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2009 DIGILAW 633 (CAL)

Brajeswar Sarkar v. STATE OF WEST BENGAL

2009-08-20

ASHIM KUMAR BANERJEE, KALIDAS MUKHERJEE

body2009
Judgment : MUKHERJEE, J. (1) These appeals bearing Nos. CRA 496/2006, CRA 5921 2006, CRA 560/2006 and CRA 478/2006 are directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, First Court, Jalpaiguri sentencing the appellants Adhir Sarkar, Japan Singha Sarkar and Brajeswar Sarkar to suffer rigorous imprisonment for ten years and a fine of Rs.10,000/-each in default rigorous imprisonment for another six months under Section 376(2)(g) of Indian Penal Code. The learned Judge, however, after assigning reason sentenced Prafulla Sarkar to suffer rigorous imprisonment for five years and a fine of Rs. 20,000/- in default to suffer rigorous imprisonment for one year. The learned Judge directed that the fine, if realised, be given to the victim for her welfare. In connection with these appeals, the CRR No. 2788 of 2006 filed by the defacto-complainant for enhancement of sentence on the appellants has also been heard by consent of both sides treating the same as on days list. (2) The victim girl lodged complaint with the O.C., Dhupguri P.S. alleging that on 27.2.1995 at about 7.00 P.M. she had been to the Shiba Temple at Daukimari to offer Puja. At that time the accused persons lifted her therefrom and took her to the house of the accused No. 1 and confined her therein. She was assaulted and threatened with dire consequences on the ground that she allegedly knew about the whereabouts of the daughter of one Dhiren Sarkar and the son of accused No. 1 Prafulla Sarkar. The informant, that is, the victim girl expressed her ignorance about the matter. Later on, the accused persons along with others took her to a maxi-taxi bearing No. WCCV 2335 and went to Dhupguri P.S. After having conversation at the P.S. the accused persons again took her to the said maxi-taxi and started for the village. On the way to village the accused persons stopped the vehicle at the field near Kalirhat Junior High School. It was then about 1.00 A.M. The accused No.1 passed order to the other accused persons to do whatever they liked upon her and immediately thereafter the accused persons committed rape upon her one after another. The victim girl lost her consciousness. Under such circumstances, the accused persons towards the dawn left her at her house. It was then about 1.00 A.M. The accused No.1 passed order to the other accused persons to do whatever they liked upon her and immediately thereafter the accused persons committed rape upon her one after another. The victim girl lost her consciousness. Under such circumstances, the accused persons towards the dawn left her at her house. The victim girl was aged 17 years at the time of alleged occurrence as mentioned in the F.I.R. (3) After receipt of the complaint, the Dhupguri P.S. Case No. 15/95 Dated 28.2.1995 under Sections 376(2)(g)/120B of the Indian Penal Code was started. After completion of investigation, charge sheet was submitted. (4) The charge was framed under Sections 376(2) (g) of the Indian Penal Code to which the accused persons pleaded not guilty and claimed to be tried. The defence contention as it appears from the examination of the accused persons under Section 313, Cr.P.C. and the cross-examination of the P.Ws is that a case was instituted against the victim girl and, as such, the instant case was lodged falsely to teach the accused persons a lesson. (5) Mr. Dey appearing on behalf of the appellant Prafulla Sarkar and Adhir Sarkar has taken us through the evidence of the P.Ws and the exhibited documents. It is submitted that the evidence of P.W. 1 is at variance with the F.I.R. and the statement recorded under Section 164, Cr.P.C Mr. Dey has drawn our attention to contradictions, discrepancies between the evidence of P.W, 1 and the F.I.R. and the statement under Section 164 Criminal Procedure Code. Mr. Dey contends that in view of the glaring discrepancies, the evidence of the prosecutrix cannot be relied upon. Mr. Dey submits that appellant Prafulla Sarkar earlier filed a criminal case against the victim girl and as a counterblast, the instant case was falsely lodged against the appellant. (6) Mr. Dey contends that the medical evidence also does not come in the aid of the prosecution, inasmuch as, there was no injury on the person of the victim girl excepting one abrasion on fourchette. Mr. Dey submits that the discrepancies and contradictions are of such a nature that it would strike at the very root of the prosecution case and, that apart, the evidence of the prosecutrix also suffers from inherent improbabilities, Mr. Mr. Dey submits that the discrepancies and contradictions are of such a nature that it would strike at the very root of the prosecution case and, that apart, the evidence of the prosecutrix also suffers from inherent improbabilities, Mr. Dey further contends that the evidence of P.W.1, that is, the prosecutrix does not find corroboration from the other P.Ws on material particulars, Mr. Dey submits that the victim girl at the time of examination by the doctor did not state the history of assault or the names of the assailants. Mr. Dey submits that the charge as framed by the learned trial Court suffers from a legal infirmity, inasmuch as, no charge under Section 34 or 109 of the Indian Penal Code was framed to prove that there was common intention amongst the accused persons. Mr. Dey has referred to and cited decisions reported in AIR 1955 SC 274 [Nanak Chand v. State of Punjab]; 2003 C Cr LR (Cal) 346 [Harka Bahadur Rai v. The State of West Bengali]; (7) Mr. Mitra appearing for the appellant Tapan Singha Sarkar submits that the prosecution story is highly improbable and none of the persons present at the Shiba Temple was examined in this case. Mr. Mitra contends that no inhabitant of the locality was examined and the blood and semen as found in the saya were not matched with those of the accused. Mr. Mitra submits that there was embellishment and fabrication in the prosecution case as set forth in the F.I.R. and further told by P.W.1 at the time of trial coupled with the statement under Section 164, Cr.P.C. Mr. Mitra has referred to and cited the decisions reported in (2009)1 C Cr LR (SC) 776 [Rajoo and Ors. v. State of M.P.]; (2009)1 SCC (Cr) 17 [Lalliram and Anr. v.. State of Madhya Pradesh]; 2002 SCC (Cr) 592 [Dilip and Anr. v. Sfafe of M.P.]; (2009)1 C Cr LR (Cal) 663 [Tuna @ Profulla Mondal (in jail) v. The State of West Bengal and Anr. With Srikanta Rana v. The State of West Bengal and Anr. With Jawahar Maity @ Jaharlal Maity v. The State of West Bengal and Anr.] (8) Mr. v. Sfafe of M.P.]; (2009)1 C Cr LR (Cal) 663 [Tuna @ Profulla Mondal (in jail) v. The State of West Bengal and Anr. With Srikanta Rana v. The State of West Bengal and Anr. With Jawahar Maity @ Jaharlal Maity v. The State of West Bengal and Anr.] (8) Mr. Mukherjee appearing for the appellant Brajeshwar Sarkar submits that the appellants wanted to examine defence witness, but, the prayer for time made by the appellants was rejected by the learned Trial Judge on the ground that a time frame was set by the Honble Court for completion of Trial. Mr. Mukherjee submits that as per custom a Hindu lady during the period of menstruation will not visit any temple and from the evidence of the doctor it would appear that at that time the victim girl was undergoing period. Mr. Mukherjee contends that viewing from this angle of vision, the prosecution case would appear to be out and out false. Mr. Mukherjee submits that the statement of the victim girl was recorded under Section 164 of the Code of Criminal Procedure 19 months after the alleged occurrence and no reliance can be placed upon her statement. Mr. Mukherjee contends that ossification test of the victim girl was not done and the prosecution case suffers from improbability. Mr. Mukherjee has referred to and cited the decisions reported in 2004 SCC (Cr) 1967 [ Naval Kishore Singh v. Sfafe of Bihar] and AIR 2004 SC 85 [Sfafe of Karnataka v. Mapilla P.P. Soopi]. (9) Mr. Goswami appearing on behalf of the State submits that from the very beginning the victim girl found herself beset with hostile circumstances, inasmuch as, when she was taken by the appellants to the Dhupguri P.S. she was threatened by the O.C. and even forcibly pushed by the O.C. into the car and she was asked by the O.C. to go with the accused persons in the car. Mr. Goswami submits that at the time of examination of the victim girl by the doctor, the O.C. was present in the hospital and the O.C. tried to influence the Medical Officer at the time of examination of the victim girl. Mr. Mr. Goswami submits that at the time of examination of the victim girl by the doctor, the O.C. was present in the hospital and the O.C. tried to influence the Medical Officer at the time of examination of the victim girl. Mr. Goswami contends that when the victim girl was confined in the house of the accused No. 1 she was asked about the elopement of the son of Prafulla Sarkar with another girl and when she expressed her ignorance about the matter, she was forcibly taken in a maxi-taxi and taken to the P.S. Mr. Goswami contends that this fact is strengthened by the cross-examination of the P.Ws wherein it was suggested to the P.Ws that she knew about the elopement of the son of accused Prafulla and at her instance they were recovered. Mr. Goswami contends that belated recording of the statement under Section 164, Cr.P.C. before the Magistrate was also due to the hostile attitude of the O.C. towards the victim girl for which the O.C. was subsequently transferred. Mr. Goswami submits that the victim girl fought a lone battle and the I.O. was wilfully destroying the prosecution case. (10) Mr. Goswami submits that it is a case of gang rape and in such case if the evidence of the prosecutrix is found convincing, corroboration is not necessary. Mr. Groswami submits that the recording of only one injury on the fourchette and the abstinence of the doctor from giving any definite opinion as to committing rape, by itself, would suggest that the O.C. influenced the doctor in noting the injuries and giving opinion as to the commission of rape. Mr. Goswami submits that slightest penetration would be sufficient to constitute rape although there may not be any injury. Mr. Goswami submits that the F.I.R. was lodged promptly and the evidence of the victim girl is worthy of credence and is sufficient to warrant conviction of the accused persons. Mr. Goswami submits that it was not necessary to add Section 34 or 109 of the Indian Penal Code in the charge and the charge under Section 376(2)(g) of the Indian Penal Code as framed by the learned trial Court does not suffer from any legal infirmity. (11) P.W.1 is the prosecutrix. Mr. Goswami submits that it was not necessary to add Section 34 or 109 of the Indian Penal Code in the charge and the charge under Section 376(2)(g) of the Indian Penal Code as framed by the learned trial Court does not suffer from any legal infirmity. (11) P.W.1 is the prosecutrix. She has stated that from the Shiba Temple at about 7.00 P.M., Pradip Sarkar and some of his associates approached her to visit his house on the ground that his mother will come to offer puja with worship articles. It is in her evidence that after reaching the house of Prafulla, all the accused persons confined her in a room and assaulted her. She has stated that they asked her about the whereabouts of Prabir son of Prafulla. When she expressed her ignorance about it they forcibly took her to a maxi- taxi and went to Dhupguri P.S. It is in her evidence that at Dhupguri P.S. the O.C. Gautam Sen misbehaved with her and put pressure on her for the disclosure about the elopement of Mitali with Prabir. The victim girl repeatedly expressed her ignorance and thereafter the O.C. pushed her out of the P.S. by touching her shoulder. She has stated that she declined to go with the accused persons by the said maxi taxi as they would kill or commit rape upon her, but, the O.C. forced her to go with those persons. In the statement under Section 164 Cr.P.C., she has also given vivid description of the entire incident and stated that she prayed before the O.C. for shelter at the P.S. for that night only, but, the O.C. not only declined, but, also said that they would do it. We do not find any contradiction or discrepancy between her evidence at the time of trial and the statement recorded under Section 164, Cr.P.C. made voluntarily by the victim girl before the learned Magistrate. (12) We find with grave concern that the victim girl was beset with hostile circumstances from the very beginning and the investigating agency was very much hostile towards her from the point of the genesis of the occurrence. (12) We find with grave concern that the victim girl was beset with hostile circumstances from the very beginning and the investigating agency was very much hostile towards her from the point of the genesis of the occurrence. This is evident from the fact that the O.C. instead of giving her shelter for that night at the P.S. when she specifically expressed her apprehension that the accused persons would commit rape or kill her, forced her to go with the accused persons by the said maxi-taxi at the dead hours of night. Moreover, it appears that the statement of the victim girl was recorded on 7.10.1996 and the incident occurred on 27/28.2.1995. This inordinate delay in causing the recording of the statement under Section 164, Cr.P.C. definitely points at the perfunctory investigation on the part of the I.O. It is also worth mentioning here that prosecution case cannot suffer owing to perfunctory investigation by the I.O. (13) P.W.4 the mother of P.W. 1 found that the blouse of P.W. 1 was in torn condition, but the blouse was not seized by the O.C. It is in evidence of P.W. 1 that he lodged complaint with S.P. against the behaviour of O.C. Goutam Sen and S.P. in his turn had taken action against him. It appears that subsequently the investigation was taken over by another O.C. A. K. Ghosh who has deposed as P.W. 10. P.W. 10 has stated that S.I. G. Sen was dead. We agree with the view expressed by Mr. Goswami that the victim girl fought a lone battle crying for justice. (14) P.W. 1 has stated that during her examination by the lady doctor at the hospital, O.C. was present in the hospital and after examination there was conversation between the doctor and the O.C. and they were expressing the words "no doubt". In her statement under Section 164, Cr.P.C. and in her evidence she has expressed her concern that her medical examination was not done properly and the doctor was influenced by the O.C. P.W. 4, the mother, and P.W. 5 the sister of P.W. 1 have stated that P.W. 1 narrated the incident to them. The apprehension of P.W. 1 finds support from the report of the Medical Officer (P.W. 7) who noted the following injuries :- "(I) No vaginal injury seen. The apprehension of P.W. 1 finds support from the report of the Medical Officer (P.W. 7) who noted the following injuries :- "(I) No vaginal injury seen. (II) The victim is menstruating (III) The hymen seems to be habituated to sexual intercourse. (IV) Abrasion over the fourchette (2mm X 4mm). So, no conclusion can be given about whether rape has been done.................................abrasion (2mm X 4mm) over the four chette, colour red, age recent." In her examination-in-chief she has stated as follows :-"In case of rape such abrasion may be found" The doctor did not give any specific opinion as to the commission of rape. (15) It is the settled principle of law that medical evidence is corroborative in nature and in case Of rape the evidence of prosecutrix, if found convincing, the corroboration is not necessary. (16) In the instant case the FSL report shows as follows :-"Spermatozoa on the relevant semen stains as well as blood on other stains of saya marked "A" were detected." (17) The report of the Serologist shows that there were stains of human blood and human semen on the "saya". The abrasion (2mm X 4mm) on the fourchette coupled with the marks of blood or semen in the "saya" are definitely pointing at the guilt of the appellants. The contention that the blood and semen appearing on the "saya" have not been matched with those of the appellants, does not carry any importance, inasmuch as, the totality of evidence overwhelmingly supports the case of the prosecutrix. From the evidence as discussed above, it is clear that the victim girl was subjected to sexual assault. It cannot be said that there was no injury on her private parts. Since, there was injury on the private parts of the victim girl and her testimony is found to be convincing and not suffering from any infirmity or inconsistency or improbability, we are of the considered view that the decision cited by the learned Counsel for the appellants are not applicable in the facts and circumstances of the instant case. (18) It has been argued on behalf of the appellants that in the F.I.R. it has not been stated that in the maxi-taxi she was raped by Adhir Sarkar and Tapan Singha Sarkar. (18) It has been argued on behalf of the appellants that in the F.I.R. it has not been stated that in the maxi-taxi she was raped by Adhir Sarkar and Tapan Singha Sarkar. P.W.1 in her evidence has stated that in the maxi-taxi Adhir committed rape upon her by removing her sari and putting off her blouse and bra and thereafter Tapan committed rape upon her in the rear seat of the maxi-taxi; thereafter, she was dragged out of the maxi-taxi by Brajeswar, Adhir, Gobinda and Bahumalya and they took her to the field where Brajeswar and then Pradip committed rape upon her. It is in her evidence that Prafulla passed orders and directed others to do whatever they liked, but, not to kill her. This was also stated in the same manner in her statement recorded under Section 164, Cr.P.C. We are of the considered view that F.I.R. is not supposed to contain the minute details of the incident. It is an information reaching the Police Station first in point of time regarding the commission of a cognizable offence. The alleged discrepancy and contradiction regarding commission of rape inside the maxi-taxi and in the field or the discrepancy as to the time of leaving the temple or visiting the Police Station are not of such nature that may cast shadow of doubt on the veracity of the prosecution case. (19) Mr. Mukherjee by referring to the provisions of Section 313, Cr.P.C. urged that the appellants were not given opportunity to examine defence witness. In the instant case, the appellants were examined under Section 313, Cr.P.C. by the learned Trial Judge on 13.6.2006 and the learned Trial Judge fixed 22.6.2006 for examination of D.Ws. On that date no D.W. was present and the prayer was made for another date which the learned Judge refused on the ground that there was direction from the Honble Court for disposal of the case within a specified time. Since, a date was fixed for examination of D.Ws we think that the mandatory provision in Section 313, Cr.P.C. was not treated in breach. As regards extension of time, it being discretionary power of the Court, we find that no illegality was committed by the learned Trial Judge as he assigned reason for such rejection. In this connection, Mr. Since, a date was fixed for examination of D.Ws we think that the mandatory provision in Section 313, Cr.P.C. was not treated in breach. As regards extension of time, it being discretionary power of the Court, we find that no illegality was committed by the learned Trial Judge as he assigned reason for such rejection. In this connection, Mr. Mukherjee has referred to an unreported decision in CRA 271 of 2006 of this Honble Court where the case was sent back on remand for affording opportunity to adduce D.Ws. But, the particulars of circumstances under which the case was sent back on remand have not been stated in the said decision. Therefore, we think that the said decision would not come in the aid of the contention of Mr. Mukherjee. (20) Mr. Mukherjee submits that as per medical report the victim girl was undergoing period and as per custom a lady would not go to temple while undergoing such period. We are unable to accept such contention of Mr. Mukherjee. P.W. 1 in her evidence while answering to the question put by the Court said that on the date of production before the doctor for medical examination she was not on her period. In her statement under Section 164, Cr.P.C., she has also stated that she told the doctor about the date of her last period. She has stated that the doctor had seen the stains of blood on her private parts and on the "saya". But the doctor did not record about the stains of blood in her report. (21) Mr. Dey submits that from the evidence of P.W. 4 and P.W. 5 it would appear that Prafulla lodged a criminal case against P.W. 1 and P.W. 4 and as a counterblast this case was lodged falsely. It is settled principle of law that enmity is like a double-edged weapon which cuts either way. It is the prosecution case that P.W. 1 was put under pressure for obtaining disclosure about the elopement of Mitali and Prabir and when she expressed her ignorance, she was first assaulted and then taken to the P.S. and thereafter at Kalirhat field she was raped by the appellants. During cross-examination of P.W. 1 it was suggested that she assisted Prabir and Babli @ Mitali to entice them away and that at her instance police recovered Prabir and Mitali. During cross-examination of P.W. 1 it was suggested that she assisted Prabir and Babli @ Mitali to entice them away and that at her instance police recovered Prabir and Mitali. This suggestion put to P.W. 1 during her cross-examination strengthens the prosecution case that for obtaining disclosure about the whereabouts of Prabir she was confined in a room, assaulted and then ultimately subjected to sexual assault by the appellant one after another. (22) Mr. Dey submits that the element of common intention as required under Section 376(2)(g) of the Indian Penal Code has not been proved as there was no charge under Section 34 or 109 of Indian Penal Code. (23) Mr. Goswami has drawn our attention to explanation 1 of Section 376(2)(g) of the Indian Penal Code wherein it has been laid down as follows :- "1. Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section." (24) In the instant case, the appellants acting in concert took her to the Police Station and then to Kalirhat field and committed rape upon her one after another. There is ample evidence that the appellants acted as members of the same group of persons and acted in concert. Therefore, the case squarely comes within the purview of explanation 1 of Sections 376(2)(g) of the Indian Penal Code. The addition of Section 34 or 109 of the Indian Penal Code was not called for. The contention of Mr. Dey in this regard is not acceptable. (25) In the F.I.R. the victim girl has mentioned that she is seventeen years old. The doctor, who examined her, has also mentioned the age of the victim girl as seventeen years. From the evidence on record we find that there is clear, unambiguous, unimpeachable and overwhelming evidence in support of the prosecution case and the evidence of the prosecutrix is worthy of credence and is sufficient to sustain the charge under Sections 376(2)(g) of the Indian Penal Code. The contention of the defence that there is inherent improbability, is not acceptable. There is no infirmity improbability or inconsistency in her evidence and, as such, it is worthy of credence and no corroboration is necessary and her evidence alone is sufficient to warrant conviction. The contention of the defence that there is inherent improbability, is not acceptable. There is no infirmity improbability or inconsistency in her evidence and, as such, it is worthy of credence and no corroboration is necessary and her evidence alone is sufficient to warrant conviction. (26) The defacto-complainant has filed the revisional application being CRR No. 2788 of 2006 for the enhancement of sentence of Prafulla and others. We find that under Section 376(1) of the Indian Penal Code, the learned Trial Judge had the jurisdiction to impose a sentence less than seven years by assigning reasons. In the instant case, the learned Judge considering the age of the appellant Profulla and the fact that he went away, passed the sentence to suffer rigorous imprisonment for five years and to pay a fine of Rs. 20,000/- in default to suffer rigorous imprisonment for one year. We find that the learned Judge considering the entire materials on record and after assigning reasons, passed the sentence in respect of the appellant Prafulla and others. It cannot be said that the said order suffers from any perversity. Such being the position, we are of the considered view that interference in revision is not called for. (27) The learned Trial Judge was justified in passing the impugned judgment and order and we do not find any ground to interfere with the findings of the learned Judge. All the appeals being governed by this judgment are dismissed. The CRR No. 2788 of 2006 is also dismissed. (28) Let a copy of this judgment along with the Lower Court Records be sent down to the learned Court below immediately. The appellants who are on bail namely Brajeswar Sarkar, Prafulla Sarkar and Tapan Singha Sarkar are directed to surrender before the learned Trial Judge to serve out the sentence, in default, the learned Trial Judge will take necessary action according to law to secure their attendance. (29) Let a copy of this judgment be also sent to the Correctional Home where the appellant Adhir is now detained. (30) Urgent Xerox certified copy, if applied for, be handed over to the parties as early as possible.