Calcutta High Court (Appellete Side)
Lila Rani Sarkar vs Unknown on 15 November, 2019
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
1 6 15.11.2019
A.B. Ct.No.34 C.R.R. 366 of 2004 In the matter of:- Lila Rani Sarkar Mr. Kamakhya Prasad Mukhopadhyay ........ for the O. P. No. 2 Ms. Sreyashee Biswas ...... for the State The revisional application has been preferred against the judgement and order dated 18.11.2003 passed by the learned Judge, Special Court- cum-Additional Sessions Judge, Burdwan in sessions case No. 25 of 2003 (sessions Trial No. 22 of 2003) under section 376 of the Indian Penal Code, wherein the learned Trial Court was pleased to acquit the accused person from the charges levelled against him.
The prosecution case in short is that on 28.7.2002 at about 12.15 hours one Lila Sarkar of Galsi Police Station lodged a complaint under section 156(3) of the Code of Criminal Procedure to the effect on 14.6.2002 at 12 hours one Palash Singha committed rape upon the victim girl inside a jute mill. It is contended that said victim girl was dumb and as such could not raise any hue and cry but at the relevant time complainant arrived at the place of occurrence on seeing her the accused fled away. On the basis of the complaint Galsi Police Station Case No. 95 of 2002 dated 28.7.2002 was registered for investigation under section 376 of the Indian Penal Code. The investigating officer of the case after completion of investigation 2 submitted charge sheet against the accused person for commission of alleged offence. On perusal of the materials on record the learned Trial Court was pleased to frame charge under section 376 of the Indian Penal Code, consequently the charge was read over to the accused person to which he pleaded not guilty and claimed to be tried. The prosecution in order to prove its case relied upon 14 witnesses against the victim girl who is deaf and dumb. The defence however did not adduce any evidence and according to the learned Trial Court the trend of cross-examination and the answers which were given by the accused person under section 313 of the Code of Criminal Procedure reflects that the accused claimed innocence and denied the incident. The victim girl was examined as P.W. 1 through an interpreter who happens to be Headmistress of Sailendra Nath Mukherjee Muk-Badhir Vidyalaya. According to her deposition the victim girl narrated that the accused put off her dress, placed his hands on her private parts and thereafter committed rape. She further deposed that the incident took place at open place near the road, while she was returning after bath. According to her she was caught by hair from the back of her head. In cross-examination she identified her aunt and through her evidence expressed that her wearing apparels were torn and she sustained injuries at the back of her hands, legs and also at her private parts and had to suffer bleeding.
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The medical expert P.W. 5 who proved the medical examination report along with other documents as Exhibit 3, according to the Trial Court is as follows:
"It transpires that it is the case of abduction and commission of rape on 14.6.2002. The reference of abduction, is however, a new addition. The victim was examined on 06.8.2002. Therefrom it appears that her hymen was totally intact. No mark of injury was detected at vagina. No foreign particles were found at her private parts. In fact, so far this case is concerned, this medical examination was totally useless, as she was examined 52 days after the alleged occurrence. During cross examination, the doctor stated that he did not find any mark of injury at any part of the person of Suparna. There was no question of bleeding, as the hymen was totally intact in anular type."
The learned Trial Court in the background of the deposition of P.W. 1 and P.W. 5 also took into consideration the contradictions and exaggerations which were appearing from the deposition of various witnesses. It has been categorically observed by the learned Court that P.Ws. 4, 6, 7 and 9 are public witnesses who have heard the incident from P.W. 2 (defacto complainant). P.W. 3 being the husband of P.W. 2 also stated he heard the incident from P.W. 2. Rest of the witnesses were all official witnesses connected with the investigation of the case.
In this case inspite of service none appeared on behalf of the petitioner. Learned advocate appearing for the opposite party No. 2 submitted that the learned Trial Court on appreciation of the evidence was pleased to acquit the opposite party No. 2 from the charges levelled against him and keeping in mind the settled principles of law relating to revision 4 against an order of acquittal it would not be fit and proper for this Court to interfere after 16 years.
Ms. Sreyashee Biswas, learned lawyer appearing for the State submits that the sole testimony of the prosecutrix in such a case where the victim happens to be deaf and dumb is sufficient to arrive at an order of conviction and the learned Trial Court on the basis of evidence arrived at its conclusion without emphasizing on the basic principles relating to cases under section 376 of the Indian Penal Code. Ms. Biswas in support of her contention relied upon the judgement of Ranjit Hazarika Vs. State of Assam reported in (1998) 8 Supreme Court Cases 635, Narayanamma (KUM) Vs. State of Karnataka and others reported in (1994) 5 Supreme Court Cases 728, Karnel Singh Vs. State of M.P. reported in 1995 CRI.L.J. 4173 and State of Punjab Vs. Ramdev Singh reported in 2004 Supreme Court Cases (Cri)
307. I have taken into account the judgements relied upon by the learned advocate appearing for the State. In Ranjit Hazarika (Supra) it is seen that the statement of the victim girl was recorded under section 164 of the Code of Criminal Procedure and earlier statement made to the investigating officer of the case wherein the victim had stated regarding posture at which offence was committed by the accused. Accordingly there was no anomaly in the medical report. In the facts of that case the medical report was adhering to the version of the victim. The fact of the said case and the appreciation of the statement of the victim under those circumstances 5 which were consisted was found to be acceptable to the Hon'ble Court. However the said facts do not apply to the present case.
In the case of Narayanammma (Supra) the facts of the case relate to more than one persons being involved, one of the accused was involved in commission of the offence while the other aided by catching the legs of the victim. The Hon'ble Apex Court under those circumstances held that the narration of events of commission of rape which was made by the prosecutrix was a natural deposition and adhered to the report of the medical expert and it is seen in this case that hymen of the prosecutrix was ruptured, admitted to fingers, bled on touch, was reddish in colour, and was painful and tender. The medical evidence is totally different from the medical evidence of the instant case where nothing has been found by the doctor which could reveal that any sexual assault was committed upon the victim. As such the case is distinguishable and cannot be applied in the facts and circumstance of the instant case.
In Karnel Sing (Supra) the medical expert opined that the prosecutrix was habituated to sexual intercourse and at the time of examination she did not find any marks of injury and struggle on the person of the prosecutrix. Although she found her undergarments stained with semen. The medical expert further in the case stated that according to her she did not see any signs of forcible sexual intercourse on the prosecutrix. Thus this was a case where the Hon'ble Apex Court was taking into account the factum of the version of the prosecutrix, the medical evidence as well as the 6 evidence of the investigating officer and on a total appreciation of the same proceeded to rely upon the sole testimony of the prosecutrix which the Court found to be reliable to arrive at its conclusion. In the case at hand I find that no supporting materials are available from the medical evidence in order to corroborate the version of the prosecutrix. As such the case relied is not applicable to the fact of the instant case.
In State of Punjab (Supra) the Hon'ble Supreme Court cautioned the Courts not to accept delay in lodging F.I.R. as a ritualistic formula for doubting the prosecution case. In this case also the Hon'ble Apex Court pointed out that much stress was given regarding the opinion of the doctor about the prosecutrix that there was signs of previous sexual intercourse of the victim. According to the Hon'ble Apex Court this by no stretch of imagination is a ground to dilute the offence under section 376. In this case while appreciating the medical evidence it has been held that absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation of evidence of consent on the part of the prosecutrix. It will vary from one case to the other.
On consideration of the materials available on record I find that the learned Trial Court after appreciating the different aspects of the case being delay in lodging F.I.R., no mark/sign/injury being found in the medical report. The narration of the incident by the victim compared with the medical report do not support the prosecution version. Improvement of the version of the defacto complainant from time to time and lastly 7 contradiction amongst the prosecution witnesses found it not to be convincing for convicting the accused.
I have also taken into account the settled principles of law relating to revision against an order of acquittal which is invoked where there is a miscarriage of justice or a manifest illegality apparent on the face of the records or in respect of procedure adopted illegally. I have further perused the order of acquittal so passed which is about more than 16 years and bearing in mind the principle that an accused is presumed to be innocent until proved guilty is fortified by an order of acquittal passed by the Trial Court, find it hard to call in question the judgement delivered by the learned Trial Court.
In view of the reasons assigned by the learned Trial Court, scrutiny of the evidence of all the witnesses and the settled principles of law I do not find any reason to interfere with the order of acquittal so passed by the learned Trial Court.
Accordingly, C.R.R. 366 of 2004 is dismissed.
Lower Court Record be sent back to the learned Court below immediately (Tirthankar Ghosh, J.)