Calcutta High Court (Appellete Side)
Subhankar Sarkar vs State Of West Bengal on 1 April, 2015
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA CRIMINAL MISCELLANEOUS JURISDICTION APPELLATE SIDE PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar CRA 13 of 2014 Subhankar Sarkar
-vs.-
State of West Bengal
For the Petitioner : Mr. Tapan Dutta Gupta
Mr. Bijoy Bag
For the State : Mr. Subir Banerjee
Heard on : 09.01.2015; 16.01.2015 & 30.01.2015
Judgement on : 01/04/2015
Subrata Talukdar, J.: This appeal arises against the judgment and order of eviction dated 17th December, 2013, 19th December, 2013 and 20th December, 2013 passed by the Ld. Additional 1st Sessions Court, Malda in Sessions Trial No. 22 (6)/2013 arising out of the Sessions Case No. 136 of 2013 convicting the same appellant under Sections 376/506 of the Indian Penal Code and, under Sections 4, 8 & 12 of the Protection of Children from Sexual Offences Act, 2012.
Sri Tapan Dutta Gupta, Ld. Counsel with Sri Bijoy Bag, Ld. Advocate appear for the appellant.
The State Opposite Party is represented by Sri Subir Banerjee, Ld. Additional Public Prosecutor. The charge against the appellant is that on 23rd February, 2013 at about 10:30 pm when the minor daughter of the complainant, Bhakti Sarkar, was returning home the appellant came from behind and gagging her mouth with handkerchief threatened her with the point of a knife and took her into a mango grove where the appellant committed rape upon her. Thereafter the appellant threatened her not to shout otherwise he will kill her.
The victim returned home but did not reveal anything to her mother, the appellant. The next morning when she found her crying and asked the reason, the incident was disclosed to her. Thereafter she was taken to Molpur Health Centre.
On reaching Malda Medical College and Hospital the complainant was told by the doctor that police would be required to be informed prior to any treatment given to her.
Hence the complaint.
Sri Tapan Dutta Gupta, Ld. Counsel appearing for the appellant, (in jail) submits that out of the prosecution witnesses PWs 1, 2, 3, 5 and 6 are independent witnesses who have been all declared hostile. PW5 is the scribe of the complaint. Taking this Court to the complaint registered as FIR Sri Dutta Gupta submits that the incident occurred on 23rd February, 2013. The complaint was filed on the next date.
Relying heavily on the evidence of PW10 the victim girl, Sri Dutta Gupta submits that it has been deposed by PW10 that on 23rd February, 2013 i.e. date of the incident PW10 accompanied her mother to a devotional 'kirtan' in the neighbouring Ashram of Jugal Goshai. Ld. Counsel points out that from the 'kirtan' PW10 came out with her friends to purchase food from some of the temporary stalls set up in the locality. According to Ld. Counsel the incident is of 10:30 pm. None of the friends of PW10 were examined to find out what exactly happened between the time they came out to purchase food which is around 9 pm and 10:30 pm. Sri Dutta Gupta emphatically submits that in the absence of the examination of important witnesses such as the friends and the father of PW10, the trial and the consequent conviction stand vitiated.
Again taking this Court to the evidence of PW9, the doctor, Ld. Counsel submits that PW9 has deposed that there was no sign of rape. PW10 was examined at Malda Medical College and Hospital on 25th February, 2013 i.e. two days after the incident.
Stressing on the loopholes in the evidence Ld. Counsel further submits that the age of PW10 was not proved beyond reasonable doubt. According to the birth certificate the PW10 was aged around 15 years 6 months possessing the date of birth as 14 September, 1997. In support of his above noted point with regard to the determination of the age of PW10 Sri Dutta Gupta relies upon a decision reported in 2013 (4) AICLR 815 at paragraph 20. Ld. Counsel points out that the procedure for determination of the age to be followed in cases of this nature was not followed in the present case. PW10 and the complainant, her mother stated that she was 14 years of age at the time of the incident. However, such contention was not decided and proved as per established procedure.
Elaborating his argument Ld. Counsel submits that the procedure for testing the age of minors is provided under the Juveniles Act, 2000. In the absence of a proper determination of age under the Juveniles Act, 2000 the provisions of the Protection of Children from Sexual Offences Act will not apply.
Referring to the evidence of PW8, the Medical Officer attached to Malda Medical College and Hospital, Ld. Counsel points out that the doctor did not find any mark of injury or disease on the private parts of PW10. In support of his submission Ld. Counsel relies upon the decision reported in 2006 (3) SCC (Cri) 373.
Next, referring to Rule 12 of the Juvenile Justice Act, 2000 Sri Dutta Gupta reiterates his earlier argument with regard to the proof of the age of PW10 and submits that such age was neither proved under Juvenile Justice Act, 2000 nor in terms of the provisions of Section 101 of the Evidence Act. He also submits that clear medical evidence is not forthcoming in the present case which is absolutely necessary to support the charge of rape.
The next plank of Sri Dutta Gupta's argument is that Exbt.5 pertains to the potency report of the appellant. From the Ld. Counsel's submissions as there is no mark of injury found on the private parts of the appellant, in the absence of tell-tale signs of injury, no rape can be inferred.
In support of the above noted proposition Ld. Counsel relies upon 1972 (3) SCC 759 at paragraph 26.
Sri Dutta Gupta highlights the fact that it is important to perceive the time lag between 9 pm and 10:30 pm on the fateful night. Admittedly PW10 accompanied her mother for the 'kirtan' at Jugal Goshai Ashram. Admittedly again the mother stayed back at the Ashram and PW10 left with her friends for the purpose of purchasing food from the stalls in the locality. Admittedly during that relevant time of 'kirtan' the entire locality was full of temporary stalls and elaborate lighting.
Ld. Counsel submits that while the mother-complainant stayed back at the Ashram, PW10 left with her friends to buy food at the temporary stalls. PW10 did not return home till around 11 pm as deposed by her mother. During this intervening period when the PW10 left the Ashram and arrived late at home, according to Sri Dutta Gupta, she had an affair with a local boy Indra. Ld. Counsel strenuously argues that she was found in a compromising position with the said Indra by the appellant.
In order to conceal her relationship with Indra and her discovery with him by the appellant late in the night on the fateful date, PW10 cooked up the story of rape to falsely implicate the appellant. Ld. Counsel argues that in the light of the medical evidence read with the non-examination of vital witnesses as well as the non-explanation of the time lag between the departure of PW10 from the Ashram to her arrival at home the charge of rape stands utterly vitiated.
Referring to Section 114 Explanation G of the Evidence Act Sri Dutta Gupta further argues that it is important to draw beneficial inference in favour of the accused in circumstances when material witnesses are not examined. It is also important to assess the evidence pertaining to the character of the parties involved in the dispute. In support of the above proposition Sri Dutta Gupta relies upon the decision of the Hon'ble Apex Court reported in AIR 1954 SC
51. Further in support of his arguments with regard to the determination of the age of PW10 Sri Dutta Gupta relies upon 2011 (2) C Cr LR (SC) 288 at paragraph 42 & 43. Ld. Counsel further argues on the strength of the decision in 2008 (2) SCC (Cri) 207 that Courts must keep in mind that false charges of rape are not uncommon and such charges can be levelled to take revenge or settle financial liability.
Per contra, Sri Subir Banerjee, Ld. Additional Public Prosecutor submits that the father of PW10 was not examined because the father was not at the place of the occurrence. No explanation has been offered on behalf of the appellant on the point whether any prejudice has been caused to him due to non-examination of the father of PW10.
Ld. Additional Public Prosecutor further points out that in an offence under Section 376 IPC there is unlikely to be any eye- witnesses. Placing the evidence of PW12, the Investigating Officer of the case, Sri Banerjee argues that no objection was raised with regard to the birth certificate produced during investigation. There was no cross-examination with regard to the age of PW10. On the date of the incident PW10 was 16 years of age and now the statutory age of majority is 18.
Elaborating his argument further Sri Banerjee submits Exbt.8 shows that same would in the normal course bring her age to 14 years at the time of the incident. Accordingly, the statutory procedure with regard to age is found to be complied with and therefore the decision reported in 2011 (2) Cal Cr LR (SC) 288 stands distinguished in the facts and circumstances of the present case.
Ld. Additional Public Prosecutor further argues that the incident occurred on 23rd February, 2013 and the accused was examined by the doctor on 10th April, 2013 i.e. after one and half months of the incident. In view of such time lag no marks of injury could be found on the private parts of the appellant-accused.
Ld. Counsel also submits that it has only been the case of the defence that the PW10 was returning from the Ashram with her friends. There is no evidence on record to show that PW10 was seen with Indra at the time of the incident. Furthermore, non-discovery of injuries on the private parts of PW10 may appear not to attract the charge under Section 376 IPC. However, in view of the other injuries found on the person of PW10 there is ample scope to attract the charge under Section 511 IPC.
Therefore, Ld. Counsel argues that the chargesheet was filed under Sections 376/511 IPC. However, charges were ultimately framed under Sections 6 & 8 of the Protection of Children from Sexual Offences Act, 2012. The evidence of PW10again cannot be material in view of her admitted age of minority.
By way of reply Sri Dutta Gupta submits that the onus is on the prosecution to prove the age of PW10 beyond reasonable doubt. Drawing the attention of this Court to the medical report of PW10 indicating scratch marks, Sri Dutta Gupta submits that at best Section 506 IPC may apply.
In the light of the submissions made by Ld. Counsel it is necessary for this Court to examine the evidence on record. It transpires from the sketch map of the PO marked Exbt.7 that the place of occurrence is a fairly congested area. The Ashram of Jugal Goshai is located across the street and the houses of PW10 as well as the appellant are located in a cluster behind the houses and there are bamboo groves.
However, from the evidence of the neighbours who are PWs 1, 2 & 3 it transpires that all of them have learnt about the incident on hearsay. The PWs 1, 2 & 3 being the neighbours testify that they do not have any direct knowledge about the incident. The PWs although independent witnesses, have been declared to be hostile.
However, the neighbours have deposed to the fact that both PW10 and the appellant were part of the same village. An idea about the place of occurrence can be also gathered from the evidence of PWs 1, 2 and 3 inspite of the fact that they were declared hostile.
For instance PW2 states that a 'mela' is organized on the eve of 'Magi Purnima' and in that 'mela' plenty of people gather. The 'mela' stretches all around the houses of the locality and there are plenty of electric lights during the 'mela'. The people attend the 'mela' whole night. The houses of the area are adjacent to each other.
The PW8 is the Medical Officer attached to the Malda Medical College and Hospital. PW8 testifies to the fact that the appellant was a person of normal health with no mark of injury and disease on his private parts. From the potency report of the appellant marked Exbt.5 it appears that the appellant was a healthy male.
PW9 is the doctor who was also posted at Malda Medical College and Hospital during the relevant period. PW9 examined PW10 and during examination found a single scratch mark over right scapula (back). On examination of the private parts of PW10, PW9 found her hymen intact, no vaginal injury or bleeding or insertion of any foreign body in her vagina. PW9 has further deposed as follows:-
"In my opinion, no sexual intercourse was possible upon the victim."
PW9 has also deposed that as per the medical report there was no sexual offence.
PW10 in her evidence has stated that on 23rd February, 2013 at about 10:30 pm she was returning from the Ashram after hearing devotional songs when the appellant gagged her mouth with handkerchief on the point of knife and forcibly took her to a nearby bamboo grove and committed rape on her against her will. PW10 states that on the next date she narrated the incident to her mother and thereafter a complaint was lodged. She admits to giving a statement before the Ld. Magistrate under Section 164 CrPC. In her cross-examination she deposes that the house of Indra is between two houses from her house. She has also deposed that on the date of the incident she went to hear devotional songs at the Ashram. However, when she was returning from the Ashram nobody accompanied her.
She admits to the fact that temporary festival stalls were installed in front of their house and the said stalls remained open during the night hours. It is the further evidence of PW10 in her cross-examination that about 9 pm she came to purchase food along with her friends and after purchasing such food she returned back. She states that she did not have any love affair with the said Indra Sarkar and on the date of the incident there was no street light available on the road outside the house. She testifies strenuously to the details of the incident involving the appellant and herself as recorded in the complaint.
PW11, the complainant, is the mother of PW10. PW11 states that at about 6-6:30 pm on the fateful date she along with PW10 went to the Ashram to hear devotional songs. The Ashram is located only at a distance of 300 metres from their house.
Both the mother and daughter took 'prasad' at the Ashram and while the mother stayed back hear 'kirtan', PW10-daughter returned to the house at about 10-10:30 pm alone. PW11 further states that no temporary stalls were installed nearby the Ashram or elsewhere during the incident. Plenty of persons had gathered in the Ashram on the date of the incident and the house of the complainant is visible from the Ashram.
The complaint was scribed by one Jagannath as per the direction of the police. PW11 further deposed that on the date of the incident it was a dark night and the street lights were switched off.
PW12 is the Investigating Officer and as submitted by Sri Banerjee, Ld. Additional Public Prosecutor took necessary steps in the investigation by preparing rough sketch map regarding the statement of witnesses and arranging to conduct the medical tests.
The birth certificate of PW10 was seized by PW12 and on further completion of investigation PW12 deposed that chargesheet was submitted under Sections 375/506 IPC.
PW12 admits that the statements of the friends of PW10 were not recorded. He further admits that the statements of Chandan Sarkar, Ratan Sarkar and Sachin Sarkar, who have their residence in the locality close to the house of PW10 have also not been recorded by him. Neither did he record the statement of the father of PW10.
PW12 has deposed that the complainant-mother did not state before him that she along with her daughter went to the Ashram on the date of the alleged incident and after taking 'prasad' the complainant stayed back in the Ashram and the incident happened in the bamboo groves of one Chandan Sarkar. PW12 significantly deposes and, such point has been highlighted by Sri Dutta Gupta, that during investigation he did not seize any wearing apparel of the victim.
PW13 is the Medical Officer attached to Moulpur BPHC, old Malda. PW13 deposed that PW10 complained before him that she was suffering from pain in her private parts during walking. PW13 examined PW10 and, during examination found scratch marks on various parts of her body. He, however, did not find any external marks of injury on her private parts. The scratch marks found on PW10 could be inflicted by hand.
In his cross-examination, PW13 deposed that the scratch marks may appear due to friction caused by any hard object.
This Court at the very outset is required to notice the medical evidence on record. From the evidence of PW9, the doctor who examined PW10 on 25th February, 2013 it clearly transpires that no sexual intercourse was possible upon her and her private parts were found to be intact with no signs of injuries. PW9 states that as per medical report there was no sexual offence.
From the evidence of PW13, the doctor posted at Moulpur BPHC who examined PW10 on 24th February, 2013 i.e. a day after incident it transpires that scratch marks were found on various parts of her body. However, no external injury was found to her private parts. The scratch marks were found to be inflicted by using hand and could also be caused due to friction caused by a hard object.
The presence of the scratch marks is also corroborated by PW9 who found a single scratch mark over the right scapula (back).
The victim, PW10 has deposed that her mouth was gagged with handkerchief and she was taken on the point of a knife to an adjacent bamboo grove. She has further testified that she was forcefully laid to the ground and the accused attempted to open her apparels.
From the combined reading of the evidence as noted above a reasonable conclusion can be drawn that although there is no medical evidence of penetrative sexual assault but, at the same time the medical evidence in the form of scratch marks indicate the use of force on PW10.
From the evidence of the neighbours and the sketch map marked Exbt.7, the presence of a bamboo grove as the place of occurrence within a short distance from the house of the defacto complainant is also shown. The outline of the areas including the path leading to the Ashram from the house of the defacto complainant as shown from Exbt.7 is also corroborated in essentials from the evidence of neighbours who were however declared hostile.
With regard to the date of birth of PW10 this Court finds sufficient merit in the submissions of Sri Banerjee, Ld. State Counsel, as recorded above that PW10 was a minor at the time of the incident. This Court also notices that there is no inconsistency with regard to the time period stated in the evidence of the essential witnesses, viz. PW10 and her mother-defacto complainant (PW11) covering the sequence of events between going to the Ashram for hearing devotional songs, the departure of PW10 for home and her subsequent interrogation by the mother regarding her late arrival.
With regard to the argument of Sri Dutta Gupta that the friends of PW10 were not examined and their examination is vital to be prosecution case, the attention of this Court is once again drawn to the evidence of PW10. She has deposed that the temporary stalls set up in the area for the occasion of the 'mela' were opened at about 9- 9:30 pm on the date of the incident and she came to purchase food along with her friends at about 9 pm. It is the further categorical statement of PW10 that after purchasing food she returned back and it is not stated by her that she returned with her friends. In such view of the matter PW10, by her own evidence, came to purchase food at around 9 pm and by the evidence of her mother-defacto complainant (PW11) returned back at 11 pm to the house. During the interregnum between her departure to purchase food and her return to the house - the space of approximately one and half or two hours lapsed - and the incident was committed at the time she was returning back after purchase of food unaccompanied by her friends.
Taking note of the evidence on record this Court is not inclined to agree with the judgment and order of conviction passed by the Ld. Trial Court of the appellant under Section 376 IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 - in the absence of clinching evidence of rape or penetrative sexual assault and the conviction to such extent is set aside.
However, in view of PW10 being admittedly minor at the time of the incident and in the light of the evidence shown of criminal intimidation, sexual assault and harassment by the appellant, the order of conviction under Section 506 IPC read with Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 is sustained.
The judgment and sentence passed by the Ld. Trial Court only in respect of each of the offences under Section 506 IPC read with Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 as passed by the Ld. Trial Court stands affirmed.
CRA 13 of 2014 stands partially allowed.
Let the Lower Court Records be sent down forthwith. Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)