Calcutta High Court (Appellete Side)
Ashok Golay vs State Of West Bengal on 8 August, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ravi Krishan Kapur
C.R.A. 737 of 2014
Ashok Golay
-Vs-
State of West Bengal
For the Appellant : Mr. Partha Sarathi Bhattacharyya, Sr. Adv.
For the State : Mr. Saswata Gopal Mukherjee, Ld. P.P.,
Mr. Partha Pratim Das, Adv.
Heard on : 08.08.2018
Judgment on : 08.08.2018
Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order dated 27.08.2014
and 28.08.2014 passed by the learned Additional District and Sessions Judge,
2nd Court, Darjeeling in Sessions Trial No. 12 (1)/2014 arising out of Sessions
Case No. 8/2014 convicting the appellant for commission of offence punishable
under Section 376(1) of the Indian Penal Code and sentencing him to suffer
rigorous imprisonment for 10 years and to pay fine of Rs.10,000/-, in default, to
suffer rigorous imprisonment for six months more.
The prosecution case as alleged against the appellant is to the effect that
on 18.09.2013 uncle of the victims (P.W.9) noticing suspicious behaviour on the
part of the appellant in going to the residence of the victims in the absence of
their parents, called him to discuss the matter in the evening. The appellant did
not turn up in the evening. On the next day i.e. 19.09.2013 when the appellant
turned up, the victims, P.Ws.5 and 6 complained that they have been sexually
exploited by him. Over such issue, P.Ws.5 and 6 lodged a joint complaint with
the police station resulting in registration of Kalimpong Police Station Case
No.248 of 2013 dated 19.9.2013 under Section 376 of the Indian Penal Code. In
conclusion of investigation, charge sheet was filed against the appellant. The
case being a sessions triable one was committed to the Court of Sessions and
transferred to the Court of the Additional District and Sessions Judge, 2nd Court,
Darjeeling for trial and disposal. Charge was framed under the aforesaid
provision of law. The appellant pleaded not guilty and claimed to be tried. In the
course of trial, prosecution examined 14 witnesses and exhibited a number of
documents. In conclusion of trial, the trial Judge by the impugned judgment and
order dated 27.08.2014 and 28.08.2014 convicted and sentenced the appellant,
as aforesaid.
Mr. Bhattacharyya, learned Senior Advocate appearing on behalf of the
appellant submitted that the charge framed in the instant case is woefully vague
and does not comply with the basic requirements of Section 212 of the Code of
Criminal Procedure. Date and time of occurrence has not been specifically stated
in the charge. It is a rolled up charge where allegation of rape of P.W.5 and P.W.6
have been clubbed together. Framing of charge in such manner has severely
prejudiced the appellant and had occasioned failure of justice. Not only that, the
evidence of P.W.5 and P.W.6 is gloriously vague as to the time and date on which
they had been ravished by the appellant. P.W.5 claimed that she was ravished
once in the house of Panchay Sundas and on another occasion in that of the
appellant. P.W.6 claimed that she was ravished in a bamboo cluster which is a
public place open to public view. Evidence on record does not specify the time
and date of the occurrence and there is no explanation as to why the victims
kept quiet about the allegations of forcible rape in the instant case. He
accordingly prayed for acquittal of the appellant.
Mr. Mukherjee, learned Public Prosecutor along with Mr. Das, learned
advocate appearing on behalf of the State argued that the victims have narrated
the incident of rape to their guardians on 19.9.2013 when the appellant was
questioned. They have also described the manner and circumstance in which
they had been ravished in the past. Medical evidence shows hymens of the
victims were not intact which probabilities that they were exposed to sexual
intercourse. Hence, the appeal is liable to be dismissed.
In the light of the issues raised by the appellant let me first examine the
charge framed in the instant case.
The charge reads as follows ;
"That on the 19th Day of September 2013 a complaint was lodged by one
Miss Srijana Tasmang, d/o Dawa Tamang, of Dr. Grahams Homes, Kalimpong
to the effect that YOU have sexually exploited the complainant and her
younger sister Miss Radha Tamang since long in the absence of their
parents at home by taking them to their uncles house in the same area and
thereby YOU have committed an offence punishable under 376 (1) of the
Indian Penal Code."
Section 212(1) of the Code of Criminal Procedure reads as follows;
"Particulars as to time, place and person.- (1) The charge shall contain such
particulars as to the time and place of the alleged offence, and the person (if
any) against whom, or the thing (if any) in respect of which, it was
committed, as are reasonably sufficient to give the accused notice of the
matter with which he is charged."
Perusal of the aforesaid provision of law shows that particulars as to time
and place of the alleged offence has to be, inter alia, stated in the charge so as to
give reasonable and sufficient notice to the accused with regard to the accusation
levelled against him. When the aforesaid charge is read from such perspective, it
is clear that the expression 'since long' in the charge is so vague and non-specific
that no man of ordinary prudence would be able to answer the accusation which
is couched in such generic expression relating to time and date of occurrence.
Furthermore place of occurrence has been stated to be 'uncle's house' of the
victims. Neither the name of the said uncle nor other particulars have been
stated therein as to give sufficient notice to the appellant with regard to the place
of occurrence. It is also pertinent to note that the charge is a rolled up one where
the allegations of rape of both the victims have been clubbed under one head.
Framing of charge is a vital step in the trial of an accused. By such exercise the
accused is put on notice as to the accusation which he is to answer and absence
of relevant particulars in the charge, as in the present case, would ordinarily
cause prejudice to him and occasion failure of justice unless from the
circumstances appearing from the case, it appears that the accused had
otherwise notice of the particulars of the accusation and had the opportunity to
rebut the same. In the backdrop of such vagueness in the charge, I have sought
to examine the evidence of prosecution witnesses to make an endeavour to find
out whether particularisation of the accusation are discernable from the evidence
on record. In this regard, evidence of P.W.5 and P.W.6, the victims of the case,
are most relevant.
P.W.5 deposed that the appellant called her to the house of Panchay
Sundas, whom she addressed as Kaka and raped her. On previous occasion, she
had been raped in the house of the appellant. She made statement before the
Magistrate and proved her signature thereon. She deposed that she was
medically examined on 19.09.2013.
In cross-examination, she stated that in the house of Panchay Sundas, his
wife and daughter used to reside.
P.W.6 the other victim stated that in the morning the appellant had raped
her thrice in a bamboo cluster. She made statement before the Magistrate under
Section 164 Criminal Procedure Code. She was medically examined on
19.09.2013.
In cross-examination, she stated that the bamboo cluster is about one minute from her residence. In between her house and bamboo cluster there is the house of Panchay Kaka. There are several houses surrounding the bamboo cluster.
Prosecution had also examined other family members of the victims, namely, their father, P.W.1, uncle, P.W.9 and aunt, P.W.3.
P.W.1, Dewa Tamang, deposed that he came to know that on 19.09.2013 that there was a quarrel between the appellant and his brother Chandra Tamang. Sangita Tamang, his sister-in-law, P.W.3 told him that appellant had sexually exploited his daughters and quarrel occurred on such issue. Police seized the Birth Certificates of his daughters. He signed on the seizure list.
In cross-examination, he stated that the distance of his house from the residence of the appellant is half an hour. House of the daughter of the appellant is adjacent to his house. The appellant frequently visited his daughter's house. There was quarrel over distribution of water between P.W.1 and the daughter of the appellant. Relation between the appellant and P.W.1 deteriorated over such issue. A Panchayat was held over the quarrel with the appellant.
P.W.3, Smt. Sangita Tamang, is aunt of the victims. She deposed that on 18.09.2013 the appellant had a discussion with her husband. The appellant stated that he would meet her husband. Thereafter, he did not do so. On the next day when he came the victims stated that the appellant had sexually exploited them since long.
P.W.9, Shri Chandra Tamang, is the uncle of the appellant. He stated that he had seen the appellant to go to the house of the victims when their parents were not there. He rebuked the appellant and called him to discuss the matter in the evening. Appellant did not turn up on that day. He turned up on the next day. At that time victims disclosed that they had been subjected to sexual exploitation by the appellant. In cross-examination he stated that he is the uncle of the victims and resided in the house of the victims.
P.W.7, Smt. Pratima Chettri, and P.W.8, Smt. Sarifa Sarki, are the neighbours of the victims. They have corroborated the fact that when the appellant was called by Chandra Tamang and Sangita Tamang, the victims narrated that they had been subjected to sexual exploitation by the appellant.
P.W.13, Dr. Sharon Dikthit Foning is the medical officer who examined the victims on 19.09.2013. He found that the hymens of the victims were not intact but no injury was found on their bodies including private parts. He opined that although the victims complained that they were sexually exploited by the appellant, it could not be ascertained that where and when they had been subjected to sexual exploitation.
P.W.14, Praveen Gurung, is the investigating officer in the instant case. During investigation he sent the victims for medical examination. He prepared rough sketch map of the place of occurrence along with index marked as Ext.-9 and Ext.-9/1 respectively. He recorded statements of the witnesses. He verified the age of the victim girls and seized their birth certificates marked as Ext.-1/2. He also filed charge-sheet.
Analysis of the aforesaid evidence would make it amply clear apart from the fact that on 19.09.2013 the victims had complained of sexual exploitation by the appellant when the latter was confronted by their uncle, P.W.9, there is no evidence on record establishing the date and time when the said victims had been sexually exploited. P.W.5 did not state either the date or time when she had been subjected to sexual exploitation in the house of the appellant or at the residence of Panchay Sundas. Evidence has come on record that wife and daughter of Panchay Sundas reside in his house. In the absence of particularisation as to date and time it is impossible for me to come to a conclusion that the appellant could have exclusive access to the victim in the residence of Panchay Sundas and commit rape upon her. Furthermore, it is unclear on which date and time the appellant committed rape in his house. P.W.6 claimed that she had been raped in the bamboo cluster thrice on a single day. She is, however, silent as to such date. It appears from the evidence on record that the bamboo cluster is a public place and is surrounded by various houses. When rape is alleged to have occurred in a public place it is important to specify the date and time of occurrence so as to probabilise the commission of such act in spite of public gaze of outsiders. Absence of particularisation as to date and time in the instant case, therefore, renders the accusations of rape improbable. Rape of P.W.5 in the house of Panchay Sundas is highly unlikely as the premises is ordinarily occupied by his wife and daughter. Furthermore, alleged rape of P.W.6 at a public place without particularisation of date and time renders such accusation vulnerable to criticism that such action was not possible in public gaze. It is also relevant to note that medical opinion in the instant case does not establish the accusation of rape upon the victims. It is pertinent to note P.W.1 admitted of enmity between the daughter of appellant and his family over sharing of water which had led to a complaint against the appellant before the Panchayat. In the light of vagueness in the prosecution case with regard to date and time of occurrence and the improbability of the act being committed in the house of Panchay Sundas which is occupied by his family members as well as in a public place viz. bamboo cluster which is accessible to all, I am of the opinion that it would be unsafe to come to a finding of guilt against the appellant in the instant case.
Accordingly, I set aside the conviction and sentence of the appellant. The appellant shall be released forthwith from custody upon executing a bond to the satisfaction of the learned Trial Court for a period of six months in terms of Section 437A of the Code of Criminal Procedure if he is not wanted in any other case.
The appeal is allowed.
Copy of the judgement along with the Lower Court Records be sent down to the Trial Court at once for necessary compliance.
Photostat certified copy of the order, if applied for, be given to the parties on priority basis.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.)