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2009 DIGILAW 783 (CAL)

Bir Singh Mahato v. STATE OF WEST BENGAL

2009-10-22

PRABHAT KUMAR DEY, S.P.TALUKDAR

body2009
Judgment : SAILENDRA PRASAD TALUKDAR, J. (1.) By judgment dated 12th May, 2006, passed in Sessions Case No. 126 of 2005 (S.T. No. 16 of 2005.), learned 2nd Court of Additional Sessions Judge, Purulia held the appellants, namely, Bir Singh Mahato, Tipui Kumar, Dhan Singh Mura and Budhu Singh Mura guilty of the offence under Sections 376(2.) (g.) as well as Section 448 of the Indian Penal Code. They were convicted accordingly. On 12th May, 2006, the said accused persons/appellants were sentenced to suffer rigorous imprisonment for ten years each and pay fine of Rs. 5,000/- each in default, to suffer imprisonment for a further period of one year each. The said convicts were also sentenced to suffer rigorous imprisonment for six months each and to pay fine of Rs. 500/- each, in default, to suffer rigorous imprisonment for a further period of one month each for their conviction under Section 448 of the Indian Penal Code. Learned trial Court directed the sentences to run concurrently. (2.) Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the appellants preferred the instant appeal. (3.) The grievances as ventilated in the appeal may briefly be summed up as follows :Learned trial Court failed to appreciate the evidence in its proper perspective and was not at all justified in holding the present appellants guilty of the said offences under Sections 376(2.) (g.) and Section 448 of the Indian Penal Code. Learned Counsel for the appellants submitted that the evidence on record could not be said to be just and proper so as to lead to a finding of guilt. (4.) It appears that the prosecution in order to establish the charge examined as many as ten witnesses. (5.) Of them, P.W.1 is the de facto complainant who in his evidence in chief has sought to substantiate the allegations made in the written complaint. He introduced, the victim, Renubala Bhagat, as his Boudi (wife of his elder brother.). In his evidence in chief, he referred to the incident which took place on 2nd Agrahayan, 1982 when a group of anti-socials led by one Mr. Bir Singh Mahato attacked their house. All of them were armed with bows, arrows, tangis, swords etc. Since the doors were closed, they started throwing bricks and stones at the house. They were kept confined inside for about an hour. Bir Singh Mahato attacked their house. All of them were armed with bows, arrows, tangis, swords etc. Since the doors were closed, they started throwing bricks and stones at the house. They were kept confined inside for about an hour. P.W.1 stated that the said Bir Singh Mahato was former Headmaster of Tunturi High School and he was a member of the Zilla Parishad. According to him, being asked by Bir Singh Mahato, the police arrested him, his other brothers and their father as well. P.W.1 approached the concerned police authority for protection of their family members. He was assured that the said Bir Singh Mahato would look after their family members. They were first taken to Suisa Outpost and from there, to Baghmundi Police Station. They were kept confined in a room in the said Police Station for two days. On 5th Agrahayan, 1982 they were released. They reached Suisa Outpost and found that their mother and the said Boudi were crying in front of the said Outpost. It was about 10/11 a.m. in the morning. His Boudi told that the said miscreants went to their house in the evening of 4th Agrahayan. They cut agricultural products from the field and took the same away. They also, took away whatever was stored in their house. Those persons thereafter entered into their house and looted the household articles including ornaments, cash money and the relevant papers relating to the landed properties. His Boudi told that five persons, namely, Bir Singh Mahato, Budhu Singh Mura, Dhan Singh Mura, Ghashu Singh Mura and Tipui Kumar forcibly raped her. P.W.1 wanted to register a written complaint but he was not entertained. The police authority was further reluctant in writing the word rape. Since a written complaint was made ready, P.W.1 was forced to sign the same. He was not allowed even to read the contents of the said written complaint. The said written complaint, however, had been proved and it was treated as FIR being marked Ext. 1. P.W.1 identified those persons in Court. In his elaborate cross-examination, P.W.1 referred to certain incident which even took place prior thereto involving the two groups. In his cross-examination, the said P.W.1 denied that the Daroga Babu of Baghmundi Police Station had written the complaint according to his instruction and that after the same was prepared, it was read over and explained to him. In his elaborate cross-examination, P.W.1 referred to certain incident which even took place prior thereto involving the two groups. In his cross-examination, the said P.W.1 denied that the Daroga Babu of Baghmundi Police Station had written the complaint according to his instruction and that after the same was prepared, it was read over and explained to him. P.W.1, however, admitted that he as well as others were arrested by the police of Baghmundi Police Station in connection with a case started at the instance of Budhu Singh Mura. It was registered as Baghmundi P.S. Case No. 5 dated 19.11.1982. (6.) P.W.2 is the alleged victim of me offence of rape. In her evidence in chief, she sought to describe in details as to how as many as five persons committed rape upon her - one after another. She deposed that on 4th Agrahayan, Bir Singh Mahato along with some other persons cut paddy from their land and fled away. In the evening, they came again to their house and looted the household articles. They ransacked and thereafter took away valuable papers, documents, deeds, etc. P.W.2 sought to describe the incident and stated that those persons dashed her mother in law and tied her face and hands with cloth and kept her confined in the corner of the room. Thereafter, Bir Singh Mahato took her to another room. She was asked to strip. She refused and then the said Bir Singh Mahato forcibly undressed her. Placing a Kantha on the said accused, Bir Singh Mahato, sucked her breast and then forcibly had intercourse as well as oral sex. P.W.2 then went on referring to the acts of as many as four others who, it appears from the evidence of P.W.2, acted practically in same fashion. The only variation as reflected from her evidence in chief, appears to be was in respect of duration. It transpires from her evidence that after those five persons a raped her, she got up, got dressed and went outside the room and found that her mother in law was lying there with her face and hands tied. She nursed her mother in law. Thereafter, she along with her mother in law went to the house of Robi and Rahim. She asked them to accompany to Suisa Police Outpost. They only assured to take her there next morning. She nursed her mother in law. Thereafter, she along with her mother in law went to the house of Robi and Rahim. She asked them to accompany to Suisa Police Outpost. They only assured to take her there next morning. She as well as her mother in law stayed in the house of Rahim. They took her and her my mother in law to Suisa police Outpost in the next morning. While sitting under a tree at that place they were discovered by her father in law, her husband and Debar (brother in law.) who, by that time, were released by the police of Baghmundi police station. P.W.2 disclosed the entire incident to them. This was then disclosed to the police personnel of Suisa Police Outpost. The said police authority, however, did not pay any heed. They were directed to go to the Baghmundi police station. The police personnel over there also did not give attention to the incident which it deserved. They were asked to hand over the wearing apparels, i.e., her saya, sari etc. She was asked to approach Pathardih hospital for medical examination. She being accompanied by her mother in law went there. She was examined by the doctor, over there. She described the entire incident to the attending doctor. The said doctor, however, was reluctant to examine her since she was not accompanied by any police personnel. She was, thereafter, referred to Purulia Sadar Hospital. Since she was not accompanied by any police personnel, the doctor of Purulia Sadar Hospital also declined to examine her. This compelled her to approach Baghmundi police station. The police personnel over there continued to be indifferent and she was asked to approach after some time. After 18 days of the incident, she was finally examined by the doctor of the Purulia Sadar Hospital. She was then released after examination. She was taken to the Magistrate by the police where she made a statement which was recorded. Learned Counsel for the appellants referring to the aforesaid evidence of P.W.2 submitted that such victim lady, as would appear on a close scrutiny of her evidence, had hardly any regard for truth. From her evidence in cross-examination, it is found that there had been inordinate delay in her medical examination and this could not be said to be without any fault on her part. From her evidence in cross-examination, it is found that there had been inordinate delay in her medical examination and this could not be said to be without any fault on her part. In her cross-examination, she stated that when the doctor of the Purulia hospital was reluctant to examine her, she along with her mother in law went back to Baghmundi. They boarded a hotel. She could not give the name of the said hotel. They did not disclose their names while staying in the hotel. She then deposed that they stayed in the hotel of Baghmundi for 10/12 days. She then stated that she did not intimate the police relating to her stay in a hotel in Baghmundi. She claimed that she spent one whole night in Purulia Court Verandah. On behalf of the appellants, reference was made to her evidence in cross-examination that she could not say as to how many persons entered into their house on that night, i.e. on 4th Agrahayan. She stated that there was no door or window in the room where she was brought by Bir Singh Mahato after the act pf their looting. She admitted in her cross-examination that she did not state before the learned Magistrate at the time of recording of her statement or before the police authority that site disclosed everything to Robi and Rahim after reaching their house on the relevant night. She also did not state before the police or the learned Magistrate that after 18/19 days, police took her to Purulia Sadar Hospital for her medical examination. She further deposed that she handed over her wearing apparels to police officer of Baghmundi police station. She was not supplied with any cloth or under-garment. She did not have any knowledge as to what was done with such wearing apparels. She also did not have any knowledge as to whether any seizure list was prepared. She failed to give the date or time of her visit to Baghmundi police station for the first time when she met her husband and others. Interestingly enough, she admitted that when she met the doctor of Pathardih Hospital, she did not disclose that she was forcibly raped by Bir Singh Mahato and others. She failed to give the date or time of her visit to Baghmundi police station for the first time when she met her husband and others. Interestingly enough, she admitted that when she met the doctor of Pathardih Hospital, she did not disclose that she was forcibly raped by Bir Singh Mahato and others. It is her further evidence in cross-examination that she was not aware of the fact that prior to this incident, there were other cases lodged by them against the villagers over allegations of rape and looting of household articles. (7.) P.W.3 is the mother in law of the victim lady, P.W.2. In her evidence in chief, she stated that on 4th Agrahayan in the evening, Bir Singh Mahato brought her Bouma (P.W.2.) to another room. He tied her hands with napkin and rope. She was assaulted by the accused persons. She was made to lie on the floor. At that time, she could, hear her Bouma (P.W.2.) crying and requesting Bir Singh Mahato and others not to commit rape upon her. According to P.W.3, her Bouma (P.W.2.), came out of the room after a long time and reported that five persons had committed rape upon her. She also stayed that the household articles including cash money and ornaments, valuable papers etc. were looted away by the accused persons. P.W.3 then deposed that she as well as her Bouma disclosed the incident to Robi and Rahim and they were asked to keep quiet. Such evidence of P.W.3, however, does not find any support from the evidence of P.W.2. In the elaborate evidence in chief followed by cross-examination, P.W.3 only sought to lend further support to the prosecution case. (8.) P.W. 4 is a doctor who referred to the medical report prepared by one Dr. Sukumar Chatterjee. Since they worked in the same place, he was conversant with the handwriting and signature of Dr. Chatterjee who issued the certificate. Being proved by him, the signature in the medical report dated 12.3.1985 had been marked Ext.2. Such report was forwarded to the I.C., Suisa police Outpost. P.W.4 proved his endorsement on the said document. In cross-examination, he admitted that there was no official seal under the signature of S. Chatterjee in the report dated 12.3.1985. (9.) P.W. 5 is the police officer who on 21.11.1982 wrote down the complaint on the statement made by one Arjun Bhakat. P.W.4 proved his endorsement on the said document. In cross-examination, he admitted that there was no official seal under the signature of S. Chatterjee in the report dated 12.3.1985. (9.) P.W. 5 is the police officer who on 21.11.1982 wrote down the complaint on the statement made by one Arjun Bhakat. P.W. 5 also proved the formal F.I.R. which was prepared him. His signature in the same had been marked Ext. 1/1. It was not possible for him to say whether the de facto complainant disclosed the incident of rape of his Boudi at that time. There is nothing significant in his cross-examination. (10.) P.W.6 is another police officer who on 18.1.1985 took up the case for further investigation. He collected the statement of the victim girl which was recorded under Section 164(5.) of the Code of Criminal Procedure. She collected the FSL report dated 25.1.1985 from the judicial record of Purulia Court through the G.R.O., Purulia. On completion of investigation, he submitted charge-sheet in the case for the offences including the offence under Section 376 of the Indian Penal Code. (11.) The evidence of P.W. 7 is quite significant since he as a doctor examined P.W.2, the alleged victim lady. He stated that at first, he recorded her complaint. There was complaint of her back-pain as well as pain in the chest. The patient disclosed that her mother in law was assaulted by the assailants. After that, two of them caught hold of her hands and legs and she was raped by five persons in turn in her house. (12.) P.W. 7 medically examined her and found the following Injuries :- 1.) Acute tenderness anterior and posterior chest walls. 2.) No external evidence of injury (abrasion, bruise, teeth mark, all absence.). 3.) Acute tenderness whole of back (no external evidence of injury.). 4.) Acute tenderness external genetalia. (No external evidence of injury.). Old cervical myoti forms. (13.) No sign of bleeding present. No tear. (14.) Such P.W.7 also examined P.W.3. He found the acute tenderness over certain parts of the body but no bruise or abrasion. P.W. 7 proved the two medical reports, i.e., Ext. 4 and Ext. 5 respectively. In course of cross-examination, he stated that "A grown up man or woman develops his/her teeth and nails according to the increase of his/her age and those are his/her natural weapons. P.W. 7 proved the two medical reports, i.e., Ext. 4 and Ext. 5 respectively. In course of cross-examination, he stated that "A grown up man or woman develops his/her teeth and nails according to the increase of his/her age and those are his/her natural weapons. In case of raped, victim the nail beds is examined for availability of epidermal shells. If any woman resisted for being raped it would appear from her nail beds." (15.) P.W. 8 is another police officer who also took part in the investigation of the case. He, in his evidence, refers to the various steps taken by him in course of investigation. He examined many witnesses and recorded their statement under Section 161 of the Code of Criminal Procedure. There is nothing significant in his elaborate cross-examination. It is evidence in cross-examination that he sent one sari and one napkin to the Forensic Science Laboratory for examination arid reported on 05.12.1982. He did not seize any napkin or sari. He also could not say as to who produced the said napkin and sari before him. It could not be possible for him to ascertain that the napkin and the sari produced before him were of P.W.2. In his cross-examination such P.W.8 stated that P.W.3. Swarna, did not state before him that after some time, her Bouma (P.W.2.) stated that she was raped by five persons. (16.) P.W. 9 is the judicial officer who recorded the statement of P.W.2. It had been marked Ext. 8. (17.) P.W.10 is another police officer and his evidence is of formal nature. (18.) In the statements made at the time of examination under Section 313 of the Code of Criminal Procedure, the accused persons pleaded innocence. Interestingly enough, two witnesses were examined on behalf of the defence and of them, D.W.1 is a retired police officer who stated that a case was registered on 19.11.1982 with Budhu Singh Mura as complainant. This was against Lalmohan Bhakat, Arjun Bhakat and others. It was a case under Section 324/506 of the Indian Penal Code. The police officer after completion of investigation submitted charge sheet in the said case. (19.) D.W. 2 sought to substantiate such evidence of D.W.1. (20.) Learned trial Court after analyzing of evidence on record found the present appellants guilty of the offence under Section 376(2.) (g.) and 448 of the Indian Penal Code. The police officer after completion of investigation submitted charge sheet in the said case. (19.) D.W. 2 sought to substantiate such evidence of D.W.1. (20.) Learned trial Court after analyzing of evidence on record found the present appellants guilty of the offence under Section 376(2.) (g.) and 448 of the Indian Penal Code. (21.) It is well settled that the burden rests on the prosecution to establish the guilt of an accused person. While discharging such burden, such prosecution is required to establish the date, place and time of the alleged occurrence and the manner in which the offences allegedly took place. Needless to mention that there is no rigid formula as to how much of evidence Is exactly necessary so as to establish a charge. It is not the quantum or the weight of the evidence but it is the quality of the same that matters. (22.) It is further settled that credibility of testimony depends on judicial evaluation of the totality, not isolated scrutiny. Marginal mistakes or minor inconsistencies cannot by themselves demolish the prosecution case. It is also not in dispute that proof beyond reasonable doubt is the guideline and not a fetish. Truth may suffer from infirmity when projected through human process. (23.) Learned trial Court in his findings referred to the fact that even uncorroborated oral testimony of the prosecutrix in certain circumstances can warrant conviction for the offence under Section 376 of the Indian Penal Code. There is no scope for controversy in this regard. But, once again, this cannot be the rigid standard and this has to vary from one situation to another, from one case to another. So far the present case is concerned, the evidence appears to be entirely based upon the oral testimony of the alleged victim lady, P.W.2. The manner in which she sought to describe the acts of commission of rape by as many as five persons upon her, somehow fail to inspire confidence of the Court. As indicated earlier, there is hardly any variation in the statement made and the manner in which such alleged act had been described. It remains wonder as to how a lady after being raped by as many as five persons over a protracted period of time could normally dress up again and come out of the room and then take care of her mother in law. It remains wonder as to how a lady after being raped by as many as five persons over a protracted period of time could normally dress up again and come out of the room and then take care of her mother in law. There is no clear answer as to where her children were and how is it that such an incident totally escaped the attention of others. It is true that medical evidence is not necessarily conclusive and particularly where the victim lady is admittedly mother of two children. It is worth mentioning that in the present case, the victim lady was medically examined after an inordinate delay and there can be wonder that there was nothing worth mentioning so as to substantiate charge of the offence under Section 376 of the Indian Penal Code in such medical report. There is admittedly the background of enmity between the P.W. 2 and her family members and the accused persons. There is clear and consistent evidence on record so as to indicate that there are cases and counter-cases. In such a situation, the Court can very well insist upon some sort of corroboration and particularly when the evidence of victim girl herself suffers from inherent improbability and latent weakness. (24.) It is also well settled that if the evidence of the victim does not suffer from any basic infirmity and the (probabilities factor does not render it unworthy of credence.) , as a general rule, there is no reason to insist on corroboration except from the medical evidence. But here the case is distinctly otherwise. It is, of course, settled that where the statement of the prosecutrix does not suffer from any basic infirmity and the probabilities factor support the allegation of rape, then only relying upon her statement, conviction can be based. We, however, find that so far the present case is concerned, the evidence on record do not pass the test of judicial scrutiny. (25.) From the entire evidence on record, it is found that the de facto complainant, the victim lady and their family members continued to grudge for alleged indifference being shown to them by various authorities including the police authorities. (26.) After careful consideration of the evidence on record, we do not think that there is no answer to the same. (25.) From the entire evidence on record, it is found that the de facto complainant, the victim lady and their family members continued to grudge for alleged indifference being shown to them by various authorities including the police authorities. (26.) After careful consideration of the evidence on record, we do not think that there is no answer to the same. In fact, the allegations made by the de facto complainant and particularly, the victim lady (P.W.2.) were not considered to have any prima facie substance and perhaps that could be the reason for such alleged indifference. (27.) It is quite strange that none of the neighbours had been examined in support of the prosecution case. There is no answer as to what happened to the two children of the victim lady when she was being subjected to rape committed by as many as five persons and that too, over a protracted period of about four hours. (28.) Mr. Sekhar Basu, as learned Counsel for the appellants, invited attention of the Court to the evidence that on the night of the alleged incident nothing was stated to Rabi and Rahim. P.W.1, however, stated to the police that Rabi and Rahim are eye witnesses to the occurrence. P.W.2 deposed that she had no knowledge whether P.W.3 was examined by P.W.7 in the Primary Health Centre or not. Strangely enough P.W.2 and her mother-in-law, P.W.3 got detached from the rest of the family or 3/4 days. Conduct of P.W.2 and that of P.W.3 does not appear to be normal. (29.) Then again P.W.2 did not claim to have stated either to the police or to the Magistrate about any refusal by the police officers. She admitted that she did not state about such act of accused Sir Singh Mahato. She handed over clothings to the officers of the concerned police station, but was not provided with any wearing apparel. She did not suffer any injury in her private part nor any external injury on her body. Such inherent abnormality in the evidence of P.W.2 could find some reflection in the evidence of P.W.3 as well. Evidence on record discloses that P.W.3 did not state to the police that Budhu tied her hands with napkin rope and assaulted her. (30.) Mr. Basu referred to the evidence of Dr. Saha, P.W.7, who, according to him, blew hot and cold at the same breath. Evidence on record discloses that P.W.3 did not state to the police that Budhu tied her hands with napkin rope and assaulted her. (30.) Mr. Basu referred to the evidence of Dr. Saha, P.W.7, who, according to him, blew hot and cold at the same breath. His evidence exonerates Sir Singh. P.W.2 admitted that she did not mention the name of Bir Singh. Of the persons named by P.W.2 to P.W.7, Dhan Singh and Tippu were not identified in Court. One Fultoo Kumar had been acquitted and Ghasu Bhumij was not on trial. P.W.7 did not find any sing of rape or external molestation. Ext. 5 does not bear any date. Doctor did not find any external injury on P.W.3. Such a medical report certainly cannot be considered to be a convincing piece of documentary evidence. (31.) Mr. Basu, as learned Counsel for the appellants, referred to the decision of the Apex Court in the case between Ram Kumar Pande And The State of Madhya Pradesh, reported in AIR 1975 SC 1026 in support of his contention that the omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. (32.) Deriving inspiration from the decision in the case between Dilip and Anr. And State of M.P., reported in (2001.) 9 SCC 452, it was submitted by Mr. Basu that sole testimony of prosecutrix can be acted upon and made the basis of conviction without being corroborated in material particulars. But such testimony must not suffer from any inffrmity. (33.) The Apex Court in the case between Sadashiv Ramrao Hadbe And State of Maharashtra and Anr, reported in (2007.) 1 SCC (Cr.) 161, held that in rape cases conviction on the sole testimony of prosecutrix is sustainable provided it inspires confidence. (34.) In the case between Lalliram and Anr. And State of Madhya Pradesh, reported in (2009.) 1 SCC (Cr.) 17, the Apex Court held that where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. If the Court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial. (35.) Law certainly does not demand that statement of the prosecutrix must, without exception, be taken as the gospel truth. (36.) Coming back to the evidence on record, it can be found that the evidence in support of the charge of the offence of rape as disclosed by P.W.2 could not find any support from the evidence of any other witness. In absence of any corroboration and in the backdrop of admitted enmity between the two groups and in view of the inordinate delay in lodging complaint arid undue delay caused in medical examination, we do not think that the learned trial Court was justified in finding the present appellants guilty of the offences under Section 376 (2.) (g.) and Section 448 of the Indian Penal Code. (37.) In our considered opinion, the prosecution case fails in view of inherent impropriety of the evidence on record. In fact, such uncorroborated evidence of P.W.2 and the weak evidence of P.W.3 and P.W.1 cannot be considered as sufficient enough so as to inspire confidence of the Court. (38.) As such, the present appeal being C.R.A. 349 of 2006 succeeds and the impugned judgment dated 12.5.2006 be set aside. (39.) The appellants be held not guilty of the offence under Section 376(2.) (g.) and Section 448 of the Indian Penal Code and they be acquitted accordingly. (40.) If on bail, they stand released from their respective bail bonds. (41.) Send a copy of the judgment along with the lower Court records to the learned trial Court for information and necessary action.