Krishnapramanik vs State Of West Bengal

Rajasekhar Mantha, J

The instant appeal is directed against the judgment and order of conviction dated 18th February, 2008 passed by the Additional Sessions Judge, Fast Track Court, Malda in Sessions Trial No. 93 of 2007 arising out of Sessions Case No. 145 of 2007.

The appellant was convicted under Section 354 of the Indian Penal Code and was sentenced to suffer imprisonment for a period of one year and directed to pay compensation of Rs.1000/- to the victim.

The prosecution case in brief is that on the 17th of March, 2007 at about 12:30 a.m., when the victim; Smriti Goswami (PW1), woke up to answer the call of nature, she was forcefully embraced/hugged by the appellant, Krishna Pramanik and was dragged to the cot inside her bedroom. The appellant is further alleged to have forcefully removed the victim's and his own wearing apparel and rubbed his genitals against her's. As the victim screamed aloud to raise alarm, the appellant is alleged to have gagged her and threatened her by brandishing a "Ramdaw" (a sharp weapon). The victim's hue and cry alarmed her maternal uncle, viz., Pabitra Goswami (PW 3), resident of the house opposite to the place of occurrence, that is the victim's house, and he immediately arrived at the spot to rescue her. The maternal uncle is stated to have caught the appellant with the help of some other neighbours who assembled thereat. The husband of the victim was stated to be searching for work in New Delhi at that point of time. The maternal uncle is stated to have then handed over the appellant to the police.

The F.I.R was registered on the 17th of March, 2007 at about 2:55 p.m. in the afternoon under Section 376 and 511 of the Indian Penal Code. The F.I.R. was registered on the basis of a complaint signed by the victim wherein she stated that the appellant had embraced her while she had come out of the house in the middle of the night to answer nature's call and accosted her into her bedroom and thereafter attempted to commit rape. On hearing the hue and cry raised by the victim, the people of the village Laskarpur rushed to the house of the victim and saved her.

The Investigating Officer prepared a sketch map and index of the place of occurrence.

The charge against the appellant was framed on 18th September, 2007 under Section 376 read with Section 511 of the IPC. The prosecution examined the following witnesses:-

PW1 - Smriti Goswami, the victim

PW2 - Khitish Goswami, neighbour

PW3 - Pabitra Goswami, maternal uncle of the victim PW4 - Deben Goswami, brother-in-law of the victim

PW5 - Dr. Kalyan Mishra, the doctor who examined the victim on the 19th March, 2007

PW6 - Amal Sharma, scribe of the complaint PW7 - Sushil Goswami, neighbour

PW8 - Dr. Debnath Sarkar who conducted the medical examination of the appellant on the 20th March, 2007

PW9 - S.I. Bipul Kumar Banerjee who received the formal complaint and lodged the F.I.R.

PW10 - S.I. Nirmal Kumar Saha, the Investigating Officer

PW1, the victim, stated in her examination-in-chief that on the 17th of March, 2007 the appellant caught hold of the victim and hugged her as she came out from the room to answer the nature's call at night (00.30 hrs.). He then took her inside her room and pushed her on a cot when she screamed aloud. Though not stated in the complaint PW 1 deposed that the appellant brandished a 'Ramdaw' (a long sharp cutting instrument/weapon) to threaten the victim. The appellant, thereafter, removed his lungi and rubbed his organ on the genitals of the victim. Hearing the commotion and the hue and cry raised by the victim, her maternal uncle PW 3 emerged at the place of occurrence and caught hold the appellant with the assistance of some other people who assembled there. The existence of the weapon and the sudden arrival of the maternal uncle were also not mentioned in the complaint. The appellant is stated to have been handed over to the police who took the appellant in custody alongwith the weapon. The victim, thereafter, stated that she was taken in for the medical examination. In the cross examination she stated that the appellant gagged her and threatened her with the 'Ramdaw'. Such fact of being threatened by the "Ramdaw" was not admittedly stated in the complaint by the victim. She further stated in the cross examination that one Hemanta Goswami lived adjacent to her house on the northern side and Sanatan Saha lived on the southern-west side of her house. Another lady Putul also resided on the western side of the house. The maternal uncle lives at a distance 10 to 12 cubic feet away from Putul's house on the north-western side. However, neither Hemanta nor Sanatan or Putul were examined by the prosecution.

The victim specifically deposed that one Puchki Goswami, daughter of Saroj Goswami, was sleeping in the same room on the date, time and place of occurrence. The said Puchki Goswami was not examined. She further deposed that she went to the Manikchawk P.S. in a cycle van belonging to Moni Goswami. The police are stated to have arrived at the place of occurrence between 7 to 8 am on the day of occurrence. Neither wearing apparels of the victim nor the weapon stated to have been seized, were exhibited in the course of trial. The victim admitted that she is illiterate.

In cross examination it was further confronted to the victim that her maternal uncle Pabitra Goswami (PW 3) had a personal enmity with the appellant which she denied. The appellant did not cause any physical injury or bite the victim.

PW 2, Kshitish Goswami, is a neighbour of the victim. He also woke up at the place and time of occurrence as he was sleeping on the verandah of his house next to the house of the victim. He deposed that he heard the cries of the victim and rushed to her house. Rest of the incident is stated to have been narrated by the victim to him, that the appellant attempted to rape her. He admitted that he was examined by the I.O. and he revealed the incident in detail to best of his knowledge before the I.O. His statement in evidence is corroborated by the statement recorded under Section 161 of the Cr.P.C.

PW 3 is Pabitra Goswami, the maternal uncle of the victim. He deposed in examination-in-chief that he was alerted by the loud cries and shouting of the victim at the place and time of the incident and being so alarmed he rushed to her house. He was sleeping on the verandah of his own house opposite the house of the victim which was separated only by a garden. After reaching the house of the victim he found the door of the room was open and the victim was lying on the cot and the appellant was lying over the victim. He started to scream and raised a hue and cry when the appellant got up and brandished the 'Ramdaw' at him. He then caught hold of the appellant's hand, by which time other persons arrived at the place of occurrence and apprehended the appellant. He deposed that the other people who assembled at the place of occurrence tied the appellant with the rope and also beat him up. After sunrise the police were informed over telephone and they arrived at the place of occurrence. The victim is stated to have narrated the incident of being raped by the appellant to the police. PW 3 further deposed that the appellant was thereafter arrested and the 'Ramdaw' was seized by the police. His statement in evidence is corroborated by the statement record under Section 161 of the Cr.P.C.

In cross examination PW 3 stated that the police were informed over a telephone belonging to one Pintu Goswami between 6.00 and 7.00 in the morning. The police arrived within 1 ½ hours of being informed. He stated that he had given a statement to the police after the arrival on the date of occurrence. He stated that there was only one bed inside the room. He also deposed that when he arrived at the time of occurrence at 00.30 hrs. he found a lighted lamp inside the room, of the victim. Within 10 minutes of his raising hue and cry he said that about 100 people assembled at the place of occurrence and entered the room which was 8 x 10 cubic ft. in area. There were 30-35 families of Goswami in the village called Laskarpur. The appellant belong to different caste than the Goswamis and that the population of village was cosmopolitan with people of all castes and religions. He denied that there was any caste enmity between the appellant Krishna Pramanik and the Goswamis. He also specifically stated that the appellant was arrested by the police on the same day in the morning at the place of occurrence i.e. the house of the victim Smriti Goswami. His statement in evidence is corroborated by the statement recorded under Section 161 of the Cr.P.C.

PW 4 is Deben Goswami, brother-in-law of the victim. He knew the appellant. He lived close by to the house of the victim. He also arrived at the place of occurrence after hearing the hue and cry of the victim. He came at a slower pace as he was ill. He found PW 3 catching hold of the appellant inside the room of the victim with the help of 4-5 other persons. The victim narrated the incident to him. The victim specifically told him that she was sleeping alone in the room. He also stated that the appellant had a history of such conduct and was forced to marry a lady on whom he tried to perpetrate the same crime. He gave a statement to the police. His statement in evidence is corroborated by the statement recorded under Section 161 of the Cr.P.C.

PW 5 is Dr. Kalyan Mishra who examined the victim on 19th March, 2007, two days after the incident. He identified the medical report submitted by him. In cross examination he stated that he was not told by the victim of any assault. He did not find any external injury mark on the victim.

PW 6 is the scribe who wrote the complaint on the instructions of the victim.

PW 7 is a potter and a neighbour who knew both the appellant and the victim. He also arrived at the place and time of occurrence after hearing hue and cry raised by the victim. He gave a statement to the police.

PW 8 is the medical doctor who examined the appellant on the 20th of March, 2007, three days after the incident. He identified the report given by him.

PW 9 deposed that he registered the FIR based on the complaint of the victim and identified the same.

PW 10 is the Investigating Officer Nirmal Kumar Saha, S.I. of Police post at Manikchawk P.S., Malda. He deposed that he visited the place of occurrence after being assigned with the case. He prepared a sketch map of the place of occurrence alongwith index. He also deposed that he examined all the witnesses available and recorded their statements under 161 of the Cr.P.C. He further deposed that he arranged for medical examination for the victim but it remains unexplained why she was sent for medical examination only on the 19th of March, 2007 i.e. two days after the incident. He claimed that he seized the wearing apparel of the victim and a seizure list was exhibited but the wearing apparel was not produced in Court. He also deposed that he seized vial containing the vaginal swab of the victim but could not explain as to whether it was sent for forensic examination. No forensic examination report was exhibited or produced in Court. In examination-in-chief he also said that he seized the vial of the semen sample of the appellant which was marked and exhibited. He deposed to have collected all reports from the hospital.

In cross examination, however, the Investigating Officer made some startling and false statements. He deposed that PW 3 did not tell him that the appellant raised the 'Ramdaw' at him or that there was an oil lamp found inside the room. He denied having seized either the oil lamp or the 'Ramdaw'. He stated that the appellant was arrested on the next day i.e. on 18th March, 2007 from Manikchwak Bus Stand. The arrest memo is available on record to this effect. He also stated that PW 4 did not tell him that there were 4-5 persons alongwith PW 3 inside the room. He further deposed that PW 4 did not inform him that PW 3 caught hold of the appellant or that the victim told PW 4 that she was raped by the appellant. He further denied that the PW 4 told him that the appellant had a history of such conduct. He deposed that PW 7 did not inform him that the victim told PW 7 that she was raped by the appellant. Most of the aforesaid evidence is contrary to the statements under Section 161 of the PW 2, 3, 4 and 7.

PW 10 admitted that he did not examine Hemanta Goswami, Sanatan Saha and Putul Goswami. He reiterated that the victim told him that she was sleeping alone in the room. He admitted that he did not send the semen sample of the appellant, the wearing apparel or the vaginal swab of the victim for forensic examination. He further admitted that he did not seize the bed sheet on which the victim was sleeping. He denied that PW 2 told him that the victim told PW 2 that she was raped by the appellant. He deposed that none other witnesses handed over any weapon to him.

The appellant was examined under Section 313 of the Cr.P.C.

The Sessions Judge analyzing the whole evidence on record could not find the ingredients of the Section 376 and 511 of the IPC fulfilled or proved beyond reasonable doubt against the appellant. The Trial Judge, however, found that there was irrefutable evidence that the appellant outraged the modesty of the victim and hence, found him guilty under Section 354 of the Indian Penal Code.

This Court has carefully analyzed the entire evidence on record. There are shocking contradictions, inconsistencies and discrepancies between the prosecution case, complaint and the evidence that has come on record. While both the PW 1 and PW 3 i.e. the victim and the maternal uncle of the victim, respectively, deposed that the appellant used 'Ramdaw' to threaten and intimidate both the victim and the PW 3, no such 'Ramdaw' was either handed over to the I.O., nor seized. Further the victim, in her complaint, had not mentioned of any threat to her person by display of the "Ramdaw" by the appellant. The evidence of the PW 1 and PW 3 who are niece and maternal uncle is not corroborated by any documentary or circumstantial or material evidence, in this context.

The second and equally glaring inconsistency in the evidence is that the victim PW 1 deposed that one Puchki Goswami, daughter of Saroj Goswami was also sleeping inside the same room, where the victim was also sleeping until she had to answer the nature's call, whereas none of other witnesses including the Investigating Officer stated anything in that regard. On the contrary each of the witnesses and the Investigating Officer deposed that the victim was alone in the room. The victim was obviously either making a false statement or the factum of another person being in the room has been willfully and deliberately suppressed by the other witnesses.

Further while PW 3 stated that he handed over the 'Ramdaw' to the I.O. (PW 10) the latter has clearly denied the same in course of evidence.

While on one end the I.O. stated in examination-in-chief that he seized the wearing apparel of the victim as well as the appellant, the same were not sent for forensic examination or even produced before the Court. The PW 10 Investigating Officer denied that PW 2 Kshitish Goswami, PW 3 Pabitra Goswami, PW 4 Deben Goswami had told him that the victim told them that she was raped. The said PWs, however, in their evidence had stated that the victim had told them that she was raped by the appellant.

This Court is also surprised to note from the evidence on record that while the incident occurred on the 17th March, 2007 the victim was sent for the medical examination two days thereafter i.e. on the 19thMarch, 2007 and the appellant was sent for the medical examination on the 20th March, 2007. The reasons for such inordinate delay are not explained at any stage of the trial. Medical evidence of the incident is unlikely to remain on the victim and the appellant, in such circumstances.

The most shocking inconsistency in the evidence on record is the time and place of arrest of the appellant. While PW 1 and PW 3 deposed that the appellant was arrested by the Investigating Officer on the 17th in the morning after sunrise, the Investigating Officer has clearly deposed that he arrested the appellant at Manikchawk Bus Stand on the day after the incident i.e. on 18th March, 2007 as evident from the memorandum of arrest available in the records.

Some other persons who were present at the place and time of occurrence namely Hemanta Goswami, Sanatan Saha and Putul Goswami were admittedly not even examined by the Investigating Officer.

The above inconsistency raises serious doubts on the veracity of the evidence of PW 1 and PW 3, the key witnesses for the prosecution. The Trail Judge, therefore, rightly found that the charge under Section 376 read with Section 511 of the IPCleveled against the appellant has not been proved beyond reasonable doubt.

The Trial Judge, however, found the appellant guilty of the offence under Section 354 of the Indian Penal Code for the appellant having hugged the victim. The said fact is evident from the depositions of the PW 1, PW 2, PW 3, PW 4 and PW 7.

The said depositions-in-chief are also corroborated by the statements made by the said persons under Section 161 of the Cr.P.C. that are available from the Lower Court Records.

In those circumstances this Court is of the view that the conviction of the appellant by the Trial Judge under Section 354 of the IPC is justified.

The evidence of the Investigating Officer is full of lies and false statements. The denial by the I.O. of the statement by PWs 2, 3, 4 and 7 that they had stated to him that the appellant hugged the victim and forced himself upon her, is clearly contrary to the record. The statements given by them under Section 161 of the Cr.P.C. and their oral evidence to this extent stands corroborated. The same has been pointed out by Mr. Bidyut Kumar Roy, Counsel for the State.

10) has also acted in gross negligence and dereliction of duty by not having sent for forensic examination.

The impugned judgement and order, therefore, does not call for interference the appellant shall surrender in the court below and undergo the sentence awarded to him.

Before parting with the case this Court records its anguish at the deliberate and willful false statements on oath on the part of PW 10 Investigating Officer, viz., S.I. Nirmal Kumar Saha. The said Nirmal Kumar Saha has intentionally, willfully and consciously contradicted the statements recorded by him under Section 161 of the Cr.P.C. given by the PWs 2, 3 and 4. The Court below should have initiated proceedings against the said I.O. under Section 181 and 182 of the IPC.

In the said circumstances the Registrar General of this Court shall send a copy of this judgment and order to the Appointing Authority of the said I.O. Nirmal Kumar Saha, where he is posted now for suitable disciplinary and other action against him.

The appeal is hereby dismissed.

There shall be no order as to costs.

Urgent Photostat Certified server copy of this judgment, if applied for, be supplied to the parties on urgent basis.