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2012 DIGILAW 848 (CAL)

Baidya Das v. STATE OF WEST BENGAL

2012-09-11

KANCHAN CHAKRABORTY

body2012
Judgment Kanchan Chakraborty, J. The challenge in this appeal is to the Judgement and Order dated 29.11.2010 passed by the learned Additional District and Sessions Judge, Fast Track Court-III, Siliguri in connection with S. Case No.75(S) of 2008/S.T.No.11/2009 thereby convicting the appellant, Baidya Das, for committing offence under section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 7 years with fine of Rs.5000/-. The Judgement impugned has been challenged on the following grounds:- a). that the learned trial court failed to appreciate the evidence on record in its true and proper perspective; b). that the learned trial court failed to take into consideration that how PW 1 and PW 2 came to know about the incident; c). that the learned trial court was oblivious of the fact that Kamala Sarkar, land-lady, was not examined; d). that the learned trial court failed to take into note that the alleged commission of rape took place in a common kitchen used by the tenants; e). that the learned trial court failed to appreciate the fact that one side of the said kitchen was open and the other three sides are made by bamboo; f). that the learned trial court failed to take into consideration that the prosecution failed to establish the exact date and time of the alleged incident; g). that the Judgement being otherwise bad in law, is liable to be set aside. 2. On 20.09.23007, one Subhas Biswas lodged one FIR with the Siliguri Police Station alleging therein that his daughter, Purnima Biswas, aged about 13-14 years, allured by Baidya Das (hereinafter referred to as the appellant) had sexual intercourse with him on false promise that he would marry her. Purnima in course of time became pregnant and that was manifested in her appearance. On questioning, she disclosed that Baidya Das promised to marry her and raped her in the common kitchen of the tenanted house. Baidya Das, the appellant, was asked to marry Purnima, but he denied the entire fact. His father and mother also threatened Subhas Biswas, father of Purnima, with dire consequences in case of disclosure. The appellant also advised Subhas Biswas to get the foetus of Purnima aborted. Baidya Das, the appellant, was asked to marry Purnima, but he denied the entire fact. His father and mother also threatened Subhas Biswas, father of Purnima, with dire consequences in case of disclosure. The appellant also advised Subhas Biswas to get the foetus of Purnima aborted. The landlady Kamala Sarkar also threatened Purnima and wife of Subhas Biswas not to disclose the name of the appellant and in case of such disclosure, she would evict Subhas Biswas from the tenanted room. On the basis of the said FIR, Siliguri Police Station Case No.216 of 2007 dated 10.09.2007 under section 376 of the Indian Penal Code was started against the appellant, who pleaded not guilty to the charge and, accordingly, the trial commenced. The learned trial court examined as many as 10 witnesses on behalf of the prosecution. The FIR, formal FIR, medical reports, statements of the victim under section 164 of the Code of Criminal Procedure, 1973, X-ray plate, birth register, birth certificate, pathological reports etc. were admitted into the evidence on behalf of the prosecution and marked as Ext. No witness was examined on behalf of the defence in course of the trial. Upon consideration of the evidence on record, oral and documentary, the learned trial court found that the prosecution brought home the charge against the appellant and, accordingly, the judgement impugned was passed. 3. Mr. Asraf Ali, learned counsel appearing on behalf of the appellant, contended that there is no date or time of the incident of rape or sexual intercourse between Purnima and the appellant has been mentioned either in the FIR or in the 164 statement made by the victim. Even, he contended, the witnesses also did not state the exact date and time of the alleged incident. 4. Mr. Ali, contended that the place of occurrence is a common kitchen, which was being used by 5 numbers of tenants and one side of the said kitchen was having no wall or any door. It was one side open kitchen having 4/5 ovens used by all the tenants, who were occupying the premises under the land-lady Kamala Sarkar. Therefore, it was not possible for the appellant to commit rape on Purnima in such a common place. 5. Mr. Ali also contended that the prosecutrix Purnima did not raise hue and cry at all at the time of commission of rape. Therefore, it was not possible for the appellant to commit rape on Purnima in such a common place. 5. Mr. Ali also contended that the prosecutrix Purnima did not raise hue and cry at all at the time of commission of rape. Had she raised hue and cry, the tenants residing by the side of the said kitchen would have heard the hue and cry. No co-tenants of the said house have come forward and supported the prosecution case. Therefore, the prosecution case cannot be accepted. It has been contended further by Mr.Ali that the learned trial court believed the testimony of Purnima sacrosanct without any corroboration. This was a great error on the part of the learned trial court, because the prosecutrix made different statement at different time to different people. 6. Mr. Sandip Chakraborty, learned counsel appearing for the respondent-State of West Bengal, contended that the prosecutrix was a minor and the birth certificate, i.e. Ext.11 has established the fact. Besides that, the prosecutrix made a statement under section 164 of the Code of Criminal Procedure, 1973 before the learned Magistrate, which was marked as Ext.2/3. That statement remained unchallenged. He contended that if the background of the case is considered thoroughly, non-mentioning of the date and time of rape does not appear to be material in this case. The appellant was having acquaintance with landlady Kamala Sarkar and he used to visit her house where Purnima was also a resident as a tenant. Therefore, the relation between the appellant and the prosecutrix was developed and the appellant taking that opportunity committed rape on her in a common kitchen while no one was within the sight. The fact that Purnima became pregnant and gave birth to a baby has not been denied by the appellant. Therefore, there was no mistake on the part of the learned trial court to come to a conclusion that the appellant has committed rape on Purnima, a minor, and thereby committed an offence under section 376 of the Code of Criminal Procedure, 1973. Mr. Chakraborty also contended that the judgement is based on clinching evidence and is not required to interfere in this appeal. 7. The Ext.1, the First Information Report, which shows clearly that the appellant was not a resident of the said house, wherein the prosecutrix has been residing with her father, mother and other inmates as tenants. Mr. Chakraborty also contended that the judgement is based on clinching evidence and is not required to interfere in this appeal. 7. The Ext.1, the First Information Report, which shows clearly that the appellant was not a resident of the said house, wherein the prosecutrix has been residing with her father, mother and other inmates as tenants. Kamala Sarkar was the landlady of the said premises and the appellant used to visit Kamala Sarkar. The fact stated in the FIR makes it clear that the appellant knew very well about the common kitchen and it was used by the tenants. It is true that the date of the incident of rape in the common kitchen has not been mentioned in the FIR. But, this fact alone does not necessarily make the fact stated in Ext.1 not acceptable. The lodger of the FIR, Subhas Biswa, who happens to be the father of Purnima, came to know about the relationship of Purnima and the appellant, when Purnima became pregnant due to change in her physical appearance. On questioning, she stated that due to sexual intercourse with the appellant, she became pregnant. She also stated before the lodger of the FIR, Subhas Biswas (PW 1), that the appellant promised to marry her and, thereafter, had sexual intercourse with her and on careful perusal of the FIR (Ext.1), it appears that no where within the four corners of the same, it has been mentioned that prosecutrix was raped in a common kitchen. It says about the relationship, which was developed between Purnima and the appellant, and that the appellant promised to marry her and alluring her in such a manner, had sexual intercourse with her. It further says about the post-incident impact, when Purnima became pregnant and the matter became public. The appellant denied the entire matter flatly, while his parents threatened PW 1 as well as Purnima with dire consequences, even the landlady, Kamala Sarkar, also threatened PW 1 to evict from the house. In such a background, the FIR was lodged and obviously the delay in lodging the FIR has been explained in the FIR itself. 8. The PW1, lodger of the FIR as well as father of the prosecutrix, stated that the appellant committed rape on prosecutrix for 8 to 10 times. Purnima was raped for the first-time at about 8/8.30 PM in the kitchen of Kamala Sarkar. 8. The PW1, lodger of the FIR as well as father of the prosecutrix, stated that the appellant committed rape on prosecutrix for 8 to 10 times. Purnima was raped for the first-time at about 8/8.30 PM in the kitchen of Kamala Sarkar. He assured the prosecutrix that he would marry her. When Purnima became pregnant, the PW 1 and his wife (PW 2) came to know about the incident. They had no idea about the sexual intercourse between the appellant and Purnima for 8 to 10 times and first of that had taken place in the kitchen of Kamala Sarkar. They came to know about all these incidents subsequently and, thereafter, they had taken up the matter with the appellant and his family as well as Kamala Sarkar who threatened them with dire consequence. This fact has been stated categorically by PW 1. He has also stated about the age of Purnima. He stated the date of birth of Purnima was 03.06.1993. The birth certificate of Purnima was admitted into evidence and marked as Ext. 11. His statement established that the date of birth of Purnima, i.e. prosecutrix, was 03.06.1993. One Dr.Runi Mitra was examined as PW 8 by the prosecution. PW 8 examined the prosecutrix on 11.09.2007. Besides what she had done, she also examined her clinically, done radiological examination for ascertaining the age of Purnima. She came to a conclusion that Purnima was more than 15 years, but less than 16 and ½ months on the date of examination. Purnima was carrying for 20 weeks at that time. A simple arithmetic would prove that Purnima was below 16 years at the time, when she was having sexual intercourse with the appellant. Therefore, the learned court has come to a finding correctly that the prosecutrix was a minor at the relevant period of time. Since the prosecutrix was a minor at the relevant period of time, the question of consent on her part in participating sexual intercourse does not arise. 9. Therefore, the germane in this matter is whether the incident of rape had actually been committed as stated by the prosecutrix or not. According to Mr. Ali, no such incident had ever taken place. The prosecutrix was examined as PW 3. 9. Therefore, the germane in this matter is whether the incident of rape had actually been committed as stated by the prosecutrix or not. According to Mr. Ali, no such incident had ever taken place. The prosecutrix was examined as PW 3. Although she has not stated the date and time of the incident of rape, for the for the first-time, she had made it clear that it happened inside the kitchen at about 8 PM about two years back from the date of her examination. She stated that the appellant caught hold her from the backside, undressed her, led of her body and committed rape. She shouted, but none appeared. Thereafter, the appellant promised her to marry and told her not to disclose the fact to anybody. She could not disclose the fact out of fear, even to her parents. She became ill after few days and her urine test was done and it was detected that she became pregnant. Her parents stated that they had been to the house of the appellant and informed him about the pregnancy of Purnima, but the appellant flatly denied the said incident and subsequently, advised them for abortion followed by threatening with dire consequences. I carefully done through the statements made by PW 3 in her cross-examination and it appears to him that she faced the test of cross-examination very confidently and reproduced what she stated in her examination-in-chief. Her evidence could not be shakened by the defence by way of cross-examination. Ext.2/3 is the statements of the prosecutrix under section 164 of the Code of Criminal Procedure, 1973. She has given a detail and vivid description of the incident. She stated clearly that how she was raped and what the appellant promised subsequently, she stated also that she was having sexual intercourse with the appellant for about 8 to 10 times and became pregnant. She did not disclose the fact to anybody since she was under impression that the appellant would marry her. The statement of the prosecutrix recorded by the learned Magistrate under section 164 of the Code of Criminal Procedure, 1973 has been thoroughly corroborated by PW 3. PW 2, mother of the prosecutrix, supported by PW 1, PW 4 is a man, who had been living in the said premises of Kamala Sarkar as a tenant. He came to known about the pregnancy of Purnima. PW 2, mother of the prosecutrix, supported by PW 1, PW 4 is a man, who had been living in the said premises of Kamala Sarkar as a tenant. He came to known about the pregnancy of Purnima. He was interrogated by the police in connection with the case. He came to know about the fact of pregnancy of Purnima, because of sexual intercourse with the appellant from Kamala Sarkar, landlady. PW 4 was not declared hostile by the prosecution. The fact that PW 4 came to know about the incident from Kamala Sarkar was not challenged by the defence, when he was cross-examined. However, from the cross-examination, it appears that the walls of the tenanted house were made by muli bamboos and the common kitchen was situated adjacent to left of the room, which was under his occupation. He also had given a description of the kitchen and stated that all the families cook their food in the said common kitchen. He also stated that the area wherein the house was situated, was thickly populated slum area. There is no other private witness of the incident save and except the doctors and the police officers. 10. It is also stated that Purnima had given birth to a baby at Siliguri Sub-Divisional Hospital which has not been denied by the defence. The PW 9, Dr. Susanta Kumar Sarkar, brought the birth register in respect of delivery of child of Purnima. In course of his examination in the learned trial court, he identified the relevant entries, which were marked as Ext.8. The detail of admission of Purnima was also marked as Ext.7 in his cross-examination. He denied that the suggestion that it was not be correctly written that Baidya Das was the husband of Purnima Das. 11. In the instant case, Kamala Sarkar would have been a very important witness, but she was not cited as witness by the prosecution. A careful appraisal of the factual aspect of the case makes it abundantly clear that Kamala Sarkar, landlady, was supporting the appellant for establishing the sexual relation with Purnima and, she, in fact, indulged them to continue the physical relation and allowed them to do it inside her house. A careful appraisal of the factual aspect of the case makes it abundantly clear that Kamala Sarkar, landlady, was supporting the appellant for establishing the sexual relation with Purnima and, she, in fact, indulged them to continue the physical relation and allowed them to do it inside her house. But, it is clear from the evidence of PWs 1, 2 and 3 that Kamala Sakar had taken the side of the appellant and threatened PWs 1, 2 and 3 with dire consequences in case of disclosure of the name of the appellant. Therefore, the prosecution did not venture to cite her as witness and now the question is whether the version of the prosecutrix can be accepted or not. According to Mr. Ali, such incidents have taken place in common kitchen. I do not find any substance in his submission. Purnima, a minor girl, had stated categorically as to how she was allured by the appellant and obliged to cooperate with sexual intercourse with the appellant on a promise of marry. That statement was corroborated subsequently by her parents and PW 4 as well as the statement under section 164 of the Code of Criminal Procedure, 1973. The learned court made no mistake in accepting her statements and recording conviction of the appellant. 12. It is the case where the appellant was well aware of the situation of the common kitchen and movement of all the tenants who use the common kitchen. He obviously had seen Purnima to enter into the kitchen, when no one was within the sight. He took that opportunity and committed rape with a promise to marry. Purnima was a minor and was helpless in such a condition as she thought that the appellant would marry her. She, therefore, also indulged herself in sexual intercourse for 8 to 10 times till her pregnancy was detected. She had a strong belief that the appellant would marry her, because he promised to marry her. She did not disclose the fact to anybody till her pregnancy was detected. But, it was too late and the matter became public as the appellant declined to marry her and, in fact, denied the entire episode. There is nothing wrong for the learned court to accept the testimony of the prosecutrix in such a situation. She did not disclose the fact to anybody till her pregnancy was detected. But, it was too late and the matter became public as the appellant declined to marry her and, in fact, denied the entire episode. There is nothing wrong for the learned court to accept the testimony of the prosecutrix in such a situation. In fact, in such a back-ground, the learned court is not required to seek for corroboration of the testimony of the prosecutrix even as a rule of caution or prudence. As PW 3 the prosecutrix reiterated what she stated under section 164 of the Code of Criminal Procedure, 1973. Her statement was supported by her father and mother, i.e. PW 1 and 2. PW 4, a cotenant, also knew about the incident. It is admitted that ultimately Purnima gave birth to a child and that made it abundantly clear what she stated in the learned court was absolutely true. There is no wrong on the part of the learned court to accept her statement. 13. There is nothing impossible in this world. It has been stated earlier that the appellant used to visit the house and was acquainted with the time of use of common kitchen by the other tenants. He knew that at that particular time no one would come. Therefore, he took opportunity and committed rape on the prosecutrix for the first-time in the common kitchen. It is not the case of the prosecution that subsequently, he committed rape on the prosecutrix about 8 to 10 times at the same place and in the same manner. The prosecutrix, while making statements under section 164 of the Code of Criminal Procedure, 1973, has made it very clear that the first incident took place in the common kitchen. Therefore, I find that the proposition of Mr.Ali cannot be accepted. The prosecution case has been discarded. find that the learned court has taken each and every facts into consideration, discussed all the points before it and upon application of judicial mind recorded conviction against the appellant. There is no reason to interfere into the judgement impugned. 14. Accordingly, the appeal fails. The judgement and order challenged herein is affirmed. 15. The prosecution case has been discarded. find that the learned court has taken each and every facts into consideration, discussed all the points before it and upon application of judicial mind recorded conviction against the appellant. There is no reason to interfere into the judgement impugned. 14. Accordingly, the appeal fails. The judgement and order challenged herein is affirmed. 15. A copy of the judgement together with LCR be sent to the learned trial court, so that it can give effect to the sentence without delay deducting the period, the appellant is in custody in connecting with this case.