Haritosh Shit vs State Of West Bengal on 13 June, 2017

IN THE HIGH COURT AT CALCUTTA

Criminal Appellate Jurisdiction

BEFORE:

The Hon’ble Mr. Justice Joymalya Bagchi

C.R.A. 194 of 2015

Haritosh Shit
Vs.
State of West Bengal

For the Appellant : Mr. Jayanta Narayan Chatterjee
Mr. Apalak Basu
Mr. Dwaipayan Biswas
Ms. Moumita Pandit
Ms. Priyanka Ghosh Chowdhury
Mr. Rupam Chatterjee
Mr. Tirthankar Roy

For the State : Ms. Anusua Sinha

Heard on : June 13, 2017

Judgement on : June 13, 2017

Joymalya Bagchi, J. :

The appeal is directed against the judgment and order dated 23.03.2015

passed by learned Additional Sessions Judge, Fast Track Court, Haldia, Purba

Medinipur convicting the appellant for commission of offence punishable under

Section 376(1)/354 of the Indian Penal Code and sentencing him to suffer

rigorous imprisonment for 7 years and to pay fine of Rs.5,000/-, in default to
suffer further rigorous imprisonment for six months for the offence punishable

under Section 376(1) IPC and to suffer rigorous imprisonment for two years and

to pay fine of Rs.5,000/- for the offence punishable under Section 354 IPC, both

the sentences to run concurrently.

Prosecution case, as alleged against the appellant, is to the effect that the

victim (PW 1) was acquainted with the appellant as the latter and her husband

were in the same profession, and some months ago, during absence of her

husband, the appellant came to her house and suddenly hugged her and put

vermilion on her forehead. Thereafter, he declared her to be his wife and forcibly

raped her against her will. The appellant had also threatened to kill her, and her

children. Thereafter, the appellant fled away from the place of occurrence. The

victim, however, did not disclose such incident out of shame and fear to her

husband and others. The appellant continued to rape her on a number of times

against her will and she became pregnant thrice whereupon the appellant helped

her to abort by consuming medicine. Lastly, she informed the incident to her

husband. Thereafter, her husband forbade the appellant to come to the house.

On 11.02.2014 the appellant forcibly entered their house at 10 p.m. by breaking

the bamboo fencing while the victim was sleeping with her husband and

children. The appellant dragged the children and her husband from the bedroom

and locked them in another room from outside. Thereafter, he ravished the

victim and ran away. On the next day written complaint was lodged by PW 1

with Nandigram Police Station resulting in registration of Nandigram Police

Station Case No.148/14 dated 12.04.2014 under Section 376/313 IPC. In
conclusion of investigation, charge sheet was filed under
Section 376/354 IPC.

Thereafter, the case was committed to the Court of Sessions and transferred to

the Court of Additional Sessions Judge, Fast Track Court, Haldia, Purba

Medinipur for trial and disposal. Charges were framed under Section 376/354

IPC against the appellant who pleaded not guilty and claimed to be tried. In the

course of trial, prosecution examined ten witnesses and exhibited a number of

documents. The defence of the appellant was one of innocence and false

implication

Mr. Chatterjee, learned Counsel appearing for the appellant submits that

the prosecution case can be divided into two parts. Firstly, some months ago the

appellant taking advantage of his acquaintance with the PW 1 had come to her

residence during the absence of her husband and put vermilion on her forehead

and thereafter forcibly raped her. Strangely enough the PW1 did not narrate

such incident either to her husband or any other person. It is further alleged

thereafter that the appellant and PW 1 cohabited on a number of occasions and

she got pregnant thrice and such pregnancies were aborted with the help of the

appellant. Subsequently, PW 1 informed the matter to her husband who forbade

the appellant from coming to his house. This gives rise to the genesis of the

second part of the incident, which occurred, on 11.02.2014 in the night. It is

alleged that on that day at around 10 P.M. in the night the appellant broke the

bamboo fencing of the house of the PW 1 and forcibly entered the house when

PW 1 was sleeping with her husband and children. The husband and the

children were dragged into one room and locked the same from outside and
thereafter he committed rape upon PW 1 and fled away. Learned Counsel

criticized first part of the prosecution case on the score that it is highly probable

that PW 1, being a married lady, would not report the misdemeanour on the part

of the appellant to her husband or any other relation. Such conduct of PW 1

coupled with her claim that the appellant raped her repeatedly without any

further protestation at her end and made her pregnant thrice gives rise to an

inference of consensual association between them and renders the allegation of

forcible rape highly improbable. Coming to the second part of the incident it is

argued that the manner and course of depiction of the alleged incident is patently

absurd and as sought to be portrayed by the prosecution witness suffers from

contradictions and other infirmities. It is also submitted that the children did not

support the incident of rape at all. Hence the appellant is entitled to an order of

acquittal.

On the other hand, Ms. Sinha, learned Counsel for the State submits that

the evidence of PW 1 speaks of repeated instances of forcible sexual assault on

PW1 and that she has given explanation for not disclosing such incidents to her

husband and others, that is, due to shame and fear. It is also submitted that on

11.02.2014

PW 1 again, forcibly ravished her and such evidence has been

corroborated by the other witnesses. Hence, there is no reason to disbelieve the

prosecution case and the appeal is liable to be dismissed.

Let me analyse the evidence on record. The most vital witnesses in the

instant case are the victim (PW 1) and her husband (PW 2). PW 1 deposed that

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the appellant was known to her from before as he was her husband’s colleague.
He had access to their house. In 2013 in the night of ‘Dol Purnima’ she was lying

alone in the house and her children were sleeping. At that time the appellant

entered her bedroom and forcibly held her and put vermilion on her forehead.

Thereafter, the appellant declared that she was his wife. In the meantime her

children woke up. The appellant threatened them that if they raised hue and cry

he would kill them. She did not disclose the incident to her husband due to

shame and fear that it would create dispute with him. In the absence of her

husband the appellant used to regularly come to the house and repeatedly rape

her. She ultimately informed her husband who asked the appellant not to come

to their house. Thereafter, the appellant did not come to their house. In 2014 in

the month of ‘Falgun’ at 10.15 P.M. the appellant broke the bamboo fencing and

entered their house. Then he lifted her to the next room and locked her husband

and children in another room. Thereafter, he committed rape upon her. Then

the appellant fled away. She lodged written complaint with Nandigram Police

Station (Exbt.1). She was interrogated by the police. Thereafter she was taken to

the hospital for medical test but she refused to undergo medical examination, as

the doctor was a male person. She put her signature in the medical report. She

was taken before a Magistrate before whom she gave a statement. She proved

her signature in the statement recorded under Section 164 CrPC. In cross-

examination, she deposed that she had been acquainted with the appellant three

months prior to the day the appellant entered her house. The appellant had free

access to her house. The appellant had invited them on the occasion of the

marriage of her sister. In the house she had two rooms and a veranda and the
rooms were fitted with doors and windows. They had cohabited for 60-70 times.

She disclosed the incident to her husband one month prior to the filing of the

case. She did not disclose to the doctor that she had been raped. She showed

her torn clothes to the police officer but did not submit them. She got pregnant

thrice but did not disclose her pregnancy to her husband.

Prosecution witness no. 2, namely, Swarna Kamal Hazra, is the husband of

the victim. He deposed that he and the appellant were in the same profession.

The appellant had access to his house and due to such access the appellant

became acquainted to his wife. In his absence, the appellant used to come to his

house. Once after coming back home, he found the appellant pulling the hand of

his wife. He rebuked the appellant and asked him not to come to his house. The

appellant requested him not to disclose the incident to any one. He further

deposed that one day in the month of ‘Chaitra’ at about 10-00 p.m. while he was

sleeping with his wife and son, the appellant entered into his house breaking the

railing and took his wife into a room. He remained outside the room and the

appellant locked the room and raped his wife. He deposed that he reported the

matter to the police.

Prosecution witness no. 3, namely, Achintya Hazra, is the son of the

prosecution witnesses no. 1 and 2. He deposed that on the date of ‘guru purnima’

the appellant put vermilion on her mother. One day his father after coming back

home found that the appellant was pulling his mother’s hand. On that day the

appellant was asked by the prosecution witness no. 2 not to come to their house

in future.

Prosecution witness no. 6, namely, Aparna Hazra, is the daughter of

prosecution witnesses no. 1 and 2. She deposed that the appellant had access to

their house and used to torture her mother and also used to threaten them.

Prosecution witness no. 5, namely Sudhangsu Giri, deposed that the

appellant and the prosecution witness no. 2 were co-workers. The appellant

was known to the prosecution witness no. 1, the wife of the prosecution

witness no. 2. In the year 2013 at the night of ‘dol purnima’ day, the appellant

put vermilion on the forehead of prosecution witness no. 1 and declared her to

be his wife. On that night, he raped the prosecution witness no. 1 and fled

away. Thereafter the appellant regularly raped the prosecution witness no. 1,

but she did not disclose it to the neighbours. Lastly, on April 12, 2014 the

victim was raped by the appellant while she was sleeping with her husband

and children.

In cross-examination, the prosecution witness no. 5 admitted that his

house is 500 meters away from the old house of the prosecution witness no. 2.

He admitted that the victim did not disclose the facts about putting vermilion

and commission of rape on her by the appellant. He stated that he did not go

to the house of the prosecution witness no. 1 within seven days from the date

of incident, that is, April 11, 2014.

The aforesaid witnesses are the witnesses of fact.

Prosecution witness no. 4, namely, Sangita Jana, was attached to the

Nandigram Police Station. She deposed that on April 12, 2014, prosecution

witness no. 1 came to the police station and complained about the appellant.
The incident was narrated to her in the presence of the officer in-charge of the

said police station and the matter was video graphed.

Prosecution witness no. 7, namely, Dr. Prag Prasun Giri, deposed that

he examined the appellant and found him capable of sexual intercourse. He

proved the medical report prepared by him as Exhibit-4.

Prosecution witness no. 8, namely, Dr. Pranab Das, deposed that the

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victim was placed for medical examination before him, but she refused to get

herself medically examined. He proved the medical report being Exhibit-2/1

prepared by him.

Prosecution witness no. 9 is the investigating officer of the instant case.

He proved the formal first information report being Exhibit-5. He made

videography of the statement of the prosecution witness no. 1. He deposed that

he sent the victim for medical examination to Nandigram Block Primary Health

Centre, but no medical examination was done there. The victim was referred to

Haldia Sub Divisional Hospital for such examination, but she refused to get

herself examined. He further deposed that he visited the place of occurrence

and prepared a rough sketch map with index being Exhibits 6 and 6/1. He

placed the victim for recording statement under Section 164 of the Code of

Criminal Procedure and collected the copy of the statement. He arrested the

accused/appellant and submitted charge sheet against him.

Prosecution witness no. 10 is the Judicial Magistrate of Haldia Court,

who recorded the statement of the victim under Section 164 of the Code of

Criminal Procedure. He proved such statement being Exhibit-7.

From the evidence on record, it appears that the appellant was known to

the victim, prosecution witness no. 1, and regularly visited her at her

matrimonial home. Evidence has also come on record that the appellant and

the prosecution witness no. 2, who is the husband of the prosecution witness

no. 1, were in the same profession. It has been alleged by the prosecution

witness no. 1 that some months ago on ‘dol purnima’ night, while her husband

was away the appellant had entered her bed room and put vermilion on her

forehead. Although it has been alleged in the first information report that on

that night the appellant had raped her, such fact is significantly absent in her

deposition in Court. In view of such omission, and evidence of other witnesses

(who are reported witnesses) with regard to the alleged rape on PW1. On ‘dol

purnima’ night is of little significance. It is, therefore, evident that the

allegation of forcible rape on PW1 on ‘dol purnima’ night has not been

established at all. Further more the most natural conduct of any married lady,

who is subjected to the aforesaid misdemeanour, would be to report such fact

to her husband. Prosecution witness no. 1, however, did not report such

incident to her husband. The explanation given by her for such improbable

conduct was that she felt ashamed and was of the opinion that this would

create dispute between her and her husband. I am unable to comprehend

such explanation as to how an act of forcible trespass and misdemeanour on

the part of the appellant in hugging and putting vermillion on the forehead of

the prosecution witness no. 1 and declaring her as his wife would created

dispute between herself and her husband. Failure on the part of the
prosecution witness no. 1 to disclose such conduct of the appellant to her

husband and/or close relations discloses an indulgent attitude on her part

towards the liberties taken by the appellant with her. The aforesaid state of

affairs leads one to unerringly infer that there was a consensual free mixing

between the prosecution witness no. 1 and the appellant behind the back of

her husband, prosecution witness no. 2.

The prosecution witness no. 1 further admitted in her cross-examination

that subsequent to the aforesaid incident she had cohabited for 60/70 times

with the appellant and consequentially became pregnant on three occasions.

Such pregnancies were aborted behind the back of her husband with the

appellant. These circumstances reinforced the notion that PW1 was having an

illicit association with the appellant behind the back of her husband, resulting

in unwarranted pregnancies and abortion without the latter’s knowledge. In

this backdrop, in order to salvage her commitment to her husband, the

prosecution witness no. 1 contended that she finally disclosed the aforesaid

conduct of the appellant to her husband the latter forbade the appellant to

come to their house any further. The aforesaid manner of disclosure of

association of prosecution witness no. 1 with the appellant as depicted by her

is not corroborated either by her husband (PW2) or her son (PW4). The

prosecution witness no. 2 had deposed that he had unexpectedly returned on

a cloudy day to his home and found that the appellant was pulling the hand of

his wife. Thereafter he had forbade the appellant to come to his house. This

version of prosecution witness no. 2 was corroborated by his son, prosecution
witness no. 4 and is in patent contradiction to the version of voluntary

disclosure as claimed by his wife, PW1.

It is therefore clear that the association between PW1 and the appellant

did not come to the knowledge of her husband (PW2) at her initiative but

fortuitously when on a cloudy day PW2 had unexpectedly returned home and

found the appellant pulling her hand. These facts, therefore, clearly depict a

consensual association between the appellant and prosecution witness no. 1

behind the back of her husband (PW2) and such illicit association would not

have come to light but for the unexpected disclosure, as aforesaid.

Second part of the prosecution case of forcible rape on April 11, 2014 is,

therefore, to be judged in the aforesaid factual matrix. The prosecution witness

no. 1 claimed that in the night of April 11, 2014, the appellant had forcibly

entered her bedroom and thereafter took her to an adjacent room and locked her

son and husband in another room from outside. On the other hand, the version

depicted by her husband (PW2) is contrary to her. PW2 deposed that the

appellant forcibly entered the house and took his wife inside a room and locked

the room from inside. Prosecution witness no. 2 was left standing outside the

room. He has not spoken of being locked in a room with his son from outside.

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Hence, the manner and course of the alleged incident as narrated by the

prosecution witnesses no. 1 and 2 are contradictory to one another. That apart,

the aforesaid versions are highly artificial and do not inspire confidence. It is

highly improbably that the appellant, who was an intruder in house of the

prosecution witness no. 2, would be in a position to lock him in a room from
outside. Hence, the version of the prosecution witness no. 1 of locking her

husband and son in a room from outside by the appellant is patently absurd and

improbable.

On the other hand, if the prosecution witness no. 2 had not been locked

from outside, it defies logic as to why he did not raise hue and cry and catch

the appellant red handed at the spot itself. These inexplicable and patent

improbabilities in the prosecution case stares at one’s face when the evidence

of prosecution witnesses no. 1 and 2 are appreciated on the anvil of

reasonableness and or broad probabilities of the normal course of human

conduct. It is also pertinent to note that the children of the couple, namely,

prosecution witnesses no. 4 and 6, have not corroborated the version of

forcible rape of their mother at all. It is true that the evidence of a victim of

sexual assault has been treated with due sensitivity and respect. Minor

contradictions and/or exaggeration are to be ignored if there is a kernel of

truth in her version. The evidence of a victim of sexual assault is to be treated

as that of an injured witness and ought not to be easily brushed aside.

However, this does not mean that her version, howsoever improbable it may be

contradicted by other witness, is to be accepted as gospel of truth. In

Narendra Kumar v State (NCT of Delhi) (2012) 7SCC 171, while

appreciating the version of a rape victim the apex court held as follows:-

“28. The courts while trying an accused on the charge of rape,
must deal with the case with utmost sensitivity, examining the
broader probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the evidence of
the witnesses which are not of a substantial character.

29. However, even in a case of rape, the onus is always on the
prosecution to prove, affirmatively each ingredient of the offence
it seeks to establish and such onus never shifts. It is no part of
the duty of the defence to explain as to how and why in a rape
case the victim and other witnesses have falsely implicated the
accused. The prosecution case has to stand on its own legs and
cannot take support from the weakness of the case of defence.
However great the suspicion against the accused and however
strong the moral belief and conviction of the court, unless the
offence of the accused is established beyond reasonable doubt on
the basis of legal evidence and material on the record, he cannot
be convicted for an offence. There is an initial presumption of
innocence of the accused and the prosecution has to bring home
the offence against the accused by reliable evidence. The accused
is entitled to the benefit of every reasonable doubt. (Vide
Tukaram v. State of Maharashtra and Uday v. State of Karnataka.)

30. The prosecution has to prove its case beyond reasonable
doubt and cannot take support from the weakness of the case of
defence. There must be proper legal evidence and material on
record to record the conviction of the accused. The conviction can
be based on sole testimony of the prosecutrix provided it lends
assurance of her testimony. However, in case the court has
reason not to accept the version of the prosecutrix on its face
value, it may look for corroboration. In case the evidence is read
in its totality and the story projected by the prosecutrix is found
to be improbable, the prosecutrix’s case becomes liable to be
rejected.

31. The court must act with sensitivity and appreciate the
evidence in totality of the background of the entire case and not
in the isolation. Even if the prosecutrix is of easy
virtues/unchaste woman that itself cannot be a determinative
factor and the court is required to adjudicate whether the
accused committed rape on the victim on the occasion
complained of.”

The instant case depicts a more than ordinary acquaintance between the

appellant and the victim which resulted in repeated pregnancies and abortions

with the help of the appellant and behind the back of her husband. The

aforesaid misdemeanours of the appellant were not divulged to her husband

(PW.2) at the behest of the victim as claimed by her but on the fortuitous event

her husband unexpectedly returning home on a particular day and noticing

that the appellant was puling her hand. The last incident of alleged forcible

sexual assault on April 11, 2014, also suffers from patent contradictions and
improbabilities as discussed hereinbefore and does not appear to be credible in

the facts and circumstances of the case.

For these reasons, I am constrained to hold that the version of the

prosecution witness no. 1 with regard to forcible sexual assaults upon her is

not reliable and not corroborated by the attending facts and circumstances of

the instant case.

Hence, the judgment and order of conviction and sentence imposed

upon the appellant is set aside and the appeal is allowed.

The appellant shall be discharged from his bail bond after six months in

terms of Section 437A of the Code of Criminal Procedure.

Let a copy of the judgment along with the lower court records be sent

down to the trial court at once.

Photostat certified copy of this order, if applied for, will be made

available to the applicant within a week from the date of putting in the

requisites.

(Joymalya Bagchi, J.)

RP/DNS PA to
Justice J. Bagchi, J.

Item no. 519

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