Calcutta High Court (Appellete Side)
Alam vs The State Of West Bengal on 15 September, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
C.R.A. 201 of 2014
Inadul Alam @ Inadul Haque @ Indadul Haque @ Idadul Haque @ Imdadul
Alam
-Vs-
The State of West Bengal
For the Appellant : Mr. Asis Sanyal .. Sr. Advocate
Mr. Amit Roy
For the State : Mr. Ranadeb Sengupta
Heard on : 15.09.2016
Judgement on: 15.09.2016
Joymalya Bagchi, J. :-
The appeal is directed against judgement and order dated 16th January, 2014
passed by the learned Additional Sessions Judge, FTC-II, Islampur, Uttar Dinajpur
convicting the appellant for commission of offence punishable under Section 376 of the
Indian Penal Code and sentencing him to suffer simple imprisonment for seven years and
to pay a fine of Rs.2,000/-, in default, to suffer imprisonment for one year more.
The prosecution case as alleged against the appellant is as follows :-
One Jalinur Khatun (PW1) lodged a written complaint on 25th November, 2010
before Inspector-in-charge, Chakulia Police Station alleging that on 24th November, 2010
when she had gone out of her house to relieve herself under a mango tree, the accused-
appellant accosted her from behind, gagged her mouth with a scarf and dragged her in a
paddy field at a distance of 200/250 metres away on the eastern side of her house. The
appellant thereafter threatened her with a knife and raped her against her will. She lost her
senses due to pain and the appellant ran away leaving her behind in the paddy field. On
her written complaint, Chakulia Police Station Case No. 301/2010 dated 25th November,
2010 was registered for investigation. In conclusion of investigation, charge-sheet was
filed in the instant case and the case was committed to the Court of Sessions and
transferred to the Court of the learned Additional Sessions Judge, Fast Track Court-II 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. In the course of trial, prosecution
examined as many as 12 witnesses. The defence of the appellant was one of innocence
and false implication. In conclusion of trial, the trial court convicted and sentenced the
appellant, as aforesaid.
Mr. Asis Sanyal, learned senior advocate appearing for the appellant submitted that
the appellant was a juvenile at the time of occurrence. Accordingly, he could not have
been convicted and sentenced as an adult. He further submitted that the evidence of PW1
with regard to the alleged rape is improbable and ought not to be believed. It is patently
absurd that PW1 was dragged to a paddy field at a distance of 200/250 metres away from
her house and ravished when she had gone out in the night to relieve herself. The scarf
and knife used by the appellant were not seized. He further submitted that the victim was
a major lady above the age of consent. He also submitted that the evidence of PW8,
medical witness suffered from patent contradictions and did not inspire confidence. He
accordingly, prayed for acquittal of the appellant.
On the other hand, Mr. Ranadeb Sengupta, learned advocate appearing for the
State, submitted that evidence of PW1 was consistent and convincing. Her mouth was
gagged and she had been raped at the point of a knife. Evidence of PW8 supported the
act of forcible intercourse. Evidence of PW6 proved the ossification report of the victim
which showed that she was a minor at the time of occurrence. Accordingly, appeal is liable
to be dismissed.
With regard to juvenility of the appellant I find that the aforesaid issue was raised at
the time of suspension of sentence. By order dated 17th April, 2014, learned trial Judge
was directed to hold an enquiry in terms of Section 7A of the Juvenile Justice (Care and
Protection) Act, 2000 and take a decision as to the juvenility of the appellant. The learned
trial Judge relying on the ossification report of the appellant, which showed that the
appellant was between 19 to 22 years of age at the time of commission of offence,
declined such prayer. Such issue was considered at length by this Court vide order dated
24th September, 2014. After considering the evidence of the parents of the appellant, the
admission register of the school as well as the ossification report of the appellant at
length, this Court opined that there was no evidence on record to show that the admission
register produced on behalf of the appellant related to the school which the appellant first
attended. Accordingly, such admission register could not be relied upon in precedence to
other evidence in terms of Rule 12 sub-rule (3)(a)(ii) of the Juvenile Justice (Care and
Protection) Rules, 2007. In absence of matriculation or equivalent certificate by the Board
or the birth certificate issued by the school when the accused first attended in terms of the
aforesaid Rule, this Court relied on the ossification report which disclosed the age of the
appellant between 19 to 22 years and accordingly, rejected the prayer for juvenility. I find
no reason to come to a contrary opinion with regard to such issue and accordingly, I hold
that the trial of the appellant was rightly conducted by the ordinary court. Reference may
be made to Kulai Ibrahim vs. State reported in (2014) 12 SCC 382 and Parag Bhati vs.
State reported in JT (2016) 5 SC 242.
Let me now consider the evidence on record to find out whether the prosecution
was able to prove its case beyond reasonable doubt.
PW1 is the victim in the instant case. She deposed that on 24th November, 2010,
between 7:00/7:30 P.M., she had gone outside to wash herself in the tube well. At that
time she felt like urinating and went under a mango tree to relieve herself. After urination
when she stood up, the appellant gagged her face and mouth with a scarf from behind
and dragged her to a paddy field which was 200 to 250 metres away. Thereafter, he laid
her down on the paddy field and threatened her to keep quiet by showing a knife. Then he
forcefully unclothed her and ravished her against her will. Due to pain she lost her senses.
She regained her senses at Chakulia hospital where she was administered with saline. On
the next day, she went to Chakulia Police Station on the advise of the hospital and a case
was started at Chakulia P.S. Thereafter, she was sent to Islampur Police Station for
medical examination. She put her signature on the medical examination report (Exhibit-
1/1). She put her signature on the written complaint (Exhibit-2/1). She was interrogated by
police. Police took her wearing apparels. In cross-examination, she stated that she told
the doctor and at the police station that she was 18 years of age. There is the house of
Samad, Gulmahar and Rashid near the paddy field where she was raped. There is vacant
land belonging to Ektaj in the southern direction. During the incident there was paddy in
the field. The tube well where she went to wash herself was 25 ft. from her house outside
the boundary wall of the house. The mango tree was at a distance of 40/50 ft. from the
tube well. The mango tree is in the ground of Ektaj.
PW2, Motibar Rahaman, deposed that he knew the victim and the appellant. At
7:30 P.M., he was going home along a kachcha rasta when he reached the agricultural
field of Motibur. He noticed a young man running away from the paddy field. He went to
the place of occurrence and found that there was damaged paddy and the victim was lying
there. Her wearing apparels were torn. At that time he saw Abu Kalam and Hasen come to
the spot. Abu Kalam and Hasen took the victim to her house and he accompanied them.
The victim was senseless. Thereafter, on the request of the father of the victim, he took
her to Chakulia hospital. Next day the victim told him that Inadul raped her. In cross-
examination, he stated that he did not tell the police that he could not identify the boy in
the dark.
PW3 is Muzibar Rahaman. He deposed that he knew the appellant and the victim.
On the fateful night, he heard tussle from the house of Ismail at the northern side of the
village. When he went to the house of Ismail, he found that the victim was half clad and
her wearing apparels were torn. Someone was fanning her and the victim was very ill and
not in a condition to talk. On enquiry he was told that Inadul raped her at the agricultural
field of Moti and fled away. They called a truck and sent the victim to hospital. On the next
day the victim returned from the hospital and divulged to him that Inadul had gagged her
mouth and dragged her to the agricultural field and raped her. Police came to the village
and he told the incident to the police. In cross-examination, he stated that he did not tell
police that reaching the house of the victim he asked about the condition from Hassain,
Abul Kalam and Motibur. He admitted that Inadul is his bhaira.
PW4 is the scribe of the FIR. He stated that he wrote the FIR as per the version of
the victim. On 25th November, 2010 he read over and explained the contents of FIR and
he put his signature. He proved the FIR (Exhibit-2). In cross-examination, he stated that
the victim and her father came to him for writing the FIR. He has a tea stall by the side of
Chakulia Police Station where he wrote the FIR.
PW5, Md. Azhar has been declared hostile. In cross-examination by the defence,
he stated that the victim is his cousin.
PW6 was posted at Islampur S.D. Hospital as medical officer. On 6th December,
2010 he performed ossification test of the victim and found that the victim was between 15
to 17 years of age on the date of examination. He proved his report (Exhibit-3).
PW7 is the father of PW1. He stated that on the fateful night he had gone to
mosque to offer Namaj when his two sons came to the mosque and told him that his
daughter was unwell. He came to his house and saw Hasain, Abu Kalam and Moti along
with other female members in his house. Some were sprinkling water and some were
fanning his daughter. On being asked he was told that the appellant fled away after
committing rape on the victim. He also stated that he saw the appellant flee away.
Thereafter, he went to Moti and requested him to help him to take her daughter to the
hospital. Her daughter was taken to Chakulia hospital for treatment. Police was informed
from Chakulia hospital. Police came to the hospital. At that time her daughter was not in a
condition to speak. They left the hospital. After treatment when she was able to speak and
on enquiry, she told him that she had gone under a mango tree to relieve herself when
Inadul came to the spot and gagged her mouth and took her to a paddy field and raped
her. The next morning he took her daughter to the police station. Police seized wearing
apparels under seizure list. He put his signature on the seizure list (Exhibit-4/1).
PW8 is the Doctor who conducted medical examination on the appellant and
exhibited his report (Exhibit-5). He found the genital organs of the appellant were normal.
PW9 is another medical personnel who was posted at Islampur S.D. Hospital. On
25th November, 2010 he examined the victim and found the following injuries :-
1.There are multiple scratches over chest and back.
2. Nail mark on arm, hymen was injured.
3. There is mark of injuries on her private part.
4. Abrasion over hymen.
5. No foreign particle was present on her private part.
6. Her vaginal swab was collected and was handed over to L.C. There was scratch mark over abdomen.
7. Multiple scratches marked over chest.
He recorded the case history as follows :-
She was sexually assaulted. She was referred to radiologist for ossification test. Vaginal examination was painful.
In cross-examination, he stated that he found injuries on her hymen and did not find any other injury on her private part. He has not mentioned in his report as to how injuries occurred on her breast and abdomen.
PW10 was posted at Chakulia Police Station as Officer-in-charge and drew up the formal FIR (Exhibit-6) in the instant case.
PW11 is an employee of Chakulia B.P.H.C. He has proved the medical reports prepared by Dr. Jahangir Nawaj (Exhibits-7 & 8). In cross-examination, he stated that he did not have any personal knowledge as to the patient.
PW12 is the Investigating Officer of the case. He deposed that he sent the victim to Islampur hospital for treatment. He visited the P.O, prepared rough sketch map and index, recorded 161 statement and available witnesses and arrested the accused persons. He proved the sketch map and index (Exhibits-9 & 10). He conducted potency test, capability test and ossification test of the accused and victim. He collected all reports and submitted charge-sheet. On recall, he deposed that he seized wearing apparels of the victim and sent for medical examination. He also seized vaginal swab of the victim (Exhibits-4 & 11).
From the evidence on record it appears that the victim (PW1) had gone out of her residence to wash herself in a tube well. Thereafter, she went to a nearby mango tree to relieve herself. As she stood up after relieving herself, the appellant accosted her from behind, gagged her mouth with a scarf and dragged her to a paddy field situated 20/25 metres away. The appellant threatened her with a knife and forcibly undressed and ravished her. Out of pain she lost her senses and was recovered by PW2 & 3 from the spot. She was taken to her residence and her father (PW7) was informed. Then she was removed to Chakulia hospital where she was treated. She lodged a written complaint at Chakulia Police Station on the next day resulting in registration of FIR.
It has been strenuously argued that the evidence of PW1 is highly improbable inasmuch as it is absurd to suggest that a full grown lady could have been dragged 20 to 25 metres to a paddy field without her raising any protest or any person noticing such act.
It has also been argued that there were houses near the paddy field and therefore, it is difficult to believe that the act of rape had been committed without being noticed by anyone.
I am unable to accept the aforesaid contention for the solitary reason that the victim was accosted and gagged by the appellant with a scarf. Hence, she was unable to shout or call for help. In such condition she was dragged to the paddy field where she was ravished at the point of a knife. Hence, her version cannot be thrown out on the mere plea that she did not raise protest or cried for help.
On the other hand, the act of forcible rape on her was supported by medical evidence of PW9, who found injuries not only on her breast, abdomen but also on her private parts. I am unable to accept the contention of the learned senior advocate for the appellant that evidence of PW9 suffers from any contradiction. In fact, in cross- examination, PW9 has clarified his evidence and stated that the injuries were found on the hymen of the victim. It is also to be noted that PW2 and 3 had found the victim in a senseless condition at the place of occurrence and PW2 also saw a boy running away from the spot. The aforesaid pieces of evidence, therefore, not only lends credence to the version of the victim and unerringly leads to the conclusion that it was the appellant who dragged the victim to the place of occurrence and forcibly committed rape on her at the point of a knife. The fact that PW2 could not recognise the appellant as the boy who was running away is of little consequence inasmuch as the victim herself has identified the appellant as the person who committed rape on her. Consequentially, she lost her senses. Immediately upon regaining consciousness, the victim narrated the name of the appellant to all the witnesses. Therefore, I am of the opinion that the version of the victim does not suffer from any patent contradiction and inconsistency so as to extend the benefit of doubt to the appellant.
On the other hand, her evidence is fortified with the version of other witnesses including the medical evidence of PW9.
Accordingly, I am of the opinion that the prosecution has been able to prove its case beyond reasonable doubt.
Conviction imposed on the appellant is accordingly, upheld. Coming to the issue of sentence, I am informed that the appellant is in custody for more than 21/2 years. Minimum sentence as mandated by law has been imposed upon the appellant. I do not find any special reason emanating from the facts of the present case so as to reduce the sentence below the statutorily sanctioned minimum limit.
The appeal is accordingly, dismissed.
The lower court records along with a copy of this judgement be sent down at once to the learned trial court for necessary action.
Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.
(Joymalya Bagchi, J.) akd