Mahesh Mudalia vs The State Of West Bengal on 5 July, 2017

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

Present : The Hon’ble Justice Nadira Patherya
And
The Hon’ble Justice Amitava Chatterjee

C.R.A. No. 492 of 2015

Mahesh Mudalia
VERSUS
The State of West Bengal

For the Appellant :Mr. Sudip Ghosh Chowdhury.

For the State :Mr. Madhusudan Sur, Ld. A.P.P.
Mr. Manaranjan Mahata,
Mr. Pratick Bose.

Heard on : 25.11.2016, 28.11.2016, 29.11.2016
01.12.2016.

Judgment on : 5th July, 2017.

Patherya J. :

This appeal is directed against the order of conviction and sentence

dated 8th July, 2015 and 9th July, 2015 respectively passed by the

Additional Sessions Judge, 1st Fast Track Court, Hooghly in Sessions

Trial No.13/2012 arising out of New No.2065/14 whereby and
whereunder the accused appellant was convicted and sentenced for the

offence under Section 376 Section 306 I.P.C.

For both the offences, i.e., under Sections 376 and 306 I.P.C. the

appellant was directed to suffer Rigorous Imprisonment for 10 years and

to pay fine of Rs.10,000/- in default to suffer Rigorous Imprisonment for

further one year. Both the sentences were to run concurrently.

The case of the prosecution is that one Bhagee Sherwar aged 17

years, daughter of Nirmala Sherwar was ravished by the appellant while

returning home from the Bandel market, where she had gone to buy

curd. The appellant dragged her to a place behind the Jain temple where

he ravished her. The victim girl came home and disclosed the incident to

her mother (P.W.1) and thereafter P.W.1 the defacto complainant went in

search of the accused. Having failed to find him, she was returning home

when she was informed by her daughter P.W.2 that the victim girl had

poured kerosene oil on herself and had set fire on herself. The defacto

complainant admitted the victim girl to the hospital where the victim girl

subsequently on the date of incident, i.e., 10th June, 2011 died. The

incident took place at 2 p.m. and the F.I.R. was filed by the defacto

complainant on the same day at 19:15 hours Investigation was

undertaken and charge-sheet submitted under Sections 376 and 306

I.P.C. The case was committed to the Sessions Court at Hooghly and
charge was framed under Sections 376 and 306 I.P.C. The said charges

were read out and explained to the accused appellant, who pleaded not

guilty and claimed to be tried. Thereafter trial started. At trial 26

witnesses were examined by the prosecution. Defence did not adduce any

witness. The appellant was examined under Section 313 Cr.P.C. and on

consideration of the documentary so also oral evidence the Court below

passed the order of conviction and sentence mentioned above. Being

aggrieved by the said order of conviction and sentence this appeal has

been filed.

Counsel for the appellant submits that there are 26 witnesses in

all and except for, P.W.1 (Mother), P.W.2 (Sister), P.W.8 (Masi) of the

victim girl so also P.W.3 and P.W.4 (neighbours), none of the other

witnesses have helped the prosecution. P.Ws.5, 6 and 7 though related

witnesses cannot be relied on as P.Ws. 5 and 6 made statements on the

advice of the police. P.W.7 made no statement to police and was deposing

for the first time in Court, therefore, her evidence was nothing but

exaggeration. P.W.17 (M.O), P.W.23 (M.O), P.W.25 (M.O), the I.O.

(P.W.24) and the postmortem doctor (P.W.26) are either hostile or formal

witness. The conviction is not based on the evidence of any eyewitness

but is based on circumstantial evidence which has not been conclusively

proved by the prosecution. The P.O. according to P.W.3 is a congested

area and there is also a tea stall frequented by people but none of the
persons in and around the said congested area were examined.

Therefore, presumption under Section 114 (g) of the Evidence Act comes

into play. The witnesses can be placed in three categories – related,

neighbours and office witness. The victim girl received burn injuries

between 2 – 2:30 p.m. and thereafter she was taken to the hospital.

There she breathed her last on 10th June, 2011 at 9 p.m. but no dying

declaration was recorded. Bed Head Ticket was also not seized or

exhibited. Therefore, it is not known if the victim girl was in a position to

talk and once again the presumption under Section 114 (g) is attracted.

P.W.25 (M.O) has in cross-examination stated that the patient was

admitted in critical condition but there is no note in the Bed Head Ticket

whether the victim girl was in a position to talk or not at that time.

P.W.23 (M.O) also examined the victim girl and found her general

condition to be very poor for which she could not express her words by

speech. The Trial Court has based its judgment on the 164 statements of

P.W.5 and P.W.6. The said 164 statement cannot be relied on as both the

witnesses have stated that the statement was made by them before the

Magistrate as asked and advised by the police. Therefore, the 164

statement cannot be of help to the prosecution.

The case of the prosecution is of forcible rape but P.W.17 (M.O) did

not find any injury on the private parts of the aggressor, i.e., the
appellant. From the postmortem report it will be evident that the victim

girl suffered 100% burns. P.W.1 (mother), P.W.2 (sister) and P.W.8 (masi)

are all close relatives of the victim girl and each of them has said that the

victim girl told them that she was raped by the appellant. All other

witnesses have heard from them of the incident and therefore, all others

besides P.W.1, P.W.2 and P.W.8 are hearsay witnesses. The I.O. has

stated that P.W.2 did not state to him that the victim girl had informed

P.W.2 of being raped by the appellant near the Jain temple. Therefore,

the evidence of P.W.2 for the offence under Section 376 I.P.C. cannot be

believed. The defacto complainant in the F.I.R. filed has stated that she

was at home and that the victim girl narrated the incident to her at her

home. This has been reaffirmed by P.W.1 in her evidence in Court. This

is contradictory to the evidence of P.W.4 and P.W.8, as P.W.4 has stated

that P.W.1 went to the house of P.W.8 in the morning on that relevant

date and this has also been corroborated by P.W.8 (masi), who in her

evidence has stated that the mother of the victim girl, i.e., P.W.1 had

been in her house from 7 a.m. on the date of incident till about 12 noon.

While P.W.1 has fixed the time at 2 p.m., P.W.8 has fixed the time at 12

noon. Therefore, P.W.1 and P.W.8 have contradicted each other with

regard to time of occurrence. P.W.1 and P.W.8 have also contradicted

each other with regard to the place where the victim girl came and

informed of the offence to her mother. While P.W.1 says it was in her

house, P.W.8 says that the victim girl disclosed the fact of rape to P.W.1
at the home of P.W.8. P.W.3 (neighbour) also has supported the absence

of P.W.1 from her house since morning on the date of incident. P.W.3

and P.W.4 are the other tenants in the same compound where P.W.1 the

defacto complainant resides. P.W.3 has stated that they informed P.W.1

of the incident under Section 306 I.P.C. whereas P.W.4 has stated that

they informed P.W.2 who in turn informed P.W.1. As regards the offence

under Section 376 I.P.C., the evidence of P.W.3 and P.W.4 is of no

importance as it is hearsay and nothing more than that. According to

P.W.8 the victim girl was assaulted by P.W.1 and asked to go to her home

and it is this assault which led the victim girl to commit suicide. P.W.9

though hostile has before being declared hostile stated that he heard

from the local people that the victim girl was assaulted by her mother

and it is because of such assault she set herself on fire. Therefore, the

evidence of P.W.9 is creditworthy. P.W.17 and P.W.23 are the Medical

Officers who treated the victim girl and none of them recorded the dying

declaration. In fact, P.W.17 has stated that she had suffered 100% burn

and P.W.23 has stated that the general condition of the victim girl was

very poor and she could not express her words by speech. The case of the

prosecution is forcible rape and P.W.17 has stated that in a case of

forcible rape the aggressor will suffer injuries. In the instant case no

injury was found by P.W.17 on the private parts of the appellant. P.W.25

has not given any conclusive evidence with regard to the medical status

of the victim girl. There is no note in the Bed Head Ticket of whether the
victim girl could talk or not. P.W.26 (PM Dr.) has stated that unless

F.S.L. report was received, it cannot be conclusively said that the victim

girl had been raped. P.W.24 (I.O.) did not seize the apparels of the

accused. The I.O. (P.W.24) has categorically stated that P.W.2 did not tell

him that the victim girl had been raped by the appellant. From the

aforesaid, therefore, it is evident that the prosecution did not prove its

case beyond all reasonable doubt and there is no conclusive proof of

circumstantial evidence as is required in a case of circumstantial

evidence as held in AIR (1984) SC 1622 and (2002) 4 Crimes SC 111,

(2016) 3 C. Cr.L.R (Cal) 408.

As it is a case of circumstantial evidence and circumstance is not

conclusive, therefore, the case has not been proved beyond reasonable

doubt by the prosecution. It is the evidence of P.Ws.1, 2 and 8 that they

heard from the victim girl. Each of the persons are related witnesses from

whom the rest of the prosecution witnesses have heard of the incident.

Therefore, being related witnesses they cannot be relied on and the rest

of the witnesses cannot be relied on as their evidence is nothing but

hearsay. The evidence of P.Ws.1, 2 and 8 is contradictory with each other

with regard to time and place of occurrence. The private part of the

accused did not suffer any injury and the F.S.L. report is in favour of the

appellant. P.W.9 and P.W.8 have corroborated their statements with

regard to suicide of the victim girl due to assault by her mother (P.W.1).
While being examined under Section 313 all allegations have been denied

by the accused appellant. Therefore, the prosecution has failed to prove

its case beyond reasonable doubt and benefit of doubt goes in favour of

the accused. For the said reasons, the order of conviction and sentence

be set aside.

In opposing the said appeal State Counsel submits that the F.I.R.

be looked into. P.W.1 (mother) the defacto complainant has supported

her case in the F.I.R. through her oral evidence. From a look at the rough

sketch map it will appear that except the two houses which are there, the

kacha road and the field surrounding the P.O. was deserted and vacant.

It was month of Jaistha, 10th June 2011 and the village road was empty

at 2 p.m. being the time of incident. From scrutiny of the postmortem

report the injuries mentioned therein has proved the case under Section

376 I.P.C. The date of incident is 10th June, 2011 and postmortem was

conducted on 12th June 2011 and the injuries were found to be fresh.

P.W.1 has fixed the time of the offence under Section 376 I.P.C. at 2 p.m.

P.W.8 has stated that P.W.1 was at her home from 7 a.m. till 12 noon.

Similarly P.Ws.3 and 4 have stated that P.W.1 was away from home in

the morning, but the incident took place after 12 noon at 2 p.m. P.W.2

has corroborated the evidence of P.W.1 with regard to reporting of

incident to P.W.1. P.Ws.3 and 4 are neighbours of the defacto

complainant and they found smoke coming out from the bathroom. The
said two witnesses cannot be relied on for the offence under Section 376

I.P.C. P.W.8 corroborates the evidence of P.W.1 and P.W.2. The evidence

of P.Ws.5, 6, 7, 9, 10, 11, 12, 13, 16, 18, 19, 20, 21 and 22 cannot be

relied on as they are either formal or hostile witnesses. P.W.14 is the

photographer who found ladies chappal at the P.O. and took still

photographs of the ladies chappal from the same area. Non-seizure of the

wearing apparels by the I.O. of the accused has been admitted by the I.O.

and this can be nothing more than lapse on the part of the I.O. P.W.25 is

the Medical Officer and P.W.26 is the Postmortem Doctor who conducted

the postmortem and found the victim girl to have suffered injuries which

caused vital reaction.

P.W.1’s evidence with regard to the offence under Section 376 is

supported by the Postmortem Doctor and also supports the F.I.R.

Therefore, P.W.1’s evidence cannot be discarded as she is a truthful

witness. The I.O. (P.W.24) has through his evidence demolished the

evidence of P.W.2 and P.W.8 but the evidence of P.W.1 remains

unshaken. Therefore, the order of conviction and sentence be upheld.

Having considered the submissions of the parties the order of

conviction and sentence passed against the accused appellant is for the

offence under Sections 376 and 306 I.P.C. It is a case based on

circumstantial evidence in which each event needs to be linked without
being delinked in any manner whatsoever. The circumstance in the

instant case is as follows:-

1.

The victim girl had gone to buy curd from Bandel market.

2. While returning she was dragged by the appellant to the P.O which

is behind the Jain temple at Bandel and at the P.O. she was

ravished.

3. The said incident took place on 10th June, 2011 at 2 p.m.

4. She thereafter came home and told of the incident to her mother

(P.W.1), who thereafter went in search of the appellant.

5. On the way while returning P.W.1 was informed by P.W.2 sister of

the victim girl that the victim girl had set herself on fire by pouring

kerosene.

6. On return she found the victim girl in burnt condition and

admitted her in Chinsurah Sadar hospital and filed the F.I.R. at

19:15 hours.

7. The victim girl died at 9 p.m. on 10th June, 2011.

Therefore, each event has been linked without being delinked and

although Counsel for the appellant has raised issues with regard to no

F.S.L. report there is the report which is Exhibit-14 though in such

report no semen or spermatozoon could be detected.

The witnesses can be classified into three categories – formal,

related and hearsay. P.Ws.1, 2 and 8 are related witnesses while

P.Ws.11, 12, 13, 14, 15, 19, 20 and 21 are formal witnesses, P.W.9 and

P.W.22 are hostile witness. P.Ws.5 and 6 cannot be relied on as they

gave statement as advised by police. P.W.7 deposed for the first time in

Court and, therefore, her evidence is nothing but an exaggeration. The

evidence of P.W.3 and P.W.4 in respect of the offence under Section 376

is nothing but hearsay and, therefore, cannot be relied upon. P.W.24

(I.O.) has stated that P.W.2 did not tell him that the victim girl told her of

being raped by the accused appellant. Therefore, to that extent her

evidence is of no value. P.W.8 also according to I.O. did not report to him

of being raped by the appellant. Therefore, the only witness whose

evidence can be believed and is worthy of consideration is that of P.W.1

with regard to the offence under Section 376 I.P.C. P.W.1 has supported

the F.I.R. The time of the offence is also fixed so also the P.O. P.W.1 the

mother visited her sister from 7 a.m. to 12 noon on the date of incident

and P.Ws.4 and 8 have stated so too. But the incident took place

thereafter and the evidence of P.W.1 of the victim girl returning home to

tell of the offence under Section 376 I.P.C. cannot be doubted and

remains unshaken. She has also stated that the ladies chappal seized

was that of her daughter and there is no cross-examination on this.

Although P.W.8 has spoken of assault by P.W.1 (mother) on the victim

girl, the said evidence of P.W.8 cannot be relied upon as prior thereto she
has stated that the victim girl reported to her that while she was

returning from Bandel market she was raped which has been

contradicted by the I.O. Therefore, the question of assault also cannot be

believed. P.W.9’s evidence as regard assault by P.W.1 is also nothing but

hearsay. P.W.1 and P.W.2 have corroborated the reason for which the

victim girl committed suicide, namely, due to shame of rape. 10th June,

2011 is in the month of Jaistha, i.e., peak Summer month and to allege

that no person of the said area was examined can only illustrate a lapse

on the part of the I.O. non-seizure of apparels of the accused by the I.O.

is also nothing but lapse on his part and will not go to the root of the

matter or render the investigation defective. From the F.S.L. report it is

true that no semen was found in the vaginal swab, but the injuries found

at the time of postmortem cannot rule out forcible rape. The injuries

found at the time of postmortem are set-out hereinbelow:-

“Injuries:

1) 1st 2nd degree burn injuries ………………………………

2) Genetal injuries:- Fourche the Posterior ……………

were ruptured (fresh) with swelling reddish …………..

having blood stains and inflammation, Hymen found

ruptured (fresh) at 5 O’clock 7 O’clock posterior with

extention upto vaginal wall posteriorly with reddish

swollen appearance showing inflammation. The mucous
membrane overlying was found, having torn ends which

were rough raw and uneven. Also, healed up, ruptured

tags of hymenal tissue was present at 1 O’clock position

showing evidence of either forceful introduction or

attempt to do it, of any firm to hard object in the genetal

region in occasions previously, Clitoris showed bruise

0.2″ × 0.2″ reddish in color Bruise was detected in

posterior vaginal wall (wall of vagina showing rugosity)

extending to vault of vagina. 2″ × 0.6″, more towards right

side involving on dissection, bruise was found to be fresh

around ……………………. uterus measuring 0.5″ × 0.2″

reddish in color. All the injuries were fresh antemortem

showed evidence of vital reaction.

OPINION

The deceased had other injuries as noted which were also

antemortem in nature.”

Although defence Counsel has stressed on non-recording of Dying

Declaration but the M.O (P.W.25) has stated that the victim girl was

admitted in a critical condition and P.W.23 (M.O) was the doctor who

admitted the victim girl has stated in cross-examination that “her general

condition was so poor that she could not express her words by speech.”

P.W.17 (M.O) has stated that –

“There may or may not be any injury on the private

part of the aggressor of a rape case. There may or may not

any injury in the penis of the aggressor. Fact that there is

possibility of injuries on the person of the aggressor in a case

of forcible rape.”

While being questioned under Section 313 Cr.P.C. no alibi has been

taken by the appellant. No witness was produced by the defence to

demolish the case of the prosecution.

(2016) 3 C. Cr.L.R (Cal) 408 is distinguishable on facts as in the

instant case there is a mention of the condition of the victim girl in the

Bed Head Ticket and there is a noting that her pulse was feeble,

respiration slow and jerky (Exhibit – 9/2) and general condition very very

very poor (Exhibit – 11) and prognosis was mentioned as grave. The

Medical Officer (P.W.25) has also deposed that the victim girl was

admitted in a critical condition.

There is no dispute with the proposition of law laid down in (2002) 4

Crimes SC 111 and AIR (1984) SC 1622.

In view of the aforesaid the Order of conviction and sentence calls for

no interference and the appeal fails and is dismissed.

Let a photostat copy of this order, if applied for, be given to the

parties on priority basis upon compliance of all formalities.

(Patherya, J.)

I agree

(Amitabha Chatterjee, J.)

Leave a Comment

Your email address will not be published. Required fields are marked *