Calcutta High Court (Appellete Side)
Biswanath Das & Anr vs The State Of West Bengal & Anr on 10 June, 2014
Author: Tapen Sen
Bench: Tapen Sen, Tarun Kumar Gupta
HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
(APPELLATE SIDE)
CRA 282 of 2010
Biswanath Das & Anr.
-Vs-
The State of West Bengal & Anr.
CORAM: HON'BLE MR. JUSTICE TAPEN SEN
HON'BLE MR. JUSTICE TARUN KUMAR GUPTA
For the Appellants : Ms. Minoti Gomes,
Mr. Shibaji Kr. Das,
For the State : Mr. Pawan Kr. Gupta
C.A.V on : 8.5.14
Judgment Delivered on : 10.6.14
JUDGMENT
Tapen Sen J. :
This appeal has been preferred by Two of the convicted persons namely Biswanath Das and Arun Dey. The appeal is directed against the judgment dated 15/3/2010 and the order of conviction dated 16/3/2010 passed by the learned Additional District and Sessions Judge, Fast Track Court No. 2, Sealdah, South 24 Pgs in S.T No. 5(3) of 2008 corresponding to S.C No. 3(2) of 2008 whereby and whereunder the 2 appellants along with one Ramesh Hazra and Rajesh Prasad were found guilty of the charges for the offence punishable under Section 506(ii)/34, 365/34 and 376/(2)(g) of the Indian Penal Code. All the appellants were sentenced to suffer Rigorous Imprisonment for Ten years with a fine of Rs. 10,000/- and in default to suffer Simple Imprisonment for Two years under Section 376(ii)(g) of the Indian Penal Code. Each of the convicts were also sentenced to suffer Rigorous Imprisonment for Two years under Section 365/34 of the Indian Penal Code with a fine of Rs. 2,000/- and in default to suffer Simple Imprisonment for Two months and they were also sentenced to suffer Rigorous Imprisonment for Two years with a fine of Rs. 2,000/- and in default to suffer Simple Imprisonment for Two months under Sections 506(ii)/34 of the Indian Penal Code. It was further directed that if the fine was realized, 50% of the same shall be paid to the victim.
2. The case has its initiation with Tangra P.S. Case No. 168 dated 7/10/1995 under Sections 365/376(ii)(a)/506/34 of the Indian Penal Code.
On 7/10/95, Jhuma Sardar, the victim made a written report stating inter- alia therein that she, along with her husband Mithu Sardar, lived in a shanty beside the railway line by the side of 11/2 Shil Lane. On 06/10/1995 she and her husband had gone to the house situated adjacent to theirs at 9 P.M to watch a movie on the television and at about 1:30 A.M they returned back and went to bed. At about 3 A.M or 3:30 A.M, she woke up hearing a rustling sound on the wall made of bamboo slips of her room. Then she found Six men in her room. One of them held a razor on the throat of her husband and Three of them dragged him out of the room at the point of the razor while Three of them stayed inside. One of them had a razor in his hand and he was standing beside her. She could not make any sound or noise out of fear because they threatened that they would kill her husband if she shouted. Out of those Three men, one pushed her down on the bed by force and pressed her mouth and raped her. Thereafter another person who had a knife in his hand grabbed and also started raping her by force. At that point of time her elder sister Maya Mandal called her by name and asked as to what had happened. She also called her own husband and on hearing such calls the Three men fled from the room. The prosecutrix could recognize all the Six men one of whom was Nona and the other was Narayan. A lantern was burning inside the room and she could recognize the Two persons who had raped her but she did not know the other names although she stated that they live at Malipara. She also stated that whenever she used to go to work they would make gestures at her. The report was then made to the Police Station in the morning at 10:55 A.M of 7/10/95. On the basis of the said written report an investigation was started as per order of the then Officer-in-Charge of the Tangra Police Station and on completion of the investigation the Investigating Officer submitted a charge-sheet against these appellants as well as against Ramesh Hazra, Rajesh Prasad, Nona Das @ Babu Das and Narayan Sarkar under Sections 365/376(ii)(g)/506/34 of the Indian Penal Code.
3. Learned Counsel for the appellants has submitted that the incident occurred at 3:30 A.M of 7/10/95 and the information at the Police Station was received at 10:35 hours on 7/10/95 and therefore there is no explanation for the delay of almost Seven hours in lodging the complaint. We are not impressed by such a submission since, according to us, Seven hours' delay in lodging the F.I.R can be condoned considering the nature of the offence said to have been perpetrated upon the victim and the trauma associated with it. It is a common feature that in such cases the victim and / or her family would take sometime for the offence to sink in and then deliberate and decide on what course of action is to be taken. Moreover the incident has taken place in the wee hours of the night and therefore if the victim lodged the F.I.R at 10:35 A.M, this cannot be considered to be a gross delay. The next point that learned Counsel has argued is that the victim had named Nona and Narayan and therefore these Two petitioners cannot be held responsible for the offence. We are not inclined to accept such a submission because from the written report itself it is evident that she did not name Nona and Narayan as the persons who had raped her. All that she said was that out of the Six persons, she knew Nona and Narayan. The other interesting feature is that in the written report, the victim has mentioned about a lantern and from the records we notice and specially from the evidence of Barid Baran Chakraborty, the Sub-Inspector of Police who was posted at Tangra Police Station on 7/10/95 is that he had seized the kerosene oil lamp by preparing the seizure list. The evidence of the prosecutrix, Jhuma Sardar was recorded on 3/5/08. The incident is of 1995 and therefore there are bound to be some discrepancies here and there since by the time she deposed, Thirteen years had passed by. Such minor contradictions cannot be treated to be fatal. In the F.I.R, she has very specifically stated that one person was holding a razor and in her deposition she has given out the name of that person as Arun. Let it once again be recorded at the risk of repetition, that after a period of Thirteen years, the same is sufficient for anyone to have come to learn about the name of any person whom she could not name initially. Moreover she has also clearly stated that Arun along with Ramesh had raped her and that Biswanath along with Ramesh and Rajesh had taken her husband outside the Jhopri at the point of a razor. This fact stands corroborated by the evidence of PW 5, Baburam Mondal who is also a co-resident of the Jhopri.
4. Learned Counsel for the appellants has further argued that there was no sign of rape and no semen etc. was found on the bed. Let it be recorded that the allegation was that the offence was committed on the bed and that too, on a married woman and therefore there cannot be signs such as the ones which are normally found if rape is committed on a place which is not on a comfortable bed.
5. Another fact which cannot be ignored is that the prosecutrix in her evidence had stated that while she used to go to work, Arun (Appellant No. 2) used to say that he would "lift her away" and this fact stands corroborated by the evidence of her sister Maya Mandal who says that one of the persons used to intimidate her saying that he would take her away and rape her. PW 6 is one S.S. Anand who conducted the Test Identification Parade in the Presidency Correctional Home at Alipore. He corroborates the statements made by the prosecutrix to the effect that Ramesh, Rajesh and Arun had detained her at the hut at the point of a razor and then Ramesh as well as Rajesh had raped her one after the other. However, in view of the fact that she gave her statement after 12/13 years from the date of the incident, such a statement cannot go to the benefit of Arun who cannot be allowed to say that he was not the person who raped her. This is a case of gang rape. We have carefully examined the evidence of the prosecutrix and the evidences of others and we are of the view that we would be justified in accepting the version of the prosecutrix because in India, married women are normally hesitant to make complaints of such assaults and if the prosecutrix happens to be a married lady, the fact that there was truth in the matter would be evident from the fact that she has steadfastly stood by her statements even after 12/13 years from the date of the incident. The learned Trial Judge has correctly observed that the nature of the evidence required to lend credibility to the testimony of the prosecutrix depends on the facts and circumstances of each case and if the prosecutrix is an adult and full of understanding then the Court is entitled to base conviction on her evidence unless the same is shown to be infirm and not trustworthy. In the totality of the circumstances appearing from the records of the case, we agree with the observations of the learned Trial Judge that she did not have any motive to falsely involve the accused persons and therefore, there was no error in the action of the learned Trial Judge in accepting her evidence in its totality. Moreover from all the evidences that we have gone through, the victim of the offence was subjected to rape one after the other and barring a few discrepancies here and there, the fact relating to the offence has not been upset by any of the testimonies. The prosecutrix, while giving a vivid description of the offence that had taken place, had also stated that while she was working as a maid servant one of the accused persons namely Arun used to tell her "Boudi I shall take you away by lifting you". She has proved her signature on a seizure list pertaining to her saree, a petticoat and a blouse and she has identified the same by saying that they were her wearing apparels. She has also identified the lungi, a shirt and the trouser of her husband. The lady had also taken part in the Test Identification Parade in the jail where she identified all the 4 accused persons including the petitioners.
We cannot also lose track of the fact that while making her statement in the written report, the prosecutrix categorically named Two persons and stated that she would be able to recognize the other Four persons. Let it be recorded that there was a lantern burning in the shanty and the said lantern was seized by the Investigating Officer subsequently. The fact remains that during the time of Test Identification Parade, the prosecutrix identified each of the Four persons whom she had said that she would be able to recognize. These are factors which go to show that all Six persons had jointly committed an offence which must be termed as gang rape and it is really not relevant as to who did what. Here, at this stage, it would also be relevant to point out that common intention of each of the offenders was to determinedly commit the offence of rape because we have not come across any evidence to show that they either robbed, committed dacoity or took away household articles from the house. Therefore their entry into the shanty was for the sole purpose of committing the offence of rape and we cannot brush aside this aspect of the matter.
6. PW 1 is the prosecutrix herself who is the wife of PW 2. PW 3 is the elder sister of the prosecutrix. PW 5 is the husband of PW 3 and PW 13 is the father- in-law of PW 3. Thus, PWs 1,2,3,5 and 13 are all interrelated. PW 1 being the victim is also the eyewitness to the abduction of her husband. She is also the victim of the unlawful lust of the accused persons. From the facts and circumstances of this case we are therefore of the view that the reasoning given by the learned Trial Judge at internal page 21 of the judgment (running page 277 to 279 of the paper book) needs to be ratified by this Court. The same reads as follows --
"it is to be mentioned again and again that both the P.W 1 and P.W 2 have not been able to state the names of these accuseds. Both of them identified these three accuseds in Court and then the accuseds told their respective names in the Court. So one thing has been established that Ramesh Hazra, Rajesh and Biswanath abducted Mithu Sardar, the husband of the victim at the points of razors, so this Court has no hesitation to hold that the charge of abduction against these three accuseds has been well-established by the prosecution as both of them have corroborated that Mithu Sardar was abducted at the points of razors. There is no difficulty to hold that there was threat to the life of the P.W 2. The P.W 1 has stated that accused Arun was holding a razor at her neck. She has also stated that they told her "if you cry and shout, we shall kill your husband". The P.W 2 has also stated in evidence that accused Arun held razor at him. Now the question has been raised how Arun could hold razor at the P.W 1 and P.W 2 at a time. It is not very much impossible as because they were sleeping and both of them found that the accused Arun was holding razor at them. So it is found by me that the matter of abduction and threat were there for the commission of further offence in furtherance of the common intention of all of the accuseds. Further intention is established by the circumstances. All of the accuseds were there for satisfying their lust on a married woman living in a 'Jhupri'. So the charge of criminal intimidation has also been established against Arun and others. I find from the evidence of the P.W.1 and P.W.2 that some of the accuseds abducted Mithu Sardar to the Railway Line from their 'Jhupri'. I find from the evidence of P.W. 1 that Ramesh Hazra raped her. In T.I.P. she has stated that Rajesh Prasad raped her next but in examination-in-chief she has stated that after Ramesh, Arun raped her. This contradiction shall not help the defence to get an order of acquittal. I do not think that the victim has come before the court with an intention of making false allegation against the accuseds. She is a married woman living in poverty and living in 'Jhupri'. The case of the defence is that the victim has falsely implicated the accuseds in this case as there was political feud in between her and the accuseds. Is it possible? Certainly not. I shall discuss about this after a little while. I want to discuss about the implication of a finding that when out of these 4 (four) accused persons even one has been proved to have committed rape. What consequence shall follow in case of the rest of the accuseds? Explanation (1) one of section 376(2)(g) of the I.P.C. should be kept in mind in this context. The same runs as follows:- "when 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." in this regard I feel that it shall be appropriate to quote para 21 from the decision reported in the case of Viswanathan & Others. -Vs- State reported in A.I.R. 2008. S.C. 2222 "21 Explanation 1 (one) appended to the said provision clearly states that the persons who have common intention to commit the said offence would also be liable in terms of section 376 (2) (g) of the Act. The common intention of all the accuseds need not be supported by the fact that each one of them took part in actual commission of the offence." In this case I find from the witnesses of both the P.W. 1 and P.W. 2 that these accuseds entered into their 'Jhupri'. They were awakened by the sound made on their wall of their 'Jhupri'. When they awoke, they found these persons in their 'Jhupri'. A kerosene oil lamp was burning. They could find them in the light of the kerosene oil lamp. P.W.1 was examined as C.S.W.1 she has specifically stated that she could come to recognize the faces of the accused persons by the light of their kerosene oil lamp. It was small in size. She has also stated that there was a light post near their 'Jhupri' and there was another light post on the rail line. She could see them fleeing away in the light. The P.W. 2 has also been examined as C.S.W.2. She has stated that there was no electric connection inside their 'Jhupri'. The C.S.W.1 has also stated that there was no such electric connection inside their 'Jhupri'. The jnight with the help of the light of burning kerosene oil lamp. He has differed with the C.S.W.1 as he has stated that there was no light post by the side of the railway line at that time.
I have already quoted regarding the guidelines in the evaluation of the evidence of a prosecutrix of a sexual offence. It is true that the kerosene oil lamp was not produced before the court. In this regard I am in agreement with the Ld.P.P. in-charge with his submission that by the expiry of a period of more than a decade, it is very much natural that memory shall be weakened that perishable goods like K.Oil lamp shall be destroyed or may not be found. Exactly this has happened in this case." (Quoted as it appears from the Paper Book)
7. Considering the aforementioned facts and circumstances of the case we are of the view that the judgment of the learned Trial Judge is a well reasoned judgment which has taken into consideration all aspects of the matter and has finally and after much labour, found the appellants guilty. We are of the view therefore that the impugned judgment and the order of sentence requires no interference by this Court. The appeal stands Dismissed. No order as to costs.
(Tapen Sen, J.) I agree, (Tarun Kumar Gupta, J.) A.F.R / N.A.F.R