Tripura High Court
Sri Sankar Mandal vs The State Of Tripura on 3 July, 2018
HIGH COURT OF TRIPURA
AGARTALA
Crl. A (J) 02 of 2015
Sri Sankar Mandal
S/o Sri Ganesh Mandal, of Murapara
P.S. Kakraban, District: Gomati, Tripura.
----Appellant(s)
Versus
The State of Tripura
----Respondent(s)
For Appellant(s) : Mr. Ratan Datta, Adv.
Ms Simita Chakraborty, Adv.
For Respondent(s) : Mr. A Roy Barman, Addl. PP.
Connected with
Crl. A (J) 06 of 2015
Sri Biswajit Bhowmik
S/o Sri Kanu Bhowmik,
Resident of Murapara Ward No.2,
P.O. & P.S. Kakraban, Gomati District, Tripura.
----Appellant(s)
Versus
The State of Tripura, represented by the
Secretary to the Govt. of Tripura, Home Department,
Agartala.
----Respondent(s)
For Appellant(s) : Mr. Pran Bora, Adv.
Mr. Raju Datta, Adv.
Mr. Saradindu Chakraborty,
(Amicus Curiae)
For Respondent(s) : Mr. A Roy Barman, Addl. PP.
Date of pronouncement : 03.07.2018.
Whether fit for reporting : YES
HON‟BLE THE CHIEF JUSTICE MR. AJAY RASTOGI
HON‟BLE MR. JUSTICE ARINDAM LODH
Judgment & Order
Lodh, J.
These two criminals appeals, one being Crl. A. (J) 06/2015 filed by Sri Biswajit Bhowmik and another being Crl. A. (J) 02/2015 filed by Sri Sankar Mandal are taken up together for disposal. Both the two appeals arose against a common Page 2 of 37 judgment and order of conviction and sentence dated 22.01.2015 passed by the Sessions Judge, Gomati District, Udaipur in the same Sessions Trial No. 32(ST/U)/2014.
2. Sri Biswajit Bhowmik, appellant in Crl. A. (J) 06/2015 was convicted for the offence punishable under Section 307/364/376 of IPC and sentenced him to suffer RI for 12 years and to pay a fine of Rs.10,000/-, i.d. to suffer SI for six months for commission of offence punishable under Section 376 IPC; to suffer RI for 10 years and to pay a fine of Rs.10,000/-, i.d. to suffer SI for six months for commission of offence punishable under Section 364 IPC and to suffer RI for 5 years and to pay a fine of Rs.5,000/-, i.d. to suffer SI for further six months for commission of offence punishable under Section 307 IPC with a direction that the sentences would run concurrently.
3. Sri Sankar Mandal, appellant in Crl. A.(J) 02/2015 was convicted for commission of offence punishable under Section 120B and has been sentenced to suffer RI for five years and to pay a fine of Rs.5,000/-, i.d. to suffer SI for six months.
4. Though, separate criminal appeals have been preferred before this Court but both the appellants had faced trial in the same Sessions case being Sessions Trial No. 32(ST/U)/2014 and by the common judgment both the appellants were convicted and sentenced, as afore-stated. For convenience, both the appeals were taken up together and heard analogously and are being disposed of by a common judgment. Page 3 of 37
5. For purpose of considering the rival submissions put up in these appeals and with a view to find out whether this Court is required to interfere with the impugned judgment dated 21.01.2015 passed by the learned Sessions Judge, the necessary facts are briefly stated hereunder.
6. On 02.02.2014, at night, at about 9.30 O‟clock one Smt. Shila Saha (32 years) lodged an FIR that while she was cooking, at that time having heard the sound of pushing the door she rushed to her Verandah from the kitchen hut and found that one lady was standing over there wearing only a petticoat having profuse bleeding and injury on her entire body as well as on the hands and face. She could not recognize the lady even in spite of availability of electric light on the verandah.
7. Being scared of this, she had gone to the house of one neighbour, Sri Ajit Shil and narrated the incident. At that time, many people were present at the house of Shri Shil on the occasion of a wedding ceremony. Thereafter, everyone rushed to the house of Smt. Shila Saha. On being asked by the members arrived there, the lady had stated that her name was Suparna Das (Mandal), the daughter-in-law (i.e. the wife of son) of Shri Ganesh Mandal. Then, on further being asked she had stated that her cousin brother-in-law Biswajit Bhowmik S/O Kanu Bhowmik (the son of her maternal uncle in law) came to her house and informed her that some people were beating her husband Sankar Mandal in the market and told her to rush to market with him. But on the way Biswajit Bhowmik had taken her inside a jungle Page 4 of 37 (forest) forcefully by way of pressing her mouth and he had raped her forcefully and left the place leaving the prosecutrix inside the jungle by way of causing her fatal injuries with a view to kill her over there.
8. Subsequently, information was given to the house of that lady and thereafter, her parents-in-law as well as husband Shri Sankar Mandal came to the house of Shila Saha, the complainant herein, and had taken the victim therefrom. Shila Saha had given one old saree (cloth-apparel) to the victim for covering her body. The FIR was lodged with the Officer-in-Charge of Kakraban Police Station, Udaipur, Gomati District, Tripura. The case was committed to the learned Sessions Court for trial.
9. As many as 46 witnesses were examined in support of the prosecution case. The statements of the accused-appellants were recorded under Section 313 CrPC in which they denied the charge leveled against them and pleaded innocence and they prayed for acquittal from the charges framed against them.
10. After hearing the learned counsel for the parties, the trial court by its judgment and order dated 22.01.2015 convicted and sentenced the appellant Biswajit Bhowmik for the offence punishable under Section 307/364/376 of the IPC and Shri Sankar Mandal for the offence punishable under Section 120B. Being aggrieved with the conviction and sentence, both Biswajit Bhowmik and Sankar Mandal have preferred these appeals separately before this Court.
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11. During the course of trial, the learned trial court has framed the following charges against the accused Biswajit Bhowmik under Section 307/364/376 of the IPC and against accused Sankar Mandal under Section 120B, as under:
"Firstly, that you on 2.2.14 at about 2130 hrs in an isolated jungle nearby the road of Holakhet under Kakraban P.S., Gomati District, made a criminal conspiracy with Sankar Mandal to kidnap the victim lady in order to commit murder. As a result of criminal conspiracy you assaulted her brutally and also attempted to commit murder her by this way and you have thereby committed an offence punishable under Section 120-B of IPC and within my cognizance;
Secondly, that you on the same date, time and place, kidnapped the victim lady in order that she might be murdered with common object with Sankar Mandal and you thereby committed an offence punishable under Section 364 read with Section 34 IPC and within my cognizance;
Thirdly, that on the same date, time and place, you along with Sankar Mandal in furtherance of common intention and under such circumstances that if by that act you have caused the death of the victim lady and you would have been guilty of murder and you thereby committed an offence punishable under Section 307 red with Section 34 of IPC and within my cognizance;
Fourthly, that you on the same date, time and place, voluntarily caused grievous hurt to the victim lady by fist and blows and you thereby committed an offence punishable under Section 326 of IPC and within my cognizance;
Fifthly, that you on the same date, time and place committed rape upon the victim lady against her will and you thereby committed an offence punishable under Section 376(1) of IPC and within my cognizance.
And I hereby direct that you be tried on the above charges by this Court of Sessions.
Charge also framed against accused Sankar Mandal as follows:
Firstly, that you on 2.2.14 at about 2130 hrs in an isolated jungle nearby the road of Holakhet under Kakraban P.S., Gomati District, made a criminal conspiracy with Biswajit Bhowmik to kidnap the victim lady in order to commit murder. As a result of criminal conspiracy Biswajit Bhowmik assaulted her brutally and also attempted to commit murder her by this way and you have thereby committed an offence punishable under Section 120-B of IPC and within my cognizance;Page 6 of 37
Secondly, that you on the same date, time and place, you along with Biswajit Bhowmik in furtherance of common intention kidnapped the victim lady in order that she might be murdered and you thereby committed an offence punishable under Section 364 read with Section 34 IPC and within my cognizance;
Thirdly, that on the same date, time and place, you along with Biswajit Bhowmik in furtherance of common intention and under such circumstances that if by the act you have caused the death of the victim lady and you would have been guilty of murder and you thereby committed an offence punishable under Section 307 read with Section 34 of IPC and within my cognizance.
And I hereby direct that you be tried on the above charges by this Court of Sessions."
12. On the above charges, in deciding the case, the learned trial court decided the following points to be determined for ends of justice:
"1) Whether both the accused persons conspired to kidnap the victim lady „Puspa‟ (name changed) and also attempted to kill her and caused grievous hurt and raped her by accused Biswajit Bhowmik?
2) Whether the accused persons with the common object kidnapped the victim lady for murder and in continuation of that intention attempted to kill her, caused grievous hurt to her and also committed rape on her by accused Biswajit Bhowmik?
3) Whether the accused Biswajit Bhowmik committed offence punishable under Sections 376(1)/326/307/364/120-B IPC?
4) Whether accused Sankar Mandal committed offence punishable under Sections 120-
B/364/307/34 IPC?"
13. Mr. P Bora, learned counsel appearing on behalf of accused-appellant Biswajit Bhowmik has contended that the PWs 2,14,15,16,20,27,31,32 and 43 were declared hostile by the learned Court. According to him, they were the persons to whom the complainant had first narrated the incident of rape of the victim and all of them were independent witnesses. He has pointed out that the complainant Shila Saha who had lodged the FIR, in her deposition as PW31 did not say that the victim was Page 7 of 37 raped by Biswajit Bhowmik when she was declared hostile. The learned counsel has given much emphasis to the said version of her deposition before the trial court, as the learned counsel has found contradictions in her statement which she made earlier under Section 161 and Section 164(5) of CrPC.
14. Mr. Bora, learned counsel has drawn our attention to the fact that PW6-Chandan Dey during his cross-examination has stated that Biswajit Bhowmik, the accused-appellant, did not tell that he had raped Suparna though on 02.02.2014 in the night at about 3/3.30 p.m. went to his house in a drunken condition and stayed there for that night. PW32-Sajal Kumar Das also did not admit his statement which he made earlier under Section 161 CrPC that he told to Darogababu about rape of Suparna when he was declared hostile.
15. Learned counsel has contended that the statements made by PW46, the Investigating Officer (IO) of the case, wherein in cross he has stated that he did not collect the information sent to Women P.S. by Dr. K Das and that he recorded the statement of prosecutrix on 28.02.2014 and had no written explanation for not recording the statement before 28.02.2014 and that caused the delay for recording the statement under Section 164 CrPC. Emphasizing on such delayed recording of statement, Mr. Bora has strenuously argued that the conduct of the Investigating Officer is unworthy which had left enough space for the prosecution to develop and improvise the story. According to the learned counsel, the delayed recording of Page 8 of 37 statement under Section 164 CrPC carries much relevance in favour of the accused-appellant‟s acquittal.
16. At this juncture, he took us to take note of the statement of the prosecutrix wherein she has stated in her cross- examination that "after 7/8 days I was released from GB Hospital. I went to Nagerjala and from Nagerjala again I admitted to hospital on the same day". He then pointed out the time of admission from the prescribed form under the nomenclature "the report of cases of serious injury or of poisoning admitted into the Gomati District Hospital, Udaipur", wherein against the column of "date of admission" in the Hospital has been recorded as on 03.02.2014 at 12.20 a.m. This is the hospital where the prosecutrix was brought immediately after the accident.
17. Learned counsel has also drawn our attention to the date and time mentioned in the prescribed form with caption "report on cases of serious injury or of poisoning admitted into the AGMC and GBP Hospital" wherein against the column "date of admission" in the hospital it is recorded as on 03.02.2014 at 3.54 a.m.
18. Mr. Bora has tried to make a comparison between the injury reports of the two hospitals. In the injury report of Gomati District Hospital, it is found that in the injuries of the vulvul areas there are laceration injuries of left sided majora, labia minora and extended inside the left vaginal wall with mild bleeding inside. There was marked tenderness all over the body. As the general condition of the patient was poor she was immediately Page 9 of 37 shifted to AGMC & GBP Hospital, Agartala for better management. The report also says contusion of her left upper chest, left forehead, left side of the neck, anterolateral aspect of the left thigh and there is marked facial puffiness, swelling of both eyes with bleeding from the eyes and swelling of upper lip with bleeding from upper lit and mouth. This report has been marked as P-4.
19. Learned counsel found much omission and contradictions in the report of AGMC&GBP Hospital wherein the prosecutrix was admitted with history of trauma to head, face, eyes, both thighs following alleged physical assault (sexual assault). The report says that the patient was conscious, her blood pressure was 120/84 and pulse was having 90 bpm. There was no active bleeding in her vagina. Against the injury report, the hospital authority found defused swelling over the face involving both eye lids, eyes can‟t be opened, contusion of left side of upper chest 2x2 cm, multiple injuries and contusion over both the thighs. Against the column of "extent of injury", it has been remarked as "slight" (emphasis is laid by learned counsel). Against the column "by what kind of weapon inflicted", it is remarked that "hard, blunt weapon" was used behind all the injuries". The medical report of the AGMC & GBP Hospital has been marked as P-3.
20. Comparing the two medical reports, learned counsel has candidly submitted that while the medical report of the Gomati District Hospital found the injury of grievous nature, the Page 10 of 37 AGMC & GBP Hospital found that the injuries are „slight‟ as would be evident from the normal reading of blood pressure and pulse. Learned counsel has found further fault in the prosecution case due to its failure to obtain the discharge certificate and it is not proved from any of the documents brought in evidence, what was the time when the prosecutrix was released.
21. Learned counsel has submitted that it is the admitted positions that quarrel between the husband Sankar Mandal and the wife prosecutrix was a usual affair in their day to day life. He found the husband Sankar Mandal playing a very important and significant role behind the commission of the offence but the prosecutrix was put in an advantageous condition to save her husband from his involvement behind the commission of the offence. The husband was always with her and the advice of the husband towards her to keep mum has benefitted the prosecutrix to turn and improvise the story otherwise.
22. Contending thus, learned counsel finds the evidence of the prosecutrix as unreliable and it is not a case of rape. He further submits that at best it may be a case falling under Section 325 or Section 326 of the IPC.
23. To a query by this Court, that if we believe the medical reports and statements of the victim then what emerges, the learned counsel has submitted that there are only history of assault but who assaulted still remains a question. Both the accused-appellants were under the influence of liquor and they Page 11 of 37 belong to the lower strata of society which, according to the learned counsel, the Court may consider.
24. The learned counsel has further submitted that the circumstances have to be balanced and the Court may try to make a balance between the aggravating and litigating circumstances. Mr. Bora concluding his submissions has stated that already appellant Biswajit Bhowmik has suffered rigorous imprisonment for four years which is sufficient under the circumstances.
25. To a question, however, Mr. Bora in all his fairness has submitted that conviction and sentence can be affirmed or upheld on the basis of the sole evidence of the prosecutrix if the Court finds credence on such statement.
26. In addition to the submission advanced by Mr. Bora, Mr. Saradindu Chakraborty, learned counsel appearing as amicus curiae who was appointed vide order of this Court dated 18.04.2018 has submitted that Sankar Mandal has been saved by the prosecutrix-wife by taking the opportunity of delay. The judgment passed by the trial court is mechanical. He further submits that the commission of the offence of rape has not been proved and the story of the prosecutrix is doubtful. Mr. Chakraborty has contended that the prosecution has failed to prove the primary ingredients of S.120B/364 of the IPC.
27. Learned counsel, Mr. Bora has placed reliance upon the decision of the Apex Court in Kehar Singh and Ors. vs Page 12 of 37 State (Delhi Administration), reported in 1988 (3) SCC 609 (Para 71), Hem Raj vs State of Haryana, reported in 2014 (2) SCC 395 (para 72), Maruti Rama Naik vs State of Maharashtra, reported in 2003 (10) SCC 670 (Para 7) and 2016 (16) SCC 418 (Para-11, 15, 16), and C. Muniappan & Ors Vs. State of Tamil Nadu, reported in (2010) 9 SCC 567 (para 83, 84).
28. On the other hand, Mr. Ratan Datta, learned counsel appearing on behalf of the appellant in Crl. A(J) 02/2015 has drawn our attention to the definition of S.120A which is reproduced hereunder for convenience:
"120A. Definition of criminal conspiracy.--When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
29. Drawing our attention to para 12 of the judgment, he has submitted that punishment under Section 120B cannot be made against one individual and to prove the charge under Section 120B the conspiracy has to be hatched by more than one person is a must. The primary ingredient of Section 120B has not been proved against Sankar Mandal. He has further submitted that from a bare reading of the evidence on record, it has been Page 13 of 37 proved that Sankar Mandal was present in his motor garage shop during the relevant period.
30. Drawing our attention to the FIR he submits that Smt. Shila Saha, PW31 lodged the complaint to the Officer In-charge of the Kakraban Police Station and stated inter alia, that on being asked the victim lady only named Biswajit Bhowmik, S/o Kanu Bhowmik who had taken her from the house on the false pretext and virtually, victim was taken to the jungle (Forest) forcefully by way of pressing her mouth and had raped her.
31. Placing reliance on the statement of PW1, the victim prosecutrix, Mr. Dutta has submitted that the prosecutrix only mentioned the name of Biswajit Bhowmik who is her brother-in- law and cousin brother of her husband. She first disclosed the name of Biswajit, the accused-appellant to PW31, i.e. complainant, Smt. Shila Saha who has lodged the FIR and her husband Sankar Mandal, also one of the accused-appellants, came to the house of PW31 after being informed when she also narrated the fact to her husband.
32. To brush aside the story of conspiracy between Sankar Mandal and Biswajit Bhowmik he has pointed out the statement of PW31 during her deposition that Smt. Shila Saha herself has stated that after some time Sankar Mandal, her husband came to their house in drunken condition and told how his wife had come there. She also has stated that she saw Sankar Mandal carrying his wife after taking her on his shoulder.
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33. In her cross-examination, on behalf of the accused Sankar Mandal, Smt. Shila Saha PW31 has deposed that she told Darogababu that mother of Sankar Mandal uttered „chup chup‟ and that she told Darogababu that Sankar Mandal went there in drunken condition, assaulted Swapan Das and Sajal and also kicked the fencing of her verandah, has not been confirmed by PW46, the Investigating Officer in his examination and cross- examination.
34. Learned counsel, Mr. Dutta has submitted that on the basis of the statements of PWs 17, 18 & 26, the appellant Sankar Mandal has been convicted. But from their statements, it has only been surfaced that there were only conversation between Sankar Mandal and Biswajit Bhowmik but no one heard of any conspiracy or agreement to assault or to cause any harm to the victim prosecutrix. As such conviction and sentence under Section 120B IPC imposed against the appellant Sankar Mandal is bad in law which needs to be interfered by this Court. In support of his contention, the learned counsel has relied upon the decision of the Apex Court reported in Sujit Biswas Vs. State of Assam, reported in 2013 CrLJ 3140 (Para 6).
35. Per contra, Mr. A Roy Barman, learned Addl. PP appearing on behalf of the State has submitted that though there are some loopholes in the prosecution case but that will not give a clear go bye to the prosecution case. He has pointed out the opinion of the expert of Department of Forensic Medicine and Toxicology from AGMC & GBP Hospital wherein the doctor opined Page 15 of 37 that "based on the above finding, there is evidence of penetration of vagina recently by a hard object or Adult erectile penis like objection. However, vaginal swab is transferred for analysis to know presence of seminal fluid or spermatozoa inside the vagina." This part of the evidence, according to Mr. Roy Barman, has not been shaken by the defence. He further submits that there is no reason to disbelieve the statement of the victim prosecutrix and the prosecution case has been proved by direct evidence of the victim lady.
36. At the conclusion of the argument of the parties, Mr. P Bora, learned counsel has tried to summarize his case to convince this Court about the innocence of the accused-appellant Biswajit Bhowmik. He submitted that the prosecution case is totally based on circumstantial evidence, and in this nature of nature of cases, the Court must be satisfied with the chain of circumstances, and if one chain is missing the entire evidence will go. He mentioned dis-similarity between the two medical reports and he questions, which report is to be believed as these are contradictory to each other.
37. Learned counsel for the appellant further submits that there is no reasonable explanation in causing the delay of recording the statement of the victim lady under Section 161 CrPC as well as recording the statement under Section 164(5) CrPC. The delay was caused intentionally only to improvise the prosecution story and put the prosecutrix in a position to save her husband Sankar Mandal. Submitting on non-availability of Page 16 of 37 discharge certificate, learned counsel has contended that it is not the duty of the defence to procure and prove the discharge certificate and in absence of its recovery; the prosecution story would be turned baseless. He has candidly submitted that no hard object (Stick) has been ceased during the course of investigation which may be fatal to the success of the prosecution case.
38. On the basis of the aforesaid rival submissions, evidence of the prosecution witnesses on record, and the reasons assigned by the trial court, the following points would arise for consideration of this Court:
i) Whether the trial court should have given the benefit of doubt to the appellant based on the contradictions regarding the involvement of the accused in the commission of the offence, the FIR, the charge sheet and the statement of the prosecutrix and the prosecution witnesses?
ii) What order?
Reasons
39. To answer the first point it is necessary for us to consider the following evidence:
a) The direct evidence of the prosecutrix;
b) Evidence of the witnesses and the medical evidence;
c) Circumstantial evidence on record;
40. Ordinarily, rape is violation, with violence of the private person of a woman - an outrage by all cannons. In a rape Page 17 of 37 case, it is very natural that there would be no eyewitness. We are inclined to find out whether the statement of the victim lady during her deposition at the time of trial is consistent with her version which she made before the Judicial Magistrate under Section 164(5) CrPC. Further, it would also be tested whether her evidence carries credibility to come to the conclusion that there is no exaggeration in her statement.
41. The deposition of the prosecutrix, PW1 is reproduced in verbatim:
"Accused Sankar Mandal is my husband. Accused Biswajit is my brother in law through the aunt in law. On 2.214 at about 7/7.30 p.m. accused Biswajit Bhowmik came to my house and called me and told me that the people of Jamjuri market were beating my husband Sankar Mandal. I told him that I should inform my mother in law. He told me that no need to inform mother in law but to go with him, so I took the torchlight, mobile and chadar and after closing the door I went out with him. He did not allow me to inform my mother in law. After going out I find no bike and saw the bike of Biswajit in the school field. In went to the school field on foot. I switched the torch, he told me not to switch it. Then he started the bike. I got up in his bike. Then he was taking me through another road. He told me that he was taking me towards the house of my maternal uncle. I asked him why he was taking to that direction when he promised to take me to my husband. I refused to go to the house of maternal uncle. I told that I would raise cry. Thereafter, he told that he would go to the market through short road. Accordingly he proceeded towards market to another unknown road. After going to some distance he stopped the bike, kept it by the road side. Then he pressed my mouth and threatened to kill me. After giving threat he took me towards the jungle forcefully then he throttled me, pressed my mouth with one hand and lied me down on the jungle. Then he undressed me and torned my wearing apparels and forcefully raped me. Thereafter he assaulted pressed my throat and said "after so much pressure on the throat she did not die".
He bitten my breast and other parts of the body. The witness began to weep at this stage and her demanner marked. After biting and assaulting me he again and again threatened to kill me. Again he throttled me. Then I lost my sense. He considered that I died so he left me there in the jungle. After two and half hours I regained my sense. After regaining sense I saw that the accused had panitrated one lathi into my vagina. I found myself in naked condition. My wearing apparels were thrown away. In such a condition I was afraid to go back in the locality. After searching I got my petticoat and could not see anything because of assault on the eyes. I saw a light in a house, proceeded towards that house, on the way I fell down. Then I went to one house, I knocked the Page 18 of 37 door of that house, one woman saw me and raised cry and went to another house. She called other persons. I requested the woman to give me cloth. Firstly she refused then others requested her to provide me a cloth and I covered my body to that cloth. I took 3 glass of water and told them that I was wife of Sankar Mandal. I told that I have a child of two and half years who is left to my mother in law. I disclosed the name of my father in law. Then they called my father in law. My father in law came there. My father in law then sent my mother in law. Then my mother began to weep seeing my condition, information was given to my husband. My husband Sankar Mandal came. I told the fact to my husband. I told that Biswajit did such a wrong upon me. My husband then told that he would ask Biswajit. My husband then taken me to the school field. My father in law called the vehicle and by vehicle I was taken to Udaipur Hospital. Therefrom I was referred to G.B. Hospital. I was under treatment in the hospital for many days. On my return to hospital darogababu sent me to Magistrate. I told the fact to the Magistrate and Magistrate recorded my statement. I signed the statement. This is my signature marked as Ext.P.4/1. My husband has fault. He is unnecessarily implicated by police. Accused Biswajit is present today and identified in the dock.
Cross-Examination on behalf of accused Biswajit Bhowmik Six years back I was married to Sankar Mandal. Since then I have been living in the house of Sankar Mandal at Murapara. There are 3 huts in our house. There is a shop premises on the western side, another hut on the south and north. Myself and my husband live in one room of the northern hut and my parents in law live in another room of that hut. I have idea about Jamjuri market. The market is in the northern side. House of Kanu Bhowmik lies on the way to Jamjuri market. Murapara school field is in the southern side of our house. After this incident I live in my father‟s house and also in laws house. My husband is living with me. My parents in law, brother in law, his wife and child live in my in laws house. There are many houses surrounding in our house. House of Jaharlal Sarkar, Sajal Shil, Prankirshna Das are near to our house. On 1.2.14 myself, my husband, my mother and my elder sister with her child stayed in my husband‟s house. It is not a fact that on that night my husband beaten me, my mother and also my sister, then we went to the house of Laxmi Dey and Laxmi Dey did not permit us to stay there. It is not a fact that we went to the house of Badal Bhawal on that night, Badal Bhawal was Pradhan. It is not a fact that we stayed in the house of Badal Bhawal. It is not a fact that no the next day I went to the house of Biswajit to complain against my husband. It is not a fact that we took lunch in his house. It is not a fact that Biswajit took me to my in laws house. We lived in a rented house for six months at Rajdharnagar. It is not a fact that many panchayet meetings held on the matter of quarrel between me and my husband. We left the school field after stay for short time. It is not a fact that my husband assaulted me in the house of Shila Saha, did not permit me to talk with anybody and dragged me out. I cannot say how many persons assembled in that house. I was stammering that time. I was not seen clearly all people assembled. However, there are many people. It is not a fact that my husband beaten the other members of the house of Shila Saha. I had full sense when brought to the hospital, also Page 19 of 37 had sense in the G.B. Hospital. There are many houses on the way to market and school field. Distance of market will be two km. from my husband‟s house. My husband did not file FIR as he was busy with my treatment. After 7/8 days I was released from G.B. Hospital. I went to Nagerjala and from Nagerjala again I admitted to hospital on the same day. I did not tell darogababu that „Bisuda‟ told me that your husband had taken liquor in the market and told that he would beat you. Attention of witness drawn to 161 statement, witness stated that such statement is there. Keep it mark with red ink subject to exhibition and confirmation by the I.O. I did not tell darogababu that the accused Biswajit did not permit me to inform my mother in law. It is not a fact that on 2.2.14 Biswajit come to my house, did not inform me about assault my husband and did not take me to his bike in the jungle and left me in the jungle. It is not a fact that the accused did not undressed me, raped me and panetreted lathi on my vagina. It is not a fact that I did not go to the house of Shila Saha and did not told them the fact of rape on me. It is not a fact that my relationship with my husband is bitter and to save my husband I have given false evidence.
Cross-Examination on behalf of accused Sankar Mandal Declined."
42. Smt. Shila Saha, PW31, supported the version of the prosecutrix to the extent that the victim went to her house and she called PW31 with illness. She saw her in bleeding condition. She found the prosecutrix wearing a petticoat only. She also deposed that initially the prosecutrix was not in a position to talk but after a while she told that she was the daughter-in-law of Ganesh Mandal and wife of Sankar Mandal of the same village. She also admitted the fact that Sankar Mandal after being informed went to her house in a drunken condition. She further deposed that Sankar Manadal was carrying his wife after taking her on his shoulder. She has categorically stated that thereafter complaint was filed. She also put her signature on the complaint petition and identified her signature in the FIR which was marked as Exhibit-P1/1.
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43. After scrutiny of the statement of the IO, PW46, we find that the statement which PW31 made under Section 161 of CrPC is confirmed by the IO.
44. PW2-Swapan Sukladas, PW14-Smt. Mina Rani Sarkar, PW15-Sri Ranjit Sarkar, PW16-Sri Indrajit Sukladas, PW20-Sajal Shil, PW27-Smt. Jahara Bibi, PW31-Smt. Shila Saha, PW32-Sri Sajal Kumar Das and PW43-Laxmi Rani Das were declared hostile during the course of trial.
45. Mr. Bora, learned counsel for the appellant Biswajit Bhowmik, has contended that they being independent witnesses did not support the prosecution case as well as the statement of the prosecutrix.
46. PW43- Laxmi Rani Das, mother of the victim, has deposed that her son in law, Sankar Mandal and his father Ganesh Mandal informed her over telephone that Biswajit Bhowmik raped her daughter, i.e. the prosecutrix. Thereafter, she went to the GB Hospital and talked with her daughter when she divulged that Biswajit had taken her into the jungle promising her to take her to her husband but in the jungle Biswajit raped her. She also saw her daughter-victim in injured condition over her whole body. She also put her signature in the seizure list which was marked as Exhibit-P2/1 (petticoat). Up to this statement, PW43 was not declared hostile.
47. From the deposition of PW2, it is revealed that he has admitted the story of the prosecutrix as well as PW31, Shila Saha Page 21 of 37 to the extent that he saw the prosecutrix almost in naked condition in the house of PW31 and they called Ganesh Mandal who later on called his wife, i.e. the mother-in-law of the prosecutrix.
48. PW4, Tutan Chakraborty in his deposition has stated that on the request of PW31, Shila Saha he wrote the ejahar. He also identified the ejahar as Exbt.-P1. He is also seizure witness of blood stained soil, wearing apparel, Chadar, Saree, blouse of the victim and chappal.
49. PW6, Chandan Dey during his deposition has stated that the accused-appellant Biswajit Bhowmik is his brother-in-law and on 02.02.2014 in the night at about 3/3.30 a.m. Biswajit went to his house and called him when he saw Biswajit in drunken condition and was not in a position to take care of himself. On the request of Biswajit, he provided him a place to sleep and when Biswajit woke up in the morning he told him that he had taken much liquor at Jamjuri Kirtan. He has further deposed that in the evening Sankar called him in the market and gave him much liquor for which he vomited. Sankar requested him to bring his wife in a lonely place so that he could kill his wife. Accordingly, Biswajit brought the wife of Sankar in the jungle by his bike when Sankar assaulted his wife. In the cross- examination, he has deposed that Biswajit did not tell him that he had raped Suprana.
50. PW7, Samir Das also deposed in the same tune as that of PW6.
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51. PW11, Abdul Hussain PW12, Kishore Karmakar PW13, Smt. Laxmi Dey and PW14, Smt. Mina Rani Sarkar have been declared hostile. PW15, Ranjit Sarkar is the police personnel who is a seizure witness.
52. PW17, Rabi Das has deposed that on 02.02.2014 at about 6 p.m. he saw both Sankar Mandal and Biswajit Bhowmik, the accused appellants, in the shop of Sankar when they were discussing about the family quarrel of Sankar. They took liquor when Biswajit vomited and at about 7.30/8.00 p.m. after that both of them had left and he had not seen anything further.
53. PW19, Dr. Subhankar Nath has deposed that on 10.02.2014 he was posted as Dy. Director, SFSL. On that day he received 22 numbers of exhibits from SDPO, Udaipur in connection with Kakraban P.S. case No. 08/2014 and he examined those exhibits. He has deposed that no seminal stain or spermatozoa of human origin was found and blood stain of human origin was detected in E.1 to E.3. E.4-b, E.5, E.7 to E.9, E.12, E.13 and A1. Its blood group is „O‟ and E.5 „AB‟ group and E.13 is also „AB‟ group. His report has been marked as Exbt.-P5.
54. PW24, Sabyasachi Singh has deposed that on 10.02.2014 he was posted as Dy. Collector of Gomati District. On that day, he went to Kakraban P.S. when Darogababu recorded the statement of Sankar Mandal and Biswajit Bhowmik in his presence and then police went to the spot along with the two accused but they went there separately and showed the spot where the offence was committed.
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55. PW27, Smt. Jahara Bibi before being declared hostile, has deposed that on 02.02.2014 in the night after hearing a cry in the house of Ajit Shil she rushed there and found that the cry came from the house of PW31, Shila Saha and went there and saw one woman wearing petticoat standing there.
56. PW28, Dr. Kajal Kr. Das being posted as Medical Officer at Tripura Sundari Hospital on 03.02.2014 has deposed that the prosecutrix was brought in a very serious condition with multiple physical injuries and he attended her at about 12.40 a.m. On examination, the prosecutrix was found drowsy, disoriented and could not speak properly. He found the prosecutrix with multiple injuries, tenderness over the body. The details of the injuries have been mentioned in the report. He identified the medical report submitted by him which is marked as Exbt.P4 when she was referred to the Agartala Government Medical College Hospital for further treatment.
57. PW29, Dr. Biswajit Pal, PW30, Dr. Jayanta Kumar Chakraborty who treated the prosecutrix, have submitted their respective reports which has been exhibited and marked as Exbt.-P5 and Exbt.-P6. PW29 has deposed that the nature of injury was of severe nature caused by blunt object and PW30 also opined that there was evidence of penetration of vagina by a hard object or an adult erected penis like object.
58. PW32, Sajal Kr. Das, before being declared hostile has supported the prosecution case to the extent that after hearing hue and cry at about 10.00 p.m. he saw PW31, Shila Saha Page 24 of 37 rushed to his house and told that a mad woman in naked condition went to her house.
59. PW41, Dr. Sutirtha Das Gupta, examined the prosecutrix on 03.02.2014 when he found trauma in her head, face and both eyes following physical and sexual assault though there was no active bleeding and clot in the vagina. He found three major swelling on the face and eyes and contusion on left upper side of the chest, multiple abrasions in both the thighs and the patient was shifted to ICU. He identified the medical report which is marked as Exbt.-P3.
60. PW45, Mridul Chakraborty being the Judicial Magistrate, 1st Class has recorded the statement of the prosecutrix on 18.03.2014 under Section 164 CrPC and the said statement was recorded by him and marked as Exbt.-P4. He has also recorded the statement of Samir Das & Badal Bhawal on 24.02.2014 and on 18.03.2014 he recorded the statement of Chandan Dey which are marked as exbt.-P5, P6 and P7 respectively. There is no material cross by the accused- appellants and the appellants could not shake the deposition of PW45.
61. PW46, Jatindra Das is the Officer-in-Charge who investigated the case. He has deposed that in the place of occurrence he got the wearing apparels of the victim including chappal, back side of mobile cover, broken counch and a shawl chadar. He prepared the seizure list which is marked as Exbt.-P2. Other articles, i.e. blood stained soil, chappal, chadar which were Page 25 of 37 also seized and the seizure list is marked as Exbt.-P2 series. He also prepared hand sketch map of the place of occurrence, recorded statement of the witnesses as stated above. On 18.12.2014 he recorded the statement of Chandan Dey under Section 164 CrPC and on 24.02.2014 he recorded the statement of Badal Bhawal and Samir Das under Section 164 CrPC.
62. On 26.03.2014 he recorded the statement of the prosecutrix. The witnesses who were declared hostile, their statements which they made under Section 161 CrPC have been confirmed by PW46, the IO. Exbt.-P5, P6, P7, P8, P9, P10, P11, P12, & P13 have been confirmed by the IO. He has further deposed that the blood group of the victim and the blood found in the bike matched.
63. During his cross examination, he was pointed out that he has not written any explanation for not recording the statement of the prosecutrix before 28.02.2014 and cause of delay for recording the statement under Section 164(5) CrPC. During his cross-examination he has deposed that he recorded two statements of Suparna Mandal and with this admission Exbt.- D1 is confirmed.
64. In the instant case, the victim after the occurrence of the incident was rushed to the Tripura Sundari Hospital at Udaipur from the house of Shila Saha, PW31 and thereafter, to GB Pant Hospital on the same night. She was treated there for a considerable period. After that she returned back to her home. Page 26 of 37
65. In our opinion, the victim lady needed some settlement of the trauma she suffered due to her becoming a victim of rape. It is not unnatural that such a victim will need a considerable period of time to be stable both mentally and psychologically. She also might prefer to stay in the home without speaking to anyone because of social shame. Moreover, the victim, PW1 cannot be blamed for the delay in recording her statement under Section 161 & 164 CrPC, if at all there was any delay in recording her statement it is the investigating agency that is to be blamed.
(Underlined for emphasis)
66. More so, in our view, the responsibility of recording the statement of the victim and other witnesses wholly lies upon the investigating agency for which the victim lady, in a case of heinous crime like rape, should not be blamed. Accordingly, we are inclined to repel the contention of Mr. Bora that the delay caused and which remained unexplained by the Investigating Officer was fatal to the prosecution case.
(Underlined for emphasis)
67. Our above view gets support from a decision of the Supreme Court in State of Andhra Pradesh Vs. Shaik Mazhar, IAR 2001 SC 2427 (para 17).
68. The learned counsel has also made a bid to assail on the recording of the delayed FIR. We have given our conscious look at the FIR. The incident of kidnapping occurred on Page 27 of 37 02.02.2014 at about 7/7.30 p.m. then the victim lady was raped and assaulted and at around 9.30 p.m. she took shelter at the house of Smt. Shila Saha, PW31. After having few hours at her house she was taken to Tripura Sundari Hospital by her husband and other in-laws wherefrom she was shifted to AGMC & GBP Hospital, Agartala. It was very natural that all her in-laws and near relations were involved in the treatment of the victim lady. Perhaps, due to that the FIR was lodged by Smt. Shila Saha in whose house the victim took shelter immediately after being faced with the heinous crime. Moreover, Shila Saha was not in any way related to the victim lady and it was the first occasion that she saw the victim lady. As such, it was very natural that, initially Shila Saha might have been little bit hesitant to lodge the FIR and ultimately, as good sense prevailed over her she lodged the FIR at 13.15 hrs on 03.02.2014. Due to the aforesaid reasons, we find no error in the delayed lodging of FIR. Hence, the submission of learned counsel that the prosecution story should fail due to delayed lodging of FIR has not substance and is repelled.
69. In State of Punjab Vs Gurmit Singh & Ors., reported in (1996) 2 SCC 384, it was held:
"The courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged."Page 28 of 37
70. As we discussed above, in this case also FIR was lodged in a peculiar circumstances by Smt. Shila Saha. Situated thus, we have no hesitation to hold that delay of a few hours in lodging the FIR does not weaken the prosecution story in any manner whatsoever.
71. In regard to the reliability of hostile witnesses, it is settled principle of law that statement of hostile witnesses could also be relied upon by the Court to the extent it supports the case of the prosecution. Reference in this regard can be made to the case of Govindaraju @ Govinda Vs. State by Srirampuram Police Station and Anr., reported in (2102) 4 SCC 722.
72. In the instant case, we have noted that the direct evidence has come out from the victim, PW1 who described the chain of circumstances. In her deposition, she has described the entire chain of circumstances from her abduction from the house till her appearance to the house of PW31, Smt. Shila Saha. She, in her statement, categorically has named Biswajit Bhowmik, the accused appellant. She appeared to be very firm in disclosing the name of Biswajit Bhowmik who was very much known to her being her brother-in-law (aunt‟s side). In a case of this nature, no one can expect the presence of any eye witness to the incident.
73. We also did not find any omission and inconsistencies in the statement of victim both under Sections 161 & 164 CrPC as well in her depositions before the trial court. Even during the Page 29 of 37 course of trial she was crying, the demeanor of which was noticed and mentioned by the trial court.
74. The Apex Court in Rameswar S/o Kalyan Singh Vs. State of Rajasthan, reported in AIR 1952 SC 54 declared that corroboration is not a sine qua non for conviction in a rape case. In the case, Vivian Bose J., speaking for the Court observed as follows:
"19..... The rule, which, according to the cases, has hardened into one of law, is not that corroboration is essential before there can be a conviction but the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child, coupled with other circumstances appearing in the case, such, for example, as its demeanor, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.
.......
21. ..........All that is required is that there must be "some additional evidence" rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it"."
75. In Sunil Kumar Vs. State (NCT of Delhi) reported in (2003) 11 SCC 367 (Scc P.371, para 9) it was held that :
"9. ......as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if there are doubts about the testimony the Courts will insist on corroboration........"
76. The same principle has been reiterated in Namdev Vs State of Maharashtra, reported in (2007) 14 SCC 150 by Page 30 of 37 stating that it is open to a competent court to fully and completely rely on a solitary witness and record conviction, if the quality of the witness makes a testimony acceptable.
77. In Narendra Kumar Vs State (NCT of Delhi) reported in (2012) 7 SCC 171, the Apex Court held: (Scc P-178 para 20,21) "20. It is a settled legal proposition that once the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.
21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial (sic circumstantial), which may lend assurance to her testimony.
78. The same view I find in Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. (2003) 3 SCC 175, and Vishnu Vs. State of Maharashtra (2006) 1 SCC 283.
79. The Medical reports of the two hospitals and the evidence led by the Doctors treating PW1 have described the injuries of the victim. They also found the symptoms of penetration by hard object or penis of an adult man inside the vagina of the victim. Such examination of the victim and opinion arrived at by the Doctors have amply proved the version of the Page 31 of 37 prosecutrix that she was a victim of rape caused by Biswajit Bhowmik, one of the accused appellants.
80. We have meticulously, given our thoughtful consideration to the statement of the prosecutrix in conformity with the medical reports and the opinion of the doctors. This Court is conscious that while trying an accused on the charge of rape the Court 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 the witnesses which are not of a substantial character.
81. Having considered the evidence on record in its entirety, particularly, the statement of the victim and the injury reports we have drawn the inference that the evidence of the prosecutrix, PW1 cannot be said to be untrustworthy and suffer from any serious discrepancies. We are also satisfied with the chain of circumstances which she narrated vividly in her deposition drawing the only inference that she was raped and assaulted by Biswajit Bhowmik and none else. The facts and circumstances which she narrated in her statement under Section 164 CrPC and in her deposition before the learned trial court inspires confidence of this Court.
82. We have consciously read over the authorities on which Mr. Bora, learned counsel appearing for the accused- appellant has placed reliance at the time of hearing. In view of the observations and discussions aforestated, according to us, Page 32 of 37 those authorities are not applicable considering the facts of the present case.
83. There is no prohibition of law to convict the accused of rape on the basis of sole testimony of the prosecutrix and the law does not require that her statement be corroborated by the statements of other witnesses.
(Underlined for emphasis)
84. We have carefully read over the statements of the accused Biswajit in his examination under Section 313 CrPC. The accused Biswajit could have easily explained his defence if he had any at all. But to all the questions he replied that the allegations are all "false" and he "does not know". There was no statement in his defence. No explanation had been furnished by him as to why the prosecutrix had deposed against him only and none else in such a heinous crime. It has lent us to believe that he had no explanations in his defence. Section 313 of the CrPC is enacted in the Code to provide an opportunity to the accused to explain his defence and the reasons for his implication. Non-availing of this opportunity will only lead the Court to draw an adverse inference against the accused.
85. In the case in hand, there was no reason as to why the victim being a married woman would falsely implicate the accused Biswajit who also happens to be her brother-in-law (Aunt‟s side). More so, the evidence on record does not speak of any enmity between them.
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86. The learned trial court also has relied upon the testimony of the prosecutrix and found that the evidence of the prosecutrix, PW1 could not be shaken by the defence in any manner whatsoever..
87. Rape cannot be treated only as a sexual crime but it should be viewed as a crime involving aggression which leads to the domination of the prosecutrix. In case of rape besides psychological trauma, there is also social stigma to the victim. Social stigma has a devastating effect on rape victim. It is violation of her right to privacy. Such victims need physical, mental, psychological and social rehabilitation. Physically she must feel safe in the society, mentally she needs help to restore her lost self-esteem, psychologically she needs help to overcome her depression and socially she needs to be accepted back in social fold. Further, rape is a blatant violation of women‟s bodily integrity.
88. After considering the case from all angles, we do not see any cogent reason to interfere with the findings and decision arrived at by the trial court that the accused-Biswajit is guilty of committing offence of rape.
89. Now, we are to decide whether the conviction and sentence imposed upon the accused-Biswajit under Section 307 IPC can be upheld. After assailing the nature of injuries, we find the injuries sustained by the prosecutrix could be fatal to her. The decision of the learned trial court in regard to the sentence needs no interference.
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90. The abduction/kidnapping of the victim from her house by the accused Biswajit is proved since we already have held that the statement of the prosecutrix remains unshaken and carries credence to believe. As such, the conviction and sentence as declared by the learned trial court needs no interference. Decision on the conviction and sentence of appellant Sankar Mandal in CRL. A (J) 02/2015.
91. Sankar Mandal, the husband of the prosecutrix also has been implicated by the prosecution and he was convicted and sentenced under Section 120B IPC. Section 120B IPC is reproduced herein-below for the purpose of convenience:
"120B. Punishment of criminal conspiracy.--
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
92. The evidence on record against Sankar Mandal reveals that he and the victim-wife used to involve in quarrels frequently. On the fateful day, in the evening Sankar Mandal and Biswajit Bhowmik, both the accused persons, were found taking liquor in the shop of Sankar when Sankar was narrating some incident of quarrel with his wife-victim prosecutrix. At about 7.30 p.m. the accused Biswajit left the place while Sankar remained at his shop Page 35 of 37 and after a few minutes he proceeded towards the market. None of the witnesses had found Biswajit and Sankar to reach to an agreement to do any wrong against the wife of Sankar, i.e. the prosecutrix herein. Furthermore, none of the witnesses had stated that they saw Sankar accompanying Biswajit to go to the place of occurrence. As such, the prosecution has failed to prove the chain of circumstances implicating the accused Sankar involved with the crime.
93. We have carefully examined the statement of the accused Biswajit under Section 313 CrPC where we find that Biswajit also did not say anything that Sankar was along with him and he was an accomplice to the said crime. From the statement of PW6, Chandan Dey it is found that Biswajit went to his house at 3/3.30 a.m. alone in a drunken condition where he slept for the night. Here also we do not find that Biswajit together with Sankar went to the house of the said witness.
94. Per contra, from the evidence, it has come out that Sankar on being informed, had arrived to the house of Shila Saha, PW31 at about 10/10.30 p.m. and after that he was all along with his wife during her treatment. Thus, principle of "last seen together theory" also has not been established beyond reasonable doubt.
95. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving it beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread Page 36 of 37 which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. (Vide Kali Ram Vs State of H.P., (1973) 2 SCC 808; State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180; Chandrappa Vs. state of Karnataka, (2007) 4 SCC 415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124; and Golbar Hussain Vs. State of Assam, (2015) 11 SCC 242).
96. Keeping in mind the aforesaid proposition of law, we are of the considered view that the involvement of the accused- appellant Sankar Mandal has not been proved beyond reasonable doubt. Consequently, we set aside the conviction and sentence passed against him by the trial court in its judgment dated 22.01.2015 in S.T. 32 (ST/U)/2014 and accordingly, we acquit the appellant Sankar Mandal from the charge levelled against him. The appellant, Sankar Mandal, is on bail and his bail bond is accordingly discharged.
97. Accordingly, the appeal being Crl. A(J) 02/2015 filed by the appellant Sankar Mandal is allowed and accordingly his bail bond stands discharged.
98. In the result, Crl. A (J)02/2015 is allowed and the impugned judgment of conviction and sentence against the appellant Sankar Mandal is quashed and set aside, and the Page 37 of 37 Crl.A(J) 06/2015 filed by the accused-appellant, Biswajit Bhowmik against the judgment dated 22.01.2015 is dismissed.
99. With the aforesaid directions and observations, both the appeals are disposed of.
Send back the LCRs forthwith.
JUDGE CHIEF JUSTICE lodh