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2015 DIGILAW 95 (CAL)

Gautam Chowdhury v. State of West Bengal

2015-02-04

SUBRATA TALUKDAR

body2015
JUDGMENT SUBRATA TALUKDAR, J. In this appeal the judgment and sentence of conviction dated 4th September, 2013 and 5th September, 2013 respectively passed by the Ld. First Additional Sessions Court, Nadia in Sessions Trial No. 1 (November) 2006 arising out of Sessions Case No. 23 (10 of 2006) under Sections 376/417 IPC is under challenge. The appellant is the accused and has suffered the impugned order of conviction. The short facts of the case, according to the complainant, is that the complainant/girl, one Chumki Dutta fell in love with the appellant who promised to marry her. On the 13th of Ashin 1412 BS the appellant reached the house of the complainant at around 10 p.m. when her parents were out of the house and, on the promise of marrying her committed rape upon the complainant. The complainant, on becoming pregnant as a result of the incident, on several occasions coaxed the appellant to marry her but he avoided his commitment on several pretexts. Therefore, the complainant was compelled to disclose the incident to her parents and neighbours. On the basis of the above noted facts the complainant lodged the F.I.R. on 6th March, 2006 at around 16.15 hours in respect of which Kaliganj P.S. Case No.5006 dated 26th March, 2006 under Sections 376/420 IPC was started. On completion of investigation the police submitted charge sheet under Sections 376/420 IPC vide charge-sheet No.86/2006 and the case was committed to sessions. The charge was framed against the sole accused-appellant under Sections 376/417 IPC. The appellant pleaded not guilty and claimed trial. On completion of trial the appellant was convicted under Sections 376/417 IPC and sentenced to suffer rigorous imprisonment for 7 years and pay fine of Rs.50, 000 (Fifty thousand) in default to suffer simple imprisonment for further one year. Challenging such conviction the appellant is now before this Court by filing the present appeal. P.W. no.1 the complainant has deposed that both her parents are engaged in the preparation of sweetmeats at different places, including several fairs. On the date of the incident her parents were away and the appellant called her at night. On the assurance of marrying her the appellant “committed nuisance” upon her by force. Complainant became pregnant and gave birth to a child, who was about 10 months old at the time of her deposition. On the date of the incident her parents were away and the appellant called her at night. On the assurance of marrying her the appellant “committed nuisance” upon her by force. Complainant became pregnant and gave birth to a child, who was about 10 months old at the time of her deposition. Narrating the details of the incident on the fateful night the complainant-PW1 has deposed that the appellant called her to the back portion of the house of one Narayan Chandra, a neighbour and the said area belonged to one Bhagirath, also a neighbour. When the complainant wanted to shout, the appellant assured her of his love for her and time and again promised to marry her on the pretext of loving her. The appellant also took her to several places including a Kali temple and the incident happened on the 13th of Ashin after her menstruation period ended on the 1st of Ashin. The complainant realising that she had become pregnant disclosed the entire episode to her parents. Thereafter the parents of the complainant approached the guardians of the appellant with a proposal to negotiate marriage with the appellant but, such proposal was not accepted. The appellant reneged on his promise to marry her time and again compelling the complainant to take refuge with the law. Pointing out the discrepancies in the deposition of the complainant Ms. Biswas, Ld. Counsel for the appellant submits that the complainant has deposed that the F.I.R. was prepared by another lady of her locality under the instruction of the complainant. Drawing the attention of this Court to the copy of the F.I.R. appearing in the paper-book, Ms. Biswas further submits that the name of the scribe of the F.I.R. is mentioned as one Suchit Saha, son of Late Sushil Saha. Therefore, according to Ld. Counsel, there is an obvious discrepancy with regard to the identity of the maker of the F.I.R. Ms. Biswas has further argued that in her deposition the complainant has given her age as 14 years whereas in the F.I.R. it has been recorded as 16 years. In her cross-examination the complainant has stated that she disclosed her age as 16 years and, therefore, such fact was written in the F.I.R. Ms. Biswas has further argued that in her deposition the complainant has given her age as 14 years whereas in the F.I.R. it has been recorded as 16 years. In her cross-examination the complainant has stated that she disclosed her age as 16 years and, therefore, such fact was written in the F.I.R. Ms. Biswas further draws the attention of this Court to the cross-examination of the complainant/PW1 wherein she claims to be acquainted with a person name Bijay, son of a neighbour. Ld. Counsel also draws the attention of this Court to the evidence of P.W. 5 the father of the complainant one, Babu Dutta naming a third person, Biswajit Halder, also a son of a neighbour. Ld. Counsel points out that the said Biswajit Halder was once arrested on the basis of a complaint and subsequently released from the police station. On the platform of the such deposition, Ms. Biswas submits that the complainant was associated with several men of the locality and, therefore, it was incumbent upon the Investigating Officer to either hold a blood test or a DNA test to determine the parentage of the child. Since such test was not admittedly done Ms. Biswas argues that the appellant is entitled to the benefit of doubt as it could not be conclusively proved that he was father of the child. Also taking this Court to the evidence of the scribe and P.W. 8, one Suchit Saha, Ld. Counsel submits that the scribe has admitted to writing the complaint on instruction from the father of the complainant, Babu Dutta/P.W. 5. According to Ld. Counsel, such statement is again a variation from the deposition of the complainant that another lady of her locality had prepared the FIR under her instruction. On the other hand, Ms. Biswas points out that the father of the complainant-P.W.5 has deposed that the lodging of the F.I.R. was done by him although he did not put his signature in the F.I.R. Ms. Biswas, on such premise advances the submission that the story of lodging of the F.I.R. suffers from serious loopholes and, therefore, could not be treated to be as the basis of serious charges under Sections 376/420 IPC against the appellant. The prosecution case, according to Ld. Biswas, on such premise advances the submission that the story of lodging of the F.I.R. suffers from serious loopholes and, therefore, could not be treated to be as the basis of serious charges under Sections 376/420 IPC against the appellant. The prosecution case, according to Ld. Counsel, is further weakened by the fact that the complainant was known to be associated with several men of the locality and, no DNA test having been held with regard to parentage of the child, the appellant is entitled to be extended the benefit of doubt. Again referring to the deposition of P.W.1, Ms. Biswas submits that the complainant-P.W.1 has stated that rape was committed upon her on three occasions starting on the fateful date, i.e. 13th of Ashin 1412 BS and thereafter on two other days, 15th and 16th of Ashin 1412 BS. The complainant–P.W.1 also testified to a love affair between her and the appellant. In her statement under Section 164 Cr. P.C. the complainant has stated before the Ld. Magistrate that on the assurance of marriage she was raped by the appellant whereas, in her deposition there is evidence of repeated cohabitation by the parties which, according to Ld. Counsel, belie the allegation that the complainant-P.W.1 was forcibly assaulted. From the evidence of P.W. 11 Ms. Biswas points out that there was an admitted dispute between the parties with regard to tying of cows by the mother of the appellant and, it is also the case of the appellant before this Court that the filing of the complaint was a sequel to such dispute. From the deposition of P.W.12 – wife of a neighbour, Ld. Counsel points out that both the complainant and the appellant were found to be together in the village. Taking this Court to the deposition of the Investigation Officer P.W.14 Ms. Biswas submits that there is obvious lacuna in the investigation which can be inferred from the fact that no enquiry was made by P.W.14 for the delay of nearly 7 months in lodging the FIR. Similarly the charge-sheet suffers from inherent improbability on the ground that neither blood test or DNA test was performed. P.W. 14 failed to make the scribe a witness in the charge sheet. Ld. Similarly the charge-sheet suffers from inherent improbability on the ground that neither blood test or DNA test was performed. P.W. 14 failed to make the scribe a witness in the charge sheet. Ld. counsel also submits that DW 1 – the Block Sanitary Inspector, Kaliganj has admitted in his deposition that the birth register of the year 1993, that is the year of the birth of the complainant, could not be procured and brought as the same was washed away by the flood of 2000. Therefore, the variation in the purported age of the complainant stood unresolved and, as would be evident from the records the complainant has been variously described to be between 14 and 16/2 years of age at the time of the incident. On the strength to her above noted submission Ld. Counsel presses for an order of acquittal in favour of the appellant. Per Contra Shri Subir Banerjee, Ld. Additional Public Prosecutor submits that even assuming but not admitting the discrepancies sought to be argued by Ms. Biswas regarding the identity of the maker of the FIR, the complainant–P.W.1 is not an illiterate. The issue of the importance of the scribe to be examined would arise only if the complainant-P.W.1 was illiterate. Shri Banerjee further points to the fact that the F.I.R. was written in Bengali and the complainant-P.W.1 corroborated the contents of the F.I.R. in her deposition. Therefore, Ld. Counsel argues that the question of the complainant-P.W.1 failing to understand or convey the true purport and intent of the F.I.R. cannot arise. On the point of the failure on the part of the Investigating Officer to conduct the DNA test, Shri Banerjee contends that a DNA test materially pertains to cases on maintenance. He draws the attention of this Court to the relevant part of the deposition of the complainant-P.W.1 to the effect that she did not hesitate and was unequivocal in her demand for a DNA test. Such stand reflects the confidence of the complainant-P.W.1 to the guilt of the appellant – accused in the crime committed. Ld. Counsel for the State makes the further point that the periodic nature of cohabitation between the parties in the month of Ashwin 1412 BS as reflected in the deposition of the complainant-P.W.1 would be a material consideration if the complainant-P.W.1-victim girl was major at the time of the incident. Ld. Counsel for the State makes the further point that the periodic nature of cohabitation between the parties in the month of Ashwin 1412 BS as reflected in the deposition of the complainant-P.W.1 would be a material consideration if the complainant-P.W.1-victim girl was major at the time of the incident. Since it does not stand disproved that the complaintant-P.W.1 was minor at the time of the incident and the promise of marriage was given by the appellant at the stage of the first cohabitation, as rightly held by the Ld. Sessions Court, the sixth proviso to Section 375 IPC shall apply. On the point of the age of the complainant-P.W.1 Shri Banerjee draws the attention of this Court to the evidence of the doctor-P.W.3 to conduct the ossification test and, on the basis of such test, the complainant was found to be around 16/2 years of age. The finding on age as evidenced from the deposition of P.W.3 corroborates the age recorded in the FIR at column 6 of the complainant to be 16 years. Although DW 1 could not produce the original birth records of the complainant for reasons beyond his control, as per the evidence of P.W 13, the Teacher-in-Charge of Satya Charan Pal Balika Vidhyapith, Kaliganj from the Admission Register produced in Court the date of birth of the complainant is entered as 20th December, 1993. The relevant Serial 97 along with Xerox copy of the Admission Register has been marked Exbt.5. Therefore, according to Ld. Counsel, the cumulative evidence on record points to the admitted fact that at the time of the incident on 13th of Ashin 1412 BS the complainant-victim girl was a minor. Shri Banerjee also rebuts the argument of Ms. Biswas on the point that the complainant-victim girl (VG) could not name her school correctly. Ld. Counsel points out that with the evidence of P.W. 13 such purported anomaly stood removed and, in any event schools are generally identified with the names of the village in which they are situated. He reminds the Court that there is no cross examination of the complainant-VG on the issue of the identity of the school. It is the further argument of Ld. He reminds the Court that there is no cross examination of the complainant-VG on the issue of the identity of the school. It is the further argument of Ld. Counsel for the State that assuming but not admitting that from the DNA test it was found that the appellant was the father of the child, the offence of rape will still remain since on the date of the incident the complainant-VG was a minor. He also defends the issue of filing of F.I.R. after the lapse of nearly 7 months on the ground that it is on record that after the incident the complainant-VG and her parents were pre-occupied with persuading the appellant to marry her. Having heard the parties and considering the materials on record this Court is sufficiently persuaded by the following chain of facts:- (a) That the complainant-VG has given a clear stream of evidence with regard to the role of the appellant in the crime. The complainant-VG has not been shaken from her evidence in the cross-examination. (b) From the discussion elucidated herein above in this judgment this Court finds that on the date of the incident the complainant-VG was admittedly minor. In such view of the matter cohabitation with her by the appellant does not attract the element of consent. Therefore, this Court is satisfied that the application of the 6th proviso to Section 375 IPC was rightly done by the Ld. Sessions Court. The 6th Proviso for Section 375 IPC reads as follows:- “375. In such view of the matter cohabitation with her by the appellant does not attract the element of consent. Therefore, this Court is satisfied that the application of the 6th proviso to Section 375 IPC was rightly done by the Ld. Sessions Court. The 6th Proviso for Section 375 IPC reads as follows:- “375. Rape.-A man is said to commit rape if he:- (a) penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus or a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body or such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:- First.- Against her will. Secondly. - Without her consent. Thirdly.- With her consent when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under eighteen years of age. (emphasis supplied) Seventhly.- When she is unable to communicate consent.” (c) This Court is also in unison with the argument advanced by Shri Banerjee that the DNA test shall be more relevant for establishing paternity in cases pertaining to maintenance. Sixthly.- With or without her consent, when she is under eighteen years of age. (emphasis supplied) Seventhly.- When she is unable to communicate consent.” (c) This Court is also in unison with the argument advanced by Shri Banerjee that the DNA test shall be more relevant for establishing paternity in cases pertaining to maintenance. In the facts of the present case by expressing her willingness in Court to undergo the DNA test for her child read with her cogent evidence with regard to the details of the incident on the fateful night, leaves little iota of doubt with regard to the complicity of the accused. (d) With further regard to the abovenoted point of DNA test this Court cannot agree with the submission of the Ld. Counsel for the appellant that such test was warranted on the ground that there was association by the complainant with other men of the locality. From the four corners of the evidence on record and also from the statement under Section 164 Cr. P.C. given by the complainant—VG, this Court finds that the complainant-VG was consistent in her stand with regard to the wrongful act perpetrated by the appellant upon her. Such common strand of culpability of the appellant runs through the entire evidence touching the essential points connected to the nature of the incident, the age of the victim and the assurance of marriage. The weight of the evidence on record leads to the obvious inference of the guilt of the appellant-accused. The oral testimony of the victim which is found to be cogent, reliable, convincing and trustworthy must be given credence by the Court as held by the Hon’ble Apex Court in B.C. Deva vs. State of Karnataka reported in 2008 (2) SCC (Cri.) 253. For the foregoing reasons the appeal fails. CRA 757 of 2013 stands dismissed. There will be, however, no order as to costs.