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2007 DIGILAW 235 (CAL)

AJIT BARMAN v. STATE OF WEST BENGAL

2007-03-29

ALOK KUMAR BASU, KALIDAS MUKHERJEE

body2007
KALIDAS MUKHERJEE, J. ( 1 ) THESE two appeals bearing Nos. C. R. A. 284 of 2005 and C. R. A. 380 of 2005 are directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, Cooch Behar in sessions Trial No. 3 (12) of 2004 corresponding to Sessions Case No. 162 of 2003 convicting six accused persons and sentencing them to suffer R.. for 10 years each with a fine of Rs. 5,000/- each in default R.. for six months under section 376 (2) (g) of the Indian Penal Code and further sentencing them to suffer R.. for one year and to pay a fine of Rs. 1,000/- each in default R.. for two months each under Section 448 of the Indian Penal Code with the direction that both the sentences will run concurrently. Being aggrieved by the aforesaid judgment of conviction and sentence passed by the learned additional Sessions judge, Cooch Behar, four convicts viz. Ajit Barman, Khirod Barman, Sashi mohan Barman and Chamiruddin alias Kyalsa have preferred the appeal bearing No. C. R. A. No. 284 of 2005 and convict Samaranjan Mallick has preferred appeal bearing No. C. R. A. 380 of 2005. Out of six, five convicts have preferred the appeals and the remaining convict Mrinal Das has not preferred any appeal. ( 2 ) THE victim Runu Roy (Das) wife of Shri Jiban Das of village chheramari, District Cooch Behar lodged the complaint with the O. C. Choksadanga P. S. Alleging that on 22. 02. 2003 while her husband had been staying outside for his work for a long period and her mother-in-law having gone to her father's house and the victim being alone with her baby in her house, at about 1. 00 a. m. , when she opened the door to attend the nature's call, suddenly someone pressed her mouth with a piece of cloth and showing sword threatened to chop her throat if she cried out. They took her on the cot and laid her thereon. The victim found a gang of people and being frightened she could not shout or resist. There were 8/9 persons in the gang and they pressed her mouth with a piece of cloth. Four of them viz. Sam and Sashi held her hands and Kshirod and Kyalsa held her legs tight. Then they raped her. She lost her consciousness. The victim found a gang of people and being frightened she could not shout or resist. There were 8/9 persons in the gang and they pressed her mouth with a piece of cloth. Four of them viz. Sam and Sashi held her hands and Kshirod and Kyalsa held her legs tight. Then they raped her. She lost her consciousness. So long she had her senses, she recognized three of them who committed rape upon her. She could not say how many of them committed rape upon her after she lost her consciousness. At the time of incident there was a lamp (kupi) in her room. On hearing the voice of those persons she could recognize some of them. The three persons whom she saw to commit rape upon her were (1) Ajit Barman, (2) Chhamiruddin Mia (Kyalsa), (3) Samaranjan Mallick. Besides there were Kshirod Barman, Sashi Mohan barman and Mrinal Das whom she could recognize in her room. ( 3 ) AFTER the lodging of the F.. R. , the investigation was started and after completion of investigation, charge-sheet was submitted. The learned Trial judge framed charges under Sections 376 (2) (g) and 448 of the. P. C. against the accused persons who pleaded not guilty and claimed for trial. ( 4 ) IN this case the prosecution examined as many as 18 P. Ws. including the victim, the father and brother of the victim, persons of the neighbourhood, witnesses of seizure, mother-in-law, the doctors, the Judicial Magistrate and the. O. Out of the 18 P. Ws. , P. W. 6 and P. W. 7 were declared hostile. ( 5 ) P. W. 1 is the prosecutrix. P. W. 2 is the M. O. of P. H. C. who referred the victim to Mathabhanga S. D. Hospital. P. W. 3 is the father, P. W. 4 is the brother, P. W. 7 is the mother-in-law of the victim. P. W. 6 and P. W. 9 are the neighbours. P. W. 11, P. W. 12 are the doctors who examined the victim, P. W. 18 is the. P. W. 3 is the father, P. W. 4 is the brother, P. W. 7 is the mother-in-law of the victim. P. W. 6 and P. W. 9 are the neighbours. P. W. 11, P. W. 12 are the doctors who examined the victim, P. W. 18 is the. O. ( 6 ) THE learned Trial Judge on perusal of the evidence on record was pleased to convict the accused persons holding that the semen of the accused samaranjan Mallick matched with the semen mark found on the 'saya' and the result was positive; that from the medical report it was clear that several persons sexually assaulted the prosecutrix taking the loneliness and helpless condition on that night and committed rape one after another ; that there was unblemished statement of the victim coupled with the injury report, F. S. L. and D. N. A test report and considering the totality of the circumstances it was held that gang rape was committed by the accused persons upon the prosecutrix. The learned Trial Judge further held that the accused persons entered into the room of the victim forcibly with the intention and common object of committing gang rape upon her knowing that her husband and mother-in-law were not present on that night. ( 7 ) MR. Sekhar Basu with Mr. Jyotirmay Adhikary appeared on behalf of the appellants in Criminal Appeal No. 284 of 2005 and Mr. Subir Banerjee with mr. Jayanta Banerjee appeared on behalf of the appellant in Criminal Appeal no. 380 of 2005. Mr. Ashimesh Goswami with Mr. Amajit De and Mr. Kalyan moitra appeared on behalf of the State in both the appeals. ( 8 ) MR. Sekhar Basu contends that Haripada and Gopal to whom the victim allegedly narrated the incident, have not been examined ; that P. W. 9 did not support P. W. 1 as to the disclosure of the names. Mr. Basu further contends that the F.. R. does not disclose the catching hold of the victim by two persons, but the victim in her evidence stated that she was held by two persons. It is contended further that the victim in her evidence named six persons but in the F.. R. there are the names of the three persons who allegedly committed rape. R. does not disclose the catching hold of the victim by two persons, but the victim in her evidence stated that she was held by two persons. It is contended further that the victim in her evidence named six persons but in the F.. R. there are the names of the three persons who allegedly committed rape. It is contended that out of the persons to whom the victim made disclosure about the incident, one did not support her and the victim could not say in her evidence if she stated the names of the accused persons to the doctor at Mathabhanga S. D. hospital. It is contended that the victim applied for group 'd' post at Patkamari Rajendranath High School but did not get the job and accused Chhamiruddin was the member of the Managing committee of that school and it is the contention of Mr. Basu that there is scope for false implication. It is contended that the father of the victim, P. W. 3, identified only two persons at the time of trial and the brother of the victim, p. W. 4 has stated in his evidence that one of the accused had knife in his hand as told by his elder sister, but, in the F.. R. there was no mention of knife and the victim in her evidence did not state about knife. Mr. Basu contends that as per evidence of P. W. 4. e. the brother, one Sashi Bhusan Barman, Mrinal Das and another person were inside her room with the said accused persons and on this point there was contradiction with the statement made by the victim. Mr. Basu contends that P. W. 4 did not learn anything about the incident from the neighbours and P. W. 6 was declared hostile. It is contended that so far as the statement made by the victim before the learned Magistrate under Section 164, Cr. P. C. is concerned, there were omissions on material points. ( 9 ) AS regards the medical evidence Mr. Basu contends that the doctor p. W. 11 did not say that rape was committed upon the victim and in view of the allegation of gang rape, the D. N. A. test report is merely academic in nature. ( 10 ) MR. Basu contends that there were omissions and contradictions on material points between the evidence of the P. Ws. Basu contends that the doctor p. W. 11 did not say that rape was committed upon the victim and in view of the allegation of gang rape, the D. N. A. test report is merely academic in nature. ( 10 ) MR. Basu contends that there were omissions and contradictions on material points between the evidence of the P. Ws. and the evidence of. O. and labelling and sealing were not done in respect of the articles seized. Mr. Basu contends that inadmissible pieces of evidence were collected by the. O. during investigation. Mr. Basu contends that in view of the totality of the evidence, the impugned judgment of conviction and sentence is not sustainable. ( 11 ) MR. Banerjee appearing on behalf of the appellant Samaranjan mallick contends that the D. N. A. test report was admitted in evidence under section 293, Cr. P. C. , but because of the non-examination of the scientific officer, the appellant was prejudiced for not getting opportunity to cross-examine the said expert on the point as to how the semen of Samaranjan Mallick matched with the semen mark in the 'saya'. Mr. Banerjee contends that there was no evidence to prove that the saree, saya which the victim wore in the night of occurrence were examined by the expert at the time of scientific examination and he further contends that the saree was not sent. ( 12 ) MR. Banerjee contends that in view of the evidence of the doctor p. W. 11 that he did not find any dry seminal stain at external genital or thigh or any bleeding from the vagina, and no semen having been found in the vagina, and in absence of evidence of penetration, the conviction should be converted from 376 to 354,. P. C, In this connection Mr. Banerjee has referred to and cited the decision reported in Aman Kumar and Anr. v. State of Haryana, (2004)4 SCC 379 : 2004 C Cr LR (SC) 337 ; koppula Venkat Rao v. Sfafe of A. P. , (2004)3 SCC 602 : 2004 C Cr LR (SC) 449. ( 13 ) MR. Ashimesh Goswami appearing on behalf of the State contends that there is sufficient evidence for the commission of the offence under Section 376 (2) (g) and Section 448 of the. P. C. and the victim is not an accomplice. Mr. ( 13 ) MR. Ashimesh Goswami appearing on behalf of the State contends that there is sufficient evidence for the commission of the offence under Section 376 (2) (g) and Section 448 of the. P. C. and the victim is not an accomplice. Mr. Goswami has also referred to D. N. A. test report which shows matching of semen of Samaranjan Mallick with the semen spot in the 'saya' with positive result. Mr. Goswami has referred to and cited decision reported in State of rajasthan v. Biram Lal, 2006 SCC (Cr) 78. ( 14 ) THE contention of Mr. Basu is that as to the disclosure of the names, there is discrepancy between the F.. R. and the evidence of p. W. 1. ( 15 ) IN the F.. R. the victim has stated that there was a gang of 8/9 persons out of whom she could recognize six persons. She has further stated in the F.. R. that till she lost her consciousness three persons viz. Ajit Barman, chhamiruddin and Samaranjan committed rape upon her and she could not say how many of the rest committed rape upon her after she lost her consciousness. In the statement made by her before the learned Magistrate (exhibit 2/1) under Section 164, Cr. P. C. she has also stated that three persons committed rape upon her, but, she named in all six persons. Moreover, she stated before the learned Magistrate that in the light of kupi she could recognize those persons. In her evidence she also categorically stated that 8/9 persons entered into her room and she could identify six of them whose names have been specifically stated by her. The doctor P. W. 11 has also stated that the victim stated that 8/9 miscreants forcibly entered into the room and they one after another committed rape upon her and physically assaulted her. It is also in her evidence that at that time one kupi was burning inside the room which was also seized. So having regard to the contents of the F.. R. , her evidence and the statement made by her under Section 164, cr. P. C. and also the disclosure to the doctor, it is clear that there is no discrepancy as to the persons involved in the commission of rape upon her. ( 16 ) IN the F.. So having regard to the contents of the F.. R. , her evidence and the statement made by her under Section 164, cr. P. C. and also the disclosure to the doctor, it is clear that there is no discrepancy as to the persons involved in the commission of rape upon her. ( 16 ) IN the F.. R. it has also been mentioned that on the night of occurrence her mother-in-law was not present as she had gone to her father's house to see her ailing father for some days. In her evidence she has also stated this fact. The mother-in-law (P. W. 7), although declared hostile, in her cross-examination by the accused stated that so long her daughter-in-law Runu Das was at her house, she used to live in the same room with her. The. O. P. W. 18 stated that Maya Rani Das (P. W. 7 ). e. the mother-in-law of the victim, was not at her house on the date of incident. ( 17 ) MR. Basu contends that there is grave discrepancy as to the number of persons who allegedly put cloth on her mouth and took her inside the room. In the F.. R. it has been stated that someone pressed her mouth with a piece of cloth. In her evidence P. W. 1 stated that two persons pressed cloth in her mouth and in her statement under Section 164, Cr. P. C. she stated that two persons came in front of her and out of them one pressed the piece of cloth on her mouth. According to our considered view, this testimony of P. W. 1 cannot be said to be a contradictory statement so as to the shake the veracity of the prosecution case. ( 18 ) MR. Basu further contends that according to the brother (P. W. 4) one of the accused had a knife in his hand as told by P. W. 1 and in the F.. R. there is no mention of knife. It appears that in the F.. R. in her evidence and also in her statement under Section 164, Cr. P. C. the victim stated that there was sword in the hand of the accused person. R. there is no mention of knife. It appears that in the F.. R. in her evidence and also in her statement under Section 164, Cr. P. C. the victim stated that there was sword in the hand of the accused person. The evidence of P. W. 4 does not in any way cast any shadow of doubt on the veracity of the testimony of p. W. 1 in view of the consistent and convincing evidence of P. W. 1 regarding the entry of the accused persons in her house and the manner in which she was taken inside the room. ( 19 ) IT is in the evidence of P. W. 1 that previously she filed a case against accused Ajit Barman and the. O. has also stated that previously the victim filed a case alleging the attempt to commit rape upon her by Ajit Barman. From the evidence on record it is clear that there is consistent evidence that on the night of occurrence the victim was alone in the house with her baby and the accused persons finding her outside the room, put a piece of cloth on her mouth and forcibly took her inside the room. The evidence of P. W. 1 remains unshaken even of the undergoing the test of cross-examination. ( 20 ) AS regards the medical evidence, the doctor P. W. 11, has noted the following injuries on the person of the victim : - i) Nail patterned abrasion over left forearm - therein number, size 2" x 1/8". One bite mark over left forearm in the middle part ; ii) Multiple nail scratch marks over both breasts (8-10 over left breast and 5-6 over right breast ). One bite mark over left anterior axillary fold and over left lower breast. iii) Two bite marks over right forearm (middle part) over front side and back side. iv) One bite mark over lower abdomen (supra pubic region ). v) Nail scratch marks over right buttock (three in numbers) ; one bite mark over right buttock ; vi) Nail scratch marks over Vulva and perineal region and proximal part of both thighs. Vulval oedema and tenderness present ; ( 21 ) P. W. 11 opined that from the above injuries it was evident that the victim was physically assaulted and sexually abused by several persons. Vulval oedema and tenderness present ; ( 21 ) P. W. 11 opined that from the above injuries it was evident that the victim was physically assaulted and sexually abused by several persons. He has further stated that the victim was admitted in the hospital and remained there from 24. 02. 2003 to 28. 02. 2003. The doctor, has further stated that the bite marks as mentioned in the injury report were human bite marks and not insect bite marks. He has further stated that it was not possible for him to say that the patient was raped. ( 22 ) THE D. N. A. test report in original has been marked exhibit 13 from which appears that the semen of accused Samaranjan matched with the semen marks in the saya and the result was positive. The presence of the injuries as mentioned by the doctor, forcible entry of the accused persons at the dead hours of night and the D. N. A. test report regarding the presence of semen of samaranjan found in the 'saya' of the victim and the fact that the victim is a married lady, clearly indicate that the victim was raped. The facts of the decisions cited by Mr. Banerjee are distinguishable. In the instant case the victim is a married lady and the question of penetration loses importance because of the evidence of nail scratch mark over both the breasts, right buttock, vulva and proximal part of both thighs, abrasion in left forearm and bite marks over right forearm and presence of semen of Samaranjan Mullick in the 'saya'. Moreover in the evidence of P. W. 1 there is no discrepancy. Under the circumstances, the ratio of the decisions cited by Mr. Banerjee is not applicable in different facts and circumstances of the instant case. ( 23 ) THE alleged occurrence took place on the night of 22nd February, 2003 and she was medically examined by the doctor on 24. 02. 2003. Mr. Under the circumstances, the ratio of the decisions cited by Mr. Banerjee is not applicable in different facts and circumstances of the instant case. ( 23 ) THE alleged occurrence took place on the night of 22nd February, 2003 and she was medically examined by the doctor on 24. 02. 2003. Mr. Banerjee in this connection contends that the absence of semen in the vagina of P. W. 1 or any bleeding therefrom and the evidence of the doctor that she could not opine as to the commission of rape and in the absence of any evidence of penetration, the impugned judgment of conviction and sentence is not sustainable and he further submits that considering the injuries as noted by the doctor, the conviction should be converted from 376 to 354,. P. C. ( 24 ) WE have given anxious consideration to the submission of Mr. Banerjee, but, we are unable to accept such contention. The evidence on record clearly shows that the accused persons entered into the room of P. W. 1 forcibly by pressing cloth on her mouth and they laid her on the chouki and thereafter they committed rape one after another. The evidence of P. W. 1, according to our considered view, is convincing and according to the settled principle of law, the evidence of prosecutrix itself is sufficient to warrant conviction, if it is found to be convincing. In the instant case there is no credible evidence of animosity between the parties and the chance of false implication can reasonably and safely be ruled out. It is in the evidence of the P. Ws. that after the incident, the victim is residing in his father's house and her husband after the incident came to his house and thereafter left the house and since then he is missing. There is no earthly reason to believe that the victim, whose neighbours and even the mother-in-law did not support her and finding the hostile circumstances there, and now residing in her father's house being deserted by her husband, would falsely implicate the accused persons. ( 25 ) ON perusal of the evidence on record, we are of the considered view that the learned Trial Judge properly appreciated the evidence, facts and law and rightly recorded the order of conviction and sentence. We do not find any ground to interfere with the findings of the learned Judge. ( 25 ) ON perusal of the evidence on record, we are of the considered view that the learned Trial Judge properly appreciated the evidence, facts and law and rightly recorded the order of conviction and sentence. We do not find any ground to interfere with the findings of the learned Judge. There is no merit in the two appeals C. R. A. No. 284 of 2005 and C. R. A. 380 of 2005 and the same are dismissed. .