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Ashok Majumdar vs The State Of West Bengal ….. … on 20 August, 2019

Form No.J(1)

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION

Present:

The Hon’ble Justice Asha Arora

C.R.A. 344 of 2017

Ashok Majumdar ….. Appellant
versus
The State of West Bengal ….. Opposite Party

For the Appellant : Mr. Sanjib Mitra, learned advocate,
Ms. Sarbani Chakraborty, learned advocate.

For the State : Ms. Sukanya Bhattacharya, learned advocate,
Ms. Manasi Roy, learned advocate.

Hearing concluded On: 20.08.2019.

Judgement On : 20.08.2019.

Asha Arora, J. :

1.

Challenge in this appeal is to the judgement and order of conviction and

sentence dated 15.05.2017 and 16.05.2017 passed by the Additional

Sessions Judge, 5th Court, Howrah in Sessions Trial No. 74 of 2015

whereby the accused/appellant was convicted for the offences punishable

under Sections 376 and Section417 IPC and sentenced to suffer rigorous

imprisonment for seven years and to pay fine of Rs.3,000/- in default to

suffer simple imprisonment for three months for the offence punishable
under Section 376 IPC. The appellant was further sentenced to suffer

rigorous imprisonment for two months and to pay fine of Rs.1,000/- in

default to suffer simple imprisonment for one month for the offence

punishable under Section 417 IPC. Both the sentences were ordered to run

concurrently.

2. Sans unnecessary details, the facts leading to the instant appeal may be

summarised as follows :

3. On 28.11.2014 at 21.45 hrs. the prosecutrix Mangala Mondal lodged a

written complaint at A.J.C. Bose B. Garden P.S., Howrah alleging that she

used to work as domestic help in the house of Ashok Majumdar, the

accused/appellant who had sexual intercourse with her for many days on

the pretext that he would marry her. Due to such physical relationship the

prosecutrix became pregnant. When she informed the accused/appellant

about her pregnancy and asked him to marry her, he refused and drove

her away. On the basis of the aforesaid written complaint, A.J.C. Bose B.

Garden P.S. Case No. 214 of 2014 dated 28.11.2014 was initiated under

Section 376 IPC against the accused/appellant. Investigation culminated in

the submission of the charge-sheet under Section 376 IPC against the

accused/appellant.

4. The trial Court framed charge for the offences punishable under Sections

376 and Section417 IPC against the accused/appellant who pleaded not guilty to

the indictment in consequence of which trial commenced. In course of trial
prosecution examined nine witnesses including the prosecutrix/victim and

relied upon several documents which were marked as exhibits.

5. Defence version in brief as is projected from the trend of cross-examination

of the prosecution witnesses as well as from the examination of accused

under Section 313 of the Code of Criminal Procedure is innocence, denial

of the prosecution case and false implication. It was suggested to the

prosecutrix in cross-examination that she had sexual relationship with

several men as a result of which she became pregnant and the accused

Ashok Majumdar never had any sexual relationship with her. She has

falsely implicated the accused to grab his room. No evidence was, however,

led by the accused in support of such plea.

6. On the basis of the evidence on record the trial Court convicted the

appellant for the offences punishable under Sections 376 and Section417 IPC and

sentenced him as aforesaid.

7. Learned advocate for the appellant strenuously argued that there are

discrepancies and contradictions in the evidence of the victim in relation to

the evidence of the other witnesses. It is submitted that the testimony of

the victim is far from trustworthy. If at all there was any sexual

relationship as alleged, it was consensual and the consent of the

prosecutrix was not in consequence of any misconception of fact since she

was fully aware of the fact that the accused is married. Referring to the

cross-examination of PW-1, learned counsel pointed out that the
prosecutrix remained silent and chose not to inform about her alleged

sexual relationship to any of her family members which indicates that she

was a consenting party. Referring to the discrepancies in the evidence,

learned counsel pointed out that the prosecutrix (PW-1) stated in her

evidence that the house of the accused is about five minutes walking

distance from her house whereas it has transpired in the cross-

examination of her father (PW-6) that the house of accused is on the

“adjacent southern side” of his house while the Investigating Officer, on

being quizzed in cross-examination was unable to state the distance

between the house of the accused and the prosecutrix. It is contended that

both PW-2 and PW-6 stated in their cross-examination that the victim was

taken to Dr. Dilip Bhattacharya on 28.11.2014 but while PW-2 asserted

that the doctor issued prescription which was not handed over to the

Investigating Officer, PW-6 could not say whether the doctor issued any

prescription. It is canvassed that the FIR was not exhibited since the scribe

(of the FIR) could not be examined. According to the learned advocate,

there is, therefore, no FIR in this case. Assailing the DNA test report as

unreliable, learned counsel for the appellant sought to impress that the

prescribed procedure was not followed for the collection, preservation and

transportation of the blood samples. Referring to the evidence of the

Investigating Officer (PW-9) it is submitted that the blood sample of the

accused/appellant was collected on two dates namely, on 06.01.2015 and

28.07.2015 but there is no DNA report regarding the blood sample which
was sent on the first mentioned date. It is argued that the blood samples

were tampered to obtain the desired result in favour of prosecution. To

buttress his submissions learned counsel for the appellant placed reliance

on the case of Uday versus State of Karnataka reported in 2003 (2) Supreme

145 (paragraphs 21 and 23). Reference has also been made to Promod Das

Pathak versus State of Assam reported in 2008 (3) Crimes 24 of Gauhati

High Court (paragraph 9). It is contended that the prosecutrix remained

silent regarding her sexual relationship till she became pregnant though

there was no threat or intimidation from the side of the accused/appellant.

In this context learned counsel for the appellant referred to the case of

Abdul Salam versus State of M.P. reported in 2006 CrLJ 4734 (paragraph 8).

Referring to the case of Mohan Lal versus State of Rajasthan reported in

2003 (2) Crimes 501 Supreme Court, it is argued that since the prosecutrix

was a major and a consenting party, the ingredients of the offence under

Section 375 IPC are not attracted to the case in hand as there was no

misconception of fact. Referring to “Exception 1” to Section 375 IPC it is

pointed out that a medical procedure or intervention does not constitute

rape so the DNA report is merely a supporting evidence and is not

conclusive proof of paternity. On the basis of the DNA test report the

accused/appellant cannot be held guilty of the charge under Section 376

IPC. To fortify such submission reliance has been placed on the case of

Premjibhai Bachubhai Khasiya versus State of Gujarat and Another reported

in 2009 (4) Crimes 281 of Gujarat High Court.

8. Per contra, learned advocate appearing for the State argued that the

prosecutrix belonged to the strata of society in which second marriage

during the subsistence of the first marriage is quite normal. The fact that

the prosecutrix was aware that the accused/appellant is married and had

a family does not in any manner affect the prosecution case. Placing

reliance on the case of Karthi Alias Karthick versus State represented by

Inspector of Police, Tamil Nadu reported in (2013) 12 Supreme Court Cases

710 it is contended that the appellant deceived the prosecutrix by holding

out a false promise of marriage. On the strength of such deception the

appellant had sexual intercourse with the prosecutrix several times in

consequence of which she became pregnant. According to the learned

counsel for the State, in view of the facts and circumstances of the case in

hand conviction of the appellant for the offences charged is justified. It is

argued that adverse presumption may be drawn against the

accused/appellant in terms of illustration (h) to Section 114 of the

Evidence Act since he declined to submit to potency test. In support of

such submission reliance has been placed on Dipanwita Roy versus

Ronobroto Roy reported in (2015) 1 Supreme Court Cases 365 (paragraph

18). Referring to the case of Kamalanantha and others versus State of Tamil

Nadu reported in (2005) Supreme Court Cases 194 (paragraph 63) it is

argued that tampering or contamination of blood sample does not result in

proper match. It can give rise to exclusion not to positive inclusion.

9. It is well settled by a catena of judicial pronouncements of the Supreme

Court that a victim of sexual assault is the best witness and her evidence is

entitled to great weight absence of corroboration notwithstanding.

Conviction can be based on the testimony of the prosecutrix alone without

insisting on corroboration even from medical evidence if the testimony of

such a witness inspires confidence. At this juncture it may be useful to

refer to the evidence of the prosecutrix (PW-1) which is quoted hereinbelow

:

“I lodged a complaint at B. Garden P.S. against Ashok Majumdar. He is

present in court (identified in dock). I was a domestic help in the house of

Ashok Majumdar about two years back. Ashok Majumdar told me that he will

marry me and on assurance of it he slept with me. Due to that I became

pregnant. When I told him that I am pregnant he drove me out from his

house. Then I went to police station and narrated the incident there. I was

sent to Howrah District Hospital by the police and I was examined there.

Doctor prepared a report wherein I put my L.T.I.

I was sent to the Ld. Magistrate on the day when I was examined at

the hospital. I stated before the Ld. Magistrate that I was raped on the

pretext of marriage. The statement was read over to me as recorded by the

Ld. Magistrate and thereafter I put my L.T.I. on it. I lodged a complaint

which was scribed by one Pathak Babu. I do not know the good name of

Pathak Babu. The complaint was read over to me and after hearing it I put

my L.T.I. on it. I narrated the incident to the police and whatever I deposed

before this court I stated to the police. I gave birth to my daughter one year
back. I was admitted at Howrah Hospital and I gave birth to my daughter

there. I was sent to the hospital by the police along with my daughter for

D.N.A. test.”

Being quizzed in cross-examination PW-1 stated that she worked for about

two months in the house of the accused/appellant. It has surfaced in her

cross-examination that she used to work as maidservant in six houses. A

futile suggestion was given to PW-1 in cross-examination that she falsely

implicated the accused in this case to grab his room. No material

contradiction or discrepancy could be pointed out in the evidence of PW-1

in relation to her statement under Section 161 CrPC or under Section 164

CrPC. The evidence of the prosecutrix remained unscathed in cross-

examination. Normally a lady would not put her honour at stake by

inventing a false charge of rape against an innocent person to shield the

real offender who is the father of her child. The prosecutrix, a poor illiterate

lady had no axe to grind against the accused. No plausible motive could be

attributed to the prosecutrix for bringing a false charge of rape against the

accused/appellant. So the plea of false implication does not appeal to

reasoning. On the point of discrepancies in the evidence of the prosecutrix

in relation to the evidence of PW-2 and PW-6 as pointed out by the learned

counsel for the appellant, it is well settled that while appreciating the

evidence of a witness, minor discrepancies on trivial matters not affecting

the core of the prosecution case ought not to prompt the Court to reject the

evidence of a witness in its entirety. It is the totality of the situation that
has to be taken note of. It is only when discrepancies in the evidence of a

witness are so incompatible with the credibility of his version that the

Court is justified in jettisoning his evidence. In the case in hand, the

discrepancies referred are minor in nature which do not affect the

substratum of the prosecution case. Referring to the evidence of PW-1 and

PW-6 learned counsel for the appellant tried to create confusion regarding

the distance of the house of the accused from the house of the prosecutrix

but there is no scope for confusion in view of the sketch map with index of

the P.O. (exhibit-8) and the evidence of the Investigating Officer (PW-9)

wherein it has surfaced in his cross-examination that the house of the

accused and the house of the victim are shown as shanties on government

abandoned land. It is not in dispute that the appellant is known to the

prosecutrix and they reside within close proximity of each other. The minor

discrepancies pointed out by the learned counsel in no way make the

prosecution case doubtful since the core of the evidence has a ring of truth.

We cannot lose sight of the fact that the prosecutrix and her father as well

as PW-2 are illiterate not expected to possess the same intelligence as an

educated person. This apart, power of observation, retention and

recapitulation differ from person to person.

10. In Krishna Mochi and others versus State of Bihar reported in 2002 CRI.L.J.

2645 the Supreme Court held that even if the FIR is not proved, it would

not be a ground for acquittal of the accused. The case would depend upon

the evidence led by prosecution. Therefore in the case in hand, non-
examination of the scribe and the fact that the FIR has not been proved

does not in any manner affect the prosecution case. It is clear from the

evidence of the prosecutrix (PW-1) that the FIR was scribed by one Pathak

babu as per her instruction and its contents were read over to her

whereafter she put her LTI on it. The scribe is a formal witness who had no

personal knowledge regarding the incident. Therefore non-examination of

the scribe pursuant to which the FIR could not be admitted in evidence is

not fatal to the prosecution case.

11. Equally untenable is the argument that the DNA test report (exhibit-11) is

not worthy of credence. In this context it may be worthwhile to refer to the

result/report of DNA test of the blood samples of the prosecutrix, her baby

and the accused which is as follows :

“a) the genetic profile of Ms. Mangola Mandal (source of Exhibit – B) is

consistent as the biological mother of Baby Ayushi Mandal (source of

Exhibit-C)

b) the genetic profile of Mr. Ashoke Majumder (source of Exhibit-A) is

consistent as the biological father of Baby Ayushi Mandal (source of Exhibit-

C).”

It is true that DNA test report is a corroborative piece of evidence and can

be relied if the other evidence is credible and trustworthy. In the case in

hand, there is no reason to disbelieve the evidence of the prosecutrix which

is convincing and beyond reproach. The DNA test report confirmed the
paternity of the accused as the father of the child begotten by the

prosecutrix as a result of physical relationship with the accused/appellant.

The evidence of the prosecutrix is corroborated by the medical evidence of

PW-4 the medical officer who testified regarding her pregnancy. The

prosecutrix was examined by PW-4 on 29.11.2014. On examination the

prosecutrix was found to be thirty weeks’ pregnant. The factum of paternity

of the accused/appellant is corroborated by the DNA test report. The

argument that the blood sample of the accused/appellant was taken on

two different dates that is, on 06.01.2015 and again on 28.07.2015 is

justified by the reason given by the Investigating Officer (PW-9) in his

evidence which is quoted hereinbelow :

“I took the accused for his medico legal examination at Howrah

District Hospital and he refused to be medically examined for his potency

test. This is the refusal note of the accused Ashok Majumdar and this is my

signature dated 06.01.2015 and the said signature is marked as exhibit 5/1.

I took the accused for his D.N.A. profile test on 06.01.2015 and his

blood was collected for ascertaining DNA Profile and a form was filled up for

Blood Sample Authentication Form dated 06.01.2015 wherein I put my

signature after filling up of the said form. This is the said form dated

06.01.2015 and this is my signature and the signature in the Blood Sample

Authentication Form dated 06.01.2015 is marked as Exhibit 2/1.

I sent the blood sample for DNA Profile test to FSL, Kolkata and I was

instructed from FSL, Kolkata to collect the Blood sample of the accused

along with the victim and the baby and to send the same for ascertaining
and matching the D.N.A. Profile. Accordingly I again took the accused, the

victim and baby Ayushi Mondal for collection of their blood to ascertain

D.N.A. profile at Howrah District hospital on 28.07.2015.”

In the case in hand positive report of DNA test clearly rules out the

possibility of tampering. Trustworthy and credible evidence of the

prosecutrix corroborated by the positive DNA report proves the prosecution

case.

12. Uday’s case (supra) is clearly distinguishable on facts from the case in

hand for the simple reason that in the aforesaid case the prosecutrix was

found to be “deeply in love” with the appellant and she was a grown up girl

studying in college. She was aware of the fact that since they belonged to

different caste, marriage was not possible. She had sufficient intelligence to

understand the significance and moral quality of the act she was

consenting to. In the aforesaid case it was held that there was no evidence

to prove conclusively that the appellant never intended to marry her. In the

case in hand, the prosecutrix is a poor illiterate maidservant who

submitted to sexual intercourse and physical relation with the appellant in

lieu of his promise to marry her. It is evident that the victim/prosecutrix

was induced to believe that the appellant would marry her. It is also clear

from the evidence that the accused/appellant refused to marry the

prosecutrix when she approached him after becoming pregnant. There is

nothing on record to indicate that the victim was a lady of easy virtue or
was in the habit of having sexual relation with other men so the defence

suggestion in cross-examination to the prosecutrix/victim that she became

pregnant through some other person is wholly abortive. The consent of the

victim was obviously obtained in lieu of a false promise of marriage given

by the accused/appellant and hence such consent was not a free consent.

It was rather a consent under a misconception of fact within the meaning

of Section 90 IPC and as such the act of the accused amounted to an

offence under Section 375 IPC. It is evident that from the very inception

accused never intended to marry the prosecutrix and his intention was

malafide, his only object being to exploit the prosecutrix sexually.

13. Promod Das’s case (supra) is not applicable to the case in hand. In the case

in hand, the prosecutrix remained silent though there was no threat or

intimidation for the simple reason that she was under the impression that

the accused/appellant will marry her. Under this misconception of fact she

remained silent till she became pregnant. Premjibhai’s case (supra) is also

of no help to the appellant. In the aforesaid case the prosecutrix testified

that some unknown persons had raped her and pregnancy was the

outcome of such offence. In the case in hand, it is the categorical evidence

of the prosecutrix that the appellant/accused is the offender and it is not

in dispute that the prosecutrix and the appellant are known to each other

and residing in the same place. Reference to paragraph 15 of the aforesaid

case is of no avail for the simple reason that in the case in hand, the DNA

test report is not the solitary piece of evidence relied upon by the
prosecution. It supports and corroborates the trustworthy and reliable

evidence of the prosecutrix. For the same reason Abdul Salam’s case (supra)

and Mohan Lal’s case (supra) are distinguishable on facts from the case in

hand and are of no assistance to the appellant.

14. For the reasons afroestated, I am of the firm view that the appeal is devoid

of merit and the impugned judgement of conviction and sentence passed by

the trial court warrants no interference.

15. Consequently, the appeal fails and is accordingly dismissed.

16. The appellant shall surrender before the trial court within one month from

this date to serve out the sentence in default of which the trial court shall

take appropriate steps against the appellant/accused for execution of the

sentence in accordance with law.

17. A copy of this judgement along with the lower court records be sent

forthwith to the trial court for information and necessary action.

18. Urgent photostat certified copy of this judgement, if applied for, be given to

the applicant upon compliance of requisite formalities.

( ASHA ARORA, J. )

P.M./dc.

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