Dinonath Dalui @ Dino @ Din Dalui vs The State Of West Bengal on 10 July, 2017

IN THE HIGH COURT AT CALCUTTA
(CRIMINAL APPELLATE JURISDICTION)
C.R.A No. 196 of 2017

Dinonath Dalui @ Dino @ Din Dalui
-Vs.-
The State of West Bengal

Present : The Hon’ble Justice Siddhartha Chattopadhyay

For the Petitioner/Appellant : Mr. Shiladitya Sanyal, Sr. Adv.,
Mr. Soumyapriyo Chowdhury,
Mr. Avishek Bhandari.

For the State : Mr. Saswata Gopal Mukherjee, Ld. P.P.,
Mrs. Faria Hossain.

Heard On : 10.04.2017, 25.04.2017,
26.04.2017, 13.06.2017,

C.A.V. On : 13.06.2017.

Judgment Delivered On : 10.07.2017.

Siddhartha Chattopadhyay, J.:

Doubting the correctness of the judgment passed in S.T. No. 03(06)

of 2014, the appellant has preferred this appeal. According to the appellant,

the learned trial court failed to appreciate the position of law as well as the

evidence of the prosecution witnesses in its proper perspectives. According

to him, the learned trial court failed to consider the factual aspects and the

probability factors.

2. As against the learned Counsel appearing on behalf of the state

contended that the learned trial court had considered legal aspects and all
other material aspects in its proper perspectives and so the judgment

passed by the learned trial court is quite unimpeachable.

3. In the interest of effective adjudication, factual scenario of this case

is required to be visualised. Shorn of unnecessary details, the prosecution

case in a nutshell is such that on 17.08.2012, when the victim was sleeping

alone in her house, the accused entered into her room and committed rape

upon her forcibly. According to the victim, at that relevant point of time, her

husband was not present. He had gone to some other place for his work.

When the accused was committing rape upon her, somehow the victim had

been able to flee away and screamed for help. Thereafter, she had disclosed

the ill-episode to her brother-in-law (husband’s brother). When her brother-

in-law went to ascertain the fact from the accused, the present appellant

accused assaulted him mercilessly and for which the victim’s brother-in-law

had to take admission in a nursing home for getting medical treatment.

After a few while, the F.I.R. was lodged and in this way law was set into

motion.

4. The defence case as it appears to me from the trend of cross-

examination and examination of the accused under Section 313 Cr.P.C. is

his innocence and that he has been falsely implicated.

5. To come to a finding, I should scrutinize the evidence of the

prosecution witnesses thoroughly. The P.W. 1 in her evidence has stated

that the door of her room was made of bamboo having some gaps in between

the two bamboo pieces. There was a kerosene oil lamp in her room to get

light. Suddenly one person entered into her room and pressed her mouth by
a gamchha. At that time she could not identify the accused as it was dark in

her room. Just prior to that she has categorically stated that there was a

kerosene oil lamp to have light in her room. Therefore, at that time darkness

loomed large in her room is a mystery. She further stated that after pressing

her mouth the accused appellant disrobed her. She then tried to resist at

her best. In spite of that the accused appellant had committed rape upon

her. When the accused was fleeing away, she could identify the accused

outside the said room and the said person is no other than the present

appellant Dinonath Dalui. Practically the fate of this case hinges on the

testimony of this witness mainly. In spite of having a kerosene oil lamp in

her room, she could not identify the accused. Existence of kerosene oil lamp

indicates that there is no electricity in her house. The offence took place in

the wee hours, then how the victim identified the appellant is still a mystery.

According to the victim, she caught hold of lungi of the accused and when

she started shouting, her brother-in-law came there and at that time

accused assaulted him. In the F.I.R. there is a complete departure. The

F.I.R. speaks that brother-in-law went to the accused to ascertain what

happened and at that time the accused assaulted him. But evidence is

completely different. From the cross-examination of this victim recorded on

16.08.2014

, it appears that there are adjacent houses near the room of the

victim. The victim’s relations are also residing adjacent to each other. It has

been clarified in her evidence that there are existence of house of one Nandi

Sardar, Naba Gharami, Bangla Jana, Siddhaswar Jana and others. The

evidence of P.W. 2 also corroborates that they used kerosene oil lamp for

illumination of their rooms. This P.W. 2, is the brother in law of the victim,
and he specifically stated that the victim lives in an adjacent room. When

the victim screamed for help, he came from his room and found the accused

standing outside her room. The story of F.I.R. is otherwise. Initially the

victim disclosed her agonies to her brother-in-law, who in turn, went to

accused to ascertain what happened.

6. According to the brother-in-law, the appellant assaulted him and

for which he was admitted in a nursing home. This P.W. 2 further stated

that his elder brother (victim’s husband) works at Calcutta but he does not

know where he works. The P.W. 3 stated that hearing the shouting, she

came to the spot and found the victim as well as her nephew. The evidence

of P.W. 4 and P.W. 5 are not much relevant for the purpose of adjudication

of this case. The P.W. 6, is not an eye-witness. She told about the incident

when she came to the house of the victim. Other witnesses are the doctor

and police personnel.

7. The victim had given a statement under Section 164 of Cr.P.C.

which speaks that suddenly one person entered into her room and forcibly

committed rape upon her. When he was fleeing away, she identified the

victim. She thereafter reported the incident to her brother-in-law (husband’s

brother). When the said brother-in-law chased the accused, he was

assaulted by the appellant. Her such piece of evidence, in course of under

Section 164 of Cr.P.C., are not in tune with her statement before the trial

court and in the F.I.R.

8. On perusal of the evidence it appears that the victim’s brother-in-

law resides adjacent to her room and there are many other houses in and
around the place of occurrence. A village road is also there just behind the

window of the victim’s room. One has to enter into the victim’s room by

crossing some other houses of the victim’s family members. The husband of

the victim did not show any interest about the incident nor came to adduce

evidence. If kerosene oil lamp was there why the victim could not identify

the accused is required to be explained. It is not the case of the victim that

the accused had put cloth on her eyes.

9. While the victim was taken before the doctor for her medical

examination, she did not divulge the name of the accused and as to how she

was raped.

10. The learned Counsel appearing on behalf of the appellant has

referred to a decision reported in (2011) 14 SCC 671 (Amar Bahadur Singh

vs.- State of U.P.). The factual aspect of that case is almost akin to the

present one. The Hon’ble Apex Court held that it was perhaps when the

accused and prosecutrix had been caught red-handed the story of rape had

been cooked up, to salvage some of the family honour. It seems to me that

this case may be an instance of that type of case.

11. Considering the circumstances, I am of the view that the

prosecution failed to establish the guilt beyond all reasonable doubts.

Accordingly, the criminal appeal is allowed. The appellant be set at liberty at

once. Judgment of the trial court is hereby set aside. The instant criminal

appeal is thus allowed.

12. Let a copy of this order and LCR be sent to the learned Court

below at once for information and taking necessary action.

13. Urgent certified photocopy of this order, if applied for, be supplied

to the parties upon compliance with all requisite formalities.

(SIDDHARTHA CHATTOPADHYAY, J.)
A.F.R/N.A.F.R.

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