Rabiul Sk vs The State Of West Bengal & Anr
2022 Latest Caselaw 5935 Cal

                                      1




                   IN THE HIGH COURT AT CALCUTTA
                  CRIMINAL APPELLATE JURISDICTION
                           APPELLATE SIDE

Present:
The Hon'ble Justice Debangsu Basak
            And
The Hon'ble Justice Bibhas Ranjan De


                            CRA 26 of 2021
                                With
                            CRAN 1 of 2021

                               Rabiul Sk
                                  VS.
                    The State of West Bengal & Anr.


For the Appellant : Mr. Kusal Kumar Mukherjee, Adv.


For the State      : Mr. Prasun Kr. Dutta, ld. APP
                     Mr. Subrato Roy, Advocate

Heard and Judgment on: August 26, 2022


DEBANGSU BASAK, J.:-

1.

The appeal is directed against the judgment of conviction

dated January 14, 2021 and the order of sentence dated

January 15, 2021 passed by the learned Additional Sessions

Judge cum Judge, Special Court under POCSO Act,

Krishnagar, Nadia in Sessions Trial No. VIII (VII) 2019

corresponding to Sessions Case No. 35 (06) of 2019.

2. Briefly stated the case of the prosecution is that, the

appellant on June 5, 2019 at about 8:30 PM committed rape

on the victim under Section 376(3) of the Indian Penal Code,

1860 and committed grievous penetrative assault on the

victim and, therefore, committed an offence punishable under

Section 6 of the Protection of Children from Sexual Offences

Act, 2012.

3. The victim lodged a complaint with the police on June 6,

2019 with regard to the incident. A First Information Report

was lodged on the complaint of the victim. The police inquired

into the same and submitted a charge sheet against the

appellant. Charges were framed against the appellant. The

appellant pleaded not guilty and claimed to be tried. At the

trial prosecution examined 10 witnesses. The prosecution

tendered 16 documents and one material exhibit which were

marked as exhibits at the trial. On the conclusion of the

evidence of the prosecution the appellant was examined under

Section 313 of the Criminal Procedure Code. He declined to

adduce any evidence. The trial resulted in the impugned

judgment of the conviction and the impugned order of

sentence.

4. The learned Trial Court found the appellant guilty under

Section 376(3) of the Indian Penal Code, 1860 and Section 6 of

the Protection of Children from Sexual Offences Act, 2012 for

committing rape and penetrative sexual assault on the victim.

The appellant was sentenced to 10 years of imprisonment and

was directed to pay a fine of Rs.1,00,000/- and, in default, to

suffer simple imprisonment for one year.

5. Learned advocate appearing for the appellant submits that

the prosecution was unable to establish the case beyond

reasonable doubt. He submits that, there are various

contradictions in the evidence led at the trial on behalf of the

prosecution. According to him, such contradictions are fatal

to the case of the prosecution.

6. Learned advocate appearing for the appellant submits that

at the trial, the victim was examined as prosecution witness

no. 1, the father of the victim was examined as prosecution

witness no. 2, the uncle of the victim was examined as

prosecution witness no. 3, the cousin elder brother of the

victim was examined as prosecution witness no. 5, the Doctor

who examined the victim was examined as prosecution

witness no. 8 and the Investigating Officer was examined as

prosecution witness no. 10.

7. Learned advocate appearing for the appellant draws the

attention of the Court to the evidence of the victim examined

as P.W. 1. He submits that P.W. 1 states in her examination-

in-chief that, the appellant called her over telephone and

asked her to come to the mango garden behind her house, on

June 5, 2019 at about 8:00 P.M. when no member of her

house was present at the house. He contrasts such evidence

with the contents of the written complaint of P.W.1. He

submits that in the written complaint of the P.W.1, being

Exhibit-1, she stated that the appellant came to her house.

The appellant gave false enticement and threatened her. The

appellant forcibly took her to the mango orchard behind her

house, and thereafter forcibly ravished her. He submits that

this is a major contradiction.

8. Learned Advocate appearing for the appellant refers to the

other portion of the evidence of P.W.1. He submits that P.W.1

stated that she came back to her house after the incident and

informed the matter to her uncle and aunty. He submits that

the uncle named in the evidence of P.W.1 was examined as

P.W.3. He refers to the evidence of P.W.3 and submits that

P.W.3 does not claim that P.W.1 told him anything about the

incident. He submits that this is the second contradiction in

the evidence led at the trial. The aunty of P.W. 1 was not

examined by the prosecution at the trial.

9. Learned Advocate appearing for the appellant draws the

attention of the Court to the evidence of P.W.1 in cross-

examination. He submits that, in cross-examination of P.W.1

stated that, she did not notice that her wearing apparels was

torn or not on that date. The surface of the garden was rough.

She tried her level best to resist the appellant from committing

the office against her. She sustained injuries in her legs,

hands and back. He refers to the medical examination report

of P.W.1, which is Exhibit-3. He submits that the doctor did

not find any external injury on the body of the P.W.1 at the

time of the chemical examination. He refers to the evidence of

the doctor being P.W.8. He submits that even in the

deposition of P.W.8 at the trial, the doctor did not speak of any

injury being suffered by the victim.

10. Learned Advocate appearing for the appellant draws the

attention of the Court to the deposition of the elder cousin

brother of the victim being P.W.5. He submits that the

evidence given by P.W.5 is hearsay. He submits that P.W.5

claims that P.W.5 heard about the incident from others.

Therefore, the evidence of P.W.5 should be discarded.

11. Learned Advocate appearing for the appellant submits

that prosecution failed to establish the date of the incident. In

the written complaint, being Exhibit-1, the victim claimed that

there were two dates on which the incidents occurred. In her

deposition at the trial the victim as P.W.1 stated that the date

of the incident was June 5, 2019. In such circumstances, he

submits in view of the discrepancy in the evidence placed

before the trial court, the learned Judge erred in convicting the

appellant and sentencing the appellant.

12. Learned Advocate appearing for the State submits that

the age of the victim stands established by the birth certificate

of the victim which is Exhibit-4. He submits that the victim

was a minor at the time of the incident.

13. Learned Advocate appearing for the State draws the

attention of the Court to the evidence of P.W.5. He submits

that it is established by evidence that the appellant used to

disturb the victim. He refers to the medical report of the

victim. He submits that penetrative sexual assault was

established by the medical examination report of the victim

being Exhibit-3. He refers to the evidence of the doctor being

P.W.8. From such evidence it is also established that there

was penetrative sexual assault on the victim. Therefore,

according to him, the appellant was rightly found guilty of the

offence charged and was rightly sentenced. He submits that

there is no infirmity in the impugned judgment of conviction

and the order of sentence calling for interference of the High

Court.

14. The date of birth of the victim is established by Exhibit-4

which is the birth certificate of the victim. The date of birth of

the victim is January 9, 2005. The date of the incident alleged

in the police complaint being Exhibit-1 is June 5, 2019.

Therefore, as on the date of the incident, the victim was a

minor.

15. The police complaint being Exhibit-1 speaks of forcible

sexual assault on the victim. Exhibit-1 was lodged by the

victim herself. She implicates the appellant in her written

complaint.

16. The victim was examined by the medical doctor on June

6, 2019. The medical examination report is Exhibit-3.

Exhibit-3 records that the victim confided in the doctor that

there was an affair between her and the appellant. The

medical examination report of the victim being Exhibit 3 states

that there was no external injury on the body of the victim.

17. In her statement recorded under Section 164 of the Code

of Criminal Procedure which is Exhibit-2 and which was

recorded on June 10, 2019, the victim states that the

appellant took her forcibly to the place of occurrence and

ravished her. The victim as P.W. 1 makes the same claim in

her disposition at the trial as made in the statement recorded

under Section 164 of the Criminal Procedure Code.

18. There are discrepancies in the version of the incident

occurring as given by the victim herself. She claims that there

were two incidents of May 27, 2019 and June 5, 2019. Such

claim appears from Exhibit-3 which is the medical

examination report. However, the case of the prosecution is

limited to one of the incidents only, that is, June 5, 2019.

19. With regard to the incident of June 5, 2019, the versions

of the victim are also varied. P.W. 1 also makes different

claims as to her relationship with the appellant at different

points of time.

20. One of the versions of the incident of June 5, 2019

appears from the written complaint lodged with the police

which is Exhibit-1. In Exhibit-1, she claims that the appellant

came to her house at about 8 P.M. when nobody was present

in her house. The appellant gave her false enticement and

threatened her, forcibly took her to the mango orchard

situated behind the house and forcibly ravished her.

21. The second version of the incident of the same day is

given by her before the doctor examining her on June 6, 2019

which is recorded in the medical examination report being

Exhibit-3. There she says that there was an affair between her

and the appellant. She speaks of two incidents, one happened

on May 27, 2019 and the other on June 5, 2019. She does not

speak of the appellant forcibly taking her out and ravishing

her before the Doctor examining her.

22. In her statement recorded under Section 164 of the Code

of Criminal Procedure on June 10, 2019 which is Exhibit-2,

she claims that there was a brother-sister relationship

between her and the appellant. She was called by the

appellant to meet him behind her house where she was

ravished forcibly by the appellant.

23. In her evidence before the trial court as P.W.1, she claims

that the appellant called her over telephone and asked her to

come to the mango orchard situated behind her house. She

claimed that the appellant threatened her while he called her.

Thereafter, the victim went to the mango orchard when the

appellant forcibly ravished her.

24. Victim speaks of an affair between her and the appellant

in the medical examination report being Exhibit-3. She

speaks of a brother-sister relationship with the accused in her

statement recorded under Section 164 of the Criminal

Procedure Code and the accused forcibly ravishing her in

Exhibit-1 and in her deposition as P.W.1.

25. In cross-examination P.W. 1 stated that she suffered

external injuries on her legs, hands and back on the date of

the incident being June 5, 2019 at the instance of the

appellant. Such claim in the cross-examination is belied by

the medical examination report being Exhibit 3 of the P.W.1.

Exhibit 3 does not speak of any external injury on the body of

P.W. 1. It is also belied by the evidence of the Investigating

Officer being P.W. 10 who stated in cross-examination that

P.W. 8 answered his query about injuries by saying that no

external injury was found on the body of P.W. 1.

26. P.W. 1 stated in her complaint to the police being Exhibit

1 that she confided about the incident to the father which in

her deposition she stated that she told her uncle and aunt

about the incident on her return.

27. P.W. 2 did not record any statement before the Police

during investigation. In Court, at the trial, P.W. 2 stated that,

he returned home at 10 O'clock at night on the date of the

incident. He called the name of his daughter, P.W 1 and

knocked on the door. Then he broke the door and did not find

P.W. 1 inside. He found the fencing of the room made of the

jute stick broken. P.W. 10 who was the Investigating Officer

stated in course of investigation that, he did not find any

broken door in the house of the victim girl or broken fencing.

28. There are discrepancies between the evidence of P.W. 2

who is the father of the victim and P.W. 10 who was the

Investigating Officer. In his deposition P.W. 2 claimed that he

went to the police station and informed the police that her

daughter was missing after he returned to his house at 10

O'clock at night and did not find his daughter. He claimed

that the police arrived to his house prior to his daughter

returned. In his evidence, P.W. 10 stated that he was the

Inspector-in-Charge at the relevant point of time. The police

did not receive any information prior to lodgment of the FIR on

June 6, 2019. He did not visit the place of occurrence prior to

June 6, 2019.

29. The Investigating Officer, P.W. 10, prepared rough sketch

map of the place of occurrence along with index, containing

two pages which was annexed as Exhibit 7. The rough sketch

map of the place of occurrence being Exhibit 7 shows that, the

house of the victim was approximately 80 meters away from

the place of occurrence while the house of the neighbour Sunil

Mondal was approximately 100 meters away. Prosecution did

not lead any evidence at the trial that, the house of Sunil

Mondal was also empty at the time of the incident.

Prosecution alleged the use of force by the appellant during

the incident with the victim suffering injuries on her legs,

hands and back. There is a house of Sunil Mondal within 100

meters of the place of occurrence. Yet prosecution did not

produce any witness at the trial who claimed to hear protest or

any of help from the victim.

30. Apart from the claim of P.W. 1 there is no other witness or

evidence placing the appellant at the place of occurrence at

the time and day alleged on his statement recorded under

Section 313 of the Criminal Procedure Code, the appellant

stated that the evidence of P.W. 1 regarding his involvement

was false.

31. Learned Judge while dealing with the aspect of rupture

of the hymen held in the judgment of conviction that, absence

of injuries on the victim does not lead to the inference that the

victim was making a false statement, when the evidence of the

doctor was that there was a rupture of the hymen.

32. With the deepest of respect, we are unable to agree with

such conclusion arrived at by the learned trial Judge. We are

not unmindful of the proposition of law that, the evidence of

the prosecutrix is more reliable than that of an injured

witness. A conviction can be founded on the testimony of a

prosecutrix alone where her testimony inspires confidence and

is found to be reliable. Taking the evidence of the prosecution

at the highest, the rupture on the hymen was on June 5,

2019, if not earlier, on May 27, 2019. Assuming that the

incident actually took place on June 5, 2019 it was coupled

with the victim suffering external injuries in accordance with

her claim. The incident occurred at 8:30 PM on June 5, 2019

at a distance of 80 meters from her house. Her father returned

to the house at 10 P.M. She returned at 12:30 PM. She was

examined by the Doctor on June 6, 2019. The Doctor did not

find any injuries on her.

33. The rupture on the hymen is claimed to occur on June 5,

2019 as per the statement of P.W. 1. It happened due to the

appellant forcefully ravishing her. There is no injury mark on

the body of the victim corroborating such statement,

particularly, when she was examined the following day on

June 6, 2019. There is no medical evidence in Exhibit 3

corroborating the claim of the victim as P.W. 1 that she

suffered injuries on her legs, hands and back. In fact, the

medical examination report which was prepared within a day

of the incident does not speak of any injuries. In absence of

such medical evidence corroborating the statement of the

victim and particularly the evidence that the prosecution

adduced at the trial, we are unable to concur with the

conclusion of the learned Trial Judge that the appellant needs

to be convicted for the rupture of hymen of the victim as noted

in the medical report of the victim being Exhibit 3.

34. The prosecution needs to prove its case beyond

reasonable doubts. A reasonable doubt is understood to be

one which is not imaginary, trival or merely a possible doubt

but growing out of the evidence of the case. A fair doubt based

on reason and common sense is considered as a reasonable

doubt. In the facts and circumstances of the present case, the

timeline of the occurrence of the incident, timeline of the post

occurrence events, absence of corroborative medical evidence

and the location of the place of occurrence raises justifiable

and fair doubts emanating out of the evidence on record.

According to P.W. 1 the incident occurred at 8:30 PM when no

one was at her house. She was forcibly taken away to the

mango garden behind her house which Exhibit 7 shows is

approximately 80 meters from her house. She claims to suffer

injuries on her legs, hands and back of which such claim is

not corroborated by the medical examination report prepared

the following day of the incident. P.W. 2 claims that he

returned home at 10:00 PM. P.W. 3 claimed that the victim

returned at 12:30 AM at the night. P.W. 5 claims that there

were 15/20 neighbours at 10:30 PM at the house when he

returned. The place of occurrence is 80 meters from the house

of the victim and 100 meters from the house of another

neighbour. None of the prosecution witnesses nor the

neighbour heard any cry for help or shouts of distress from

the victim for the period from 8:30 PM till her return at 12:30

AM at night. Her return and the time taken for her return

from the place of occurrence remains unexplained. P.W. 1 did

not claim in her evidence that she was held back at the place

of occurrence from 8:30 PM to 12:30 AM. by the appellant.

35. In our view, the discrepancies and lacunae in the

evidence raises reasonable doubts. The prosecution not being

able to prove the case beyond reasonable doubt, we set aside

the judgement of conviction dated January 14, 2021 and order

of sentence dated January 15, 2021 passed by the learned

Trial Judge.

36. The appellant is acquitted from all the charges levelled

against him.

37. The appellant is in jail. The appellant be released

forthwith subject to the appellant furnishing a bond for six

months in terms of Section 437A of the Code of Criminal

Procedure to the satisfaction of the learned Chief Judicial

Magistrate, Nadia.

38. A copy of the judgment and order along with the trial

Court records be remitted to the trial Court forthwith.

39. CRA 26 of 2021 is allowed.

40. In view of the disposal of the appeal, CRAN 1 of 2021

stands disposed of accordingly.

41. Photostat certified copy of this judgment, if applied for,

be given to the parties on priority basis on compliance of all

formalities.

(Debangsu Basak, J.)

42. I agree.

(Bibhas Ranjan De, J.)