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2020 DIGILAW 522 (CAL)

Sudeb Dolui v. State Of West Bengal

2020-06-23

MD.NIZAMUDDIN, SAHIDULLAH MUNSHI

body2020
JUDGMENT Sahidullah Munshi, J. - This appeal is against the judgment of conviction and order of sentence dated 30.03.2010 and 01.04.2010 respectively passed by the Assistant Sessions Judge, 2nd Court, Paschim Medinipur in Sessions Trial No. XI/January/2009, convicting the appellants under Section 376(2)(g) of Indian Penal Code. By the order of sentence learned trial Judge directed both the convicts to suffer rigorous imprisonment for 10 years for the offence under Section 376(2)(g) IPC. Following the written complaint filed by a hapless father on 12.03.2008 complaining of a commission of a heinous offence on his daughter aged 13 years. Ghatal Police registered an FIR which ultimately gave rise to the Sessions Trial case No. XI/January/2009. It was complained that on 13.02.2008 at about 20.00 hours complainant PW1's daughter was ravished by both the two accused persons which, ultimately, culminated into the charge under Section 376(2)(g) of Indian Penal Code. The accused persons were examined under Section 228 Cr.P.C. and the substance of the offence being read over and explained to them they pleaded not guilty and claimed to be tried. 2. Prosecution in order to prove its case examined as many as nineteen witnesses and at the end of the examination of the prosecution witnesses, accused persons were examined under Section 313 of the Code of Criminal Procedure (hereinafter to be called 'the Code'). Defence taking the plea of innocence did not lead any independent witness. However, record reveals that summons was issued to a police witness for examination by the defence which they, ultimately, declined. 3. Before the appeal was taken up for hearing it was brought to our notice that both the convicts had been released from correctional home on 06.04.2018 after having obtained benefit of UT set off period. The accused persons have since served out sentence, learned advocate for the appellant prayed for dismissal of the appeal. However, law does not permit so and we heard the appeal on merit. 4. Admittedly, PW1/complainant father of the victim girl filed the written complaint on 12.03.2008 complaining of the occurrence of the offence on 13.02.2008, almost after a month. The complaint was filed and FIR was registered. The defence counsel argued that the accused persons were framed in the criminal case having regard to their previous enmity belonging to two rival political parties. Admittedly, PW1/complainant father of the victim girl filed the written complaint on 12.03.2008 complaining of the occurrence of the offence on 13.02.2008, almost after a month. The complaint was filed and FIR was registered. The defence counsel argued that the accused persons were framed in the criminal case having regard to their previous enmity belonging to two rival political parties. It was sought to be argued that the complainant could not satisfactorily explain away delay of one month in lodging the written complaint. It was sought to be argued that although in the written complaint it was mentioned that both the accused persons committed rape one after the other but it has been pointed out that there is no sufficient evidence attributable to the commission of offence by the appellants and no evidence is forthcoming as to how the victim could identify these two appellants in the darkness of the night. Defence pointed out that medical examination report does not at all support the commission of the offence, far less to say that the same, at all, had been occasioned at the instance of the two appellants before this Court. According to the defence neither was there any direct evidence nor was there any circumstantial evidence from which it can be safely concluded that the prosecution has been able to prove its case beyond all reasonable doubts. It has been pointed out by the defence counsel that there are serious lacuna in the investigation commenced and conducted by the Investigating Officer and his evidence before the Court is too poor to rely on for pronouncing conviction against the appellants. It has been further pointed out that the age of the victim girl shown to be minor, has not been proved by any cogent evidence. It has been argued that headmaster who was examined in the box, is not a competent witness to prove the date of birth of the victim girl. Learned counsel for the defence submitted that the trial Court relied on evidence which are not admissible in law and on the basis thereof has passed order of sentence. Learned counsel for the defence further submitted that the witnesses for the prosecution did not corroborate the statement of the victim or the statement of the complainant PW1. Learned counsel for the defence submitted that the trial Court relied on evidence which are not admissible in law and on the basis thereof has passed order of sentence. Learned counsel for the defence further submitted that the witnesses for the prosecution did not corroborate the statement of the victim or the statement of the complainant PW1. In explaining the delay in lodging the written complaint with local police PW1 stated on cross-examination that he was threatened by Kajal Dalui, Sudeb, Aman and Dilip. The victim has also stated in her evidence that she was threatened by the accused persons with dire consequences that if she disclosed the commission of offence she would be killed. PW1 also in his explanation stated that he took the victim girl to a quack doctor (PW5) as she was ill and was running temperature for few days. This statement that she was running temperature and she was taken to a quack doctor (PW5) gets corroboration from the evidence of PW5. Therefore, according to prosecution delay caused firstly, as a rustic villager they were not prompt to take legal recourse and that the entire family was under apprehension of threat and further injury to the victim girl by the accused persons. These are the reasons which prevented them from taking appropriate action against the accused persons in time. Resulting delay thereby was caused in lodging the complaint before Ghatal Police. 5. In his examination-in-chief the Investigating Officer stated that he made a prayer before the learned ACJM for medical examination for the victim girl and accused Sudeb Dolui. So far accused persons are concerned they were found potent. Exbt.5 is the Medico Legal Certificate of the victim girl in which it was pointed out that her hymen was ruptured. Doctor (PW13) in his examination-in-chief explained the possible cause for the rupture of hymen. The doctor suggested that rupture of hymen of a minor girl may be caused if two persons raped her. In the instant case we find at least from the substantive evidence of the victim girl (PW2) and her statement recorded before the learned Magistrate under Section 164 Cr.P.C. (Exbt.2) inspires confidence of this Court to believe that the victim girl was ravished by both the accused persons. After rape was committed the Investigating Officer took further steps for examination of the victim girl whether she conceived or not. After rape was committed the Investigating Officer took further steps for examination of the victim girl whether she conceived or not. Pregnancy Test Report of the victim girl was marked 'X' for identification. There is no evidence to disbelieve that the victim conceived because of the alleged offence committed by the accused persons. The learned Court below has rightly come to the conclusion that Exbt.5 and Exbt. 10 Pregnancy Test Report of the victim corroborated each other and there is no room to rule out the possibility of commission of offence under Section 376(2)(g) IPC by two accused persons. After being released from the custody of the accused persons the victim girl first went to the house of her distant relative Aditya Singh and narrated the incident to him. Evidence of Aditya Singh (PW3) also corroborates the substantive evidence of PW2, victim girl (PW2) in her chief stated that on the day of occurrence at about 08.00 pm the accused persons caught hold her and they took her to the godown of Kajal Dolui. She has give a vivid description of the commission of the offence of rape on her in that evening. She stated, the accused persons pulled down, her 'kamij' and inner garments before committing rape. And after commission of rape while the accused persons taking liquor the victim girl managed to flee away therefrom and came to the house of PW3 and narrated the whole incident there. PW3 in his cross-examination stated that on the night of occurrence when the victim came to his house he noticed that she was naked from her waist to leg. This, we believe is sufficient corroboration of the victim's statement by the person whom the entire incident was narrated and even during crossexamination the said witness PW3 remained unshaken. 6. Victim girl was examined by the learned Judicial Magistrate and her statement was recorded under Section 164 Cr.P.C. and has been admitted into evidence marked Exbt.2. We do not find any contradiction between the statement recorded under Section 164 Cr.P.C. and substantive evidence of victim girl in Court. So far the delay part is concerned it was vehemently opposed on behalf of the defence that such delay is fatal and the order of sentence can fail on that score alone. We do not find any contradiction between the statement recorded under Section 164 Cr.P.C. and substantive evidence of victim girl in Court. So far the delay part is concerned it was vehemently opposed on behalf of the defence that such delay is fatal and the order of sentence can fail on that score alone. When this submission is made it is necessary to take into consideration as to whether the complainant PW1 while explaining the delay has falsified before the Court. In his evidence PW1 stated that he took his daughter to PW5 a quack doctor. PW5 in his evidence stated before the Court that victim girl was taken to him by her father for medical checkup and victim girl was suffering from fever having temperature about 100/102.50 F. and he provided medicine for such fever. PW2 the victim girl stated in her statement under Section 164 Cr.P.C. that due to assault by the accused persons on the day of occurrence she had been suffering for fever for two-three days and was treated by a quack doctor. Therefore, it is apparent that PW1, PW4 and PW2 corroborates each other. This being the fact there is no reason to disbelieve either the statement of PW1 or PW2 made in Court. 7. On behalf of the defence attempt was made to prove that the victim girl was not a minor and she was above 16 years of age. In this regard the evidence of headmaster and Exbt.4 the Admission Register maintained by the school authority of the victim girl is required to be taken into consideration. Admission Register was placed before the Court and the same was proved and marked as Exbt.4. The Headmaster who produced Admission Register was thoroughly crossexamined but could not procure anything in support of the defence. Therefore, the defence failed in its attempt to prove that the girl was above 16 years. In this regard the punishment which has been imposed upon the accused and the scope of Section 376 is required to be taken note of. Provisions of Section 376 is set out below: S.376. Therefore, the defence failed in its attempt to prove that the girl was above 16 years. In this regard the punishment which has been imposed upon the accused and the scope of Section 376 is required to be taken note of. Provisions of Section 376 is set out below: S.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 term 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: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,- (a) being a police officer commits rape- (i) within the limits of the police station to which he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) commits rape on a woman knowing her to be pregnant; or (f) commits rape on a woman when she is under twelve years of age; or (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.-Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.-"Women's or children's institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.- "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation." 8. Explanation 3.- "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation." 8. Even the Magistrate before whom the victim's statement was recorded under Section 164 Cr.P.C. was also examined in Court. Defence relied heavily on the evidence of Magistrate. Learned counsel for the appellant justified that victim did not speak the truth before the learned Magistrate but if the evidence of other witnesses PW1, PW2, PW3, PW5 and even the evidence of the doctors are taken into consideration it appears that PW19 (Magistrate) also corroborates the evidence of the vital witnesses in this case. It is the case made out by the defence while relying upon the evidence of PW19 (Magistrate) that the learned Magistrate stated in his cross-examination that "The V.G. did not tell me that Khukumoni went to her house at 08.00 pm." This statement of the victim girl before the learned Magistrate together with the evidence of PW7 (Khukumoni) herself does not establish that Khukumoni called the victim towards the place of occurrence (thatched house of Kajal Dolui) and the victim was caught hold by the accused persons. And, thereafter, committed rape on her as stated both by the victim (PW2) and the her mother (PW8) and the complainant (PW1). From the evidence of PW7 (Khukumoni) it does not appear that the defence had any occasion to ask a single question whether she had asked the victim to go to the place of occurrence for any reason. In the cross-examination of PW3 also it does not appear that any such question was asked as regards the role of Khukumoni on the day of occurrence and whether she had called the victim to the place of occurrence as alleged by PW1, PW2 and PW8. Although, PW8 in her deposition stated "Then at 8 pm I asked Sandhya Dolui about my daughter. She told me that my daughter was called by Khukumoni in order to go to the house of Madhu Dolui. Then I went to the house of Khukumoni to search my daughter and asked her about my daughter." PW2 stated in her deposition "As mother was engaged to work, she did not provide me any food. She told me that my daughter was called by Khukumoni in order to go to the house of Madhu Dolui. Then I went to the house of Khukumoni to search my daughter and asked her about my daughter." PW2 stated in her deposition "As mother was engaged to work, she did not provide me any food. Thereafter at about 8 p.m. Khukumoni, daughter of my aunt by village courtesy came to my house and told me to go to the house of Madhu Dolui. She stated me that she would give a necklace to the wife of Madhu Dolui. Thereafter I along with Khukumoni went to the house of Madhu Dolui. After giving that necklace we are returning. At the tme of return Khukumoni was in front of me and I was behind her. When we reached near a mud wall, then Khuku coughed. Accd Amar Digar and Sudeb Dolui concealed themselves behind that mud wall. At that time Amar Digar came out from behind the mud wall and came in front of me and coughed hold of my mouth by my muffler. Thereafter Amar and Sudeb took me to the kitchen of Kajal Dolui.", and while PW1 stated "...When Khukumoni coughed, then these two accd caught hold of my daughter and she was taken to the kitchen of Kajal Dolui. There was a scarf in the neck of my daughter. The accd. Tied her mouth with that scarf and assaulted my daughter then she fell down on the ground..." If the deposition of these witnesses are compared we do not find any contradiction in between them rather there is a corroboration to the extent that clearly indicates that what was recorded before the learned Magistrate about the presence of Khukumoni does not help the defence to prove that the accused persons are entitled to get any benefit of doubt for the prosecution lodged a false story. Learned trial Judge has considered all these aspects in detail and came to the conclusion that the accused persons are guilty of the offence complained of. Even the other witnesses although they are not very important but if their deposition before the Court are taken into consideration, those too support prosecution case. Learned trial Judge has considered all these aspects in detail and came to the conclusion that the accused persons are guilty of the offence complained of. Even the other witnesses although they are not very important but if their deposition before the Court are taken into consideration, those too support prosecution case. Learned Sessions Judge has clarified that evidence of PW1, PW2 and PW3 and the evidence of PW8 to PW12 corroborated the prosecution case and the same have been strengthened by the Medico Legal evidence as also the evidence of Dr. Subhasis Banerjee (PW17) and Dr. Haricharan Roy (PW13) and thus the medical evidence which proves that the accused persons were potent, the probability of committing the offence gets confirmation that the same has been committed by the accused persons while the doctor's evidence and the Pregnancy Test Report are taken into consideration. 9. In our considered view the evidence on record clearly establishes that both the accused persons are guilty of the offences complained of under Section 376(2)(g) of Indian Penal Code. We do not consider that the judgment of conviction and order of sentence warrants interference in any manner and we confirm the same. Therefore, the appeal fails and the same is dismissed. 10. All concerned are directed to act on a server copy of this judgment and order. 11. Criminal Section is directed to send down the records to the learned Court below together with a copy of the judgment forthwith to the concerned learned trial Court. 12. Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities. 13. I agree.