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2010 DIGILAW 978 (CAL)

Susanta Baparia @ Bhai v. STATE OF WEST BENGAL

2010-08-13

KALIDAS MUKHERJEE

body2010
JUDGMENT KALIDAS MUKHERJEE, J. 1. THIS application under Section 401/482 of the Code of Criminal Procedure is directed against the judgment and order passed by learned Additional Sessions Judge, Fast Track Court, Hooghly in Criminal Appeal No. 34 of 1999 dismissing the appeal and confirming the judgment of conviction and sentence under Section 376/34/114 of the Indian Penal Code passed by learned Assistant Sessions Judge, Hooghly in ST No. 184 of 1999. 2. THE prosecution case, in short, is that on 04.3.1989 the victim girl lodged complaint with the P.S. alleging that she was a student of class VI in Bhadreswar Dharmatala Girls' School. She was aged about 14 years. It has been alleged that on that date at about 5.00 P.M. she accompanied her mother to the house of Tapan Dhar to view T.V. At about 6.30 P.M. she came back home and started reading her books. But, after 2/3 minutes she was going to the house of Tapan Dhar to call her mother and on the way Ashutosh Sarkar called her and told that someone was calling her towards the house of Nikhil Sarkar. As darkness prevailed, she did not agree to go there. Thereafter, Ashutosh caught her hand and forcibly dragged her towards the house of Basakbabu which was vacant at that time. At that place Susanta Bapari and Gopal were standing. On seeing them the victim cried out and at that time a person was passing by with a torch in his hand. Those three persons talked among themselves to remain quiet as Paritosh was passing nearby. Those persons thereafter forcibly took her to the house of Nikhil Sarkar where none was present at that time. Susanta and Gopal took her to the roof of the house and asked Ashutosh to remain at the gate so that none could come in. Thereafter, Ashutosh told them that Bapi was coming and, as such, Susanta and Gopal forcibly took her to the bamboo grove. THE victim got frightened. Susanta forcibly made her lie down on the earth and removed her undergarment. Susanta committed rape upon her. After Susanta, Gopal committed rape upon her. At the time of leaving that place they threatened the victim with dire consequences, if it was disclosed to anybody. She narrated the incident to her mother and elder sister. THE victim got frightened. Susanta forcibly made her lie down on the earth and removed her undergarment. Susanta committed rape upon her. After Susanta, Gopal committed rape upon her. At the time of leaving that place they threatened the victim with dire consequences, if it was disclosed to anybody. She narrated the incident to her mother and elder sister. After the receipt of the complaint, the Bhadreswar P.S. case No. 46 dated 04.3.19889 was started under Section 376(2)(g)/114/120B of the I.P.C. and after completion of investigation charge sheet was submitted. Charge was framed against accused Susanta Bapari and Gopal Chakraborty under Section 376/34 I.P.C. and against accused Ashutosh Sarkar @ Ashu under Section 376/114 I.P.C. Charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 3. THE learned Trial Judge upon consideration of the materials on record was pleased to hold both the accused Susanta Bapari and Gopal Chakraborty guilty for committing the offence under Section 376/34 I.P.C. and accused Ashutosh Sarkar guilty for committing offence under Section 376/114 I.P.C. THE learned Trial Judge was pleased to sentence accused Susanta Bapari and Gopal Chakraborty to suffer R.I. for seven years with fine of Rs.2,000/- each in default to suffer R.I. for two months. THE learned Judge sentenced Ashuthosh @ Ashu to suffer R.I. for 7 years with fine of Rs.2,000/- in default to suffer R.I. for two months under Section 376/114 I.P.C. Being aggrieved by the judgment passed by the learned Trial Judge, the convicts preferred appeal before the learned Additional Sessions Judge being Criminal Appeal No. 34 of 1999 which was dismissed and the order of conviction and sentence was affirmed. THE learned Additional Sessions Judge relying on the school certificate held that the victim girl was below 16 years of age. THE learned Judge held that the presence of semen in the easer and frock worn by the victim was a corroborative material in favour of the prosecution case of committing rape. 4. THE learned Counsel appearing for the petitioner submits that the finding of the learned Judge as to the age of the victim girl was erroneous. It is contended that from the report of the ossification test it is clear that the victim girl completed 19 years but below 20 years. 4. THE learned Counsel appearing for the petitioner submits that the finding of the learned Judge as to the age of the victim girl was erroneous. It is contended that from the report of the ossification test it is clear that the victim girl completed 19 years but below 20 years. It is contended that the school certificate as produced by the prosecution is not correct, in as much as, the source or basis as to the entry in the register was not explained. It is contended that the margin of error will be two years on either side. It is contended that the victim girl used to mix with some Oriya people who had access to her house and as the accused persons raised objection they had been falsely implicated in this case. It is submitted that the prosecution case narrating the circumstances as alleged is improbable. It is contended that the neighbouring witnesses were declared hostile. It is contended that in collusion with the local people, the victim girl created some objectionable atmosphere for which the accused persons raised objection and, as such, the instant case was lodged falsely against the accused persons. It is contended that the learned Trial Judge did not consider the evidence of the D.Ws. 5. LEARNED Counsel appearing on behalf of the State submits that the jurisdiction of the revisional Court to interfere with the order impugned is very limited. It is contended that there is no perversity or gross illegality in the order of conviction and sentence passed by the learned Trial Judge. It is contended that the school certificate as produced by P.W. 9 should be relied upon and it is clear from the evidence that the victim girl was below 16 years of age. It is contended that there is no evidence of enmity and, as such, the possibility of false implication can reasonably be ruled out. It is submitted that the evidence of the prosecutrix is worthy of credence and no corroboration is necessary according to the principles of law laid down by the Apex Court. It is contended that no suggestion was given that the certificate as to the age of the victim girl was false. It is submitted that out of fear the neighbouring persons turned hostile, but, it would not cast any shadow of doubt on the veracity of the prosecution case. It is contended that no suggestion was given that the certificate as to the age of the victim girl was false. It is submitted that out of fear the neighbouring persons turned hostile, but, it would not cast any shadow of doubt on the veracity of the prosecution case. The learned Counsel for the State relied on evidence of P.W. 1, P.W. 9, P.W. 10 and P.W. 18 and submits that there was corroboration in material particulars. It is contended that the victim girl was forcibly taken to the bamboo grove and she was prevented from raising alarm. 6. LEARNED Counsel appearing for the State has referred to and cited the decision reported in AIR 2006 Supreme Court 2214 (Om Prakash Vs. State of U.P.). In this case it has been observed by the Apex Court in paragraph 13 as follows:- 13. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scatting her own prestige and honour. In the case of Pradeep Kumar Verma Vs. State of Bihar and Anr. reported in [(2008)1 C Cr. L R (SC) 173] as cited by learned Counsel for the State, there was sexual relationship with the victim on the promise to marry. The point of false representation and misconception of fact was not discussed and the case was remitted to High Court for fresh consideration. 7. P.W. 1 is the victim girl. It is in her evidence that on the date of occurrence at about 6.00 P.M. she, her mother and elder sister went to the house of Tapan Dhar to view T.V.; after sometime she did not like to see the T.V. and was returning home. On the way accused Ashutosh Sarkar approached her and stated that someone had called her; she was taken to the house of Nikhil Sarkar where she found two other accused persons, namely, Gopal and Susanta; after seeing them she did not like to proceed but, the accused forcibly took her and threatened for eviction from that locality; thereafter the accused persons took her to a vacant house belonging to one Basak. It is in her evidence that the accused persons were speaking in a low voice that somebody was coming and thereafter the accused persons wrapped her with a 'chadar' and took her to the roof of Nikhil Sarkar's house; as somebody was coming there the accused persons dragged her to the bamboo grove. She has stated that accused Susanta took her 'chadar' and placed it on the ground; then Susanta made her lie down on the 'chadar' and opened her pant; thereafter accused Susanta forcibly committed sexual intercourse with her for 3/4 minutes; Susanta left her and he asked Gopal to commit the same thing; Gopal also raped in similar manner for about 3/4 minutes. She has stated further that as a result of such rape by the accused persons some white materials were poured into her vagina. In the cross-examination she has stated that on coming down home she narrated the incident to her parents and stated the names of the accused persons and thereafter she accompanied her father to Bhadreswar P.S. and narrated the incident to the police. In the cross-examination she has further stated that she could not raise any alarm as she was forcibly taken to the bamboo grove and threatened. 8. P.W. 2 has stated that in the midst of viewing the T.V. P.W. 1 left the place in order to go home. After viewing T.V. she and her mother returned home, but did not see P.W. 1; they searched for her and suddenly P.W. 1 came; she was crying and told about the incident. It is also in her evidence that P.W. 1 told that Ashutosh called her and accused Gopal and Susanta after removing her wearing apparels raped her. She has denied the suggestion that so many Oriya people used to visit their house and created disturbances to the local people. She has also denied the suggestion that due to such disturbance of their house local people and local boys became annoyed and they protested. P.W. 3, P.W. 4, P.W. 5 and P.W. 6 were declared hostile. 9. P.W. 7 is the mother of the victim. She has stated that in 1989 the victim was a student of class VI and aged about 14 years. P.W. 3, P.W. 4, P.W. 5 and P.W. 6 were declared hostile. 9. P.W. 7 is the mother of the victim. She has stated that in 1989 the victim was a student of class VI and aged about 14 years. It is in her evidence that victim had gone to see T.V. with her and when they were searching for the victim suddenly they noticed that the victim was coming from the side of bamboo grove in some abnormal manner and she was not in a position to speak and she was crying. It is in her evidence that the victim narrated the incident to her. She has stated that her daughter was under- going period for three days. 10. P.W. 8 has stated that they were searching for the victim here and there and suddenly the victim came from the side of bamboo grove and she was crying; she was not in normal state; she told that she was raped by Gopal and Susanta. P.W. 9 has produced the admission register of the school and stated that the victim was admitted as per serial No. 54 and her dated of birth was 15.10.1974. It is in his evidence that in the column of guardian one Basanti Hazra signed. He has further stated that it was a transfer case and on the basis of transfer certificate the date of birth of the victim was written. In the cross-examination he has stated that there is no note in the register from what source the date of birth was written. 11. P.W. 10 was declared hostile. 12. P.W. 11 has stated that on reaching the spot he came to learn that the accused persons took the victim in a bamboo grove and committed rape upon her. P.W. 12 is the doctor who held the ossification test and opined that she completed 19 years age, but below 20 years on the date of examination, that is, on 28.4.1989. It is in his evidence that actual age may vary from 1-2 years by such radiological examination due to various reasons. 13. P.W. 13 accompanied the victim and her parents to the P.S. He has denied the suggestion that many Oriya people used to assemble in the house of the victim and create disturbance. 14. P.W. 14 is the doctor who examined the accused. P.W. 15 has stated that the victim is his youngest niece. 13. P.W. 13 accompanied the victim and her parents to the P.S. He has denied the suggestion that many Oriya people used to assemble in the house of the victim and create disturbance. 14. P.W. 14 is the doctor who examined the accused. P.W. 15 has stated that the victim is his youngest niece. He came to learn about the incident from the family members of the victim. 15. P.W. 16 is the learned Magistrate who recorded the statement of the victim girl under Section 164 Cr.P.C. 16. P.W. 17, P.W. 18, P.W. 19 are the police officers. P.W. 20 is the Doctor who examined the victim girl. It is in the evidence of P.W. 20 that he found 2/3 abrasion marks roughly 1 in diameter in her left shinbone region, which were 2/3 days old injuries, but, found no injury or any mark of violence on her private parts. He has stated that patient was not capable of habitual sexual intercourse and the hymen was intact. 17. FROM the evidence on record it appears that the F.I.R. was promptly lodged after the alleged occurrence. P.W. 9 has produced the admission register of the school and stated that the date of birth of the victim girl was 15.10.1974. The incident took place on 04.3.1989. The doctor (P.W. 12) who held the ossification test has stated that the victim completed 19 years but below 20 years of age on the date of examination i.e. on 28.4.1989. He has also stated that the actual age may vary from 1-2 years by such radiological examination due to various reasons. Since the admission register was produced from the concerned school and having regard to the fact that her guardian signed in the admission register, I find that the date of birth as noted in the admission register of the school should be accepted. As per the school certificate the victim girl at the time of the occurrence was below 15 years of age. 18. IT is the settled principle of law that the evidence of prosecutrix, if, found worthy of credence, can form the basis of conviction and no corroboration is necessary. From the evidence of the prosecutrix, P.W. 1, it is clear that she was forcibly taken to the bamboo grove by the accused persons where rape was committed upon her. 18. IT is the settled principle of law that the evidence of prosecutrix, if, found worthy of credence, can form the basis of conviction and no corroboration is necessary. From the evidence of the prosecutrix, P.W. 1, it is clear that she was forcibly taken to the bamboo grove by the accused persons where rape was committed upon her. IT is also evident from her testimony that she was put under threat for which she could not raise any alarm. The victim girl has given vivid description as to how rape was committed by the accused persons and in the statement under Section 164 Cr.P.C. she also narrated the incident in the same manner. The evidence of the prosecutrix was also corroborated by other P.Ws. who found her coming out of the bamboo grove and at that time she was in abnormal situation. It is in her statement under Section 164 Cr.P.C. that the accused persons tied her mouth with the 'chadar' and thereafter committed rape upon her. From the evidence of the doctor (P.W. 20) it appears that there were 2/3 abrasion marks roughly 1 in diameter on her left shinbone. Although no injury or mark of violence was found in her private parts, the abrasions as found in her left shinbone goes to show that she was subjected to violence. The doctor has also opined that the patient was not capable of habitual sexual intercourse. He has also stated that abrasions may be caused if any person threw a woman on heard substance and tried to commit rape. 19. EXHIBIT 12, that is, the report of the FSL goes to show that blood was detected in the EXHIBIT marked 'A' (easer) and semen was detected in the exhibit marked 'A' (easer) and exhibit 'B' (frock). It is in her evidence that when rape was committed on her some white materials were poured into her vagina. Presence of blood in the easer and semen in easer and frock as mentioned in the FSL report (exhibit 12) goes to show that rape was committed upon the victim girl. The absence of mark of injury in her private parts does not in any way cast any shadow of doubt on the version of the prosecutrix as stated before the Court at the time of trial and in the statement under Section 164 Cr.P.C. recorded by the learned Magistrate. 20. The absence of mark of injury in her private parts does not in any way cast any shadow of doubt on the version of the prosecutrix as stated before the Court at the time of trial and in the statement under Section 164 Cr.P.C. recorded by the learned Magistrate. 20. THE learned Counsel appearing for the petitioner herein contends that there was access of the Oriya people in the house of the victim and as the accused persons raised objection, they were falsely implicated in this case. On this point the P.Ws. have denied such suggestion and the D.W. 1 has stated in cross-examination that they never lodged any complaint with the police regarding the troubles and nuisance as alleged. D.W. 1 has further stated in cross-examination that the victim girl at the relevant point of time was a student. P.W. 13 has stated that the victim and her family members used to stay in his house as tenant and he accompanied the victim and her parents to Bhadreswar P.S. The suggestion of the defence that disturbance was created in the locality because of the Oriya people having access to the house of the victim, has not been substantiated. It is, therefore, clear that there is no evidence of previous enmity between the parties. Such being the position, there is no ground to disbelieve the testimony of the prosecutrix. The evidence of the prosecutrix is worthy of credence and the learned Trial Judge having considered the entire materials on record passed the judgment of conviction and sentence which was affirmed by the learned Additional Sessions Judge. It cannot be said that there was gross illegality or miscarriage of justice. There is no ground to interfere with the impugned judgment. The Revisional Application fails and the same stands dismissed. 21. THE appellants are directed to surrender before the learned Trial Court within one month from this date to serve out the sentence, failing which the learned Trial Court will take necessary action according to law. 22. LET a copy of this judgment along with the L.C.R. be sent to the learned Court below immediately. Urgent Photostat certified copy, if applied for, be handed over to the parties as early possible.