Calcutta High Court (Appellete Side)
Lutfar Patowary vs The State Of West Bengal -- Opposite ... on 7 October, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
CRA No. 217 of 2009
Lutfar Patowary --Appellant/Accused
-versus-
The State of West Bengal -- Opposite Party
Mr. Sandipan Ganguly
Mr. Partha Pratim Sarkar ... for the Appellant
Mr. Ranabir Roy Chowdhury ... for the State
Heard on :05.09.2013.
Judgment on : 07.10.2013.
Toufique Uddin, J. :
This appeal arose out of the judgment and order dated 26.2.009 and 27.2.2009 passed by the learned Additional Sessions Judge, Fast Track Court-I, Dinhata, Cooch Behar in Sessions Trial No. 6(1) of 2006 arising out of Sessions Case. No. 214 of 2005 and thereby convicting the appellant for commission of offence under section 376 of Indian Penal Code and sentencing him for a term of 7 years of RI.
In the background of this appeal, the fact in a nutshell is as follows :
One FIR was lodged by Rejia Bibi to the effect that her second eldest daughter aged 17 years is partially deaf and dumb, suffering from impaired speech. On 20.5.2004 corresponding to 6th of Jaistha 1411 B.S. at about 2 p.m. the said daughter of the complainant went to defacate in bamboo grove on the western side of their house at village Paramananda. At that time accused Lutfar Patwary, a close neighbour, caught hold of the prosecutrix, gagged her mouth, laid her flat on the ground and committed rape upon her. The prosecutrix started weeping on being raped. At this the accused persons tried to assure that he will marry her and asked her not to disclose about the occurrence to any one. The accused person further committed rape upon the prosecutrix on four to five other occasions. As a result, she became pregnant. On being asked by the complainant the prosecutrix disclosed to her about the occurrence and she had become pregnant due to the accused. Rejia Bibi disclosed about the matter to her husband and other neighbours. Over this matter a village salish held where prosecutrix by her gestures and through her impaired speech disclosed that the accused person raped her. The accused also admitted his guilt in that salish but refused to marry the prosecutrix. On 21.5.2005 the mother of the prosecutrix lodged a complaint against the accused person before the court of the learned SDJM, Dinhata under section 156(3) of Cr.P.C. which was sent to Dinhata Police Station for treating the matter as FIR. Later the prosecutrix gave birth to a female child. On the basis of compliant Dinhata P.S. case no. 144/2005 dated. 10.6.2005 was started under section 376 of IPC.
After investigation, police has submitted charge-sheet against the accused person under section 376 of Indian Penal Code.
The case was committed by the learned Magistrate to the Court of Sessions.
After hearing of both sides, learned Magistrate framed charge under section 376 of IPC against the accused person. The contents of the charges were read over and explained to him when the accused pleaded not guilty and claimed to be tried.
To contest this case the prosecution examined as many as nine witnesses while none was examined on the side of the defence. However, the accused person was examined under section 313 of Cr.P.C. The defence case as appeared from the trend of cross-examination and reply given by the accused person at the time of examination under section 313 Cr.P.C. was denial of offence with a plea of innocence.
On trial the learned Trial Court convicted the present appellant by the impugned judgment. The point for consideration is if the impugned judgment suffers from any material irregularity and calls for any interference or not.
Section 376 of IPC reads as follows :
"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.
................................................................................................................."
It was argued by the learned counsel for the appellant that the judgment was perverse which requires to be interference with.
Learned counsel for the State submits that practically there is nothing to interfere with the impugned judgment.
To appreciate the case from a better angle, some relevant pieces of evidence are required to be mentioned here.
Exhibit- 4 is the formal FIR.
Exhibit- 3 is a written complaint. Therein it was stated by the complainant that her daughter Mazida Khatoon, aged about 17 years, is partially deaf and speechless since her birth. On 20.5.2004 around at 2-00 p.m. when the victim went towards the bamboo grove on the western side of their house to ease herself, the accused Lutfar Patowari on the spot caught hold of her and gagged her mouth by a piece of cloth. Thereafter he put off her pant and committed rape after laying her down on the ground in the bamboo grove. After she was raped, Mazida started weeping loudly. Then the accused assured her that he would marry her and asked her not to disclose the matter to any one. In this way, giving false assurance he had committed rape upon the victim four to five times. As a result she became pregnant. On her change in physical appearance and being interrogated, she narrated the incident to the complainant. Thereafter, a salish was convened. The accused admitted his guilt but he refused to marry her. Lastly, finding no alternative she filed the case before the court.
P.W.- 1 is the complainant. She echoed in evidence what she stated in the complaint. From the cross-examination it appears that there was a family dispute and over a path way which was closed by the accused person, the defacto complainant filed a case against the accused person. Let it be examined what is the result of the entire material on record.
P.W.- 2 is a neighbour. He stated the Majida by gestures indicated to him that she was raped by accused Lutfar patwary and she took him to the place by holding her hand to show where she was raped. She also pointed at the accused before showing that he was responsible for committing rape on her. He stated that he was present in the salish. In that salish accused Lutfar Patowary admitted his guilt but five days thereafter he denied his involvement.
P.W.- 3 is the father of the victim. He corroborated the prosecution case. After seeing the physical appearance of his daughter, he learnt the incident from his wife at home. He stated that on the following day of salish, accused assaulted him and blocked his pathway.
P.W.- 4 is a Doctor. He examined the victim girl on 28.6.2005 at 9.20 a.m. He found the hymen of Majida Khatun was in raptured condition. The medical report is exhibit- 2. He did not find any external injury on the body of the victim at the time of examining her. Obviously due to the fact that after a long time of about 18 months, he examined her.
P.W.- 5 is a retired police person. On receipt of written complaint, he started Dinhata P.S. Case No. 144/2005 dated 10.6.2005 under section 376 IPC against Lutfar Patawary and drew formal FIR which is marked as Exhibit- 4. He endorsed the case to S/I Mr. P.N. Roy for holding investigation.
P.W.- 6 is another Doctor. He examined the accused and observed that the accused was found to be clinically potent.
P.W.- 7 is the victim herself. It appears from her deposition sheet that she was suffering from her speech disability and as such her evidence was recorded with the help of an interpreter Sri Partha Sarathi Das, Principal, Deaf and Dumb School, (Surjaday), Karnajora, Raiganj. Therefrom it appears that victim identified the accused and stated as follows :
"The accused person pressed my mouth and removed my pant then he committed rape upon me. The accused person committed rape on me for about four to five times on other occasions. The accused person on one occasion raped me in the paddy field by felling me on the ground. Due to rape by the accused person I became pregnant."
She further stated that in the village salish the accused person expressed his willingness to marry her but he did not marry subsequently. She is unable to read or write. Her father is a day labourer. In cross-examination she was put to severe test. She stated that "Satti Katha Bolechi".
P.W.- 8 is a SI of police. He caused investigation and submitted charge-sheet. P.W.- 9 is a law clerk. He prepared the complaint on the instruction of Rejia Bibi. The complainant is marked as Exhibit 3/1.
The accused was examined over pinpointed incriminating materials but he flatly denied everything.
It was argued that delay of 1 ½ years in lodging the complaint was not explained. But the chequered background demonstrates the cause of delay, which I do not find to be fatal. Further it was contended that no medical test was done nor any Birth Certificate was produced in respect of the alleged victim. So, it must be presumed that the age of the victim girl was above 16 years on the date of the alleged occurrence. Further it was contended that her age is being above 16 years, the circumstance of non-disclosure on the part of the P.W.- 7 of sexual violence committed upon her by the appellant gains importance and casts serious doubt upon the version provided by the victim girl. Perhaps the defence wanted to mean that victim was a consenting party though in explicit term the accused denied at the time of examination under section 313 Cr.P.C. that there was no sexual violence committed by him on the victim. Regarding this, I am of the opinion that the treatment of victim girl should be done as one who is below 16 years because of the interpretation made in latter paragraphs.
The defence side argued that there is no medical paper or no proof which shows that the victim was suffering from impairment of any visibility or audibility. But this argument appears to have been set at naught by the evidence of not only the prosecution witnesses but also the evidence of P.W.-7 who is an Additional Sessions Judge, Fast Track Court, Dinhata. He recorded the statement of the victim girl and initially he recorded as follows :
"As the witness Majida Khatun is suffering from her speech disability her evidence is recorded with the help of interpreter Sri Partha Sarathi Das, Principal, Deaf and Dumb School (Surjaday), Karnajora, Raiganj, Dt. Uttar Dinajpur.)".
Nowhere in the record the accused took a plea that victim girl is not suffering from speech disability or so. It appears from the endorsement taken by the learned Magistrate prior to taking evidence of the victim girl in order to test her acceptability by the interpreter that the statement was recorded with the help of one Sri Partha Sarathi Das, Principal, Deaf and Dumb School (Surjaday), Karnajora, Raiganj. It is correct that man has not been examined in this case. But I find no reason to disbelief the statement as recorded by the Magistrate. The evidence conclusively establishes that the victim girl is suffering from speech impairment/disability.
This being the position, she is not a normal victim aged about 16 years. She has been suffering from physical disabilities/speech impairment. So, it is not expected that her thought and version will act together.
This being the position, the consent if any at all is of no consequence. Further the record does not show that before the victim girl had any love affairs with the accused person. Also it is not the case of the defence or anybody else that the victim girl gave proposal to use her body by the accused person who is a married man having as many as six children. Rather the statement of the victim girl demonstrates that accused took her to the bamboo grove and committed rape and she was crying. Thereafter, on the false promise of marrying her he attempted to give solace to her mental injury. But ultimately the accused refused to marry her. Therefore, it does not appear that any consent was given by her. Record further shows that many times the accused violated her. So, in absence of any offer by the victim the very first violation itself is conclusive proof of rape irrespective of any commission of subsequent rape. The victim girl admittedly did not disclose such fact of commission of rape either to her mother or to anybody else. Subsequently when her physical appearance turned to be otherwise, on query she disclosed everything. It is quite expected from such a victim that she becomes easy pray to a man having Thirst for lust. She is not expected to know the outcome of such incident. She remains silent not due to the fact of consent but due to the fact that she did not know what is what, how is what and when is what. Therefore, her long silence is of no consequence.
Learned counsel for the accused/appellant argued that the victim claimed that she gave birth to a female baby. But the DNA test shows that the accused did not father the father. "The Biological Report No. CFSL. (K)/EE/2007(WB)-1240 dated 07.02.2008 concerning portion of exhibits a, b and c show that the accused Lutfar Patwary is not the biological father of baby Rumki Khatoon." This indicates according to the submission of the defence that the victim was habituated in sexual intercourse not with the present accused but with other person for which she might have been pregnant and then produced a female child. This argument is of no consequence. Doctor i.e. P.W.- 4 stated that hymen was ruptured and no external injury on her body was found. She was also found to be having experience of sexual intercourse. This does not go to negate the factum of rape as disclosed by a victim of such type.
It was suggested by the learned counsel for the accused that over a pathway there were dispute between the family of accused and the father of the victim. But this plea is not at all tenable because admittedly there were dispute over pathway. But that dispute cropped up after the commission of rape as alleged by the prosecution. So, this argument is a counterproductive one and helps the prosecution.
The learned court below after citing good number of decisions, which were appropriately, considered came to the finding that there was commission of rape. On total consideration of the evidence of the victim girl i.e. P.W.-7, I am of the view that irrespective of consideration of any other witnesses her evidence appears to be trustworthy, dependable. In Rai Sandeep alias Deepu vs. State (NCT of Delhi), reported in (2012)8 SCC 21 the characteristics of sterling witness has been given by the Hon'ble Apex Court as follows :
"A "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
In view of the above decision, I find the evidence of the victim as that of a sterling witness. The total consideration of the entire materials on record and the circumstances of the case shows that the learned Trial Court has correctly convicted the present appellant.
I find no merit in the present appeal. Accordingly, the appeal stands dismissed. Let a copy of this judgment along with LCR be sent back to the learned Trial Court immediately.
Criminal Section is directed to supply the urgent photostat certified copy of this judgment to the parties, if applied for.
(Toufique Uddin, J.)