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2009 DIGILAW 11 (CAL)

State of West Bengal v. Srikanta Hazra

2009-01-12

GIRISH CHANDRA GUPTA, KISHORE KUMAR PRASAD

body2009
JUDGMENT Kishore Kumar Prasad, J.: This appeal is directed against the judgment and order dated 14.5.1986 passed by the ld. Additional Sessions Judge, First Court, Midnapur in sessions trial case No. XI of September, 1985 convicting the appellant for the offences punishable under section 376/325 of IPC. The appellant was heard on the question of sentence and thereafter by an order passed on the same day that is on 14.5.1986 he was sentenced to suffer rigorous imprisonment for 8 years for the offence punishable under section 376 of IPC. He was also sentenced to suffer rigorous imprisonment for 4 years for the offence punishable under section 325 of IPC. The sentences awarded to the appellant were ordered to run concurrently. 2. Being aggrieved by the orders of conviction and sentence passed by the ld. Trial Court, the appellant has preferred the present appeal. 3. Prosecution version as unfolded during trial in a nutshell is as follows. 4. The prosecutrix (P.W.1) was the resident of Village Brajnathchak, within the limits of Haldia Police Station. The prosecutrix was an unmarried lady aged below 16 years at the time of alleged occurrence. The appellant belonged to Rairaichawk within the limits of Haldia Police Station and he was not the stranger to the prosecutrix. 5. On 15.9.84 at about 7 a.m., the prosecutrix had gone near the brick field of one Dutta Babu at Pairachawk, 600/700 cubits away from her house to ease herself. While she was easing herself there, the appellant suddenly caught hold of her from behind and thereafter he forcibly made her lie down on the ground and inserted his male organ in her vagina. When the prosecutrix shouted and protested the appellant struck a blow on her face and in consequence thereof she lost her tooth of her lower jaw and sustained injury. The incident was narrated by the prosecutrix to her parents, sister and brother immediately after her arrival to the house. Thereafter, the prosecutrix along with her mother and sister came to Haldia PS and lodged complaint (Ext. 1/1) at 12.05 hours on 15.9.84 that is to say within 5 hours from the time of incident. 6. At Police Station, Haldia, on the basis of FIR of the prosecutrix a case being No.3 dated 15.9.84 under section 376/325 of IPC was registered against the appellant. 1/1) at 12.05 hours on 15.9.84 that is to say within 5 hours from the time of incident. 6. At Police Station, Haldia, on the basis of FIR of the prosecutrix a case being No.3 dated 15.9.84 under section 376/325 of IPC was registered against the appellant. Investigation was entrusted to SI, D. K. Chowdhury (P.W.13) who in course of investigation visited the place of occurrence: seized one broken tooth from the place of occurrence under seizure list (Ext. 3/1): seized the wearing apparels of the prosecutrix that is one short pant, one frock and one tape-frock from the house of the prosecutrix under two seizure lists (Exts. 2/1 and 4/1); recorded the statements of the witness; sent the prosecutrix to hospital on different dates for the purpose of her clinical examination including ossification test and also sent the wearing apparels of the prosecutrix to chemical examiner. In course of investigation, the appellant too had undergone potency test conducted by Dr. S. R. Bhowmick of Tamluk Sub-divisional Hospital (P.W.2) who on clinical examination found the appellant capable of sexual intercourse. 7. On completion of investigation, the appellant was chargesheeted and put on trial after committal of the case to the Court of Sessions. 8. In the Trial Court, charges under section 376/325 of IPC against the appellant were framed. The appellant pleaded not guilty with which he was charged and claimed to be tried. 9. In the Trial Court the prosecution examined as many as 13 witnesses, material amongst them is the prosecutrix (P.W.1), her mother, Rai Kishori Das (P.W.3), her sister, Sita Rani Das (P.W.7) and her brother Ganga Dhar Das (P.W.8) to whom the prosecutrix had narrated the incident immediately after her arrival at house and the two Doctors namely Dr. S. K. Dey (P.W.10) and Dr. Anjana Parui (P.W.11) by whom the prosecutrix was clinically examined on 15.9.84 and 16.9.84 respectively. Apart from leading oral evidence, the prosecution also tendered and proved large number of exhibits which were marked Exhibits 1 to 5. 10. Though the appellant was examined under section 313 of the Cr.P.C. yet there was no adduction of evidence by the appellant. 11. The defence version as it appears from the trend of cross-examination of PWs and the suggestion thrown to the witnesses was that the appellant had been falsely implicated out of previous enmity. 12. The ld. Trial Judge disbelieved the defence version. 11. The defence version as it appears from the trend of cross-examination of PWs and the suggestion thrown to the witnesses was that the appellant had been falsely implicated out of previous enmity. 12. The ld. Trial Judge disbelieved the defence version. Ld. Trial Judge after considering the oral and documentary evidence and hearing the ld. Counsel for the parties passed the orders of conviction and sentence against the appellant as indicated above. 13. Ld. Counsel appearing on behalf of the appellant contended that the entire prosecution case rests on the testimony of the prosecutrix and as such her uncorroborated evidence should not have been relied upon by the ld. Trial Court. Ld. Counsel also urged that the investigation is perfunctory as the material witnesses have not been examined by the 10 nor called on witness box at the time of trial and their non-examination is fatal to the prosecution case. Further submission made by the ld. Counsel was that the medical evidence belies the prosecution case as the doctors have not found any injury on the private part of the prosecutrix. Alternatively, it was contended by the Id. Counsel for the appellant that assuming without accepting the case of the prosecution that the appellant had participated in the alleged crime, the period of imprisonment slightly less than 6 years already undergone by the appellant would meet the ends of justice. 14. Per contra, ld. Counsel appearing on behalf of the State respondent supported the impugned judgment passed by the ld. Trial Court. It was argued that the ld. Trial Court had adequately discussed the evidence on record and had assigned adequate reasons for recording its finding of guilt for the offences with which the appellant was charged and no case has been made out for this Court to interfere with the impugned judgment. Ld. Counsel in his usual fairness left the question of sentence to be imposed on the appellant to the discretion of this Court. 15. We have given our anxious and thoughtful consideration to the respective contentions of the ld. Counsel for the parties. We have perused the various exhibits tendered and proved by the prosecution to substantiate its case and the impugned judgment. 16. 15. We have given our anxious and thoughtful consideration to the respective contentions of the ld. Counsel for the parties. We have perused the various exhibits tendered and proved by the prosecution to substantiate its case and the impugned judgment. 16. The entire perusal of the record shows that the prosecution case rests on the testimony of the prosecutrix as well as on the testimony of PWs 3, 7 and 8, the mother, sister and brother of the prosecutrix respectively to whom the prosecutrix had disclosed about the offence of sexual assault committed on her by the appellant immediately after the incident. 17. It is now well-settled that a finding of guilt in a case of rape can be based on the uncorroborated evidence of the prosecutrix. The very nature of the offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape stated on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted even it is uncorroborated unless the material on record requires drawing of an inference that there was consent or that entire incident was improbable or imaginary. It is also well-settled that the absence of injuries on the private part of the victim will not itself falsify the case of rape nor construed as evidence of consent. 18. In the present case, the prosecutrix is a rustic residing in most backward area of our country and her evidence is required to be appreciated with this background. 19. P.W.1, the prosecutrix deposed as follows: "On 15.09.84 in the morning at about 7 a.m., I went to ease myself near the brick field of Duttababu, about 600/700 cubits away from our house. To the west there is a small river and to the east there is the brick field and on the north and south there are embankments. The place is a depressed one. At that time suddenly a man came from behind and clasped me and forcibly made me lie down on the ground. Since at that time I was easing, I kept my short-pant beside me. Then the man inserted his male organ into my vagina and forcibly had sexual intercourse with me. This is the man who ravished me (identifies the accused). Since at that time I was easing, I kept my short-pant beside me. Then the man inserted his male organ into my vagina and forcibly had sexual intercourse with me. This is the man who ravished me (identifies the accused). At that time I did not know his name but afterwards I have come to know his name as Srikanta Hazra. He pressed my breasts and when I tried to prevent, he tore my frock. When I tried to prevent him, he struck me on my face with a fist as a result of which I lost a tooth. I shouted out. The accused ravished me for about 4/5 minutes and his semen was discharged in my vagina. Thereafter he ran away. I chased him while shouting. Two girls were standing on the embankment and another girl was standing a few distance away. One widow was also there who cried out towards the accused by saying "Srikanta, why are you running". But the accused did not stop and fled away. One or two others also noticed it. I returned home and narrated the incident to the inmates of my house. I saw the accused while going to school. He is a resident of Rairaichak. I showed the house of the accused to my elder brothers. I stayed at a distance and my brothers and their friends made queries to the accused about the incident. I went to thana with my mother and others and there I informed police about the incident. Daroga babu wrote down this ejahar and I signed here (Extg.1) after admitting the same to have been correctly recorded. I showed the place of occurrence to Daroga babu. Daroga babu seized the frock later on. The frock was soiled. I was taken to Debhog Hospital where I was treated by a doctor. I was examined by medical officer in the Tamluk Sub-divisional Hospital also. I was also examined radiologically. I was treated by a dentist and a false tooth has been inserted in place of the broken tooth in the lower jaw. My broken tooth was recovered from the place of occurrence afterwards. Daroga babu seized my tape frock and the frock which I was wearing at the time of incident by making seizure list. This is my signature on the seizure list (Ext.2). Daroga babu also seized my pant and the broken tooth. My broken tooth was recovered from the place of occurrence afterwards. Daroga babu seized my tape frock and the frock which I was wearing at the time of incident by making seizure list. This is my signature on the seizure list (Ext.2). Daroga babu also seized my pant and the broken tooth. I had bleeding injury in vagina because the accused had sexual intercourse with me forcibly." 20. Ld. Counsel for the appellant contended that the testimony of the prosecutrix does not inspire confidence and should be rejected by us. We regret that we cannot accede to this contention. After going through her entire deposition carefully we find that she is a wholly reliable witness. In the first instance, she had given vivid description about the incident of rape coupled with assault upon her by the appellant. Secondly, it is not believable that she being a rustic unmarried woman will stake her reputation by making a false charge against someone concerning her chastity unless she was actually raped. Thirdly, we find her account of the incident to which we have referred earlier, is in consonance with the important probabilities. Fourthly, the appellant who is not the stranger to the prosecutrix and who had been identified by her immediately after the incident as also before the Trial Court in course of trial as her rapist, is substantially inconformity from her earlier version as contained in her complaint (Ext. 1/1), lodged at police station. Fifthly, the seizure of wearing apparels of the prosecutrix and the broken tooth of the prosecutrix from the P.O by the 10 (P.W.13) on the very date of the incident in between 15.10 hours to 17.05 hours on the date of incident that is on 15.9.84. Sixthly, neither from the evidence of the prosecutrix nor otherwise, the defence could show any probability of the appellant having been roped in falsely in this sexual crime coupled with assault for any malicious reasons. Seventhly, the Dr. S. R. Bhowmick (P.W.2) who on clinical examination found the appellant capable of sexual intercourse. 21. Apart from these, we find that the following circumstances corroborate and lend assurance to the testimony of the prosecutrix : (a) The FIR in this case (Ext. 1/1) was lodged promptly. Seventhly, the Dr. S. R. Bhowmick (P.W.2) who on clinical examination found the appellant capable of sexual intercourse. 21. Apart from these, we find that the following circumstances corroborate and lend assurance to the testimony of the prosecutrix : (a) The FIR in this case (Ext. 1/1) was lodged promptly. The incident took place at about 7 a.m. on 15.9.84 and the FIR was lodged by the prosecutrix herself at 12.05 hours on 15.9.84 at Haldia, PS which is situated at a distance of 10 kilometers from the place of incident. The appellant was named in the FIR as the rapist as well as assailant of the prosecutrix. (b) The evidence of the prosecutrix was corroborated by her mother, sister and brother to whom she narrated the incident immediately after her arrival at the house from the place of occurrence which was situated about 600/700 cubits away from her house and which place according to testimony of P.W. 6 Kusadhaj Paramanik was used by local people for easing themselves taking advantage of the existence of river and brick field nearby. 22. P.W. 3. Rai Kishori Das, mother of the prosecutrix deposed as follows: "I reside at Brajanathchak. P.W.1 is my daughter (identifies P.W.1). On the date of the Biswakarma Puja a year before last an incident took place in connection with P.W.1. On that day in the morning she went to ease herself. After sometime I noticed that she was crying near our house beside a tank. To my queries she informed that a man had ravished her forcibly and that he inserted a cloth in her mouth when she protested and he also broke a tooth by giving a fist on her face when she protested. I asked her to find out the man. My sons and others along with P.W.1 found out the accused, a resident of Rairaichak. I also accompanied them. She showed this accused as the person who ravished her (identifies the accused). I was examined by Daroga babu. I took P.W.1 to Haldia thana where she lodged ejahar with the Daroga babu. Police came to our village for investigation." 23. P.W.7, Sitarani Das, the sister of the prosecutrix deposed as follows: "P.W.1 is my sister. On 15.9.84 at about 7 a.m. she returned home after easing herself. She was weeping. I was examined by Daroga babu. I took P.W.1 to Haldia thana where she lodged ejahar with the Daroga babu. Police came to our village for investigation." 23. P.W.7, Sitarani Das, the sister of the prosecutrix deposed as follows: "P.W.1 is my sister. On 15.9.84 at about 7 a.m. she returned home after easing herself. She was weeping. She narrated to mother that while she was easing herself, a man came there and forcibly ravished her and when she protested, the man knocked one of her teeth by giving a fist. Prosecutrix told that she recognized the culprit. She took us to the house of the accused. Thereafter people assembled and tried to hold a talk of compromise but my mother did not agree and the talk failed. She showed this accused as the culprit (identifies the accused). I was examined by Daroga babu. We went to thana and prosecutrix lodged ejehar." 24. P.W.8, Ganga Dhar Das, the brother of the prosecutrix deposed as follows : "P.W.1 is my sister. On 15.9.84 at about 7 a.m. while I was preparing to go out for office, prosecutrix returned home weeping. To my query she replied that while she was easing, a man held her from behind and forcibly ravished her. She further told that when she shouted out that man knocked a tooth by striking a fist on her face. When I asked who was the man she told that she would be able to identify him but she did not know his name. She took us to the house of the culprit. On our call this accused Srikanta (identifies the accused) ultimately came out. Villagers assembled there. We asked him about the incident. Then my mother and prosecutrix left for thana." (c) The prosecutrix was subjected to medical examination by Dr. S.K. Dey (P.W.10) who had the first opportunity to examine the prosecutrix at 3.40 p.m. on the very day of incident at Debhog Primary Health Centre. 25. P.W.10 deposed as follows: "I am M.B.B.S. and Medical Officer, Debhog Primary Health Centre since 1983. On 15.9.84 I examined the prosecutrix, Hindu female aged about 16 years, brought by Smt. Radharani Das of Brajanathachak, PS Haldia at about 3.40 p.m. in the hospital and found the following : (1) Second incisor of the lower jaw left was missing and a clot of blood was noticed there. On 15.9.84 I examined the prosecutrix, Hindu female aged about 16 years, brought by Smt. Radharani Das of Brajanathachak, PS Haldia at about 3.40 p.m. in the hospital and found the following : (1) Second incisor of the lower jaw left was missing and a clot of blood was noticed there. (2) Small mark of injury over the lower lip. The patient stated to me that she was forcibly raped and was assaulted with fists at about 7 a.m. on 15.9.84. I did not find any other external injury. I referred the patient to the Sub-divisional Hospital for further opinion and treatment. The injury No.1 and also injury No.2 could be received by fists and blows." 26. The prosecutrix was also examined by Dr. Anjana Parui (P.W.11) on 16.9.84 at Tamluk Sub-divisional Hospital that is on the following date of incident. 27. P.W.11 deposed as follows: "I am M.B.B.S and Medical Officer now posted at Tamluk Sub-divisional Hospital since 1982. On 16.9.84 I examined the prosecutrix, daughter of Sri Purna Chandra Das, Hindu female, aged about 16 years of Brajanathchak, PS Haldia, brought by constable No. 1989 Harekrishana Das of Haldi PS and found the following: An old injury on lower lip on left angle of the mouth. There was no injury on breasts or in private parts. Hymen was ruptured. No foreign body was seen in the vagina. She was having menstrual period. Vaginal swabs were taken and handed over to the accompanying constable. So far as the history of the case is concerned I would say that the patient stated before me that on the previous day 15.9.84 she was forcibly ravished and when she protested, she was given a blow due to which she received injury on teeth as well as on the angle of lip. Due to forcible sexual intercourse, a girl might have menstruation even if it is not due." 28. On the face of the testimony of the aforesaid two doctors, we find no substance in the sweeping contention of the ld. Counsel for the appellant that the medical evidence totally belies the prosecution case. (d) The prosecution version was also partly corroborated by the evidence of independent witness namely P.W. 6 Kusadhaj Parnamanik. 29. P.W.6 deposed as follows: "On 15.9.84 in the morning at about 7 a.m., I went to ease myself near my lands beside the river. Suddenly I heard a cry. (d) The prosecution version was also partly corroborated by the evidence of independent witness namely P.W. 6 Kusadhaj Parnamanik. 29. P.W.6 deposed as follows: "On 15.9.84 in the morning at about 7 a.m., I went to ease myself near my lands beside the river. Suddenly I heard a cry. I saw a woman was catching fish and a man was running away. The woman called out to the fleeing man by saying, "Srikanta, what has happened". Thereafter I saw the prosecutrix was shouting to catch that man. This accused was fleeing away from that spot (identifies the accused). To my query prosecutrix stated to me that the person who was fleeing away ravished her forcibly and had broken her tooth. She left for her home weeping." 30. The testimony of the prosecutrix inspires confidence and is found to be reliable. She is an innocent rustic unmarried lady aged about 16 years she was not a stranger to the appellant. She is the victim of dastardly offence of rape which was done in the early morning. Her evidence is intrinsically true and she is a truthful witness. Her evidence cannot be viewed with doubt, disbelieve or suspicion. Testimony of victim of sexual assault is at par with the testimony of an injured witness. Just as it is presumed that person sustaining injuries in the occurrence is not likely to shield the real culprit, a rape victim is highly unlikely to protect her tormentor and to falsely implicate some person in the same way. Therefore, the evidence of the prosecutrix has great probative force. The prosecution story as a whole strikes the judicial mind as probable. The evidence of the prosecutrix is corroborated by her mother her sister, her brother and also by the evidence of two doctors namely Dr. S. K. Dey and Dr. Anjana Parui. Besides some minor wear and tear in the testimony of the aforesaid material witnesses, learned Counsel for the appellant could not point out to us any material infirmity which could persuade us to hold to the contrary. A sentence from here and a sentence from there cannot be used to condemn the prosecution case as false. Discrepancies are likely to occur for variety of reasons namely the social status of the parties, education and time when the deposition of the witnesses is recorded. A sentence from here and a sentence from there cannot be used to condemn the prosecution case as false. Discrepancies are likely to occur for variety of reasons namely the social status of the parties, education and time when the deposition of the witnesses is recorded. We do not find any artificiality in the version of the material witnesses of the prosecution and the discrepancies pointed out by the ld. Counsel appearing for the appellant in course of argument in our considered opinion are of insignificant nature and do not at all detract material part of the version of the material witnesses. The evidence of the prosecutrix as stated above would clearly reveal that she was subjected to sexual violence coupled with assault as put forth by the prosecution and the same has not only been corroborated by her mother-in-law including her brother, sister but also by two doctors as well as by the other facts and circumstances of the case. In such conditions, minor contradiction in the evidence of the material witnesses, need not be attached with any importance at all. This is more so, having regard to social back ground in our country and the situation of the females, it cannot be believed that the prosecutrix and her relatives would concoct a false case of sexual assault against the appellant which would stand a reputation lower in the society nor it could be believed that the prosecutrix would allow the real culprit to go scot-free and fabricate a false case against the appellant. We are all aware that when the fact of rape having been committed on a women is known to society all would look upon her with contempt and hence, the version of the prosecutrix in such offence cannot be brushed aside lightly, and corroborative evidence is not an imperative component of judicial prudence in every case of rape, where the victim is subjected to sexual assault and is not an accomplice to the crime but is a victim of another person's lust, and it would be improper, unrealistic and undesirable to test her evidence with a certain amount of suspicion and seek corroboration when judicial prudence would not so demand. In the same way, justice cannot be made casualty in the name of minor contradiction either in the evidence of the prosecution or defects in the investigation at the hands of the investigating agency. In the same way, justice cannot be made casualty in the name of minor contradiction either in the evidence of the prosecution or defects in the investigation at the hands of the investigating agency. If judicial conscience is satisfied as to the credibility of the deposition and the say of the prosecutrix, then a fossil formulae of insisting upon corroboration to the say of the prosecutrix would be unnecessary impediment in dispensation of justice. 31. It appears to us that the Investigating Officer (P.W.13) had not been diligent enough but for that reason we do not feel that reliable and clinching evidence adduced in this case by the material witnesses should be discarded. It is difficult to believe that only because those two girls who were standing at a few distance away on the embankments have not been examined, the testimony of the material witnesses of the prosecution cannot be believed. They as per prosecution version were not the eye-witnesses. At the most it could be said that they were supporting witnesses only to substantiate the testimony of the prosecutrix to the effect that they cried out towards the appellant by saying "Srikanta why are you running". 32. In these circumstances, non-examination of the said two girls is not fatal to the prosecution case. In the case of State of Orissa vs. Thakara Besra reported in 2002(9) SCC 86 the Hon'ble Apex Court ruled that non-examination of one of the neighbours who has rushed towards the house after a call by her is not a serious infirmity in the prosecution case as he was not the witness of the commission of the offence. The evidence which is adduced by the prosecution is required to be examined on the touch-stone of its truthfulness, and when it is found that the evidence which is recorded is truthful examination of this witness and that witness loses its importance in criminal trial and these are the principles laid down by the Hon'ble Apex Court to appreciate the evidence in criminal trials. 33. Having given our anxious consideration to the entire matter in issue, we do not find any reason to disbelieve the testimony of the material witnesses of the prosecution. 33. Having given our anxious consideration to the entire matter in issue, we do not find any reason to disbelieve the testimony of the material witnesses of the prosecution. Keeping in mind the realistic manners of appreciation of evidence, by no stretch of reasoning, it could be said that the prosecution was not able to prove the case beyond reasonable doubt through the testimony of the prosecutrix and also through the testimony of her mother, brother, sister and two Doctors namely P.Ws 10 and 11. 34. In view of the above discussion we are firmly of the view that the appellant has been rightly convicted by the ld. Trial Court for offences as indicated above. Accordingly, the impugned judgment and order of conviction warrants no interference in this case. 35. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The criminal law allows some significant discretion to the Judge in arriving at a sentence in each case. Judges in essence affirm that punishment ought always to fit the crime, yet in practice sentences are determined largely by other consideration. In our country, statutory provision for psychotropic treatment during the period of incarceration in the jail is not available, but reformist activities are systematically held at many places with the intention of treating the offenders psychologically so that he may not repeat the offence in future and may feel repentant of having committed a crime. 36. In the instant case, from the materials on record it does not appear that the appellant has any an adverse criminal antecedent. It is evident from the materials on record that the appellant was in the early twenty at the time of incident and he has been in custody slightly less than 6 years. The incident in the instant case had occurred way back in 1984 and during the course of the proceedings upto this Court, the appellant had suffered mental agony. 37. Considering all these facts, we are of the view that the period already undergone by the appellant will be proper and reasonable for the ends of justice in the instant case. Thus, the sentence awarded to the appellant is hereby reduced to the period already undergone by the appellant. 37. Considering all these facts, we are of the view that the period already undergone by the appellant will be proper and reasonable for the ends of justice in the instant case. Thus, the sentence awarded to the appellant is hereby reduced to the period already undergone by the appellant. Accordingly, we award him such sentence and direct that the appellant be released forthwith, if his detention is not required in connection with any other case. 38. With this modification in the sentence, the appeal is partly allowed. 39. The ld. Registrar General of this Court is directed to communicate the operative part of this judgment to the concerned ld. Trial Court under chapter XI Rule 8 of the Appellate Side Rules of this Court for information and necessary action. 40. Lower Court records with a copy of this judgment to go down forthwith to the concerned Trial Court for information and necessary action. 41. Urgent xerox certified copy of this judgment, if applied for, be supplied to the learned Counsel for the parties upon compliance of all formalities. G. C. Gupta, J.: I agree. Appeal allowed partly.