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2012 DIGILAW 835 (CAL)

Gopeshwar Mahato v. State of West Bengal

2012-09-05

Raghunath Bhattacharya

body2012
JUDGMENT Raghunath Bhattacharya, J. : 1. The fact of the case is Bhadu Das, the defacto complainant, wife of late Chandi Das aged about 26 years was forcibly raped by Gopeshwar Mahato in a vacant room on the false pretext of giving job to her and against the will of the defacto complainant. After the incident defacto complainant lodged a written complaint to the Police Station. Police took up investigation of this case and after completion of investigation submitted charge sheet against Gopeshwar Mahato and Shital Das under section 376/120B I.P.C. Hence the prosecution case. 2. The defence case as it appears from the trend of the cross-examination no prosecution witnesses and the answer given by the accused person to their respective examination under Section 313 Cr.P.C. is that of absolute innocence. 3. On the basis of available paper and after hearing submission of the both sides a charge under Section 376/120B was framed against the accused person to which each of them pleads not guilty and claims to be tried. 4. In this case from the side of the prosecution as many as 16 witnesses were examined where no witness was forthcoming from the side of the prosecution. 5. According to the defacto complainant Smt. Bhadu Das, she was taken to the house of Shital Das to give employment and Gopeshwar Mahato was waiting inside the house. He forcibly raped the defacto complainant and fled away. Defacto complainant reached her the house and informed her mother-in-law about the incident and lodged a written complaint. She was cross-examined at length but she remain unshaken during the course of the cross-examination. P.W.2 happens to be the mother-in-law to the defacto complainant and after the incident the dafacto complainant Bhadu Das reported the matter and she narrated the incident before the Court. P.W.2 was cross-examined at length and he stated that he heard the incident from Bhadu Das. The fact that the P.W 2 was not present at the time of incident. So, there is nothing on record to disbelieve her statement. It is useless to discuss the evidence of P.W.3 and P.W. 4 and P.W. 5 is a Judicial Magistrate and he recorded the statement of Bhadu Das under Section 164 Cr.P.C. the ocular version of P.W. 6 and P.W. 7 neither help the prosecution nor the defence. So, it is useless to discuss their evidences in detail. P.W. 8 Dr. It is useless to discuss the evidence of P.W.3 and P.W. 4 and P.W. 5 is a Judicial Magistrate and he recorded the statement of Bhadu Das under Section 164 Cr.P.C. the ocular version of P.W. 6 and P.W. 7 neither help the prosecution nor the defence. So, it is useless to discuss their evidences in detail. P.W. 8 Dr. J.N. Mahato was posted at M.O. at Sadar Hospital at Purulia. According to him Gopeshwar Mahato was capable of sexual intercourse. P.W. 9, P.W. 10, P.W. 11 and P.W. 12 are formal witnesses and there is nothing on record to discuss their evidences in detail. P.W. 13 is a neighbour, co-villager of Bhadu Das and he has stated that after hearing hue and cry he rushed to the house of Bhadu Das and Bhadu Das narrated the incident to him. I have gone through her evidence. The only suggestion has given to the defence is that he cannot say whether he told to I.O. that Bhadu Das is a relation to him. The ocular version of P.W. 14 and P.W.15 is a heresy evidence. P.W. 16 is the I.O. of this case. 6. These are all evidence adduced from the side of the prosecution. Now, the ocular version of the defato complainant – cum – victim was duly corroborated by her mother-in-law make witness more or less believable. On principle the evidence of a victim of sexual assault stands on par with the evidence of an injured witness as she is the best witness and is not likely exculpate the real offender; the evidence of sex offence is entitled to get weight, the absence of corroboration notwithstanding. The evidence in all such cases is that of the victim herself. The Court must bear in mind the human psychology and probability when assessing this testimonial potency of the victim’s version. No woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her. Why should the evidence of a girl or the woman who complaints of rape be viewed with the lead of spectacle fitted with lense linged with doubts. No woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her. Why should the evidence of a girl or the woman who complaints of rape be viewed with the lead of spectacle fitted with lense linged with doubts. A girl or woman in the tradition bound society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred she could be conscious danger of being destructed by the society including her own family member, as observed by the Hon’ble Apex Court in several decisions. So having regard to the above principle, considering the facts of the present case, taking into account the demeanour and delivery of the witness i.e. the victim swore to the above fact before the Court below there is hardly any reason to disbelieve her testimony and I do not find anything to allow the appeal. Moreover, I am an agreement with the learned Trial Court that none but the accused Gopeshwar Mahato committed sexual intercourse with Bhadu Das. 7. Though none appeared for the State yet after going through the evidence on record I find that it is quite difficult for me to allow the appeal. 8. So, the appeal filed by the accused person is hereby dismissed. It is submitted by the learned Lawyer for the appellant that the period of sentence has already over. Learned C.J.M., Purulia is hereby directed to verify the matter with the correctional home and take appropriate action on this point. If it is found that the accused person already served the sentences the learned C.J.M. is hereby directed to pass necessary order in accordance with law. 9. Thus, the appeal stands dismissed. 10. Let copy of this judgement along with Lower Court Record be sent down to the Court below at once. Urgent photo-stat certified copy, if applied for, be handed over to the parties as early as possible.