Gopal @ Manu Das vs The State Of West Bengal
2022 Latest Caselaw 4757 Cal

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IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE

Before: Hon'ble Justice Sugato Majumdar

CRA 169 of 2016 With

IA No: CRAN/1/2021

Gopal @ Manu Das Vs.

                        The State of West Bengal


For the Appellant            :      Mr. Debabrata Acharyya,
                                    Mr. Sital Samanta.



For the State               :       Mr. Saswata Gopal Mukherjee, Ld. Public
                                    Prosecutor,
                                    Mr. Sandip Chakraborty,
                                    Mr. Narayan Prasad Agarwala,
                                    Mr. Pratick Bose.



Hearing concluded on            :   19.07.2022

Judgment on                     :   26.07.2022


Sugato Majumdar, J.:-

The instant appeal is filed against judgment of conviction and order of

sentence dated 29/01/2016 passed by the Additional District and Sessions

Judge, Second Court, Contai, Purba Medinipur in Sessions Trial No.

02/September/2012 convicting the appellant under section 354 of the Indian

Penal Code.

Genesis of the case is the written complaint made by Nilkamal Mondal,

the father of the victim girl wherein it was stated that on 25/02/2012 in the

evening at about 5:30 P.M. the appellant took his minor daughter to a nearby

field on the pretext of giving her some beans and raped her forcefully. At Page |2

night, after dinner when the victim went to bed with her mother, she felt

unbearable pain in her genital. When her mother interrogated her she

disclosed the incident to her. A written complaint was lodged which was

received in Egra Police Station on 26/02/2012 at 17:05 hours. On the basis of

the written complaint formal F.I.R. was drawn up and Egra Police Case No. 33

of 2012 dated 26/02/2012 under Section 376 (2) (f) of I.P.C. was initiated.

The Investigating Officer visited the place of occurrence, prepared

rough sketch map, examined the witnesses and recorded their statements

under section 161 of the Code of Criminal Procedure, got the victim medically

examined; he also got the accused, the appellant medically examined.

Statement of the victim was also recorded under section 164 of the Code of

Criminal Procedure, 1973. On completion of investigation, charge sheet was

filed. Charge was framed under Section 376 (2) (f) of the Indian Penal Code

which was read over and explained the appellant to which he pleaded not

guilty and claimed to be tried. Trial followed thereafter.

In course of trail eight witnesses were examined. The father of the

victim, being the de-facto complainant was examined as P.W. 1; the mother of

the victim as P.W. 4 and the victim was examined as P.W. 5. There were other

witnesses including the doctors who examined the victim and the appellant as

well as the Investigating Officer.

The Trial Court in terms of the impugned judgment held the appellant

guilty of offence under Section 354 of the Indian Penal Code and convicted

him and passed order of sentence to suffer rigorous imprisonment for two

years and pay a fine of Rs. 4000/- in default to suffer further imprisonment for

six months.

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On being aggrieved and dissatisfied with impugned judgment and

order of sentence, the instant appeal is preferred,

Mr. Samanta appearing for the appellant submitted that there is

unexplained delay in lodging written complaint. For such delay

creditworthiness of the written complaint becomes questionable.

Mr. Samanta further submitted that writer of the written complaint is not

examined as a witness which is another reason to doubt the allegations

contained therein.

Next point argued by Mr. Samanta is that there existed enmity and

animosity between the family of the victim and that of the appellant. This

appears from the statement of P.W. 2, namely, the de-facto complainant and

P.W. 3 being the mother of the victim. He also invited attention to the cross-

examination part of the victim where she stated that there were quarrels in

between her mother and the mother of the appellant from time to time.

Suggestion was also given to the victim that her family members used to bring

grocery articles from the shop of the appellant on credit and there was huge

amount due and payable by the father of victim and that the appellant was not

agreeable to give any grocery article on credit which led to animosity and

subsequent false implication of the appellant in the instant criminal case.

Next point argued by Mr. Samanta is that the place of occurrence is not

mentioned in the sketch map (Ext. 6) which is fatal for the prosecution case.

The place of occurrence is mentioned that "doba" in the rough sketch map. No

field of peas is mentioned in the said sketch map. The Investigating Officer

being P.W. 6 was cross-examined in course of which he stated that he had not

mentioned in the index of rough sketch map plot number and the owner of

land. He also did not mention that the place of occurrence is a field of green Page |4

peas. The place of occurrence is described as "doba" whereas the Trial Court

held that the place of occurrence is a field of green peas. Thus, according to

Mr. Samanta, the finding of the Trial Court is not based on evidence which is a

serious error in the judgment. Mr. Samanta relied upon the ratio of Shingara

Singh versus the State of Haryana and Another [2005 SCC (Cri) 870]; State of

M.P. versus Ghudan [2005 SCC (Cri) 801] in support of his argument and to

elaborate the point that omission to mention the place of occurrence in the

sketch map makes the prosecution case doubtful.

Mr. Samanta also argued that in course of examination of the appellant

under Section 313 of the Code of Criminal Procedure, 1973, the Trial Judge put

eight questions. All these eight questions relate to the testimonies of P.Ws. 1,

2, 3, 4 and 5. The Trial Judge did not put any questions with reference to other

three witnesses, namely, P.W. 6 - the Investigating Officer, P.W. 7 - the Doctor,

who examined the appellant and P.W. 8 - the Doctor who examined the

victim. In doing so, according to him, the Trial Judge completely ignored the

underlying principle of Section 313 of the Code of Criminal Procedure. Since

these pieces of evidences were not put to the appellant, he suffered valuable

right to defend himself and to explain those incriminating elements. The Trial

Judge should not rely on incriminating evidence to convict the appellant

which were not put to the appellant in course of examination under section

313 of the Code of Criminal Procedure, 1973. According to him, there is a

serious flaw in the impugned judgment, therefore. Mr. Samanta refers to

Nirmal Pasi and Another versus State of Bihar [J.T. 2022 (6) SC 28], Ramvir

Yadav - versus - State of Bihar [(2009) 6 Supreme Court Cases 596.]; Shaikh

Maqsood versus State of Maharastra [(2009) 6 Supreme Court Cases 583].

It was argued by Mr. Samanta that the statement of the victim is silent

on the nail mark found in her private parts although report of medical Page |5

examination mentioned such nail marks. According to him, the prosecution

developed a story which was not brought before the Court scientifically in

terms of the Code of Criminal Procedure, 1973.

In nutshell, Mr. Samanata argued that there are serious flaws in the

finding of the Trial Court for which the judgment of conviction and order of

sentenced should be set aside.

Mr. Agarwala appearing for the State submitted that delay is

sufficiently explained by the victim. It appears from the evidence of the victim

that initially she was put on fear by the appellant for which she did not

disclose the incident to her mother. But in night when she felt pain she stated

the matter to her mother and on the very next date the written complaint was

lodged. In fact, according to him, there was no delay at all.

Next point argued by Mr. Agarwala is that the word "field" is mentioned

in the charge itself. Omission to mention place of occurrence in the sketch

map is a minor discrepancy which, in no way, vitiate the trial.

Next point argued by Mr. Agarwala is that charge was considered under

Section 376 of the Indian Penal Code but the appellant convicted under

Section 354 of the Code of Criminal Procedure for which medical evidence not

so vital. Even if the Trial Court failed to mention the incriminating elements

of P.Ws. 6, 7 and 8 before the accused in course of examination under Section

313 of the Code of Criminal Procedure, such a failure was neither fatal nor

caused any prejudice to the appellant vitiating the findings of the Trial Court.

Next point argued by Mr. Agarwala is that in course of examination

under Section 313 of the Code of Criminal Procedure, the appellant stated that

he would give evidence in the case which he did not. Conduct of the appellant Page |6

shows that he is not in a position to adduce evidence to establish his innocence

in the case.

In nutshell, Mr. Agarwala supported the impugned judgment and order

of sentence.

In absence of any eye witness, trustworthiness and credibility of the

testimony of the victim girl is to be looked into. In the written complaint, it is

mentioned that the incident took place on 25/02/2012 in the evening at 05:30

P.M. The appellant took the victim to the field in the pretext of giving beans

and forcefully raped her. The victim stated in her evidence that the appellant

threatened her not to disclose the incident to the others. But she disclosed the

incident to her mother when she felt pain in her genital at the time of going to

bed. On the very next date namely on 26/02/2012 the matter was informed

to the police station in terms of the written complaint which was lodged in

Egra Police Station at about 17:05 hours. So the written complaint was lodged

within twenty four hours of the incident. There cannot be said to be any delay

in lodging the written complaint in this regard. I agree with the submission of

Mr. Agarwala in this regard.

Although Mr. Samanta argued that on account of non-examination of the

scribe as witness makes the prosecution case doubtful, it is evident from

examination and cross-examination of the de-facto complainant being P.W.1

that the written complaint (Ext.1) was admitted in evidence without any

objection and that in course of cross-examination P.W. 1 explained in details in

what circumstances the written complaint was written. No question was put

to P.W. 1 challenging the veracity of the written complaint. Therefore, at this

stage the same cannot be challenged on the ground of failure to examine the

scribe as witness.

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The victim stated in her evidence that she was playing in a field a little

away from her home. At that time the appellant asked her to come with him

alluring with chocolate and green peas. She stated that time it was about to be

a night so she won't go. Although she did not agree initially, the appellant

took her to a dried pond. She stated further that in the field there was a tree

and by the side of the tree there was a dried pond. The appellant took her to

the dried pond and opened her pant and touched his genital with her private

parts and inserted index finger into her genital. Then the appellant gave some

green peas to her. She was cross-examined on the location of the field. She

stated that the field of green peas is not visible either from their house or from

that of the appellant or from the road. It is one thing to say that the field is not

visible from their home and it is altogether another thing to say that there is no

field at all. No question was put in cross-examination challenging the

existence of field either to the victim or to other witnesses. There is no

suggestion that there was no field at all. Statement of the victim explained

sufficiently that there was a field in which there was a tree beside a dried

pond. The appellant took her to the dried pond and opened her pant and

touched his genital organ with her private part. There is no ambiguity in

describing the place of occurrence. In his examination under Section 313 of

the Code of Criminal Procedure appellant never stated that there was no field

or denied the location or place of occurrence. In Shingara Singh's Case

(supra), Supreme Court of India considered issue of omission in rough sketch

map and held that although removal of bricks from wall was not shown in the

site plan. The Investigating Officer stated before the Court that he had noted

the fact that some of the bricks were removed from the wall in that factual

context; the Supreme Court of India held that omission in the site plan could

not prejudice in the case of defense. However, the factual background of the

case is different from the present one. In State of M.P. versus Ghudan's case Page |8

(supra) the Supreme Court of India observed that there was no mention in the

site plan about existence of tube light by virtue of which the accused was

stated to have been identified. The Supreme Court held that benefit of doubt

would go in favour of the accused. In that case the Supreme Court of India

found serious discrepancies in evidence adduced. Both the cases were

decided on different factual matrix. The Investigating Officer being P.W. 6

stated in cross-examination that he did not mention in sketch map (Ext.6) the

place of occurrence as a field of green peas but, however, it shows that there

was a "Doba". This is in consonance with the evidence of the victim.

Therefore, omission to mention field in the sketch map, therefore, is not fatal

to the case. Argument of Mr. Samanta is not acceptable, therefore.

P.W. 1 stated in cross-examination that the families of the appellant

were not in good terms with their neighbors and that mother of the appellant

is his aunt. P.W. 2, the maternal grand-father of the victim, in cross-

examination, stated that relationship between the appellant and the parents of

the victim were good. P.W. 3 mother of the victim stated that they are existed

animosity and strained relation between the families of the appellant and that

of the victim but she also stated that at the time of incident there was no

enmity and that she had good relation with her neighbors. Therefore, the

defense of false implication of the accused on account of animosity does not

hold much ground.

Statement of the victim girl was recorded under section 164 of the Code

of Criminal Procedure, 1973. Although the signatures of the victim girl in the

statement were marked, the statement itself was not marked as an exhibit.

The victim girl, being the sole witness of the incident stated the incident in

details in deposition. In cross-examination her version was not shaken or

debilitated. Her statements recorded under section 164 of the Code of Page |9

Criminal Procedure, 1973 are consistent with her deposition made before the

court. There is consistent in statement of witnesses as to what the victim

subsequently complained of. The victim did no state that there was a

penetration of penis but the accused inserted finger into her genital. P.W. 3

being the mother of the victim stated in evidence that she washed and

massaged by oil the private parts of the victim to alleviate her pain. The

victim was medically examined on the next day that is on 26/02/2012.

Medical examination report (Ext. 7) shows the nail mark on the right thigh of

the victim. The victim mentioned nothing about nails scratch mark as stated

in the medical report but her mother (P.W.3) mentioned in her deposition that

she noticed a nail mark on her thigh. The Medical Officer being P.W. 8 stated

that such scratch mark may be caused by friendly scratching. It is not in

evidence of anybody that the questioned nail mark was caused in course of the

offence committed. It is not in anyone's evidence that nail mark was caused in

course of the perpetrated offence. It might have been caused by scratching of

friendly hand or otherwise. In absence of anything more, such nail marks

cannot be taken as corroboration. Omission to mention nail mark by the victim

cannot be said to render her otherwise acceptable evidence as untrustworthy.

It cannot be said that omission to mention nail mark made the whole

prosecution case improbable or doubtful. Even though the victim failed to

state in her evidence that there was a nail mark, that omission does not make

her version otherwise improbable. In Bharwada Bhoginbhai Hirjibhai vs.

State of Gujarat, (1983) 3 SCC 217 the Supreme Court of India observed:

"6. Discrepancies which do not go to the root of the matter and

shake the basic version of the witnesses therefore cannot be annexed

with undue importance. More so when the all important P a g e | 10

"probabilities factor" echoes in favour of the version narrated by the

witnesses."

In catena of subsequent decisions the same principle was reiterated. If

the evidence of victim of rape is reliable, trustworthy and inspire confidence to

rely upon, minor omissions of discrepancies can well be overlooked provided

that the "probability factor" is not diluted. Mere fact that a nail mark can be

caused by scratching of a friendly hand or that the victim failed to mention

any nail mark on her thigh do not render her otherwise consistent and

trustworthy evidence. Brushing aside a reliable testimony of an eight years

old girl on the ground of false implication of the appellant because of

suspected acrimonious relationship between two families is a serious

miscarriage of justice. Why an eight years old girl would make false allegation

on such a sensitive issue of outraging her modesty. There is no reason to

suspect her version.

Much stress was laid by the learned Counsel for the appellant on the fact

that failure to place the evidences of P.W. 6 - 8 is a serious flaw of the Trial

Judge causing prejudice to the appellant as well as violation of principles of

natural justice, undermining the basic principle enshrined in section 313 of the

Code of Criminal Procedure, 1973. In Nirmal Pasi's case (supra) incriminating

piece of evidence was identification of the accused person by the witnesses.

Identification of the accused persons in court was preceded by identification in

test identification parade, held during investigation was not at all put before

the accused person in their examination under Section 313 of the Code of

Criminal Procedure. In that case considering long pendency of the case the

accused were acquitted. In Shaikh Maqsood's case (supra) no question was

put to the accused relating to his authorship of the crime. On that ground the

judgment of conviction was set aside. In Ranvir Yadav's case (supra) no P a g e | 11

incriminating material was put before the accused person while examining him

under section 313 of the Code of Criminal Procedure. On that ground

conviction was set aside.

The Trial Judge did not put any question to the appellant on the nail

mark noticed on the thigh of the victim or placed the evidences of P.W. 6,

P.W. 7 and P.W. 8 before him. P.W. 3, the mother of the victim stated in her

evidence that she noticed such nail mark there. She was cross-examined on

this evidence and suggestion was given to her that she did not notice the nail

mark. In course of examination of the appellant under section 313 of the Code

of Criminal Procedure, 1973 the statements of witnesses namely P.W - 1 to

P.W. - 5 on commission of the offence by him were put to him to which he

replied that allegations are false. It shows he is fully aware of the allegations

raised against him. Nail mark is not the sole evidence on which the finding of

the trial court was based. P.W. 8 namely the doctor who examined the victim

was cross examined at length and he stated in course of cross examination

that prognosis of the patient was also not mentioned in the report. In such

circumstances omission to place the evidence of P.W. 8 cannot be said to cause

any prejudice to the appellant. Mr. Samanta, in course of argument submitted

that such omission caused prejudice to the appellant but could not explain

what prejudice was caused to the appellant.

It is well settled principle of law that mere omission on the part of the

court to put any incriminating circumstances to the accused would not vitiate

the trial by ipso facto unless some prejudice is caused to the accused for such

omissions. In catena of decisions this principle was reiterated by the Supreme

Court of India. A three-Judge Bench of the Supreme Court India in Wasim

Khan vs. State of U.P. [AIR 1956 SC 400] and Bhoor Singh vs. State of

Punjab [(1974) 4 SCC 754] considered the issue in terms of section 342 of the P a g e | 12

old Cr.P.C (corresponding to section 313 of the present Code) and held that

every error or omission in compliance with the provisions of Section 342 does

not necessarily vitiate trial. The accused must show that some prejudice has

been caused or was likely to have been caused to him. The principle was

reiterated in catena of decisions. In Suresh Chandra Bahri vs. State of Bihar,

1995 Supp (1) SCC 80, while negating the plea that omission of the trial court

to put incriminating circumstances to the accused while examining under

section 313 of the Code of Criminal Procedure, 1973 prejudiced him the

Supreme Court of India observed that it would not be enough for the accused

to show that he has not been questioned or examined on a particular

circumstance but he must also show that such non-examination has actually

and materially prejudiced him and has resulted in failure of justice. It was

further observed that the counsel appearing for the appellants was unable to

place before the Supreme Court of India to what in fact was the real prejudice

caused to the appellants by omission to question the accused/appellant

Suresh Bahri on the point of his motive for the crime. No material was also

placed to show as to what and in what manner the prejudice, if any, was

caused to the appellants or any of them. In Santosh Kumar Singh vs. State,

[(2010) 9 SCC 747] one of the issue was whether omission to put to the

accused during examination under section 313 of the Code, evidence of

helmet and the ligature marks on the neck which were put to the doctor

vitiated the trial or not. It was held by the Supreme Court of India that the

defense counsel had raised comprehensive arguments before the trial court

and also before the High Court and the defense was, therefore, alive to the

circumstances against the appellant and that no prejudice or miscarriage of

justice had been occasioned. In Alister Anthony Pareira v. State of

Maharashtra [(2012) 2 SCC 648 chemical analyser's report as well as evidence

of doctor were not put to the accused was held that no prejudice was caused.

P a g e | 13

In Nar Singh vs. State of Haryana, (2015) 1 SCC 496 the Supreme Court of

India examined the issue at length referring to earlier authorities on this point.

It was reiterated that the trial court is required to act in accordance with the

mandatory provisions of Section 313 Cr.P.C, failure on the part of the trial

court to comply with the mandate of the law, in our view, cannot

automatically enure to the benefit of the accused. Any omission on the part of

the court to question the accused on any incriminating circumstance would

not ipso facto vitiate the trial, unless some material prejudice is shown to have

been caused to the accused. It was further observed:

"20. The question whether a trial is vitiated or not depends upon

the degree of the error and the accused must show that non-

compliance with Section 313 Cr.P.C has materially prejudiced him

or is likely to cause prejudice to him. Merely because of defective

questioning under Section 313 Cr.P.C, it cannot be inferred that

any prejudice had been caused to the accused, even assuming that

some incriminating circumstances in the prosecution case had

been left out. When prejudice to the accused is alleged, it has to be

shown that the accused has suffered some disability or detriment

in relation to the safeguard given to him under Section 313 Cr.P.C.

Such prejudice should also demonstrate that it has occasioned

failure of justice to the accused. The burden is upon the accused

to prove that prejudice has been caused to him or in the facts and

circumstances of the case, such prejudice may be implicit and the

Court may draw an inference of such prejudice. The facts of each

case have to be examined to determine whether actually any

prejudice has been caused to the appellant due to omission of

some incriminating circumstances being put to the accused."

P a g e | 14

In view of the settled principles of law and factual aspects of the present

case, stated above, the argument of Mr. Samanta on this point does not

impress much.

On perusal of the materials on record and the impugned judgment it is

evident that the trial court passed the impugned judgment on proper

appreciation of evidence and this court concur with the findings of the trial

court as well as the sentence.

The impugned judgment of conviction and order of sentence invite no

interference and stand upheld.

In nutshell, the instant appeal fails.

No order of cost.

The appeal is accordingly disposed of along with pending application.

(Sugato Majumdar, J.)