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Parimal Mallick @ Prasanta Mallick @ Pore v/s The State of West Bengal

    CRA. No. 655 of 2016

    Decided On, 17 January 2018

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE DEBI PROSAD DEY

    For the Appellant: Kamalesh Chandra Saha, Payal Mitra, Md. Nauroj Rahber, Advocates. For the Respondents: Ayan Basu, Saryati Datta, Advocates.



Judgment Text

1. This appeal is directed against the judgement and order of conviction dated 14.09.2016 and 15.09.2016 delivered by learned Additional Sessions Judge, 7th Court, Barasat, North 24 Parganas in sessions trial no. 05(7) of 2013 arising out of sessions case no. 09(5) of 2013 whereby and where under learned trial Judge has convicted the appellant for the offence under Section 376 of the Indian Penal Code and sentenced him to suffer Rigorous Imprisonment for 7 years and to pay a fine of Rs. 10,000/- in default to suffer further Rigorous Imprisonment for 6 months.

2. Being aggrieved by and dissatisfied with such judgment this appeal has been preferred to this Court on the ground that the prosecution could not explain properly in respect of delay in lodging the First Information Report and that the prosecution also could not produce any reliable witness to establish the charge against the appellant and that learned trial Judge has erroneously come to a conclusion that the appellant is guilty for the offence under Section 376 of the Indian Penal Code. Learned Advocate appearing on behalf of the appellant contended that the alleged occurrence took place as per the statement of the victim at about 8/9 a.m. on 9th July, 2012 and that too, such occurrence took place on an open field. The First Information Report was lodged on 17th July, 2012 without any explanation to that effect and the Doctor did not find any injury on the person of the victim though allegedly she was ravished on an open field. It is further submitted that out of political enmity the appellant has been wrongly roped in such a false case and learned trial Judge has failed to appreciate the evidence on record in its true spirit and thereby came to an erroneous finding.

3. Learned Advocate for the State however h

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as supported the conviction and sentence awarded by learned trial Court. It is submitted that the delay in lodging the First Information Report has been properly explained by the defacto complainant and that the victim has categorically stated against the appellant during her examination in the trial Court and learned trial Judge was absolutely justified in convicting the appellant for the offence under Section 376 of the Indian Penal Code and sentenced him accordingly.

4. It would be out of place to mention in brief about the facts of the case as well as evidence on record in order to appreciate the case of the parties to this proceeding.

5. On 17th July, 2012 one Pijush Kanti Biswas aged about 51 years lodged a written complaint at Habra police station stating inter alia that on 9th of July, 2012 at about 1 p.m. when his wife had been to the field for cutting grass, at that time a boy of their village named after Parimol Mallick alias Pore took his wife forcibly inside the jute field and raped her. The defacto complainant was in his house on that date and he returned home on 12th July, 2012 and came to know about such occurrence from his wife. Thereafter, the defacto complainant submitted a written complaint scribed by one Debasis Pal at Habra police station on 17th July, 2012. The defacot complainant has been examined as prosecution witness no.1. In his cross examination prosecution witness no. 1 has categorically stated that he discussed the matter with all the villagers and he had had no acquaintance with scribe of the First Information Report. It is evident from his cross examination that before going to the police station he had been to the house of the leader of some political party and thereafter he went to the police station. The cross examination of prosecution witness no.1 further reveals that Debasis Pal scribed the petition of complaint at the dictation of the police officer.

6. It is therefore apparent from the aforesaid discussion that though the prosecution witness no.1 being husband of the victim, came to know about such occurrence on 12th of July, 2017 but he did inform the matter to the police till 17.07.2012. There is absolutely no explanation in the First Information Report or in the evidence of prosecution witness no.1 as to what prevented the prosecution witness no.1 from reporting the matter to police since 12.07.2012 and as to why he had discussed the matter for about 5 days with the villagers, leader of the political party and thereafter went to the police station. The cross examination of prosecution witness no.1 further reveals that the First Information Report was a product of the dictation given by the police to one Debasis Pal alleged scribe of the First Information Report with whom the prosecution witness no.1 had had no acquaintance. In that view of this case a suspicion cropped in the mind of the Court about the authenticity of the First Information Report. It is true that delay in lodging First Information Report is sufficient enough to throw away the entire case of the prosecution if the delay is properly explained by the maker of the First Information Report. Admittedly, the prosecution witness no.1 returned home on 12th July, 2012 but he did report such occurrence for about 5 days. instead he started discussing the matter with the villagers, leader of political party and thereafter got the First Information Report scribed by one Debasis Pal having no acquaintance with the defacto complainant and that too with the dictation of the police officer. The evidence of prosecution witness no.1 instead of inspiring confidence in the mind of the Court, raises suspicion about the authenticity of the case of the prosecution.

7. Prosecution witness no.2 Arun Biswas being a co-villager and neighbour of the of the victim has had no knowledge about the occurrence. The evidence of prosecution witness no.2 may safely be discarded. Prosecution witness no. 3 is the victim. She has simply stated that when she went to the field for cutting grass at about 8/9 a.m. in the morning the accused at that time committed rape upon her. She tried her best to resist him but the accused did hear her and forcibly committed rape upon her. The victim further stated that she had made a statement before learned Magistrate and her statement was accordingly recorded by learned Magistrate under Section 164 of the Code of Criminal Procedure. Prosecution witness no.3 categorically stated that the accused had also offered money to her but she refused to accept. In her cross examination the victim admitted that there are many houses in and around her house. Curiously enough the victim has admitted in her cross examination that on the next date of incident she went to the house of Nimai as well as to the house of the accused. According to the victim her husband and daughter have had mobile phone. She has admitted that she did report such matter to her husband or anyone else over phone. She has further admitted that she had been to Habra police station and the police directed her as to what she had to state before the learned Magistrate and accordingly her statement was recorded by learned Magistrate. It is therefore apparent from the evidence of the victim that she could state the date of such occurrence. Prosecution witness no. 9 Somnath investigated the case and he has admitted in his cross examination that the victim never stated before him that immediate after such occurrence the accused had offered money to the victim. That goes to show that the victim has developed her statement materially in order to put such liability on the accused. On that score, the evidence of victim becomes suspicious. The sketch map as well as the evidence of the prosecution witness no.9 reveal that occurrence took place on open field. It is thus expected that the victim would sustain some sort of injury on her back or on her on person in view of her statement that she had tried to resist the accused at the time of alleged occurrence but in vain. In that view of this case it may safely be stated that the victim ought to have sustained some sort of injuries on her back or on her person while resisting the accused. Prosecution witness no. 12 Dr. Tapan examined the victim on 17th July, 2012 but could find as to whether she was subjected to sexual assault or not. Secondly, the doctor had carefully examined the victim but he did find any injury on her person. The report of prosecution witness no. 12 has been marked as exhibit 6. Considering the place of occurrence evidence of the victim as well as the evidence of prosecution witness no. 12, suspicion cropped up in the mind of the Court about the veracity of such statement of the victim. Had there been any such occurrence the victim would have sustained some sort of injury on her person and the doctor would have corroborated such fact at the time of examination of the victim. The absence of injuries on the person of the victim also raises doubt about the veracity of the statement of the victim. Secondly it is in evidence that the victim is aged about 47 years and she had given birth of 6 children vide exhibit 6. No explanation has been given by the victim as to why the matter was reported to her husband through mobile phone. The victim also did state as to what happened immediate after such occurrence. I fail to understand as to what prompted the victim to visit the house of the accused and one Nimai on the next date of incident. There is absolutely no explanation as to why the victim had visited the house of the accused on the following date of incident. It is also apparent from her evidence that she was tutored by the police at the time of deposing before learned Magistrate.

8. I find it convenient to refer the statement of the victim recorded under Section 164 of the Code of Criminal Procedure by prosecution witness no. 13 learned Judicial Magistrate. The statement under Section 164 of the Code of Criminal Procedure has been marked as exhibit 7.

9. It goes without saying that the statement of the victim has to be recorded like that of a witness and it is incumbent upon the learned Magistrate to administer oath upon the victim before recording her statement under Section 164 of the Code of Criminal Procedure. In order to ascertain the voluntariness of the victim, learned Magistrate should ask some questions to the victim and thereafter being satisfied about the voluntariness of the victim, learned Magistrate should record the statement under Section 164 of the Code of Criminal Procedure.

10. Exhibit 7 does reveal that oath was administered upon the victim by learned Magistrate. No caution was also given to the victim at the time of recording such statement under Section 164 of the Code of Criminal procedure. Moreover, the victim did state that she was subjected to sexual assault by the accused during her examination under Section 164 of the Code of Criminal Procedure. The victim also did divulge before learned Magistrate about the place of occurrence, time of occurrence and the manner and mode by which she was subjected to such sexual assault. In that view of this case I do find any justification to accept such statement of the victim which was made at the outset and which was recorded under Section 164 of the Code of Criminal Procedure by learned Magistrate. Unfortunately, learned Magistrate did take adequate precaution and did follow the principles of law in recording such statement under Section 164 of the Code of Criminal Procedure of the victim. On the contrary, such statement of the victim does support the contention of the victim recorded on oath by the trial Court. Learned trial Court also did pay any attention to such statement of the victim under Section 164 of the Code of Criminal Procedure and thereby learned trial Court was definitely misguided by such statement of the victim recorded to under Section 164 of the Code of Criminal Procedure.

11. I have already pointed out in the forgoing paragraphs that the First Information Report is the result of the discussion amongst villagers and ultimately at the intervention of some political leader and finally, scribed by one Debasis Pal having no acquaintance with the defacto complainant at the dictation of the police.

12. In the premises set for the above it may safely be stated that the case of the prosecution raises serious suspicion in the mind of the Court and the factors, points discussed hereinabove lead this bench to believe that learned trial Court has failed to appreciate the aforesaid lacunas of the case of the prosecution. Prosecution witness no. 4 is the father in law of the victim. This witness has developed the case of the prosecution in such a proportion, which has been supported by the victim as well as her husband. According to prosecution witness no.4 the victim was lying in naked condition in a jute field having pain on her leg. The victim never stated that she was lying in naked condition and she had been suffering pain on her leg. Prosecution witness no. 4 further stated that he came to know from the victim that the accused had committed rape on her. However, the victim never stated that she had ever divulge such fact to prosecution witness no.4. Therefore, such evidence of prosecution witness no.4 is nothing but embellishment of the actual state of affairs and is admissible in evidence. Ultimately prosecution witness no. 4 has admitted in his cross examination that he had heard about such occurrence only. Therefore, the prosecution has tried to develop the case of the prosecution by introducing some new facts through prosecution witness no.4 but ultimately the prosecution has created further trouble in the veracity of the case of the prosecution by introducing such hearsay witness by projecting him as post occurrence witness. Prosecution witness no. 5 Sailen Brambha, prosecution witness no. 6 Sanjit have had no knowledge of the occurrence and their statement may safely be discarded. Prosecution witness no. 7 Debasis Pal scribed the First Information Report. In his cross examination prosecution witness no. 7 has admitted that in the year 2012 he used to drive the vehicle of the police station and he used to carry out the orders and directions of the police at that relevant point of time. It is, therefore, apparent from the evidence of prosecution witness no. 7 that he scribed the First Information Report at the dictation of the police. Prosecution witness no. 1 the defacto complainant has admitted in his evidence that he had had no acquaintance with Debasis Pal who scribed the First Information Report at the dictation of police.

13. Prosecution witness no. 8 one Nikhil Ghosh has stated in his evidence that he heard about such occurrence from the family members of his house as well as from the victim. The victim never stated that she had divulged such occurrence to prosecution witness no. 8. Therefore, the evidence of prosecution witness no. 8 becomes in admissible in evidence. He has also admitted in his cross examination that he had heard about such occurrence later on. It is apparent from his cross examination that this witness had also lodged one First Information Report against the present accused at Habra being F.I.R. no. 74 dated 22nd March, 2008. In that view of this case it may safely be stated that this hearsay witness deposed against the accused having inimical interest against the accused. Prosecution witness no. 9 submitted charge sheet after completion of the evidence and according to the sketch of the prosecution witness no. 9 the occurrence took place in an open field. During investigation prosecution witness no. 9, never seized the wearing apparels of the victim as well as the accused. This investigating officer also did not point out the actual place of occurrence. On the contrary, it transpires from such exhibit that there are many houses surrounding such place of occurrence but the said neighbours were never examined by this witness. The defects of such investigation are apparent on the face of the record. Prosecution witness no. 10 has got no personal knowledge about the occurrence but he has simply started Habra police stations case no. 549 of 2009 dated 17th July, 2009 on receipt of the written complaint and thereafter filled up the formal F.I.R. Doctor Sanjay Kumar examined the accused and found him capable of performing sexual act. This is all about the prosecution witness no. 11.

14. Prosecution witness no. 12 Dr. Tapan Kr. Ghosh examined the victim of 17th July, 2012 and I have already discussed the impact and importance of the evidence of prosecution witness no. 12. Learned Magistrate, who recorded the statement of the victim under Section 164 of the Code of Criminal Procedure, has been examined as prosecution witness no. 13. Learned Magistrate has also admitted in his cross examination that the victim never stated before her that she was subjected to any sort of sexual assault by the accused/appellant.

15. In the premises set forth above and in view of the discussion made hereinabove I have no hesitation to say that the prosecution has failed to bring home the charge under Section 376 of the Indian Penal Code against the appellant beyond all shadow of doubt. On the contrary, the entire case of the prosecution is shrouded with suspicion and the appellant is definitely entitled to get benefit of doubt. The appellant Parimal Mallick alias Prasanta is found 'not guilty' under Section 376 of the Indian Penal Code and he is acquitted from the aforesaid charge. The judgment and order of conviction dated 14.09.2016 and 15.09.2016 passed by learned Additional Sessions Judge, 7th Court, Barasat, North 24 Parganas in sessions trial no. 5(8) of 2013 arising out of sessions case no.9(5) of 2013 for the offence under Section 376 of the Indian Penal Code are set aside. The appellant be released from custody forth with if not required to be detained in connection with any other case. Let a copy of this judgment along with the lower Court record of the learned Court below forth with for information and necessary action. The appeal stands allowed.

16. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
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