Calcutta High Court (Appellete Side)
Faruk Mondal vs The State Of West Bengal on 8 August, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Ravi Krishan Kapur
68
AB /RP/AS&PA
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Ravi Krishan Kapur
C.R.A. 248 of 2017
With
C.R.A.N. 2287 of 2017
FARUK MONDAL
VS
THE STATE OF WEST BENGAL
For the Appellant : Mr. Tirthankar Ghosh, Advocate
Ms. Atulya Sinha, Advocate
Mr. Sauvik Dutta, Advocate
For the State : Mr. S. G. Mukherjee, Ld. PP,
Mr. Partha Pratim Das, Advocate
Heard on : August 8, 2018
Judgment on : August 8, 2018
Joymalya Bagchi, J. :
The Appeal is directed against judgment and order dated 23.3.2017 and 24.3.2017 passed by learned Additional Sessions Judge, 2nd Court, Bongaon, North 24 Parganas in Sessions Trial No.09 (03) of 2014 arising out of Sessions Case No.05 (02) of 2014 convicting the appellant for commission of offence punishable under Section 376(2)(j)(l) of the Indian Penal Code and sentencing him to suffer imprisonment for ten years and to pay a fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for one year more.
The prosecution case, as alleged against the appellant, is to the effect that on the night of Kalipuja, that is, on 04.11.2013 around 10.30 PM the victim a deaf and dumb girl had gone to the house of a neighbour to celebrate puja. When she did not return till 10.00 to 10.30 PM, her mother (P.W.2) informed her father (P.W.1) and went out to search her. They found her daughter coming from a field. Her wearing apparels were torn and covered with dust. On queries she disclosed that she had been ravished by a person whom she could identify. Then her mother took her to the puja mandap where she identified the appellant as the culprit. Her mother (P.W.2) confronted the appellant who ran away. Her father also came to the spot. Over the issue her father (P.W.1) lodged written complaint with the police station resulting in registration of Gopalnagar P.S. Case No. 411 of 2013 dated 06.11.2013 under Section 376(ii)(I)(j) of the Indian Penal Code.
The appellant was arrested and subjected to medical examination. Initially, the victim refused medical examination but subsequently on 09.11.2013 she was admitted to a hospital for four days. Her statement was recorded under Section 164 Criminal Procedure Code. before the Magistrate with the help of an interpreter.
In conclusion of investigation, charge sheet was filed against the appellant. The case was committed to the Court of Sessions and thereafter transferred to the Additional Sessions Judge, 2nd Court, Bongaon, North 24 Parganas. Charge was framed against the appellant under Section 376(2)(j)(l) of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried.
Prosecution examined 12 witnesses and exhibited a number of documents to prove its case.
The defence of the appellant was one of innocence and false implication. He, however, did not examine any witness to support the prosecution case.
Mr. Ghosh, learned Advocate appearing for the appellant submitted that the victim did not identify the appellant in Court. Hence identity of the appellant as her assailant has not been proved beyond doubt. He further submitted that the identification of the appellant at the puja mandap is not supported by independent witnesses including Kartick Majumder, the owner of the premises. He also submitted that the medical evidence did not support the prosecution case. There is delay in lodging the first information report and no explanation is forthcoming as to why the mother of the victim did not agree to her medical examination of the victim even on the day of registration of first information report. Hence, the appeal is liable to be allowed.
On the other hand Mr. Mukherjee, Learned Public Prosecutor along with Mr. Partha Pratim Das, Advocate submitted that the victim P.W. 3 was a deaf and dumb girl who graphically described the incident in Court. A single sentence from her evidence cannot be taken out of context to come to the conclusion that the appellant had not been identified. On the other hand P.Ws.1 and 2 proved that the victim had identified the appellant as her assailant in the puja mandap on the day of occurrence itself and the appellant had run away thereafter. The presence of the appellant at the place of occurrence and his identification as a culprit is, therefore, established. Her deposition, therefore, ought not to be disbelieved on mere surmises and conjectures. Hence, the appeal ought to be dismissed and the conviction and sentence be upheld.
P.W.1 is the father of the victim girl. He deposed that his daughter is presently 17 years of age. She is partly deaf and dumb and physically challenged. On 04.11.2013 in the evening his daughter had gone to see Kalipuja in the house of Kartick Majumder, a neighbour. As she did not return home his wife went out to search her. She saw her daughter coming from the field. Her body was covered with dust. Her wearing apparels were torn. On being asked her daughter indicated Faruk Mondal had ravished her. Faruk Mondal was taken to the house of Kartick Majumder by Biplab Sarkar. His daughter was raped inside the field situated beside his house. That field belongs to Sadananda Paul. Due to embarrassment and loss of dignity of her daughter he initially did not lodge case. However, after reconsidering the matter he lodged written complaint on 06.11.2013. He proved his signature on the written complaint which was written by one Babu. He proved the written complaint (Exbt.1/1). His daughter was medically examined. She was admitted in the hospital for lower abdominal pain. She remained in the hospital for 5/6 days. He handed over birth certificate and disability certificate of her daughter to the police. In cross- examination, he stated that Faruk was not known to him prior to the incident. His daughter told everything to his wife.
P.W.2 is the mother of the victim. She deposed that her daughter had gone to the house of Kartick Majumder where Kali Puja was being held at around 8 p.m. As her daughter did not return, she went out to search for her. She asked one Pinki about the whereabouts of her daughter. She informed her husband and they went out to search for her in the adjoining field. At that time, she saw her daughter coming out of the field with dust in her body. Her wearing apparels were torn. Her daughter told her that she had been ravished by a person whom she could identify. She took her to the puja mondap. There she identified the appellant. She caught the appellant. The appellant confessed his guilt. At that point of time Biplab Sarkar supported the appellant and stated that nothing had occurred. The appellant ran away. After three days her husband lodged complaint. Her daughter was medically examined. In cross-examination she stated that on the date of lodging of complaint she went to Bongaon SD Hospital with her daughter. On that date she had refused to get her daughter medically examined. She handed over the wearing apparels of her daughter to the police which has not been produced in Court. On the day of the incident her daughter was crying in the kitchen. After 10 to 15 minutes they went to the house of Kartick Majumder. Many people were there. Her husband did not accompany them initially to the house of Kartick Majumder. After 4 days her daughter complained of abdominal pain and she was admitted to hospital. She did not state the incident in detail to anyone in the hospital. She stated that her daughter was presently married and residing at her matrimonial home at Rasulpur.
P.W.3 is the deaf and dumb victim girl. She was examined through an interpreter. She deposed that the accused shut her mouth up, tore her wearing apparels and ravished her in the field. The incident occurred on Kali Puja night. She made statement before Magistrate. She, however, stated that she did not know the persons standing in the dock. In cross-examination, she stated that she stayed in the puja house for one hour. The ground where she was taken by the accused is far from the puja bari. It was a dark night. She admitted that she was married two years ago.
P.W.9 and P.W.10 are the medical witnesses in the instant case. P.W.10, Dr. Kalyan Paul, deposed that on 09.11.2013 he was posted as Medical Officer at Bongaon S. D. Hospital. On that date, the victim was brought to the hospital. It was stated that the victim had suffered physical assault one week ago. On examination, he found tender umbilicus and hypogastrium. Patient was admitted in female surgical ward and Gynecological consultation was suggested. He exhibited medical report, Ext.6.
P.W.9, Dr. Mahitosh Mondal, was also posted at the aforesaid hospital. On 12.11.2013, he examined the victim. He did not find any mark of external injury on private parts. No foreign body was detected. Hymeneal ring was not intact. She was capable of sexual intercourse. He proved the medical report.
P.W.11, Ananta Kumar Bhowmick, is the Investigating Officer in the instant case. He conducted investigation. He went to the place of occurrence and drew up rough sketch map with index, Ext.7 and 7/1. He arrested the appellant. He proved the arrest-cum-inspection memo, Ext.8. He seized the birth certificate of the victim, disability identity card etc. under the seizure list, Ext.2/1. He collected the medical examination report of the victim. He forwarded the victim before the Magistrate for recording her statement under Section 164 of the Code of Criminal Procedure. He sent the wearing apparels of the victim, her vaginal swab and semen of the appellant for F.S.L. examination. Ossification test of the victim was conducted. He collected the bed head ticket of the victim. He submitted charge sheet.
The evidence on record particularly that of the victim, P.W.3, a deaf and dumb girl and her parents P.W.1 and P.W.2 clearly establish that on the night of Kali Puja i.e. on 4.11.2013, the victim had gone to the residence of one Kartick Majumder at around 8.00 PM where the Puja was being held. As she did not return till 10/10.30 PM, her mother, P.W.2 went out to search for her. She searched in the adjoining fields. At that time, the victim was seen returning in a disheveled condition. Her wearing apparels were torn and her body was covered with dust. On coming home, by gesture she indicated that she had been ravished by a man whom she could identify. Soon thereafter, P.W.2 took the victim to the Puja Mandap where she identified the appellant as the culprit. P.W.2 caught hold of the appellant but due to intervention of one Bimal Halder, the appellant ran away. In the meantime, P.W.2 had informed the incident to the father of the victim, P.W.1. Initially, the parents were hesitant to report the matter fearing social stigma and opprobrium. Subsequently, on reconsideration, P.W.1, father of the victim, lodged first information report. Owing to their hesitance to subject the victim to further embarrassment, her mother initially declined to subject her physically challenged daughter to medical examination. However, after four days as the victim reported abdominal pain, she was admitted to hospital and was medically treated. It has been argued that the delay in lodging the first information report and the initial hesitance of P.W.2 to permit the medical examination of her daughter gives rise to a serious doubt as to the truthfulness of the prosecution case. It has also been argued that P.W.3 could not identify the appellant in Court. It is further contended that medical evidence does not support the allegation of rape. There is nothing to show that the tear in the hymen was due to sexual assault, as alleged. I am unable to accept the aforesaid contentions on behalf of the appellant. P.W.3, the victim was a physically challenged girl at the time of occurrence. She was partially deaf and dumb. Immediately after the occurrence by gesture she had indicated that she could identify the appellant who was not known to her. Her mother P.W.2 took her to the Puja Mandap where she identified the appellant who when confronted ran away from the spot. These facts are clearly proved by the evidence of P.Ws.1 and 2 who have withstood the test of cross-examination on such score.
My attention has been drawn to the deposition of P.W.3 who stated that she did not know the 'persons in the dock'. Relying on this stray observation of the victim-P.W.3, it is submitted that the identity of the appellant was not proved. Evidence of a witness is to be appreciated as a whole. A stray sentence culled out from the deposition of a witness ought not be taken out of context to justify a conclusion. P.W.3, the victim had in a succinct manner narrated the sexual assault upon her. It is to be borne in mind that she is a deaf and dumb girl who was examined through an interpreter who was present on the dock alongwith the accused. If the evidence of the victim is appreciated in this backdrop, her inability to identify the appellant on the dock as there were more than one person is clearly comprehensible. On the other hand, P.W.1 and P.W.2 have categorically stated that the victim identified the appellant as the assailant on the day of the incident. Hence, there can be no escape from the conclusion that it was the appellant who had perpetrated the assault on her. It is also relevant to note that there is no enmity with the appellant ruling out the possibility of his false implication in the instant case.
Under such circumstances, I am of the opinion that the prosecution has been able to establish the allegation of rape on the physically challenged minor victim-girl beyond doubt. It is trite law if the evidence of sexual assault on a victim and that too on a physically challenged minor girl is established, mere delay in lodging FIR would not discredit the prosecution case. P.W.1, father of the victim unequivocally stated that to avoid social embarrassment, he was initially unwilling to report the matter to police. Conduct of P.W.2, the mother of the victim not to subject the physically challenged victim-girl to further agony and embarrassment of medical examination also corroborates such state of mind.
It is not unknown that the parents of young girls of marriageable age generally suppress allegations of sexual assault on them so that such incidents of assault do not remain as 'stigma' on the victims particularly in our society where even today incidents of sexual assault are unfortunately considered as 'taints' on victims of such crime. Prevalence of such societal prejudices, though unpalatable and undesirable, are painfully true and ought not to be lost sight of when one assesses the hesitance of a victim of sex crime or her relations to report such incidents to police.
In view of the aforesaid discussion, I am of the opinion that delay in lodging FIR or refusal of P.W.2 to subject her daughter to medical examination immediately does not militate against the truthfulness of the version of the victim which is corroborated by other witnesses and attending circumstances of the case. Failure to produce the wearing apparels of victim or FSL report or non- examination of Kartick Majumder are not incurable defects which go to the root of the prosecution case which is squarely founded on the convincing version of the victim which is corroborated by her parents.
In the light of the aforesaid discussion, I uphold the conviction and sentence imposed upon the appellant.
The appeal is accordingly, dismissed.
In view of the dismissal of the appeal, nothing remains to be decided in the application being CRAN 2287 of 2017 and the same is accordingly, disposed of.
Copy of the judgement along with the Lower Court Records be sent down to the Trial Court at once for necessary compliance.
Photostat certified copy of the order, if applied for, be given to the parties on priority basis.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.)