Calcutta High Court (Appellete Side)
Kamal Krishna Banik @ Kamal Banik vs The State Of West Bengal on 11 January, 2019
Author: Bibek Chaudhuri
Bench: Dipankar Datta, Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE DIPANKAR DATTA
And
The Hon'ble JUSTICE BIBEK CHAUDHURI
C.R.A. No. 591 of 2015
KAMAL KRISHNA BANIK @ KAMAL BANIK
-Versus-
THE STATE OF WEST BENGAL
For the Appellant: Mr. Sudipto Moitra, Sr. Advocate,
Mr. Biplab Das, Advocate,
For the Respondent: Mr. Partha Pratim Das, Advocate.
Heard on: December 06, 2018.
Judgment on: January 11, 2019.
BIBEK CHAUDHURI, J. : -
1. This appeal is directed against the judgment and order of conviction
dated 20th/21st August, 2015 passed by the learned Additional Sessions
Judge, 3rd Court, Howrah in Sessions Trial No.76 of 2011 whereby and
whereunder the learned judge has convicted the appellant for the offence
under Section 376(f) of the Indian Penal Code (hereafter the IPC) and
sentenced him to suffer rigorous imprisonment for ten years with fine of
Rs.10,000/- only, in default, to suffer simple imprisonment for a term of
six months.
2. Aggrieved by and dissatisfied with such judgment and order of
conviction, the appellant has preferred the instant appeal on amongst
other grounds that the learned trial judge failed to appreciate the evidence
of the victim and her mother, who was the defacto complainant of the
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case, in its true perspective; failed to consider the effect of delay in
lodging FIR in a case of rape; further failed to take into account that there
was no medical report in support of the allegation of rape against the
accused/appellant and also that in view of consistent change of narration
as to how, when and where the alleged incident took place, the
accused/appellant ought not to have been held guilty for committing an
offence under Section 376(f) of the IPC.
3. The case of the prosecution as unfolded in the first information
report is that on 25th December, 2009 at about 5 p.m, the victim, a minor
girl of approximately 11 years of age, was returning home from a
neighbouring house where she used to work as domestic help. Then the
appellant called her and forcibly took her to his room and tortured her
physically. Due to such torture, the victim was feeling pain all over her
body. As noted above, the mother of the victim is the defacto complainant
who lodged the first information report containing the above statement on
26th December, 2009 at about 11.15 a.m.
4. On the basis of the aforesaid written complaint, Golabari P.S Case
No.361 of 2009 was registered against the appellant under Section 376 of
the Indian Penal Code.
5. During investigation, the victim's statement was recorded under
Section 164 of the Code of Criminal Procedure by a learned Magistrate
and she was also examined by the doctor. After completion of
investigation, the investigating officer submitted charge sheet under
Section 376 of the IPC against the present appellant.
6. The aforesaid case being committed to the Court of Sessions, the
learned Additional Sessions Judge, 3rd Court, at Howrah framed charge
against the appellant under Section 376 of the IPC. As the appellant
pleaded not guilty when the charge so framed was read over and
explained to him, trial of the case commenced.
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7. In order to bring home the charge under section 376 of the IPC, the
prosecution examined eight witnesses. The appellant pleaded innocence
in the alleged occurrence during his examination under Section 313 of the
Code of Criminal Procedure.
8. Learned trial judge convicted the appellant for the offence under
Section 376(f) of the IPC and sentenced him as noted above.
9. Mr. Moitra, learned senior advocate for the appellant contended
that testimony of a victim in cases of sexual offences is vital and unless
there are compelling reasons which necessitate looking for corroboration
of a statement, the court should find no difficulty to act on the testimony
of the victim of a sexual assault alone to convict the accused. In other
words, the sole testimony of a victim of rape may be the basis of
conviction of an accused, if her evidence is found to be trustworthy,
reliable and free from all blemishes.
10. With this introductory note as to the evidentiary value of a victim of
sexual assault, Mr. Moitra drew our attention to the evidence of victim
(PW2) and her mother (PW1) who was the defacto complainant of the case.
11. PW2 stated in her evidence that on the date of occurrence, at about
5 p.m, when she was returning from a neighbouring house where she
used to work as a domestic help, the appellant called her and took her to
a room. Then the appellant made her to lie on a table, opened her salwar
and committed rape upon her forcibly. After the incident, the victim
wanted a glass of water from the appellant. He gave water to the victim to
drink. Thereafter, she returned to her house. When the victim's mother
asked the victim where she had seen before returning home, the victim
did not give any reply to her mother. At this, her mother beat her. In the
mean time, the appellant came to their house and asked if it was the
residence of the victim. Seeing the appellant, the victim's mother
understood everything and raised hue and cry.
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12. The defacto complainant (PW1), on the other hand, narrated a
completely different story as to how she came to know about the incident.
She deposed that after returning home, her daughter complained of
physical illness. She also reported that the appellant called her and took
her to his house. When she was complaining of her illness, the defacto
complainant took her to the doctor for medical treatment. Thereafter, she
lodged a complaint against the accused in the local police station.
13. Mr. Moitra pointed out that the versions of the PW2 and PW1 are
clearly contradictory. The PW2 (victim girl) unequivocally deposed that
after she returned to her house on the date of occurrence, the appellant
came to her house and asked about her and at this the defacto
complainant could understand that her daughter was sexually abused by
the appellant. Immediately the defacto complainant raised hue and cry
which attracted local people. Police also came to their house and
interrogated her. She narrated the incident to police. She also saw the
accused in the police station. The statement of the mother of the victim,
on the other hand, depicted a different story altogether. From her
evidence it is ascertained that the victim did not state anything about
sexual abuse committed upon her by the appellant. She only told her
mother that she was feeling ill. If the evidence of the defacto complainant
is accepted to be the true version of the incident, evidence of the victim
girl being an exaggerated narration of the said incident cannot be
respected to be true. It is emphasised by Mr. Moitra that the PW1 made a
specific complaint of physical torture perpetrated by the appellant upon
the victim and no allegation of rape was levelled against him.
14. Mr. Moitra further submitted that the evidence of the victim
suggests that police came to their house on the very date of occurrence
and she was interrogated by the police. From the evidence of PW1, it is
found that she took the victim to the doctor. Surprisingly enough, even
after the victim disclosed the incident of commission of rape upon her by
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the appellant to the police and on being examined by the doctor, the
police did not register any case under Section 376 of the IPC against the
appellant on the date of occurrence itself. Non-registration of specific case
against the appellant on the date of occurrence by the police authority,
even after being informed by the victim, casts a serious suspicion on the
genesis of the prosecution case.
15. Mr. Moitra next, invited our attention to the medical examination
report which was marked as exhibit-4 in the trial court. The said report
speaks of medical examination of the victim on 7th January, 2010. The
medical officer did not find any injury, old or recent, in or around the
private part or all over the body of the victim at the time of medical
examination. The victim also did not state the history of the alleged
occurrence to the medical officer. In this regard, Mr. Moitra advanced
twofold submissions. First, he argued that the prosecution suppressed
the report of her medical examination that was conducted on the date of
occurrence as deposed by the defacto complainant (PW1). Secondly, he
contended that even assuming that a specific case under Section 376 of
the IPC was registered on 26th December, 2009, why was the victim not
medically examined immediately after the FIR was lodged has not been
explained. The victim girl specifically deposed on oath that the appellant
forcibly committed rape upon her. From the medial examination report
(exhibit-4), it is found that the victim was 11 years old at the relevant
point of time. According to Mr. Moitra it does not require any authority on
Medical Jurisprudence to hold that if a girl who is eleven years old is
sexually violated forcibly, there must be injury on her private part. Neither
the defacto complainant nor the victim stated anything about receiving
injury on her private part when she was allegedly raped by the appellant
forcibly.
16. It is, thus, contended by Mr. Moitra that there are contradictions
galore in the evidence of the victim and her mother. The medical
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examination report (exbhibit-4) of the victim shows absence of any injury
on her body. The mother of the victim (PW1) could not surely and
specifically identify the appellant in course of her evidence. The said fact
belies the statement of the victim (PW2) that after the incident the
appellant came to their house to know as to whether the victim used to
stay in the house or not.
17. On such evidence, according to Mr. Moitra, conviction is not
sustainable.
18. In support of his contention, Mr. Moitra relied on a decision of the
Supreme Court in the case of Rajoo and others vs. State of MP reported
in (2009) 1 C Cr LR (SC) 776. In the aforesaid case, it is observed by the
Supreme Court that ordinarily the evidence of a prosecutrix should be
believed, more so as her statement has to be evaluated with that of an
injured witness. If the evidence of the prosecutrix is reliable and
trustworthy, the court should not search for corroboration. At the same
time, there is no presumption or any basis for assuming that the
statement of such a witness is always correct or without any
embellishment or exaggeration. If the evidence of the prosecutrix suffers
from glaring contradiction, embellishment and exaggeration, her evidence
cannot be treated as solitary basis of conviction.
19. Mr. Moitra next referred to another judgement of the Supreme
Court in the case of State of Rajasthan vs. Babu Meena reported in AIR
2013 SC 2207. In this case, the Apex Court classified oral testimony into
three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii)
neither wholly reliable nor wholly unreliable. In case of wholly reliable
testimony of a single witness, the conviction can be founded without
corroboration. This principle applies with greater vigour in case nature of
offence is such that it is committed in seclusion. In case prosecution is
based on wholly unreliable testimony of a single witness, the court has no
option than to acquit the accused.
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20. Coming to the instant case, it was submitted by Mr. Moitra that the
evidence of the victim is wholly unreliable. The victim (PW2) in her cross
examination stated that when the appellant called her to his house, she
shouted for help. Such statement made by the victim during her cross
examination does not find support from her statement recorded under
Section 164 of the Code of Criminal Procedure The medical officer Dr.
Nihar Ranjan Saha (PW6) has also not supported the allegation of rape. In
view of such circumstances, it was not proper for the trial court to hold
the appellant guilty for committing offence under Section 376(f) of the IPC
on the basis of the solitary evidence of the victim girl.
21. Learned trial court without considering the circumstances, stated
hereinabove, convicted the appellant which, according to Mr. Moitra,
cannot sustain under the facts and circumstances of the case.
22. Mr. Das, learned advocate appearing on behalf of the State, on the
other hand, has urged that in cases of sexual violation, the victim's
evidence can be acted upon without corroboration. A victim of rape is not
an accomplice. She stands on a higher pedestal than an injured witness
does. Normally, the court should rely upon the evidence of the victim as
basic foundation of the prosecution cas. In the instant case, the victim
girl who was aged about 11 years at the relevant point of time, stated on
oath that on 25th December, 2009 at about 5 p.m, she was raped by the
appellant. It was also unequivocally stated by the said minor victim that
on the date and time of occurrence at about 5 p.m. when she was
returning to her home, the appellant called her, took her to his room and
forcibly committed rape upon her. This part of narration of the incident
withstood the test of cross examination and could not be shaken. After
the incident, the victim narrated the same incident to her mother. She
was examined under Section 164 of the Code of Criminal Procedure when
also made the same statement before the learned Magistrate. Therefore,
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the learned trial judge rightly accepted the evidence of the victim and held
the appellant guilty for committing offence under Section 376(f) of the IPC.
23. Mr. Das further submitted that since in the instant case a minor of
approximately 11 years of age was subjected to primitive lust of the
appellant, it would be adding insult to her injury to tell a woman that her
evidence will not be believed unless it is corroborated in material
particulars. Why should the evidence of the minor girl who complains of
rape or sexual molestation be viewed with the aid of spectacles fitted with
lenses tinged with doubt, disbelief or suspicion?
24. According to Mr. Das there is absolutely no contradiction in respect
of the statement made by the victim on oath with regard to commission of
rape. He further argued that indeed there are contradictions with regard
to the time and date when the incident was reported to the police or when
the police registered a case under Section 376 of the IPC against the
appellant. There are, of course, contradictions in the evidence of the
victim and her mother on the point of time when the defacto complainant
came to know about the incident from her daughter and how. But, such
contradictions should be treated as minor contradictions which did not
affect the prosecution case in material particulars. Therefore, the trial
court rightly ignored such contradictions.
25. Mr. Das further submitted that for satisfying the ingredients of
rape, it is not necessary that there should be complete penetration. Even
the slightest penetration is sufficient to make out an offence of rape and
depth of penetration is immaterial. The victim was medically examined on
7th January, 2010, i.e, after about 13 days of the incident. It is very
natural that the doctor could not find any injury in her private part or any
other part of the body. The doctor (PW6) was unable to give definite
opinion as to whether she was subjected to intercourse in the immediate
past. Hymen of the victim was found intact. However, according to Mr.
Das, such evidence of the medical officer does not lead to an inference
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that the victim was not subjected to sexual violation. In such a case, the
learned trial judge rightly accepted oral testimony of the victim to hold the
accused guilty for committing offence under Section 376(f) of the IPC.
26. We have considered the respective submissions and the materials
on record. The order of conviction, in the facts and circumstances of the
case, is unsustainable and deserves to be set aside for reasons discussed
hereunder.
27. It is needless to say that the court while trying an accused on the
charge of rape, must deal with the case with utmost sensitivity, examining
the broader probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the evidence of witnesses
which are not of a substantial character. However, even in a case of rape,
the onus is always on the prosecution to prove, affirmatively, each
ingredient of the offence it seeks to establish and such onus never shifts.
28. It is not the duty of the defence to explain as to how and why in a
case of sexual violation, the victim falsely implicated the accused.
Prosecution case has to stand on its own legs. However great the
suspicion against the accused and however strong the moral principle
and conviction of the court, unless the offence of the accused is
established beyond reasonable doubt on the basis of legal evidence and
materials on record, he cannot be convicted for an offence. The decision of
the Supreme Court in the case of Tukaram and Other vs. State of
Maharastra reported in AIR 1979 SC 185 and Uday vs. State of
Karnataka reported in AIR 2003 SC 1639 may be relied on in support of
the above observation.
29. In State of HP vs. Sanjay Kumar reported in (2017) 2 SCC 51, the
Supreme Court held that whenever charge of rape is made, where the
victim is a child, by no means it has to be treated as a gospel truth and
accused person has to be convicted. Testimony of prosecutrix is to be
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examined and analysed in order to find out the truth and to ensure that
deposition of victim is trustworthy. The law relating to appreciation of
evidence of a victim of rape is too well settled to admit any denial that the
evidence of victim girl stands on higher pedestal than any other
witnesses. Victim is not expected to make a false allegation at the cost of
her dignity, self-respect and fear of social stigma. It is, however, needless
to say that the above principle of appreciation of evidence of a convict in a
case of rape will apply under the facts and circumstances of each case. It
is equally true that the accused must also be protected against the
possibility of false implication. After taking all due precautions which are
necessary, when it is found that prosecution version is worth believing,
the court can rely on the evidence of victim.
30. During the trial of the case, prosecution examined eight witnesses.
Apart from the victim (PW2) and her mother (PW1), who is the defacto
complainant, remaining witnesses are the scribe of the written complaint
(PW3), father of the victim (PW4), medical officers who examined the
appellant and the victim respectively during investigation (PW5 and 6),
the Judicial Magistrate who recorded the statement under Section 164 of
the Cr.P.C of the victim (PW-7) and the investigating officer (PW-8) of the
case.
31. Amongst the above mentioned witnesses, evidences of the victim,
her mother and the medical officers are of utmost importance.
32. On careful scrutiny of the evidence of the above witnesses, it
appears to us that on the date of alleged incident after the victim returned
home, police indeed came to their house and interrogated her. No
explanation is forthcoming from the prosecution as to why the police did
not record a specific case under Section 376 of the IPC against the
accused on the very date of occurrence.
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33. It is on record that the mother of the victim lodged complaint
against the appellant on the next date of occurrence i.e. 26th December,
2009, where she alleged that the appellant inflicted physical torture upon
her daughter. It was open for the police authority to ascertain the nature
of physical torture and record a case under Sections 323-326 of the IPC
or any other penal provision other than 376 of the IPC. Therefore, it can
be well presumed that the investigating officer collected some preliminary
evidence against the appellant before recording a specific case under
Section 376 of the IPC against the appellant. Such evidence was not
produced by the prosecution during trial of the charge.
34. Immediately after recording Golabari P.S Case No.361 of 2009 on
26th December 2009, the victim was sent to the local hospital for medico
legal examination, being accompanied by her mother and a lady home
guard, named, Gouri Roy. The victim refused to get herself medically
examined on the following date of occurrence. It is pertinent to mention
here that in her evidence, the victim stated on oath that the appellant
forcibly committed rape upon her. In case of commission of rape of a
minor girl applying force by the accused who was aged about 42 years at
the relevant point of time, there must be marks of injury on the private
part of the victim. If she allowed the medical officer to conduct medical
examination on the next date of occurrence, there might have been clear
possibility of having some evidence in support of the allegation. Refusal to
get herself medically examined by the victim would surely go against the
prosecution and in such a case, it is open the court to draw adverse
presumption to the effect that had the victim been examined medically at
the earliest, there would have been no evidence of forceful sexual violation
of the minor victim girl.
35. Before we part with, we must record our utter dissatisfaction on the
mode and manner in which the investigation of Golabari P.S Case No.361
of 2009 was conducted. When the defacto complainant made a complaint
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of physical torture of her daughter by the appellant, there is no reason as
to why a case under Section 376 of the IPC was registered. Secondly, the
investigating officer did not make any attempt to seize the wearing
apparels of the victim and the appellant for forensic examination. Thirdly,
the prosecution suppressed that the victim refused to get herself
medically examined on the next date of occurrence after the FIR was
lodged. Fourthly, the investigating officer withheld the report prepared by
the medical officer on 26th December, 2009 wherein it was clearly stated
that the victim refused to volunteer herself for medical examination.
Fifthly, the alleged incident took place in a thickly populated locality at
about 5 p.m. The investigating officer did not try to examine any witness
of the locality to ascertain the genuineness of the complaint lodged by the
mother of the victim.
36. In our considered opinion, investigation of Golabari P.S Case
No.361 of 2009 was conducted in a very perfunctory and mechanical
manner. For such faulty investigation and submission of charge sheet,
the appellant remained in custody for more than three years in violation
of his basic fundamental right to life and personal liberty. We expect that
the concerned I.O would be more serious in further while investigating a
case of sexual abuse.
37. For the reasons recorded above, the judgment and order of
conviction passed by the learned Additional Sessions Judge, 3rd Court at
Hawrah in Sessions Trial No.76 of 2011 is set aside. The instant appeal is
accordingly allowed on contest. The appellant is held not guilty of the
charge under Section 376(f) of the IPC and is entitled to be acquitted, set
at liberty and released from his bail bond.
38. The appellant, if in custody, be released at once.
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39. Let a copy of this judgment and order be sent forthwith to the
learned court below for taking step for discharging the appellant from the
bail bond and releasing him from jail custody.
40. A copy of this judgment shall also be sent to the Director General of
Police, Government of West Bengal for taking necessary action against the
investigating officer.
Urgent certified website copies of this judgment, if applied for, be supplied
to the parties subject to compliance with all requisite formalities.
(Bibek Chaudhuri, J.)
Dipankar Datta, J. :
I agree (Dipankar Datta, J.)