Calcutta High Court (Appellete Side)
Bapai Sarkar @ Papai vs The State Of West Bengal on 18 April, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
C.R.A. No. 491 of 2016
With
CRAN 875 of 2017
Bapai Sarkar @ Papai
Versus
The State of West Bengal
For the Appellant : Mrs. Chhabi Roy
For the State : Mr. Saswata Gopal Mukherjee,
Ld. P.P.,
Mr. Ayan Basu.
Heard on : 18th April, 2017
Judgement on : 18th April, 2017
Joymalya Bagchi, J.:
Lower court records have been received and placed before this Court. With the consent of the parties, the appeal is taken up for hearing without preparation of the paper books.
The appeal is directed against the judgement and order dated 29.6.2016 and 30.6.2016 passed by the learned Additional Sessions Judge, Fast Tract 3rd Court at Alipore in S.T. Case No.3 (7) 13 and Sessions Case No.7 (2) 13 convicting the appellant for commission of offence punishable under Section 376 2 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-, in default, to suffer further rigorous imprisonment for one year more.
Prosecution case, as alleged, against the appellant is that the victim girl used to work as a maid servant in the house of one Maya Halder, P.W.1. She had three children. On the fateful day i.e. on 22.12.2012 at 4.30 P.M. while she had gone out from her room to collect dry cloths, the appellant surreptitiously entered her rented apartment and when she returned to her apartment, the appellant closed the door and forcibly undressed her, gagged her mouth and threw her on the cot and committed rape upon her against her will. She informed the incident to her next door neighbour who took her to the police station and a criminal case was registered being Haridebpur Police Station No.492 of 2012 dated 22.1.2012 under Section 376 of the Indian Penal Code. In the course of investigation, the statement of the victim was recorded under Section 164 of the Code of Criminal Procedure. She was medically examined and charge sheet was filed under Section 376 of the Indian Penal Code. The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of the learned Additional Sessions Judge, Fast Track 3rd Court at Alipore for trial and disposal. Charge was framed under Section 376 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. It was his specific defence that he has been falsely implicated out of prior enmity. Prosecution examined as many as seven witnesses and exhibited a number of documents to prove its case. In 3 conclusion of trial, the trial court by judgement and order dated 29.6.2016 and 30.6.2016 convicted and sentenced the appellant, as aforesaid.
Learned Counsel appearing for the appellant submits that the evidence of P.W.3, victim is patently improbable and suffers from embellishments and contradictions. P.W.3 deposed that she was ravished in a rented room in the afternoon and there were other occupants in adjoining rented apartments which is patently absurd and inherently improbable. Medical evidence also does not support the allegation of rape. The appellant has been falsely implicated out of previous grudge. Accordingly, she prayed for acquittal of the appellant.
On the other hand, learned Counsel appearing for the State submits that immediately after the incident of rape, the victim narrated the incident to P.W.1 including the local people. F.I.R. was promptly recorded. In view of the fact that the victim was mother of three children, absence of injuries on her private parts does not militate against the truthfulness of her version. Hence, the appeal is liable to be dismissed.
P.W.3 is the victim and the most vital witness in the instant case. She deposed that one year ago in the month of December the incident occurred at about 4.00 P.M. On that day in the afternoon she had returned home after work. She entered room after opening the lock and thereafter she went to collect dry clothes from the courtyard and when she returned to her room she found the appellant there. The appellant closed the door from inside and forcibly wrapped her mouth with sari and thereafter undressed her and forcibly threw her on the cot and ravished her against her will. At that time, she resisted the appellant but 4 was unable to do. The appellant also threatened her not to disclose the fact to anybody and if she narrated the incident to any person, he would kill her. 5/10 minutes after the incident, she went to the house of Maya Halder, P.W.1 and started crying. On being enquiry she informed that she wanted to commit suicide and asked Maya to take care of her youngest daughter, Barsa. Thereafter, she narrated the incident to Maya. Maya and other people went to the house of the appellant when the police came and arrested the appellant. Maya also took her to the police station and thereafter to Bangur hospital. She lodged written complaint and signed on it, Ext.1/1. On the next date, she was released from hospital. She was produced before the Magistrate who recorded her statement. She proved her signature thereon Ext.2/1. She identified the appellant. Police seized her wearing apparels under a seizure list where she put her signature, Ext.3/1.
In cross-examination, she stated that her husband had left her four years ago. She resided in the house of Puspa Rani, P.W.4. She used to work as a maidservant. She gave out the names of her former employers. She stated that she was working in the house of Maya Halder, P.W.1 for the last three years. She stated that there are nine rooms in the house of Puspa Rani which are let out. There is a well in front of the house of Puspa Rani. Her room is situated on the last part of the house. She could not state the names of the other residents. She obstructed the appellant when he tried to undress her. At the time of incident, there was scuffling. Due to scuffling, she sustained injuries on her hand and leg. 5 Her room is about 12 cubits/10 cubits with one door and two windows. Nobody came to the place of occurrence at the time of incident.
Evidence of the victim has been corroborated by P.W.1, her employer and her husband, P.W.2. P.W.1 Maya Halder deposed that the victim was working as maid servant in her house. On 22.12.2012 at 3.00 P.M. she left her house after doing the household work and came back at about 6.30 P.M. in the evening and told that she would commit suicide and asked her to take care of her daughter. She was crying and on questioning she narrated that the appellant had raped her on that day. The witness informed her husband of the said incident. The local people were also informed. Thereafter the matter was informed to the police. The police arrested the appellant. The victim was interrogated by the police. She was also medically examined and admitted in hospital. On the next day she was again examined in hospital and produced before the Court for recording her statement.
In cross-examination she deposed that her house and that of Puspa Rani was two minutes walk away. Her husband has business in plastic cap and other plastic goods. Since the alleged incident, the victim is residing at her house. Police interrogated her on 22.12.2012 at 9.00 P.M. She denied that there was any dispute between the appellant and her husband.
P.W.2 Mukul Kumar Kundu is the husband of the P.W.1. He has corroborated the evidence of his wife, P.W.1.
In cross-examination, he stated that he has business in plastic bottle caps. He denied that he knew that the appellant drove auto.
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P.W.4 is the landlady of the victim and admitted that the victim used to reside in her house. She stated that she heard from the people about the incident of rape upon the victim.
In cross-examination she stated that on returning home she found that P.W.1 along with the victim and a number of people were discussing the incident of rape upon the victim by the appellant.
P.Ws.5 and 6 are the medical witnesses. P.W.5 deposed that he was posted at M. R. Bangur hospital as Gynaecologist at the time of the incident. He examined the victim on 23.12.2012 at 11.45 a.m. The victim stated that she was sexually assaulted by the appellant at 4.30 P.M. on 22.12.2012. He did not find any mark of injury on her body. Hymen was ruptured, vagina is spacious and admitted two fingers easily. He could not give definite opinion as to whether the victim was raped or not. He proved the medical report, Ext.4.
P.W.6 was posted at Superintendent of Alipore Police Case Hospital at the time of the incident on 22.12.2012. He examined the victim. He found her hymen was ruptured. In his opinion she was experienced and habituated to sexual intercourse. He proved his medical report. He also examined that the appellant and opined that he was capable to perform sexual intercourse.
In cross-examination he deposed that apart from old tear in the hymen of the V.G., he did not find any injury on the victim.
P.W. 7 is the investigating officer in the instant case. During investigation he recorded the statement of the victim and visited the place of occurrence and prepared a rough sketch map with index, Ext-7. He examined witnesses, 7 recorded their statements and seized the wearing apparels of the victim. He took the victim to be medically examined at M.R. Bangur hospital. He arrested the appellant. He caused medical examination of the appellant. He produced the victim before the learned Magistrate for recording her statement under Section 164 of the Code of Criminal Procedure and collected her medical examination report. He prepared the seizure list in his own hand. He sent the seized articles to FSL for chemical examination, Ext.3. He proved the formal FIR, Ext.8. On completion of investigation he submitted charge-sheet.
From the facts on record, it appears that the victim P.W. 3 is an unfortunate lady who had been deserted by her husband. She lived with three minor children in a small tenanted room and she used to work as a maidservant under P.W.1. On the fateful day i.e. 22.12.2013 after completion of domestic work in the house of P.W.1, she returned home and entered her room after opening the lock and thereafter, she went out to collect dry clothes. When she came back, she found that the appellant was inside the room. The appellant closed the door from inside, wrapped her mouth with saree, undressed her and forcibly ravished her. Thereafter, the appellant left her in the room. She went crying to the house of Maya Halder. On being asked she informed her that she intended to commit suicide and that P.W.1 should take care of her youngest child. Since the victim was in such distressed condition, P.W. 1 further questioned her, whereupon the victim narrated the incident to her and her husband P.W. 3 and they took her to police station where the victim lodged first information report against the appellant. The victim was admitted to M.R. 8 Bangur Hospital Kolkata for medical examination. She was medically examined by P.W. 5 on 23rd December, 2012 and by P.W.6 on 24th December, 2012 respectively. Her statement was recorded before the learned Magistrate under Section 164 Code of Criminal Procedure.
The version of the victim has been severely criticized by the learned counsel appearing for the appellant on the ground that it is not worthy of credence as the medical evidence of P.W. 5 and P.W. 6 does not support forcible rape. It is argued that neither P.W. 5 nor P.W. 6 found any marks of injury on the victim although the victim stated that she had suffered injuries on her hand and leg. It is also submitted that the place of occurrence is a small tenanted room which is 12 by 10 cubits and is separated by a wall from other rooms which are occupied by inhabitants. It is absurd that the victim could have been ravished in the afternoon at such a place and nobody came to her rescue.
I have considered the aforesaid submissions in the light of the evidence on record. It is true that the medical evidence does not speak of any injury on the victim. However, one cannot lose sight of the fact that the victim was a lady with three children and therefore, the chance of suffering injury due to sexual intercourse was highly unlikely. That apart, it has come on record that the appellant gagged the victim, over powered her and ravished her. Injuries on the victim were definitely superficial in nature and, therefor, unnoticed by the doctors.
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Hence, I am unable to accept the contention of the learned lawyer appearing for the appellant that the version of the victim ought to be disbelieved as no injuries were found upon her during medical examination.
That apart, the version of the victim in the instant case has been corroborated by her employer P.W. 1 and her husband P.W. 2 and they helped her to promptly report the incident to the police. Defence has not been enable to create any dent in the version of the said witnesses. A vague suggestion as to enmity between the appellant and P.W. 3 was denied by the said witness and nothing has been placed on record to probabilise such defence.
With regard to the argument that the alleged incident of rape could not have occurred in the manner and course as depicted by the victim, I am unable to accept such contention also. P.W. 3 categorically deposed that she had been gagged and forcibly raped. Accordingly, she could not cry for help. Hence, the question of other inmates arriving at the place of occurrence upon hearing her calls for help does not arise at all. The prosecution case cannot be said to suffer any improbability or absurdity on such score.
The evidence of P.W. 3, the victim, is reliable and convincing and has been corroborated by P.W. 1 and P.W. 2. F.I.R. also has been promptly lodged in this case without any delay ruling out any chance of false implication.
Moreso, there is nothing on record to show that there was any inimical relationship between appellant on the one hand and the victim and her witnesses on the other hand.
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Hence, I am of the opinion that the prosecution has been failed to prove its case also beyond reasonable doubt. Conviction and sentence imposed upon the appellant is upheld.
Period of detention suffered by the appellant under investigation, enquiry or trial shall be set off against substantive sentence in terms of Section 428 of the Code of Criminal Procedure.
The appeal and the connected application are accordingly dismissed. Copy of the judgment along with the lower Court record be sent down at once.
Photostat certified copy of the order, if applied for, be given to the parties on priority basis.
(Joymalya Bagchi, J.) as