Simanta Char vs 1. The State Of Jharkhand 2. Chitranjan Mitra

Heard Mrs. J. Mazumdar, learned counsel for the appellant and learned Spl.P.P.

Instant criminal appeal is preferred by the above named appellant being aggrieved and dissatisfied with his conviction and sentence dated 09.12.2005 passed by learned 2^nd Additional Sessions Judge, Jamtara in Sessions Case No.172 of 2001 (arising out of Nala P.S. Case No.100 of 2000 registered for the offence under sections 341/376/511/376 of IPC), whereby and whereunder the appellant has been held guilty for the offence under sections 376/511 of Indian Penal Code and sentenced to undergo R.I. for 4 years.

Factual matrix giving rise to this appeal is that on 07.10.2000 at about 5:00 pm, the present appellant attempted to commit indecent assault and forcibly put vermillion on the head of the informant’s minor daughter(victim) aged about 15-16 years for which a case was lodged at Bindapather (Nala) Police Station. It is further alleged that on 22.10.2000 at about 6:30 am, while the victim girl had gone to discharge nature’s call at village pond, then the accused, Simanta Char caught hold of her from behind and brought towards the bushes and lying down on earth on the point of knife extending the threat of life, attempted to commit rape with her. It is further alleged that on hearing the alarm raised by the victim girl, the informant along with his son, namely, Viveka Nand Mitra and son-in-law Bhola Nath Dey went there, then accused managed to flee away snatching the golden chain of the victim girl. It is further alleged that due to fear of the accused, the informant has sent his daughter to his own sister’s house in another village and hiding himself anyhow reached the Nala Police Station on 25.10.2000 and lodged this written report.

On the basis of above written report of the informant, FIR was registered for the offences under sections 341, 376, 511 and 379 of IPC.

After completion of investigation, charge-sheet was submitted against accused for the offence under sections 341/376/511 and 379 of IPC.

After taking cognizance, the case was committed to the court of Sessions, where Sessions Case No. 172 of 2001 was registered.

The appellant has denied the charges leveled against him for the offence under sections 376/511 of IPC and claimed to be tried.

In course of trial, altogether 4 witnesses were examined by the prosecution, namely:-

P.W.1-Viveka Nand Mitra P.W.2-Chitranjan Mitra (informant) P.W.3-victim P.W.4-Sadanand Mitra

Apart from oral testimony of the witnesses, the following documentary evidences have been adduced by the prosecution i.e.:-

Ext.1-Signature of informant on written report Ext.1/1-Signature of Bhola Nath Mitra on the written report Ext.2-Written report Ext.3-Formal FIR Ext.4-C.C. of FIR of Nala (Bindapather P.S. Case No.96 of 2000 dated 08.10.2000 registered for the offences under sections 341 and 354 of IPC on the basis of written report of the victim of this case against the accused). 10.On the other hand, the defence case is denial from the occurrence and false implication and plea of innocence.

The defence has also examined one witness, namely, Narayan Chander Char, who happens to be own uncle of the accused. According to this witness, the father of the victim girl (informant) proposed for marriage of his nephew (accused) with the victim girl about two months prior lodging this case which the accused refused saying that in the same village, he will not solemnize marriage. Then, the informant threatened the appellant to falsely implicate in a case and teach a lesson. As such, this false case has been lodged against the appellant.

Learned trial court after evaluating the evidence available on record held the appellant guilty for the aforesaid offence and sentenced him as stated above, which has been assailed in this appeal.

Learned counsel for the appellant has submitted that P.W.1 is brother of the victim, P.W.2 is informant-cum-father of the victim, P.W.3 is the victim girl herself and P.W.4 is the younger brother of the victim. All the witnesses examined in this case are close relative and highly interested witnesses, whose testimony has to be scrutinized with great care and caution so that the possibility of false implication may completely be ruled out. It is further argued that the sole eye witness of this case is the victim girl, who has been examined as P.W.3. According to her evidence, the accused caught hold of her and thrashed on earth and put off her pant and salwar, gagging her mouth so that she could not raise alarm. The accused also pointed out a knife to her threatening to kill her if she raises any kind of alarm. She anyhow raised hulla, then her father, brother and brother-in-law arrived at the place of occurrence but the accused snatched her golden chain and fled away. She has also stated that on 07^th October, 2000, the appellant has forcibly put vermillion on her head for which a case was lodged (Ext.4). It is further argued that the testimony of the victim suffers from material contradictions as regards manner of occurrence, place of occurrence, and arrival of other witnesses on her raising alarm. The victim herself admits that her mouth was gagged by one hand and by other hand, the accused was holding a knife, then it is absolutely impossible that the victim will be thrashed on earth and her wearing garments may be untied and put off, if his both hands were involved as stated by the victim herself. She has also admitted that she was prevented from raising alarm then, it is also anomalous as to how in any manner, she could be able to raise alarm and hearing the same, her father and brother and brother-in-law arrived at place of occurrence. It is further submitted that the son-in-law of the informant has not been examined, who is said to be present at the time of occurrence. The other witnesses, P.W.1 and P.W.2 are also family members of the victim girl, who have claimed to arrive at the place of occurrence after hearing hullah of the victim girl, which is inherently false in the light of testimony of victim girl. It is further submitted that in her cross-examination, the victim girl herself admits that she is acquainted with the accused since 8-10 years. It is also admitted that she has sustained injuries in course of incident but was not examined by the doctor, but no injury report has been brought on record. The Investigating Officer has also not been examined as such defence has been seriously prejudiced in getting explanation about the material contradictions appearing in the evidence of witnesses. The place of occurrence has also not been proved. The single compound question was asked by the learned trial court in the statement under section 313 of Cr.P.C without mentioning the actual place and time of the alleged occurrence. It is further submitted that no specific overt act towards commission of rape with the victim girl has been proved by the prosecution as per evidence of the victim girl. The presence of P.W.1 and P.W.2 at the place of occurrence is also not believable. The village pond is used for discharging natures usually by all the villagers in the evening time, but not a single independent witness of the village has been examined by the prosecution to corroborate the prosecution case. Therefore, the impugned judgment of conviction and sentence of the appellant is absolutely illegal and beyond the weight of evidence based upon improper interpretation of the oral testimony of the witnesses without taking into consideration the materials elicited in the cross-examination, which is liable to be set aside and the appellant deserves acquittal from the charge leveled against him, allowing this appeal.

In the alternative, it is submitted that at best the material facts as disclosed by the victim girl if relied on its face value, no offence under sections 376/511 of IPC is made out rather the offence comes under section 354 of IPC. The appellant has remained in custody in this case for 1 month and 9 days. The victim and the appellant are now married and leading a happy conjugal life. It is further submitted that more than 2 ½ decades has been elapsed from the date of alleged offence. The appellant has not been indulged in any criminal activities since the alleged occurrence and his conviction. As such, the imprisonment already undergone by the appellant for the offence under section 354 of IPC is sufficient punishment for his guilt. Therefore, the conviction and sentence passed against the appellant may be reduced accordingly.

On the other hand, learned counsel for the State has opposed the aforesaid contentions raised on behalf of the appellant and submitted that learned trial court has very wisely and aptly considered all the aspects of the case in a threadbare manner and arrived at right conclusion. Therefore, there is no illegality or infirmity in the impugned judgment and order of conviction and sentence of the appellant, calling for any interference by way of this appeal, which is fit to be dismissed. However, it is admitted that it was the first offence of the appellant and he has not criminal background.

I have gone through the record of the case along with the impugned judgment and order in the light of the contentions raised on behalf of both side.

The only point for determination in this appeal is that “as to whether the impugned judgment and order of conviction and sentence of the appellant passed by learned trial court suffers from any error of law calling for any interference in this appeal?”

Before delving on merits in connection with above points, it is necessary to take brief resume of oral as well as documentary evidence adduced by the prosecution to substantiate the charges leveled against the appellant 18.It appears that altogether 4 witnesses have been examined by the prosecution.

The sterling witness of this case is the victim girl, who has been examined as P.W.3. According to her evidence, on 22.10.2000 at about 6:00 pm, when she went to attend the natures call, the accused caught hold of her and thrashed on earth and put off her pant and salwar, gagging her mouth, so that she could not raise alarm. The accused also pointed out a knife to her threatening to kill her, if she raises any kind of alarm. She anyhow raised hulla, then her father, brother and brother-in-law arrived at the place of occurrence, but the accused snatched her golden chain and fled away. She has also stated that on 07^th October, 2000, the appellant has put vermillion on her head against her will, for which a case was lodged (Ext.4).

In her cross-examination, she admits that the accused put vermillion on her head against her will on the occasion of Durgapuja. She further admits that the accused has not assaulted her by knife, when she raised alarm. However, she stated before the police that the accused caught hold of her on the point of knife threatening to kill her, if she will raise hulla. She admits that she has sustained injury on her backside and leg but she was not examined by any doctor. She has denied the suggestion of defence about any talk of her marriage with the accused and her father has never put pressure to the accused for solemnizing marrying with her.

P.W.1-Viveka Nand Mitra is the elder brother of the victim. According to his evidence, on 22.10.2000 in the evening at about 6:30 pm, his sister had gone to village pond for discharging nature’s call, which is situated backside to his house. His sister raise alarm saying

I have given anxious consideration to overall aspects of the case as testified by the prosecution witnesses and also gone through impugned judgment. It appears that there is no specific overt act towards commission of rape as alleged by the victim against the appellant rather it was an indecent assault committed by the accused with intention to outrage her modesty. In the factual background as proved by the prosecution, particularly on the basis of evidence of the victim girl, which could not be disbelieved in its entirety, simply because, some contradictions and improvements have appeared during her cross-examination, the ingredients of offence under sections 376/511 of IPC is absolutely lacking in this case rather a case under section 354 of IPC is proved beyond shadow of reasonable doubt by the prosecution. Therefore, the conviction and sentence for the offence under sections 376/511 of IPC is hereby set aside and the appellant is found guilty for the offence under section 354 of IPC.

So far the quantum of sentence for the offence under section 354 of IPC is concerned and considering the background of the case, the nature of offence committed by the appellant, his age, character and antecedent, and also in view of the fact that about 2 ½ decades has been passed since the occurrence and the appellant has already sustained imprisonment for about 1 month and 9 days during pendency of trial and post-conviction period, it appears expedient in the ends of justice to sending the appellant for the offence under section 354 of IPC to the extent awarded imprisonment already undergone.

Accordingly, this appeal is dismissed on merits with modification in conviction and sentence of the appellant to the extent mentioned above. 22.The appellant is on bail, hence, he is discharged from liability of bail bond. The sureties are also discharged. 23.Pending I.A(s), if any, is also disposed of accordingly. 24.Let a copy of this judgment along with Trial Court Records be sent back to the concerned trial court for information and needful.