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Kamal Krishna Banik @ Kamal Banik v/s The State of West Bengal

    C.R.A. No. 591 of 2015

    Decided On, 11 January 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE DIPANKAR DATTA & THE HONOURABLE MR. JUSTICE BIBEK CHAUDHURI

    For the Appellant: Sudipto Moitra, Sr. Advocate, Biplab Das, Advocate. For the Respondent: Partha Pratim Das, Advocate.



Judgment Text

Bibek Chaudhuri, J.

1. This appeal is directed against the judgment and order of conviction dated 20th/21st August, 2015 passed by the learned Additional Sessions Judge, 3rd Court, Howrah in Sessions Trial No.76 of 2011 whereby and whereunder the learned judge has convicted the appellant for the offence under Section 376(f) of the Indian Penal Code (hereafter the IPC) and sentenced him to suffer rigorous imprisonment for ten years with fine of Rs.10,000/- only, in default, to suffer simple imprisonment for a term of six months.

2. Aggrieved by and dissatisfied with such judgment and order of conviction, the appellant has preferred the instant appeal on amongst other grounds that the learned trial judge failed to appreciate the evidence of the victim and her mother, who was the defacto complainant of the case, in its true perspective; failed to consider the effect of delay in lodging FIR in a case of rape; further failed to take into account that there was no medical report in support of the allegation of rape against the accused/appellant and also that in view of consistent change of narration as to how, when and where the alleged incident took place, the accused/appellant ought not to have been held guilty for committing an offence under Section 376(f) of the IPC.

3. The case of the prosecution as unfolded in the first information report is that on 25th December, 2009 at about 5 p.m, the victim, a minor girl of approximately 11 years of age, was returning home from a neighbouring house where she used to work as domestic help. Then the appellant called her and forcibly took her to his room and tortured her physically. Due to such torture, the victim was feeling pain all over her body. As noted above, the mother of the victim is the defacto complainant who lodged the first information report containing the above statement on 26th December, 2009 at about 11.15 a.m.

4. On the basis of the aforesaid written complaint, Golabari P.S Case No.361 of 2009 was registered against the appellant under Section 376 of the Indian Penal Code.

5. During investigation, the victim's statement was recorded under Section 164 of the Code of Criminal Procedure by a learned Magistrate and she was also examined by the doctor. After completion of investigation, the investigating officer s

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ubmitted charge sheet under Section 376 of the IPC against the present appellant.

6. The aforesaid case being committed to the Court of Sessions, the learned Additional Sessions Judge, 3rd Court, at Howrah framed charge against the appellant under Section 376 of the IPC. As the appellant pleaded not guilty when the charge so framed was read over and explained to him, trial of the case commenced.

7. In order to bring home the charge under section 376 of the IPC, the prosecution examined eight witnesses. The appellant pleaded innocence in the alleged occurrence during his examination under Section 313 of the Code of Criminal Procedure.

8. Learned trial judge convicted the appellant for the offence under Section 376(f) of the IPC and sentenced him as noted above.

9. Mr. Moitra, learned senior advocate for the appellant contended that testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the court should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. In other words, the sole testimony of a victim of rape may be the basis of conviction of an accused, if her evidence is found to be trustworthy, reliable and free from all blemishes.

10. With this introductory note as to the evidentiary value of a victim of sexual assault, Mr. Moitra drew our attention to the evidence of victim (PW2) and her mother (PW1) who was the defacto complainant of the case.

11. PW2 stated in her evidence that on the date of occurrence, at about 5 p.m, when she was returning from a neighbouring house where she used to work as a domestic help, the appellant called her and took her to a room. Then the appellant made her to lie on a table, opened her salwar and committed rape upon her forcibly. After the incident, the victim wanted a glass of water from the appellant. He gave water to the victim to drink. Thereafter, she returned to her house. When the victim's mother asked the victim where she had seen before returning home, the victim did not give any reply to her mother. At this, her mother beat her. In the mean time, the appellant came to their house and asked if it was the residence of the victim. Seeing the appellant, the victim's mother understood everything and raised hue and cry.

12. The defacto complainant (PW1), on the other hand, narrated a completely different story as to how she came to know about the incident. She deposed that after returning home, her daughter complained of physical illness. She also reported that the appellant called her and took her to his house. When she was complaining of her illness, the defacto complainant took her to the doctor for medical treatment. Thereafter, she lodged a complaint against the accused in the local police station.

13. Mr. Moitra pointed out that the versions of the PW2 and PW1 are clearly contradictory. The PW2 (victim girl) unequivocally deposed that after she returned to her house on the date of occurrence, the appellant came to her house and asked about her and at this the defacto complainant could understand that her daughter was sexually abused by the appellant. Immediately the defacto complainant raised hue and cry which attracted local people. Police also came to their house and interrogated her. She narrated the incident to police. She also saw the accused in the police station. The statement of the mother of the victim, on the other hand, depicted a different story altogether. From her evidence it is ascertained that the victim did not state anything about sexual abuse committed upon her by the appellant. She only told her mother that she was feeling ill. If the evidence of the defacto complainant is accepted to be the true version of the incident, evidence of the victim girl being an exaggerated narration of the said incident cannot be respected to be true. It is emphasised by Mr. Moitra that the PW1 made a specific complaint of physical torture perpetrated by the appellant upon the victim and no allegation of rape was levelled against him.

14. Mr. Moitra further submitted that the evidence of the victim suggests that police came to their house on the very date of occurrence and she was interrogated by the police. From the evidence of PW1, it is found that she took the victim to the doctor. Surprisingly enough, even after the victim disclosed the incident of commission of rape upon her by the appellant to the police and on being examined by the doctor, the police did not register any case under Section 376 of the IPC against the appellant on the date of occurrence itself. Non-registration of specific case against the appellant on the date of occurrence by the police authority, even after being informed by the victim, casts a serious suspicion on the genesis of the prosecution case.

15. Mr. Moitra next, invited our attention to the medical examination report which was marked as exhibit-4 in the trial court. The said report speaks of medical examination of the victim on 7th January, 2010. The medical officer did not find any injury, old or recent, in or around the private part or all over the body of the victim at the time of medical examination. The victim also did not state the history of the alleged occurrence to the medical officer. In this regard, Mr. Moitra advanced twofold submissions. First, he argued that the prosecution suppressed the report of her medical examination that was conducted on the date of occurrence as deposed by the defacto complainant (PW1). Secondly, he contended that even assuming that a specific case under Section 376 of the IPC was registered on 26th December, 2009, why was the victim not medically examined immediately after the FIR was lodged has not been explained. The victim girl specifically deposed on oath that the appellant forcibly committed rape upon her. From the medial examination report (exhibit-4), it is found that the victim was 11 years old at the relevant point of time. According to Mr. Moitra it does not require any authority on Medical Jurisprudence to hold that if a girl who is eleven years old is sexually violated forcibly, there must be injury on her private part. Neither the defacto complainant nor the victim stated anything about receiving injury on her private part when she was allegedly raped by the appellant forcibly.

16. It is, thus, contended by Mr. Moitra that there are contradictions galore in the evidence of the victim and her mother. The medical examination report (exbhibit-4) of the victim shows absence of any injury on her body. The mother of the victim (PW1) could not surely and specifically identify the appellant in course of her evidence. The said fact belies the statement of the victim (PW2) that after the incident the appellant came to their house to know as to whether the victim used to stay in the house or not.

17. On such evidence, according to Mr. Moitra, conviction is not sustainable.

18. In support of his contention, Mr. Moitra relied on a decision of the Supreme Court in the case of Rajoo and others vs. State of MP reported in (2009) 1 C Cr LR (SC) 776. In the aforesaid case, it is observed by the Supreme Court that ordinarily the evidence of a prosecutrix should be believed, more so as her statement has to be evaluated with that of an injured witness. If the evidence of the prosecutrix is reliable and trustworthy, the court should not search for corroboration. At the same time, there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. If the evidence of the prosecutrix suffers from glaring contradiction, embellishment and exaggeration, her evidence cannot be treated as solitary basis of conviction.

19. Mr. Moitra next referred to another judgement of the Supreme Court in the case of State of Rajasthan vs. Babu Meena reported in AIR 2013 SC 2207. In this case, the Apex Court classified oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused.

20. Coming to the instant case, it was submitted by Mr. Moitra that the evidence of the victim is wholly unreliable. The victim (PW2) in her cross examination stated that when the appellant called her to his house, she shouted for help. Such statement made by the victim during her cross examination does not find support from her statement recorded under Section 164 of the Code of Criminal Procedure The medical officer Dr. Nihar Ranjan Saha (PW6) has also not supported the allegation of rape. In view of such circumstances, it was not proper for the trial court to hold the appellant guilty for committing offence under Section 376(f) of the IPC on the basis of the solitary evidence of the victim girl.

21. Learned trial court without considering the circumstances, stated hereinabove, convicted the appellant which, according to Mr. Moitra, cannot sustain under the facts and circumstances of the case.

22. Mr. Das, learned advocate appearing on behalf of the State, on the other hand, has urged that in cases of sexual violation, the victim's evidence can be acted upon without corroboration. A victim of rape is not an accomplice. She stands on a higher pedestal than an injured witness does. Normally, the court should rely upon the evidence of the victim as basic foundation of the prosecution cas. In the instant case, the victim girl who was aged about 11 years at the relevant point of time, stated on oath that on 25th December, 2009 at about 5 p.m, she was raped by the appellant. It was also unequivocally stated by the said minor victim that on the date and time of occurrence at about 5 p.m. when she was returning to her home, the appellant called her, took her to his room and forcibly committed rape upon her. This part of narration of the incident withstood the test of cross examination and could not be shaken. After the incident, the victim narrated the same incident to her mother. She was examined under Section 164 of the Code of Criminal Procedure when also made the same statement before the learned Magistrate. Therefore, the learned trial judge rightly accepted the evidence of the victim and held the appellant guilty for committing offence under Section 376(f) of the IPC.

23. Mr. Das further submitted that since in the instant case a minor of approximately 11 years of age was subjected to primitive lust of the appellant, it would be adding insult to her injury to tell a woman that her evidence will not be believed unless it is corroborated in material particulars. Why should the evidence of the minor girl who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion?

24. According to Mr. Das there is absolutely no contradiction in respect of the statement made by the victim on oath with regard to commission of rape. He further argued that indeed there are contradictions with regard to the time and date when the incident was reported to the police or when the police registered a case under Section 376 of the IPC against the appellant. There are, of course, contradictions in the evidence of the victim and her mother on the point of time when the defacto complainant came to know about the incident from her daughter and how. But, such contradictions should be treated as minor contradictions which did not affect the prosecution case in material particulars. Therefore, the trial court rightly ignored such contradictions.

25. Mr. Das further submitted that for satisfying the ingredients of rape, it is not necessary that there should be complete penetration. Even the slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. The victim was medically examined on 7th January, 2010, i.e, after about 13 days of the incident. It is very natural that the doctor could not find any injury in her private part or any other part of the body. The doctor (PW6) was unable to give definite opinion as to whether she was subjected to intercourse in the immediate past. Hymen of the victim was found intact. However, according to Mr. Das, such evidence of the medical officer does not lead to an inference that the victim was not subjected to sexual violation. In such a case, the learned trial judge rightly accepted oral testimony of the victim to hold the accused guilty for committing offence under Section 376(f) of the IPC.

26. We have considered the respective submissions and the materials on record. The order of conviction, in the facts and circumstances of the case, is unsustainable and deserves to be set aside for reasons discussed hereunder.

27. It is needless to say that the court while trying an accused on the charge of rape, 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 witnesses which are not of a substantial character. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively, each ingredient of the offence it seeks to establish and such onus never shifts.

28. It is not the duty of the defence to explain as to how and why in a case of sexual violation, the victim falsely implicated the accused. Prosecution case has to stand on its own legs. However great the suspicion against the accused and however strong the moral principle and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and materials on record, he cannot be convicted for an offence. The decision of the Supreme Court in the case of Tukaram and Other vs. State of Maharastra reported in AIR 1979 SC 185 and Uday vs. State of Karnataka reported in AIR 2003 SC 1639 may be relied on in support of the above observation.

29. In State of HP vs. Sanjay Kumar reported in (2017) 2 SCC 51, the Supreme Court held that whenever charge of rape is made, where the victim is a child, by no means it has to be treated as a gospel truth and accused person has to be convicted. Testimony of prosecutrix is to be examined and analysed in order to find out the truth and to ensure that deposition of victim is trustworthy. The law relating to appreciation of evidence of a victim of rape is too well settled to admit any denial that the evidence of victim girl stands on higher pedestal than any other witnesses. Victim is not expected to make a false allegation at the cost of her dignity, self-respect and fear of social stigma. It is, however, needless to say that the above principle of appreciation of evidence of a convict in a case of rape will apply under the facts and circumstances of each case. It is equally true that the accused must also be protected against the possibility of false implication. After taking all due precautions which are necessary, when it is found that prosecution version is worth believing, the court can rely on the evidence of victim.

30. During the trial of the case, prosecution examined eight witnesses. Apart from the victim (PW2) and her mother (PW1), who is the defacto complainant, remaining witnesses are the scribe of the written complaint (PW3), father of the victim (PW4), medical officers who examined the appellant and the victim respectively during investigation (PW5 and 6), the Judicial Magistrate who recorded the statement under Section 164 of the Cr.P.C of the victim (PW-7) and the investigating officer (PW-8) of the case.

31. Amongst the above mentioned witnesses, evidences of the victim, her mother and the medical officers are of utmost importance.

32. On careful scrutiny of the evidence of the above witnesses, it appears to us that on the date of alleged incident after the victim returned home, police indeed came to their house and interrogated her. No explanation is forthcoming from the prosecution as to why the police did not record a specific case under Section 376 of the IPC against the accused on the very date of occurrence.

33. It is on record that the mother of the victim lodged complaint against the appellant on the next date of occurrence i.e. 26th December, 2009, where she alleged that the appellant inflicted physical torture upon her daughter. It was open for the police authority to ascertain the nature of physical torture and record a case under Sections 323-326 of the IPC or any other penal provision other than 376 of the IPC. Therefore, it can be well presumed that the investigating officer collected some preliminary evidence against the appellant before recording a specific case under Section 376 of the IPC against the appellant. Such evidence was not produced by the prosecution during trial of the charge.

34. Immediately after recording Golabari P.S Case No.361 of 2009 on 26th December 2009, the victim was sent to the local hospital for medico legal examination, being accompanied by her mother and a lady home guard, named, Gouri Roy. The victim refused to get herself medically examined on the following date of occurrence. It is pertinent to mention here that in her evidence, the victim stated on oath that the appellant forcibly committed rape upon her. In case of commission of rape of a minor girl applying force by the accused who was aged about 42 years at the relevant point of time, there must be marks of injury on the private part of the victim. If she allowed the medical officer to conduct medical examination on the next date of occurrence, there might have been clear possibility of having some evidence in support of the allegation. Refusal to get herself medically examined by the victim would surely go against the prosecution and in such a case, it is open the court to draw adverse presumption to the effect that had the victim been examined medically at the earliest, there would have been no evidence of forceful sexual violation of the minor victim girl.

35. Before we part with, we must record our utter dissatisfaction on the mode and manner in which the investigation of Golabari P.S Case No.361 of 2009 was conducted. When the defacto complainant made a complaint of physical torture of her daughter by the appellant, there is no reason as to why a case under Section 376 of the IPC was registered. Secondly, the investigating officer did not make any attempt to seize the wearing apparels of the victim and the appellant for forensic examination. Thirdly, the prosecution suppressed that the victim refused to get herself medically examined on the next date of occurrence after the FIR was lodged. Fourthly, the investigating officer withheld the report prepared by the medical officer on 26th December, 2009 wherein it was clearly stated that the victim refused to volunteer herself for medical examination. Fifthly, the alleged incident took place in a thickly populated locality at about 5 p.m. The investigating officer did not try to examine any witness of the locality to ascertain the genuineness of the complaint lodged by the mother of the victim.

36. In our considered opinion, investigation of Golabari P.S Case No.361 of 2009 was conducted in a very perfunctory and mechanical manner. For such faulty investigation and submission of charge sheet, the appellant remained in custody for more than three years in violation of his basic fundamental right to life and personal liberty. We expect that the concerned I.O would be more serious in further while investigating a case of sexual abuse.

37. For the reasons recorded above, the judgment and order of conviction passed by the learned Additional Sessions Judge, 3rd Court at Hawrah in Sessions Trial No.76 of 2011 is set aside. The instant appeal is accordingly allowed on contest. The appellant is held not guilty of the charge under Section 376(f) of the IPC and is entitled to be acquitted, set at liberty and released from his bail bond.

38. The appellant, if in custody, be released at once.

39. Let a copy of this judgment and order be sent forthwith to the learned court below for taking step for discharging the appellant from the bail bond and releasing him from jail custody.

40. A copy of this judgment shall also be sent to the Director General of Police, Government of West Bengal for taking necessary action against the investigating officer.

Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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