JUDGMENT & ORDER (ORAL)
Heard Mr. A.C Bhowmik, learned senior counsel assisted by Mr. D.C Roy, learned counsel appearing for the petitioner as well as Mr. A. Ghosh, learned P.P appearing for the State.
[2] By the impugned judgment and order dated 26.02.20007 delivered in Criminal Appeal No. 45(3) of 2006, the Sessions Judge, South Tripura, Udaipur has affirmed the conviction of the petitioner under Section 376(1) and upheld the sentence as awarded by the trial court. The Assistant Sessions Judge, South Tripura, Udaipur in the sessions trial No. 01 (ST/U) 2006 convicted the petitioner by the judgment dated 22.08.2006 and sentenced him to suffer rigorous imprisonment for 7 (seven) years with fine of Rs. 3,000/- and in default of payment of fine to suffer further rigorous imprisonment of 3 (three) months.
[3] The prosecutrix, name has been withheld for protecting her identity, lodged a complaint straightway in the Court of the Chief Judicial Magistrate, South Tripura, Udaipur on 04.11.2004 disclosing that she was raped by the petitioner, abetted by another accused namely, Mafiya Bibi. The Chief Judicial Magistrate, South Tripura, Udaipur without taking any cognizance of that offence forwarded the complaint to the R.K Pur Police Station for registration of the said case and also for investigating the allegations as leveled in the complaint. Accordingly, on 03.11.2004, R.K Police Station case No. 405 of 2004 was registered under Sections 376(1) read with Section 109 of the I.P.C On completion of the investigation, the final police report chargesheeting the petitioner and the said co-accused was filed in the court of the Chief Judicial Magistrate, South Tripura, Udaipur, who after taking the cognizance committed the case to the court of the Sessions Judge, South Tripura, Udaipur for trial in accordance with law as the offence was exclusively triable by the court of Sessions. The Sessions Judge transferred the said case to the court of the Assistant Sessions Judge, South Tripura, Udaipur. The Assistant Sessions Judge, thereafter, framed the charge against the petitioner and the said co-accused under Sections 376(1) of the I.P.C read with Section 109 of the I.P.C to which both the accused pleaded innocence and claimed to face the trial.
[5] In order to substantiate the charge, the prosecution adduced as many as 10 (ten) witnesses including the prosecutrix, her husband, the village Pradhan and the investigating officer. On recording the prosecution evidence, the petitioner and the co-accused were examined under Section 313 of the Cr.P.C for having their response to the incriminating materials those surfaced in the evidence. At the instance of the petitioner two defence witnesses were also examined.
[6] Being aggrieved by that judgment of conviction, both the petitioner and the co-accused filed an appeal in the court of the Sessions Judge as the sentence was upto 7 (seven) years. The said appeal being criminal appeal No. 45(3)/2006 was partly allowed as the co-accused, namely, Mafiya Bibi was acquitted from the charge. However, by the judgment and order dated 26.02.2007, the judgment of conviction as delivered against the petitioner by the trial court has been sustained by the Sessions Judge. Hence, this petition against the said judgment.
[7] Mr. A.C Bhowmik, learned senior counsel appearing for the petitioner has submitted that the appellate court has miserably failed to read the evidence properly and on such unsustainable scrutiny of the judgment of the trial court, affirmed the finding of conviction. Mr. Bhowmik, learned senior counsel has emphatically placed certain points in defence of the petitioner. He has submitted that except the prosecutrix, there is no other witnesses, who had occasion to witness any part of the transaction of the offence and unless the prosecutrix is entirely believed, the finding of conviction cannot be sustained. Apart that, Mr. Bhowmik, learned senior counsel has laid emphasis on the statement made by PW-5 namely, Sri. Sukha Ranjan Sarkar, the village Pradhan, who has stated that the prosecutrix told him that the petitioner ‘tried to rape’ her. In the reply to the court, the said witness also stated that ‘she told me that Shyamal Mitra did not commit rape on her.’ Even on the face of the cross-examination, the said witness did not amend or alter such statement. Mr. Bhowmik, learned senior counsel has fairly submitted that the medical examination report of the prosecutrix cannot have any value as the said examination was conducted much later, inasmuch as the complaint was filed after 21 (twenty one) days of the occurrence. But from the testimony of Dr. Jayanta Roy (PW-9) it would be apparent that on examination, no sign of sexual assault was found on the body of the prosecutrix. Mr. Bhowmik, learned senior counsel in the alternative has submitted that if there were any attempt of rape at all, the petitioner might have been convicted under Section 376 read with Section 511 of the I.P.C Thus Mr. Bhowmik, learned senior counsel has laid sufficient stress contending that the ingredients of Section 375 of I.P.C constituting rape is entirely absent on records establishing. That the petitioner has committed rape is conspicuous by absence only. Mr. Bhowmik, learned senior counsel on the last lap of his submission has submitted that relying on the same set of witnesses, the co-accused Mafiya Bibi has been acquitted by the appellate court. But the appellate court did not apply the same yardstick in the case of the petitioner. In support of his contention he has relied on a decision of the apex court in Pandurang Sitaram Bhagwat v. State of Maharashtra, reported in (2005) 9 SCC 44. In that case the apex court has held that ‘each case has to be determined on the touchstone of the factual matrix thereof.’ The courts should not believe the statement of the prosecutrix on the premises that ordinarily a woman would not ‘put her character at stake’. The apex court has enunciated in that case that there is no such universal rule to convict a person based on what the prosecutrix has ‘stated’.
[8] From the other side, Mr. A. Ghosh, learned P.P appearing for the State has submitted that it would be apparent from the transactions and from the records that there cannot be any reason to disbelieve the prosecutrix. She had immediately after the occurrence informed the village Pradhan and such information was given to the village Pradhan along with her husband. Mr. Ghosh, learned P.P contends that that part of the transaction does not fall within the space for doubt. That apart, Mr. Ghosh, learned P.P has submitted the very nature of the offence would deter the prosecutrix to come public in the prevailing social attitude. Therefore, the delay in such cases cannot have any consequence whatsoever, what might have been relevant in other cases.
[9] Having regards to the rival contentions and on scrutiny of the records what has surfaced is that unless the prosecutrix is entirely believed, the finding of conviction can be sustained. Mr. Bhowmik, learned senior counsel is absolutely correct that the prosecutrix has not given any explanation what deterred her to approach the police station and why she had approached the Chief Judicial Magistrate, South Tripura, Udaipur after 21 (twenty) one days even though there is no legal compulsion that a victim cannot approach the court, but generally such incidents are usually reported in the police station. For purpose of scrutiny we have gone through the complaint which has been drafted by a lawyer and the complaint describes the occurrence. Its relevant part may be translated as under:
“On 27.09.2004 she went to work in rubber garden owned by PWC6, Ananda Hari Jamati and they worked up to 1 pm. When the petitioner went to that place and sat beside her, at that time the petitioner threatened and forcibly raped her. After committing the rape, the petitioner by placing a ‘dao’ on her neck and told her that if she disclosed the occurrence to anyone, the petitioner would kill her and her husband.”
It has been further disclosed that the matter was informed to the Panchayet and they advised the victim and her husband to take shelter of law.
The victim herself has identified the said complaint as Exbt.1, without any objection from the defence. Her statement recorded under Section 164(5) of the Cr.P.C has been brought in the evidence as Exbt.2 series. There also the prosecutrix has stated that when they were taking rest after doing their work, the petitioner sat beside her and at that time the co-accused left the place stating the petitioner that he could do ‘his job now’. After hearing that word, the petitioner pushed her forcibly on the ground and torn her wearing apparels and thereafter, raped her by inserting the penis in her genital. When she tried to give resistance, the petitioner placed a ‘dao’ on her neck. After such occurrence, she lost her senses. After that, one Hamid Ali had rescued her from the place of occurrence.
[10] Surprisingly, what the prosecutrix has stated in the trial is altogether a different version. The prosecutrix has stated that after completing their work when she sat for taking the rest, the petitioner placed a ‘dao’ on her neck. After seeing that she became senseless and when she regained senses, she found that the petitioner had been committing rape on her and she has further stated that one person, namely, Hamid Ali took her to her home and she narrated the incident to her husband. She has submitted that Hamid Ali had been residing abroad. Whether Hamid Ali was at all traced or examined by the investigating agency or not is not clear from the records. Even from the testimony of PW-10 no such statement is found. Whether Hamid Ali is a real person or an imaginary character cannot be ascertained. Hamid Ali is a vital and crucial witness if he was a real person.
[11] PW-2, Siraj Miah has stated that her wife, the prosecutrix stated to him that she was raped in the rubber garden and the rape was abetted by the co-accused. In his cross-examination, he has stated that ‘on the date of incident we informed the matter to some of the Gaon Panchayet members. The member of the Panchayet did not advise us to lodge a complaint to the appropriate authority. On hearing same, Gaon Pradhan told me that they will compromise the matter.— He has also disclosed that they had accepted the compromise arrived at the instance of the Panchayet. This statement stands in contrast to the statement made by the prosecutrix in her complaint. The prosecutrix in her testimony has stated that one Soya Miah and Rakmat Ali, the members of the Panchayet had compromised the matter.
[12] PW-3, Soya Miah did not shed any light on that aspect in the course of his examination in the trial court. Similarly, PW-4, Khaled Miah is a hearsay witness but he denied that he advised the prosecutrix to inform the matter to the Gaon Panchayet.
[13] Most surprisingly, the village Pradhan, PW-5 namely, Sukha Ranjan Sarkar advanced another story as to what was disclosed to him by the prosecutrix. However, the prosecution has declared him hostile. The prosecutrix weaved her statement recorded under Section 164(5) of the Cr.P.C differently. Ananda Hari Jamatia (PW-6), Amulya Chandra Das (PW-7) and Radheshyam Baishnab (PW-8) did not place any materials which are relevant in the context of the charge. PW-8 wrote the complaint at the instance of one lawyer namely, Prabahan Sarkar.
[14] PW-9, Dr. Jayanta Roy has stated that on medical examination of the prosecutrix he did not find any material to come to an inference that she was sexually assaulted.
[15] PW-10, Sri. Jatindra Das, the investigating officer has narrated how he conducted the investigation. Nowhere has he stated that he had made any attempt to locate Hamid Ali, who escorted the prosecutrix from the rubber garden to her residence. Even the defence did not try to elicit existence of such fact by means of this witness.
[16] The defence has produced two witnesses, namely, Hossain Ali (DW-1), who has corroborated the statement of PW-5 in regard to that the prosecutrix had stated to the village Pradhan that the petitioner attempted to rape her. The testimony of DW-2, Sangaar Ali has no relevance as he had admitted that the he was not working in the said rubber garden at the relevant point of time. His testimony is based on hearsay and no evidentiary value therefore can be derived.
[17] Having scrutinized the records and on appreciation of the rival contentions advanced by the learned counsel for the parties and the statement made by the prosecutrix on different phases of investigation and trial, this Court is constrained to observe that based on her statement or testimony, the petitioner cannot be convicted and that would not be a safe recourse. It has therefore to be held that the prosecution has miserably failed to establish the charge under Section 376(1) of the I.P.C on the petitioner beyond reasonable doubt. No doubt, had the testimony of the prosecutrix generated that much confidence, this Court would have definitely affirmed the conviction of the petitioner or the offender basing entirely on the testimony of the prosecutrix. However, this is not a case where this Court should adopt such approach for convicting the offender, who is charged of committing offence punishable under Section 376(1) of I.P.C
[18] Having held so, this petition stands allowed. In the result, the petitioner is acquitted from the charge on benefit of doubt. Since the petitioner is on bail, the sureties are discharged from his respective obligations.
Send down the LCRs forthwith.
Comments