and not wanted in any other case, upon executing a bond to the satisfaction of the trial Court for a period of six months in terms of section 437A of the Code of Criminal Procedure.
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Appellant Nos. 2 and 3 shall be discharged from their bail bonds after expiry of six months in terms of section 437A Cr.P.C.
Period of detention suffered by appellant No. 1 during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure.
Let a copy of this judgment along with the lower court records be forthwith sent down to the trial Court at once.
Photostat certified copy of this judgment, if applied for, shall be made available to the appellants upon completion of all formalities.
I agree.
(Bivas Pattanayak, J.) (Joymalya Bagchi, J.) as/akd/sdas/PA (Sohel)