Calcutta High Court (Appellete Side)
Raju Das vs The State Of West Bengal on 7 February, 2014
Author: Tapen Sen
Bench: Tapen Sen, Arijit Banerjee
HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
(APPELLATE SIDE)
CRA 18 of 2009
Raju Das
-Vs-
The State of West Bengal
CORAM: HON'BLE MR. JUSTICE TAPEN SEN
HON'BLE MR. JUSTICE ARIJIT BANERJEE
For the Appellant : Mr. Nani Gopal Sarkar,
Mr. Abhijit Sarkar
For the State : Mr. Manjit Singh, Ld. P.P.,
Mr. Anand Keshari.
C.A.V on : 12/12/2013
Judgment Delivered on : 07/02/14
JUDGMENT
Tapen Sen, J. :
This appeal is directed against the judgment and order of conviction dated 19/12/08 and 20/12/08 passed by the Ld. Additional Sessions Judge, Kandi in the district of Murshidabad in Sessions Case No. 77 / 04 corresponding to Sessions Trial No. 3 of 2005 whereby and whereunder the appellant Raju Das was convicted for the offence under Section 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years and also to pay a fine of Rs. 50,000/- and in default, to suffer further rigorous imprisonment for 2 years. It was ordered that the period of detention undergone by the convict in connection with this case be set off from the period of substantive sentence under Section 428 CrPC and that the amount of fine, if realized, be given to the victim Kajal Mandal as compensation under Section 357(I)(b) of the Code of Criminal Procedure, 1973. The case was initiated on the basis of an F.I.R lodged by one Rubi Mandal, mother of the victim girl Kajal Mandal and it was registered as Kandi P.S. Case No. 97/01 dated 5/10/01 under Section 376 of the Indian Penal Code. According to the prosecution case, Kajal Mandal was the deaf and dumb daughter of Rubi Mandal and she was aged about 16 years. After noticing a tendency of vomiting and change in her body, Rubi took Kajal to a local Doctor and came to know that she was pregnant for 6 months. Thereafter the parents of Kajal came to know that the appellant had taken advantage of her simplicity and had indulged in sexual intercourse in an abandoned house as a result of which she had become pregnant. On the basis of the aforementioned F.I.R, and after completing the investigation, charge-sheet was submitted against the appellant under Section 376 of the Indian Penal Code. The case was committed to the Court of Sessions where charge was framed under Section 376, I.P.C. and where the case was tried.
2. P.W 1 is Rubi Mandal, the informant. She identified the appellant in Court and supported whatever she had stated in the F.I.R. She stated that having observed a vomiting tendency in her daughter Kajal, she consulted one Dr. Anjan Pattanayak of Kandi who found out that Kajal was pregnant. She further stated that when she returned home she asked her daughter as to what had happened and it was then that her daughter Kajal, told her by gestures and postures, that she had been raped in an abandoned house on the eastern side of Nawpukur at Madhunia by accused Raju Das. Thereafter, Rubi Mandal reported the matter to her husband, Sudhan Mandal. Subsequently, Kajal gave birth to a male child. This Witness further stated that when she came to Court, she narrated the incident in detail to her Advocate who wrote out the complaint under Section 156(3) of the CrPC and according to her, the said complaint was written by her Lawyer under her instructions.
In her cross-examination, she has stated that the house of the appellant Raju Das was situated in the vicinity of her house and that Raju Das, the appellant used to call her 'Pishi'. Raju had one sister, Bibha, who was married. She further stated that before the incident had occurred, they were on visiting terms with the family of Raju but the accused Raju never visited her house but her father used to visit their house. She further stated that she and her daughter used to visit the house of the appellant occasionally. She further stated that in the middle of Shrawan, she came to learn, from her gestures and postures, that Kajal had been raped by the appellant at about 1:30 P.M. while she was taking bath. Her daughter had also told her, by gestures and postures, that she could not cry at the time of being raped as she had been threatened by the Appellant with dire consequences.
3. She also stated that when Kajal had gone to take bath in the pond, one Manika Acharjee, D/o Bablu Acharjee was also there. She stated that Manika Acharjee had called Kajal to the place of occurrence where the incident occurred. She further stated that Manika knew about the incident and on being asked, she had replied in the affirmative. The informant further stated that upon being asked as to how many times she had cohabited with the appellant before institution of the case, her daughter had answered saying that the appellant Raju Das, had cohabited with her for 6 months.
The informant reported the incident to Pankaj Upadhyaya and Prabir Upadhyaya of her village. She also stated that over this issue, a meeting was held in the village so that the matter could be compromised and the meeting was attended by 300 / 400 persons. The villagers suggested to the father of the accused to get the matter compromised either in lieu of money or to solemnize the marriage of the victim Kajal with the appellant but the father of the accused did not agree.
4. P.W 2 is Kajal Mandal, the victim girl. She has stated that when she had gone to take a bath in the pond, the appellant had forcibly raped her under threat and after assuring to marry her subsequently. She identified the appellant in the dock. She has further stated that she was raped by the accused appellant in an abandoned house and that after this incident, she had become pregnant as a result of which she gave birth to a child. She further stated that she had gone to the Court along with the Police for recording a statement in the chamber of a Magistrate and at that time there were three persons in the chamber of the Magistrate. They were the Magistrate himself, the victim girl and another lady who was the interpreter. When the Magistrate was writing her statement the Police was in a nearby place away from the chamber. After recording her statement the same was read over and explained to her through the interpreter and after recording her statement, the Police took her away. Thereafter she came to the Court with her mother in a Police vehicle and stated that she knew Raju Das, the appellant, since boyhood. She also stated that Raju Das had committed sexual intercourse with her 5 (Five) times. Then again, she stated that he had committed sexual intercourse with her at intervals. She also stated that the appellant had assured her of marriage and after giving such assurance he had committed the offence upon her. She also referred to Manika Acharjee saying that she used to go to her house and that the appellant also used to visit the house of Manika Acharjee and from there he used to call her quite often. She stated that the appellant used to take the victim girl to the place of occurrence from the house of Manika and that the offence was committed by the appellant in the abandoned house at all the times. She also stated that when she informed her mother about this incident she had become angry and had not accepted her proposal of marriage with the appellant. Thereafter, she stated, that she had begun to love the appellant who continued to cohabit with her.
5. P.W 3 is one Asim Kr. Sinha, a practicing Advocate at the Kandi Court. He is the person who wrote the complaint of Smt. Rubi Mandal upon her instructions as well as upon the instructions of his senior Shri Nishit Kr. Ghosh. After writing the complaint he signed thereon and the complainant put her L.T.I on the said written complaint. The signature of the complainant Rubi Mandal was by the pen of the licensed Clerk of Madhusudan Mandal who was the clerk of his senior Nishit Kr. Ghosh. Madhusudan Mandal is also said to have signed the complaint and it was Madhusudan Mandal who had read over and explained the contents of the complaint to the complainant. In cross-examination, he stated that the written complaint was not drafted by him but it was drafted by his senior in his presence when the complainant Rubi Mandal was also present along with her husband and the virgin girl.
6. P.W 4 is Sudhan Mandal, the husband of the complainant Rubi Mandal. He stated that the incident had occurred in an abandoned house and that his wife had taken his daughter to Dr. Pattanayak for her medical check-up when it was disclosed that his daughter had become pregnant for about 6 (Six) months. He further stated that his wife had told him about the matter as well as to the co- villagers regarding the incident. He stated that a meeting had been held in the village and the father of the appellant did not agree to accept the offence committed by his son. In his cross-examination, he supported the case made out by the complainant as well as by his daughter and further added that the incident was known to many villagers. He, however, stated that he did not know whether there was any love affair between his daughter and the appellant. He further stated that when he came to learn about the incident he had called the appellant to his house and at that time there were 2 to 5 persons in his house. But he could not recollect their names. Manika Acharjee was also present in the house at that time and she had challenged the accused Raju to say whether he had committed rape or not. Upon hearing so, the appellant had slapped her and, the father of the appellant had caught Manika Acharjee by her hair and dragged her away from his house. At that time, the appellant boldly said that he had committed rape but if they challenged him, he would manage to kick them out of the village. His neighbours were present in the house but he could not recollect their names. He has also referred to the village meeting having been called over the issue as he had sought for justice from them but he had never proposed to the committee about the marriage of his daughter to the appellant or for money. Therefore, the Village Development Committee had assured him to extend its support and co-operation if he approached the Police. He stated that his wife, his second brother Sridhar Mandal, his relative Arun Pal and his victim daughter had gone to the Police Station. He denied the suggestion that his daughter used to freely mix with Mithu Acharjee, Laltu Pan, Ambika Das, Babu Upadhyay, Samir Chakrabarty and Buta Das.
7. P.W 5 is one Prabir Upadhyaya who was known to the appellant. He also knew the victim girl. He was declared hostile and was cross-examined.
8. P.W 6 is one Bhujha Upadhyaya who is also a co-villager. He has stated that he knew the deaf and dumb daughter of Sudhan Mandal and that he had come to know that due to the rape by the accused appellant, the victim girl had become pregnant. In his cross-examination he stated that he had heard that there was a love affair between the appellant Raju and the victim girl.
9. P.W 7 is Biswanath Ghosh, a Constable under the Department of Home (Police), Govt. of West Bengal. He stated that on 10/10/01 he was posted at the Kandi Police Station as a Police Constable and under instructions of the Sub- Inspector namely Tulsidas Guha who was the Investigating Officer, he had taken the accused appellant Raju Das to the Berhampur District Hospital for his medical check-up.
10. P.W 8 is Md. Kamal who was also a Constable attached to the Kandi Police Station on 11/10/01. Upon instructions of the Investigating Officer he had taken the deaf and dumb girl to Kandi Sub-Divisional Hospital for medical check-up.
11. P.W 9 is one Mohua Chattopadhyay, the Astt. Teacher of the Maharani Nilima Probha Institution of the deaf and dumb of Berhampur. She issued the certificate on the statement of the victim girl given under Section 164, CrPC to the Ld. Magistrate to the effect that the statements were recorded with her help as she interpreted her language being an expert of deaf and dumb persons and signed on the certificate. In her cross-examination she has stated that she was an interpreter but not a translator and that she had passed her M.A examination in Political Science with Diploma in the deaf and dumb subject. She had acquired diploma from the institute of National Institute of Hearing Handicapped, Mumbai and her name had been enlisted in the panel of experts and it was maintained by the Government. She also stated that the Head Master of her institute had entrusted her to act as an interpreter in respect of the victim girl.
12. P.W 10 is Sub-Inspector Tulsidas Guha, the Investigating Officer. He stated that he received the case docket of this case for investigation from the then Officer-in-Charge of Kandi P.S. the S.I of Police, Abu Ahmed who was the then Officer-in-Charge and who had made an endorsement on the written complaint of Smt. Rubi Mandal which had been received from the Court of the Ld. S.D.J.M, Kandi and having received the same, Kandi P.S Case No. 97/01 dated 5/10/01 had been initiated under Section 376 of the Indian Penal Code against the appellant. He has stated that he had proceeded to the place of occurrence for investigating the case and during the investigation, he had examined witnesses and recorded their statements under Section 161 CrPC. He had also prepared sketch map of the place of occurrence along with index and also arranged for the medical check-up of both of the appellant Raju Das and the victim Kajal Mandal in the S.D. Hospital at Kandi. During investigation he arrested accused / appellant Raju Das and produced him in the Court. He has also stated that during investigation he had made a request for a deaf and dumb expert from the aforesaid Maharani Nilima Probha Institution, Berhampur to interpret the statement of the victim girl Kajal Mandal which was to be made under Section 164, CrPC before the Ld. Judicial Magistrate at Kandi. During the course of his own investigation he could not find such an expert but his subsequent I.O could arrange the said expert for purposes of interpretation. He stated that he had examined 4 (Four) witnesses on 5/10/01 namely Manika Acharjee, Sudhan Mandal, Bhujha Upadhaya and Prabir Upadhyaya. He had also examined the de- facto complainant after visiting the place of occurrence. He also stated that he had not taken any steps for conducting a DNA test of the newborn child.
13. P.W 11 is one Manas Maity who said that he had no personal knowledge about the incident.
14. P.W 12 is Md. Nabiul Islam, another Sub-Inspector of Police. He stated that on 25/4/02 he had been posted at the Kandi Police Station as S.I and that he had received the case diary from the Officer-in-Charge, Kandi P.S for further investigation. He stated that the victim girl had been examined with the help of an interpreter and that he had made a prayer for recording her statement under Section 164 with the help of an interpreter and his prayer had been allowed. He submitted the charge-sheet on perusal of the case diary being Charge-sheet No. 85 dated 31/7/02 under Section 376 of the Indian Penal Code against the appellant Raju Das.
15. From the evidences discussed above and specially the evidence of P.Ws 1, 2 and 4 as well as from the perusal of the statement under Section 164 CrPC it certainly appears that the appellant had sexual intercourse with Kajal Mandal in an abandoned place near a pond and as a result of this, she became pregnant and delivered a male child. However, one thing is clear and that is, that whatever occurred was not a one-time incident but it occurred regularly and quite often.
16. From the own finding of the Ld. Trial Judge at internal page 10 of the judgment he has come to the conclusion that Kajal was aged 22 years in the year 2005 and the alleged incident took place in the year 2001 and therefore it appeared that the victim girl may not be a minor at the time of the incident.
17. However, upon a careful consideration of the evidences, what comes out is that taking advantage of an illiterate, helpless, deaf and dumb girl, the appellant chose to satisfy his lust on a regular basis. Even if, on the basis of the findings of the Ld. Trial Judge we hold that she may not be a minor, even then, it will not go in favour of the appellant because Kajal, being a differently abled person, could not be said to be equal in comparison to other girls of her own age and therefore, her consent becomes inconsequential.
18. So far as the delay in lodging the F.I.R is concerned it is evident that the initiation of the case was made only after the pregnancy was detected and therefore, in the opinion of this Court such a delay is not fatal to the prosecution. Consequently, the finding of guilt recorded by the Ld. Trial Judge holding the appellant guilty for committing rape upon a deaf and dumb girl after taking advantage of her helplessness and simplicity appears to be a finding that is proper, rational and conclusive.
19. Under these circumstances, there is no merit in this Appeal.
20. It is accordingly Dismissed.
21. Let the Lower Court Records be sent down forthwith.
(Tapen Sen, J.) I agree, (Arijit Banerjee, J.) A.F.R / N.A.F.R S.G