Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 349 (CAL)

Tapas Mondal v. STATE OF WEST BENGAL

2010-04-01

ASHIM KUMAR BANERJEE, KISHORE KUMAR PRASAD

body2010
JUDGMENT: Banerjee, J. 1. ON the Shiba Ratri day in 1997 being March 7, 1997 at about 6.30 p.m. the victim was approaching her friend's house, when she was stopped by Tapas one of the appellants. Tapas told her that her friends were waiting at "Shiba Mandir". When she approached Shiba Mandir she did not find her friends instead she found Dipu the second appellant and Kalusona whom she did not know before hand. Then all the three forcibly took her little away from Shiba Mandir about half kilometre and committed rape upon her. According to her, Tapas first committed rape which was repeated by Dipu and Kalusona was on the guard. The victim girl's father made a written complaint to the police station. According to the father the victim was 16 years old. She was going to her friend's house for bringing questions, when Tapas diverted her route and ultimately all three forcibly took her in an open field and committed rape against her willingness. After about 4 (four) hours, in the midnight when she was found weeping, her mother made query when she narrated the incident. 2. TAPAS was initially absconding. Dipu and Kalusona were arrested and TAPAS later on surrendered to Court. They were charge-sheeted under Section 376(2)(g) of the Indian Penal Code. All of them pleaded innocence and claimed to be tried. P.W. 1, the father of the victim corroborated what he had stated in the written complaint. In cross-examination, he admitted that the incident happened on the day of Shiba Ratri, in a place half kilometre away from the Shiba Mandir. He had business, which was being looked after by his son. He did not take his daughter to any doctor after the incident. He was not aware of the friendship between his son Alok and Tapas. He denied that Tapas used to visit his House. He also denied knowing Tapas before the incident. 3. P.W. 2 was the villager. He was friend of victim's brother. He heard about the incident from P.W. 1 and his son. He accompanied the victim and her parents to the police station. 4. P.W. 3 was the victim herself. According to her, she met Tapas on the way to her friend's house, when Tapas told her that her friend was awaiting at the Shiba Mandir. Upon reaching there she found Dipu and one unknown boy. He accompanied the victim and her parents to the police station. 4. P.W. 3 was the victim herself. According to her, she met Tapas on the way to her friend's house, when Tapas told her that her friend was awaiting at the Shiba Mandir. Upon reaching there she found Dipu and one unknown boy. They put cloth into her mouth and forcibly took her half kilometre away from the said place. According to her, Dipu committed rape on her first and then Tapas raped her. The third one, however, did not commit any rape although ill behaved with her. She after sometime came back of her own and on a query made by her mother she disclosed the incident. In cross-examination she admitted that he knew Tapas before hand. When she was confronted with nine love letters she admitted to have affairs with Tapas. She admitted those letters to be written by her including the painting and/or sketch made thereon. She denied of being influenced by her father. Pw-4, Madan Mondal was the brother-in-law of the victim. He was post-occurrence witness and corroborated the other witnesses discussed above. 5. PW-5 was the mother of the victim. She also corroborated what her husband had stated in evidence. 6. PW-6 was the Police Officer who registered the complaint. Pw-7 was the Doctor who examined the victim and Tapas. Pertinent to note, Dipu was not medically examined. On perusal of the medical report it appears that according to the Doctor, there had been no external injury on the person of the victim or the accused Tapas. According to the Doctor, the age of the victim was to be determined through Ex-Ray examination, although we do not find any Ex-Ray report to that effect. With regard to Tapas, the Doctor opined that he was capable of doing sexual intercourse. The Doctor, in cross- examination, opined that there was evidence of sexual intercourse and the rupture of hymen was contemporary. 7. PW-8 initially conducted investigation. PW-9 recorded the statement of the victim under Section 164 of the Indian Penal Code. PW-10 was the investigating officer, who later on took up the case from his predecessor. 8. ON the materials on record, as came out in evidence, the learned Judge held both Tapas and Dipu guilty of the offence. 7. PW-8 initially conducted investigation. PW-9 recorded the statement of the victim under Section 164 of the Indian Penal Code. PW-10 was the investigating officer, who later on took up the case from his predecessor. 8. ON the materials on record, as came out in evidence, the learned Judge held both Tapas and Dipu guilty of the offence. However, the learned Judge was of the opinion that there was no direct evidence as against Kalusona and he was acquitted from all the charges. The learned Judge imposed sentence of ten years rigorous imprisonment, coupled with a fine of Rs.2,000/- each, and in default, to suffer rigorous imprisonment for four months each for the offence under Section 376(2((g) of the Indian Penal Code. Being aggrieved by and dissatisfied with the judgment and order of the learned Additional Sessions Judge, Dipu and Tapas preferred the above two appeals which were heard by us on the above mentioned dates, including today. 9. MR. Ashok Mukherjee, learned Counsel appearing in support of the appellants, has contended as follows : (i) The victim did not disclose the name of the accused while giving her statement under Section 164 of the Cr.P.C. Hence her statement before the learned Judge, while deposing during the trial, was nothing but an afterthought, might be at the instance of other interested persons. (ii) The medical evidence clearly demonstrated that there had been no external injury either on the person of the victim or of the accused Tapas. The accused Dipu was never been medically examined. (iii) The victim admitted that she had love affairs with Tapas which would be apparent from nine love letters disclosed during trial. Since both the victim and the accused were having cordial relation, the incident even if happened must be treated as a consensual incident and could not be termed as "rape" against the willingness of the victim. (iv) No attempt was made by the prosecution to prove that the victim was minor. Hence, it would not be safe to affirm the conviction, ignoring the fact that the victim was willing to render assistance to the accused in committing such act. (v) There were material discrepancies in the evidence, which would raise doubt in the mind of the Court and such doubt was not removed successfully by the prosecution. (vi) The wearing apparels, although seized, were neither examined nor produced in Court. 10. (v) There were material discrepancies in the evidence, which would raise doubt in the mind of the Court and such doubt was not removed successfully by the prosecution. (vi) The wearing apparels, although seized, were neither examined nor produced in Court. 10. IN support of his contention, Mr. Mukherjee relied on the two-Apex Court decisions in the case of Vimal Suresh Kamble v. Chaluverapinake Apal S. P. and Ann, reported in 2003 SCC (Cr) 596 and Pratap Misra and Ors. v. State of Orissa, reported in 1977 CR LJ 817 (SC). Opposing the appeals, Mr. Debabrata Roy, learned Counsel appearing for the prosecution, has contended that it was the duty of the accused to show that the victim was major and she gave her consent. No such plea was taken at the time of trial as would be apparent from the lower Court records. 11. MR. Roy has further contended that even if there were some flaw on the part of the prosecution to conduct the trial, positive glaring evidence of the victim would lead to conviction of the accused specially in a case under Section 376(2)(g) of the Indian Penal Code. He prays for dismissal of the appeals. 12. WE have considered the rival contentions of the respective parties. It is true that the victim did not disclose the names of the accused during her examination under Section 164, Cr.P.C. although she categorically stated that out of three accused two were known to her being the residents of the same village. During the trial, she mastered courage to disclose the names after coming out of the trauma. She categorically deposed before the learned Judge that both the appellants committed rape on her one after another against her will. We have carefully read the letters disclosed by the defence. If we look to the letters, we would find that the victim wanted to come out of the relationship. We do not know whether the incident happened because of her fallout. Hence, such evidence could not support the case of the defence. 13. IN a case under Section 376 when the victim herself made a categoric statement that rape had been committed upon her by the accused and the accused only, the Court must accept such version in absence of any definite alibi of the accused. Hence, such evidence could not support the case of the defence. 13. IN a case under Section 376 when the victim herself made a categoric statement that rape had been committed upon her by the accused and the accused only, the Court must accept such version in absence of any definite alibi of the accused. The defence neither adduced any evidence nor made any attempt to shaken the prosecution witnesses ; rather they were unsuccessful on that score. Commission of rape was also supported by the medical evidence. The evidence of the victim also found corroboration from her mother, PW-5, to whom the victim accordingly disclosed the incident immediately after her return to the house. IN turn, PW-5 informed her husband, being PW-1, who immediately lodged a complaint with the police station. 14. IN the case of Vimal Suresh Kamble (supra) the Apex Court considered the evidence on record. IN the said case, prosecutrix was the domestic helper. When she went to sweep the floor of the room of the accused, the accused switched off the light and caught hold of her and raped her despite protest. The Apex Court upheld the conviction given by the trial Court. In the case of Pratap Misra (supra), the Apex Court relied on the medical evidence to the extent that there was no sign of injury on the private parts of the victim girl, when there had been accusation of rape by three persons. 15. IN the case before us, the victim admitted that the third one did not commit rape on her. It is true that the doctor opined that there was no external injury. However, the doctor during cross-examination categorically opined that there had been sign of sexual intercourse. The hymen was raptured that would support the case of the prosecution. 16. WE do not find any scope to disagree with the ultimate finding of the learned Judge. Hence, we are unable to accept the contention of the appellants and the conviction is upheld. On the sentence, however, we wish to join issue. If we look to Section 376(2)(g) of the Indian Penal Code, we would find that minimum sentence to be imposed is not less than ten years. However, the proviso gives power to the Court to impose lesser punishment on adequate and special reason to be mentioned in the judgment. 17. On the sentence, however, we wish to join issue. If we look to Section 376(2)(g) of the Indian Penal Code, we would find that minimum sentence to be imposed is not less than ten years. However, the proviso gives power to the Court to impose lesser punishment on adequate and special reason to be mentioned in the judgment. 17. WE find from the record that the appellants namely, Tapas and Dipu were aged more than 20 years but less than 25 years at the time of incident. WE thus find that the accused were passing through their adolescence at the time of commission of the offence. They were at their prime age and there was no record that they committed this type of offence earlier. In view of such special reason, we wish to reduce substantive punishment to rigorous imprisonment of seven years. WE, however, do not wish to modify the imposition of fine as directed by the Court below. 18. TAPAS is suffering the sentence in the correctional home since delivery of the judgment by the Court below; whereas Dipu is on bail. A copy of this judgment along with the lower Court records be sent down at once. Let a modified jail warrant be issued in respect of both." Let Tapas serve remaining part of the sentence in the correctional home where he is now suffering. Dipu is directed to surrender before the Court of learned Trial Judge for suffering sentence. His bail bond is cancelled. In default, necessary steps be taken by the learned Magistrate for his arrest. 19. A copy of this judgment also be sent to Tapas in the correctional home where he is suffering the sentence. 20. WITH the above discussions both the appeals are disposed of.