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2013 DIGILAW 343 (CAL)

Lila Das v. STATE OF WEST BENGAL

2013-06-17

TOUFIQUE UDDIN

body2013
Judgment :- Toufique Uddin, J. This appeal arose out of judgment and order of conviction dated 30.01.2009 and 02.02.2009 passed by the learned Additional Sessions Judge, Fast Track 1st Court, Kandi, Murshidabad, convicting the appellant under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay fine with default clause. In the background of this appeal, the fact in a nutshell is as follows:- One Lalmukhi Das, Wife of Kanan Das, Village – Punsi, P.S. – Salar, District –Murshidabad lodged FIR with the allegation that on 17.08.1999 at night she was sleeping at her residence along with her three children. On that day her husband was not present, as he was involved in work at Baidyabati. At night, about 09.30 to 10.00 p.m., Lila Das entered into her residence and raped her by force. Nobody was eyewitness except her elder son named Rajkumar aged about 7/8 years. The accused threatened to kill if the victim informed the matter to any other person or police. After investigation police submitted charge-sheet under Section 376 of the Indian Penal Code. The case was committed by the learned Magistrate to the Court of Sessions. Thereafter, the learned Trial Court on hearing of both sides framed charge under Section 376 of the Indian Penal Code against the present appellant. The contents of the charge were read over and explained to the accused person who pleaded not guilty and claimed to be tried. To contest this case, the prosecution examined as many as six witnesses while the accused examined one witness i.e. D.W.-1. The accused person was examined under Section 313 of the Code of Criminal Procedure. The defence case as appeared from the trend of cross-examination of the witnesses and the replies given by the accused person at the time of examination under Section 313 of the Code of Criminal Procedure and evidence of DW-1 is denial of offence with a plea of innocence. On conclusion of trial the learned Court below convicted the present appellant/convict by the impugned judgment. It has to be seen if the impugned judgment suffers from any infirmity and calls for any interference or not. Before I dwell upon the other factual aspects, Section 376 of the Indian Penal Code needs to be reproduced as under:- 376. On conclusion of trial the learned Court below convicted the present appellant/convict by the impugned judgment. It has to be seen if the impugned judgment suffers from any infirmity and calls for any interference or not. Before I dwell upon the other factual aspects, Section 376 of the Indian Penal Code needs to be reproduced as under:- 376. Punishment for rape.- (1) Whoever, except in the cases provided for by sub-section(2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a terms which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: ………………………………………………………………………………………………………………… ………….. The learned lawyer of the appellant argued inter alia that i) Delay of about seven days has not been properly explained. ii) Some of the vital witnesses were not examined under Section 161 of the Code of Criminal Procedure but rather they were examined first time in Court. iii) The victim lady had stated that she did not disclose the incident to anybody else before her giving deposition in the Court. iv) There was dispute between the families of the accused and the victim lady. Therefore, the present appellant has been falsely implicated. v) His last but not the least argument was, in the meantime, the accused has already served sentence for four years and four months. Therefore, he prayed that in case it is held that the accused has committed offence, the period of sentence already undergone may be treated as period of sentence and the appellant may be released accordingly. On the other hand, the learned lawyer of the State countered all the points raised by the learned lawyer of the appellant. His argument was that the FIR, the deposition and the petition of complaint conjointly would go to show that the delay was not for the period of seven days. I do find substance. I scrutinized the record on this fact. Further it was contended by the learned lawyer of the State that the victim is a rustic women. His argument was that the FIR, the deposition and the petition of complaint conjointly would go to show that the delay was not for the period of seven days. I do find substance. I scrutinized the record on this fact. Further it was contended by the learned lawyer of the State that the victim is a rustic women. So such type of offence upon her had impact and that contributed to delay for a negligible period of time. It is a fact. The learned lawyer of the State further argued that there is no hard and fast rule that if no witness has been examined by the police under Section 161 of the Code of Criminal Procedure, they will not be permitted to depose in Court and their evidence shall not be taken into account for adjudication. To appreciate this case, some relevant pieces of evidence are required to be taken into consideration here. Exhibit 3 is the FIR. It was stated therein that on 17.08.1999 around 09.30 to 10.00 p.m when the victim lady was in her bed along with her three children, the present appellant entered into her room in a drunken condition and forcibly committed rape upon her for a period of 5 to 7 minutes. At that time, her husband was out of the residence for work. Her elder son Rajkumar Das, aged about 7 years was only eyewitness. It was further stated that accused Lila Das has threatened them to kill in case of disclosure of the incident to anybody else. Keeping a link with the complaint, the PW-1, the de facto complainant deposed. She was examined on almost all the points. She stated out of fear at the time of incident, she could not do anything. After return of her husband he narrated the incident to him. Thereafter, they took shelter in the house of her ‘Mama Sasuri’ at village Rasara out of fear. She stated that the Doctor examined her at Kandi Hospital. She faced in the Court below, cross-examination successfully, yielding nothing to the defence side. It might be that she deposed before the Court for the first time but she further stated that she has narrated the incident to the Officer-in-Charge, Salar P.S. This is enough. If we take into account the decision as reported in (2003) 1 SCC 21 (Alamgir Vs. It might be that she deposed before the Court for the first time but she further stated that she has narrated the incident to the Officer-in-Charge, Salar P.S. This is enough. If we take into account the decision as reported in (2003) 1 SCC 21 (Alamgir Vs. State), wherein it was propounded that if the witness did not state material fact to the I.O., but state in oath at trial, his evidence in that aspect should not be rejected mainly on the ground if his evidence is otherwise trustworthy and acceptable. The argument of the learned lawyer of the defence is not exactly relevant here but still then for abundant precaution I do feel that if at all any witness has not been examined by the Investigating Officer at the time of examination under Section 161 of the Code of Criminal Procedure, the irregularity does not render his evidence to be either vulnerable or dismissable in view of the fact that the ingredients of the evidence are consistent, reliable and trustworthy. A feeble attempt was taken by the learned lawyer of the appellant that there was enmity between two families. What sort of enmity, was not elaborated by the learned lawyer. The suggestion was for the sake of suggestion only having no sound support. That apart false implication on the ground of enmity cuts both ways. Rather it appears that the victim and her husband as well stated in cross-examination that they did not caste their vote in favour of the father of the accused person who contested an election. This fact itself may goes against the appellant. Since the victim lady did not caste vote, so it is probable the accused may cherish grudge 04/81to teach her a good lesson. PW-2 is the husband of the victim lady. He stated that her wife narrated the incident to him after his return to home as he was out of the place at the relevant point of time. He corroborated PW-1. PW-3 learnt the incident from Lalmukhi Das that the appellant committed rape upon her. He was examined by the I.O. and he was the seizure list witness. It was argued by the learned defence lawyer that he was made accused in one case under Section 354 of the Indian Penal Code in the Court of ld. Judicial Magistrate, Kandi. So what to this Case? I find no explanation. He was examined by the I.O. and he was the seizure list witness. It was argued by the learned defence lawyer that he was made accused in one case under Section 354 of the Indian Penal Code in the Court of ld. Judicial Magistrate, Kandi. So what to this Case? I find no explanation. PW-4 is a very important witness. At the material point of time he was aged about 7 years. Whether he was able to give evidence in a sensible manner or not, has been decided before his giving deposition before the learned Trial Court. The Trial Court was satisfied that he was capable of giving normal evidence. Accordingly, he stated that “I saw Lila Das’s covered body on my mother and doing ‘Dhastadhosti’ “ He identified the accused. At night he saw the incident. This teenager has nothing to speak ill of the accused unless there is some substance. He danced to the tune of her mother that the accused has committed rape upon her – no such proof was forthcoming from the defence. The evidence are given in such a elegant manner that there leaves no room at all to doubt the genuineness of the incident or to disbelieve the child witness. PW-5 is a Medical Officer who examined the victim girl at hospital. His report is exhibit 2. He opined that whether rape was committed or not, is not clear because the victim was a mother of three children. Also it is a fact that there was no marks of violence on her private part or body as she was raped at night at 1:1 position. The victim lady failed to resist as she belonged to weaker section. The accused was full grown adult at the material point of time. He seems to be intoxicated. It is expected that the victim lady will be overpowered in such circumstances. For a married lady not necessarily in all occasions marks of injuries are available. That apart she is a mother of three children. It is known that medical evidence is a corroborative piece of evidence. If the victim lady appears to be a sterling witness, solely basing upon her evidence the order of conviction can be passed. Herein the evidence of the victim lady was trustworthy, dependent and consistent and also her evidence is successfully supported by her son. It is known that medical evidence is a corroborative piece of evidence. If the victim lady appears to be a sterling witness, solely basing upon her evidence the order of conviction can be passed. Herein the evidence of the victim lady was trustworthy, dependent and consistent and also her evidence is successfully supported by her son. The learned Court below ask the accused pin pointed questions at the time of examination under Section 313 of the Code of Criminal Procedure but those were simply denied. That apart persons residing around the place of occurrence have not been examined. It shall not be taken as a flaw in this case because of the fact that nobody can foresee when the incident of rape will take place. A careful scrutiny of the judgment of the Court below shows that the Trial Court has arrived at a correct decision. The findings of the learned Trial Court are affirmed. The alternative prayer of the learned lawyer of the appellant was that the appellant has already suffered four years and four months. So in case the court finds him guilty, the period of sentence already undergone may be treated as proper sentence. Regarding the quantum of sentence, the learned lawyer of the State left the matter to the discretion of the Court. The 313 examination shows that the appellant was around 40 years of age at the time of the incident. It appears that at the time of hearing of sentence, the appellant prayed for lesser quantum of punishment. The learned lawyer of the appellant submitted that that appellant is married and have children. So, though it is not on record, but the word of the learned lawyer being sacrosanct, I accept that the appellant is married and is having kiddies as well. Considering all these aspects I am of the opinion that the substantive period of sentence may be restricted to the period of sentence as already undergone to the extent of four years and four months. But the quantum of find should be increased from Rs.10,000/- to Rs.60,000/-, in default further rigorous imprisonment for one month. In case payment of fine is realized, an amount of Rs.50,000/-should go to the victim lady. Accordingly, the appeal stands dismissed with the following observations:- i) The period of sentence already undergone should be treated as period of sentence. But the quantum of find should be increased from Rs.10,000/- to Rs.60,000/-, in default further rigorous imprisonment for one month. In case payment of fine is realized, an amount of Rs.50,000/-should go to the victim lady. Accordingly, the appeal stands dismissed with the following observations:- i) The period of sentence already undergone should be treated as period of sentence. ii) The amount of fine is increased from Rs.10,000/- to Rs.60,000/-. iii) Out of the fine amount of Rs.60,000/-, an amount of Rs.50,000/- shall go to the victim lady. iv) The amount of fine positively be paid by the accused person within three months from the date of communication of this order, failing which the learned court below will be at liberty to take coercive measures according to the provisions of the Code of Criminal Procedure. Let a copy of this judgment and the lower court record be sent down to the learned court below immediately. Urgent Xerox Certified copy of this order be given to the parties, if applied for, upon compliance of necessary formalities.