Utpal Das & Anr vs State Of West Bengal

Utpal Das & Anr. ...APPELLANTS

Versus

State of West Bengal ...RESPONDENT

JUDGMENT

B. Sudershan Reddy, J :

1. This appeal by special leave is directed against the

judgment of the Calcutta High Court setting aside the

acquittal of the appellants herein under Section 376 IPC

and sentencing them to suffer rigorous imprisonment

for five years and to pay a fine of Rs. 2,000/-, in default

of payment of fine to further undergo two months rigorous

imprisonment.

2. The prosecution story, briefly stated, is that on

28.4.1984 at about 8.00 p.m. one Sitarani Jha (PW-14) got

down from a train at Burdwan Railway Station alone and

hired a rickshaw to go to the Badamtola bus stand as

she had to take a bus for Satgachia. On reaching at

Badamtola bus stand she learnt that the last bus for Satgachia had already left. She then told the rickshaw

puller, Bipul Samaddar (PW-6) to take her to a girl of her

village who lived at nearby place, Kalna Gate. It is

alleged that when the victim was about to leave Badamtala

bus stand she was intercepted by four or five persons who

forcibly took her to a house under construction and

thereafter two of them forcibly committed rape on her one

after another against her will. One of them had a knife in

his hands. The victim further alleged that after commission

of rape she was taken to a nearby tea stall and locked

there in a small room by the appellants. After sometime one

Parimal Babu (PW-2), Probal Babu (PW-1) and Bipul Samaddar

(PW-6) and some other people rescued her from that shop, to

whom she narrated the whole incident. Thereafter the victim

took shelter for night in the house of one Joydeb Prajapati

(PW-4) a distant relative of her. It is further alleged

that on the following morning i.e. 29.4.1984 local people

brought Utpal Das (appellant no. 1 herein), Haradhan @

Bhalta Sutradar (appellant no.2 herein) and one Banshidhar

Dawn before the victim and she identified Utpal and

Haradhan @ Bhalta Sutradhar as the persons who committed

rape on her and at that time Haradhan @ Bhalta managed to

flee away. This, in fact, is the story given out by the

prosecutrix - Sitarani Jha while she lodged the FIR (Ex. 9)

with Burdwan (Sadar) Police Station at 10.45 a.m. on

29.4.1984.

3. Based on the report (Ex.9) the Police Station

Burdwan registered a case under Sections 366, 368 and 376

read with Section 34 of the IPC against the appellants.

4. During the course of investigation, site was

inspected, the seizure list was prepared, the prosecutrix

and the appellants were got medically examined and the

medical examination reports of the prosecutrix (Ex.P-2) as

well as Ex. P-3 and Ex. P-4 of the appellant nos. 1 and 2

respectively were obtained.

5. After completion of the investigation, the police

filed charge sheet against the appellants under Sections

366, 368 and 376 read with Section 34 of the IPC. The

prosecution altogether examined 17 witnesses (PW-1 to PW-

17) and 09 documents were got marked (Ex. P-1 to P-09).

The statements under Section 313 Cr.P.C. of the appellants

were recorded in which they pleaded their false

implication.

6. The learned Additional Sessions Judge upon

consideration of the evidence and material available on

record held that prosecution has failed to prove its case

beyond reasonable doubt and accordingly acquitted all the

accused of the charges framed against them.

7. Aggrieved by the order of acquittal, the State of West

Bengal preferred an appeal before the High Court. The High

Court upon reappreciation of the evidence and the totality of circumstances held that the trial court has

extended benefit of doubt to the appellants under

misconception of facts and wrong appreciation of evidence

and accordingly came to the conclusion that the appellants

are guilty of the offence punishable under Section 376/34

of the IPC. However, the High Court confirmed the

acquittal of the other accused. The order of acquittal of

those accused has attained its finality since there is no

appeal preferred by the State. Hence, the appellants are

before us in this appeal challenging their conviction and

award of sentence by the High Court under Section 376/34

of the IPC.

8. We have heard the learned counsel appearing for the

appellants as well as for the State and perused the

material available on record.

9. Shri Chanchal Kumar Ganguli, learned counsel appearing

on behalf of the appellants submitted that the High Court

failed to appreciate that there was no acceptable evidence

of the appellants committing any rape as the Medical

Officer who examined the victim did not find any injuries

on her person as are likely to be found had she been

subjected to forced sexual intercourse. The medical

evidence and the reports of the chemical examination may

at the most suggest that the victim was a party to a sexual

intercourse in recent time. But there is no evidence to

suggest that the intercourse was without her consent or

against her will or that she had been forcibly violated by any person. The counsel thus submitted that essential

ingredients of the offence of rape under Section 376 IPC

are not present in the case. It was also submitted that

the evidence of prosecutrix suffers from material

contradictions. Her version was not supported by any of

the prosecution witnesses. She is not a truthful witness

and it may be unsafe to rely upon her evidence and convict

the appellants for the offence punishable under Section 376

IPC. An attempt was also made by the learned counsel for

the appellants to read the statement of the victim recorded

under Section 164 Cr.P.C and to compare the same with her

evidence. It was also submitted that PW-2, PW-3, PW-4 and

PW-5, were declared hostile by the prosecution and the

prosecution is left with no evidence other than the

statements of Rikshaw Puller (PW-6) and the victim who

contradict each other.

10. Learned counsel for the State submitted that evidence

of the victim (PW-14) itself is sufficient to convict the

appellants and at any rate, her version is completely

supported by the evidence of PW-6, whose evidence cannot be

rejected for whatsoever reasons. It was further submitted

that there is nothing in the medical evidence which

supports the case of the appellants as contended by the

appellants.

11. In order to consider as to whether the prosecution

established the case against the appellants beyond reasonable doubt, we are required to critically scrutinize

the evidence of the prosecutrix and Probal Babu (PW-1),

Bipul Samaddar (PW-6) and also the evidence of Dr. A.

Chakravorty (PW-8) as the entire case turns upon their

evidence.

12. In exhibit P-9 (report) the prosecutrix (PW-14)

alleged that on 28.4.1984, at about 8.00 p.m when she was

going in a rickshaw towards Kalna Gate all of a sudden

the appellants and other accused surrounded the rickshaw

and told the rickshaw puller to divert the destination and

they forcibly took her to a nearby house under

construction and tried to rape her. She made an attempt to

save herself and requested them to free her. The

appellants did not heed to her request but forcibly

committed rape on her one after another. She was prevented

from raising her voice as they threatened her to kill. One

of them was holding a knife. Thereafter, the accused took

her to a nearby tea stall and locked her inside it. That

after about 15/20 minutes one Asok Babu, Parimal Babu (PW-

2) and Probal Babu (PW-1) and many others came there and

rescued her from that shop after unlocking the door. She

narrated the entire episode before them. Thereafter all of

them took her away to the house of Joydeb Projapati where

she took shelter in the night. Next day morning PW-1, PW-2

and others who rescued her came along with the accused

where she identified the appellants as the one who committed rape on her. She also stated that she experienced

pain in her private parts and all over her body.

13. The Prosecutrix more or less reiterated the same facts

in her evidence. In the cross examination she stated that

one of the miscreants "jumped" on the rickshaw and

threatened her at the point of knife that she would be

killed if she raises any hue and cry. She identified

appellant No.2 in the court as the one who threatened her

with the knife. Relying on this part of the statement in

the cross examination, learned counsel submitted that this

part of the story of appellant no.2 `jumping on the

rickshaw and threatening her at the point of knife etc. was

not stated by her in the first information report given to

the police. This one circumstance according to the learned

counsel for the appellants belies the evidence of the

Prosecutrix as she went on making improvements. We find no

merit in this submission for the simple reason that the

contents of the first information report were never put to

the victim. It is needless to restate that the First

Information Report does not constitute substantive

evidence. It can, however, only be used as a previous

statement for the purposes of either corroborating its

maker or for contradicting him and in such a case the

previous statement cannot be used unless the attention of

witness has first been drawn to those parts by which it is

proposed to contradict the witness. In this case the

attention of the witness (PW-14) has not been drawn to those parts of the FIR which according to appellants are

not in conformity with her evidence. Likewise statement

recorded under Section 164 Cr.P.C. can never be used as

substantive evidence of truth of the facts but may be used

for contradictions and corroboration of a witness who made

it. The statement made under Section 164 Cr.P.C. can be

used to cross examine the maker of it and the result may be

to show that the evidence of the witness is false. It can

be used to impeach the credibility of the prosecution

witness. In the present case it was for the defence to

invite the victim's attention as to what she stated in the

first information report and statement made under Section

164 Cr.P.C. for the purposes of bringing out the

contradictions, if any, in her evidence. In the absence of

the same the court cannot read 164 statement and compare

the same with her evidence.

14. We do not find any reason whatsoever to disbelieve the

evidence of Prosecutrix who meticulously narrated the

sequence of events as to what transpired on that fateful

day from 8.00 p.m. onwards till about her lodging the first

information report on the next day. There is nothing on

record to disbelieve her evidence. The only suggestion

made to her is that she was tutored by the police at the

thana and she had set up a false story to implicate the

appellants in the case. What are the reasons suggested for

such false implication? None.

15. Probal Chakarborty (PW-1), in his evidence narrated as

to what PW-6, told him on that fateful night about the

incident. The rickshaw puller told him that he was carrying

a woman passenger in his rickshaw to proceed towards Kalna

Gate and on the way 4-5 young men at the point of knife

directed him to divert his rickshaw and that one of them

sat by the side of the girl in the rickshaw. Upon reaching

near a house under construction he was asked by those men

to leave the girl with them. This incident PW-6, narrated

to PW-1, within a short time after the incident. That all

of them searched for the girl and ultimately found the girl

in a nearby tea stall where she was locked inside. There

is nothing to disbelieve the version given by PW-1 which

supports the prosecution's case.

16. Bipul Samaddar (PW-6) is none other than the rickshaw

puller whose evidence is very crucial. He in his evidence

clearly stated that on the fateful day at about 8.00 p.m.

one woman hired his rickshaw to Badamtola bus stand. He

took his rickshaw to Badamtola bus stand but on finding

that she missed her bus took her towards Kalna Gate on her

instructions. It is at that time 4-5 young men appeared

there and "forcibly got her down from the rickshaw and took

her away. Out of fear he rushed towards para" (Mohalla) and

reported the matter to PW-1 and others. Thereafter he

along with PW-1 and others went on searching for the woman

and ultimately found her in a tea stall of one Punjabee

from where she was rescued. Thereafter he along with others took her to one of her relative's house. It is also in his

evidence that two of the miscreants (appellants) forcibly

took that woman away on that night and he identified them

in the court. There is practically nothing suggested to

this witness in the cross examination. We do not find any

reason whatsoever to disbelieve the statement of PW-6 who

is totally an uninterested witness.

17. On consideration of the evidence of PW-14 and PW-6, we

are of the opinion that there are no material

contradictions in their evidence so as to disbelieve their

evidence. The version given by PW-14, (victim) receives

complete corroboration from the evidence of PW-6. It is not

even suggested to PW-6, that such an incident has not taken

place on that fateful day. We see no reason whatsoever to

disbelieve his evidence.

18. One more aspect that requires our consideration is as

to whether the medical evidence does not support the

prosecution's case? The High Court rightly expressed its

indignation as to the manner in which the trial court

completely misread the vital medical evidence. Dr. A.

Chakroborty, (PW-8) examined the victim on 29.4.1984. On

examination he opined that the victim is habituated to

sexual intercourse and therefore could not express his firm

opinion in his report about the commission of rape at the

time of medical examination. But in the evidence he

clearly stated after considering the report of FSL

regarding stains on victim's clothing, that there is sufficient proof of recent sexual intercourse. The vaginal

swab and smear were sent to Chemical Examiner. Based on the

FSL report and the report of Serologist (Ex. 7) he found

that the semen was present in the vaginal swab of the

victim. We fail to appreciate as to how and in what manner

the medical evidence supports the case of the defence.

19. The learned counsel for the appellants however,

submitted that the medical examination report of the victim

shows that no injuries were found on her private parts or

on any part of her body. We are required to note that

victim Sita Rani Jha is a married grown up lady and blessed

with two children and in such circumstances the absence of

injuries on her private parts is not of much significance.

The mere fact that no injuries were found on private parts

of her body cannot be the ground to hold that she was not

subjected to any sexual assault. The entire prosecution

story cannot be disbelieved based on that singular

assertion of the learned counsel. In this regard another

submission was made by the learned counsel for the

appellants that the sexual intercourse, if any, was with

the consent of the victim. According to him it was

consensual sexual intercourse. This proposition canvassed

for the first time across the bar is absolutely untenable

and unsustainable. There is not even a suggestion made to

the victim that she has consented to sexual intercourse.

The sequence of events clearly apparent from the evidence

of PW-1, PW-6 and PW-14, leading to the sexual assault completely rules out the possibility of consensual sex. We

have no hesitation to reject the submission.

20. The High Court rightly observed that the victim made

no mistake in identifying the two appellants, and that,

based on the evidence of PW-1, PW-6 and the victim (PW-14)

herself, it is satisfactorily proved that the two

appellants were actually the persons who committed rape on

the victim on that fateful day on 28.4.1984.

21. For all the aforesaid reasons, we find no merit in

this appeal and the same is accordingly dismissed.

....................J. (B. SUDERSHAN REDDY)

....................J. (AFTAB ALAM )

New Delhi, May 7, 2010