Hayat Sk vs State of West Bengal

Kanchan Chakraborty, J.—The challenge in this appeal is to the judgment and order dated 30.03.2010 passed by the learned Additional Sessions Judge, Fast Track Court No. 3, Lalbagh, Murshidabad in Sessions Sl. No. 230 of 2007 arising out of G.R. No. 1036 of 2007 thereby convicting the appellant, Hayat Sk., for committing offence under Sections 376(2)/511 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years. The judgment and order has been assailed on the following grounds:

(a) that the learned Trial Court failed to appreciate the evidence on record in its true and proper perspective;

(b) that the learned Trial Court failed to take note of the fact that the doctor, on examination, found that the vagina of the prosecutrix was not admitting one finger even and hymen was intact;

(c) that the learned Trial Court failed to take note of the fact that there was inordinate delay in lodging the First Information Report and medical examination of the victim girl;

(d) that the learned Trial Court was oblivious of the fact that the grandfather of the victim, who had taken the victim to Lalbagh Hospital for her treatment on 21.09.2009, did not support the prosecution case;

(e) that the learned Trial Court failed to take note of the contradictions in the First Information Report and the facts stated by the P.W. 7;

(f) that the learned Trial Court was also oblivious of the fact that the victim died due to Pneumonia and that she did not report the doctor who examined her for that purpose that she was having pain in her private part;

(g) that the learned Trial Court failed to take note of the fact that the doctor, who examined the victim on 20.09.2007, found a fresh injury inside the vagina of the victim who was seven years old only;

(h) that the statement of the victim recorded u/s 164 of the Code of Criminal Procedure itself appears to be tutored one, which the learned Trial Court failed to take note of; and

(i) that the learned Trial Court, being swayed by emotion, recorded the order of conviction, which is not sustainable in law at all.

The prosecution against this appellant was started on the basis of one First Information Report lodged by Murtuj Sk. on 19.09.2007 with the Jiaganj Police Station alleging therein that on 31.08.2007 the appellant, being his brother, committed rape on her minor daughter in absence of others. The victim girl, aged about 7 years, was raped by her uncle. Immediately thereafter, she reported the incident to her mother and showed the injury on her private part. The father of the victim girl, Murtuj Sk. consulted his father over the issue but his father told him not to make public the internal family affairs. As such, he did not report the matter to anybody as well as the police but taken his daughter to doctor for her treatment. The victim girl was attacked by pneumonia and admitted in Jiaganj Hospital on 21.09.2007 and was died ultimately.

The case was investigated into and, ultimately, ended in a charge sheet against the appellant u/s 376(2)(f) of the Indian Penal Code. The appellant pleaded not guilty to the charge so framed against him by the learned Trial Court and, accordingly, the trial commenced. The learned Trial Court, upon consideration of the evidence on record, oral and documentary, came to a findings that the appellant committed rape on the victim girl, since deceased, and recorded his conviction and sentence, which is impugned in this appeal on the grounds already stated above.

Mr. Dastoor, Learned Counsel appearing on behalf of the appellant, started his submission right from the First Information Report, which was marked Exbt. 4 and the formal First Information Report, which was marked Exbt. 7. The Exbt. 4, i.e., the First Information Report, lodged by Murtuj Sk. (P.W. 7), shows that his younger brother, Hayat Sk, committed rape on his minor daughter, Serina Khatoon, aged about seven years, in a room while he and his wife were not in the house. Serina returned back home crying, showed her vagina stained with blood. On questioning, she reported that Hayat Sk. done such dirty things with her. The Exbt. 4 also shows that Murtuj Sk. searched out for Hayat, but did not find him. He, then and there, talked to his father (D.W. 2), who told him that the matter, being internal family affairs, should not be made public. It is further stated in the First Information Report (Exbt. 4) that Murtuj Sk. took Serina to the doctor in the hospital for her treatment and till the date of filing of the First Information Report, she was under treatment. As he was busy with medical treatment of his daughter Serina, there was delay in lodging the First Information Report. The First Information Report was lodged on 19.09.2007 while the alleged incident had taken place on 31.08.2007, i.e., 20 days after the incident. The Exbt. 7 shows that the First Information Report was despatched to the Court of the learned Additional Chief Judicial Magistrate, Lalbagh on 19.09.2007, i.e., on the same date without delay. Mr. Dastoor had taken this Court to the evidence of P.W. 7, Murtuj Sk. and contended that Murtuj Sk stated that when he was coming back to his wife on the fateful date at about 10.00/10.30 A.M., he found that his wife was beating Hayat. On asking, his wife disclosed that Hayat committed rape on their daughter, Serina. Mr. Dastoor contended that the statement of the P.W. 7 is not supporting the facts mentioned in the First Information Report as to how the P.W. 7 came to know about the incident. It also falsifies the fact that he did not find Hayat on searching.

It is true that according to the First Information Report (Exbt. 4) the P.W. 7 came to know about the incident directly from his daughter, Serina when she came back home crying. But as per statement of Murtuj Sk. (P.W. 7) his wife Sabina Bibi (P.W. 8) disclosed the incident to him on asking while she was beating Hayat.

Again, according to the First Information Report, Murtuj Sk. talked to his father, who told him that the incident, being internal family matter, should not be made public. This fact has not been stated by Murtuj Sk. while examined in Court. He stated that on the very date, he did not take any action. Subsequently, when he found his daughter became seriously ill and was not taking food, he took her to a doctor at Jiaganj Hospital and the doctor got her admitted where she stayed for 4/5 days. She was referred to Lalbagh Sub Divisional Hospital as her condition deteriorated. In Lalbagh Sadar Hospital, Serina was under treatment for about 15/16 days and, thereafter, she died. This fact is contrary to what has been mentioned in the First Information Report by Murtuj Sk. If we accept the facts mentioned in the First Information Report, then it has to be accepted that Serina was taken to doctor immediately after the incident and till the date of filing of the First Information Report, i.e., 19.09.2007, she was treated by doctor. This fact has been completely suppressed by the P.W. 7 while examined in Court. In his cross-examination, he stated that he did not hand over medical treatment papers of Serina at the time of lodging the First Information Report.

Mr. Dastoor advanced his argument by contending that the Exbt. 1 rules out the prosecution case of rape. The Exbt. 1 is the medical examination report of Serina Khatoon (since deceased) held on 20.09.2007 by the P.W. 4. The Exbt. 1 does not contain anything to the effect that Serina complained of pain of separation of libia mimra due to rape committed on her. Serina or her mother, Sabina, who accompanied her to the doctor, did not inform the doctor that Serina was raped by Hayat or any person on 31.08.2007. Mr. Dastoor had taken this Court to the Exbt. 3, i.e., the statement of the victim girl, recorded u/s 164 of the Code of Criminal Procedure on 19.09.2007, i.e., one day prior to medical examination of the victim girl by the P.W. 4. The Exbt. 3 shows that the victim had given detail history of the incident and used a particular word, which was not expected to be used by her or a girl of her age. It was contended by Mr. Dastoor that while on 19.09.2007 the victim girl stated to the Magistrate about the incident with vivid description using a particular word not suited to her lips, she could have narrated the fact to the doctor also on the next date while stating the reason of pain she was suffering from. The Exbt. 1 shows also that the hymen of Serina was found intact and the vagina does not admit any finger. There is nothing in the Exbt. 1, save and except, bruise was found on vertibular mucous membrane just inside the lower end of right labiamerim, i.e., clotted blood. In the cross-examination the P.W. 4 stated that such type of clotting of blood or bruise might be caused due to falling on the ground. The P.W. 4 stated further that on clinical examination it might be said that there was chance of attempt to rape on the patient by anyone. The P.W. 4 stated in his cross-examination that bruise detected by him was fresh one. Mr. Dastoor contended that Serina was examined by P.W. 4 on 20.09.2007, i.e., about 20 days after the date of incident. If so, how the bruise detected by the P.W. 4 was a fresh one?

Serina was admitted in the Jiaganj Hospital initially on 21.09.2007 as she was attacked by pneumonia. Thereafter, she was referred to Lalbagh Sub Divisional Hospital as her condition deteriorated. Serina died after 15/16 days at Lalbagh Sub Divisional Hospital. The death of Serina has no connection with the alleged incident. In fact, there is no such evidence also to that effect on record. Mr. Dastoor contended that the victim girl (since deceased) was taken to Jiaganj Hospital for treatment of pneumonia by the D.W. 2, the grandfather of Serina and father of P.W. 7. The father of P.W. 7 (D.W. 2) has stated categorically in course of his examination in Court that he was all along in his house on that date where Hayat Sk. also resided with his wife and son and nothing happened on that date and as it was a day of offering namaj, all the members of the family were present. The D.W. 2 stated that Serina was admitted at Jiaganj hospital by him and his wife. Serina was suffering from fever. That fact was supported by the hospital register produced in Court. The Entry No. 1 dated 23.09.2007 under serial No. 4967 dated 21.09.2007 shows that Serina was admitted in the hospital due to fever. The fact that Serina was referred to Lalbagh Sub Divisional Hospital on 23.09.2007 has been established by Exbt. A. Therefore, the death of Serina has got no connection, whatsoever, with the alleged incident.

Mr. Dastoor contended that Serina was not examined in Court. The learned Trial Court did not get any opportunity to hear about the incident from her mouth. Naturally, the Court had to depend on the circumstances, facts, situation and other evidences, such as, statement u/s 164 of the Code of Criminal Procedure in order to come to a conclusion. In doing so, the learned Trial Court made serious errors, which, ultimately, led the Court to come to a conclusion that the appellant committed rape on Serina.

Mr. Chakraborty, learned advocate appearing on behalf of the respondent-State of West Bengal, contended that the victim was a minor and raped by her own uncle. The delay in lodging the First Information Report has been properly explained in the First Information Report itself. There was history of enmity, which prompted the appellant to commit crime. The victim girl died subsequently due to pneumonia and the prosecution did not get any opportunity to get her examine in Court. But, she made statement before the Magistrate u/s 164 of the Code of Criminal Procedure and had given a vivid description of the alleged incident, which established the prosecution case of rape against the appellant. Mr. Chakraborty contended that there was no reason for the Court to discard the statement made by the victim u/s 164 of the Code of Criminal Procedure. Mr. Chakraborty further contended that the P.W. 4, i.e., the doctor, stated in his examination-in-chief that one area of bruise was found on vettibular mucous membrane just inside the lower end of right labiamerim (clotted blood). The child, i.e., the victim girl, complained of pain of separation of libia mimbra. In his cross-examination he stated that on clinical examination, it might be said that there was chance of attempt to rape on the patient by anyone and he has mentioned in his point no. 2 in the report that the last conclusion of rape would be drawn by the Court. Therefore, Mr. Chakraborty contended that the injury report, i.e., the Exbt. 1, together with the evidence of P.W. 4, in fact, supported the prosecution case. Mr. Chakrabroty contended further that the learned Trial Court had taken all the points raised by Mr. Dastoor into consideration and came to a conclusion, which was based on consistent and trustworthy evidence. Therefore, the judgment impugned is not required to be interfered with in this appeal.

It is really sad that a seven years old girl died in pneumonia. But, in the instant case, the death of the minor girl had no connection with the alleged incident, which had taken place more than one month prior to the date of her death. The victim allegedly raped by her uncle, i.e., the appellant on 31.08.2007 at about 10.00/10.30 A.M. There is no direct evidence of the alleged incident because Serina, the victim, died before the trial commenced. The father and mother of the victim girl, i.e., the P.W. 7 and P.W. 8, were examined and cross-examined in Court. The P.W. 7, i.e., the father of the victim, was also the lodger of the First Information Report. It is true that he made some statements, which are not consistent with his statement in Court, but the learned Trial Court did not categorize those discrepancies as fatal to the prosecution case. The fact stated in the First Information Report regarding commission of rape has also been stated by the P.W. 7. The only difference between the fact stated in the First Information Report and the facts stated by the P.W. 7 is that how he came to know about the incident. This Court also does not like to put much importance on this fact. The P.W. 7 did not state in Court that Serina came back home crying with bleeding injury on her private part. This fact was also not stated by the mother of the victim, i.e., the P.W. 8. This appears to be a very important point to take note of, which the learned trial Court, in fact, ignored completely. Now, according to the First Information Report (Exbt. 4), Serina came back home crying and showed her private part which was bleeding. This fact had not been stated either by the P.W. 7 or by the P.W. 8 while they were examined in the Court. The Exbt. 4 is explicit enough to show that immediately after the incident, Serina was taken to hospital and her treatment was continuing till the date the First Information Report was lodged i.e., till 19.09.2007. It is true that the First Information Report is not a substantive piece of evidence, but it can well be used for contradictions and corroboration of the statements made therein. The P.W. 7, the lodger of the First Information Report, has not stated a single word in Court that after the incident of alleged rape, the victim girl was taken to the hospital and was treated by doctor till the date of filing of the First Information Report. It appears from the cross-examination of the P.W. 7 that he did not hand over any medical document relating to the treatment of Serina after the alleged incident till the date of lodging of the First information Report to the police station at the time of filing of the First Information Report. Therefore, there was no medical paper, whatsoever, excepting the Exbt. 1 before the learned Trial Court to assess whether there was any rape on Serina or not. The Exbt. 1, i.e., the medical examination report, prepared by the P.W. 4, does not indicate anything about the commission of rape on Serina. Serina was accompanied by her mother (P.W. 8) to the, the Medical Officer (P.W. 4) on 20.09.2007. Neither Serina nor her mother stated to the doctor that Serina suffered pain in her private part due to any act done by the appellant or any other person on 31.08.2007. The Exbt. 1 obviously shows that the labia mimra of Serina was separated and there was a bruise, which was fresh one on 20.09.2007. The alleged incident had taken place on 31.08.2007. Therefore, there was least possibility of having a fresh injury on 20.09.2007 on the private part of Serina for any incident allegedly had taken place on 31.08.2007. Although, the mere fact that the hymen of the victim was found intact and her vagina did not admit one finger, it cannot be inferred that there was no penetration. This point, taken by Mr. Dastoor, cannot possibly rule out the prosecution case but opinion of doctor that he detected a fresh bruise on 20.09.2007 obviously creates a doubt. A fresh bruise easily subsides by two weeks. The learned Trial Court bestowed its serious thought over the issue and discussed the matter exhaustively. In a case of penetration of male organ in the private part of a female child, it should not be always a case of rapture of hymen. It might be that the male organ did not reach upto the hymen but it might entered into libia Majora and thereby caused separation of libia membrane. In such a case, there might be pain in the private part. Pain may generally subsides within a couple of weeks and it is not always a must that it should not last for 20 days or 22 days. It depends on the fact how the male organ was penetrated into. A bruise may appear at a delayed stage as deep extravasations may take some time to defuse in the subcutaneous tissue and in such a case of appearance of the bruise may be delayed by a day or two. Deep bruise over internal organs due to external application of force, are not expected to appear on the body surface. Due to their delayed appearance for coming to the surface from their deep site, they are also termed as "coming out bruise".

In the instant case, there is no such indication of "coming out bruise" in the Exbt. 1. The clotted blood was found inside the lower end of right labia majora and there was no bruise appeared on the body surface. Had the victim sustained any oppression resulting in clotting of blood inside libia majora, bruise could have appeared on the body surface within a day or two. But, the doctor (P.W. 4) found the bruise "a fresh one". The victim was examined by the P.W. 4 twenty days after the alleged incident. Therefore, there was no chance of fresh bruise or "coming out bruise" after such a long period. This fact creates doubt in the prosecution case of rape, besides non-mentioning of the fact that Serina came back home crying and showed her bleeding private part by the P.Ws. 7 and 8 when they were examined in Court and non-filing of medical documents of the treatment of Serina, which started immediately after the alleged incident till the date of filing of the First Information Report. The learned Trial Court put much stress on the statement of the P.W. 4 that there was chance of attempt to rape on the patient by someone. This opinion has not been mentioned in the Exbt. 1. He left the matter to the Court to take a conclusion over the issue. This fact does not necessarily imply that Court is to take that hypothetical opinion of the doctor as the final one. To be stated frankly, the statement of the doctor cannot even be categorised as opinion. It is entirely hypothetical and cannot be the basis of coming to a conclusion that the victim girl sustained injury in her private part for nothing but rape. The learned Trial Court opined in the judgment that the defence did not suggest either to P.W. 7 or to P.W. 8 that due to fall on the ground or jute sticks, Serina sustained injury on her private part. The learned Trial Court also opined that the defence did not even ask the P.W. 4 about colour of the bruise. Thereafter, the learned Trial Court put the entire burden on the defence to establish that the bruise detected by the doctor was not caused by the alleged incident. The way the learned Trial Court handled this matter does not appear to be correct. It is correctly opined by the learned Trial Court that medical science has admittedly got some limitations and exceptions and all the principles vary, opinions vary from patient to patient, circumstances to circumstances. This principle or opinion of Court, whatever it may be called, does not necessarily saddle the defence to establish the case of the prosecution. It is cardinal principle of rule that the evidence is to be read as a whole, not in isolated manner, in order to give true and correct meaning of the same. When the injury was found as fresh one after 20 days from the date of incident and there was no case of "coming out bruise" and there was no strong opinion of the doctor that such bruise was detected by him because of insertion of male organ which separated the libia membrain or caused 20 days prior to the date of the incident it can hardly be said that the prosecution case is established beyond all reasonable doubts.

It is already stated that the P.Ws. 7 and 8, being the father and mother of the victim girl, did not utter a single word that Serina came back home crying and showed her bleeding vagina to them and stated that she was raped by Hayat, which is contrary to the facts stated in the First Information Report. The fact stated in the First Information Report that she had undergone medical treatment for the injury she received on her private part, till the date of filing of the First Information Report has not been supported by the P.Ws. 7 and 8 while they were examined in Court. In cross-examination the P.W. 7 was specifically asked whether he produced any document regarding medical treatment of Serina to the police or not. He admitted that no such document was given by him to the police. Serina was admitted in Jiaganj Hospital with a history of pneumonia on 21.09.2007. She did not report the doctor at Jiaganj Hospital on 21.09.2007 what she stated to the P.W. 4 on 20.09.2007 as if, she was having no pain in her private part on the very next date. This fact also creates doubt in the prosecution case also.

The statement u/s 164 of the Code of Criminal Procedure of the victim Serina was not a substantive piece of evidence. It can be used for the purpose of contradictions and corroboration. No doubt, it is admissible in evidence and obviously when the maker of the same comes forward and corroborates the statement made by him/her before the Magistrate u/s 164 of the Code of Criminal Procedure that makes the prosecution case very strong. In the instant case, Serina unfortunately, died and could not be examined and, as a result, her statement u/s 164 of the Code of Criminal Procedure was not controverted. The defence did not get any chance to test the veracity of the same. On careful perusal of the statement u/s 164of the Code of Criminal Procedure, which has been marked Exbt. 3, it appears that she had given a vivid description of the incident which she did not even stated to her father and mother, i.e., P.Ws. 7 and 8. The P.Ws. 7 and 8 did not state that Serina was laid on the floor and her innerwear was taken off and that Hayat also took off his pant and, thereafter, Hayat raped her. The victim used a particular word in the statement u/s 164 of the Code of Criminal Procedure, which was not expected to be said by her or by a girl of her age. It is doubtful whether she knew the meaning of that word or not. The statement u/s 164 of the Code of Criminal Procedure, Exbt. 3, was given special weight by the learned Magistrate.

The Exbts. A, B and C together with the evidence of D.W. 2 indicate that Serina was admitted at Jiaganj Hospital by him and his wife as she was suffering from fever. The D.W. 2 is none but the father of P.W. 7 and grandfather of Serina. The fact that Serina was admitted at Jiaganj Hospital on 21.09.2007 has been established by Exbts. A, B and C. The learned Trial Court discussed the evidentiary and probative value of Exbts. A, B and C with Exbts. 1, 3 and 4 series and came to a conclusion that it can legitimately be inferred that on the basis of common human psychology, the victim girl or her parents felt it inane or unsafe to refer the matter in issue to the D.W. 1 or D.W. 3, specially when over the matter in issue of this case, specific complaint have been lodged by the P.W. 7 on 19.09.2007 and the victim girl had been medically examined on 20.09.2007 already. This analysis of the learned Trial Court cannot at all be accepted because one cannot forget that the incident alleged had taken place on 31.08.2007 and, thereafter, the victim was treated medically till the lodging of the First Information Report. The papers of medical treatment were not placed before the Court. The doctor, who treated the victim girl during that period, was not cited as a witness. The first medical examination, according to the prosecution, was held on 20.09.2007 when the incident of rape was not reported to the doctor, although one day before, i.e., on 19.09.2007, the victim girl had given a vivid description to the Magistrate about the incident using a particular word, which is not expected from a girl of her age. She was admitted at Jiaganj Hospital with a history of pneumonia on 21.09.2007, i.e., one day after her examination by the P.W. 4. Therefore, Exbts. A, B and C had to be given some probative value although those have no connection with the alleged incident of rape because the Exbts. A, B and C are connected with the medical treatment of pneumonia from which the victim girl was suffering. But, that fact that she was examined on the previous day by the P.W. 4 with a complaint of pain due to separation of libia mimra was not stated by the D.W. 1. The fact that the victim was examined on the previous day by another doctor was not disclosed to the D.W. 1. This obviously creates a doubt as to the existence of such pain on 21.09.2007 as if the pain vanished within a day. Again, it was the grandfather and grandmother, who took the victim to the Jiaganj Hospital for her treatment. Although, the D.W. 2 was cross-examined on this point, but he denied the question which was put in form of suggestion. The prosecution could not establish, as stated by the P.W. 7, that he took his daughter to Jiaganj Hospital for her treatment of pneumonia.

The learned Trial Court did not like to give any importance on the evidence of D.W. 2. D.W. 2 is the father of the appellant as well as the P.W. 7. He stated categorically that 31.08.2007 was a day of prayer for namaj and all the members of his family were present in the house throughout the day. This fact was not challenged by the prosecution while D.W. 2 was cross-examined. The learned Trial Court did not assign any reason why that admitted factual aspect was not considered by it.

In the instant case, peculiarly enough, the father of the appellant as well as the P.W. 7 denied the fact that the P.W. 7 informed him about the incident on 31.08.2007. The fact that P.W. 7, immediately after the incident, went to the D.W. 2 and informed him about the matter and was advised not to make it public, has not been stated by the P.W. 7. He stated in Court that he did not take any action but when he found her daughter became seriously ill and was not taking her food, he took her to a doctor at Jiaganj hospital and doctor got her admitted at Jiaganj Hospital where she stayed for 4/5 days and, thereafter, referred to Lalbagh Sub Divisional Hospital. This statement of the P.W. 7 is entirely contrary to the facts stated by him in the First Information Report. This fact, in my opinion, carries great weight inasmuch as according to the First Information Report, the victim was medically treated for the injury she received in her private part within that period of time which was not established either by oral evidence or by documentary evidence. The statement of P.W. 7 was not also supported by his wife, P.W. 8. She has not stated that her husband immediately after the incident went to the D.W. 2 and informed the incident and that he was advised by the D.W. 2 not to make public the issue, being the internal family matter. She has not also stated that her daughter was taken to a doctor and medically treated for the injury she received in her private part till the date of lodging of the First Information Report. The local witnesses, such as P.Ws. 1, 2, 3 and 11 did not support the prosecution case. They are independent local witnesses. There is nothing in their statements to show that they have any reason to protect the appellant and not to support the truth although they were examined by the investigating officer (P.W. 12) in course of investigation.

Taking everything into consideration, this Court is of the considered opinion that the prosecution failed to bring home the charge beyond all reasonable doubts. The fact that the P.Ws. 7 and 8 were ousted from the family and had been living separately from the D.W. 2 and the appellant and other inmates, is an admitted position. The learned Trial Court considered the animosity as a double aged weapon and used that ground as the motive against the appellant which he could similarly apply against the de facto complainant also. The learned Trial Court was swayed by sentiment because the victim, being a seven years old girl, died few days after the alleged incident. The death was no way connected with the alleged incident. Still it was a death of a minor and perhaps, that has created a pressure on the mind of the Court and that is why the learned Trial Court categorised the major discrepancies on material points as trivial in nature, put much stress on the statement u/s 164 of the Code of Criminal Procedure, which could not be tested by the defence and on the hypothetical opinion of the doctor who was oblivious of the fact that injury was a fresh one and that was not corroborated by a further medical examination held immediately thereafter.

In view of the discussion above, I allow the appeal. The judgment impugned is set aside. The appellant be set at liberty at once and be discharged from the bail bond.

In the facts of the present case, I make no order as to costs.

Interim order, if there be any, stands vacated.

Criminal Department is directed to send a copy of this judgment along with the Lower Court Records to the learned Court concerned immediately. Let urgent photostat certified copy of this order, if applied for, be given to the learned advocates of the parties upon compliance of necessary formalities.