Sanjay Samajpati vs State

Ashim Kumar Banerjee, J.

PROSECUTION STORY

Sanjukta (not the real name) was a resident of Ram Nagar. She was a student of class XI when the incident happened. On September 09, 2010 she went to Public Health Centre, Kalighat with a complain of back pain below her shoulder. The accused attended her. She was examined. Accused gave her medicine with a further advice to come after three days. After taking those medicines she did not get any relief and her pain increased. Again on September 13, 2010 she came to hospital and visited the doctor. Doctor prescribed her some medicines and asked her to meet him in his quarters to take delivery of the medicines sometime after when he would be going to his quarters. Sanjukta''s grandmother was getting treatment in that hospital. She took her permission and visited the doctor in his quarters. The doctor asked her to sit near the door where there was only one bed. She asked the doctor to give the medicine quickly as she was in a hurry. The doctor went inside, came back and closed the door from inside. He did not give any medicine and forcibly made her lie on the bed on the pretext of giving treatment. He caught hold of her both hands and removed her wearing apparels. She was having her menstrual cycle. He then forcibly penetrated his private part into her private part and forcibly raped her. She then got up and opened the door and came out after taking her wearing apparels. She came to the market and made a telephone call to her father that was unsuccessful. Then she made a telephone call to her brother-in-law P.W.2 and informed the matter to him. Her brother-in-law came in a vehicle and thereafter she narrated the entire incident to him. She was taken to the police station where she made a complaint that was written by her brother-in-law and signed by her. She was medically examined twice, firstly, by Dr. Dipankar Dhar, P.W. 19 and then by a Medical Board consisting of other doctors being P.Ws.7, 8, and 17. Her wearing apparels were seized. The police also seized the bed sheets and the shorts belonging to the accused from his quarters. All the wearing apparels belonging to the victim and the accused were sent for chemical examination. The chemical examination found human semen in the bed sheet and shorts belonging to the accused and wearing apparels being suit, suit pant and panty belonging to the victim. The police arrested the accused and submitted charge sheet inter alia under Section 376 read with Section 342 of the Indian Penal Code. The accused pleaded not guilty and faced trial.

TRIAL

Sanjukta made a statement before the learned Magistrate under Section 164 of the Criminal Procedure Code appearing at pages 59-61 of the Paper Book that the learned Judicial Magistrate, Mayabunder recorded. During trial Sanjukta being PW 1 consistently deposed that would suggest the offence being committed by the accused. She also corroborated the factum of seizure of the material exhibits from the house of the accused where she was taken by the police. PW2, the brother-in-law Gokul Halder more or less corroborated Sanjukta. According to him, he was the Sarpanch of Ramnagar. He read up to Class X. He got a telephone call at 4-30/5-00 p.m. on September 13, 2010 informing him about the incident. He rushed to Kalighat Bazar. After waiting for a while he saw her seated at a place in the market. She narrated the incident that Gokul wrote it on a paper and explained to her when she signed the complaint. He took her to the police station at about 9-9.30 p.m. and handed over the complaint to the officer. The police took the victim as well as Gokul to the quarters of the doctor where the bed sheet and the shorts were seized in their presence. He signed the seizure memo in presence of another local person Oskar Reman Katchua being P.W.4. Then they went to Diglipur Medical Centre where she was medically examined. Her wearing apparels were seized. He identified the material exhibits. He signed the seizure Memo that was countersigned by Oskar. In cross-examination, he narrated how he came to the market place after getting the phone call. He denied having any illicit relationship with Sanjukta or that he was under political pressure that resulted in implication of the accused.

P.W.3, Krishna Poddar was the father of the victim. He stated, Sanjukta went to hospital after talking to her mother. Gokul informed him about the incident. The police came to his residence on September 16, 2010 when he handed over her birth certificate to the police. He identified his signature. He also identified the birth certificate. He denied the suggestion, Gokul did not inform him about the incident or that he did not hand over the birth certificate along with the medical slip to the police. P.W.4 was the seizure witness. He proved the seizure. He identified the material exhibits. P.W.5 was the mother of the victim. She was tendered as witness. However, no question was asked. So was the case of P.W.6. P.W.7 was the Medical Officer posted at Mayabunder. He deposed, the then Director, Health Services constituted a Medical Board consisting of three doctors where he was the Chairman and the other members were Dr. Chitra Paul and Dr. N.R. Kodhandram being the P.W.8 and P.W.17. He proved the medical report that was tendered in evidence signed by the members of the Medical Board. He denied the suggestion, neither the victim nor the accused was examined by them or that no Medical Board was constituted. P.W.8 Dr. Chitra Paul also corroborated P.W.7 on the medical examination. P.W.9 was the Head Constable who took the Alamats for CFSL examination at Kolkata. P.W.10 Grace Field was the Police Officer who attended the victim in P.S. Kalighat. He was also responsible for seizure of the wearing apparels belonging to the victim as well as the accused including the bed sheet. He accompanied the victim and the accused for medical examination at Mayabunder. He denied the suggestion, no seizure was made in his presence. P.W.11 was also tendered for cross-examination. However, no question was asked. P.W.12 Malati Sardar was the midwife in Kalighat Medical Centre. She could not throw any light on the incident. P.W.13 Sanjit Ojha was the photographer. He identified the photographs taken by him. P.W.14 Dr. Michael was the Medical Officer posted at Diglipur. He was posted at Kalighat where the Out Patient Department slip was seized. He identified the slip. P.w.15 was the Head Constable who chalked out the FIR on the basis of the written complaint. P.W.16 was also a Constable who was tendered by prosecution. P.W.17 was a member of the Medical Board. He corroborated the other members of the Medical Board being P.Ws.7 and 8. He also identified the medical report that had already been exhibited. He stated in cross-examination, hymenal myrtiformis was absent that would suggest, victim was habituated in sexual intercourse. P.W.18 was posted at Kalighat Medical Centre at the relevant time when he examined the accused finding scar on the left side of occipital region of the accused. P.W.19 was the Medical Officer who was also posted at Kalighat Medical Centre. He examined the victim where he opined, the victim had not been subjected to forcible sexual intercourse. He, however, clarified, since the victim was having menstrual period and there were bleeding from vagina he could not examine the victim girl properly. P.W.20 was the Police Officer who conducted the investigation. He corroborated the other witnesses.

While being examined under Section 313 of the Code of Criminal Procedure, the accused categorically denied having any such incident happened. According to him, police falsely implicated him in this case. He was assaulted at Diglipur lock up.

JUDGEMENT AND ORDER IMPUGNED

The learned Sessions Judge convicted the accused under section 376 of the Indian Penal Code. However, he acquitted the accused from the charges brought against him under Section 342. The learned Judge imposed rigorous imprisonment for ten years with a fine of Rs. 4,000/- in default, to suffer further rigorous imprisonment for four months.

THIS APPEAL

Being aggrieved the accused preferred the instant appeal that we heard on the above mentioned date.

CONTENTIONS

Appearing for the appellant, Mr. D. Illango, learned counsel, would raise the following issues:-

(i) There were material discrepancies in the statement of the victim, firstly, in the complaint, secondly, before the learned Magistrate under Section 164 and finally at the time of deposing at the trial. Hence, her statement is thoroughly unreliable that would lead to the acquittal of the accused.

(ii) The place of seizure of the wearing apparel and the bed sheet was not clear and consistent that would raise doubt as to the prosecution story.

(iii) The medical examination did not specifically suggest, rape had been committed upon the victim that too, by the accused.

(iv) The material exhibits would not support the prosecution story in absence of appropriate conclusive finding either through the medical examination of the victim and the accused or chemical examination of the material exhibits by the expert.

(v) In a case of the like nature mother being a material witness was not examined. She was only tendered for cross-examination. Moreover, the father did not throw any light on the incident. The conduct of the parents immediately after the incident, would not suggest such an incident happened to their daughter.

Elaborating his submission, Mr. Illango would draw our attention to pages 2, 50 and 58 of the Paper Book to suggest material discrepancy in the statement of the victim. According to him, initially the victim stated, the doctor asked her to visit him in his quarters as there was a crowd. She also said, the doctor checked her and prescribed the medicine and advised her to visit him at his quarters after few minutes where he would again check her. Before the learned Magistrate, she changed her version and deposed, the doctor told, he had a medicine in his quarter and told her to come along with him so that he may give the medicine. During deposition she stated, the doctor prescribed her some medicines and also asked her to go to his quarter to take delivery of those medicines after sometime when he would go back to his quarters. These statements would run contrary to each other. Moreover, before she visited the doctor at his quarter she had taken permission of her grandmother whereas after the incident she did not meet her grandmother in the hospital and did not inform her anything. This would certainly raise doubt in the mind of the Court.

On the seizure Mr. Illango would say, the victim categorically stated, when the bed sheet and shorts were seized by the police she was waiting outside. The place of seizure was also not consistent as would appear from the evidence. She deposed, after the incident she collected her wearing apparel and ran away from the place and went to the market. It is not clear whether she put on her dress or took the dress with her in her hand. It is also not clear whether she was provided with any alternative dress when the police seized her wearing apparels.

On the medical examination, he would contend, the birth certificate produced before the Court after being seized by the police was issued ten years after she had been born. It was seized after three days of the incident. On the chemical examination, he was critical in contending, the blood group of the victim and the accused were not properly determined and tallied with the sample that the material exhibits were having. He would lastly contend, there had been unusual delay in lodging the FIR. The victim was a student of Class XI. Why the victim took the assistance of Gokul who read upto class X, while making the complain, was not clear. It was also not clear why she was examined twice first by Dr. Dhur and thereafter by the Medical Board set up for the said purpose. Mr. Illango would rely upon the following decisions:-

1) Bimal Gorai Vs. State of West Bengal,

2) John and Others Vs. State of Madhya Pradesh,

3) Lukesh Alias Lokesh Vs. State of Chhattisgarh,

4) Shri Kishori Lal Vs. State of Himachal Pradesh,

5) Manbodh Vs. State of Chhattisgarh,

6) Ramsukh Narayan Kashyap Vs. State of Chhattisgarh,

7) Mahesh Vs. State of M.P.,

8) Sachin and Others Vs. State of Uttarakhand,

9) The State of Gujarat Vs. Popatbhai Bhalabhai alias Bharabhai Bharwad,

10) Sunil -vs- State of Harayana (2010 Cr. L.R. SC 68)

11) Alamelu and Another Vs. State represented by Inspector of Police,

12) Narender Kumar Vs. State (NCT of Delhi),

13) Rai Sandeep @ Deepu Vs. State of NCT of Delhi,

14) Rajesh Patel Vs. State of Jharkhand,

15) Joseph Poulo Vs. State of Kerala,

16) Subhash Chand Vs. State of Rajasthan,

17) Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and Another,

18) The State of Karnataka Vs. Mapilla P.P. Soopi,

19)Sudhansu Sekhar Sahoo vs. State of Orissa, AIR 2003 SC 2136

20) Mohan Lal -vs- State of Rajasthan (2003 Vol-4 Supreme 220)

He would pray for setting aside of the judgement and order of conviction and for passing the order of acquittal.

Per contra Mr. S.K. Mandal, learned Public Prosecutor, would submit, it was well settled principle of law, the victim''s version should be taken as sacrosanct even if the medical report would not fully support her story. He would refer to the forensic examination report that would suggest human semen being found in the bed sheet and shorts belonging to the accused and the wearing apparel of the victim that would conclusively prove the incident of rape. On the conduct of the parents Mr. Mandal would submit, Ramnagar was a far off place and it was not feasible for the parents to immediately rush to the place of occurrence. In any event, the P.W.2 being a member of the family took care of the victim that would remove all doubt as suggested by the learned counsel for the defence. On the medical examination he would submit, the accused was a doctor posted in Kalighat Public Health Centre. The report of the medical officer who first examined the victim was not conclusive. The prosecution thought it fit to have her examined by a medical board. Accordingly, she was examined. There was no discrepancy in her statement. Minor discrepancy, if any, would not lead to acquittal of the accused. He would pray for dismissal of the appeal.

OUR VIEW

Although Mr. Illango relied on twenty decisions he would put his emphasis on the five decisions that we discuss hereinafter.

In the case of Bimal Gorai (supra) there was variation in the statement of the witness. The Medical Report would also go against the prosecution story. Considering the sum total of the evidence the Division Bench of this Court acquitted the accused. Similarly, in the case of John and Others (supra) there was variation in the statement that raised doubt in the mind of the Court. The victim gave three different versions at three places that would make the issue difficult for the Court to come to the conclusion, the offence was committed by the accused. The learned Judge signed the judgement of acquittal. In the case of Kishori Lal (supra) there was major variation in the evidence that the Court found, resulting in acquittal of the convict.

Mr. Illango cited the decision in the case of Mahesh (supra) to support his case on the birth certificate. It was a case of kidnapping and rape. As per the school certificate the age of the victim was 14 years. The birth certificates issued by other authorities were neither produced nor proved. No ossification test was carried out. Evidence available on record was the testimony of the doctor to the effect, the victim was between 17-19 years. The learned Judge acquitted the accused.

In the case of The State of Gujarat (supra) the semen was not found on the apparel. The doctor also did not find any mark of sexual intercourse. The Division Bench acquitted the accused.

In a criminal appeal as against the judgement and order of conviction and sentence, in our considered view, there could not be any straitjacket formula that could be applied. It would solely depend on the evidence. In case the evidence would inspire the confidence of the Court it would lead to conviction. If the evidence was impeccable leaving no room for doubt the conviction would be a matter of course. Anything short of that would lead to an order of acquittal despite the prima facie view of the Court, the accused might have committed the offence.

In the instant case, Mr. Illango highlighted variation of the statement of the victim. Victim made three statements - FIR, Section 164 and deposition during trial. Even if we do not take those statements so highlighted by Mr. Illango, we would get a consistent case made out by the victim. She visited the hospital for her treatment. She was asked to see the doctor in his quarters. When she went there the incident happened. Whether the doctor prescribed the medicine in the hospital or whether she was given the medicine at the hospital or she was asked to collect it from the doctor''s quarters, may not be so relevant when the consistent evidence as to commission of offence is proved. In our considered view, prosecution was able to do so. Moreover, the incident would have strong corroboration from the CFSL examination report that would suggest presence of human semen on the bed sheet and shorts of the accused as well as wearing apparels of the victim. The accused never tried to dispel the prosecution story. No definite suggestions were put to the witness. Hence we do not find any reason why the doctor would be falsely implicated as claimed by him during his examination under Section 313 Cr.P.C.

The prosecution proved, the incident happened in the quarters of the doctor. The prosecution proved, presence of semen in the clothing belonging to both the accused and the victim. The birth certificate would convincingly suggest, the victim was a minor. Moreover, the accused did not take the plea of consent. Such impeccable evidence was never attempted to be demolished either by putting suggestion to the witness successfully or through any defence witness.

The learned Judge, in our view, very rightly convicted him under Section 376 that would deserve no interference at our end.

The appeal fails and is hereby dismissed.

Let the lower court records be sent down at once. Copy of the judgment be sent to the correctional home for information and a copy be given to the convict.

Tapash Mookherjee, J.

I agree.