Gourhari Jana vs State of West Bengal

Sankar Acharyya, J.—Challenging the judgment of conviction dated 29.05.2010 under Section 376 of the Indian Penal Code (in short I.P.C.) and sentence against the appellant to suffer rigorous imprisonment of ten years and to pay fine of Rs.10,000/- in default of payment of fine to suffer simple imprisonment for ten months passed by learned Additional Sessions Judge, Fast Track 3rd Court, Contai in Sessions Trial No. S.T. 5/June/2008 arising out of Sessions Case No. 318/May/2008, this appeal has been preferred by convict appellant Gourhari Jana for setting aside the said judgment (hereinafter called as impugned judgment) and for his acquittal of the charge which was framed in the trial Court against him.

In the trial Court the State prosecution examined the prosecutrix (victim) as PW 1 who is a virgin young lady aged 24 years, father in law of the elder sister of prosecutrix as PW 2, a brother by relation of PW 2 as PW 3, husband of the elder sister of prosecutrix as PW 4, a neighbour of PW 4 as PW 5, father of prosecutrix as PW 6, scribe of the complaint lodged by PW 1 as PW 7, elder sister of prosecutrix as PW 8, mother of PW 4 as PW 9, medical officer who examined the prosecutrix at Contai S.D. hospital on 15.12.2006 as PW 10, another medical officer of that hospital who examined the accused appellant on 02.01.2007 as PW 11, learned Judicial Magistrate who recorded statement of the prosecutrix on 12.12.2006 under Section 164, Code of Criminal Procedure as PW 12 and the investigating police officer (in short I.O.) as PW 13. Prosecution also adduced documentary evidence which are written complaint lodged by PW 1 in the Court of learned Additional Chief Judicial Magistrate at Contai on 04.11.2006 for treating the same as FIR under Section 156 (3), Code of Criminal Procedure (in short Cr.P.C.) as exhibit- 1, statement of PW 1, recorded by PW 12 under Section 164, Cr.P.C. as exhibit- 2, a seizure list dated 17.12.2006 relating to seizure of wearing apparels of the victim as exhibit- 3, another seizure list dated 13.01.2007 relating to seizure of a torch light and a hurricane on production by PW 4 before PW 13 as exhibit- 4, medico legal report of PW 1 as exhibit- 5, medico legal report of the accused appellant as exhibit- 6 and a rough sketch map with index of the place of occurrence (in (short P.O.) prepared by PW 13 as exhibit- 7. Prosecution also produced wearing sari (Mat. exhibit-I), petticoat (Mat. exhibit-II) and blouse (Mat. exhibit-III) which were on the persons of PW 1 at the time of occurrence and seized torch light (Mat. exhibit-IV) and hurricane (Mat. exhibit-V) which were used for identification of the accused appellant at the time of his taking to his heel after occurrence.

The case of the prosecutrix is that on 3rd Kartick 1413 B.S. corresponding to 21.10.2006 PW 1 went to the house of her elder sister PW 8 and her husband PW 4 on the occasion of Kali Puja and stayed there for a few days. The accused appellant is neighbour of PW 4 and PW 8. He had visiting terms in the house of PW 4. In that house finding PW 1 alone the accused made indecent proposal to her to which she protested and cautioned him at which the accused became annoyed and he threatened her to teach a good lesson. On the 8th Kartick 1413 B.S. corresponding to 26.10.2006 in the night at about 8:30 p.m. PW 1 was going towards fishery house of PW 4 at a little bit distance from the dwelling house of PW 4 and PW 8 in order to give food and betel (PAN) to the parents of PW 4. On her way the accused embraced PW 1 from her back side and pressed her mouth with hand and laid her on the ground and removed her wearing clothes against her will. He forcibly committed rape on her. Anyhow PW 1 managed to remove hand of accused from her mouth and started screaming. PW 1 felt pain on her private organ. PW 2, PW 9, PW 4, PW 3 and PW 5 rushed to that place and they could recognise the accused with light of torch and hurricane while the accused fled away leaving PW 1 there. On the following day 27.10.2006 PW 1 submitted her written complaint at Marishda P.S. but it was neither registered nor investigation was done by police on the basis of such information. After waiting for police action the PW 1 lodged the written complaint in the Court of learned Additional Chief Judicial Magistrate, Contai for treating it as FIR under Section 156 (3), Cr.P.C. Said complaint was forwarded to Marishda P.S. and it was registered there as Marishda P.S. FIR No. 70/06 dated 11.12.2006 under Section 376, I.P.C. and the case was investigated by police.

Defence of the accused as disclosed during trial is denial of the allegations brought by prosecution against him claiming the same as false. His specific defence is that he has land dispute with PW 4 for which this case was brought by PW 4 falsely setting up his sister in law PW 1 as victim. Accused examined DW 1 to disprove the claim of prosecution that in the night of occurrence DW 1 examined PW 1 and also examined the DW 2 to prove land dispute between PW 4 and the accused.

In the impugned judgment the deposition of PW 1 has been believed by the learned Additional Sessions Judge. As per discussions made in the impugned judgment PW 1 was corroborated by PW 2, PW 3, PW 4, PW 6, PW 8, PW 9 and PW 10 on material points of facts. Having considered the evidence of PWs and DWs and also the documentary evidence as well as material exhibits learned Additional Sessions Judge held that the prosecution had succeeded to prove the case under Section 376, I.P.C. beyond shadow of doubt and thereby held the accused guilty of committing the offence punishable under Section 376, I.P.C.

At the time of hearing this appeal Mr. Bhattacharya for the appellant advanced his arguments that PW 1 lodged the complaint in Court after eight days of the alleged occurrence and such delay was not satisfactorily explained by PW 1. He submitted that during trial PW 1 made exaggerated statements which are improvement of the case made out in the complaint. His further submission is that during trial prosecution claimed that in the night of alleged occurrence DW 1 examined the PW 1 but the evidence DW 1 is sufficient to make the claim of prosecution untrue. He also argued that no independent witness deposed in support of the prosecution case. According to him, the appellant should be given the benefit of doubt in the trial Court. He urged for setting aside the impugned judgment and for acquittal of the appellant.

Mr. Banerjee, learned APP for the State being assisted by Mr. Pratick Bose, learned Advocate for the State and Mr. Navonil Dey, learned advocate for the prosecutrix argued that the PWs stood with credibility facing lengthy cross-examination and they proved the factum of rape on PW 1 by the appellant in the fateful evening beyond reasonable doubt as observed in the impugned judgment. His further arguments is that exhibit- 1 is self-explanatory on the point of delay in lodging the complaint as proved by PW 1. It has been pointed out that although DW 1 denied his examination to PW 1 in the fateful night during his examination-in-chief stating that he does not know PW 1 but during cross-examination he was constrained to admit that perhaps some relative of PW 1 (named which we do not mention here) came to DW 1 for getting medicine of body ache, pain etc. Mr. Banerjee, also submitted that DW 2 hopelessly failed to establish any land dispute between PW 4 and appellant even by preponderance of probability. According to him, defective investigation cannot be a ground for extending benefit of doubt in favour of appellant who committed the heinous crime of rape. He submitted for upholding the impugned judgment.

The point of consideration before us is whether the impugned judgment should be sustained or set aside.

At the very outset we feel it necessary for administration of criminal justice system in the State and to prevent abuse of process of Courts by exercise of our power under Article 227 of the Constitution of India and under Section 482 of the Cr.P.C. to point out an irregularity which is apparent in this case. It comes to our notice that the petition of complaint was lodged by PW 1 in Court on 4.11.2006 which was forwarded to O.C. of police station for treating it as FIR under Section 156 (3), Cr.P.C. but it was received at police station on 11.12.2006 which is after one month and one week of lodging the complaint. It is true that no arguments was advanced on this point from either side at the time of hearing this appeal. In our opinion if such practise is not prohibited now the criminal justice system in the State may be seriously affected. Delay will be caused in starting police investigation and vital evidence may disappear by lapse of time which will cause obstruction in unfolding the truth. Since there is no time limit in Section 156 (3), Cr.P.C. for communicating the order for investigation to the officer-in-charge of a police station the inordinate delay caused in this case is called as irregular instead of illegal. Such irregularity is curable and requires to be cured in general by judicial pronouncement in the interest of justice. Therefore, we are inclined to give direction upon all the judicial Magistrates of the State for their remaining vigilant so that in each case where a petition of complaint is treated as FIR passing order for police investigation under Section 156 (3), Cr.P.C. must reach at the concerned police station forthwith.

During trial, the PW 3 and PW 5 were declared hostile and they were cross-examined on behalf of prosecution and accused. However, the PW 3 stated nothing against the prosecution case. In substance his evidence is against the accused. PW 5 did not deny the prosecution case. He stated that he did not see the incident in his own eyes by he heard about the incident from PW 4. He denied that he heard the incident from PW 1. He admitted that he made statement before police stating that PW 1 came to the house of PW 4 on the occasion of kali puja. He denied his other statements recorded by PW 13 under Section 161, Cr.P.C. in the same tune of prosecution case. During his cross-examination on behalf of the accused he denied his knowledge about any land dispute between PW 4 and accused.

PW 1 is an unmarried lady who attained the marriageable age and her father was in search of a suitable bride groom (vide cross-examination of PW 4). As such it cannot be normally believed that she played a drama of rape on her in order to keep a request of his brother in law PW 4 in connection with any land dispute between PW 4 and accused. According to PW 1, she came to matrimonial home of her elder sister on the occasion of kali puja on 3rd Kartick, 1413 B.S. This fact was corroborated by PW 2, PW 3, PW 4, PW 5, PW 6, PW 8 and PW 9. It is well proved from the evidence of said witnesses and PW 1 and DW 2 that PW 4 has one fishery at a little bit distance towards west of dwelling house of PW 4. It is undisputed that in between said house and fishery there is a pond beside the village road. According to PW 1, she was ravished by the accused dragging her from the village road from her way towards the fishery house of PW 4. She made allegations in her evidence against the accused stating how the accused embraced her from back side and closed her mouth with his palm and dragged her and laid her on the earth forcibly and thereafter removed the clothing''s of PW 1, torn the hooks of her blouse, pressed her breasts against her will forcibly threatening her with dire consequence and committed rape on her penetrating his penis inside her genital. PW 1 also stated that accused gave bad proposal for cohabitation in the house of PW 4 before 4/5 days of occurrence when PW 1 did not agree and protested at which the accused threatened her to teach a lesson. PW 1 stated that at the time of occurrence she identified the accused by his voice and she saw him. PW 1 gave satisfactory explanation of delay in lodging the complaint in Court. PW 1 stated that she narrated the incident to her sister''s husband, both the parents in law of her sister, Gram Panchayat and other neighbouring people. PW 2, PW 3, PW 4, PW 8 and PW 9 corroborated PW 1. She was cross-examined at length putting more than 115 questions at a stretch on behalf of the accused. During cross-examination relevant, remote relevant, irrelevant and even self-destructive questions were put by learned cross-examining lawyer to PW 1. It comes to our notice that PW 1 was suggested during cross-examination that the accused person kissed her at the very moment of commission of offence which was denied by her (vide page- 9). Such leading question impliedly is admission of commission of the offence by accused. It is treated as leading question because the cross-examining lawyer is authorised to put leading question to the witness but he cannot ask any misleading question during cross-examination. Despite lengthy cross-examination the PW 1 did not say anything for which she may be disbelieved. Since the PW 1 is unmarried lady it cannot be presumed that she was habituated in sexual intercourse at the time of alleged occurrence. There is no such allegation against her. PW 10 confirmed medically that sexual intercourse was done on PW 1 which strongly corroborates the fact that in the fateful night PW 1 was sexually assaulted by the accused. The evidence of PW 1 and PW 10 is strong evidence to bring home the charge under Section 376, I.P.C. against the accused. The other evidence in corroboration to PW 1 in its totality is also convincing. In fact, DW 1 also did not rule out his intervention giving treatment to PW 1 in the night of 26.10.2006. DW 1 stated during his cross-examination that perhaps some relative of PW 1 (named) came to DW 1 for getting medicine of body ache, pain etc. which evidence in substance supports the prosecution case.

Having considered the facts, circumstances, evidence on record and the observations made in the impugned judgment we do not find error in the decision of conviction and sentence of the accused appellant and in the order for payment of the fine amount to the victim as compensation. As such, this appeal fails and dismissed and the impugned judgment is upheld.

Learned Registrar General is requested to do the needful so that learned Judicial Magistrates remain careful in sending without delay the complaints to concerned police stations where order is passed for investigation under Section 156 (3), Cr.P.C.

A copy of this judgment along with the L.C.R. be sent to the trial Court from the department. A copy of this judgment be placed before learned Registrar General for his information and doing the needful.

Urgent Photostat certified copy of this judgment, if applied for be given to the parties or their advocates on record in compliance of usual formalities.

Aniruddha Bose, J.—I agree.