& ANR. Vs. State of West Bengal  INSC 380 (7 May 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 800
OF 2007 Utpal Das & Anr. ...APPELLANTS Versus
Sudershan Reddy, J :
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.
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.
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
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.
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).
statements under Section 313 Cr.P.C. of the appellants were recorded in which
they pleaded their false implication.
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.
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.
have heard the learned counsel appearing for the appellants as well as for the
State and perused the material available on record.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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
all the aforesaid reasons, we find no merit in this appeal and the same is
....................J. (B. SUDERSHAN REDDY)