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2008 DIGILAW 55 (CAL)

Dipankar Pramanik v. STATE OF WEST BENGAL

2008-01-16

ASHIM KUMAR ROY

body2008
JUDGMENT :- In this appeal the appellant challenged his conviction under Section 376 of the Indian Penal Code and sentence to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000/- with default clause as well as his conviction under Section 450 of the Indian Penal Code and sentence to suffer rigorous imprisonment for 7 years. 2. The prosecution case in brief is as follows, "On December 24, 2004 at about 12 mid night while complainant Marami Sardar with her two years son were sleeping in her bed room. The appellant Dipankar Paramanick, one of her neighbourer entered into her bedroom by breaking the fence of her house. The appellant was recognized by her in the light of the lamp burning inside the said room. On that day both of her husband and father-in-law were at Calcutta in connection with their regular job. The appellant after entering inside the room at the point of a knife he was in his hand threatened to kill her and her son and restrained her to raise any alarm and then forcibly committed rape against her will. At the time of leaving the place the appellant also threatened to kill her and her son if she disclosed the incident to anyone. Out of fear she could not divulge the incident to anyone and on the next morning informed the members of her in laws house and according to their advice she went to her husband and father in law and after their arrival at their village she being accompanied by them informed the police about the occurrence." 3. Following the aforesaid incident being reported to the police a FIR was recorded under Section 448/376/506 of the Indian Penal Code and the appellant Dipankar Paramanick was arrested by the police on 25th of December, 2004. The police after completion of investigation submitted charge-sheet under Section 448/376/506 of the Indian Penal Code against the appellant." 4. Thereafter the appellant was placed on trial to answer a charge under Section 450/376 of the Indian Penal Code. 5. In course of trial the prosecution examined as many as 12 witnesses and defence examined one. The police after completion of investigation submitted charge-sheet under Section 448/376/506 of the Indian Penal Code against the appellant." 4. Thereafter the appellant was placed on trial to answer a charge under Section 450/376 of the Indian Penal Code. 5. In course of trial the prosecution examined as many as 12 witnesses and defence examined one. P.W. 1, Marami Sardar is the victim lady, P.W. 2 Kausalya Sardar is the mother-in-law of the victim lady being the wife of the uncle of her husband, P.W. 3 Pranonath Sardar is the husband of the P.W. 2, whereas P.W. 4 Tapash Sardar is the husband. P.W. 5 is the mother-in-law and P.W. 6 Biswanath Sardar is the brother in law of the victim lady, P.W. 7 Sagar Dalui, P.W. 8 Kamal Bar are the villagers. P.W. 9, Amit Chatterjee is a Judicial Magistrate, who recorded the 164 statement of the victim lady. P.W. 10 S.I. Kalipada Hore is a police officer, who recorded the First Information Report and P.W. 11 S.I. Ali Ahamed is the Investigating Officer of the case. P.W. 12 Dr. A. K. Samanta is the doctor, who examined the victim lady. 6. The defence examined one Purnendu Barman, a police constable as D.W. 1, who produced one G. D. Entry, No. 630 dated 13-12-2004. 7. Mr. Subir Banerjee, the learned counsel appearing on behalf of the appellant along with Mr. Jayanta Bhattacharya and Ruxmini Basu Roy submitted before this Court that the impugned order of conviction and sentence is liable to be set aside for the following reasons; (a) There has been an inordinate and unexplained delay of 11 hours in reporting the incident to the police although the informant has sufficient opportunity to lodge FIR much earlier. (b) The appellant has been falsely implicated in the instant case at the instance of Mukul Hazra, who was belonging to a particular rival political party. (c) Although, according to the complainant her wearing apparels were smeared with semen of the accused and the same in spite of being seized by the police due to the reason best known to the investigating agency officer not sent for chemical examination. (d) According to the medical evidence no injury was found either in her person or in her private parts. (e) The examination of the appellant under Section 313 of the Code of Criminal Procedure was not in accordance with law. 8. (d) According to the medical evidence no injury was found either in her person or in her private parts. (e) The examination of the appellant under Section 313 of the Code of Criminal Procedure was not in accordance with law. 8. On the other hand, Mr. Swapan Kumar Mullick, the Learned counsel appearing on behalf of the State vehemently repudiated the submission of Mr. Banerjee and submitted that the deposition of the victim girl is very much clinching and there was no challenge to her evidence as regards to the commission of rape. According to him delay has been sufficiently explained. He further submitted the victim girl in her cross-examination was never challenged as regards to her explanation in reporting the incident to the police at the mid-night of the next day. 9. Heard, the learned advocates appearing on behalf of the parties. Considered their rival submissions. Perused the impugned judgment as well as the deposition of the witnesses and the other materials on record. 10. The case of the prosecution as it transpires from the evidence of the witnesses is this that at the time of the alleged incident the victim was alone in her house with her minor child. When the accused by entering into her bedroom raped her against her will, she recognized him in the light of a lamp burning inside her room which has been seized and marked exhibit during the trial. On the next morning she intimated her uncle in law and aunt in law when her husband, father-in-law and mother-in-law all were at Calcutta. It is the further case of the prosecution on the next night after her husband, father-in-law and mother-in-law came back she narrated the entire incident to them and then went to the police station and reported the entire incident. 11. So far as the explanation of delay in reporting the incident to the police is concerned I do not find any infirmity, it is quite natural that she after narrating the incident to her husband and parents-in-law went to the police station and lodged the FIR. It is her categorical evidence that after they returned home on the next day from their place of employment they were informed about the entire incident and immediately thereafter police was informed. In my view, the delay in lodging FIR has been sufficiently explained by the prosecution. Mr. It is her categorical evidence that after they returned home on the next day from their place of employment they were informed about the entire incident and immediately thereafter police was informed. In my view, the delay in lodging FIR has been sufficiently explained by the prosecution. Mr. Banerjee contended that in her FIR she alleged that she went to Calcutta and then after coming with her parents-in-law and husband lodged the complaint to the local police station. However, I find that during her cross-examination no contradiction as regards to the same was taken from her. She had no scope to explain such alleged contradiction and thus I am not inclined to give any importance to the same. In this case the alleged incident took place at mid-night of 24th of December, 2004 but the victim was examined medically on 8th of January, 2005, who was a married lady and mother of a child, as such non-finding of any injury on her person after so many days of the alleged occurrence cannot be fatal to the prosecution case. In this case she claimed to have identified the appellant in the light of a burning lamp hanging inside her bedroom, the said lamp was seized by the police and was produced in Court. During her cross-examination defence could not have been able to bring out anything which justify disbelieving her testimonies. Thus, I do not find any valid reason to disbelieve the victim lady. Except alleging that at the instance of one Mukul Hazra the appellant has been falsely implicated in the case out of political rivalry nothing has been brought on record to substantiate the same, thus such allegation does not assume any importance. So far as the non-sending of the wearing apparel of the victim lady for forensic test is concerned, that may be a laches on the part of the Investigating Officer, but that laches on the part of the Investigating Officer i.e. a mere fault in investigation by itself cannot be the ground for acquittal when the case of the prosecution stands otherwise substantiated. Accordingly, in my opinion, the Trial Court was fully justified in convicting the appellant under Section 376 of the Indian Penal Code. 12. Now the only thing left for consideration is the question of sentence. Accordingly, in my opinion, the Trial Court was fully justified in convicting the appellant under Section 376 of the Indian Penal Code. 12. Now the only thing left for consideration is the question of sentence. It appears from the materials on record that already the accused has served out more than 3 years in jail. At the time of the alleged incident the accused was aged about 20 years, and he is the only adult male member in the family comprising of his widow mother and minor brother and sister. Thus considering the aforesaid facts I am of the opinion the ends of justice will be met if the sentence of rigorous imprisonment for 7 years is reduced to rigorous imprisonment for 5 years and a fine of Rs. 5,000/- and in default to suffer rigorous imprisonment for 6 months. I further direct the entire fine amount if realized be paid to the victim Marami Sardar. Accordingly, with the aforesaid modification in sentence this appeal stands disposed of. Let an urgent xerox certified copy of this order be supplied to the parties, if applied for, as early as possible. Order accordingly.