Calcutta High Court (Appellete Side)
Harisadhan Singha vs The State Of West Bengal on 17 March, 2015
Author: Indira Banerjee
Bench: Indira Banerjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Indira Banerjee
And
The Hon'ble Justice Sahidullah Munshi
C.R.A. No. 393 of 2007
Harisadhan Singha
... Appellant/Accused
-Versus-
The State of West Bengal
... Respondent/Opposite Party
Mr. Susil Kumar Sikdar,
Mrs. Rinku Pachhal
... for the appellant
Mr. Paban Gupta,
... for the State
Heard on : 13.08.2014, 03.11.2014, 26.11.2014, 03.12.2014, 17.12.2014.
Judgment on : March 17, 2015.
Sahidullah Munshi, J.:
This appeal arises from the judgment and order dated 25th May, 2007, passed by the learned Assistant Sessions Judge, Bishnupur, District Bankura in S.C. No.13(3) 05/S.T. No.1(3) 05, convicting the accused/appellant under Sections 376 and 498A of the Indian Penal Code and the order dated 28th May, 2007 sentencing the accused/appellant to suffer rigorous imprisonment for nine years and to pay a fine of `20,000/- (Twenty Thousand) only, in default, to suffer further rigorous imprisonment for six months under Section 376 of the Indian Penal Code and also to suffer rigorous imprisonment for two years and to pay a fine of `.2,000/- (Two Thousand) only, in default, to suffer further rigorous imprisonment for two months under Section 498A of the Indian Penal Code.
Joypur P.S. Case No.19 dated 17th May, 2003 under Section 376/498A of the Indian Penal Code was initiated against the accused/appellant herein on the basis of First Information Report lodged by one Smt. Anima Singha (PW1) who is the daughter-in-law of the accused/appellant.
In a nutshell, the Prosecution case was as follows:-
The de facto complainant, namely, Smt. Anima Singha was married to accused Uday Singha on 15th Falgoon, 1408 B.S. in accordance with Hindu rites. The said Uday Singha is the son of accused/appellant, Harisadhan Singha. In the said marriage between the de facto complainant Anima Singha and the accused Uday Singha a cash of `21,000/- (Twenty One Thousand) only, a gold ring and other articles were given by the father of the de facto complainant. After the said marriage the de facto complainant went to her matrimonial home and started residing there as wife of accused Uday Singha. After about two months from the date of the said marriage of the de facto complainant, the accused father-in-law, namely, Harisadhan Singha committed rape upon the prosecutrix forcefully against her will. The prosecutrix told about such incident of rape to her husband, husband's elder brother (Bhasur) and mother-in-law but none of them believed her such statements. Some days thereafter, the father of the prosecutrix came to her matrimonial home on 1st Bhadra, 1409 B.S. On that day, the prosecutrix left her matrimonial home and came to her paternal house. Thereafter, the matter was reported to the local Gelia Gram Panchayat and it was settled there that in-laws of the prosecutrix would give her a sum of th `85,000/- (Eighty Five Thousand) only, within 15 Baisakh, 1410 B.S. That meeting at Gelia Gram Panchayat was attended by both sides on 8th Kartick, 1409 B.S. Considering her own future, the prosecutrix came to her in-laws' house with her Bhasur, namely, accused Dhananjoy Singha on 13th Falgoon, 1409 B.S. Thereafter, on 18th Baisakh, 1410 B.S. accused father-in-law called the prosecutrix and again committed rape upon her forcibly against her will. At that time the husband of the prosecutrix was not at home. The matter was again reported to the accused husband and Bhasur of the prosecutrix but they did not believe such allegation made by the prosecutrix. On that date, the prosecutrix tried to commit suicide by taking gammoxin, an insecticide. Ultimately, she became sick and the accused father-in-law and others took her to Joypur hospital. She was admitted therein and was later shifted to Bishnupur hospital. After being treated at the said hospital as an injured patient, the prosecutrix was, ultimately, released from the hospital on 29th Baisakh, 1410 B.S. Thereafter, the prosecutrix came to her paternal house with her mother. Ultimately, the matter was reported to local police.
On receipt of written complaint, the Investigating Officer took up the investigation and on completion thereof, submitted charge-sheet against the accused persons for offences punishable under Section 498A/376/34 of the Indian Penal Code. Learned Additional Judicial Magistrate, Bishnupur took cognizance of the said offences and committed the case to the Court of the learned Sessions Judge, Bankura under Section 209 of the Code of Criminal Procedure. Thereafter, learned Sessions Judge, Bankura was pleased to transfer the case to the Court of the learned Sessions Judge, Bishnupur, district Bankura.
On completion of the investigation a charge-sheet bearing No.53 dated 26.11.2003 under Section 498A/34/376, IPC was submitted against the accused/appellant and his sons Dhananjoy Singha and Uday Singha.
Formal charges for the offences punishable under Section 376/498A/34 Indian Penal Code were framed against the accused persons and those charges were read over and explained to the accused persons to which they pleaded not guilty and claimed for trial and trial commenced.
The Prosecution, in support of its case, examined eight witnesses, while the Defence examined none.
By the impugned judgment and order the learned Court below found the appellant guilty of the charges under Sections 376 and 498A of Indian Penal Code, convicted him thereunder and sentenced the appellant to suffer rigorous imprisonment for nine years and to pay a fine of `20,000/- (Twenty Thousand) only, in default, to suffer rigorous imprisonment for six months under Section 376 Indian Penal Code and also to suffer rigorous imprisonment for two years and to pay a fine of `2,000/- (Two Thousand) only, in default, to suffer further rigorous imprisonment for two months under Section 498A of the Indian Penal Code. Both the sentences were directed to run concurrently. The appellant's aforesaid two sons, namely, Dhananjoy Singha and Uday Singha, are also co- accused of the appellant, were, however, found not guilty of the aforesaid two charges and they were acquitted by the learned Court below.
The appellant was on bail during the trial but he has been taken in custody after the order of conviction was passed.
The aforesaid judgment and order has been assailed by the accused/appellant, inter alia, on the ground that -
a) The learned Trial Judge has failed to consider the various discrepancies and/or inconsistencies appearing in the evidence of the Prosecution witnesses.
b) The improbabilities and absurdities were inherent in the evidence of the prosecutrix (PW1) which vitiated the judgment and orders under appeal and the learned Trial Court has failed to consider the same.
c) The complaint was filed belatedly and the delay remained unexplained and further that the learned Trial Court has acted illegally in seeking corroboration of the evidence of PW1 from that of PWs 3 and 4 who were her father and mother respectively.
d) The circumstances under which rape has been allegedly perpetrated upon PW1 by the accused/appellant as has been stated by PW1 and allegedly corroborated by PWs 3 and 4 were very hard to be believed.
e) The evidence of PW2, Doctor, who examined PW1 should have been disbelieved outrightly by the learned Court below.
f) The learned Trial Court has failed to consider that there had been serious lapses on the part of the Investigating Officer (PW8) in the matter of investigation of the case as it appears from his evidence.
g) The learned Trial Court should have considered that the evidence of PWs 2 and 6, Doctors who examined PW1 and the appellant separately to the effect that nothing was found on their examination so as to connect the accused/appellant with the offence of rape.
h) The ingredients of the charges under Sections 376 and 498A Indian Penal Code have not at all been proved to the hilt of the evidence on record and that finding of the learned Trial Court that the commission of rape by the appellant upon PW1 would not amount to cruelty within the ambit of explanation (a) to Section 498A, Indian Penal Code and is not sufficient to find the appellant guilty of the charge under Section 498A, IPC.
We have gone through the evidence on record and the judgment and order impugned in this appeal.
In passing the order of conviction the learned Trial Court has discussed almost each and every ground of impunity raised by the accused/appellant in this appeal.
After discussing the evidence of PW1 and those of the other corroborating witnesses the learned Trial Court has held that the Prosecution has been able to prove that the accused/appellant, father-in-law of the de facto complainant, who called her on the pretext of putting oil on his legs. Record reveals that the de facto complainant stood very firm for her case during her testimony before the Court below at the time of lodging of FIR and also before the learned Magistrate who recorded her statements judicially under Section 164 of the Code of Criminal Procedure Code. The alleged incident of rape occurred on 18th Baisakh, 1410 B.S. Learned Judge has held that the Prosecution has been able to prove its case so far the incident of rape upon the Prosecutrix on 18th Baisakh, 1410 B.S. The prosecutrix stated during her examination-in-chief -
"On 18th Baisakh, 1410 B.S. at noon at 1.30 p.m. my father-in-law called me for the purpose of raping me and while I denied to go to him, my father-in- law assaulted me at my back by a piece of wood and I also got injury in my left eye. After that he again rape me without my consent by tearing my clothes and also putting off my clothes."
The learned Judge has discussed the evidence of PW7, Sri Sanjib Dey, the Judicial Magistrate, who recorded statements of the prosecutrix judicially under Section 164 of the Code of Criminal Procedure. It has been held that the voluntary statements of the prosecutrix recorded by PW7 have been proved by Exhibit-2/1 and if the oral testimony of the prosecutrix and her statements before the learned Magistrate (PW7) is correlated, then it will be found that the prosecutrix stood for her case at both the occasions so far it concerned the incident which occurred on 18th Baisakh, 1410 B.S. From cross-examination of PW7, Sri Sanjib Dey, it appears that he administered oath to the victim lady before recording her statement under Section 164, Code of Criminal Procedure and that being so, the statements of the victim lady recorded judicially by the learned Magistrate has got enough evidentiary value. Such evidence of the prosecutrix has been further supplemented by her statement made on oath during her cross-examination wherein she has stated- "The offence of alleged rape was lastly committed on 18th Baisakh, 1410 B.S." Learned Court below while discussing the evidence of PW2 held that Dr. Prodyut Kumar Pan (PW2) corroborated this part of the prosecution case as he told in the examination-in- chief that - "Last date of occurrence is 18th Baisakh, 1410 B.S." It has been held by the learned Court below that besides such evidence on record, the father (PW3) and mother (PW4) of the victim lady also corroborated her (PW1) with regard to the incident of rape, which occurred on 18th Baisakh, 1410, B.S. The mother clearly said "my daughter told me the alleged offence committed by her father-in-law upon her."
Having regard to such materials on record and considering the depositions of the witnesses the learned Trial Court has rightly held that the Prosecution has been able to prove that the accused father-in-law, Harisadhan Singha committed rape upon the prosecutrix on 18th Baisakh, 1410 B.S. Record reveals that PW2, Dr. Prodyut Kumar Pan, the Medical Officer, who medically examined the prosecutrix on 18th May, 2003 at Sub-Divisional Hospital, Bishnupur, has proved his report marked Exhibit-3. During his cross- examination, PW2, Dr. Prodyut Kumar Pan, stated - "I examined Anima Singha on 18th May, 2003." It has been sought to be argued on behalf of the Defence that PW2 did not find any mark of violence on the body of the victim lady and, therefore, alleged rape should not be believed. The learned Court below has taken note of from the evidence on record that the victim lady was medically examined after a considerable period of occurrence of rape upon her. It has, therefore, reasonably been concluded that it was not uncommon for the Doctor to find any mark of violence upon her and not to speak of the fact that it is not very uncommon to find any mark of injury on the private part of a married woman, who is otherwise sexually habituated. The learned Court below has taken note of a decision reported in 2004 Criminal Law Reporter (SC) 253 which quoted some observations made in the case of State of Rajasthan - Vs. - N.K. reported in (2005) SCC 30. The said observations are
-
"The absence of visible marks of injuries on the person of the Prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she offered no resistance at the time of commission of rape. Absence of injuries on the person of the Prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the Prosecutrix."
On the basis of the above, the learned Court below held that absence of mark of violence on the prosecutrix will not affect the Prosecution case adversely.
PW6, Dr. Tarit Kanti Pal, is the Medical Officer who examined the accused person, Harisadhan Singha at Sub-Divisional Hospital, Bishnupur on 17th November, 2003 and has proved the report prepared by him marked Exhibit-6. From the evidence of PW6 it appears that the accused Harisadhan Singha was found to be sexually potent. The Defence sought to doubt the result of the medical examination conducted by PW6 upon the accused person and it has been agitated that some medicines or foods were given to the said accused person by the Investigating Officer before conducting such examination. But the evidence on record does not support such doubt raised on the part of the Defence. The evidence of PW6, Dr. Tarit Kanti Pal, is, therefore, free from all doubts and suspicion.
PW8, Sub-Inspector Tulsi Das Bhattacharjee, is the Investigating Officer of this case and during his examination on oath he has proved the formal FIR. He has also proved the rough sketch map of the place of occurrence along with index prepared by him marked Exhibit-7. From the examination and cross- examination of PW8 the Defence could not bring out any believable case so as to doubt the evidence of the Investigating Officer. From the evidence on record it appears that Prosecution has been able to prove its case beyond reasonable doubts that accused Harisadhan Singha has committed rape upon the prosecutrix against her will and such act of the accused is punishable under Section 376 of the Indian Penal Code. So far the delay in lodging the complaint it is on record that the last incident of rape occurred on 18th Baisakh, 1410 B.S. From the evidence of PW1 it appears that on that very date she tried to commit suicide by taking poison and was then admitted to Joypur Block Primary Health Centre (BPHC). In her cross-examination PW1 has stated - "For 3/4 days I was at Jaipur BPHC. I was 5/6 days at Bishnupur S.D. Hospital." From such deposition in cross-examination of PW1 it appears that she remained at hospital for about 10 days. The prosecutrix, in her cross-examination, also stated that she could not lodge any complaint on the date of her release from the hospital as she was weak and ill at that time. Both in her examination-in- chief and in the cross-examination as well she has stated that she lodged the written complaint about four days after her release from Bishnupur Hospital. Therefore, it cannot be said that the Prosecution has failed to explain the delay in lodging the FIR in this case.
The other limb of the punishment is a conviction under Section 498A/34, Indian Penal Code against the accused persons. Accused husband Uday Singha and accused Dhananjoy Singha have been acquitted by the learned Court below and we refrain ourselves from discussing anything about their offence. In the present case, explanation (a) of Section 498A is applicable which reads as follows:-
"498A. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.- For the purpose of this section, "cruelty"
means -
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or"
During examination-in-chief, the prosecutrix has stated that on 18th Baisakh, 1410 B.S. at noon, accused father-in-law committed rape upon her. She continued to say -
"Thereafter, I thought that no purpose to be alive under these circumstances and on the same day I took poison with an aim to commit suicide. Thereafter, I was admitted to Jaipur BPHC and therefrom I was transferred to Bishnupur Hospital."
This part of the evidence of the prosecutrix has been corroborated by her statement during her cross-examination wherein she has stated - "At noon of 18th Baisakh, 1410 B.S. I took poison."
PW3, Sri Nepal Chandra Dey, father of the prosecutrix has also stated in his examination-in-chief - "In the night of 18th Baisakh, 1410 B.S. Dhananjoy Singha informed me that my daughter fell ill and had been admitted in Joypur BPHC. Thereafter, I came to Joypur BPHC by cycle and I asked my daughter as to what happened to her and she told that she has taken poison to commit suicide, as her father-in-law has again raped her and on her information her husband and Bhasur withdrew themselves to do anything and advised her to stay in the same manner as they had nothing to do in that regard." This statement of PW3 has been corroborated by his wife PW4. Learned Court below has held that such an act of the accused/appellant committing rape upon his daughter-in-law drove her to commit suicide. Learned Court below has held that no one in this world can deny that commission of rape upon his daughter- in-law would not amount to cruelty.
We have no doubt in the finding arrived at by the learned Court below. We, therefore, hold the same view that the act of the father-in-law, namely, accused Harisadhan Singha will definitely come within the ambit of explanation (a) of Section 498A of Indian Penal Code.
Considering the above facts and circumstances and after going through the evidence on record as discussed above, it appears to us that the Prosecution has been able to prove that accused/appellant Harisadhan Singha has committed rape upon the prosecutrix so as to commit an offence punishable under Section 376, Indian Penal Code and such conduct of the accused/appellant has also compelled the prosecutrix to commit suicide resulting thereby the accused/appellant is also punishable under the offence of Section 498A of Indian Penal Code.
The appeal is, therefore, dismissed.
The impugned judgment and order is upheld.
The Criminal Section is directed to send down the lower Court records together with a copy of the judgment forthwith to the concerned learned trial Court.
Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.
I agree.
(Indira Banerjee, J.) (Sahidullah Munshi, J.)