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2008 DIGILAW 371 (CAL)

Sk. Sarif @ Puna v. State

2008-04-04

G.C.GUPTA, KISHORE KUMAR PRASAD

body2008
JUDGMENT: GIRISH CHANDRA GUPTA, J. (1) THIS appeal is directed against a judgment and order dated 31st March, 2005. passed by the learned additional Sessions, 3rd Court, Bankura, in Session Trial No. 1 of 2004 arising out of Sessions Case No. 15 of 2003 convicting the appellant. Sk. Sarif alias Puna under sections 363 and 376 of the Indian Penal Code. The appellant was sentenced to suffer rigorous imprisonment for a period of five years a also to pay a fine of Rs. 1. 000/-, in default to suffer further rigorous imprisonment for a period of three months for the offence punishable under section 363 of the IPC. He was also sentenced to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs. 2,000/-, in default to suffer further rigorous imprisonment for a period of six months for the offence punishable under section 376 of the Indian Penal Code. Both the sentences were directed to run concurrently. (2) THE facts and circumstances of the case briefly stated are that on 14th April, 2000, at about 7 P. M. in the evening when the prosecutrix was alone in her house, one Champamukhi called her through the window requesting her to guard so that she might respond to natures call. The prosecutrix accompanied her to the open toilet. At that time, batu Garai, Debasis Goswami, Nemai Garai, Bapi Ruidas, Hero Jadav and the appellant came near her and asked Champamukhi in some code language "whether she had brought" to which she answered "she did". Then the aforesaid persons asked the prosecutrix to accompany them. The prosecutrix declined to go. Nemai Garai at a knife point threatened her that if she thought of shouting, she would be murdered. Nemai Garai pulled her hand, Debasis Goswami assaulted her and thereafter, the prosecutrix was forcibly taken away in a Rickshasw to lokpur and kept in a house. On the following day she was taken to bishnupur where she was raped by the appellant. The mother of the prosecutrix, P. W. 4, Smt. Minoti Bhatt, lodged a written complaint on 14th April, 2000, itself at about 23. 05 hours stating that her minor daughter aged about 14 years was missing from her residence. She could gather from the people of the locality that the appellant. Sk. Sarif alias Puna, son of Langta had kidnapped her forcibly. 05 hours stating that her minor daughter aged about 14 years was missing from her residence. She could gather from the people of the locality that the appellant. Sk. Sarif alias Puna, son of Langta had kidnapped her forcibly. (3) THE prosecutrix was brought back to Bankura by the appellant on 17th April. 2000. She was recovered from the custody of the appellant at 4 P. M. on 17th April 2000. A charge sheet under sections 363/366a/376 of the IPC was filed against the aforesaid six persons including the appellant. All of them were charged. The five out of the six accused persons have been acquitted. Insofar as the charges proved against the appellant under sections 363 and 376 of the Indian Penal Code are concerned, the relevant evidence of the prosecutrix may be noticed which is as follows: "my next door neighbour Champa Mukhi called me from the window and she requested me to guard as she will go for natures call. I accompanied her in the bamboo groove in the back side of my house. While I was there at that time accd. Batu Garai, Debasis Goswami, nemai Garai, Bapi Ruidas, Hero Jadav, Puna came to us and they asked Champa Mukhi " Neeya Esechis" and in reply Champa Mukhi told " Ha Enechi". I asked Champa about the matter and at that time accd. Batu and others accd. told me to accompany with them and I declined to go. Accd. Nemai Garai threatened me by showing a knife that if I raise shouts he will murder me. Accd. Nemai pulled my hands and Debasis assaulted me and thereafter they forcibly took me in a rickshaw at Lokepur and kept me in a house. On the next day morning they took me at Bishnupur in bus at Katandhar and they kept me in a room of a house and at about 10 p. m. accd. Puna entered in my room and Puna pressed my breast and had torn my wearing apparel and had thrown me in the floor and sat on my chest and showed a knife and he told that anyhow he will commit rape upon me and thereafter he forcibly penetrated his penis in my vagina. Puna entered in my room and Puna pressed my breast and had torn my wearing apparel and had thrown me in the floor and sat on my chest and showed a knife and he told that anyhow he will commit rape upon me and thereafter he forcibly penetrated his penis in my vagina. He made sexual intercourse for about 10 minutes and after completion of intercourse he left the room and after one hour again Puna entered inside the room and committed rape upon me forcibly against my will. I lost my sense. When I regained my consciousness i saw accd. Puna in my bed in naked condition. I sustained bleeding injury. Champa Mukhi and his maternal grand mother took my torn wearing apparels and they handed over a churidar to me. At the time of commission of rape my wearing apparel was a Churidar, a tape and a panty. On the next day in the evening the accd. persons took me at Bankura town and kept me in an unknown house and on the next day the police arrested me and puna at Gopinathpur, Bankura, and took us in the P. S. I reported the entire incident to the police. The police sent me to the Court. " (4) THE prosecutrix was referred to medical college for examination. The medical report, which has been marked Exhibit 3, goes to show that hymen of the prosecutrix was found raptured. After necessary tests, including "x-ray, the age of the prosecutrix on 19th April, 2000 was opined to be between 14 years and 17 years. P.W. 5, Dr. Dey, proved the exhibit 3. (5) P.W. 4, the mother of the prosecutrix. Smt. Minoti Bhatt, deposed that on the date of giving evidence on 30th November, 2004, the prosecutrix was 18 years old. On the date of occurrence she was 14 years old. (6) THE prosecutrix in her cross-examination deposed that she did not see her father. He already had died. P.W. 4, the mother of the prosecutrix deposed that her husband died in a rail accident on 13th may, 1986, This part of the evidence of P.W. I and P.W. 4 goes to corroborate the evidence of P. W. 4 that the age of the prosecutrix on the date of the incident could have been fourteen years. (7) THE prosecutrix in her cross-examination remained firm and unshaken. (7) THE prosecutrix in her cross-examination remained firm and unshaken. As a matter of fact, Mr. Dey, learned senior counsel, appearing in support of the appeal, could not cite even one sentence which, according to him, would go to suggest that the evidence of the P.W. 1 given in chief was incorrect. Mr. Dey, the learned senior counsel, advanced the following submissions: - (a) There is no corroboration as regards commission of alleged rape. In support of his submission, he relied on a Division Bench judgment of this Court in the case of Noor Alam @ Noor Amir v. State reported in 1989 C Cr LR (Cal)143 wherein a Division Bench of this Court refused to believe the story of the prosecutrix in the absence of corroboration. (b) He also relied on a judgment in the case of Dilip and Another v. State of M. P. reported in 2002 SCC (Cri) 592. He placed reliance on paragraph 14 of the judgment which reads as follows: "the age of the prosecutrix was around 16 years, may be a little more. The fact remains that she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. Without going into testing the truthfulness of the explanation offered by the prosecutrix that because of being overawed by the two accused persons, she was not able to resist, the fact remains that the "probabilities factor" operates against the prosecutrix. The gang rape is alleged to have been committed at about 2 p. m. in her own house, situated in a populated village by the side of the main road where people were moving on account of Holi festival. The prosecutrix is said to have sustained injuries, also bleeded from her private parts staining her body as also the clothes which she was wearing. This part of the story, is not only not corroborated by the medical evidence, is rather belied thereby. The presence of bloodstains is not confirmed by the Forensic Science laboratory or by the doctors who examined the prosecutrix. Her own maternal aunt to whom the story of sexual assault has been narrated by the prosecutrix gives a version which does not tally with the version of the prosecutrix as given in the Court. The presence of bloodstains is not confirmed by the Forensic Science laboratory or by the doctors who examined the prosecutrix. Her own maternal aunt to whom the story of sexual assault has been narrated by the prosecutrix gives a version which does not tally with the version of the prosecutrix as given in the Court. The learned counsel for the State relied on section 114-A of the Evidence Act, 1872 which provides that in a trial on a charge under section 376 (2) (g) IPC on the prosecutrix stating that she was not a consenting party the Court shall presume absence of consent of the woman alleged to have been raped. Suffice it to observe that we should not be misunderstood as recording a finding that the prosecutrix was a willing party to the sexual intercourse by the accused persons. The Court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of the Forensic Science laboratory. The defence has given suggestion in cross-examination for false implication of the accused persons which, however, have not gone, beyond being suggestions merely. It is not necessary for us to dwell upon further to find out the probability of truth contained in the suggestions because we are not satisfied generally of the correctness of the story as told by the prosecutrix. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed. " (8) IT may be pointed out that the judgment in the case of Noor Alam alias Noor Amir v. State 1989 C Cr LR (Cal)143 is no longer good law because it is now well-settled by the decisions of the Supreme Court that no corroboration is necessary if the evidence of the prosecutrix is trustworthy. Reference may be made to the case of State of Punjab v. Gurmit Singh reported in (1996)2 SCC 384 : 1996 SCC (Cri) 316 (para 21)wherein the following view was expressed: "if evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. Reference may be made to the case of State of Punjab v. Gurmit Singh reported in (1996)2 SCC 384 : 1996 SCC (Cri) 316 (para 21)wherein the following view was expressed: "if evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, show of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. . . . . . . . ". (9) THE judgment in the case of Dilip and Another v. State of M. P. reported in 2002 SCC (Cri) 592 is distinguishable on facts. In the case before the Apex Court, the age of the prosecutrix was sixteen, yeas, if not more. In the present case, there is nothing to suggest that the prosecutrix was more than fourteen years old except for the Doctors opinion that her age was between 14 and 17. Regard being had to the fact that the prosecutrix did not see her father who died on 13th May 1986 that is to say less than 14 years prior to the date of the incident, it is difficult to hold that the prosecutrix could have been in any event more than sixteen years old on the date of the incident. (10) IN the case before the Apex Court, the prosecutrix was raped during the day time in her own house. In the present case, the prosecutrix was abducted from her house and was taken at a distant place which is about hundred kilometres from her house where she was raped. The medical evidence in the present case, unlike the case before the Supreme Court, supports the case of the prosecution. We are, therefore, of the view that the judgment in the case of Dilip and another v. State of M. P. 2002 SCC (Cri) 592 cited by Mr. Dey, the learned senior counsel, for the appellant, has no manner of application. (11) AS regards the age of the prosecutrix, Mr. We are, therefore, of the view that the judgment in the case of Dilip and another v. State of M. P. 2002 SCC (Cri) 592 cited by Mr. Dey, the learned senior counsel, for the appellant, has no manner of application. (11) AS regards the age of the prosecutrix, Mr. Dey, learned senior counsel, further drew our attention to the case of Noor Alam alias Noor amir v. State (supra). In the aforesaid judgment the Division Bench took note of the views expressed by the Apex Court in the case of Joya Mala reported in AIR 1982 SC 1297 wherein the following view was expressed: "it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. " (12) IN the case before the Division Bench, the Doctors opinion was that the prosecutrix was aged between 15 and 161/2 years. The Division bench added another one and half year and proceeded on the basis that the age of the prosecutrix could be treated as eighteen years giving the margin as opined by the Apex Court. In our case, the Doctor has opined that the age of the prosecutrix was between 14 and 17 years. There is thus already a margin of three year. If further two years are added then on the higher side she will be 19 years old and in the lower side she will be 12 years old which will produce an absurd result. We are of the view that the judgment of the Apex Court in the case Joya Mala has to be properly understood. In that case the question was whether the accused was a minor aged about 17 years. The doctors opinion was that the accused was eighteen/nineteen years old. It is in that perspective that the aforesaid rule was applied for the purpose of holding that the accused was a minor. He on tile top of that was a school going boy which lent additional assurance as regards his age. We do not think the judgment in the case of Joya Mala can be applied in the manner suggested by Mr. Dey. We already have indicated why the evidence of p. W. 4 that the prosecutrix on the date of the incident was fourteen years old is believable. (13) THE second submission made by Mr. We do not think the judgment in the case of Joya Mala can be applied in the manner suggested by Mr. Dey. We already have indicated why the evidence of p. W. 4 that the prosecutrix on the date of the incident was fourteen years old is believable. (13) THE second submission made by Mr. Dey was that the prosecutrix did not offer any resistance which she admitted in her cross-examination which is as follows: - "i did not raise shouts while I was taken at Bhakat para by rickshaw as Nemai showed me a knife. " (14) HE submitted that the prosecutrix at no stage shouted and far less cried for any help. When the prosecutrix was in the Bus on her way to Bishnupur, according to Mr. Dey, she could have shouted for help. The fact that she did not shout would make the story of forcible abduction and rape rather doubtful. (15) WE are unable to agree with this submission of Mr. Dey. The prosecutrix was abducted by six persons. On a knife point she was forced to accompany them. She was overawed and appears to have been completely resigned to her fate which is also illustrated by the fact that she was forced to write out a letter addressed to the District Magistrate, a xerox copy whereof was shown to her during cross-examination and was marked ext. A, on admission, stating that she loved the accused puna and would not marry anyone else, Had there been any grain of truth in the contents of Ext. A., the accused in his examination under section 313 Cr PC was expected to divulge that. The fact that no such attempt was made lends assurance to the Court as regards the guilt of the appellant. (16) IT was contended by Mr. Dey the learned senior counsel, that the learned Trial Judge should have adjourned the matter after finding the appellant guilty in order to give him an opportunity to reflect upon the question of sentence which the learned Trial Judge did not do. He relied on a decision of the Supreme Court in the case of Allaudddin Mian and others. Sharif Mian and another v. State of Bihar reported in 1989 SCC (Cri) 490. He relied on a decision of the Supreme Court in the case of Allaudddin Mian and others. Sharif Mian and another v. State of Bihar reported in 1989 SCC (Cri) 490. In paragraph 10 their Lordships expressed the following view: "the sentencing Court must approach the question seriously and must endeavour to see that all the relevant facts and circumstance bearing on the question of sentence are brought on record. Only after giving due weight to the mitigating as well as the aggravating circumstances placed before it, it must pronounce the sentence. We think as a general rule the trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as defence to place the relevant material bearing on the question of sentence before: it and thereafter pronounce the sentence to be imposed on the offender. " (17) IN our view, the contention is entirely misplaced. As pointed out in Ramdeo Chanhan v. State of Assam reported in (2001)8 SCC 714, the aforesaid judgment was rendered prior to the addition of third proviso to section 309 (2) of Cr PC, 1973 by Amending Act 45 of 1978 which runs thus:- "provided also no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. " (18) IT was held that the mandate of the legislature is clear that no adjournment can be granted for the purpose only of enabling the accused to show cause against the sentence proposed to be imposed upon him. Nonetheless, the Court in appropriate cases grants adjournment for the aforesaid purpose, if the proposed sentence is a sentence of death. (19) THAT apart, in the present case, it appears that the learned trial court adjourned the matter for about two hours after finding him guilty. He thereafter heard the accused but no significant submission was made by him. The learned trial Court in the circumstances heard the learned advocate, for the accused, which would appear from the following portion of the order dated 31st March, 2005, passed by the learned Trial court: "later: on 31.3.2005 at 2-30 P.M. The convict Sk. Sarif alias Puna is produced from custody before me. The learned trial Court in the circumstances heard the learned advocate, for the accused, which would appear from the following portion of the order dated 31st March, 2005, passed by the learned Trial court: "later: on 31.3.2005 at 2-30 P.M. The convict Sk. Sarif alias Puna is produced from custody before me. The convict is asked on the point of sentence that will be imposed on him and to which he has stated that he is innocent. Ld. Lawyer for the convict has submitted that the convict has recently married having a child of 3 (three) months and accordingly he prays for lenient view about his sentence. Ld. P. P.-in-charge on behalf of the State has submitted that regarding sentence of the convict the matter is left to the Court. " (20) IT is not that the learned Trial Court has not given time to the parties to reflect upon the question of sentence. Slightly longer time may have been allowed to elapse. But that has not occasioned or caused any prejudice to the accused. Mr. Dey, learned senior counsel, was unable to show any prejudice suffered by his client nor does it appear from the record that any longer time was prayed, on behalf of the accused, and was not granted. We are, therefore, unable to find any fault with tile judgment on this account. (21) LASTLY, Mr. Dey, learned senior counsel, submitted that the appellant is also a young person. Mr. Dey drew our attention to Exhibit 4 which is a certificate given by the same Doctor wherein he opined that the age of the appellant was above 18 years but below 19 years on the date of the examination that is on 20th April 2000. Mr. Dey submitted that the appellant suffered from the disadvantage of youth and immaturity, and the Court should have, considering the age factor adopted a lenient attitude in sentencing the convict. He therefore, prayed for reduction of the sentence under section 376 of the Indian penal Code which, according to him, is much too harsh. (22) MR. Goswami, the learned public prosecutor, did not factually dispute the submission of Mr. Dey. He, however, added that this type of crime should be repressed with an iron hand. He therefore, prayed for reduction of the sentence under section 376 of the Indian penal Code which, according to him, is much too harsh. (22) MR. Goswami, the learned public prosecutor, did not factually dispute the submission of Mr. Dey. He, however, added that this type of crime should be repressed with an iron hand. (23) CONSIDERING the submissions made by the learned counsel, appearing for the parties, the sentence as regards the offence punishable under section 363 of the Indian Penal Code is kept unchanged, but the substantive sentence for the offence punishable under section 376 of the Indian Penal Code is reduced to seven years. The amount of fine shall remain the same. Except for the duration of the period of imprisonment for the offence punishable under section 376 of the Indian Penal Code, the judgment and order under challenge remain unchanged. With this modification, this appeal is partly allowed. (24) THERE are some disturbing features in this case which we must mention before we part with this judgment. The investigation in this case was conducted by Sri Bishnupada Bera, the then S.I. of Police of bankura P.S. (P. W. 8). He did not proceed with the case as he ought to have done. There appears to have been deliberate soft pedalling of the whole case. He had the audacity to ignore the order of the Trial Court. He even attempted to avoid entering into the Witness Box. His presence was ultimately secured by directing the S.P. to arrest him for the purpose of production in Court. This type of police officer, in our view, should not be entrusted with the investigation of any serious crime like murder, rape, dacoity etc. Equally disheartening is the act of Sri sukumar Roy, the then Judicial Magistrate, 7th Court, Banukura (P. W. 7) who had recorded the statement of the prosecutrix under section 164 Cr PC. The manner in which he had recorded the statement of the prosecutrix left much to be desired. (25) IT appears from the record that the appellant is in jail and shall be kept therein to serve out the remaining part of his sentences as indicated above. The substantive sentences shall run concurrently. The appellant shall get the benefit of set-off in terms of section 428 of Cr PC out of the period of imprisonment already undergone. (25) IT appears from the record that the appellant is in jail and shall be kept therein to serve out the remaining part of his sentences as indicated above. The substantive sentences shall run concurrently. The appellant shall get the benefit of set-off in terms of section 428 of Cr PC out of the period of imprisonment already undergone. (26) THE learned Trial Court is directed to issue necessary revised jail warrant as required by the Rules in respect of this appellant. (27) A copy of this judgment, be sent to Sri S. Roy by registry of this court. (28) A copy of this judgment should also be sent to Director General of Police, West Bengal, for information and necessary action in accordance with law. (29) THE Criminal section of this Court is directed to send down lower court records and a copy of this judgment to the concerned learned Trial court forthwith for information and necessary action. Let urgent xerox certified copy of this judgment, if applied for be delivered to the learned counsel, for the parties upon compliance of all formalities. Appeal partly succeeds.