The State vs Zahrul Sheikh

Ashim Kumar Banerjee, J.

FARD BAYAN (STATEMENT OF THE SABITA (NOT REAL NAME):

On April 8, 2010 at about 4.45 AM Sabita recorded her statement at her residence by D.J. Rao. Sub-Inspector of Pahargaon Police Station. Sabita was residing with her family in a rented house at Austinabad. The family used to cultivate vegetables in the field of their house owner Hari Krishna. The husband of Sabita used to go for fishing. On April 8, 2010 while her husband was out for fishing and the lady was residing in her house with her children, at about 2.30 AM the accused Zohrul entered in her room and lifted the mosquito net and forcibly caught hold of her in order to fulfill his "Ulterior motive". She suddenly woke up and shouted for help. She got the smell of beedi that had come out of the mouth of the accused. She pushed the man while she felt the beedi smell. The accused put his hand on her mouth preventing her from raising alarm. In the meantime, Deepika (PW 2) woke up and started crying and shouting. Sabita felt, the person was naked. The person got afraid and tried to escape. She took her torchlight kept under her pillow and identified the persons as Zohrul Sheikh, her neighbour. Zohrul took advantage of her husband''s absence and entered her house with bad intention.

On the basis of such compliant, a case was initiated against Zohrul under sections 376/511/353/450/457 of the Indian Penal Code.

TRIAL:

The accused was arrested when he pleaded not guilty and faced trial.

EVIDENCE:

P.W. 1 Sabita was housewife. In the intervening night of April 7 and April 8, 2010 at about 2.30 AM she was in her residence with her children when her husband was away from the house to catch fish. She was sleeping with her daughter Deepika in the outer room whereas her son was in the inner room. The door of the house was of tin. She closed the door from inside with a narrow string keeping the light on. Zohrul somehow entered into her room and lifted the mosquito net, she raised alarm. He gagged her mouth. At that time, a bad smell of beedi was coming out from his mouth. Applying force she could come out of the house and raised alarm. At that time, her daughter also woke up. Her son also woke up and came out of the inner room. When the accused tried to flee away from the room she focused her torchlight when she saw the accused naked. The accused took shelter in the rented room in the house of Hari krishna, her landlord. They called Hari Krishna and narrated the occurrence to him. Hari Krishna talked to the people and thereafter called the police. The police came when the accused tendered apology catching her hand and feet. Two of his inmates raised question about her chastity. She narrated the incident to police. The police took the accused. The police also called her in the police station and took her to the hospital. She knew Zohrul and identified him in Court. She made statement to the police and after it had been written by the police, she signed it. She identified her signature.

In cross-examination she deposed, she was residing in a jhopri for the last two years where she would cultivate vegetable along with her husband. Her children were school going. The land was hilly and had slope. Her house was at the upper portion of the land towards road side. She used to cultivate vegetable and some time used to give vegetable and fish to their landlord. The landlord gave them the land near their house. Hari Krishna''s house was also situated as also other neighbours. According to her, her cry could be heard from the house of Hari Krishna. She gave statement to the police when the accused entered her room the light was switched off. When the accused went out of the house she switched on the light. The police did not seize the torchlight used by her. She was not aware of any brother of the accused residing inside the land where they used to cultivate vegetables. She would, however, depose, accused used to reside with two others in a rented room of Hari Krishna. There were other tenants in the same house. She mentioned the name of the accused to the police. She denied of the suggestion given by the defence to the effect, no such incident had happened. She was consistent on identifying the accused with the help of the torchlight as also the accused tendering apology as referred to above. She denied the suggestion to the effect, she got inimical relation with the brother of the accused relating to taking away of vegetable and for that she falsely implicated the accused.

EVIDENCE OF P.W. 2 DEEPIKA DAS:

P.W. 2, Deepika Das was 11 years old when she deposed. She was a school going girl. She deposed, she was sleeping with her mother when her father was away to catch fish. She woke up hearing the cry of her mother when she saw Zohrul fleeing away, at that time her mother focused torchlight. She also deposed, Zohrul was running naked.

During cross-examination she deposed, the other houses could be seen from the outside of their house and her cry could be heard by Hari Krishna. She also admitted about cultivation of vegetable in the land of Hari Krishna as also the factum of other persons residing as tenants in between their house and the house of the brother of the accused. She admitted in having distance between the accused and herself when the accused''s face was towards outside. She deposed, they had only one door in the house. She denied the suggestion to the effect that she had never seen the accused fleeing away.

EVIDENCE OF P.W. 3 JAIDHARATH DAS:

P.W. 3, Joydhrath Das, the son of Sabita was 13 years old at the time of deposition. He was also student of Prothrapur Govt. Senior Second School. While he was sleeping in the inner room he heard cries of her mother. After coming out of the room he saw someone fleeing away and with the help of the torch lighted by his mother he could identify the person. He saw the accused''s face, who was naked. The accused fled away and entered in his room when his mother and sister approached Hari Krishna uncle who made phone call to the police.

In cross-examination Joydhrath deposed, he did not give any statement to the police. He, however, denied the suggestion, police did not ask anything.

EVIDENCE OF P.W. 4 HARI KRISHNA:

P.W. 4 Hari Krishna was a retired service holder from Electricity Department. He deposed, Sabita''s family was residing on his land by making a jhopri and cultivating vegetables. On that day, Sabita and her children came to his house and stated "thief might have entered in their house". They showed the direction in which the thief fled away but Hari Krishna did not notice any thief. He called all the three persons who resided separately. He stated to them, thief had come when they had pleaded their ignorance. Hari Krishna informed the matter to the police and police came and took three persons to police station. Zohrul was amongst them.

During cross-examination Hari Krishna deposed, at about 2.30 to 3.00 AM he came out to give fodder to his cattle when he saw the lady coming near to his house with her children. He admitted to have informed the police. He admitted, there was some quarrel between Sabita and the brother of the accused relating to taking away of vegetables.

Pertinent to note, this witness, although not corroborated the others, P.W. 1, P.W. 2 and P.W. 3, was not declared hostile.

EVIDENCE OF P.W. 5 JAIDEV NATH:

P.W. 5, Jaidev Nath, a constable photographed the jhopri at the instance of his superior.

EVIDENCE OF P.W. 6 RAJARATNAM:

P.W. 6, Rajaratnam, the Head Constable received the fardbayan written by the Station House Officer and as per his direction he chalked out the FIR against Zohrul under sections 376/511/354/450/457 of the Indian Penal code. He identified the FIR.

EVIDENCE OF P.W. 7 A. LOKNATHAN:

Sub-Inspector, A. Lokanathan was the Station House Officer of that police station. He received the case diary against the Zohrul and after verification, found prima facie materials for the offence and filed the chargesheet accordingly.

EVIDENCE OF P.W. 8 GIRISH KUMAR:

P.W. 8, Girish Kumar received the FIR against Zohrul. He identified the FIR. He prepared the copy of the FIR, fardbayan and took up the investigation. During investigation, he visited the place of occurrence, prepared rough sketch map. He identified the site plan. He took photograph of the place of occurrence, that he identified. He recorded the statement of the witnesses under sections 161 of the Cr.P.C. and arrested the accused and produced him in Court. He also sent Sabita for medical examination and collected the medical report, that he identified as Ext. 5.

During cross-examination he deposed, he recorded the statement of Moor Salim Sheikh, Sentu Sheikh and Hari Krishna. He did not seize the torchlight during investigation. He also did not mention anything about the torchlight. The condition of the house was also not recorded. He did not find any damage to the house or its door during his investigation.

The defence did not adduce any evidence.

In reply to the question posed to the accused during his examination u/s 313 Cr.P.C. he stated "Due to inimical relationship regarding cultivation of vegetables etc. I am falsely implicated in this case."

RESULT OF TRIAL:

Considering the evidence that I have discussed hereinbefore, the learned Additional Sessions Judge, vide judgment and order dated October 3, 2013 acquitted the accused that would appear from pages 37 to 52 of the paper book.

FINDING OF THE LEARNED ADDITIONAL SESSIONS JUDGE:

The learned Additional Sessions Judge examined the evidence and found material discrepancy to complete the chain. The learned Judge observed, despite consistent statement from PW. 1, 2 and 3 to the effect, the accused was naked, the police did not seize any wearing apparel. The police also did not seize the torchlight that was used to identify the accused. He also found material discrepancy in the evidence of Hari Krishna where Hari Krishna stated, PW. 1, PW. 2 and PW. 3 approached him when Sabita stated, thief had entered in their house and fled away in the direction shown by them. The learned Judged also observed, the witnesses never stated, accused tried to commit rape upon Sabita. The learned Judge also found omission of police in not examining PW. 3. The learned Judge also considered the fact, Hari Krishna was never declared hostile. Hari Krishna deposed, three persons were taken to police whereas he only identified the accused. The prosecution also claimed, Zohrul was only arrested. The Medical Officer who examined Sabita was also not examined. As per the medical report, Sabita was not subjected to forcible sexual intercourse. No mark of injury of inflammation was found on her vagina during medical examination.

The learned Judge observed, there was distinction between the "preparation" and "attempt". Even u/s 354 I.P.C. assault or criminal force with intent to outrage the modesty or indecent assault or offence to commit rape could not be established. He acquitted the accused from the charges brought against him.

APPEAL:

Being aggrieved, State preferred appeal on the grounds mentioned in the memorandum of appeal that we heard on the above mentioned date.

CONTENTIONS:

Appearing for the prosecution in support of the appeal Mr. S.K. Mandal, learned senior advocate would contend, in case this Court could not convince itself on the implication of the accused u/s 376, there was sufficient evidence to hold the accused guilty of the offence u/s 457 read with section 354 of the IPC.

Elaborating his arguments, Mr. Mandal would submit, minor mistakes should not come in the way of implicating the accused when there was concrete evidence to support the prosecution story.

Referring to the evidence, Mr. Mandal would contend, Sabita was definite on the incident. She was consistent and could not be shaken in the cross-examination that received corroboration from her two children. He would admit the flaw on the part of the prosecution in not declaring Hari Krishna as hostile. However, the evidence of Hari Krishna would also support the prosecution story about the incident that had occurred on the fateful day. He would admit, it would have been better if Rao (Police Officer who went to the spot) was examined. However, non-examination of Rao would not be fatal in view of the concrete evidence in support of the prosecution story. He would pray for conviction of the accused, at least under sections 457 read with section 354 of the I.P.C.

Per contra Mr. D. Ilango, learned counsel would contend, the pre-requisite u/s 457 was conspicuously absent in absence of any material evidence in support of lurking trespass. The Investigating Officer admitted, no damage was caused to the door. Sabita and her children deposed, there were other neighbouring houses in between their houses. None of them was examined. P.W. 1, P.W. 2 and P.W. 3 consistently deposed, accused was found in naked condition. It would be improbable to suggest, he came in such a condition crossing 6/7 houses in between and committed the crime. If it was not so, giving credence to what they would depose, the wearing apparel could be found at the place of occurrence. The police did not say so. The police did not seize any wearing apparel. P.W. 4 who was not declared hostile, deposed, three persons were taken by police whereas P.W. 9, the Investigating Officer deposed, he arrested the accused only. There was material difference and discrepancy in the evidence that would raise sufficient doubt in the mind of the court and the learned Judge rightly acquitted the accused. He would pray for dismissal of the appeal.

OUR VIEW:

While we fully agree with Mr. Mandal, minor discrepancies and differences in the deposition would not be fatal if the incident could get support from other evidences. Keeping it in our mindset, if we closely examine the evidence we would find, Sabita locked the door from inside with the help of string. The accused either crushed the door to make an entry or cut the string to get it opened. The Investigating Officer categorically stated, no damage was caused to the door. Hence, a part of string could be found at the place of occurrence that the police miserably failed to seize and produce before the court to support the case of lurking trespass.

In a case u/s 457 of the IPC, material evidence was necessary to prove "lurking trespass". Nobody saw the accused in trespassing the house hence, the material evidence could have booked him under the said provision that is missing. We, thus, do not find any plausible cause to book the accused u/s 457.

Once the charge u/s 457 was not proved to our satisfaction, the case made out u/s 376, even u/s 354, would get weakened. Mr. Mandal, in his usual fairness, would admit, there was no sufficient evidence u/s 376. Sabita also did not make any such statement before the police in her fardbayan. She could only say, entry was with "Ulterior Motive" that was not sufficient either u/s 376 or u/s 354, as the case may be.

P.W. 4 was not declared hostile. Hence, the prosecution cannot avoid his deposition. P.W. 4 would say, Sabita and her children complained of thief entering into their house. They never mentioned the name of the accused before Hari Krishna. They also did not narrate the incident that allegedly occurred in the outer room where Sabita had been sleeping with her daughter. Hari Krishna also suggested that there had been quarrel on the taking of vegetables between Sabita and the brother of the accused. Hence, the "inimical relationship" that the accused deposed while being examined u/s 313 Cr. P.C. would get support.

There is one more salient feature. Sabita in her cross-examination stated, she did not know the brother of the accused. She knew several persons residing in the house of Hari Krishna as tenants. P.W. 2 would however depose, in other houses many persons were residing as tenants in between their house and "house of brother of accused". We wonder when a girl of nine years could identify the brother of the accused her mother would not know any such person that would shake the confidence of the court.

On the issue of identification, the evidence of P.W. 1, P.W. 2 and P.W. 3, even giving full credence, would not inspire our confidence, in absence of torchlight being not seized by the police. The witnesses would say, they could identify the accused with the help of the torchlight as there was no light. Hence, the torch was a material evidence that the police failed to seize.

Taking a sum total of the evidence and the major discrepancies that we highlighted hereinbefore, it would not in any way inspire our confidence to complete the chain of events that would unimpeachably direct us to hold the accused guilty. The chain of events should conclusively suggest, it was the accused and the accused only who committed the offence, same is not the case here.

The learned Additional Sessions Judge, in our view, rightly exonerated the accused from the charges and acquitted him that would deserve no interference.

RESULT & DIRECTION:

The appeal fails and is hereby dismissed.

The Lower Court Records be sent down at once.

Tapabrata Chakraborty, J.

I agree.