Calcutta High Court (Appellete Side)
Bikash Pramanik @ Subhas vs The State Of West Bengal on 13 December, 2019
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Before :
The Hon'ble Justice SAHIDULLAH MUNSHI
And
The Hon'ble Justice SUBHASIS DASGUPTA
C.R.A. No. 257 of 2015
Bikash Pramanik @ Subhas
... Appellant/Accused
(in Correctional Home)
-Versus
The State of West Bengal
... Respondent
Mr. Navnil De, Ms. Ayantika Roy Mr. Rajeshwar Chakraborty ... for the appellant Mr. Binoy Kumar Panda Mr. Narayan Prasad Agarwala, Mr. Arindam Sen ... for the State Heard on : 13.08.2019, 14.08.2019, 16.08.2019, 02.09.2019 & 03.09.2019.
Judgment on : December 13, 2019 Sahidullah Munshi, J.: This appeal is at the instance of Bikash Pramanik assailing the order of conviction dated 26th March, 2 2013 passed by the learned Additional Sessions Judge, Fast Track, 2nd Court Haldia, Purba Medinipur in Sessions Trial No. 04(8)/12, thereby convicting the appellant under Section 376(2)(g) of the Indian Penal Code and directing him to suffer rigorous imprisonment for life and to pay a fine of Rs.10,000/- in default to suffer rigorous imprisonment for one year and with a further order of conviction under Section 394 of the Indian Penal Code and sentencing to suffer rigorous imprisonment for 10 years and to a fine of Rs. 5,000/- in default to suffer further rigorous imprisonment for a term of six months and directing that both the sentences are to run concurrently.
The above order of sentences were passed against four persons namely, (1) Bikash Pramanik @ Subhas (2) Sanu @ Sachi Dolui (3) Ranjit Manna @ Kanai (4) Subhankar Jana of whom only Bikash Pramanik alias Subhas is the appellant before us. The appellant has been charged for the commission of an offence punishable under Section 382/394/376(2)(g) IPC. Briefly the prosecution case is that complainant Nandalal Chakraborty, husband of the victim, a resident of "Technovilla" Complex, Azad Hind Nagar, Haldia Township, Purba Medinipur at the time of commission of offence at 2.30 am on 15th /16th December, 2011 received an information over telephone from his wife that four miscreants broke open his flat after breaking padlock and iron grill of the main gate and committed physical assault upon his wife and son. They also committed physical torture upon his wife and stole away few articles including gold ornaments and cash. The miscreants also assaulted night guard of the said 3 residential complex and took away mobile phone of the security guard armed with iron rod, vojali (sharp cutting weapon) etc. On the basis of such written complaint Halida police started Haldia P.S. case no. 153/11 dated 17.12.11 under Section 382 IPC. Sub Inspector Ajay Kumar Mishra was entrusted to investigate the case and he recorded statements of the available witnesses; seized wearing apparels of the victim; seized broken lock and collected the copy of the statement recorded under Section 164 Cr.P.C. and thereafter, made a prayer for addition of offence under Section 376(2)(g) of Indian Penal Code before the learned Additional Chief Judicial Magistrate, Haldia. On his transfer the case was handed over to some other Investigating Officers namely, S.I. Gopal Patak and S.I. Santosh Hazra. In course of investigation TI parade of the accused persons were held. After completion of investigation charge-sheet was submitted under Section 382/376(2)(g)/394/412/123 of IPC against the accused persons, wherein one accused person namely, Sk Manirul was shown to be an absconder. The charge against this appellant was framed on 16.08.2012 under Section 382/394/376(2)(g) of IPC . Charge was read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried.
No evidence has been adduced by the defence but it appears from the trend of cross-examination that the accused/appellant pleaded innocence during examination under Section 313 of the Code of Criminal Procedure.
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The main thrust of the appellant in this appeal is that the testimony of the complainant regarding commencement of the offence cannot be believed inasmuch as the commission of offence was registered on 17th December, 2011 through written complaint by the husband (PW1) of the victim (PW2), but there was no whisper about the commission of offence under Section 376 IPC and it was only then disclosed before the learned Magistrate when her statement was recorded under Section 164 of the Code of Criminal Procedure on 19th December, 2011. The appellant submitted that although, immediately after the written complaint was lodged police recorded the statement of the victim, she did not disclose the commission of the offence under Section 376 IPC.
Learned advocate for the appellant tried to argue that Medical Report does not corroborate the statement of the victim recorded under Section 164 of the Code of Criminal Procedure, particularly, that the medical report (Exbt.3) does not show any injury upon her private parts. The report, however, shows injury to the extent "sub- conjunctival hemorrhage present on her left eye, bruise mark present below left lower eye lid"
Submission made by Mr. De that because of non-revealing injury in the private parts of the victim, allegation of rape cannot be believed particularly when the evidence of doctor examining the victim does not corroborate the statement of victim recorded under Section 164 of the Code of Criminal Procedure.5
Such submission of Mr. De, however, cannot be accepted in view of the decision in Lalliram & Anr. -Vs. - State of Madhya Pradesh reported in (2008) 10 SCC 69 the Hon'ble Apex Court has held that mere non-appearance of injury is not sufficient to hold acquittal of the accused. Therefore, such submission of Mr. De cannot be a basis to grant acquittal in this case.
Mr. De, further submitted that quality of the evidence of the victim is not good, however, we have already justified as to why the victim's statement under Section 164 Cr.P.C. is to be accepted in view of the corroboration. The victim herself stated that two accused persons violated her and two accused persons were assaulting her son in the nearby room. If this fact is established then it establishes the basis for punishment under Section 376(2)(g) read with Explanation-
1. Mr. De, learned advocate appearing for the appellant relied on the following decisions:
• Lalliram & Anr. -Vs. - State of Madhya Pradesh reported in (2008) 10 SCC 69;
• Om Prakash -Vs. - State of Haryana reported in AIR 2011 SC 2682;
• Unreported judgment in C.R.A. No. 591 of 2015 decided on 11.01.2019 in the case of Kamal Krishna Banik -Vs.
- State of West Bengal 6 • Rameshwar S/o Kalyan Singh -Vs. - The State of Rajasthan reported in AIR (39) 1992 SC 54;
• Rai Sandeep alias Deepu -Vs. - State of NCT of Delhi reported in AIR 2012 SC 3157 & • Rajesh Patel -Vs. - State of Jharkhand reported in AIR 2013 SC 1497.
Mr. De, learned advocate appearing for the appellant submitted that an accused is entitled to acquittal if the evidence of the witnesses shows contradiction and in particular when there is inconsistency in statement of the prosecutrix as regards the accused who committed rape upon her. In support of such proposition he relied on a decision in Laliram (supra) which is also a case under Section 376 (2)(g) of the Indian Penal Code meaning thereby the allegation is of gang rape. Banking upon the medical report that there was absence of any injury and where the testimony of the prosecutrix as well as the medical evidence the Hon'ble Apex Court held that the accused cannot be convicted on the basis of her version. The fact involved in this case is that "On 23rd September, 1985 in the evening the prosecutrix along with her husband Dayaram went to Khajuri. On the way near the field of Mangal, the appellants met them and started to abuse the prosecutrix. The appellants also started beating the husband of the prosecutrix and took the prosecutrix near the well of Kamal Singh where the accused Pooran Singh and Lalliram talked to Chaturbhuj. Dayaram was locked in a room. Then the appellants took away the 7 prosecutrix to the upper room of the house and committed rape repeatedly in the night. In the next morning they released the prosecutrix and warned her not to report to anybody. Then she brought Dayaram from the room and at that time Latura, Gyarasa, Bharo Singh, Kamal Singh and Harihar reached there. They were informed about the incident. The appellant also snatched a bag from prosecutrix containing Rs.25/- and identity card of Dayaram." In the said case order of acquittal was passed by the trial Court but High Court did upset the acquittal which has been held to be clearly unsustainable by the Hon'ble Apex Court while allowing the appeal.
In the said decision the Hon'ble Apex Court held that "However, if the Court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial." In the said cited decision the victim PW2 stated about her injuries on cheek and back. But such injury could not be related to medical examination repot. PW2/victim also stated that she suffered injuries on her legs. Such injuries were also not noticed. Several contradictions were noticed by the Hon'ble Apex Court and as a result evidence was not relied on and held acquittal to be justified.
Applying the tests laid down in the said decision this can safely be held that the fact of the said case does not tally with the fact of the present case. The present case is clearly distinguishable from the facts on the basis of which above decision was given by the Hon'ble Supreme Court. Simply because the victim did not disclose the 8 occurrence of rape to the post-occurrence witnesses there can be no reason to hold that her entire statement before the Police under Section 161 Cr.P.C. and before the Magistrate while recording her statement under Section 164 Cr.P.C. should be disbelieved or liable to be discarded, nor can there be any reason to hold that the evidence of the victim is not creditworthy. It is the settled law that even sentence can be given to the accused solely on the basis of the evidence of the prosecutrix and version of the prosecutrix if appears to be credible, then no corroboration is necessary as held by the Hon'ble Apex Court in Aman Kumar -Vs.- State of Haryana reported in (2004) 4 SCC
379.
Next decision in Om Prakash (supra) has been relied on by Mr. De on the issue that delay in lodging complaint is fatal for the prosecution to invite an order of conviction. Mr. De submitted that in the present case since the allegation of rape was not included in the FIR and it was brought only at the stage when her statement under Section 164 of the Code of Criminal Procedure was recorded by the Learned Magistrate, he submitted that such delay is fatal for the prosecution to establish the case of rape upon the victim beyond any reasonable doubt and the approach of the prosecution is shrouded with suspicion. Therefore, Mr. De submitted that the order of conviction passed by the learned trial Court should be set aside and the appellant should be acquitted of the offence complained of. The decision cited by Mr. De relates to an offence one of gang rape where the trial Court convicted the accused person under Section 363/368 9 & 376(2)(g) IPC. Two appellants preferred separate appeals before the High Court but were dismissed, upholding the judgment of conviction and order of sentence awarded by the trial Court. Judgment of the High Court was challenged in appeal before the Hon'ble Apex Court and the order of conviction and sentence was modified. Reducing the sentence whereby the appellant was acquitted of charge under Section 376(2)(g) IPC, however, conviction under Section 363 and 368 IPC was upheld and directed the accused to undergo rigorous imprisonment for five years with fine of Rs.5,000/- in default of payment of fine to undergo rigorous imprisonment for four months. While deciding the said appeal the Hon'ble Apex Court, however, made the observation "once a reasonable explanation is rendered by the prosecution then mere delay in lodging of a First Information Report would not necessarily prove fatal to the case of the prosecution." The above observation made by the Hon'ble Supreme Court has a direct impact in the present case at hand.
Therefore, simple delay is not fatal, unless a case is made out that the delay has not reasonably been explained which is not the case at hand. Here the delay has been explained and we, particularly, hold that the offence of rape upon a married lady cannot ordinarily be perceived to be disclosed to all people or the post-occurrence witnesses. The submission of Mr. De that she has not even disclosed the fact to her son, who was also a victim of the robbery, cannot be appreciated at all. Similarly, the stand taken by the appellant that she has not disclosed the fact to the security personnel after the 10 occurrence cannot also be appreciated at all. So far, the disclosure of the incident to the husband who was not present at the time of incident and was posted out station and informed by the wife over telephone, it is not expected that she would communicate everything over telephone to her husband before he comes back. Therefore, it can be logically concluded that instead of informing the husband over telephone who might be accompanied at the relevant time by other persons and she thought it not proper to communicate about such a heinous offence to her husband and when this phone call was made by the victim to her husband, her son was at home resulting thereby she was hesitant to disclose the fact to her husband. The attending circumstances does not permit us to hold that the delay in the instant case is such a delay which doubts the occurrence of the offence or that it remained unexplained or that it vitiates the prosecution's case either way.
Kamal Krishna Banik (supra) has been cited on the issue when seizure and FSL are absent with the prosecution case. Mr. De submitted that no articles were seized by the Investigating Officer and/or recovered from the appellant who was taken into custody on the very day of lodging of the FIR. He further submitted that victim did not speak to IO about the rape committed upon her and vaginal swarb of victim was not sent by the Investigating Officer for FSL. According to Mr. De this lacuna is sufficient enough to destroy the prosecution case. In the cited decision although, it was one of the issues regarding non-seizure of the wearing apparels of the victim and 11 the forensic examination of the appellant but there were other convincing evidence supporting prosecution case and there appears no ground to hold that the appellant was entitled to be acquitted.
In the said case the prosecution suppressed that the victim refused to get herself medically examined on the next day of occurrence after the FIR was lodged and this fact is coupled with other very important factors that the evidence of the victim was unreliable, inasmuch as in her cross-examination she stated that the appellant called her to his house, she shouted for help but such statement made by the victim during her cross-examination did not find support from her statement recorded under Section 164 of the Code of Criminal Procedure. That apart the medical Officer (PW6) did not support the allegation of rape. Therefore, the decision cited by Mr. De cannot be relied on to hold that his client is also on similar footing. Cited decision is thus distinguishable on fact.
The decision in Rameshwar (supra) has been cited by Mr. De to argue that delay is fatal to establish the prosecution case. In our case there is no doubt that there has been some delay in making the complaint of rape upon the victim lady but the attending circumstances justifies the delay in opening her mouth with regard to the commission of offence of rape to the police authorities. The offence was committed in the night of 15th and 16th December, 2011 at about 2.30 am and her husband lodged the complaint before the police on 17th December, 2011 about the robbery. In the said complaint nothing 12 was disclosed about the rape. Only what has been disclosed to the police authority by the husband/complainant is that the accused persons committed physical torture upon her. She informed her husband who was posted out station and for the first time she disclosed that rape was committed by the accused persons on 19th December, 2011 before the Learned Magistrate who recorded her statement under Section 164 of the Code of Criminal Procedure between 17th and 19th December, 2011, and thereby one day intervened and this might have happened because of the mental trauma which she suffered because of the inhuman behaviour caused by the accused person as is evident from her 164 statement as also her deposition in Court and there can be no reason not to implicate the accused persons in the offence of rape. TI Parade was held and she identified the offenders. That apart medical report (Exbt.3) and the examination of the Medical Officer who examined the victim corroborates the victim's testimony so also the statement under Section 164 of the victim. Exbt.2 and Exbt.3 if considered together there is no chance to disbelieve the witnesses deposing on those documents.
Therefore, delay, in our opinion is not so much, so that the prosecution case cannot inspire confidence of this Court. In our view, such delay of one day on the part of the victim to disclose the offence under Section 376 IPC for the first time before the learned Magistrate is not that fatal which may lead to the acquittal of the accused persons. The victim is a married lady and her son is a student of 13 Class-XII with security guard posted in her house and having some social status taking note of the fact that her husband is an engineer, if she has not made the fact public immediately, it cannot be construed that the victim concocted a story.
The decision in Rai Sandeep (supra) has been cited by Mr. De to argue that when prosecution relies on a particular witness here in this case the victim to be the 'starling witness', he should be of a very high quality and caliber whose version should be unassailable.
The decision in Rai Sandeep (supra) has been relied on by Mr. De to argue that the medical report does not corroborate the testimony of the victim lady and he relies on paragraph 23 of the decision which is set out hereinbelow:
"23:- In the decision reported as Lalliram & Anr. v. State of Madhya Pradesh (supra) in regard to an offence of gang rape falling under Section 376 (2) (g) this Court laid down the principles as under in paras 11 and 12:
"11. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by this Court in Pratap Misra v. State of Orissa where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor and if the prosecutrix's version is credible, then no corroboration is necessary. But if the prosecutrix's version is not credible then there would be need for corroboration. (See Aman Kumar v. State of Haryana.) 14
12. As rightly contended by learned counsel for the appellants, a decision has to be considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar case it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than the injured witness. In the latter case there is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial." (emphasis added)."
Paragraph 23 of the cited decision discusses the ratio of Lalliram (supra) which we have already discussed earlier. Injury, as held by the Hon'ble Apex Court, is not the sine qua non to come to a finding that the victim was violated or that there can be no finding that there has been rape upon the victim simply because the medical report does not disclose any mark of injury. In the case at hand as we have already pointed out that incident took place in the night of 15th and 16th December, 2011 whereas on 19th December, 2011 she has disclosed before the learned Magistrate about the offence under Section 376 IPC. Medical examination was held sometime later. Therefore, it is reasonably not possible to get any mark of injury as Mr. De sought to argue. That apart victim is a married lady aged about 50 years. Applying the same principles in Lalliram (supra) and 15 Rai Sandeep (supra) we can safely come to a conclusion in the present case that non-mention of mark of injury at the private part of the victim cannot give advantage to the accused for an order of acquittal from the offence complained of under Section 376 IPC. We apply the same principle as has been applied by the Hon'ble Apex Court that there is no rule that testimony of the victim cannot be acted upon without corroboration in material particulars. Being a victim of the offence complained of, she stands on a higher pedestal than the injured witness and it is not expected that the victim belonging to a noble family with high social status would disclose everything to the police authorities immediately after such an heinous offence committed by the accused persons. Therefore, this judgment cited by Mr. De showing acquittal of the accused persons is only applicable on the given fact on the basis of which the decision of acquittal was passed but the same ratio is not applicable in the present case as the same is distinguishable on fact.
The decision in Rajesh Patel (supra) has been cited by Mr. De, to argue that delay in disclosing the offence under Section 376 IPC by the victim before the police officials is detrimental to the prosecution case. As we have already discussed earlier about the delay and the delay is justifiable. The given decision shows a fact totally different and there it was eleven days delay whereas in the present case the delay is only two intervening days if not one. The fact of the case cited does not match with the present case and therefore, the same is distinguishable on fact and no reliance can be placed. 16
Mr. Panda learned advocate appearing for the State has rightly pointed out that delay in making FIR cannot be the sole ground to exonerate the offenders. He submitted that on the facts narrated in the written complaint and the attending circumstances proved by the prosecution it is established beyond reasonable doubt that the charge has been proved not only under Section 394 IPC but also under Section 376(2)(g) of the Indian Penal Code.
Mr. Panda further submitted that it is quite possible for a lady after being ravished in her own residence by miscreants in presence of her grown up child that she should suffer a mental trauma and this trauma so long exists, she cannot speak to others. So far the injury report is concerned Mr. Panda submitted that because of the lapse of time the injury must have been recovered in natural course. The evidence adduced by the prosecution sufficiently proved the offence under Section 394 IPC, that is, commission of robbery and the statement of the complainant has been corroborated by PW3 and PW5. If such incident is proved, if breaking open the padlocks and grill is proved at the dead at night simple denial of the incident of commission of rape upon the victim is not the sufficient defence for the accused. Totality of the evidence adduced by the prosecution has clearly established the charges both under Section 394 and 376(2)(g) IPC.
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Mr. Panda has also relied on a decision in Om Prakash -Vs. - State of Haryana reported in AIR 2011 SC 2682 which has been relied on by Mr. De too. Citing this decision Mr. Panda submitted that common intention of the accused is clearly evident from the evidence that they jointly broke open the padlock and grill, took the victim to bathroom and ravished her twice. Therefore, submission of Mr. De that his client is innocent cannot be accepted. He submitted that the decisions in Rajesh Patel -Vs. - State of Jharkhand reported in AIR 2013 SC 1497 and Rai Sandeep alias Deepu -Vs. - State of NCT of Delhi reported in AIR 2012 SC 3157 are not applicable in the present case and that apart they are distinguishable on fact.
In the present case PW2 (victim) was cross-examined at great length by the defence but she could not be shaken to any extent. Therefore, there is no reason why should we not believe the testimony of PW2 regarding the commission of the offence. Why the incident of physical violence could not be disclosed has been sufficiently explained by PW2 in her evidence, she stated that police interrogated her on 17th December, 2011 but she could not disclose everything due to shame and prestige but she disclosed to the police on 18th December, 2011. Such conduct of the victim not concealing anything in her testimony also supports her case that she spoke the truth, not only before the police but such fact has been recorded in 164 Statement (Exbt. 12) on 19th December, 2011. As statement made under Section 164 (Exbt. 12) Cr.P.C. may be used to corroborate or contradict a statement made in Court in the manner provided by 18 under Section 145 and 157 of the Indian Evidence Act. And in this case corroborative value of Exbt.12 cannot be denied. Her statement before the Magistrate has been well corroborated by her when she stated before the Court that accused persons assaulted her over her body; removed her wearing apparels; dragged her into bathroom and violated her. Another witness PW5 Somnath Chakraborty who is aged about 18 years and son of PW2 also stated before the learned Magistrate under Section 164 of the Code of Criminal Procedure and marked as Exbt.7 also is an important piece of evidence which corroborates the testimony of the victim PW2. This witness PW5 deposed that on 15/16th December, 2011 at about 2.30 hours at night he heard a sound of breaking of door and padlock and then accused persons entered into the house when he was sleeping in one room and his mother was sleeping in another adjoining room. He specifically stated that four miscreants entered into their house. He further deposed that two miscreants entered into his room and two other miscreants entered into his mother's room who assaulted him. He heard crying of his mother. The trial Court relying on the evidence of the son PW5 has rightly held that it is not expected that a son will make any false statement as to the chastity of her mother on dock. Therefore, testimony of PW5 is also very important in the present case to come to a finding that the offence under Section 376 IPC is not a concocted story made by PW2. PW5 fully corroborates the testimony of PW2.
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In the case at hand PW2 and PW5 at the time of their examination-in-chief also deposed before the Court that during the incident all the lights were switched on as PW5 was busy in preparing his study for his ensuing examination.
Such evidence at least would show that the accused persons could be identified if they were known but since the miscreants were not known to the victim TI Parade was held and during TI Parade both PW2 and PW5 identified the accused persons as would be evident from the report of TI Parade. Any of the Reports of TI Parade those were marked as Exbt.15, Exbt.16 and Exbt.18 would show that victim PW2 duly identified three accused persons namely Bikash Pramanik, Sanu and Ranjit Manna. Perfectness of the report and manner of conduct of the TIP is not under dispute at the instance of the defence as is evident from the examination of the accused persons under Section 313 of the Code of Criminal Procedure. The identification process was conducted inside correctional home because the accused persons were arrested by then.
The victim PW2 was examined by PW7 who prepared a report marked Exbt.11. Report indicates mark of injury over the parts of the body of the victim. However, no injury was clinically detected on the private organs of the victim. Question raised whether such circumstances of non-disclosure of the injury to the private parts of the body of the victim should in any way lead to acquittal of the accused persons. We have already elaborately discussed and we have 20 also considered the settled law on the issue that mere absence of injury on the prosecutrix is not by itself sufficient to hold that she has not been violated. The trial Court has rightly held that the medical evidence is an evidence of opinion but not the evidence of fact. It is not possible for a medical practitioner to say whether the victim has been raped or not. Rape is a medical diagnosis.
To this extent Mr. Panda is right in submitting that because of the delay the injury perhaps could not be detected which healed up in natural course. The medical examination was done on 22.12.2011 after seven days of the alleged incident and what Mr. Panda submitted has got some basis. In addition, the victim is an aged lady on 49 to 50 years and after all a mother of a grown up boy who is a student of Class-XII. Therefore, this argument on behalf of the defence that since there is no mark of injury charge should not have been held to be proved cannot be accepted.
Although, it is argued by the defence counsel that there are sufficient contradiction in the victim's statement with regard to the commission of rape and particularly that there are sufficient reasons to disbelieve the victim's testimony, we find that there is no such inconsistency nor is there any contradiction. The victim all throughout was consistent, cogent and otherwise truthful. The testimony of the victim inspires confidence of this Court. Therefore, when it is the settled law that sole-testimony of the prosecutrix can be sufficient to sentence the accused, there is no reason to come to a 21 conclusion that the prosecution case should fail inasmuch as victim did not react immediately after the commission of offence and as pointed out by the defence counsel that the complainant, did not mention the same in FIR.
A prosecutrix of a sex offence cannot be put on par with an accomplice. She is, in fact, a victim of the crime. The Evidence Act, 1872 nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. Apart from the corroboration to the extent, we have discussed, relying on the testimony of PW3 and PW5, we hold that undoubtedly, she is a competent witness within the meaning of Section 118 of the Indian Evidence Act and her evidence must receive the same weight as is attached to an injury in cases of physical violations as has been observed by the Hon'ble Apex Court in various decision.
Charge was framed under Section 394 of IPC against the accused persons and such charge has duly been proved by the prosecution by proving that (a) accused/appellant committed or attempted to commit robbery; (b) either the appellant or anyone else jointly concerned in committing or attempting to commit robbery caused hurt; (c) such hurt was caused voluntarily. Offence of robbery is contained under Section 394 of the Indian Penal Code.
The important facet of Section 394 IPC is voluntarily causing hurt in course of committing or attempting to commit robbery by any person or with any other person jointly shall be punished with 22 imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years and is also liable to fine.
The learned Court below upon due consideration of the evidence adduced by the prosecution arrived at a finding that the alleged incident of robbery actually took place on the date mentioned in the FIR. The witnesses witnessed that accused persons entered into the house after breaking open padlock of the complainant's room and caused assault upon his son and wife, tortured his wife and after breaking almirah stolen away two gold chains, ear rings, bangles, four mobile phones, digital camera, wrist watch and cash of Rs.20,000/-. PW2 and PW5 witnessed the said incident. PW5 who was present at the time of alleged incident has corroborated the said facts. The accused persons assaulted the victim; and assaulted victim's son and ultimately, robbed away digital camera, wrist watch and some cash from almirah. PW3 in his evidence deposed that accused persons entered into the building complex and assaulted him and thereafter snatched away his mobile phone and Rs.80/-. He deposed that the accused persons snatched away the keys of the gate. From the above evidence it is evident that the alleged incident of robbery took place on the aforementioned date as mentioned in the written complaint filed by PW1. More so, the accused persons were duly identified by the witnesses inside the correctional home at the time of conduct of identification parade in presence of a Magistrate and those witnesses also identified the accused persons in Court during trial. 23
It is, therefore, evident that the accused persons used force and assaulted physically PW2, PW3 and PW5 and commission of such act attracts the provisions of Section 382 IPC. The act of robbery with voluntarily causing hurt attracts the prescribed punishment under Section 394 IPC. Therefore, in our view the learned Court below has rightly answered the charge under Section 394 IPC in positive.
It is now the law settled that even other witnesses in a case like this where commission of offence has been alleged under Section 376 IPC, the evidence of the victim alone can be sufficiently relied on to sentence the accused persons if such evidence of the victim inspires confidence upon the Court and the evidence seems to be creditworthy.
This discussion we have made earlier and there is no doubt in our mind to hold that the evidence of the victim is by any means could be doubted or that her testimony is not creditworthy, or that the evidence has not been corroborated by other witnesses. In such a situation we do not justify that simply because during the lodging of the complaint on 17th December, 2011 the offence of rape was not mentioned but it was subsequently mentioned before the learned Magistrate while recording her statement under Section 164 of the Code of Criminal Procedure would be sufficient to disbelieve the testimony of PW1 or that we should consider that there have been no offence committed by the appellants. We reiterate that when the offence under Section 394 IPC has been proved and evidence available in support thereof could not be doubted seriously by the defence, the 24 offence being one under Section 376 IPC which is in connection with the earlier offence cannot brush aside simply because the accused persons are of the same age group of 19 years as submitted by Mr. De. Mr. De has reiterated by relying on a decision in Lalliram & Anr.
-Vs. - State of Madhya Pradesh reported in (2008) 10 SCC 69 to submit that similar lenient view may be taken considering the age of the accused persons. We, however, are not convinced at all with such submission made by Mr. De.
So far, the sentence imposed by the learned Court below with regard to the charge under Section 394 IPC is concerned, we do not find any illegality. We, therefore, affirm the order of conviction and sentence under Section 394 IPC.
So far the charge under Section 376(2)(g) IPC in view of the evidence as discussed earlier, we hold that the said charge has also been proved by the prosecution beyond all reasonable doubt.
The order of conviction passed by the learned Court below under Section 376(2)(g)/394 IPC are hereby confirmed.
There is no merit in the appeal and the same is hereby, dismissed.
The Criminal Section is directed to send down the records to the learned Court below together with a copy of the judgment forthwith to the concerned learned trial Court.
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Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities.
I agree.
(Subhasis Dasgupta, J.) (Sahidullah Munshi, J.)