Calcutta High Court (Appellete Side)
Tuna @ Profulla Mondal (In Jail) vs The State Of West Bengal & Anr on 20 March, 2009
Author: Ashim Kumar Roy
Bench: Pranab Kumar Chattopadhyay, Ashim Kumar Roy
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Ashim Kumar Roy
C.R.A. No. 502 of 2005
Tuna @ Profulla Mondal (In Jail)
Versus
The State of West Bengal & Anr.
C.R.A. No. 596 of 2005
Srikanta Rana
Versus
The State of West Bengal & Anr.
C.R.A. No. 601 of 2005
Jawahar Maity @ Jaharlal Maity
Versus
The State of West Bengal & Anr.
For the Appellant
In C.R.A. 502/2005 : Mr. Sekhar Basu
Mr. Amitabha Nayek
For the Appellant
In C.R.A. 596/2005 : Mr. Ujjal Kumar Dutta
Ms. Soma Panda
For the Appellant
In C.R.A. 601/2005 : Mr. Bhakti Prasad Das
For the State : Mr. Tapan Dutta Gupta
Mr. Kallol Mondal
For the defacto complainant : Mr. Debabrata Roy
Heard On: 23.02.2009 & 02.03.2009
Judgment On: 20.03.2009.
PRANAB KUMAR CHATTOPADHYAY, J.
These three appeals are directed against the common judgment, order of conviction and sentence passed by the learned Sessions Judge, Purba Medinipur in ST Case No. 11/Dec/2003. Since these appeals arise out of the common judgment passed by the learned Sessions Judge, the same were heard analogously and we dispose of the said appeals by this common judgment which will govern the fate of all the three appellants.
The prosecution case, in short, is that on 1st February, 1992 in between 21:00 hrs. and 22:00 hrs the victim was returning to her residence from Tamluk Sub-Divisional hospital where she had gone to meet her relative, Niharbala Roy and when the said victim reached her residence, the accused persons, five in number including the appellants herein trespassed into her room where a kerosene dim light was lit and in that light the said victim could identify the three accused persons namely, the appellants herein. The said victim also saw two other persons whose names were not known to her although she claimed that she would be able to identify them, if produced.
It is the further case of the prosecution that these three appellants and two others after entering into the room of the victim covered the mouth of the said victim with a handkerchief and tied her hands and legs with her sari and thereafter assaulted her with a 'Nora' on her head and also with a 'Bonti', 'Khunti' Plastic jar etc. causing bleeding injuries on her nose and palm. They also assaulted her by fists, slaps etc. Thereafter, the appellants and others untied her legs and removed saya, blouse, brasier. The accused appellant Srikanta Rana bifurcated her legs and forcibly pushed his penis into the vagina of the victim and committed rape on her. At that time, the other appellants namely, Jawahar Maity and Tuna Mondal caught the hands of the victim. Thereafter the said appellants Jawahar Maity and Tuna Mondal and their other two associates also by turn committed rape on the victim and the sexual assault continued for about one hour. After the said sexual assault, accused persons including the appellants herein left the place of occurrence thinking her dead. At that time, the victim lost her consciousness and after sometime when she regained her consciousness untied her hands and mouth and went to Kishore Sen, the then Ward Commissioner of Tamluk Municipality and narrated the incident to him. Kishore Sen called the son of Sachin Paria and they took the victim to Tamluk Hospital and admitted her in the said hospital. The O.C., Tamluk Police Station was thereafter informed about the incident over telephone by the said Kishore Sen and the said O.C., Tamluk P.S. arrived at the hospital at about 5:00 A.M. on 2.2.1992 and also recorded the statement of the victim.
On the basis of the F.I.R. the police started Tamluk P.S. Case No. 22 dated 2.2.1992 under Sections 147/149/341/323/324/326/448/506 and also under Section 376(2)(g) of the I.P.C. against these three appellants and two others namely, Netai Fodikar and Santosh Fodikar. After conclusion of the investigation, the police submitted charge sheet against all the three appellants and the aforesaid two others under Sections 147/149/341/323/324/326/448/506 and also under Section 376(2)(g) of the I.P.C. The case was committed to Court of Sessions for trial and thereafter, on 7th April, 1997 charge was framed against the accused persons namely, the three appellants herein and two other persons under Sections 448/324/323/326/341/34 and also under Section 376(2)(g) of the I.P.C.
In course of trial, the prosecution examined as many as eleven witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication.
The defence examined only one witness.
Upon conclusion of the trial, the learned Sessions Judge, Purba Medinipur found the appellants herein guilty of the offence punishable under Sections 448/34 & 324/34 I.P.C. and under Section 376(2)(g) I.P.C. and sentenced them to suffer rigorous imprisonment for ten years and a fine of Rs. 5000/-, in default, to suffer further rigorous imprisonment for six months each for committing offence u/s. 376(2)(g) of I.P.C. The learned Sessions Judge also sentenced the appellants to suffer rigorous imprisonment for six months for committing offence under Section 448/34 I.P.C. and rigorous imprisonment for one year for committing offence under Section 324/34 I.P.C. The learned Sessions Judge directed that all the aforesaid sentences would run concurrently. It has further been directed by the learned Sessions Judge that half of the amount of fine should be paid to the victim, if realised.
Assailing the judgment and order of conviction and sentence passed by the learned Court below, Mr. Basu, learned Senior Counsel representing the appellants submitted that the General Diary Entry was recorded at the instance of P.W.6 who, however, denied to have conveyed any information to the police. The Investigating Officer stated that he received information at 0:15 hrs. on 2nd February, 1992 but he recorded the General Diary Entry at 4:15 A.M. The Investigating Officer visited the hospital in the early morning of 2.2.1992. According to Mr. Basu, the aforesaid delay of 41/2 hours in recording the General Diary has not been explained and the said General Diary is out and out concocted document.
Mr. Basu, learned Senior Counsel of the appellants strongly urged before this court that the victim namely, the P.W.1 is an extremely unreliable witness. Referring to the deposition of the said P.W.1, Mr. Basu submits that the said deposition is unworthy of acceptance. According to Mr. Basu, P.W.1 made false statements in respect of her life, relations and residence and also about her companions at the residence. Mr. Basu submitted that the said P.W.1 lived an indisciplined life which would appear from the deposition of the said P.W.1. Mr. Basu further submits that the charge of rape is not supported by the medical evidence.
Referring to the depositions of P.W.1, P.W.4, P.W.8, P.W.9 and P.W.10, learned Senior Counsel of the appellants submits that the learned Sessions Judge did not take note of the serious infirmities which according to Mr. Basu, completely demolished the prosecution case.
Mr. Dutta Gupta, learned Counsel of the State submits that there is no reason to disbelieve the evidence of the victim. According to Mr. Dutta Gupta, it is not at all imperative to search for injury in the private parts if it is found that the evidence of the victim is consistent and trustworthy. Mr. Dutta Gupta also referred to the evidence on record and submitted that the prosecution case has been proved beyond any reasonable doubt.
The learned Senior Counsel of the appellants specifically urged before this court that the trial conducted by the learned Sessions Judge in respect of the appellant, Tuna Mondal is vitiated because said Tuna Mondal was minor at the time of commission of the offence. Mr. Basu referred to the order dated 6th March, 1992 passed by the learned Sub-Divisional Judicial Magistrate, Tamluk in connection with Tamluk P.S. Case No. 20 of 1992 wherein the said learned S.D.J.M. specifically recorded that the School leaving certificate of the accused appellant Tuna Mondal discloses that he was a minor at the time of commission of the alleged offence. The said order dated 6th March, 1992 passed by the learned S.D.J.M., Tamluk is quoted hereunder:
"Record is put up by petition.
Accused Tuna Mondal @ Prafulla Mondal who is in J. C. Bail petition is taken up for hearing.
Heard the learned defence lawyer who after filing school leaving certificate submits before me that according to school leaving certificate, this accused is aged 15 years 2 months and hence he will be protected under Juvenile Justice Act, 1986.
Perused the certificate that discloses that this accused is a minor.
Ld. A.P.P. also concedes the submission of defence lawyer on the point of law.
So, considering the materials on record, this accused may find bail of Rs. 1,500/- with two sureties of Rs. 750/- each i.d. to J.C. till date."
The aforesaid Tamluk P.S. Case No. 20 of 1992 was ultimately after commitment to the Sessions Court was registered as Sessions Case No. 11/Dec/2003 and the present appeals admittedly arise out of the said Sessions Case.
The learned Counsel representing the State, however, raised objection with regard to the claim of juvenility of the said appellant Tuna Mondal on the ground that the order passed by the learned Magistrate is neither supported by any medical evidence nor by any other supportive evidence. We, however, do not approve the aforesaid stand taken by the prosecution.
The learned Sub-Divisional Judicial Magistrate, Tamluk upon hearing the learned A.P.P. and perusing the School leaving certificate specifically held that the accused Tuna Mondal was a juvenile at the time of commission of the alleged offence and the said order dated 6th March, 1992 became final and binding since the same was not challenged by the prosecution before the competent superior court.
The learned Sessions Judge, Purba Medinipur unfortunately failed to take note of the aforesaid specific order passed by the learned S.D.J.M., Tamluk on 6th March, 1992 and proceeded against the appellant, Tuna Mondal who was a juvenile at the time of the alleged incident. Therefore, the trial so far as the accused appellant Tuna Mondal is vitiated since the trial of the said juvenile along with the adult accused persons cannot be held in terms of Section 24 of Juvenile Justice Act, 1986.
Mr. Basu, learned Senior Counsel of the appellants, however, referred to and relied on a decision of the Supreme Court in the case of Pratap Singh vs. State of Jharkhand and another reported in 2005 SCC (Cri) 742 on the issue of juvenility of the appellant, Tuna Mondal and the legality of the trial as also the conviction and sentence as imposed upon him. In our opinion, the aforesaid decision is very much relevant and applicable in deciding the fate of the appellant, Tuna Mondal.
Going through the evidence on record we find that the P.W.1 in her evidence specifically stated that she came to know about the accused appellant Jawahar Maity during her stay at the hospital although from the evidence of the Doctor (P.W.9) we find that the said P.W.1 stated before the Doctor in the hospital that she was assaulted and raped by Jawahar and others. The Doctor namely, the P.W.9 examined the victim P.W.1 immediately after admission in the hospital on 2nd February, 1992 at about 3:30 A.M. when the patient namely, P.W.1 stated that she was assaulted and raped by the accused appellant Jawahar along with others.
P.W.1 in her evidence specifically stated:
".............................. I came to know about the name of Jahar Maity during my stay at hospital. But I cannot say exactly from whom I came to learn about it...................................."
P.W.9 in his evidence also specifically stated:
".........................................................On 2.2.92 I was attached as Medical Officer at Tamluk S.D. Hospital. On that date at 3-30 A.M. I examined one Pratima Bhowmick aged 24 years daughter of Late Navendu Bhowmick of village Shankarara, P.S. & P.O. Tamluk, Dist. Midnapore and she was brought by one Sri Kishore Sen, Ward Commissioner of Ward No. 11 of Tamluk Municipality and Prasenjit Paria s/o. Late Sachinandan Paria, Ward Commissioner of Ward No. 12.................................................................................................The patient stated that she was assaulted and raped by Sri Srikanta Rana, Jahar and others at about 10 P.M. on 1.2.92.........................................."
From the complaint of the said victim as recorded under Section 154 Cr.P.C. we find that she recognised three persons namely, the appellants herein including Jawahar Maity. The relevant portion from the said complaint dated 2nd February, 1992 is set out hereunder:
"........................Amongst those five persons I recognised three persons. Their names are Srikanto Rana of Sankarpara, Jahar Maity of Sankarpara, Bhola Jana whose house is near the garage and Tuna (sic) Mondal of Sankarpara ...................................."
Therefore, if the P.W.1 came to know the name of the accused appellant 'Jawahar' during her stay at Tamluk Hospital then it was practically impossible for her to mention the name of said 'Jawahar' as one of the assailants in the written complaint lodged with the police authority and also to the attending Doctor namely, P.W.9 within couple of hours after her admission in the said hospital.
Going through the evidence on record we find that there are human habitation, shops and doctor's chambers nearer to the residence of the victim where the alleged incident of rape took place. The Tamluk Hospital is also nearer to the aforesaid residence of the victim. The victim, however, inspite of sustaining injuries on her persons did not visit the Doctor's chamber for her treatment nor even rushed to the hospital but travelled almost 1 mile to meet the local Municipal Ward Commissioner even after crossing the 'Burning Ghat'.
The P.W.1 also did not identify or claimed ownership of the articles shown to her by the prosecution. Kerosene lamp or the chimney was not produced in court at the time of examination of the said P.W.1.
From the evidence on record we also find that the victim P.W.1 was raped on the floor of the room which was not even cemented. Bricks were laid on the floor and covered with earth. P.W.1 in her evidence stated that the said floor was rough at the time of rape although the Doctor did not find any injury on her back.
From the evidence of P.W.9 we find that P.W.1 was examined by the said P.W.9 as Medical Officer attached with Tamluk S.D. Hospital on 2.2.1992 at 3:30 A.M. when the said P.W.1 stated that she was assaulted and raped by the appellants herein although within few hours thereafter another Medical Officer of Gynaecological Department attached with the said hospital namely, P.W.8 after examination of the said P.W.1 did not find any sign of vaginal injury and no foreign body was also found in the vagina.
Analysing the evidence of P.W.1 we find various infirmities. The evidence of the said P.W.1 also shows her propensity to tell lies. The said P.W.1 wrongly introduced someone as her mother before the Registrar. The name of the accused appellant 'Jawahar' was also mentioned by the said P.W.1 in the complaint lodged with the police authority even though in course of cross-examination she specifically stated that she came to know the name of 'Jawahar' during her stay at the hospital. P.W.1 mentioned Sunil Ghosh as her husband before the learned Magistrate and again during cross-examination she stated before the learned Trial Judge as under:
"........................I did not marry any person named Sunil Ghosh. Due to mistake I stated before the Ld. Magistrate that the name of my husband was Sunil Kr. Ghosh...................................."
Let us now consider whether the assault on the victim in the manner as alleged is convincing and acceptable without any hesitation.
It is the case of the prosecution that the victim (P.W.1) was alone and outnumbered by the accused persons. Therefore, we do not understand why P.W.1 was assaulted for the purpose of committing rape specially when no resistance was given by the said P.W.1 to the accused persons and the said accused persons, according to P.W.1, enjoyed their carnal desire.
It may not be out of place to mention that D.W.1, Asit Kumar Roy in his evidence before the learned Trial Judge specifically stated that he lodged a complaint at Tamluk Police Station on 2.2.1992 in connection with a incident occurred on 1.2.1992 when the said D.W.1 was attacked and assaulted in presence of P.W.1 at the western gate of the hospital at about 9:30 P.M. and the said P.W.1 was injured along with the D.W.1.
One other important aspect of this matter is that no injury on the back or pelvis region of the victim (P.W.1) was found even though said P.W.1 was allegedly ravished for one hour by five accused persons on rough surface i.e. floor made of bricks covered by earth. No injury was also found on the hands and legs of the said victim (P.W.1). We also find from the evidence on record that the said P.W.1 took shelter at the police station. It has not been explained why a lady who had been living with her grandparents was accommodated at a police station specially when the Officer-in-charge did not inform the learned court about it.
Scrutinising the evidence of P.W.1 we are of the opinion that the said P.W.1 cannot be regarded as a reliable witness and the evidence of the P.W.1 is also not trustworthy. Undisputedly, said P.W.1 made incorrect statements in her evidence before the learned Trial Judge, which we have specifically mentioned hereinbefore.
The evidence of the Doctor (P.W.9) who recorded the statement of the patient namely the P.W.1 and observed that internal examination should be done by the Gynaecological Department in due course and the P.W.8 who was then attached as Medical Officer of Gynaecological Department of Tamluk S.D. Hospital examined P.W.1 under anaesthesia and found no sign of vaginal injury. The said P.W.8 also did not find any foreign body in the vagina and did not give any opinion whether said P.W.1 was raped or not.
P.W.10, the then Officer-in-charge, Tamluk Police Station in his evidence before the learned Trial Judge specifically stated that on 2.2.1992 at about 0:15 hrs. he got an information of rape case over telephone from one Kishore Sen and made a G.D. Entry thereof being No. 58 dated 2.2.1992 whereas said Kishore Sen (P.W.6) in his evidence stated before the learned Trial Judge as hereunder:
"........................On 2.2.92 at about 2:00/2:30 A.M. in the night one Pratima Bhowmick came to my house at Salgachhia within Ward No. 12 of Tamluk Municipality. I saw her panicked. She told me that she was terrified and asked me somehow to take her to hospital. She was not in a position to talk properly. I took her to Tamluk S.D. Hospital. I then returned home. I made no statement before the police in connection with such incident of Pratima Bhowmick...................................."
Therefore, we do not understand how the Officer-in-charge got the information of rape case over telephone from P.W.6 at about 0:15 hrs. on 2.2.1992 when said P.W.6 specifically stated in his evidence that on 2.2.1992 at about 2:00/2:30 A.M. P.W.1 came to his house and asked him to take her to hospital. From the evidence of P.W.6 it does not appear that P.W.1 told about the alleged incident of rape to the said P.W.6. Furthermore, said P.W.10 in his examination-in-chief specifically stated that he recorded the G.D. Entry being No. 58 dated 2.2.1992 at about 4:15 hrs. at Tamluk Police Station although no explanation was given why the said G.D. Entry was made almost four hours later after receiving the information. In course of cross-examination said P.W.10, most surprisingly, stated as hereunder:
"........................As per the G.D. entry recorded by me immediately after receiving the telephonic message, it was recorded at 4-15 A.M. at Tamluk P.S....................................."
The P.W.10 during cross-examination stated that he is unable to say who lived in the backside room of the residence of the victim Pratima (P.W.1). The said P.W.10 in his evidence stated that he visited the place of occurrence and found the residence of the victim closed under lock and key. The said door was opened with the key supplied by the brother of the victim, Sakti Prasad Rai which he collected from Pratima (P.W.1) although said Sakti Prasad Rai did not state under Section 161 Cr.P.C. that his elder sister supplied him the key. The said P.W.10 also could not state about the measurement of the room where the victim (P.W.1) was allegedly raped by the accused persons.
The learned Senior Counsel representing the appellants raised serious doubt about the visit of the Investigating Officer at the place of occurrence. The P.W.10 also stated that the victim (P.W.1) did not state before him that she came to know the name of the accused appellant 'Jawahar' at Tamluk S.D. hospital during her stay there although the P.W.1 during her cross-examination specifically stated before the learned Trial Judge that she came to know about the name of 'Jawahar Maity' during her stay at hospital. The said P.W.10, however, admitted before the learned Trial Judge that the houses and chambers of Dr. Anshuman Pattyanayak, Dr. D.K. Patra and Dr. J.C. Kuillya are situated nearer to the place of occurrence.
On an analysis of the evidence referred to hereinabove we find various infirmities in the evidence of P.W.10. Therefore, we find it also difficult to believe and rely on the evidence of said P.W.10 as, in our opinion, the evidence of P.W.10 is not trustworthy.
Mr. Dutta Gupta, learned Counsel representing the prosecution referred to and relied on the following decisions of the Supreme Court which, in our opinion, cannot be of any help to the prosecution in the facts of the present case:
1) (2009) 1 SCC (Cri) 17 [Lalliram and another vs. State of Madhya Pradesh] (Paragraphs 11 and 12)
2) (2007) 1 SCC (Cri) 133 [State of T.N. vs. Ravi alias Nehru] (Paragraphs 15 to
20)
3) 2004 SCC (Cri) 31 [Bhupinder Sharma vs. State of Himachal Pradesh] (Paragraphs 10, 11, 12 & 14) Mr. Basu, learned Senior counsel of the appellants also referred and relied on the following decisions of the Supreme Court, which, in our opinion, are very much relevant in the facts of the present case:
1) 2002 SCC (Cri) 592 [Dilip and another vs. State of M.P.]
2) (2009) 1 SCC (Cri) 17 [Lalliram and another vs. State of Madhya Pradesh] Pursuant to the leave granted earlier by this Hon'ble court, victim, Pratima Bhowmick was added as the defacto complainant/respondent No. 2 and Mr. Debabrata Roy, learned Counsel of this court represents the said respondent No. 2 before us and submitted written notes of arguments which were also considered by us.
After carefully scrutinising the evidence on record, we are satisfied that the prosecution has not proved its case beyond reasonable doubt.
For the aforementioned reasons, we hold that the prosecution could not establish the charges framed against the appellants under Sections 448/34 & 324/34 I.P.C. and under Section 376(2)(g) I.P.C.
Accordingly, the judgment and order of conviction and sentence passed by the learned court below are set aside. The appellants are hereby acquitted of all the charges and, therefore, we direct that they be released forthwith, if not required in any other case.
The appeals thus succeed and are allowed.
Let the LCRs be sent down to the Trial court immediately together with a copy of this judgment.
[PRANAB KUMAR CHATTOPADHYAY, J.] ASHIM KUMAR ROY, J.
I agree.
[ASHIM KUMAR ROY, J.]