Hanif Miya Alias Hanif Mian vs The State Of West Bengal
2021 Latest Caselaw 3801 Cal

Form J(2)         IN THE HIGH COURT AT CALCUTTA
                     Criminal Appellate Jurisdiction
                             Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri


                       C.R.A. 637 of 2018

                    Hanif Miya alias Hanif Mian
                                Vs.
                     The State of West Bengal




For the Appellant      :   Mr.Angshuman Chakraborty, Adv.
                           Mr.Shashanka Sekhar Saha, Adv.


For the State :            Mr. Saswata Gopal Mukherjee, Ld. P.P.
                           Ms. Faria Hossain,
                           Mr.Aniket Mitra


Heard on                     : 08.07.2021


Judgment On                  : 15.07.2021

Bibek Chaudhuri, J.

The appellant has assailed the judgment and order of conviction

and sentence dated 14th November, 2018 and 15th November,

2018 passed by the learned Additional Sessions Judge, Fast Track

1st Court at Alipore in Sessions trial No. 08 (08) 2017

corresponding to Sessions Case No. 57(05) 2017 convicting the

appellant to suffer rigorous imprisonment for seven years and

fine of Rs. 20,000/- ,in default, to suffer imprisonment for further

period of six months for the offence punishable under Section

376(1) of the Indian Penal Code.

Maheshtala Police Station case No. 78 of 2017 was

registered on 15th February, 2017 under Section 376 of the Indian

Penal Code (hereafter "IPC" for short) on the basis of a written

complaint submitted by one Tanjila Bibi. It is alleged in the

complaint that on 12th February, 2017 her daughter aged about

20 years was found missing. She is mentally retarded. The

de facto complainant lodged a missing diary with the Maheshtala

Police Station. She and her family members also conducted search

for her said daughter. On the next morning at about 7.30 a.m.

the victim was found at a place call Garwan Para. At that time

she was physically exhausted and struggling while walking. She

was bare footed. Her wearing apparels were full of dust. On being

asked, she told her mother and sister-in-law Manoara Bibi that

during afternoon of 12th February, 2017 she went to see the

football match at Sanjibini club. The accused took her from the

playground to a small field near Panchanan Tala and committed

rape upon her. After commission of such offence the accused left

her on the field. She was then somehow coming towards her

husband, while she met her mother and sister-in-law. During trial

of the case the prosecution examined eleven witnesses. Amongst

them the victim deposed during trial as P.W.1. P.W.2 Tanjila Bibi

is her mother and P.W. 3 Manoara Bibi is the sister-in-law of the

victim. P.W. 4, Jarina Bibi, P.W.5, Sk. Kachi, P.W.6, Motila Bibi

are the neighbours of the victim. P.W.7, Alamin Molla, the elder

brother of the victim, wrote the first Information Report under the

instruction of her mother. P.W.8, Dr. Bipul Kanti Sikdar is the

Medical Officer who examined the victim on 15th February, 2017

medically. P.Ws. 10 and 11 are the Judicial Magistrates attached

to the Criminal Court at Alipore. They recorded the statement of

the mother of the victim and the victim respectively under Section

164 of the Criminal Procedure Code. P.W. 9 is the Investigating

Officer of the case.

The accused was examined under Section 317 of the Code of

Criminal Procedure. However, he did not examine any witnesses

in support of his defence. Defence case as revealed from the

cross-examination made on behalf of the accused to the

witnesses on behalf of the prosecution appears to be denial of the

prosecution story.

It is ascertained from the FIR that victim at the time of

alleged incident was aged about 20 years. She is mentally

retarded and she was found missing from the evening of 12 th

February, 2017. On the next day, that is on 13 th February, 2017

the mother and the sister-in-law of the victim found her at a place

called Garwan Para in troubling condition. Thus, it is ascertained

from the FIR that the victim was found on 13th February, 2017.

The FIR was lodged on 15th February, 2017.

Learned advocate for the appellant at the outset submits that

there is unexplained delay of about two days in lodging the FIR

in the instant case by the de facto complainant. The de facto

complainant did not assign reason about such delay in lodging the

FIR.

It is further pointed out by Mr. Chakraborty, learned

advocate appearing for the appellant that the FIR discloses a gory

event. Inasmuch as the victim was allegedly taken away by the

accused to a field and committed rape upon her. The offence was

committed in such a manner that the victim could not return her

house on the date of occurrence and she was left alone on the

open field throughout the night. On the next morning when the

de facto complainant found her, she was struggling to walk and

her wearing apparels were full of dust. It is also found from the

medical report that the victim suffered multiple aberrations on her

legs, thigh and several scratch marks on the left breast. Her

hymen was also raptured.

However, it is pointed out by Mr. Chakraborty that the victim

did not support the prosecution case in her evidence. It is stated by

the victim that on the date of occurrence she went to see the football

match. There was huge gathering of spectators to see the match.

After the match she came back to her home. Thus, the victim did not

support the prosecution case to the effect that after the football

match the accused took her to a field and committed rape upon her

forcibly. Then he left the victim on the said field and went away. The

victim spent entire night on the field. It is also submitted by Mr.

Chakraborty that the victim girl was not declared hostile by the

prosecution. Further more, he refers to an order dated 1st November,

2017. As the victim was mentally retarded, an interpreter was called

to assist the victim and the Court in recording her evidence. The

interpreter informed the Court that the victim is not deaf and dumb

but mentally retarded. Therefore, the said interpreter was released

by the Court and the victim was called on to give evidence on the

dock. On examination of the Lower Court record it is ascertained that

the victim was not examined either by the prosecution or by the

Court to ascertain as to whether she can understand the questions

put to her during examination-in-chief and give cogent answer to the

same. In other words the trial Court did not examine the victim

prior to recording her statement as to whether the victim had an

ability to understand normal questions under normal circumstances.

In the absence of such examination and in view of the fact that the

victim did not support the prosecution case, her evidence is not only

fatal for the prosecution but destroys the entire story. The mother of

the victim Tanjila Bibi also did not support the prosecution case her

evidence as P.W. She did not narrate even a single word against the

accused and about the incident. She was also not declared hostile

by the prosecution. P.W.3, Manoara Bibi also did not support the

prosecution case. She was, however, declared hostile by the

prosecution and was cross-examined by the prosecution. P.W.5, Sk.

Kachi and P.W.6 Motila Bibi also did not support the prosecution case

and were declared hostile. It is ascertained from the evidence of

P.W.7 Alamin Molla that he is the elder brother of the victim.

According to him, her sister herself came back to their home on the

next morning after she was found missing. She also stated that the

victim did not disclose any incident to him. He lodged a complaint as

per instruction of the police and her mother put her signature

thereon.

Mr. Chakraborty, thus, submits that none of the above named

witnesses supported the prosecution case. He also refers to the

evidence of the medical officer (P.W.8) who medically examined

the victim on 15th February, 2017. He found swelling on the

victim's lip, multiple abrasion on her back and thigh, multiple

scratch mark on left breast. Her hymen was found raptured and

swelled. The medical report is marked Exhibit-3. The learned trial

Judge held the accused guilty for committing offence under

Section 376 of the Indian Penal Code on the basis of medical

examination report and the statement of the victim and her

mother recorded under Section 164 of the Code of Criminal

Procedure. It is surprising to note that the learned trial Judge

regarded statement of the victim and her mother recorded under

Section 164 of the Code of Criminal Procedure as substantive

piece of evidence. Thus, the learned trial Judge has committed

grave error because a statement recorded by Magistrate under

Section 164 of the Code of Criminal Procedure is not a substantive

evidence but corroborative in nature and such statement can only

be used either to corroborate or to contradict the evidence

adduced by the witness during trial of a case. It is the evidence

given by a witness in Court on oath, which can only be treated as

substantive evidence. So far as substantive evidence is

concerned, the victim girl did not state anything about

commission of offence by the appellant. In the absence of such

evidence and in view of the fact that the victim was not even

declared hostile by the prosecution and no contradiction was

taken in respect of her previous statement recorded under Section

164 of the Code of Criminal Procedure, the said statement has no

evidentiary value. The same is the rule of appreciation of

evidence in respect of a statement under Section 164 of the Code

of Criminal Procedure in respect of the mother of the victim

(P.W.2). All other witnesses are in the nature of hearsay having

no relevance in the matter of adjudication as to whether

prosecution was able to prove the charge against the accused or

not. The learned trial Judge held the accused guilty for

committing offence under Section 376 of the Indian Penal Code on

the basis of inadmissible evidence on record.

This Court cannot deny that the victim girl was ravished not

only that she was physically tortured at the time of commission of

sexual abuse. However, it is the bounden duty for the

prosecution to prove by cogent, reliable and legally admissible

evidence that the accused had committed such offence. There

being no such evidence on record, the judgment and order of

conviction and sentence passed by the learned Additional Sessions

Judge, Fast Track, First Court at Alipore is liable to be set aside.

Accordingly, the instant appeal is allowed.

The judgment and order of conviction and sentence passed by

the learned trial Judge in Sessions Case No.57(05) of 2017

(Sessions Trial No.08(08) of 2017 is set aside. The

appellant/accused is set at liberty and released from his bail bond.

Let a copy of this judgment be sent to the learned trial Court

below along with the Lower Court record forthwith.

(Bibek Chaudhuri, J.)