Calcutta High Court (Appellete Side)
Srimanta Dhara vs The State Of West Bengal on 5 August, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
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IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Toufique Uddin
CRA 618 of 2008
Srimanta Dhara
-vs-
THE STATE OF WEST BENGAL
For Appellant : Mr. Sharatoop Purakayastha
For the State : Mr. Shiladitya Banerjee
Heard on : 05. 08. 2013
Judgment on : 05. 0.8. 2013
Toufique Uddin, J :
This appeal arose out of the judgment and order dated 25.08.2008 and 26.08.2008 passed by the learned Additional Sessions Judge, Durgapur in Sessions Trial No. 53 of 2003 convicting the appellant for commission of offence under Sections 376/493 of the Indian Penal Code and sentencing him accordingly.
In brief, the case of the prosecution is as follows :- 2
One Jinnath Parvin @ Bibi lodged an F.I.R. on 18.11.1998 with coke oven P.S. Durgapur to the effect that Srimanata Dhara used to visit her house regularly and the relationship grew between them. The accused established physical relation with her on the assurance of marriage. He promised to marry her on 18.11.1998 by registration. Such cohabitation started from 01.06.1998 and continued on that belief. She ultimately became pregnant. But lastly the accused did not marry her.
On receipt of complaint, police investigated the case and submitted a charge sheet under section 376/493 of the Indian Penal Code.
The case was committed to the Court of Sessions by the learned Magistrate, Durgapur.
On hearing of both sides, the learned Trial Court framed charges against the accused person under Sections 376/493 of the Indian Penal Code. The contents of the charge were read over and explained to the accused person, who pleaded not guilty and claimed to be tried.
To contest this case, the prosecution examined as many as 9 witnesses, while defence examined one witness.
On trial, the learned trial court on consideration of materials on record and on hearing of the learned Advocates of both sides, convicted the present appellant by the impugned judgment.3
Now the point for consideration is if the impugned judgment suffers from any material irregularity and calls for any interference or not.
Sections 376/493 of the Indian Penal Code read as under:
Section 376. Punishment for rape.- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both;
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
Section 493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.-
Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Amongst other the learned Advocate of the appellant contended, inter alia,
1. that this case is no less peculiar than the factum "truth is stranger than fiction."
2. that there is a difference between "Consent given" and "Consent taken".
3. Investigating Officer got examined the victim girl by two Doctors well ahead but why those two Doctors have not been examined is not clear.4
4. The victim girl appears to have played hide and sick at the time giving 164 statement because of the fact that once she entered into the Chamber of learned Magistrate and was about to give 164 statement. Then she unsettled her mind and then got settled her mind and gave 164 statement again.
His last but not the least submission is that the material evidence does not suggest that there was commission of any rape.
The learned Advocate of the State resisted the argument advanced by the learned Advocate of the accused and cited before me the decision as reported in State of Madhya Pradesh -vs- Dayal Sahu 2005 SCC (Cri). 1988 , wherein it was held that conviction can be based on the basis of the testimony of the prosecutrix alone.
In support of this argument he further cited before me another decision as reported in 1983(II) CHN 219 wherein considering the scope of Section 90 of the Indian Penal Code the court held :
"That the act of the victim girl appears to be of a promiscuity".
In a case as reported in Raj Sandeep @ Deepu vs. State (NCT of Delhi) (2012) 8 SCC 21 the characteristics of a sterling witness were summarized as follows:-
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"A 'sterling witness' should be of a very high quality and caliber whose version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such witness the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the cases of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstances should give room to any doubt as to the factum of the occurrence, the person involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as other such similar tests to be applied, can it be held that such a witness can be called as a 'sterling witness' whose version can be accepted by court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in matter particulars in order to enable the court trying the offence to rely on the core 6 version to see the other supporting materials for holding the offender guilty of the charge alleged."
Now it has to be seen with reference to the materials on record available and decision of State of Madhya Pradesh -vs- Dayal Sahu 2005 SCC (Cri). 1988 (supra) whether the present petitioner can be termed as sterling witnesses.
To do this, some relevant pieces of evidence are required to be taken into account.
Admittedly, at the material point of time the victim girl was around 21 years; so conclusively it is established that she is major. She is likely to know where is what, how is what and when is what.
The complaint is exhibit 1. Therein the victim herself stated that the accused used to come to their house frequently, so a relationship grew between them and he promised her to marry and then also she was likely to effect registration of marriage and in the meantime on the believe of such aspect, they went on regular sexual intercourse and the victim girl became pregnant, ultimately, the accused deserted her.
P.W. 1 is the father of the victim. He stated in evidence as was stated by the victim in her petition of complaint. In addition, he stated his daughter proposed for her marriage with Srimanta Dhara but he did not give any consent. This indicates that the victim was bent upon having the accused as his life partner but his father is stood in the way.
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P.W. 2 is Tea Shop -cum-Hotel at R.I.P Plot Durgapur. He knows both of them and corroborated the fact that the accused used to visit P.W. 1 and used to gossip with Bebi Sekh. He warned both of them but they did not hear. This indicates that the victim of the accused was in the ocean of love.
P.W. 3 is a police personnel. He received written complaint and started police case.
P.W. 4 is a Judicial Officer. She recorded 164 statement, Exhibit 3. The 164 statement shows that she was in deep love with the accused who used to frequent her house for a period about two years from before the date of lodging of complaint. Her father went on duty. The accused came and put vermilion mark on her head and declared they have became married and on good faith she accepted this and cohabited that night. The accused promised to marry her subsequently. The matter went on.
Ultimately on the pretext of this and that when the victim girl became pregnant, the accused deserted her.
P.W. 5 is the victim. She stated in her evidence what she stated in her complaint as well as in 164 statement. The cross-examination of the victim girl shows " the accused was obstructed from coming to my house by my father and other neighbours". This indicates that she was totally inclined to have a shelter in the custody of the accused person.
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P.W. 6 is a Doctor. Obviously he did not find any mark of injury in anywhere of her private parts and he did not give any opinion which may attract Section 376 of the Indian Penal Code.
P.W. 7 is another Doctor. He too followed suit P.W. 6. Similar was another Doctor being P.W. 8.
P.W. 9 is the Investigating Officer. His evident shows, in the medical report, there is no allegation before the Doctor by the victim against anybody. Therefore, it is crystal clear that the petitioner is a promiscuity, and, accordingly, she ought to have known the consequence of what she had done . She ought to have looked before she had leapt. Her case clearly falls within the category of a case of "promiscuity". She does not appear to be a sterling witness.
In view of the decision 1983 (II) CHN 219 (supra), I find merit in the appeal.
Accordingly, the appeal is allowed. The sentence and the conviction order is set aside. The accused be discharged from bail bond and set free at once.
Urgent certified copy of this judgment and order, if applied for, be given to the parties on priority basis.
sks (TOUFIQUE UDDIN,J)