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Shibcharan Barman @ Sepai Barman vs The State Of West Bengal on 14 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. 468 OF 2016

Shibcharan Barman @ Sepai Barman … Appellant ( In Jail)
– Versus –
The State of West Bengal …. Respondent

For Appellant : Mr. Atis Biswas, learned
advocate appears as Amicus Curiae

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

Hearing concluded on : 14.08.2019

Judgement on : 14.08.2019

Asha Arora, J.:

1. This appeal has been preferred against the judgement and order of conviction and

sentence dated 30th May, 2016 and 31st May, 2016 passed by the Additional Sessions Judge,

Fast Track Court – 1, Raiganj in Sessions Trial No. 74 of 2009 arising out of Sessions Case

No. 245 of 2008 whereby the accused/appellant was convicted for the offences punishable

under Sections 323 and Section376 I.P.C. and sentenced to suffer simple imprisonment for one year

for the offence punishable under Section 323 I.P.C. and he was sentenced to suffer simple

imprisonment for seven years and to pay fine of Rs. 20,000/- in default to suffer simple
imprisonment for one year for the offence punishable under Section 376 IPC. Both the

sentences were ordered to run concurrently.

2. The facts leading to the present appeal may be summarised as follows :

On 17.06.2004 at 14.10 hrs. one Ram Gopal Barman lodged a written complaint at

Raiganj P.S. alleging that on 14.06.2004 at about 17.30 hrs. when his daughter Sufala

Barman was returning home from her maternal uncle’s house, on the way the

accused/appellant took her on his bicycle and left her near the shop of Bhabesh Barman

whereafter she was not traceable. On the following day in the morning at about 6.45 A.M.

Sufala was found lying unconscious on the bank of Bogahar pond. On being informed about

this fact, the defacto complainant brought his daughter home wherefrom she was taken to

Raiganj District Hospital for medical treatment. It is further alleged that the accused would

give indecent proposals to Sufala and would harass her in various ways. On the basis of the

aforesaid written complaint, Raiganj P.S. Case No. 151 dated 17.06.2004 was initiated under

Sections 342/Section326 I.P.C. Investigation culminated in the submission of the charge sheet

under Sections 342/Section323 I.P.C. against the accused/appellant. In course of trial, the evidence

of the victim revealed material for the offence punishable under Section 376 I.P.C. against

the accused/appellant so the Chief Judicial Magistrate, Uttar Dinajpur at Raiganj committed

the case to the Sessions Judge, Uttar Dinajpur at Raiganj in view of Section 323 of the Code

of Criminal Procedure.

3. The trial court framed charge under Sections 326 and Section376 I.P.C. against the

accused/appellant who pleaded not guilty to the indictment in consequence of which trial

commenced. During trial prosecution examined six witnesses namely, P.W. 1 who is the

victim, P.W. 2 is a co-villager and a member of the local panchayat. He is also related to the

victim. P.W. 3 is another relative of the victim. The evidence of both these witnesses is

hearsay. P.W. 4 is the scribe of the F.I.R. He has no personal knowledge regarding the
incident. P.W. 5 is the medical officer who examined the victim on the following day that is,

on 15.06.2004. This witness has testified regarding the fact that on 15.06.2004 Sufala

Barman was admitted under him and on examination he found that the abdomen of the

patient was soft and she complained of pain in her lower abdomen. According to P.W. 5 the

patient was discharged on 17.06.2004. P.W. 6 is the Investigating Officer. Apart from the

witnesses referred, prosecution relied upon some documents which have been tendered in

evidence and marked as exhibits.

4. Defence version in brief is innocence and complete denial of the prosecution case.

It was suggested to P.W. 1 in cross-examination that the accused has been falsely implicated

due to political dispute. No evidence has been led by the accused in support of such plea.

5. On the basis of the evidence on record particularly the evidence of P.W.1 the trial

Court convicted the accused for the offences punishable under Section 323 and Section376 I.P.C.

and sentenced him as aforesaid.

6. Mr. Biswas, learned advocate appearing as amicus curiae strenuously argued that

the testimony of the victim has not been corroborated by any evidence including medical

evidence. It is pointed out that the victim did not disclose the name of the accused to the

doctor (P.W. 5) who examined her on the following day nor did she disclose to him about any

injury or sexual assault upon her. It is canvassed that the victim narrated the incident of

rape for the first time in court after seven years. The alleged incident of rape was also not

stated by the victim before the Investigating Officer at the time of her interrogation under

Section 161 of the Code of Criminal Procedure. Mr. Biswas contended that there is

inconsistency in the evidence of P.W. 2 with reference to the testimony of the victim (P.W. 1).

Regarding P.W. 3 it is submitted that this witness was not interrogated by the Investigating

Officer so his evidence cannot be relied upon. Learned amicus curiae sought to impress that
in the absence of any corroborative evidence, conviction of the appellant on the basis of the

sole testimony of the victim is not justified.

7. Per contra, learned advocate appearing for the State submits that conviction can be

based on the uncorroborated testimony of a victim of sexual assault and in the instant case,

the victim had no enmity with the accused/appellant so the possibility of false implication is

ruled out. In support of such submission reference has been made to the case of State of

Punjab – versus – Gurmit Singh Others reported in 1996 (2) Supreme Court Cases

(Criminal) 384. In the same breath learned advocate for the State admitted that the victim

did not disclose to the Investigating Officer or to the Medical Officer anything about the

alleged incident of rape.

8. It is well settled by a plethora of decisions of the Supreme Court that corroboration is not

the sine qua non for conviction in a rape case. A victim of sexual assault is the best witness

and her evidence is entitled to great weight absence of corroboration notwithstanding. This

court is aware of the settled proposition of law that a victim of sexual assault is not treated as

accomplice and as such, her evidence does not require corroboration from any other evidence

including the evidence of a doctor. In a given case even if the doctor who examined the victim

does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. It

is also true that normally a woman would not falsely implicate an innocent person for a

charge of rape by putting her honour at stake. But we cannot lose sight of the fact that the

evidence of a victim of sexual assault can be relied upon without corroboration only if such

evidence is found to be credible, trustworthy and beyond reproach. The testimony of such a

victim should be appreciated in the background of the entire case. If the court finds it difficult

to place reliance on the testimony of a victim of sexual assault, it may look for corroboration

to lend assurance to her testimony. At this juncture it may be useful to refer to paragraph 16

of the judgement of the Supreme Court in Pandurang Sitaram Bhagwat – versus – State of
Maharashtra reported in (2005) 9 Supreme Court Cases 44 wherein it has been held as

follows :

“16. The approach of the learned trial Judge as noticed supra that ordinarily a lady

would not “put her character at stake” may not be wrong but cannot be applied

universally. Each case has to be determined on the touchstone of the factual matrix

thereof. The law reports are replete with decisions where charges under Sections 376

and Section354 IPC have been found to have been falsely advanced.”

9. Coming to the case in hand, in her evidence as P.W. 1 the victim narrated the

incident in the following manner :

“The incident of this case took place in the end of month of Jaistha, about 7 and

half years back. The said incident took place at about 5.00/5.30 p.m.

Prior to one day of alleged incident I came to the house of my maternal uncle Deben

Barman at Kalibari (Karanajora) and thereafter I was returning to my father’s house by

walking and when I reached near Santalpara at about 5.00/5.30 p.m. I found that

accused Shib Charan Barman @ Sipai Barman was proceeding by bi-cycle on the same

road.

Thereafter, he proposed to ride his cycle and told me that he would take me to my

father’s house. Said Shib Charan resides in the same village of my father. He called me

as “Pisi”.

As per proposal of said accused I rode his bi-cycle. But he was proceeding

towards Mission more instead of the way to my father’s house.

Thereafter, he gave me a bad proposal touching his hand on my breast and

thigh. He gave me such proposal when he reached at Kaldighi. But hearing his proposal

I got down from his bi-cycle.

Thereafter I started to go to my father’s house by walking.

But suddenly rain started to fall and the sky was covered with deep cloud.

Thereafter when I reached at Battala suddenly the said accused held me tightly and

took me near the bank of Bagahaat through the jute field. Thereafter the accused

person fell me down on the earth and opened my sari and blouse. Thereafter his penis

put into my vagina forcibly and he bit my right breast, as a result I lost my sense and

regained at Raiganj Dist. Hospital after two three days.

At hospital I found my parents, my brothers and my neighbours.

I narrated the incident to them.”

It is indeed surprising that the victim did not mention the name of the accused/appellant to

the doctor who examined her on the date of her admission at Raiganj District Hospital on

15.06.2004 or even two days thereafter. According to P.W. 5, the Medical Officer who

examined the victim at the aforesaid hospital, the patient complained of pain in her lower

abdomen. Curiously enough, the victim did not complain of rape by the accused nor did she

disclose to the doctor that she was “bitten” on her breast by the accused. The evidence of

P.W. 6 (Investigating Officer) reveals that he interrogated the victim at Raiganj District

Hospital on 17.06.2004 but there is nothing in the evidence of P.W.6 or in the evidence of the

victim to show that she had narrated the incident of sexual assault upon her to the

Investigating Officer. It appears that for the first time in Court the victim narrated the

incident of rape. In the cross-examination of the victim it has surfaced that after she

regained sense she narrated the incident to her parents, brothers and neighbours but there

is no worthwhile corroboration of her testimony in this regard. P.W. 2 has stated in his

evidence that he is a member of local panchayat and Sufala Barman is his cousin. From the
evidence of this witness it transpires that he came to know about the incident from Sufala.

The relevant portion of the evidence of P.W,. 2 is quoted herein below :

“I came to know from Sufala that she was returning to their house from the house of

her maternal uncle and while she was returning Shibcharan took her on his bi-cycle

and was carrying accordingly.

Thereafter, Shibcharan pressed the mouth of Sufala but she failed to explain what

happened thereafter because she was senseless.”

It is evident that P.W. 2 did not corroborate the version of the victim regarding rape. This

witness was not declared hostile by prosecution. There is discrepancy in the evidence of P.W.

2 in relation to the testimony of P.W. 1. In her evidence P.W. 1 stated that she lost sense

after the incident of rape whereas it transpires from the evidence of P.W. 2 that he came to

know from Sufala that the accused pressed her mouth whereafter she became senseless so

she could not say what happened after that. P.W. 3 is related to the victim. It has emerged in

the cross-examination of P.W. 3 that Sufala is his sister-in-law. According to this witness,

Sufala stated to him that Shibcharan committed rape on her but the cross-examination of

this witness reveals that he did not state to the Investigating Officer that he had heard about

the incident of rape from Sufala. P.W. 4 is a formal witness who merely scribed the F.I.R.

P.W. 5 is the Medical Officer whose evidence does not lend credence to the victim’s story of

rape and injury.

10. For the reasons aforestated the evidence of the victim does not inspire confidence

and is certainly not sufficient to justify the conviction of the accused/appellant for the

charge under Section 376 and Section323 IPC. Having regard to the totality of the circumstances I

am of the view that the charge levelled against the accused/appellant for the offences

punishable under Section 376/Section323 I.P.C. could not be proved by cogent, credible and

convincing evidence. Gurmit Singh’s case (supra) relied upon by the learned advocate for
the State is clearly distinguishable on facts from the case in hand and is, therefore, not

applicable.

11. Consequently, the impugned judgement of conviction and sentence passed against

the appellant is liable to be set aside.

12. The appeal is accordingly allowed and the impugned judgement of conviction and

sentence is set aside.

13. The appellant/accused is acquitted of the charge under Section 376/Section323 IPC.

14. The appellant shall be released forthwith from this case and be set at liberty if not

wanted in connection with any other case.

15. Let a copy of this judgement be sent to the concerned Correctional Home for

information and necessary action.

16. A copy of this judgement along with the lower court records be sent to the trial

Court.

17. 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.

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