The Calcutta High Court, while allowing the appeal of a rape accused in Belal @ Radheshyam Mondal vs. The State of West Bengal, has held that mere error in mentioning the date of occurrence at the time of framing charge cannot vitiate the trial under Section 464 of CrPC and, thus, cannot be a ground to invalidate the trial.
Additional Sessions Judge, Fast Track, Malda, had convicted accused Belal for committing offence under Section 376 of IPC, sentencing him to suffer imprisonment of 10 years and to pay compensation of Rs.10,000 in default to suffer imprisonment for one year. In the trial court charge was framed against two accused (the other accused was acquitted by the court) for committing gang rape upon the victim girl. The father of the victim girl lodged the FIR at Baishnab nagar Police station informing that his 15-year-old daughter was returning home from the house of his next door neighbour Raj Kumar Mondal, when both the accused gagged her mouth by cloth and took her to the jute field of Arup Mondal behind panchayat office. Then the accused committed rape on her while the other accused was guarding. The girl fled away and narrated the whole incident on returning home.
According to the recorded FIR, the police station was about 10 km away from the place of occurrence in short and the occurrence of 28.05.2007 was reported on 29.05.2007 at 1.05 pm. The date of occurrence was mentioned as 29.05.2007, instead of 28.05.2007, at the time of framing charge against the accused, which date was palpably erroneous. Belal’s advocate argued that since the said date 29.05.2007 was contrary to the date of alleged occurrence as claimed by witnesses of prosecution during trial, it was vitiated in view of the provision under Section 212 CrPC.
However, the division bench of Justice Aniruddha Bose and Justice Sankar Acharyya held that:
“On close scrutiny on the materials brought by prosecution during trial, we find that the appellant was never misled about the facts alleged and the substance of the offence charged against him in the trial court due to the error of the learned judge in mentioning the date of occurrence at the time of framing charge. Therefore, following the guiding principles of law laid down in Section 215 of the CrPC, we are of the opinion that the error in mentioning date in the charge has not occasioned a failure of justice. Consequently, we accept the arguments advanced by learned counsel for the state and we hold that the trial was not vitiated by the error took place in mentioning the date by mistake in the charge in view of the provisions under Section 464 of the CrPC.”
However, as the proceedings progressed, the high court was of the opinion that the evidence in favour of the accused wasn’t appreciated by the trial court and in fact, prosecution had deliberately withheld a prime witness named in the FIR who might have given evidence to unfold the truth. From this withholding of information, adverse inference was drawn by the court. As a result, Belal was found not guilty of the offences punishable under section 376 and was set at liberty by the court.
Read the Judgment here.
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