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2012 DIGILAW 865 (CAL)

Ayub Ansari v. STATE OF WEST BENGAL

2012-09-14

RAGHUNATH BHATTACHARYA

body2012
Judgment Raghunath Bhattacharya, J. 1. This appeal is directed against the order of conviction passed by Sri D. Pal, Additional Sessions Judge, Fast Track, 4th Court, Malda in Sessions Case No. 157 of 2005 thereby furnishing the accused Ayub Ansari under Section 376 I.P.C. and sentencing to suffer R.I. for seven years and to pay fine of Rs. 3,000/-I.D. to S.I for six months. 2. Shortly put the petitioner’s case is that in the evening of 09.04.2004 when Munni Khatun, daughter of the defacto complainant aged about 15 years was in the house. Accused Ayub Ansari came there and informed Munni that her father was calling. Accused then took her to a ‘Shashan’ near Dakbungalow and the point of dragger committed rape upon her. The defacto complainant, father of Munni made a search for her and at about 11 P.M. in the night on reaching this spot he found that his daughter is lying in the verandah of the temple of the ‘shashan’ and was feeling ill. Munni narrated everything to his father and thereafter a petition of complaint was lodged to the respective P.S. 3. The defence case as it appears from the trend of the cross-examination of the prosecution witnesses, the evidence of the defence witnesses and the answer given by the accused person to their respective examination under Section 313 Cr.P.C. is that of absolute innocence. On the basis of available documents coupled with the submisson of both side a charge under Section 376 was framed against the accused Ayub Ansari to which pleads not guilty and claims to be tried. 4. Now only point for consideration is whether the order passed by the learned Court below is sustainable in the eye of law or not. Now from the side of the prosecution as many as 13 witnesses were examined and from the side of the defence only one witness was examined. Out of thirteen witnesses examined from the side of the prosecution P.W. 1 is the defacto complainant and father of Munni Khatun. P.W. 2 is the victim herself, P.W. 3 Md. Charu Ansari is a local witness, P.W. 4 Matiur Rahaman, is also a local witness, P.W. 5 Zahed Ansari has been declared hostile and remain unshaken during the course of the cross-examination and his submission has not at all help the prosecution case in any way. P.W. 2 is the victim herself, P.W. 3 Md. Charu Ansari is a local witness, P.W. 4 Matiur Rahaman, is also a local witness, P.W. 5 Zahed Ansari has been declared hostile and remain unshaken during the course of the cross-examination and his submission has not at all help the prosecution case in any way. P.W. 6 Ashutosh Dutta, P.W. 7 Gopal Sarkar, P.W. 8 Subal Chandra Das, P.W. 9 Benoy Chandra Karmakar are all formal witnesses and other seizure witnesses were took the victim girl to the doctor for medical examination. P.W. 10 Dr. Satya Narayan Sharma examined Munni Khatun and according to him Munni gave the history of sexual assault by Ayub Ansari on 09.04.2004. During the course of the cross examination Dr. Sharma admitted that in his report the allegation of sexual assault is written but the term rape was not written . But in my opinion it hardly any matter of sexual assault and the paper are more or less for the same meaning. P.W. 11 Md. Nabi Nawaz was posted at Ratua P.S. as S.I. of Police. He filled up the formal F.I.R. and took up the investigation in this case. And on being transferred he handed over the C.D. to P.W. 13 Bikash Rai. He has completed investigation and submitted charge sheet against the accused person under Section 376 I.P.C. P.W. 12 Sureteswar Mondal is the member of W.B.S.C. (Judl) and recorded the statement of the victim girl under Section 164 Cr.P.C. In 164 statement the victim stated that at the time of incident she is 16 years old and she was raped by the accused Ayub Ansari on the point of dragger. In my opinion the statement made by the accused is more or less voluntary. So far the D.W. is concerned one Gedan Choudhury contended that there was a Kali Mandir near the ‘shashan’ and every evening and morning godess kali worshipped for one hour in the morning as well as in the evening. By this fact as stated by D.W. 1 will not help the defence case in any way. Admittedly from the evidence of Dr. Sharma coupled with the victim girl statement under Section 164 Cr.P.C. recorded by P.W. 12 Sureteswar Mondal it was prima facie proved that victim girl was raped by Ayub Ansari and she was minor and not consenting . Admittedly from the evidence of Dr. Sharma coupled with the victim girl statement under Section 164 Cr.P.C. recorded by P.W. 12 Sureteswar Mondal it was prima facie proved that victim girl was raped by Ayub Ansari and she was minor and not consenting . P.W. 1 happens to be the father of the victim girl. According to her victim girl was taken to the ‘shashan’ by the accused on false pretext and committed rape upon her. Though P.W. 1, father of the victim girl cross-examined at length yet he remained unshakened to his point and according to him accused committed rape upon the victim girl. P.W. 2 is the most vital witness in a case of sexual assault. According to P.W. 2 Munni Khatun, the victim accused took her to the verandah of kali mandir near ‘shashan’ and forcefully committed rape upon her against her will. Victim girl reported the matter to the father and he admittedly lodged First Information Report to the local P.S. 5. 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 to exculpate the real offender; the evidence of sex offence is entitled to great weight, absence of corroboration notwithstanding (A,I.R. 1983 S.C. 753; 1983 Cr. L.J. 1096). The evidence in all such cases is that of the victim herself. Substantial corroboration of prosecutrix’s version cannot be insisted upon in all cases. The court must bear in mind human psychology and behaviourial probability when assessing the testimonial potency of the victim’s version. The inherent bashfulness, the innocent naivete and feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbalize the hypothesis of false implication. Corroboration is a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law but a guidance of prudence under given circumstances. No woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her. (1980 Cr.L.J. 926 (S.C.) 1980 Cr.L.J. 1344 (S.C.) Materials supplied for us. 6. Corroboration is a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law but a guidance of prudence under given circumstances. No woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her. (1980 Cr.L.J. 926 (S.C.) 1980 Cr.L.J. 1344 (S.C.) Materials supplied for us. 6. From the evidence on record and after perusing the evidence particularly that of P.W. 1 and P.W. 2 the statement of the victim girl under Section 164 Cr.P.C. and the evidence of the doctor there is no such infirmity which may render the testimony of this witnesses doubtful or untrustworthy and finally just after incident the father of the victim girl promptly lodged F.I.R. and all of them stated that accused has committed the offence. So, I do not find any reason to allow the appeal. I found that all the principal prosecution witnesses to be dependable despite minor contradictions in their evidence and even some sort of exaggeration here and there. One of the main defence argument seems to be that no public witness is their to vouchsafe the prosecution story but the P.W.s have explained the situation and which is duly corroborated by the witnesses. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if there is true in the main. If there is ring of truth in the main, the case should not be rejected only on the ground that some discrepancies in the ocular version of the prosecution witnesses. 7. Considering all probabilities and in view of aforesaid discussion I do not find any reason whatsoever to allow the appeal. So, the appeal stands dismissed. 8. After the above order was passed the appeal was dismissed. On 11.09.2012 the learned Counsel for the State produced the memo No. 5417/RB dated 10.09.2012 addressed to P.P., High Court at Calcutta from the office of Berhampore Correctional Home and from the report it is crystal clear that the present convict Ayub Ansari was sentenced to suffer R.I. for seven years and to pay fine of Rs. 3,000/-in default of on payment of fine to suffer S.I. for six months. The appellant already served the sentences and released from the correctional home on 05.12.2011. 3,000/-in default of on payment of fine to suffer S.I. for six months. The appellant already served the sentences and released from the correctional home on 05.12.2011. This is for the information not only for the learned Counsel for the appellant but also for the lower Court. Let the memo number kept to the record. 9. Let copy of this judgement along with Lower Court Record be sent down to the Court below at once.