Calcutta High Court (Appellete Side)
Gopal Naskar vs The State Of West Bengal on 17 February, 2015
Author: Shib Sadhan Sadhu
Bench: Shib Sadhan Sadhu
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Shib Sadhan Sadhu
C.R.A. 700 of 2006
Gopal Naskar
...Appellant
Versus
The State of West Bengal
... Respondent
For the Appellant : Mr. Suranjan Mandal
For the State : Mr.Ayan Bose
Heard on : January 20, 2015.
Judgment on : February 17, 2015
Shib Sadhan Sadhu, J.
1 The instant Criminal Appeal is directed against the judgment and order of conviction passed by the Learned Additional Sessions Judge, Diamond Harbour , South 24-Parganas in Sessions Trial No.3(3)06/ S.C. No.15(2)06 decided on 12.10.2006 whereby the appellant has been sentenced to suffer Rigorous Imprisonment for 5 years for commission of offence under Section 376 of the Indian Penal Code and to pay a fine of Rs.5,000/-, in default, to suffer further Simple Imprisonment for 5 months.
2. Put in a short frame, the prosecution case runs as under:-
On 18.09.2005 at about 10.30 a.m. the prosecutrix (P.W.1) had gone to tend goats at Purkaiterchak burning ghat (samsan) and while she was tying the goats, the accused Gopal Naskar who is her co-villager all of a sudden came running and pressed her mouth and twisted her hands on her backside and attempted to rape her. She raised hue and cry. The accused threatened her to kill and told her not to disclose the incident to anybody. She returned home and narrated the incident to her grand-mother who again disclosed the incident to her uncle and others. Thereafter, she lodged a written complaint before the O.C., Raidighi P.S., on the basis of which Raidiighi P.S. Case No.81 dated 19.09.2005 under Section 354/376/511 IPC was registered. That case was investigated into and on completion of investigation charge-sheet was submitted under Section 376 IPC against the present appellant. Thereafter, the case was placed for trial before the Learned Additional Sessions Judge, Diamond Harbour, South 24- Parganas who framed charge under Section 376 IPC and alternatively under Section 376/511 IPC against the present appellant and after conclusion of the trial he held the accused guilty and convicted him as aforesaid.
3. Prosecution examined as many as 10 witnesses in its support. Statement of the accused/appellant was recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. However, he did not examine any witness in defence.
4. Learned Counsel appearing for the appellant Mr.Mandal has taken me through the oral testimonies of the prosecution witnesses. He pointed out some vital contradictions and omissions apparent from the evidence adduced by those P.W.s. and contended that there is no clear, cogent or clinching evidence to sustain the conviction. He, further contended that the victim girl P.W.1 had made improvements and that the medical evidence does not at all support the prosecution story. He, therefore, urged that the appeal should be allowed by setting aside the impugned judgment and order passed by the Learned Trial Court.
5. As against this, Learned State Counsel, Mr. Bose has opposed the present appeal and has submitted that taking into consideration the totality of the evidence on record, the prosecution has been able to prove the guilt to its hilt and has successfully established the charge levelled against the accused/appellant. Therefore, according to him the impugned judgment is well contained and well reasoned and thus, deserves no interference. He, thus, insisted upon dismissal of the appeal.
6. I have perused the record and proceedings in the context of rival submissions advanced by the Learned Counsel for the parties. I have also meticulously scrutinized the oral testimonies of the P.W.s.
7. Now coming to the prosecution case, I find that P.W.1 i.e. the prosecutrix in her deposition before the Court, has stated that on 18.09.2005 at about 10.30 a.m. when she was returning from sashan ghat after tying her goat, at that time the accused Gopal Naskar all of a sudden caught hold of her and then he caught hold of her hands after taking those towards her backside and then made her to lie on the ground and removed her clothes. Then he started sucking her two breasts and inserted his penis into her vagina. Then she told him while crying to leave her and he told her that he would leave her if she promised not to tell the incident to anybody. Then she came crying to her house and narrated the incident to her grand-mother (aunt of her father), uncle, aunt and members of the family. Thereafter, she lodged the FIR which was written and signed by her and it was marked Ext.1 on her identification. She further deposed that she narrated the incident before the Judicial Magistrate who recorded her statement and read it over and explained to her and then she singed it. Such statement under Section 164 Cr.P.C. was marked Ext.2 on her identification. It is her further evidence that she was then taken to S.D. Hospital, Diamond Harbour where she gave her consent in writing for her medical examination and that consent letter was marked Ext.3/1. Her mother accompanied her to hospital. She narrated the incident to the Doctor as well. Subsequently she was again medically examined in the hospital. She identified the accused.
8. In cross-examination she stated that the samsan is a vacant land and not surrounded by any boundary wall or fencing. Many people always come to the tank located there for taking bath. The samsan is at a short distance from her house. She further stated that people from samsan can see the P.O. She denied that there was quarrel between her and the accused over the issue of tying goats. She denied that she did not state in her F.I.R. which she stated in her chief evidence. In course of further cross-examination she disclosed that the incident continued for an about half an hour. She did not hand over her wearing apparels to the police nor did the police seize those.
9. P.W.2, Bhanumati Khan, aunt of the prosecutrix, has stated that on 18.09.2005 at 10.30 A.M. to 11 A.M. P.W.1 told her that when she was returning after tying goat the accused raped her felling on the ground and catching hold of her hands. In cross-examination, she claimed to have stated before the I.O. that the V.G. told her that the accused raped her.
10. P.W.3, Jayanti Khan, aunt of the prosecutrix has stated that on 18.09.2005 at about 10.30 A.M. she learnt the incident from P.W.1 who told her that when she went to tie the goat, the accused forcibly raped her at samsan. In cross-examination, she also claimed to have stated such fact before the I.O.
11. P.W.4, Sasanka Khan, husband of P.W.3 and uncle of P.W.1 deposed in the same line as that of P.W.3.
12. P.W.5 is Dr. Joydipta Chattopadhyay who examined the accused on 14.12.2005 at S.D. Hospital, Diamond Harbour.
13. P.W.6 is Dr. Apurba Kumar Ray, who is a radiologist and examined the victim girl P.W.1 on 05.10.2005 and opined that she was aged about 14 years.
14. P.W.7, Sanat Khan is the father of the prosecutrix. He heard about the incident from his wife after returning home in the night of 18.09.2005
15. P.W.8 Smt Parul Khan is the mother of the prosecutrix and wife of P.W.7. On 18.09.2005 after returning home in the evening she heard from P.W.1 that she was raped by the accused in the samsan at about 10.30 A.M. The incident was reported at P.S. on the following day and she took P.W.1 to Diamond Harbour hospital. In cross-examination, she stated that she alongwith P.W.2, P.W.3, P.W.4 and P.W.7 went to P.S.
16. P.W.9 is Dr. Subhas Chandra Sahu, who examined the victim girl P.W.1 on 27.09.2005 in Diamond Harbour S.D. Hospital. He has stated that as per the statement of the victim girl on 18.09.2005 at about 10.30 A.M. while she was on the field for her goat, the accused physically and sexually assaulted her. Then she somehow escaped and informed her grand-mother regarding the incident. He further deposed that on examination he found that her breast partly developed, no external injury was seen over breast, hymen was absent, introitus admits two fingers easily and so she was capable for sexual intercourse. No foreign body was seen in the vagina and no sign of V.D. was detected.
He stated further that if a girl is examined 8 to 9 days after the incident, it is very difficult to ascertain whether she was raped or not. According to him if the victim is wearing a frock, injury may or may not be found over her breast after rape. In the case of a victim who is too minor like the victim girl, the hymen normally remains in depth. On his identification, the report prepared by him was marked Ext.3.
In cross-examination P.W.9 admitted that when a victim is raped forcibly then usually marks of violence are found on fore- arms, wrist, chest, breast, lower part of abdomen, inner part of thigh and back but he did not find any old or new injury on any part of her body. He opined that only expert could tell whether she had been raped or not. However, he did not refer the victim to any expert. He further stated that if there be any old scratch mark on vagina or breast to mark of the same as an old injury can be found, but he did not find any such injury on her person. The victim girl did not state to him that at the time of incident she experienced any pain or not. In the event of any resistance or struggle an injury is likely to be found on the persons of both the rapist and the victim if the victim is capable of resisting the rapist. He further disclosed that the victim party did not produce before him any blood stained or semen stained wearing apparels. According to him, if a girl rides cycle or participate in swimming, her hymen may be ruptured. In the present case, the hymen was absent.
17. Thus it is seen that the victim girl P.W.1 has made improvement of her FIR version in her evidence. That is to say that in the FIR which was written and lodged by herself, she alleged that the accused pressed her mouth, twisted her hands on her backside and attempted to rape her. She raised hue and cry and the accused threatened her to kill and told her not to disclose the incident to anybody and she returned home and, narrated the incident to her grand-mother. But in her evidence she made a complete departure from such prime version and has stated that the accused caught hold of her persons, twisted her hands towards her backside, felled her on the ground and removed her clothes. Thereafter, he sucked her breasts and inserted his penis into her vagina. He also threatened him and thereafter she came home crying and narrated the incident to her grand-mother, uncle, aunt and other members of her family and thereafter she lodged the FIR which was written and signed by her. That is to say that she developed her FIR version of attempt of rape to commission of rape in her evidence. On minute examination of the evidence, it becomes crystal clear that there is no conclusive piece of evidence to prove that the accused/appellant committed forcible sexual intercourse with the prosecutrix or even attempted to rape her. So far as forcible sexual intercourse is concerned, as per medical evidence no external injury was found on the body of the prosecutrix and her hymen was absent. Not only that, the Doctor (P.W.9) clearly stated that he did not find any old or new injury on any part of her body. According to him when a victim is raped forcibly then usually marks of violence are found on fore-arms, wrist, chest, breasts, lower part of abdomen, inner part of thigh and back. Also she did not state to him whether she experienced any pain or not. No definite opinion regarding rape could be given by the Doctor (P.W.9). Further, the Doctor stated that the victim party did not produce before him any blood stained and semen stained wearing apparels. P.W.1, that is, the prosecutrix stated in her cross-examination that the incident continued for about half an hour and that she did not hand over her wearing apparels to the police nor did the police seize. The I.O., S.I. of Police, Sarajit Mukhopadhyay (P.W.10) corroborated P.W.1 on that score by stating that he did not seize any wearing apparel of the victim. He further stated that none of the witnesses told him that they had washed wearing apparels of the victim. He discredited P.W.2 and P.W.3 by disclosing that they did not state before him that the victim girl told them that the accused raped her.
18. Thus, considering the facts and circumstances of the case, the ocular and the medical evidence available on record as also the conduct of the prosecutrix, this Court is of the opinion that the statement of the prosecutrix suffers from inherent infirmities creating doubt about its veracity and so the same cannot be acted upon.
19. To conclude, in the present case, the circumstances taken as a whole create doubt about the correctness of the prosecution version. I am, therefore, of the opinion that a case is made out giving benefit of doubt to the accused and he is definitely entitled to be acquitted of the charge by extending him benefit of doubt.
20. In the result, the appeal is allowed, conviction of the accused/appellant under Section 376 of IPC is hereby set aside. He is acquitted of the said charge by extending him benefit of doubt. He is on bail, therefore, his bail bonds shall continue for a period of 6 months from today in view of provisions of Section 437 A of Cr.P.C.
21. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.
(Shib Sadhan Sadhu, J.)