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2010 DIGILAW 730 (CAL)

Laxman Tarafdar v. The State of West Bengal

2010-07-01

PRABHAT KUMAR DEY, S.P.TALUKDAR

body2010
Judgment :- S.P. Talukdar, J: The instant appeal is directed against the judgment dated 31st August, 2004 and the order dated 1st September, 2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Barasat, 24-Parganas (North) in Sessions Trial No. 12(4)/04 arising out of Sessions Case No. 26(2)/04. Learned Trial Court, by the said judgment and order, found the accused persons, namely, Susanta Chowdhury, Bireswar Dhali, Laxman Tarafder, Ramesh Majumder and Ripon Biswas guilty for the offence punishable under Sections 448/354/376(2)(G)/506 of I.P.C. They were sentenced to suffer imprisonment for life and to pay fine of Rs. 5,000/-each, in default, to suffer imprisonment for a further period of one year for the offence under Section 376(2)(G) of I.P.C. The learned Trial Court passed separate sentences for the offences under Section 448, Section 354 as well as 506 of I.P.C. Being aggrieved by the said judgment and order of conviction and sentence, the convicts, as appellants, approached this Court by filing this appeal. The prosecution case, in brief, is as follows : On 26th February, 2002, the appellant, Susanta Chowdhury and others went to the house of the defacto complainant by five/six motor cycles at wee hours. After assailing the defacto complainant and his two daughters, they dragged the said daughters and outraged their modesty. The accused Susanta, Laxman and Bireswar committed rape upon the youngest daughter repeatedly. The other associates of Susanta threatened them and accused, Bablu Podder, put the barrel of a gun into the mouth of the husband of the defacto complainant. They were far too scared to raise an alarm. They could not even gather the courage to lodge FIR. The defacto complainant some how succeeded to identify accused persons, namely, Susanta, Bireswar, Laxman, Ramesh, Naresh and Ripon Biswas. On the basis of the said complaint which was treated as FIR, Police authority started Gaighata P.S. Case No. 158 dated 16.8.2002 under Sections 448/376 (2)(G)/354/506 of I.P.C. and Section 25(i)(a)/27 of Arms Act. Such complaint was lodged on 16th of August, 2002 i.e., after about six months of the date of alleged occurrence. Police authority after completion of investigation submitted charge sheet. After commitment of the case and its subsequent transfer by the learned Sessions Judge, the case reached the learned Trial Court. Such complaint was lodged on 16th of August, 2002 i.e., after about six months of the date of alleged occurrence. Police authority after completion of investigation submitted charge sheet. After commitment of the case and its subsequent transfer by the learned Sessions Judge, the case reached the learned Trial Court. Charges were framed against the five accused persons, namely, Susanta Chowdhury, Laxman Tarafder, Bireswar Dhali, Ramesh Majumder and Ripon Biswas under Sections 448/376(2)(G)/354/506 of I.P.C. The accused persons pleaded not guilty to the said charges and the same were read over and explained to them and they claimed to be tried. Defence case, as it appears from the trend of cross-examination, is the denial of the prosecution allegations and the plea of innocence. Prosecution in order to discharge the burden of establishing the guilt of the accused persons examined as many as fifteen witnesses. Of them, P.W. 1 is the defacto complainant, who in her evidence in chief narrated the incident, which took place in her house on 26th February, 2002 at about 12:30 A.M. She stated that 15/16 persons under leadership of Susanta Chowdhury came to their house at that time by 5/6 motor cycles. After entering into the house, they started assaulting them. Her two daughters were assaulted and then dragged. They outraged their modesty outside the house. As her husband tried to resist, accused Bablu took out his gun and put the same into the mouth. He threatened to kill him. Her elder daughter was assaulted by the accused persons at the verandah. They, however, left her, as she was then ill. They took her youngest daughter, Aparna, to the next room and accused Susanta, Bireswar and Laxman committed rape upon her. Thereafter, they threatened them and said that in the event of approaching police station, hospital or divulging the incident to others, all of them would be killed. She being illiterate, one Barun Biswas wrote down the FIR as per her instruction. She put her LTI on it. She clearly stated that when she came to know that the accused persons had been arrested in connection with other case, she could muster courage to approach the police station. She was extensively cross-examined by the learned Advocates, appearing for the different sets of accused persons. She put her LTI on it. She clearly stated that when she came to know that the accused persons had been arrested in connection with other case, she could muster courage to approach the police station. She was extensively cross-examined by the learned Advocates, appearing for the different sets of accused persons. In cross-examination, she clearly stated that the accused persons assaulted her husband and accused, Bablu Poddar, put the barrel of the gun into his mouth. In cross-examination, she repeated that her youngest daughter was raped in the room and her modesty was outraged in verandah. She admitted that she could not see the accused persons committing rape, as the door was closed. She repeated that being scared, she could not inform the Panchayet Pradhan. In her cross-examination, she further admitted that since his elder daughter was physically ill, the accused persons left her. P.W. 2 is the husband of the defacto complainant (P.W. 1). In his evidence in chief, he corroborated the evidence of P.W. 1 on all material points. He emphatically stated that the accused persons, after entering into the next room, committed rape upon his youngest daughter. He specifically mentioned that the accused persons, namely, Laxman, Bireswar and Susanta committed rape upon her and other accused persons threatened them. The accused persons further threatened to kill them in the event the police was informed. Accused, Susanta, also demanded a sum of Rs. 20,000/-from them and told P.W. 2 to send the said amount within a week to the house of Bireswar. Accused Naresh took all of them away thereafter. Local people came to their house after that. P.W. 2 was taken to a local doctor. In cross-examination, he stated that his wearing apparels got stained with blood. He, however, did not hand over the same to the police. He claimed that he was treated by a quack doctor named Swapan Baidya. His daughters were treated by a homeopathic doctor of Bangaon. He further claimed in cross-examination that he was taken to doctor Baidya in the midnight. He narrated the incident to him as well as to others, who came to their house. Panchayet Pradhan, D. Biswas, was also informed. She expressed her inability to do anything. P.W. 2 in cross-examination disclosed his occupation as a carpenter as well as a day labourer. He narrated the incident to him as well as to others, who came to their house. Panchayet Pradhan, D. Biswas, was also informed. She expressed her inability to do anything. P.W. 2 in cross-examination disclosed his occupation as a carpenter as well as a day labourer. Such incident, as narrated by P.W. 1 and P.W. 2, was further substantiated by the victim of rape, P.W. 3 as well her elder sister, P.W. 4. P.W. 3 clearly stated that her elder sister was sick and so she was spared. Thereafter, she was taken to a room and they undressed her. She clearly mentioned that accused, Susanta, Bireswar and Laxman committed rape upon her. She tried to resist but she was threatened of dire consequences with a revolver. She further stated that out of fear and threat, they could not go to the police station. She claimed to have made a statement before the Magistrate. She identified the said statement marked exhibit-2. In cross-examination, she deposed that her brother used to sleep in verandah but on that day, her brother went to attend a marriage feast and was absent. In cross-examination, she further stated that Nakul Mondal and some others came to their house after the incident and they were told about it. She, however, clarified that they did not come immediately after the incident. The local people came on the next morning and the bloodstained wearing apparels were shown to them. P.W. 4 repeated the statements of P.W. 1, P.W. 2 and P.W. 3 to a significant extent. All such witnesses stood the test of cross-examination well. P.W. 5 introduced himself as a school teacher, who was associated with social work. In his evidence in chief, he sought to support the prosecution case further and there is nothing worth mentioning in his cross-examination. P.W. 6 in his evidence in chief stated that in the month of February, 2002, he came to know from the defacto complainant that accused, Susanta, Bireswar and Laxman committed gang rape upon her daughter, Aparna. He was further told that Gokul suffered fracture injury in the head being assaulted by the accused persons. He was further told about the accused persons outraging the modesty of the elder daughter of the defacto complainant. He was further told that Gokul suffered fracture injury in the head being assaulted by the accused persons. He was further told about the accused persons outraging the modesty of the elder daughter of the defacto complainant. He too claimed that though he was told about the incident on the following day, he did not have the courage to go to the police station and lodge FIR. There had been persistent threats. He introduced himself as a teacher by profession. He identified the FIR written by him as per instruction of P.W. 1 and his endorsement in the same had been marked exhibit-3. In cross-examination, he clearly admitted that he had no personal knowledge regarding the incident. He denied to have any involvement with politics. In his cross-examination, he further stated that Pratibadi Mancha was established in the year 2002 and antisocial activities were reported in the newspaper. This incident was also reported in all newspapers well before lodging of the FIR as well as subsequent thereto. P.W. 6 could not be shaken the least at the time of his extensive cross-examination. P.W. 7 claimed to have visited the house of P.W. 2 and he found bleeding injury in the head of Gokul. In response to query, he stated that one Bablu Poddar assaulted him and the accused persons committed rape upon his younger daughter. They also outraged the modesty of his elder daughter. P.W. 7 arranged a van. Gokul Mondal was taken to doctor, Swapan Baidya. There is nothing significant in his cross-examination. P.W. 8 is a retired doctor of West Bengal Health Service. He examined Kumari Aparna Mondal, aged about 17 years on 21st of August, 2002. He prepared the report, which had been marked exhibit-4. P.W. 9 received the written complaint from Sova Mondal on 16th August, 2002. He identified his endorsement on it, marked exhibit-3/1. On its basis, the formal FIR was prepared. Gaighata P.S. Case No. 158 dated 16.8.2002 was accordingly started. The formal FIR had been marked exhibit-5, being proved by him. P.W. 10 sought to support the prosecution case in his evidence in chief. P.W. 11 was declared hostile by the prosecution. In cross-examination, she stated that ‘not a fact that the accused persons did not enter into the house of the victim. On the next morning Gokul narrated the incident to the local people. P.W. 10 sought to support the prosecution case in his evidence in chief. P.W. 11 was declared hostile by the prosecution. In cross-examination, she stated that ‘not a fact that the accused persons did not enter into the house of the victim. On the next morning Gokul narrated the incident to the local people. Not a fact that Gokul did not tell me about the incident.’ There is nothing worth mentioning in the evidence of P.W. 12. Prosecution sought to derive further support from the evidence of P.W. 13. P.W. 14 is the Judicial Magistrate, who recorded the statement of the victim girl, Aparna in connection with the present case. He clearly stated that he recorded such statement under Section 164 of Cr.P.C. He identified such statement in his hand writing and it also bears his signature. He referred to the certificate issued by him, marked exhibit- 1/1. He further deposed that on 20.9.2002, he recorded the statement of one Anjana Mondal in connection with the same case. The certificate issued by him had been marked exhibit-2/1. P.W. 15 is the Investigating Officer, who in his evidence in chief stated that in course of investigation, he visited the place of occurrence, examined the witnesses under Section 161 of Cr.P.C., forwarded the victim girls to the Court for getting their statements recorded under Section 164 of Cr.P.C. He collected medical report and after completion of investigation, he submitted charge sheet. Referring to the evidence of P.W. 11, who had been declared hostile, such P.W. 15 deposed that P.W. 11 stated before him that the accused persons assaulted the victims and their parents. He also stated that after committing the offence, they fled away. P.W. 15 was extensively cross-examined. He, however, could not be shaken the least. In cross-examination, he stated that it is a fact that he cited witnesses, who belong to other village. He also admitted that Jiten Bala, Nani Poddar and Barun Biswas are also witnesses in other cases against the accused persons. He further stated that it could be that some of the witnesses are members of Pratibadi Mancha. He, however, categorically denied that being influenced by the members of Pratibadi Mancha, he submitted charge sheet in the case. This is all about the prosecution evidence on record. He further stated that it could be that some of the witnesses are members of Pratibadi Mancha. He, however, categorically denied that being influenced by the members of Pratibadi Mancha, he submitted charge sheet in the case. This is all about the prosecution evidence on record. The accused persons just pleaded not guilty in their response to the questions put to them during their respective examination under Section 313 of Cr.P.C. It was, however, claimed that the people of ‘Pratibadi Mancha’ (Protester’s Forum) conspired and implicated the accused persons in this case. Ms. Tanusree Ghosh, appearing as learned Counsel for appellants, Laxman and Susanta, submitted that evidence on record suffers from inherent inconsistencies and the learned Trial Court failed to appreciate the same in the right perspective. She wondered that though there is evidence on record that the police camp and the government hospital were near the place of occurrence but the incident was not reported. According to Ms. Ghosh, there are gaps in the evidence of the different prosecution witnesses – particularly regarding reporting of the matter to Panchayet, demand of money and so on and so forth. She submitted that there is no satisfactory explanation for not examining Dr. Swapan Baidya. Ms. Ghosh brought to the notice of the Court the fact that the wearing apparels of the alleged victim girls were not shown at the time of trial. According to her, there is ambiguity in the evidence as regards identity. Mr. Tapas Ghosh, appearing as learned Counsel for the appellant in connection the appeal, being C.R.A. No. 314 of 2009, submitted that the delay in lodging of the FIR entitles the accused persons to benefit of doubt. Inviting attention of the Court to the evidence of P.W. 1, it was submitted that a complaint was filed six months after the alleged incident and such inordinate delay had not been suitably explained. He referred to the fact that P.W. 2 did not accompany P.W. 1 at the time of lodging of the complaint and he went to do his usual job. One of the victims, being P.W. 3 stated about commission of rape by Susanta, Bireswar and Laxman. Mr. Ghosh further submitted that the prosecution failed to establish the actual place of occurrence and the evidence on record does not tally with the charge, as framed. One of the victims, being P.W. 3 stated about commission of rape by Susanta, Bireswar and Laxman. Mr. Ghosh further submitted that the prosecution failed to establish the actual place of occurrence and the evidence on record does not tally with the charge, as framed. In this context, it was further submitted that the allegations in the FIR is to be otherwise. Mr. Ghosh referred to the FIR while submitting that it does not disclose any demand of Rs. 50,000/-. According to him, FIR was lodged six months after the alleged incident, and, even then, many important aspects do not find mention in it. It was then submitted that so far appellant, Ramesh, is concerned, there is nothing worth mentioning. Attention of the Court was further invited to the fact that the wearing apparel had not been produced at the time of trial and neither any member of the panchayet nor the Homeopath/Quack had been examined on behalf of the prosecution. Ms. Tanusree Ghosh deriving inspiration from the decision of the Apex Court in the case between Lalliram & Anr. And State of M.P., as reported in JT 2008 (10) SC 67, submitted that though injuries are not sine qua non for deciding rape, it is an important factor. The Apex Court in the said judgment, however, held that if the evidence of the prosecutrix is credible, corroboration is not required. The Apex Court referred to two earlier decisions i.e., the case between Pratap Misra & Ors. And State of Orissa, 1977 (3) SCC 41 and the case between Aman Kumar & Ors. And State of Haryana, JT 2004 (2) SC 379. It was further submitted that the Courts are required to bear in mind that false charges of rape are not uncommon and there are some rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. In this context, reference was made to the decision of the Apex Court in the case between Radhu And State of Madhya Pradesh, as reported in (2008) 2 SCC (Cri) 207. The Apex Court, however, in the said case observed that whether there was rape or not would ultimately depend on the facts and circumstances of each case. Ms. In this context, reference was made to the decision of the Apex Court in the case between Radhu And State of Madhya Pradesh, as reported in (2008) 2 SCC (Cri) 207. The Apex Court, however, in the said case observed that whether there was rape or not would ultimately depend on the facts and circumstances of each case. Ms. Ghosh emphatically submitted that having regard to the latent wounds in the prosecution evidence, the learned Trial Court was not justified in convicting the appellants since the said wounds could not be effectively healed up by satisfactory evidence. In such backdrop, the appellants were certainly entitled to benefit of doubt since the offence could not be said to have been proved beyond reasonable doubt. In this context, reference was made to the decision in the case between Bibhishan And State of Maharashtra, as reported in JT 2007 (11) SC 545. Deriving inspiration from a Division Bench decision of this Court in the case between Tuna @ Profulla Mondal And The State of West Bengal & Anr., as reported in (2009) 1 C Cr LR (Cal) 663, it was submitted that in absence of any injury on the back or pelvis region of the victim in the said case, the learned Division Bench held that the prosecution story could not be established beyond reasonable doubt. Mr. Tapas Ghosh referring to the decision of the Apex Court in the case of Lalliram & Anr. Vs. State of Madhya Pradesh, as reported in (2009) 1 SCC (Cri) 17, submitted that in the event of contradictory statements in the testimony of the prosecutrix, which is again inconsistent with that of some other P.Ws as well as the medical evidence, there can be no question of conviction for the offence under Section 376 of I.P.C. In the said case, the Apex Court took into consideration the fact that there had been inconsistency in the statement of the prosecutrix as regards the accused who had first committed rape on her. The Apex Court also took certain other contradictions and inconsistencies into consideration while making such observation. Reference was further made to the Apex Court decision in the case between Ramdas & Ors. And State of Maharashtra, as reported in 2007(2) All India Criminal Law Reporter 362. The Apex Court also took certain other contradictions and inconsistencies into consideration while making such observation. Reference was further made to the Apex Court decision in the case between Ramdas & Ors. And State of Maharashtra, as reported in 2007(2) All India Criminal Law Reporter 362. This was in support of his contention that though belated FIR by itself is not fatal, the fact that the report was lodged belatedly is a relevant fact of which the Court is required to take notice. It is for the Court to consider the delay in the background of the facts and circumstances of each case. Relying upon another decision of the Apex Court in the case between State of Andhra Pradesh And M. Madhusudhan Rao, as reported in 2008(7) Supreme 641 , Mr. Ghosh submitted that the delay in lodging the First Information Report may result in embellishment and exaggeration. It is, thus, required to be satisfactorily explained. Inviting attention of the Court to the evidence of the doctor, who examined the victim girl, Mr. Ghosh submitted that absence of any injury mark in the private part of the victim girl goes a long way to demolish the prosecution case. In this context, reference was made to the Apex Court decision in the case between Rajoo & Ors. And State of M.P., as reported in 2009 (1) All India Criminal Law Reporter 351. It was submitted that though the broad principle is that the injured witness would not tell a lie, there cannot be any presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. The Apex Court in the said case, however, held that if the evidence is reliable, no corroboration is necessary. It was then submitted that an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But 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. (Ref: Ram Kumar Pande V. The State of M.P., AIR 1975 SC 1026 ). In response to this, Mr. Goswami, learned Public Prosecutor, submitted that the nature of the alleged crime and the circumstances of its commission deserved to be appreciated in its proper perspective. It is far too grave. (Ref: Ram Kumar Pande V. The State of M.P., AIR 1975 SC 1026 ). In response to this, Mr. Goswami, learned Public Prosecutor, submitted that the nature of the alleged crime and the circumstances of its commission deserved to be appreciated in its proper perspective. It is far too grave. He contended that minor inconsistencies and marginal mistakes cannot demolish a prosecution case. Laying emphasis on the evidence of the victim girl, it was submitted that there is, perhaps, no scope for any further confusion or controversy regarding involvement of the appellants in the commission of the serious offence of rape. He also submitted that they also serve who stand and stare. In response to the consistent assertion made on behalf of the defence that the appellants had been unnecessarily implicated in the case being influenced by members of the Pratibadi Mancha, Mr. Goswami submitted that such a Mancha was set up in order to take care of the consistent, illegal and dangerous activities in the locality of the appellants. He further submitted that so far the present case is concerned, such ‘Pratibadi Mancha’ was not even in existence at the relevant time. Inviting attention of the Court to the evidence of the Investigating Officer, it was submitted that the present appellants were involved in a number of cases. Referring to Section 54 of the Evidence Act, Mr. Goswami submitted that the previous bad character of the appellants cannot be lost sight of. The appellants successfully created fear psychosis in the concerned locality. This stood in the way of the victim or members of his family rushing to the concerned police station that further explains the delay in lodging the FIR. Mr. Goswami then submitted that such a Pratibadi Mancha was set up after arresting of the present appellants. It was then contended that the evidence of the prosecutrix by itself justifies conviction – of course, if the same inspires confidence of the Court. The point raised on behalf of the defence that there was no injury mark in the private part of the victim girl was sought to be explained by Mr. Goswami while submitting that it could not be possible to have any medical evidence, that too, when the victim girl was medically examined after long six months of the alleged incident. The point raised on behalf of the defence that there was no injury mark in the private part of the victim girl was sought to be explained by Mr. Goswami while submitting that it could not be possible to have any medical evidence, that too, when the victim girl was medically examined after long six months of the alleged incident. He then submitted that it is not just and proper to read into the medical evidence that the victim girl was accustomed to sexual intercourse. This aspect is of little consequence. Relying upon the decision of the Apex Court in the case between Radhu And State of M.P., as reported in 2007 CRI.L.J. 4704, it was submitted by Mr. Goswami that absence of injuries on private parts by itself does not falsify case of rape. Mr. Goswami further submitted that it is well settled that a finding of guilt in a case of rape can be based on the uncorroborated evidence of prosecutrix. The Apex Court in the case of Radhu (Supra) held that the very nature of 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. Relying upon the decision in the case of Zindar Ali Sheikh vs. State of West Bengal & Anr., as reported in (2009) 2 SCC (Cri) 737, it was categorically submitted by Mr. Goswami that absence of injury mark in the private part of the victim girl, who was examined by the doctor long after six months of the incident, could be of very little significance. Attention of the Court was invited to the statements of the two sisters, who are victim girls, as recorded under Section 164(5) of Cr.P.C. In Madan Gopal Kakkad Vs. Naval Dubey & Anr., as reported in 1992 SCC (Cri) 598, the Apex Court observed that even in cases wherein there is lack of oral corroboration to that of a prosecutrix, a conviction can be safely recorded, provided the evidence of the victim does not suffer from any basic infirmity, and the ‘probabilities factor’ does not render it unworthy of credence. It was further observed that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. Mr. It was further observed that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. Mr. Goswami further contended that a medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. So far the present case is concerned, on close scrutiny of the evidence on record, we find that there is consistent, well-corroborated and convincing evidence on behalf of the prosecution. It is not that the prosecutrix herself but the evidence of her parents as well as another sister, who again was a victim, leaves little scope for any further confusion. Besides, the aforesaid evidence on record has further been corroborated by other prosecution witnesses and none of the material witnesses could be shaken in their respective cross-examination. It is settled law that credibility of testimony depends on judicial evaluation of the totality and not isolated scrutiny. It cannot be disputed that truth may sometime suffer from infirmity when projected through human process. What is required is proof beyond reasonable doubt and not beyond all doubt. In order to establish the guilt of an accused person, law certainly does not demand dotting of every ‘i’ and cutting of every ‘t’. On an overall assessment of the evidence on record, we find it difficult to accept the contention made by the learned Counsel for the appellants and in our considered opinion, the judgment and order under challenge does not suffer from any illegality, which could justify any interference by this Court. So, the instant appeals being C.R.A. No. 680 of 2004, C.R.A. No. 718 of 2004 and C.R.A. No. 314 of 2009 fail and be dismissed. The judgment and order of conviction and sentence dated 31st August, 2004 and 1st September, 2004 passed by the learned Additional Sessions Judge, Fast Tract Court No.1, Barasat, 24-Parganas (North) in Sessions Trial No. 12(4)/04 arising out of Sessions Case No. 26(2)/04 stand affirmed. Send a copy of this judgment along with the LCR to the learned Trial Court for information and necessary action. Send a copy of this judgment along with the LCR to the learned Trial Court for information and necessary action. Criminal department is directed to supply certified copy of this judgment, if applied for, to the learned Counsel for both parties as expeditiously as possible. I agree.