Manindra Paul vs State Of West Bengal
2021 Latest Caselaw 5756 Cal

Form J(2)
                    In the High Court at Calcutta
                    Criminal Appellate Jurisdiction
                              Appellate Side

Present : The Hon'ble Mr. Justice Bibek Chaudhuri

                            CRA 252 of 2015

                         Manindra Paul
                              -Vs.-
                      State of West Bengal

For the appellant       :      Mr.   Sabir Ahmed,
                               Mr.   Mujibar Ali Naskar, Adv.,
                               Mr.   Hillal Saha Poddar, Adv.,
                               Mr.   Shraman Sarkar, Adv.,
                               Mr.   Apan Saha, Adv.
                               Mr.   T. Ahmed, Adv.

For the respondent      :      Mr. Abhra Mukherjee, Adv.,

Mr. Dipankar Mahata, Adv.

Heard on                :      22.11.2021, 23.11.2021

Judgment on             :      23.11.2021.



          Bibek Chaudhuri, J.:

On 13th December, 2011 in the evening at about 5.30 p.m. a

minor girl aged about eight years was allegedly ravished by her private

tutor. On the next date of the alleged incident, the mother of the

victim girl lodged a written complaint against the accused in the local

police station on the basis of which a case under Section 376(2)(f) of

the Indian Penal Code was registered. The investigation culminated in

filing charge-sheet by the police under the said penal provision against

the accused.

Since the offence charge-sheeted was exclusively triable by the

Court of Sessions, after commitment, the case was committed to the

learned Additional Sessions Judge, Cooch Behar for trial and disposal.

During trial, prosecution adduced evidence in support of the

charge by way of examination of the charge-sheeted witnesses. Some

documents were marked exhibits on proof. The accused was

examined under Section 313 of the Code of Criminal Procedure where

he pleaded his innocence. It is also ascertained from the cross-

examination of the witnesses on behalf of the prosecution that the

defence took a specific plea to the effect that some amount of money

was due to the mother of the victim and she lodged a false case

against the accused so that she might not pay the said amount.

The learned Trial Judge considered the evidence on record.

Some established principles of law were enunciated and the accused

was held guilty by the learned Trial Judge for committing offence

under Sections 376/511 of the Indian Penal Code and sentenced to

suffer rigorous imprisonment for five years and to pay fine of

Rs.20,000/-, in default, to suffer rigorous imprisonment for six months

for the offence punishable under Sections 376/511 of the Indian Penal

Code. The instant appeal is directed against the said judgment and

order of conviction and sentence passed by the learned Additional

Sessions Judge, Cooch Behar in Sessions Case No. 507/2012/Sessions

Trial No. 1(9)/2013.

As a Court of Appeal it is the bounden duty of this Court to

appreciate the evidence on record afresh. This Court is also duty

bound to see as to whether the learned Judge properly appreciated

and accepted the legal principles or ratio decided by the Hon'ble

Supreme Court in the instant case or not.

At the outset, I think it prudent to state that the alleged incident

took place on 13th December, 2011 at 5.30 p.m. The Protection of

Children from Sexual Offences Act, 2012 came into operation with

effect from 19th June, 2012. Therefore, the POCSO Act, 2012 is not

applicable in the instant case. Similarly, the definition of rape has

undergone a considerable change by amending Act XIII of 2013 with

effect from 3rd February, 2013. So, the accused was rightly booked

under Section 376(2)(f) of the Indian Penal Code.

In order to bring home to charge against the accused/appellant

prosecution in all examined 12(twelve) witnesses. Amongst them,

P.W. 5 is the victim girl, P.W. 4 is the mother of the victim girl and the

de facto complainant. P.W. 1, Smt. Dipa Bhat and P.W. 2, Smt.

Sandhya Rani Paul and P.W. 3, Phanindra Paul were declared hostile

by the prosecution.

P.W. 6, Babai Bhat claimed to be present at the place of

occurrence immediately after the incident and saw the victim girl in

naked condition as well as the accused in compromising position.

Evidence of P.W. 7, Mrinal Kanti Basunia is not of much relevance on

the ground that his evidence is in the nature of hearsay. P.W. 9, Dr.

Dipankar Datta examined the victim girl on 17 th December, 2011 and

found that there was no evidence of external injury on the person of

the victim girl. Her hymen was intact. The report prepared by P.W. 9

was marked as exhibit -2/1 during trial of the case. The remaining

witnesses are scribe and Investigating Officer of this case.

The FIR discloses a story that on the date and time of alleged

incident the de facto complainant heard cry of her minor daughter

from an adjoining house. He rushed to the house and saw her

daughter standing on the ground in naked condition and her private

tutor was sitting on a chair. On being asked her daughter disclosed

her mother that the accused committed rape upon her. Hearing such

incident the de facto complainant raised hue and cry which attracted

local people. The witnesses also saw the said incident. I have already

recorded that except Babai Bhat no other witness supported the

prosecutrix.

It is the consistent view of the Apex Court of India that in a case

of sexual assault or rape the evidence of the victim is of greatest

importance. Her evidence cannot be equated with the evidence of

that of an accomplice's evidence. She stands on the higher pedestal

even that of an injured witness. Therefore, if the evidence of

prosecutrix is found to be truthful, cogent, trustworthy and

unblemished, the perpetrator of the offence can be convicted on the

basis of such sole evidence of the victim girl. No corroboration is

necessary in such a case because in order to search for corroboration

in a case of sexual assault is to aggravate the wound of the victim girl.

In Dilip & Anr. -Vs.- State of M.P. reported in 2002 SCC

(Cri) 592, the Hon'ble Supreme Court laid down the law of

appreciation of evidence of a prosecutrix in paragraph 12 of the report.

Paragraph 12 of the said report quoted below: -

12. The law is well settled that the prosecutrix in a sexual

offence is not an accomplice and there is no rule of law that her

testimony cannot be acted upon and made the basis of conviction

unless corroborated in material particulars. However, the rule about

the admissibility of corroboration should be present to the mind of the

Judge. In State of H.P. -Vs.- Gian Chand on a review of decisions

of this Court, it was held that conviction for an offence of rape can be

based on the sole testimony of the prosecutrix corroborated by

medical evidence and other circumstances such as the report of

chemical examination etc., if the same is found to be natural,

trustworthy and worth being relied on. This Court relied upon the

following statement of law from State of Punjab -Vs.- Gurmit

Singh SCC (para 21):

"If evidence of the prosecutrix inspires confidence, it must be

relied upon without seeking corroboration of her statement in

material particulars. If for some reason the court finds it difficult

to place implicit reliance on her testimony, it may look for

evidence which may lend assurance to her testimony, short of

corroboration required in the case of an accomplice. The

testimony of the prosecutrix must be appreciated in the

background of the entire case and the trial court must be alive

to its responsibility and be sensitive while dealing with case

involving sexual molestation...."

In Santosh Pasad @ Santosh Kumar -Vs.- State of Bihar

reported in (2020) 3 SCC 443, the Hon'ble Supreme Court relying on

its earlier decision in the case of Raju -Vs.- State of M.P. reported in

(2008) 15 SCC 133 observed as hereunder: -

"It cannot be lost sight of that rape causes the greatest distress

and humiliation to the victim but at the same time a false allegation of

rape can cause equal distress, humiliation and damage to the accused

as well. The accused must also be protected against the possibility of

false implication, particularly where a large number of accused are

involved. It must, further, be borne in mind that the broad principle is

that an injured witness was present at the time when the incident

happened and that ordinarily such a witness would not tell a lie as to

the actual assailants, but 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". Under such backdrop

the Hon'ble Supreme Court again had the occasion to hold that if the

evidence of the victim girl is praiseworthy, truthful and unblemished

and inspires confidence of the Court, conviction can be based on the

basis of her sole evidence corroborated by the medical evidence. The

Hon'ble Supreme Court held that where the Court accepts the evidence

of the victim girl as trustworthy, her evidence must be of sterling

quality. Reliance was placed on the judgment of Rai Sandeep -Vs.-

State (NCT of Delhi) reported in (2012) 8 SCC 21 and it was held

by the Hon'ble Supreme Court: -

"In our considered opinion, the "sterling witness" should be of a

very high quality and calibre whose version should, therefore, be

unassailable. The Court considering the version of such witness

should be in a position to accept it for its face value without any

hesitation. To test the quality of such a witness, the status of the

witness would be immaterial and what would be relevant is the

truthfulness of the statement made by such a witness. What would be

more relevant would be the consistency of the statement right from

the starting point till the end, namely, at the time when the witness

makes the initial statement and ultimately before the Court. It should

be natural and consistent with the case of the prosecution qua the

accused. There should not be any prevarication in the version of such

a witness. The witness should be in a position to withstand the cross-

examination of any length and howsoever strenuous it may be and

under no circumstance should give room for any doubt as to the

factum of the occurrence, the persons involved, as well as the

sequence of it. Such a version should have co-relation with each and

every one of other supporting material such as the recoveries made,

the weapons used, the manner of offence committed, the scientific

evidence and the expert opinion. The said version should consistently

match with the version of every other witness. It can even be stated

that it should be akin to the test applied in the case of circumstantial

evidence where there should not be any missing link in the chain of

circumstances to hold the accused guilty of the offence alleged against

him. Only if the version of such a witness qualifies the above test as

well as all other such similar tests to be applied, can it be held that

such a witness can be called as a "sterling witness" whose version can

be accepted by the Court without any corroboration and based on

which the guilty can be punished. To be more precise, the version of

the said witness on the core spectrum of the crime should remain

intact while all other attendant materials, namely, oral, documentary

and material objects should match the said version in material

particulars in order to enable the Court trying the offence to rely on

the core version to sieve the other supporting materials for holding the

offender guilty of the charge alleged."

Bearing the above principles in mind, let me now scan the

evidence on record. From the FIR it is found that the victim girl went

to take private tuition on the date and time of occurrence in an

adjacent house. It is also found from the evidence of the mother of

the victim that she used to take tuition with three other children. The

said three children were not examined by the Investigating Officer or

cited as a witness of this case to prove that they were not present at

the time of alleged occurrence. Secondly, though in the FIR it is

stated by the de facto complainant that the place of occurrence is a

house adjacent to the house of the de facto complainant, in the

evidence on record it is found that the house of the de facto

complainant is situated about 2 K.Ms. away from the place of

occurrence. Is it possible for a person to hear the cry of her daughter

calling 'Maa' (Mother) from a distance of 2 K.Ms. away from the place

of occurrence? Again, is it possible for a lady to run all the way a

distance of about 2 K.Ms. to see the victim girl in naked condition and

the accused was tying the zipper of his pant? If such circumstances

are asked to be believed then a natural question will come - how long

the alleged incident took place? The victim made her statement about

the incident for the first time before the learned Judicial Magistrate

under Section 164 of the Code of Criminal Procedure on 27 th

December, 2021. In her statement under Section 164 of the Code of

Criminal Procedure, it is found that the de facto complainant never

went to the place of occurrence. On the contrary, the victim came

back to her house and narrated the incident to her mother. This part

of statement recorded under Section 164 of the Code of Criminal

Procedure was not contradicted with the victim. On the other hand, it

was made exhibit, if such statement recorded under Section 164 of the

Code of Criminal Procedure of the victim is believed then presence of

the de facto complainant at the place of occurrence, presence of the

witnesses there and hauling of the accused do not arise at all. The

statement of the victim girl belies all such evidence adduced by the

prosecution in order to prove the charge.

The learned Trial Judge relied on the principles laid down in

Aman Kumar & Anr. -Vs.- State of Haryana reported in 2004 SCC

(Cri) 1497. In the said decision, it was stated that to constitute the

offence of rape, it is not necessary that there should be a complete

penetration of penis with emission of semen. The learned Trial Judge

also quoted a decision of Gouhati High Court in the case of Krishna

Bordoli -Vs.- State of Assam reported in 2012 Cr. L. J. 4099. It is

held by the Gouhati High Court in the above-mentioned report that in

a decisive and a very specific manner, it can be said that mere putting

the male genitalia on the female genitalia, if it does not amount to

rape, then it will be an offence but of different nature. It can be an

attempt of commission of such offence of rape. There is no doubt

about the ratio laid down in the above-mentioned decisions. But a

judgment must contain how the principles laid down in a particular

report is applicable under the facts and circumstances of another case.

There is no such discussion in the judgment of the learned Trial Court.

The plea relating to applicability of Section 376 read with Section

511 of the Indian Penal Code needs careful consideration. In every

crime, there is first intention to commit, secondly, preparation to

commit it, thirdly, attempt to commit it. If the third stage, i.e.,

attempt is successful then the crime is complete. If the attempt fails,

the crime is not complete, but law punishes the person attempting the

act. The Section 511 is a general provision dealing with attempts to

commit offence not made punishable by other specific sections. It

makes punishable all attempts to commit offences punishable with

imprisonment and not only those punishable with death. An attempt is

made punishable because every attempt, although it falls short of

success, must create alarm which by itself is an injury, the moral guilt

of the offender is the same as he had succeeded. Moral guilt must be

united to cause injury in order to justify punishment. As the injury is

not as grave as if the act had been committed, only half the

punishment is awaited.

In the instant case, leaving aside the contradictions as narrated

above if we accept the evidence of the mother of the victim girl and

the statement made in the FIR, it is found that she saw her daughter

standing in naked condition and the teacher sitting on a chair. This

specific picturization of the incident does not suggest an attempt to

commit rape.

Therefore, I am of the considered view that the learned Trial

Judge failed to appreciate the evidence on record properly and the

prosecution failed to bring home the charge under Sections 376/511 of

the Indian Penal Code against the accused/appellant.

Before I part with I am constrained to record that now-a-days

this Court comes across series of judgments delivered by the Trial

Court where decisions of the Hon'ble Supreme Court and other High

Courts are cited without considering the fact as to whether some ratio

decidendi is laid down in the said reports or not even the general

observations (obiter dicta) having no binding force are relied upon and

abruptly quoted in the judgments passed by the trial Courts. These

'cut copy paste' judgments make serious adverse trend in subordinate

judiciary. The learned Judicial Officers in subordinate judiciary must

understand that in a judgment of the Hon'ble Supreme Court where

the Court lays down in general proposition of law, such proposition is

applicable under Article 141 of the Constitution of India as the binding

force of the Supreme Court decisions. In respect of other cases where

the Court does not lay down any general proposition of law but merely

enunciates a circumstance as to the appreciation of evidence or on any

other matter, such decision is applicable on fact to fact basis and not

as the ratio decidendi. I am constrained to note that a trend is noticed

that whenever a particular Section or the penal provision is noticed on

the head note of the reported judgments there is a tendency to refer

such judgments by way of copying and pasting some paragraphs from

the website in the body of the judgments passed by the Trial Courts.

This trend should be stopped and the learned Judicial Officers of

subordinate judiciary is advised to read the entire report before

applying the same in a case in his or her hand.

The instant appeal, therefore, is allowed on contest, however,

without cost. The judgment and order of conviction and sentence is

set aside. The accused is acquitted from the charge and discharged

from the bail bond, if not wanted in any other case.

Learned Registrar (Judicial Service), High Court, Calcutta is

requested to circulate this judgment to the learned Judicial Officers of

the State through the District Judges of the respective Districts as a

guideline to appreciate the reports of the Supreme Court and High

Courts while referring them in a judgment of a particular case.

Urgent photostat certified copy of this order, if applied for, be

given to the learned advocates for the parties on usual undertakings.

(Bibek Chaudhuri, J.)

Srimanta A.R. (Court)