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Mohan Halder vs The State Of West Bengal on 12 October, 2018

IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
APPELLATE SIDE

BEFORE:-
THE HON’BLE JUSTICE RAJASEKHAR MANTHA

C.R.A. No. 291 of 2007

MOHAN HALDER.

VERSUS

THE STATE OF WEST BENGAL

For the Appellant : Ms. Eshita Dutta

For the State : Mr. Arun Kr. Maity
Mr. Bitashok Banerjee

Judgment On : 12.10.2018

Rajasekhar Mantha, J.:-

1.

The instant appeal is directed against the judgment and order dated 31st

January 2006 passed by the learned Additional Sessions Judge, First Track

Court- IV, Alipore, South 24 Parganas, in Sessions case No. 14 (5)/04 and

Sessions Trial No. 7(6)/04 whereby the appellant was convicted and

sentenced to seven years imprisonment under Section 376 of the Indian

Penal Code and was fined Rs.3,000/- in default to suffer RI for two months.

2. The prosecution case is that the appellant on 10th February 2003 at about

10:30 pm went to the house of the prosecutrix and asked her to accompany

him to their uncle’s house.

3. At the uncle’s place the appellant and the uncle consumed country liquor.

The appellant proposed to drop the prosecutrix home but the appellant
however took the victim to nearby field where he made the victim lie down

and started to take off her garments. When the victim girl protested the

appellant threatened to kill her. The appellant also slapped the victim girl to

secure her consent and silence. He thereafter committed sexual intercourse

on her. The victim girl deposed that after the incident she left the field and

returned to her house. PW 6, mother of the victim and the prosecutrix

lodged a complaint with the Canning Police Station on 12th February 2003.

The victim was above 17 years of age, at the time of the incident.

4. The victim girl was sent for medical examination 16 days after the

incident where the medical examiner found the hymen ruptured and that it

was not habitual in nature. There was no external injury marks found but

there was evidence of intercourse. The vaginal swab and smear were

prepared and sent for F.S.L. report by the Medical Examiner. The same was

however not collected or produced in evidence in course of the trial.

5. The prosecution examined as many as 14 witnesses.

PW 1 (the victim girl).

PW 2 (uncle of the victim girl)

PW 3 (grandmother of the victim girl)

PW 4 (acquaintance of the victim girl)

PW 5 (acquaintance of the appellant and the victim girl)

PW 6 (mother of the victim girl)

PW 7 (grandfather of the victim girl)

PW 8 (Medical Examiner)

PW 9 (another Medical Examiner)

PW 10 (the Assistant Sub-Inspector)

PW 11 (doctor who conducted the ossification test)
PW 12 (the A.C.J.M.)

PW 13 (the scribe of the complaint)

PW 14 (the I.O.)

6. The Sessions Judge found favour with the evidence of the victim girl and

held the prosecution case proved. He found that the evidence of the mother

and the relations of the prosecutrix even if not corroborative were normal

and probable.

7. The appellant would argue firstly that there was admittedly a family

dispute with regard to sharing of fish in a pond that was originally joint

family property. The prosecutrix and her family are stated to have been

deprived of their share of the fish from the said pond. The appellant would

argue that the appellant was implicated in the instant case falsely and out of

family vendetta in connection with such dispute. The appellant would next

argue that there were serious discrepancies in the evidence of the

prosecutrix as to how she left the place of occurrence. While the victim girl

deposed that she walked back to her residence, the mother of the victim girl,

PW 6, had stated that the victim girl was found by her lying in the field and

she took her home. In the complaint to the Police Station as also in the

statement under Section 164 of the Cr.P.C. the prosecutrix had stated that

she went home from the place of occurrence on her own.

8. It was further argued that the prosecutrix and the prosecution had only

charged the appellant of a single incident of rape, whereas the mother of the

victim in her evidence had stated that a second incident of rape occurred in

nearby banana grove on the same night. The prosecutrix in the statement

under Section 164 of the Cr.P.C. had also alleged two incidents of rape like
her mother. It was also argued by the appellant that the victim girl in

course of cross-examination had stated that she enjoyed intercourse on the

said night while in the examination in chief she had stated that she was

crying during the incident.

9. It was also argued that the victim girl was sent for medical examination

16 days after the incident and the F.S.L. report of the vaginal swab and

smear was not produced by the prosecution in evidence. Even the garments

worn by the victim at the time of occurrence was not sent for chemical

examination by the police authorities despite being seized. Hence, according

to Counsel for appellant, the charge against the appellant could not have

been deemed proved.

10. Per contra the State would argue that conviction under Section 376 of

the Indian Penal code can be made relying upon sole evidence of the

prosecutrix, if the same is found to be reliable, consistent and corroborated

by the medical and F.S.L, reports. Corroboration by independent and other

witnesses may not be required in such circumstances. The prosecution

relied upon the decision of Supreme Court in Y. Srinivasa Rao Vs. State of

AP reported in 2010 SCC Page 714. He also relied upon a case of Karnail

Singh Vs. State of MP reported in (1995) 5 SCC Paragraph 7. The

prosecution also relied upon the case of State of HP Vs. Srikant Sikari

reported in AIR 2004 SC 4404.

11. The appellant relied upon the decision of the Supreme Court in the case

of Dilip and another Vs. State of MP reported in (2001) Volume 9 SCC

Page 452 and another decision of the Supreme court in Narendar Kumar
Vs. State of NCT reported in (2012) 7 SCC 171 particularly Paragraph 29

and 30 thereof.

“29. However, even in a case of rape, the onus is always on the
prosecution to prove, affirmatively each ingredient of the offence
it seeks to establish and such onus never shifts. It is no part of
the duty of the defence to explain as to how and why in a rape
case the victim and other witnesses have falsely implicated the
accused. The prosecution case has to stand on its own legs and
cannot take support from the weakness of the case of
defence. However great the suspicion against the accused
and however strong the moral belief and conviction of the court,
unless the offence of the accused is established beyond
reasonable doubt on the basis of legal evidence and material on
the record, he cannot be convicted for an offence. There is an
initial presumption of innocence of the accused and the
prosecution has to bring home the offence against the accused
by reliable evidence. The accused is entitled to the benefit of
every reasonable doubt. (Vide Tukaram v. State of
Maharashtra [(1979) 2 SCC 143 : 1979 SCC (Cri) 381 : AIR 1979
SC 185] and Uday v. State of Karnataka [(2003) 4 SCC 46 :
2003 SCC (Cri) 775 : AIR 2003 SC 1639] .)

30. The prosecution has to prove its case beyond reasonable
doubt and cannot take support from the weakness of the case of
defence. There must be proper legal evidence and material on
record to record the conviction of the accused. The conviction
can be based on sole testimony of the prosecutrix provided it
lends assurance of her testimony. However, in case the court
has reason not to accept the version of the prosecutrix on its
face value, it may look for corroboration. In case the evidence is
read in its totality and the story projected by the prosecutrix is
found to be improbable, the prosecutrix’s case becomes liable to
be rejected.”

12. In the case of Ramdas Vs. State of Maharashtra reported in (2007)2

SCC 170, the Supreme Court held as follows:

“23. It is no doubt true that the conviction in a case of rape can
be based solely on the testimony of the prosecutrix, but that can
be done in a case where the court is convinced about the
truthfulness of the prosecutrix and there exist no circumstances
which cast a shadow of doubt over her veracity. If the evidence
of the prosecutrix is of such quality that may be sufficient to
sustain an order of conviction solely on the basis of her
testimony. In the instant case we do not find her evidence to be
of such quality.

25. In the instant case there are two eyewitnesses who have
been examined to prove the case of the prosecution. We have
rejected outright the evidence of PW 5. We have also critically
scrutinised the evidence of the prosecutrix, PW 2. She does not
appear to us to be a witness of sterling quality on whose sole
testimony a conviction can be sustained. She has tried to
conceal facts from the court which were relevant by not
deposing about the earlier first information report lodged by her,
which is proved to have been recorded at the police station. She
has deviated from the case narrated in the first information
report solely with a view to avoid the burden of explaining for
the earlier report made by her relating to a non-cognizable
offence. Her evidence on the question of delay in lodging the
report is unsatisfactory and if her deposition is taken as it is,
the inordinate delay in lodging the report remains unexplained.
Considered in the light of an earlier report made by her in
relation to a non-cognizable offence, the second report lodged by
her after a few days raises suspicion as to its truthfulness.”

13. In State of Karnataka Vs. Moujanna reported in (2000) 6 SCC Page

188 at Paragraph 18 the Supreme Court held as follows :

“18. Before parting with the case, we wish to put on record our disapproval
of the refusal of some government hospital doctors, particularly in rural
areas, where hospitals are few and far between, to conduct any medical
examination of a rape victim unless the case of rape is referred to them by
the police. Such a refusal to conduct the medical examination necessarily
results in a delay in the ultimate examination of the victim, by which time
the evidence of the rape may have been washed away by the complainant
herself or be otherwise lost. It is expected that the appellant State will
ensure that such a situation does not recur in future.”

14. I have carefully considered the arguments and the decisions relied upon

by the parties. It is trite law that an accused can be convicted under Section

376 of the Indian Penal Code on the sole evidence of the prosecutrix.

Corroboration from other witnesses need not be always relied upon.

However to prove the occurrence of rape/intercourse medical examination

and the chemical examination reports are vital. More so instant case where

DNA test was not conducted.

15. In the instant case it is found that the victim girl was sent for medical

examination 16 days after the incident. There is clear unexplained failure

on the part of the officials of the Canning Police Station in this regard. A

medical examination of a Rape Victim conducted after 16 days of the

incident cannot be of any conclusive value. Valuable evidence may no

longer exist at the 16 days. Hence the ruptured of the hymen as indicated

by the medical officer cannot be conclusively linked to the appellant.

16. What is however fatal to the case is that the F.S.L. report of the vaginal

swab and smear have not seen in the light of the day. The said report has

not been produced in evidence by the prosecution. The said report has not

ever been collected from the laboratory. Even assuming for the sake of the

argument that such report in fact exists, the samples having been taken

from the victim girl 16 days after the incident are unlikely to reveal any

conclusive results to implicate the appellant. The medical report and the

F.S.L. report if obtained in time would have indicated the actual role played

by the appellant in the commission of the offense in which he was charged.

17. Even the garments worn by the victim were not sent for chemical

examination by the police. The F.S.L. report in respect of garments would

have revealed blood/semen and would have been vital to prove the case of

the prosecution.

18. It is in this context that the corroboration of the version of the victim

must be tested vis-a-vis the evidence of the other witnesses. There is

serious inconsistency between the statement of the victim girl under Section

164 of the Cr.P.C. and the evidence tendered in her examination in chief. In

the statement under Section 164 of the Cr.P.C. the victim girl had stated
and referred to two incidents of forced sexual intercourse on the fateful

night on 10th of February 2003. One in the open field and another after

sometime in a banana grove. The mother of the victim girl in her

examination in chief had also stated that there were two instances of

intercourse/rape on the said night. However, very strangely the victim girl

referred to only one incident of intercourse in the open field and the same

version is also evident from the complaint transcribed by a family friend

issued under the thumb impression of the victim girl and proved in course

of trial. One of the wonder as to why the second incident of rape if at all was

not deposed by the victim girl or did not form part of the prosecution case.

There are also serious in the consistencies between the PWs on the actual

facts surrounding the incident.

19. The PW 1 had stated that her mother did not allow the victim to go

anywhere with the appellant yet the victim voluntarily went away with the

appellant. As to why the victim voluntarily accompanied the appellant

without her mother’s permission. Despite serious family disputes remains

unexplained.

20. The PW 2 and PW 6 stated that the victim and appellant went to local

shop to buy Muri and Chop (Rice Crispies and fritters). This has been

denied by the PW 1. The shopkeeper was neither named as a witness in the

chargesheet and was not produced in event. The said fact if proved would

have shown some relationship between the appellant and the victim, based

on which she accompanied him to the field. This coupled with evidence that

she enjoyed the intercourse with the appellant and the suppression of the
second intercourse in the banana field may indicate voluntary participation

in the act of sexual intercourse with the appellant.

21. The State would argue that the appellant did not even suggest in defence

that he had not committed any intercourse much less rape and that he was

being falsely implicated by the victim girl and her family.

22. It is now well-settled that it is for the prosecution to prove a case before

the Trial Court in the absence of any conclusive proof of such case, the

presence or absence of defence is totally irrelevant. In any event in the

examination of the 313 of the Cr.P.C. the appellant had wholly denied the

incident and had stated that charge was false and concocted.

23. In the above circumstances, I am of the view that the prosecution has

miserably failed to prove its case. The appellant could not have been

convicted and sentenced on the evidence before the Court below.

24. In those circumstances, the impugned order of sentence and conviction

is hereby set aside and the appellant is acquitted on the benefit of doubt.

25. The appeal is allowed.

26. There shall be no order as to costs.

27. Urgent Xerox certified copy of this judgment, if applied for, be supplied

to the parties on urgent basis.

(Rajasekhar Mantha, J.)

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