Hasibul Sheikh vs The State Of West Bengal & Ors on 29 August, 2017

IN THE HIGH COURT AT CALCUTTA
(CRIMINAL APPELLATE JURISDICTION)
C.R.A No. 743 of 2012

Hasibul Sheikh

-Vs.-

The State of West Bengal Ors.

Present: The Hon’ble Justice Siddhartha Chattopadhyay

For the appellant : Mr. S. Patel,
Mr. P. Majumdar,
Mr. S. Majumdar.

For the State : Mr. S.G. Mukherjee, P.P.,
Mr. A. Mukherjee,
Mr. D. Mahato.

C.A.V. On : 07.08.2017.

Judgment Delivered On : 29.08.2017.

Siddhartha Chattopadhyay, J.:

Doubting the correctness of the judgment and order of conviction

dated 28.08.2012 and 29.08.2012 passed by the learned Additional

Sessions Judge 5th Court, Krishnanagar, Nadia in Sessions Trial No. II

(October) 2010, the appellant, by preferring this appeal, prayed for setting

aside the impugned judgment mainly on the grounds that the learned Trial

Court has failed to appreciate the evidence of the prosecution witnesses and

settled position of law.

2. Learned Counsel appearing on behalf of the state submitted that

the impugned judgment is quite unimpeachable and it does not warrant any

interference.

3. For the sake of convenience and effective adjudication, factual

scenario of the case is required to be revisited. The victim was a worker of a
weaver’s workshop and with a view to earning more money she had been

residing in the house of her employer. The accused appellant is also an

employee of the said workshop. Off and on the accused/appellant used to

give her indecent proposal but the victim refused. In one night while the

complainant/victim was sleeping she felt that somebody was rubbing her

breast. The victim protested. The accused then showed a knife and under a

threat committed rape upon her forcibly. Thereafter the accused used to

commit rape upon her off and on. When she allegedly became pregnant due

to such sexual intercourse, she disclosed it to her employer first and

thereafter she had disclosed it to her parents and others. Airing out her

such grievances, she had lodged a complaint under Section 156 (3) Cr.P.C.

and set the law 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. However, after the

registration of F.I.R., the Investigating Officer took the charge of

investigation. In course of investigation, the Investigating Officer examined

available witnesses under Section 161 Cr.P.C., sent the victim to the learned

Magistrate for recording her evidence under Section 164 Cr.P.C., collected

medical report of the accused appellant, and of the victim and thereafter

submitted charge-sheet under Section 376 of I.P.C.

5. Pursuant to the charge-sheet submitted by the Investigating Officer,

learned Trial Court framed the charge under the aforesaid section. Charge

was read over and explained to the accused to which he pleaded not guilty

and as a result the learned Trial Court proceeded with the trial.

6. It is perhaps needless to say that the witnesses are the eyes and

ears of justice. Therefore, the evidence of the prosecution witnesses are to be

scrutinized very carefully to see if the prosecution has been able to prove the

case beyond all reasonable doubts and disputes.

7. P.W. 1, a resident of Kanchkuli Village, i.e. where the alleged

incident occurred, did not support the prosecution case and as a result he

was declared hostile. P.W. 2, followed P.W. 1 in the same fashion and so he

was declared hostile. P.W. 3 has proved an endorsement in the written

complaint which is marked Exhibits 1 and 2. P.W. 4 produced the

Admission register of the school. She was asked to be present before the

learned trial Court so that the age of the victim could be ascertained. The

Admission Register, which she produced speaks that the victim’s date of

birth is 06.06.1997. She failed to say how the date of birth was entered in

the Admission Register. As per the F.I.R. alleged incident of rape was

committed on 28.07.2008. If it is so then at the time of alleged incident she

was just 11 years and one month. On a close scrutiny, it appears to me

that the date of alleged incident has been wrongly put in the F.I.R.

Because if the alleged incident took place on 28.07.2008, how the

F.I.R. could be lodged on 15.02.2008 i.e. five months before the alleged

incident. Therefore, it seems to me that the alleged incident certainly took

place on 28.07.2008 and the formal F.I.R. gives an indication to that effect.

Be that as it may, at the time of alleged incident, as per Admission Register,

the victim was in between 10 to 11 years. After being recalled, many new

facts came before the trial Court. P.W. 4 admitted that the date of birth of

the said student as per another Admission Register of her school is
01.01.1994. She certified the register which is marked Ext. 8. She further

clarified the position stating that former Admission Register was prepared by

the then headmaster Hayat Ali Sheikh, who could have traced out the

original Admission Register of her school. It pre-supposes that there is

uncertainty regarding the date of birth because one headmaster maintains

an Admission Register during his tenure and his successor maintains

another Admission Register. In course of cross-examination, she candidly

admitted that as per original Admission Register of her school, one student

namely Didar Gazi was admitted in her school on 17.07.2004. Thereafter

there are many blank pages. She failed to say on the basis of which the said

date of birth was incorporated by the school authority. She also indicated in

her evidence that after Hayat Ali Sheikh demitted the office, one Swapan

Hazra became the headmaster. In her cross-examination she specified that

they usually take documents of birth of the student at the time of admission

of the child. She also candidly stated that said documents are being

preserved in their school. Curiously enough, the prosecution did not make

any endeavour to produce the document on the basis of which the child was

admitted in the school. It certainly casts a serious doubt about the correct

age of the victim on the ground that the same school maintains two different

Admission Registers showing different dates of birth of the same person.

Evidence of P.W. 5 and P.W. 6 are not relevant for the purpose of

adjudication of this appeal. P.W. 7 was also declared hostile.

8. Now, we are to consider the evidence of P.W 8. Her evidence has to

be scrutinized very meticulously because she is the victim of such alleged

sexual intercourse. In her examination-in-chief she corroborated the story of
F.I.R. According to her, at or about 11:30 pm., while she was sleeping in a

room of her employer, suddenly she woke up and found the appellant

molested her breast. She screamed for help but the accused/appellant

gagged her mouth and also threatened her. Thereafter, the

accused/appellant disrobed her and committed rape. After doing that

shameful act, the accused left the place, with a warning that if she would

divulge the incident to others, she would be taken to task.

9. Her such part of evidence has to be scrutinized along with other

related matters. In the F.I.R. she had categorically mentioned that the

accused used to give her indecent proposal time and again but she did not

disclose the same to others particularly to her parents and owner of weaver’s

workshop before the alleged incident of rape occurred. There is nothing in

the F.I.R. whether door was closed or bolted from inside where she was

sleeping. Normally a woman does not sleep at night keeping the door

deliberately open. It transpires from her evidence that not only in one

occasion, the accused committed rape upon her time and again. If it is so

why she did not disclose the same to her parents immediately is a mystery.

Thereafter, may be the victim was reluctant to say it others out of shame but

she ought to have divulged it to her parents. Only for the first time, when

she claimed to have become pregnant, she disclosed the incident to the

owner of the handloom factory, where she had been working at that time.

Normally the victim of such cases discloses the matter to her mother first.

One thing that cannot be lost sight of that after three months of pregnancy

there must be some physical changes in the body of the victim which could

have attracted the attention of her mother. If she missed her menstruation
during those months, she ought to have disclosed it to her mother, who in

turn, would not wait for more to lodge the complaint. She gave statement

before the learned Magistrate under Section 164 of Cr.P.C. What she had

not stated in the F.I.R., this time she disclosed something more. According

to her, the appellant proposed her to marry and in one occasion the accused

disrobed her and penetrated his penis in her vagina. He did the same thing

subsequently also. When she became pregnant, she requested the appellant

to marry and when the appellant refused, she lodged the F.I.R. Thereafter,

she stated that due to Diarrhoea her pregnancy was terminated i.e. there

was a miscarriage. So it appears that there was a proposal to marry by the

appellant and when the appellant refused to keep his promise, the F.I.R.

was lodged. She disclosed the incident to her parents after being pregnant.

Her such evidence is to be considered with a pinch of salt, because in course

of cross-examination she stated that she initially disclosed the incident to

the owner of the handloom factory wherein she had been working. After 7

days of the first incident of rape, she informed this matter to her parents,

which is quite unusual and unbecoming, because her parents’ house is

within one hour’s walking distance. One other thing has to be highlighted

here i.e. regarding her alleged pregnancy and miscarriage for Diarrhoea. The

victim had been examined by the doctor who opined that there was no

external and internal injury to any of her sexual organs at the time of

examination. She was advised to undergo USG as the menstrual history was

not available. It is perhaps needless to mention that even if there is

miscarriage there must be a sign in the relevant part of her body that she

was pregnant at any material point of time. Doctor concerned did not give
any opinion that there was any miscarriage of pregnancy. Therefore story of

miscarriage is also not substantiated in this regard.

10. In this connection, I want to refer to the cross-examination of P.W.

9, who is the father of the victim. In his cross-examination he specifically

stated “I also handed over the medical papers of said termination of

pregnancy to the police”. But the said document has not been produced.

Therefore, the prosecution could not establish that there was at all any

miscarriage. In cross-examination the victim stated that she used to stay in

night in the machine room. In details, she had given topography stating that

there are ditches of two feet after each machine. There is no space except for

sitting arrangement of weaving for each machine. One side of the machine

room is open.

11. The more interesting part of her evidence is such that in course of

cross-examination she admitted that blood was oozing out from her vagina

after the incident. In spite of that she candidly stated that she did not

sustain any injury. How far it is believable? A tender aged girl, who does not

have any experience of sexual intercourse, certainly would feel severe pain

in her private parts, if blood oozed out from her vagina. She further stated,

on the same night at or about 12:00/1:00 am., she disclosed the incident to

her employer. It was suggested to her that she had an illicit relation with the

son of her employer and for which she became pregnant but she ruled out

the said suggestion. In course of cross-examination, she however admitted

that she was driven out by her employer when she was pregnant for four

months. After scrutinizing the evidence of victim’s father statement under

Section 164 of Cr.P.C. and the medical report of the victim, I am of the view,
that there are strong suspicions regarding the story of the prosecution.

Firstly, the prosecution could not establish the correct age or approximate

age of the victim to the best judicial satisfaction of this Court. Two

Admission Registers are being maintained by the same school authority. The

said two Admission Registers showed the different date of birth of the victim.

The school authority used to take the document on the basis of which

entries are being made in their register at the time of admission. But the

prosecution could not bring that document. There are serious discrepancy

regarding miscarriage and the report of the doctor. There are vital omissions

in the F.I.R. about the proposal to marry by the accused at the time of

commission of rape and victim’s proposal to the accused to marry her which

ended in refusal.

12. P.W. 10 is the mother of the victim. She stated that victim

disclosed her about the alleged incident. In course of cross-examination she

stated that the victim divulged the incident to her after one month from the

date of incident. Evidence of P.W. 8 (victim) is completely different.

According to P.W. 8, she disclosed it after one week to her mother. P.W. 11

stated about the prosecution case but she is neither the eye-witness nor had

any direct any knowledge about the incident. She, however, stated that she

was not at all examined by the Investigating Officer. P.W. 12 stated that

victim disclosed the incident to him. But the victim herself did not say so.

Investigating Officer candidly admitted in his cross-examination that he had

not seized any document regarding termination of pregnancy.

13. At the time of hearing argument learned Counsel appearing on

behalf of the appellant relied on a decision reported in (2001) 9 SCC 452
Dilip Another vs. State of Madhya Pradesh. It is axiomatic truth that sole

testimony of prosecutrix can be accepted if there is impress of truth in it.

Certainly ‘probabilities factor’ operates. But if the testimonies of the victim

does not inspire confidence, and upon considering the entire evidence of the

supporting prosecution story, then only on the basis of the sole testimony of

the victim accused cannot be brought to book. In this case there are

enormous discrepancies and for which judgment of the Hon’ble Apex Court

supports the present appellants.

14. Learned Trial Court had mainly concerned with the proposition

that a rustic lady normally does not come to Court to divulge her grievances

by branding herself as an unchaste woman. Relying on a judgment reported

in AIR 1983 SC 753, he also borrowed the authority that corroboration is

not the sine-qua-non for a conviction in a rape case. So far as ratio is

concerned there is nothing to dispute but at the same time it has to be kept

in mind that ratio has to be determined in favour of the prosecutrix for her

solitary statement, if it inspires confidence. If the facts and circumstances of

a case is not akin to the cases in which ratio was laid down in that case it

may not be accepted. Court is to consider the quality of the evidence and its

surrounding circumstances. Robust common sense, normal course of

conduct cannot be ignored.

15. I have already indicated in detail about the loopholes of the

evidence and naturally I am unable to concur with the view of the learned

Trial Court.

16. Therefore, the judgment and order of conviction passed by the

Additional Sessions Judge, 5th Court Krishnanagar, Nadia is quite
unsustainable and accordingly it is set aside. Accordingly, the criminal

appeal is allowed. The accused/appellant is in custody. He is hereby

acquitted of the charge levelled against him. He shall be set at liberty at

once.

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

below at once for information and taking necessary action.

18. 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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