Calcutta High Court (Appellete Side)
Premlal Das & Anr vs State Of West Bengal on 2 March, 2020
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item No. 214 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present:
The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Tirthankar Ghosh C.R.A. 515 of 2015 Premlal Das & Anr.
Vs.
State of West Bengal
For the appellants : Mr. Sanjay Banerjee, Adv.
Mr. Joydeep Bhattacharjee, Adv.
Ms. S. Chakraborty, Adv.
For the State : Ms. Zareen N. Khan, Adv.
Ms. Manasi Roy, Adv.
Heard on : 02.03.2020
Judgment on : 02.03.2020
Joymalya Bagchi, J.:-
The appellants are before us challenging the judgment and order of conviction under section 376(2)(g) of the Indian Penal Code and sentence of ten years rigorous imprisonment and fine of Rs. 20,000/- (Rupees twenty thousand only) each, in default, further sentence of one year rigorous imprisonment.
The crux of the prosecution case leading to the conviction is as follows: -
On 5th May, 2004 P.W. 1, the victim herein, along with her husband P.W. 2 had gone to attend the marriage of their neighbour Haribandhu Das, P.W. 11. After the marriage they were enjoying a video show. At that time Premlal Das and 2 Gopal Das, acquaintances of her husband called the latter away. After sometime Premlal and Gopal told the victim that her husband was lying senseless on the field. Accordingly, she accompanied them to the deserted field. There the appellants caught hold of her and committed rape upon her one after another. They also poured liquor into her mouth. As a result of such brutal assault, she became unconscious. Next morning, her brother, P.W. 5, who had accompanied her to the marriage informed her father, P.W.4 of the incident. P.W. 4 and others came to the spot and carried the victim and her husband to their residence. Victim gained consciousness at her father's residence and narrated the incident to her husband and others. She was treated in the hospital for three days. In the hospital she reported the incident to the doctor who treated her. Subsequently, she lodged complaint with Kakdwip Police Station resulting in registration of Kakdwip P.S. Case No. 45 dated 19.05.2004 under sections 376(2)(g) of the Indian Penal Code against the appellants.
During investigation, statement of the victim was recorded before the Magistrate and the charge-sheet was filed against the appellant.
Charge was framed under section 376(2)(g) of the Indian Penal Code. Appellants pleaded not guilty and claimed to be tried. In course of trial prosecution examined 15 witnesses including the victim, P.W. 1.
Defence of the appellants was one of innocence and false implication. It was their specific defence that the P.W. 2, Sanjay Goldar @ Bapi, husband of the victim had taken a loan of Rs. 10,000/- (Rupees ten thousand only) from them and as they had demanded repayment of the loan they were falsely implicated in the instant case which had been belatedly registered. 3
In conclusion of trial, trial Court by the impugned judgment and order dated 10.07.2015 and 13.07.2015 convicted and sentenced the appellants, as aforesaid.
Mr. Sanjay Banerjee, learned advocate appearing for the appellants strenuously argued that the prosecution case is a false and concocted one which was belatedly registered after 15 days. No explanation for such delay is forthcoming. On the other hand, P.W. 1 remained mum and did not lodge complaint although she met the police on the next day. Unnatural conduct of P.W. 1 and her husband, P.W. 2 renders the prosecution case improbable. Appellants had lent money to P.W. 2 and as they demanded repayment of the loan, they were falsely implicated in the instant case. No mark of injury supporting a case of gang rape was found on the body of the victim. None of the invitees to the marriage have been examined to support the prosecution case which is founded on the sole evidence of the victim and her husband. Panchayat members, P.W.s 7 and 10 have not supported the allegation of gang rape. Evidence of brother of the victim, P.W. 5, also suffers from various inconsistencies. Accordingly, version of the victim is improbable and conviction ought not to be found on her evidence.
Ms. Khan, learned Counsel appearing with Ms. Roy, learned Counsel for the State argued the version of P.W. 1 is corroborated by other witnesses including her husband, P.W 2 and brother, P.W. 5. She withstood lengthy cross-examination and denied the suggestion that the appellants had lent money to her husband - reason for false implication. Her evidence is consistent with her statement before the learned Magistrate marked as Exbt.-2 series. At the earliest opportunity, she narrated the incident of gang rape to the Medical Officer at Kakdwip Hospital marked as Exbt.-4 which improbabilises the defence plea of belated accusation of rape. P.W 2, Sanjay Goldar @ Bapi, explained away the delay in lodging F.I.R. in 4 his deposition. Such explanation is not unnatural keeping in mind the poor and defenceless condition of the victim and her husband who worked as a fisherman in a trawler. Hence, the prosecution case is clearly established and the appeal is liable to be allowed.
P.W. 1 is the victim in the instant case. She, in her deposition, has graphically described the manner in which she was raped by the appellants, one after another. On the fateful day she had accompanied her husband (P.W. 2) to attend the marriage of their neighbour, Haribandhu Das. After dinner she along with her husband was watching a video show organised in connection with the marriage. Premlal Das and Gopal Das were acquaintances of her husband and were present in the marriage ceremony too. They took her husband away for drinks. After 30/40 minutes, both of them returned and told P.W 1 that her husband was lying senseless in the field. Hearing this, P.W 1 rushed to the spot along with them. After she had reached a deserted place 15/20 cubits away from the pandal, appellants forcefully dragged her to the ground and raped her one after another. Premlal poured liquor into her mouth. Thereafter they ran away from the spot. She found her husband lying unconscious 10/15 cubits away from the spot. She dragged herself near her husband and became senseless. In the morning, she regained consciousness at her father's residence. Policemen came to the spot. She was too stunned and was unable to narrate the incident to them. She was brought to Kakdwip Police Station and thereafter taken to Kakdwip Hospital who referred her to Diamond Harbour Hospital. At Diamond Harbour Hospital she was admitted for two days. She went to the police station as well as Panchayet office and party office. Thereafter, she lodged complaint marked as Exbt.-1. She also made statement before the learned Magistrate marked as Exbt.-2 series. She was medically examined in the hospital.
5
In her cross-examination she denied the suggestion that the appellants had advanced money to her husband in connection with their marriage. She, however, stated after the incident she and her husband were residing in Kolkata. She also stated they had informed the incident to Subroto Panigrahi, Panchayet member.
P.W 2, husband of the victim had substantially corroborated her version. He stated around 2.30 A.M. to 3.00A.M. while she was watching video show along with his wife at the residence of Haribandhu, the appellants who were acquainted to him proposed a drink. He left the spot along with them. After taking a drink, he became unconscious. He woke up at his in-laws' house next morning. His wife narrated the incident of gang rape to him. He informed the incident to local Panchayet members. They also informed Kakdwip Police Station who advised him to take his wife to a doctor. Her wife was admitted at Diamond Harbour Hospital for three days. After discharge he was assured by local club members that they would take steps against the accused persons. Local club members interrogated the accused persons in the party office where they admitted their guilt. Thereafter the party office members told them either to lodge case or to pardon the accused persons. Finally, he took his wife to the police station and lodged F.I.R which was scribed by him marked as Exbt.-1.
In cross-examination, he stated that he worked as fisherman and was acquainted to Gauranga who also worked with him. Premlal was his brother. He denied having taken any loan from the appellants.
P.W. 5 is the brother of P.W 1 who had accompanied her to the marriage ceremony. He was ten years old. He deposed after dinner her sister and brother- in-law went to watch a video show. He watched the video show for sometime. As he was feeling sleepy he went to the house and slept beside his niece, that is child of his sister. In the morning a lady woke him up and told him that his sister was 6 lying in senseless condition in the field and asked him to inform his parents. He rushed to his house and informed his parents. His parents went to the field and brought back his sister and her husband to their residence.
P.W 4 is the father of the deceased. He deposed around 5 A.M. his younger son informed him that his sister and brother-in-law were lying unconscious in the field. Accordingly, he brought them back to his residence. His daughter regained consciousness and narrated the incident to him. Police and Panchayet member came to his residence. He took his daughter to the Kakdwip Police Station and then she was admitted in the Hospital for three days. Initially, local people tried to settle the matter out of Court. Subsequently they told them to lodge F.I.R.
P.W 6 is the mother of the victim, P.W 1. She corroborated the evidence of her husband, P.W 4.
Evidence of the victim and her relations, as aforesaid, have been criticised by the learned Counsel appearing for the appellants on various scores. Firstly, it is contended there is inordinate delay of fifteen days in lodging F.I.R. Secondly, it is argued none of the invitees of the marriage have supported P.W 1 with regard to the allegation of gang rape. Thirdly, it is submitted Panchayet members P.Ws. 7 and 10 have not supported the case of gang rape. Finally it is argued P.W 8 and P.W 14, doctors who treated P.W.1, did not find any injury mark on her supporting the case of gang rape.
I have given anxious consideration to the aforesaid submissions. Evidence of rape a victim is to be treated at par with that of an injured witness. Her version ought not to be discarded lightly on minor contradictions or inconsistencies.1 However, if the evidence of the victim is so inherently improbable and opposed to normal human conduct it may not be prudent to rely on her deposition to bring 1 State of Punjab vs. Gurmit Singh & Ors., (1996) 2 SCC 384.
7home the guilt against the accused. I have kept in mind these wholesome principles while assessing the evidence of P.W. 1. P.W. 1 claimed she was watching a video show organised at the time of marriage ceremony of Haribandhu, a neighbour. P.W 11, Haribandhu Das corroborated P.W 1 with regard to her presence along with her husband at the marriage ceremony. He deposed a video show had been organised in connection with the marriage. The said witness also deposed regarding the presence of the appellants as invitees to the marriage. Hence, these parts of the evidence of P.W 1 find corroboration from the evidence of Haribandhu. While watching the video show, the appellants called away her husband, P.W. 2 on the excuse of having a drink. P.W 2 in his evidence stated he was acquainted with the appellants through other fishermen. Hence, it is not unnatural that P.W 2 had accompanied the appellants who were his acquaintances to a nearby field to have a drink. After having a drink, P.W 2 fell unconscious. Taking advantage of the situation the appellants approached the victim and told her that her husband had become unconscious. Learned Counsel appearing for the appellants argued it was unnatural for the victim to accompany the appellants alone. I do not find her conduct either unnatural or opposed to normal human conduct. Hearing the alarming news of her husband falling unconscious, it was most natural for a wife to rush to the aid of her husband. Appellants were acquaintances of her husband and the latter had accompanied them for a drink. In this backdrop of these facts, it was unimaginable for P.W 1 to suspect foul play at the behest of the appellants.
However, her trust in them was wholly misplaced. As soon as the appellants allured away the victim from the video show to a deserted field, they pushed her to the ground and committed gang rape upon her. They even poured liquor in her mouth. Thereafter, they left her at the spot. P.W. 1 somehow 8 dragged herself near the unconscious body of her husband and exhausted by the trauma fell unconscious. Her younger brother P.W. 5, who had accompanied her to the marriage ceremony, had fallen asleep in the marriage house. In the morning, a lady woke him up and told him that his sister was lying senseless in the field. Hearing the news, he rushed to his house and informed his father PW 4 about the incident. P.W.4 and others rescued his daughter and son in law. The aforesaid events leading to the brutal sexual assault on the lady does not portray either an unnatural or absurd state of affairs. On the other hand, it discloses a pre-planned modus operandi on the part of the appellants to allure away the victim to a deserted place after they had incapacitated her husband by administering intoxicated drinks. Thereafter, the appellants satiated their carnal lust. Due to such brutal assault, victim fell unconscious and finally regained her consciousness at her father's residence.
Thereafter, she narrated the incident to her father and husband. Police and panchayet members arrived at the spot. Incident was narrated to the police and the panchayat members also. Police, however, failed to take action in the matter and referred the victim to the hospital. At the hospital, victim was initially treated by PW 8 who noted history of sexual assault by Premlal and Gopal on 6.5.02 at 3.30 am in the injury report (Ext. 4). Seeing the condition of the victim and owing to lack of proper infrastructure, P.W.8 referred her to Diamond Harbour SD hospital. At Diamond Harbour SD hospital, victim was treated by PW 14. He deposed victim was admitted at the hospital on 6.5.04 upon referral from Kakdwip Rural hospital. History of sexual assault on 5.5.04 at 4 a.m. by Premlal was noted in the examination report (Ext. 7). He examined the victim and proved the bed head ticket containing the examination report. Victim was treated in the said hospital for 2/3 days. Upon her discharge PW 2, 9 her husband took up the matter with the local people. They brought the appellants to the party office where they admitted their guilt. Thereafter they informed PW 2 either to pardon the appellants or lodge FIR. As the panchayet people or local people failed to take action, PW 1 lodged complaint against the appellants after 14 days.
In the light of the aforesaid evidence on record, I am unable to accept the contention on behalf of the appellants that the prosecution case of gang rape is untrue as there is delay of 14 days in loading FIR. On the other hand, evidence on record reminds me of the pitiable reality of secondary victimisation of a victim of rape. Not only had she been allured away and raped by the appellants but when she narrated the incident to the police and panchayet members, none of the said functionaries considered it necessary to forthwith set the law into motion. Only the medical officers noted the incident of gang rape in the hospital records. After treatment in the hospital when PW 1 and her husband approached local people for assistance they sought to settle the matter out of court and finally after 14 days advised PW 1 either to pardon the appellants or lodge FIR.
PW 1 is the wife of a fisherman who used to eke his livelihood as a daily wage earner. She does not come from secured economic or social background. A victim of sex crime particularly one who come from the marginalised section of society as in the present case requires to muster up immense courage and confidence to come out with her accusation of rape to outsiders. Even when such a victim overcomes shame and other social inhibitions and comes out with an accusation of rape, it is distressing to note how the police authorities in an indifferent and casual manner shirk their responsibilities and fail to act with promptitude and provide immediate legal redress. To add salt to injury, such 10 indolence of the law enforcement agencies are portrayed by the appellants in the present case as a ground to disbelieve the victim's accusation of gang rape. One cannot imagine a more pathetic and painful state of affairs. Hollowness of such defence is clearly portrayed by the unequivocal disclosure of gang rape by the victim in the hospital at the earliest opportunity. Hence, I have no hesitation to reject the submission of the appellants that delay in lodging FIR in the present case is a ground to disbelieve the case of gang rape narrated by the prosecutrix at the earliest opportunity to the hospital authorities and soon thereafter to the magistrate and finally in court. I also do not find any inconsistency or contradiction in her version in court when compared to her statement in the FIR before the magistrate.
Plea of false implication of the appellants on the ground they had advanced a loan of Rs.10,000/- to P.W.2, husband of the victim, during their marriage has not been probabilised by the defence. Such suggestion was squarely refuted by prosecution witnesses and no independent evidence was led by defence to probabilise such plea.
Absence of injuries is another ground of challenge to her version. It is trite law version of a victim of rape if reliable cannot be discarded due to absence of injuries on her person. Appellants pinned her to the ground and raped her one after another. Thereafter, one of them poured liquor into her mouth and forced her to drink it. Manner in which she was assaulted leaves no doubt in my mind that she was a helpless victim in the hands of her powerful predators. As a result, she was unable to offer resistance. Naturally, no injuries were found on her person. I am further fortified to come to such conclusion as the victim was a married lady who had two children and, therefore, act of sexual assault did not leave behind any visible mark of injury in the private parts. Absence of visible 11 marks of injury do not erode the deep and grave scars caused on her psyche owing to such brutal sexual assault. In this factual backdrop it would therefore be incorrect to come to a finding that version of the prosecutrix is unbelievable as no visible marks of injury was noted on her person.
In the light of the aforesaid discussion, I am of the opinion the conviction and sentence of the appellants are well founded and does not require interference.
Accordingly, the appeal is dismissed.
Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure.
Copy of the judgment along with L.C.R. be sent down to the trial court at once.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
I agree.
(Tirthankar Ghosh, J.) (Joymalya Bagchi, J.) ss/s das/tkm & PA