Parimal Guha vs The State Of West Bengal
2022 Latest Caselaw 6874 Cal

           IN THE HIGH COURT AT CALCUTTA
                    Criminal Application
                       Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
                And
The Hon'ble Justice Md. Shabbar Rashidi
                CRA 136 of 2020
                      With
    CRAN 1 OF 2020 (Old No. CRAN 1185 of 2020)

                       Parimal Guha

                            Versus

                The State of West Bengal




For the appellant    : Ms. Sreeparna Das, Adv.

For the State        : Mr. Partha Pratim Das, Adv.
                     : Ms. Manasi Roy, Adv.

Heard on             : September 12, 2022

Judgement on         : September 23, 2022




                        1
 Md. Shabbar Rashidi, J.:



       1.

This appeal is directed against the judgment and

order of conviction dated 08.08.2019 passed by the

learned 1st Additional District and Sessions Judge,

Sealdah, 24-Parganas (South) in Sessions Trial No. 2 (3)

2018.

2. Factual background of the case is that on

01.02.2014, one Badal Patra lodged a complaint with

Tangra Police Station to the effect that he had two

daughters aged 27 years and 16 years. His elder

daughter was not so clever as she ought to be in the age

group, and was not able to work properly. Some 10/12

days prior to the lodging of complaint, his elder daughter,

complained cough and cold and abdomen pain. She was

taken to Chittaranjan Hospital where she was advised

ultrasonography test. Later, ultrasonography test was

conducted and the test report suggested her pregnancy of

two months. The report was also shown to the doctor at

Chittaranjan Hospital who also confirmed the pregnancy.

Upon enquiry, the daughter of the complainant disclosed

that one uncle of the complainant, namely Parimal, who

earlier used to live in the house of complainant had

repeated physical relations with complainant's daughter

and threatened her not to disclose such relation.

3. It is further case of the complainant that on

December 02, 2013, the said Parimal Guha, visited the

house of complainant on the occasion of Kali Puja. The

daughter of the complainant disclosed before him that

Parimal Guha committed rape upon her against her will

on the night intervening December 3, 2013 and

December 4, 2013. On the basis of such written

complaint, Tangra P.S. Case No. 22 dated 01.02.2014

under Section 376 (l) of Indian Penal Code was started

against Parimal Guha.

4. Police took up investigation and on completion of

investigation, submitted charge-sheet under Section 376

(2) (l) of the Indian Penal Code, 1860. Since the case was

exclusively triable by the Courts of Sessions, upon

appearance of the accused and after observing formalities

under the provisions of Section 207 of the Criminal

Procedure Code, the case was committed to the Court of

Sessions for trial.

5. In consideration of the materials available in the CD

and upon hearing the accused, charge under section

376(2) (m) of the Indian Penal Code was framed against

the accused appellant which was duly read over and

explained to him in Bengali to which the accused pleaded

not guilty and claimed to be tried. Accordingly, the

appellant stood trial for the offence punishable under

Section 376(2) (m) of the Indian Penal Code. In order to

substantiate the charges, as many as nine witnesses

were examined on behalf of the prosecution.

6. Upon conclusion of the trial and examining the

accused under Section 313 of the Code of Criminal

Procedure, the appellant was found guilty of the offence

punishable under section 376(2)(m) of the Indian Penal

Code and sentenced to undergo rigorous imprisonment

for life and to pay a fine of Rs. 200,000/-(Rupees Two

Lac) in default to undergo further rigorous imprisonment

for one year by the impugned order. With a view to prove,

the charge leveled against the accused/appellant, the

prosecution has examined nine witnesses in all.

7. The de facto complainant has deposed as PW1. He

has stated that in the year 2014 when menstruation

period was over, he took his elder daughter to

Purbanchal Nursing Home, Beliaghata for check-up

where she was declared pregnant. PW1 has also stated

that on query, his daughter disclosed the name of

present appellant responsible for her pregnancy. He went

to Tangra Police Station where his statement was

recorded by police and he put his signature thereon. He

has identified his signature on the written complaint

(Ext. 1). PW1 identified the appellant in the Court. He

has also proved his signature on the two documents i.e.

Seizure lists dated 03.02.2014 and 06.02.2014 (Ext. 2

and 3 respectively) and the Zimma Bond (Ext. 4).

8. The victim was cross-examined as PW2. She

identified the accused in Court. She further stated that

the accused Parimal Guha used to visit her house and

wanted dirty act with her. She used to be threatened for

restraining him. She has further stated that she shouted

upon which her father came and took steps against

Parimal Guha with the Police. PW2 also stated that she

informed her mother. She has also stated that the

accused used to call him when she went to toilet in the

night and he used to threaten her on refusal.

Subsequently, the accused committed the misdeed

removing her wearing apparel and touching her body.

She became pregnant. She also stated that to have

narrated the incident before the magistrate which was on

it (Ext. 5), she was also examined by the doctor at the

N.R.S. Hospital. She stated the incident to the doctor.

She also signed on the medical papers (Ext. 6). There

appears no cross-examination of the witness to the

defence. In her cross-examination, the witness was

confronted with suggestions denying her statement in the

examination-in-chief which were denied by PW2.

9. The mother of the victim deposed as PW3. She

stated that the appellant Pariml Guha has visiting terms

at her house and used to tease her daughter. One day,

Parimal wanted to cohabit with her daughter whereupon

her daughter raised alarm and husband of PW3 came

there. Thereafter, the matter was reported to police. She

also identified the accused in dock. This witness was also

not substantially cross-examined by the defence except

confronting her suggesting the statements made in her

examination-in-chief as false which was denied by PW3.

10. PW4 is the brother of the victim. He also identified

the accused in dock. He has stated that about 5/6 years

ago(from 2,3,19) sister complained of belly pain. She was

taken to Kankurgachi Seva Nursing Home which declared

her pregnancy. On enquiry, PW2 stated before the PW4

that Parimal Guha was the person who committed the

misdeed. In cross-examination, PW4 stated that his

submission was based on what he heard from Banti

patra.

11. PW5 did not support the case of the prosecution.

12. PW6 is the medical officer at N.R.S. Hospital. He

has stated that on 05.02.2014 he examined Parimal

Guha and found him capable of doing sexual intercourse

and his proved his report in this regard (Ext. 7).

13. PW7 is the medical officer of R.G. Kar Medical

College and hospital. She has stated that on

05.02.20143, she examined the victim and found No. 1.

Flabby breast, dark areonl, flushed nipple, No.2 internal

genital area--(i) labia majora thinned, darken,

proculation of thicken darken labia minor to the labia

major on full abduction of thighs. No injuries detected.

No. (ii) hymen fimbriated, evidence of old healed tear at

5,6 and 8 O' Clock position. No. (iii) vagina rugosities

diminish, capacious, dilated, admits the middle and

index finger of the under singed examiner easily with

movement in all direction. No injuries detected. No. (iv)

uterus palpable per abdomen quary up to umbilicus ----

referred to the department of gynecologies for gestation

and its age.

14. She further stated that in her opinion, there was

nothing to suggest that the victim girl was suffering from

any veneral disease. However, further opinion in this

regard could be given after receipt of the report of

preserved vaginal swap and smear. PW7 also opined that

pregnancy and gestational age thereto could be

confirmed from the departments of gynecology. This

witness further opined that the mental state of the victim

girl appearing to be retarded and confused and she

referred to departments of psychiatrist. PW7 proved the

report prepared by her (Ext. 6).

15. PW8 has stated that on 01.02.2014, while posting

at Tangra Police Station as sub-inspector of police, he

recorded the statement of one Badal Patra. After

recording, it was read over and exaplained to Badal Patra

whereupon he put his signature thereon.

16. PW8 proved the said submission Ext. 1/1.

Thereafter, Tangra Police Station case No. 22 dated

01.02.2014 under Section 376 (l) IPC was registered on

the basis of the statements and as per the directions of

O.C., Tangra Police Station. PW8 also filled up the formal

FIR (Ext. 8). He has further stated that in course of

investigation, he visited the place of occurrence, recorded

the statement of available witnesses under Section 161

Code of Criminal Procedure. He also seized the medical

documents in proper seizure list from the father of the

victim (Ext. 2/1). PW 8 also proved the medical

documents (Ext. 9 series). He also arranged for recording

the statement of the victim under Section 164 Code of

Criminal Procedure and arrested the accused. Owing to

his transfer, PW8 handed over the investigation of the

case to the officer-in-charge.

17. PW9 is the second IO. He has stated that on

25.03.2014, he received the charge of investigation of

Tangra Police Station case No. 22 dated 01.02.2014. In

course of investigation, he collected the bead head ticket.

After completion of investigation, PW9 submitted the

charge-sheet under Section 376 (2) (l) of the Indian Penal

Code against the accused Parimal Guha.

18. The appellant by filing the instant appeal has

sought to assail the impugned judgment and order of

conviction and sentenced on the ground that the Learned

Trial Court failed to consider the delay in lodging the FIR.

The appellant has also come up with a contention that

there are material contradictions in testimony of

prosecution witnesses, rendering its case highly doubtful.

19. As observed in catena of judgments, we are of

considered opinion that, there it is well settled that a

conviction can be based on the basis of the sole

testimony of the prosecutrix, if it is unimpeachable and

beyond reproach.

20. Legal principles do permit that the testimony of a

prosecutrix may be accepted without any corroboration.

She has to be placed on a higher stand than an injured

witness, but, when a court, on scrutiny of the evidence,

finds it difficult to accept the version of the prosecutrix,

because it is not irreprehensible, there is necessity for

search of such direct or circumstantial evidence which

would lend reliability to her testimony.

21. In the case at hand, the evidence of the prosecutrix

(PW2) goes to show that the appellant used to visit her

house and wanted to do dirty act with her. On her

disagreement she was threatened by the appellant

(accused Parimal Guha). Then she stated that on her

shouting, her father came and took steps against

appellant with the police. She also allegedly narrated the

incident to her mother. It was also stated by her (PW2)

that the accused used to call her while she used to go to

toilet in the night. On refusal, she used to be threatened

by the appellant. Subsequently, he committed the

misdeed by removing her wearing apparel and touching

her body. She also stated to have narrated the same story

in her statement recorded under section 164 of the

Criminal Procedure Code.

22. If we consider the evidence of the prosecuterix as

sacred, the statement appears to be not qualified by any

specific incident. Such statement gives an inference of

the commission of continuous acts committed over a

period of time by the accused. These facts, gets

corroboration from the statement of the father of the

victim i.e. the de-facto complainant, as recorded before

Tangra police station. He has stated in the said

statement that he was reported by her daughter that 7/8

years ago appellant used to reside in the house of victim

and during that period, he had repeated sexual

intercourse with the victim against her will and also

threatened the victim for not disclosing it to her family

members. However, the victim never complained of the

alleged misdeeds, during the said 7/8 years or thereafter,

when the threatening factors subsided. She never felt it

right to disclose the facts to the persons interested in her

well being or the appropriate authorities during the

mischief period or subsequent thereto.

23. Be that as it may, although, there is no mention of

the particular incident, in the statement of PW2 as to

actually on which date, the appellant succeeded in

committing the misdeed but, the present appeal has

originated from a particular set of incidents which is said

to have occurred in the night intervening December 3

and 4, 2013.

24. PW1, the de-facto complainant, in his deposition,

appears to have stood by his statement which was

recorded at Tangra Police Station and was treated as

written complaint. He stated that he first came to know

of the occurrence, when he took his daughter, to a

nursing home (Purbanchal Nursing Home, Beliaghata)

after her menstruation period was over, and she was

declared to be carrying. Upon such medical report, his

daughter was enquired whereupon she disclosed the

name of appellant as the person responsible for her

pregnancy. To its contrary, the victim (PW2) stated that

her father (PW1) came hearing her shouting and

thereafter, he took steps against the appellant at the

police station. She also stated to have disclosed the facts

to her mother and also before the Magistrate and the

doctor at NRS Hospital, who examined her. PW3 stated in

her deposition that one day Parimal wanted to cohabit

with the victim whereupon she raised alarm. On her

alarm husband of PW3 came and the matter was

reported to police. Such statements on the part of the

aforesaid prosecution witnesses, leaves an impression

that the matter instantly brought to the notice of police

just after the incident.

25. PW1 has stated in his written information that the

appellant, Parimal Guha, left residing at his house some

7/8 years ago whereas in PW2 in her statement recorded

under section 164 of the Criminal Procedure Code (Ext.

5) stated that he left her house on December 02, 2013.

Furthermore, prosecution witnesses have stated that the

appellant had visiting terms at the house of PW1. PW3

also stated that Parimal Guha, the appellant used to visit

her house and tease the victim. No evidence has been

adduced by the prosecution either to prove that the

appellant had visiting terms at the house of the victim or

he used to tease her.

26. According to the case made out by the prosecution,

the victim complained of cough, cold and belly pain for

which she was taken to a nursing home where she was

declared pregnant. PW1 in his deposition appears to have

deviated from his previous statement in writing (Ext.1/1)

this respect. In the written information it was stated that

he took his daughter to the nursing home when she was

suffering under cough, cold and belly pain. Similar

statement is forthcoming from the mouth of PW4, the

brother of victim. He was allegedly reported by PW2 that

she was reeling under cough, cold and belly pain, though

it was a hearsay statement. However, in his deposition,

PW1 stated that he took his daughter for medical

checkup after her menstruation period was over. The

story of cough, cold and belly pain appears to have been

given a go by while deposing before the court. PW2,

neither in her deposition before the trial court nor in her

statement recorded under section 164 of the Code of

Criminal Procedure, has testified the story of complain of

cough, cold and belly pain. Going to nursing home, on

the complain of cough, cold and belly pain or for medical

checkup and the witnesses arriving upon hearing the

shouting of the victim are altogether different stories.

Such contradictions, certainly, has a bearing on the

reliability of the prosecution witnesses resulting in a

negative impact on the veracity of the prosecution case.

27. Furthermore, if we believe in the story of visiting the

nursing home on the pretext of cough, cold and belly

pain or medical checkup, no explanation, whatsoever,

appears to have been offered by the prosecution as to

what prevented the victim from disclosing the alleged

misdeed by the appellant, to her parents and family

members. The threat looming over was already removed

then.

28. On the other hand, if we accept the story of the

arrival of father upon the alarm raised by the victim and

the victim reporting the incident to her mother, the

victim's alarm, in the circumstances, can be expected to

draw some intervention of local people in the

neighborhood over the hue and cry. No independent

witness has come forward to support the case of

prosecution. PW5, an independent witness from the

neighborhood, has been examined by the prosecution but

she has not supported its case. Even if we stretch our

imagination to consider that since the matter concerned

a lady and the family would normally opt to keep the

matter concealed, there appears no explanation as to

what prevented the victim's family from informing the

police instantly and made them wait for some days until

receipt of the medical report.

29. According to the story set out by the prosecution,

the appellant is said to have visited the house of the

victim on the occasion of Kali Puja, organized there and

the alleged incident of rape upon the victim was

committed in the night intervening December 03 and

December 04, 2013. Exhibit 9 series goes to show that

the victim was first examined at Calcutta National

Medical College and Hospital on January 20, 2014 i.e.

after about one and a half months of the incident. There

is no explanation, whatsoever, in the case made out by

the prosecution as to why the matter was not reported to

the police between December 4, 2013 and January 20,

2014 when the prosecution witnesses have stated that

the victim raised an alarm during the incident. There is

also nothing in the evidence that the alleged alarm was

raised by the victim when the accused/appellant was

attempting to commit rape upon her or if it was after the

rape was committed. This proposition becomes relevant

in the case of the commission of an offence under Section

376 of the Indian Penal Code where consent or will of the

victim of the offence is very much material.

30. No evidence has been adduced on behalf of the

prosecution to establish that there was a Kali Puja

organised in the house of the victim and that the

appellant was an invitee therein. These facts were

required to be proved by the prosecution to substantiate

the occasion and opportunity for the appellant to commit

the offence.

31. The victim has been portrayed as a lady of unsound

mind for which the appellant was charged with an

offence punishable under section 376 (2)(m) of the Indian

Penal Code. However, the factum of unsoundness of her

mind or mental retardness has not been proved by the

prosecution. To the contrary, the purport of her

deposition before the court or statement recorded under

section 164 of the Code of Criminal Procedure does not

support the contention. She appears to be quite capable

of giving lucid answers to the questions put to her. There

is, at least, no observation by the learned trial judge or

the learned Magistrate indicating that the witness was

suffering under any infirmity of unsoundness of mental

faculties or of physical disability.

32. As regards the charge and conviction of the accused

under Section 376(2) (m) of the Indian Penal Code,

nothing appears to have been brought forth by the

prosecution to establish that any bodily harm, maiming

or disfigurement was caused to the victim or her life was

thrown endangered by the appellant. In fact, no such

case has been made out on the part of the prosecution.

For the sake of argument, if we assume that pregnancy of

the victim is the disfigurement endangering her life, as

contemplated under section 376 (2) (m) of the Indian

Penal Code, 1860, considering the evidence, it seems

quite difficult to hold conclude that the appellant is the

man responsible for such pregnancy. It is well settled

that where there are two contradictory views probable,

the one in favour of the accused is to be accepted

extending him the benefit of doubt.

33. From a careful scrutiny of the materials on record,

it transpires that there is an unexplained delay in lodging

the First Information Report by PW1. There appears to be

material contradictions in the testimony of the

prosecution witnesses and the prosecution has failed to

adduce independent witnesses who ought to have been

brought, in the circumstances in ordinary course.

34. Therefore, taking into account the inordinate and

unexplained delay in lodging the First Information

Report, the contradictory testimony of the prosecutrix

before the learned trial court vis-à-vis that before the

learned Magistrate, coupled with the associated

circumstances and the medical evidence, leave a mark of

doubt to treat the testimony of the prosecutrix as natural

and truthful to inspire confidence, enough to secure

conviction of the accused/appellant.

35. Therefore, in the light of the aforegone discussion we

are of the opinion that prosecution has failed to establish

the circumstances beyond all reasonable doubts

conclusively incriminating the appellant. Hence, the

appellant is entitled to the benefit of doubt. For the

aforesaid reasons the impugned judgment of conviction and

subsequent order of sentence dated 08.08.2019 and

09.08.2019 passed by Learned 1st Additional Sessions

Judge, Sealdeh, South 24 Parganas, in connection with

Sessions Trial No. 02 (3) of 2018, are liable to be set aside

and are hereby set aside accordingly.

36. Accordingly, the instant appeal being CRA Nos. 136 of

2020 is allowed. The appellant shall be released from

custody, if not wanted in any other case, upon execution of

a bond to the satisfaction of the trial Court which shall

remain in force for a period of six months in terms of

Section 437A of the Code of Criminal Procedure.

37. Connected application, if any, shall stand disposed.

38. Trial court records along with a copy of this judgment;

be sent down, at once, to the learned trial court for

necessary action.

39. Photostat certified copy of this order, if applied for, be

given to the parties on priority basis upon compliance of all

formalities.

[MD. SHABBAR RASHIDI, J]

40. I agree.

[DEBANGSU BASAK, J.]