IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present : The Hon’ble Justice Nadira Patherya
The Hon’ble Justice Amitava Chatterjee
C.R.A. No. 492 of 2015
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
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
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:-
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
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
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
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:-
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.
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.
(Amitabha Chatterjee, J.)