Calcutta High Court (Appellete Side)
Byasdev Haldar vs State Of West Bengal on 22 March, 2017
Author: Tapash Mookherjee
Bench: Tapash Mookherjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
P R E S E N T:-
The Hon'ble Justice Tapash Mookherjee
C.R.A. No. 313 of 2010
Byasdev Haldar
Versus
State of West Bengal
For the Appellant :- Mr Sandipan Ganguly, Advocate,
Mr Arkadeb Bhattacharya, Advocate,
Mr Gobinda Chandra Baidya, Advocate,
For the State :- Mr. Imran Ali, Advocate.
Delivered on: 22.03.2017
Tapash Mookherjee, J:
1. The present appeal is directed against the judgment and order dated
30.04.2010 passed by the learned Additional District and Sessions Judge,
F.T.C. 1st Court, Diamond Harbour, South 24 Parganas, in Sessions Trial No. 5
(20) 2007 arising out of Sessions Case No. 5 (2) 2007 whereby the accused
Byasdev Halder, the present Appellant was found guilty of the offence under
Section 376 of the Indian Penal Code (in short, I. P. C.), convicted
accordingly and sentenced to suffer Rigorous Imprisonment for seven years
and to pay fine of Rs. 500.00 (rupees five hundred only), in default to suffer
Rigorous Imprisonment for one year more.
2. The Prosecution case in the trial, may be summarised, in brief, as
follows:-
3. On 1st January, 2007 an F. I. R. was submitted in the Mathurapur P. S.
alleging that in the night of 26.12.2006 when the Prosecutrix went out of her
house to urinate, the accused suddenly appeared there from a hideout,
caught hold of the Prosecutrix from behind, gagged her mouth and dragged
her to the courtyard of one Chandi Charan Naskar nearby, and committed
rape on her by force and against her will. The Prosecutrix tried to resist but
failed and after the incident when she raised alarm some local people came
there and having seen the local people coming on the spot the accused
knocked the Prosecutrix down and fled away leaving his wrapper on the spot
and the people coming on the spot found the accused fleeing away from the
spot. Subsequently, the Prosecutrix went to the Police Station and submitted
the F. I. R. alleging the aforesaid facts and some other related facts as well.
On the basis of such F. I. R. Mathurapur P. S. Case No. 02, dated 01.01.2007
was started against the accused. After completion of investigation charge-
sheet under Section 493/376 I. P. C. was submitted against the accused.
Thereafter the case was committed to the Court of learned Sessions Judge,
South 24 Parganas in usual course.
4. Considering the materials collected during the investigation charge
under Section 376 I. P. C. was framed against the accused. The accused
denied the charge and pleaded his innocence. The case was finally decided
in the Court of Additional District and Sessions Judge, F. T.C. 1st Court,
Diamond Harbour, South 24 Parganas.
5. During the trial, Prosecution examined as many as 13 witnesses and
proved some documents as well. Defence tendered no evidence whatsoever.
6. Considering the evidence produced by the Prosecution, the Trial Court
found the accused guilty of the offence under Section 376 I. P. C. and
convicted him accordingly and passed sentence as mentioned earlier.
7. Being aggrieved by such order of conviction and sentence, the accused
filed the present appeal.
8. Learned Advocate, Mr Ganguly appearing for the Appellant has argued,
inter alia, that the delay behind the F. I. R. has not been satisfactorily
explained and no mark of injury has been found on the body of the
Prosecutrix during her medical examination and hence the Prosecution case
is doubtful. Mr Ganguly further argued that the claim of the witnesses that
they found the Appellant fleeing away from the place of the occurrence
immediately after the incident was also doubtful as it was a dark night. Mr
Ganguly also argued that the testimony of the Prosecutrix is not
corroborated by any other witness of the Prosecution and the version of the
Prosecutrix, at its face, appears to be improbable and hence it is not safe to
convict the accused in the case, on the basis of such uncorroborated
testimony of the Prosecutrix. Mr Ganguly has cited the following decisions in
his support. 1. (2013) 3 SCC 791, (Rajesh Patel - versus - State of
Jharkhand). 2. (2014) 2 SCC 395, (Hem Raj - versus - State of Haryana).
3. 2015 (2) CalCriLR 920, ( Gopal Naskar - versus - State of West Bengal).
4. (2015) 7 SCC 272, (MOHD. ALI alias GUDDU- versus- State of Uttere
Pradesh). 5. 2013 (1) CalLT, (Nikhil Sardar - versus - State of West
Bengal).
9. In reply, learned Advocate Mr Imran Ali appearing for the
State/Respondent, argued that delay in F. I. R. was due to an attempt of
compromise initiated by the local villagers which was found from the evidence on record. He further argued that the Prosecutrix was medically examined after a long gap. So, the mark of injuries was not supposed to be detected and that apart, presence of injuries in the body of a victim of rape is not an essential ingredient to be established to prove a charge of rape under Section 376 I. P. C. Mr Ali further urged that the sole testimony of the Prosecutrix in a case of rape is sufficient to prove the offence, if the Prosecutrix's testimony is dependable and trustworthy and no corroboration is needed in such a case. He has also cited the following decisions in his support. 1. AIR 1996 (SC) 1393, (State of Punjab - versus - Gurmit Singh).
2. (1990) 1 SCC 550, (State of Maharashtra - versus - Chandra Prakash Kewal Chand Jain). 3. AIR 1991 (SC) 63, (Tara Singh & Others - versus- The State of Punjab). 4. (1998) 8 SCC 635, (Ranjit Hazarika - versus - State of Assam). 5. AIR 1981 (SC) 361, (Harpal Singh & Another - versus - State of Himachal Pradeshy). 6. AIR 2006 SC 381, (State of Himachal Pradesh - versus - Asha Ram).
10. The first point of argument of Mr Ganguly was on the point of delay in lodging the F. I. R. According to the Prosecution case, the alleged incident of rape occurred on 26.12.2006 and the complaint was lodged on 01.01.2007. So, there was delay of a few days in lodging the F. I. R. The Prosecutrix herself submitted the written complaint, in which she explained that her relatives along with some local people tried to resolve the problem amicably and called the Appellant for the purpose. But, during the negotiation the Appellant refused to marry her and for such reason she could not lodge the complaint promptly. However, she was silent on the point during her examination-in-chief. But, during her cross-examination she stated that she went to the local Police Station on the very next day. The I. O. of the case, i. e., P.W.- 13 during his cross-examination stated that there was no noting in the case diary that the Prosecutrix came to the P. S. to report the incident in between 26.12.2006 and 31.12.2006. He further stated that he did not examine either any of the relatives of the Prosecutrix or the local people who tried for amicable settlement as alleged by the Prosecutrix in the F. I. R. Tarini Naskar (P.W. - 9) in his examination-in-chief stated that there was a 'Salish' in their village after two days of the incident and he personally advised the Appellant to marry the Prosecutrix but the Appellant did not agree. However, he was not also examined by the I. O. So, as mentioned earlier the Prosecutrix in her written complaint stated about an attempt of amicable settlement of the issue. So, it was the duty of the I. O. to investigate into the matter. But the I. O. had not done so. It was, therefore, the negligence on the part of the I. O. for which the entire Prosecution case should not be disbelieved, if it is otherwise proved by the Prosecution.
11. In Rajesh Patel's case (supra) the entire episode described by the Prosecutrix appeared to be unnatural and improbable for several reasons and the person who was named as the person assuring of an amicable settlement did not support the Prosecutrix on the point and in such context the delay was considered to be fatal. But, in the present case there is no such circumstances. Moreover, the present case of the Prosecution, at its face, does not look to be improbable. So, the decision is of no help to the Appellant.
12. There is no dispute to the fact that the Prosecutrix is a close neighbour of the Appellant.
13. So, the probability of attempt for an amicable solution as claimed by the Prosecutrix in the F. I. R. cannot be totally ruled out.
14. In our society, a victim of rape rarely rushes to the Police Station to lodge a complaint immediately after the incident because of her fear of scandal in the village which may ultimately result in social stigma and ruin her future life. So, delay in lodging the F. I. R. by itself is not fatal for the Prosecution, especially in a case of rape if the version of the victim is credible and acceptable.
15. During investigation, the Prosecutrix was medically examined by a Doctor of the local Sub-divisional Hospital. The said Doctor Amadendu Barik (P. W. - 12) stated that on examination of the Prosecutrix he noticed no mark of injury in her body and hymen absent. According to Mr Ganguly had the Prosecutrix been forcibly raped, there should have been some marks of injury in her body. So, the absence of any injury as well as the absent of hymen itself shows that the allegation of rape by the Prosecutrix is totally false and concocted. On the other hand, Mr Ali submitted that the Prosecutrix has been examined some days after the incident and hence the Doctor did not find any mark of injury. It is his further contention that presence of injury is not an essential evidence for rape.
16. The alleged incident of rape took place on 26.12.2006 and the Prosecutrix was examined on 06.01.2007, i. e., after about 11 days. So, even if there were some injuries in the body or private parts of the Prosecutrix there was the chance of disappearance of those marks due to the lapse of time.
17. In Gopal Naskar's case (supra) cited by Mr Ganguly, a Single Bench of this Court came to a view, on the point of injury, in the body of the Prosecutrix in a case of rape, on the basis of some opinion expressed by the Doctor in that case. The opinion is wrong because, the question of injury is always dependent on the degree of resistance by the victim and there is no such absolute theory that in each and every case of rape there must be some injuries in the body of the victim, as held by the Apex Court in Ranjit Hazarika's case (supra). It has been further held in that case that corroboration of testimony of the Prosecutrix by medical evidence is not essential in all cases. In this context, it should be mentioned that during trial, learned Advocate for the Defence pleaded that absence of injury suggested consent of the Prosecutrix in the alleged sexual intercourse, if any, between the Appellant and the Prosecutrix. However, Mr Ganguly has not pleaded any such case during the hearing of the appeal.
18. The Prosecutrix during her evidence has stated that during the incident, she had a scuffle with the Appellant for which her undergarment had been torn and semen had been spread on her body. But no such torn undergarment has been seized by the I. O. According to Mr Ganguly the non- seizer of the undergarment of the Prosecutrix is a serious lacuna in the Prosecution's case. The Prosecutrix herself stated that she had not shown her torn undergarment to the I. O. Be that as it may, the I. O. could have asked for and seized such wearing apparels of the Prosecutrix. But, having not done so, the I. O. failed to discharge his duty for which the Prosecution case as a whole should not suffer.
19. In a case of sexual assault the testimony of the Prosecutrix is the most vital evidence. So, what the Prosecutrix, in her evidence, stated in the case, be looked into.
20. The Prosecutrix in her evidence-in-chief (P.W.-1) stated that in the night of 26.12.2006 at about 9/9.30 p. m. when she went out of her house to attend nature's call, the Appellant suddenly appeared there, put his hand on her face and dragged her in the courtyard of one Chandi Charan Naskar where the Appellant removed her wearing apparels and forcefully committed rape upon her. She further stated that she managed to escape from the hold of the Appellant somehow after the incident and started screaming for help, hearing which one Menoka, Monoka's Husband, one Niranjan and his son Tarapada who were her close neighbours came to the spot and her mother and younger brother also reached the spot and she reported all the incidents to them.
21. During cross-examination, the Prosecutrix explained that she had gone at a distance of 5/10 cubits from her house to urinate and the distance from that place to the place of the occurrence was only 20/25 cubits. She also explained that during the incidents, the Appellant caught hold of her hands by force and gagged her mouth and due to such hold of the Appellant, she could neither raise any loud alarm nor could she resist the Appellant for such force applied on her by the Appellant, during the incident of rape which happened within five minutes.
22. From cross-examination of the Prosecutrix it transpires that the Prosecutrix did not say some facts, which had been stated by her in her F. I. R. In her F. I. R. the Prosecutrix stated that six months before the incident she was raped by the Appellant in a lonely place and when she was crying after the incident the Appellant promised to marry her and as such she did not disclose the incident to anybody. The fact was not stated by the Prosecutrix during her examination-in-chief. At the concluding part of her examination-in-chief, Prosecutrix stated 'prior to the incident nothing happened'. The question, in reply to which, she made such statement is not known. Be that as it may, the prior incident mentioned in the F. I. R. is not a direct issue in this case. So, if the Prosecutrix preferred to remain silent in the matter, there is nothing wrong in it.
23. During cross-examination some omissions between the contents of the F. I. R. and the statement of the Prosecutrix on dock, were pointed out and those omissions were not on any vital issue and the rest were the denials by the Defence of the facts stated by the Prosecutrix, during her examination- in-chief. In fact, no inconsistency or contradiction between the statements of the Prosecutrix in her examination-in-chief and cross-examination is found. There is no absurdity or improbability also in any of the incidents narrated by the Prosecutrix.
24. Mr Ganguly argued that none of the close neighbours of the Prosecutrix was examined in the case for corroboration to the evidence of the Prosecutrix and hence the Prosecutrix should not be believed.
25. The incident allegedly took place in the courtyard of one Chandi Charan Naskar. His house is close to the house of the Prosecutrix. In the F. I. R. it is stated that at the time of the incident nobody was there in that house and the fact was not denied by the Defence. So, the question of examination of Chandi Charan Naskar or any member of his family does not arise.
26. Menoka Halder (P.W.-2) is the wife of Niranjan Halder (P.W.-3). Their house is also close to the house of the Prosecutrix as found from the sketch map prepared by the I. O. (Exhibit- 11 series). P.W.-2 stated that neither the Prosecutrix nor the Appellant was known to her, although her Husband stated that both of them were known to them. P.W. -2 was, therefore, declared Hostile. P.W.-3 stated that in the night of the incident he found the Appellant dragging the Prosecutrix towards the house of Chandi and he heard Prosecutrix asking the Appellant as to why he committed the wrong with her and the Appellant replied that he was willing to marry her if his parents accepted it. However, he had not stated those facts before the I. O. as admitted by the I. O. (P.W.- 13).
27. Tapan Kumar Naskar (P.W.- 5) is also a neighbour of the Prosecutrix. He stated that in the night of 26.12.2006 having heard a hue and cry, he reached the place of occurrence and saw the Prosecutrix crying and the Prosecutrix on the spot reported to him that the Appellant committed rape on her. Thus, his statement lends strong support to the testimony of the Prosecutrix. P.W. -5 stated before the I. O. that the Prosecutrix was in love with the Appellant. However, the point is not important because the question of 'consent' has not been raised in the appeal as mentioned earlier.
28. Smt Renuka Tanti (P.W. - 7) is the mother of the Prosecutrix, she stated that about two years back, on 10th Pous at about 9/9.30 p. m. the Appellant committed rape on her daughter when her daughter went out of their House to attend nature's call in a drain at a distance of 20/25 cubits from their house. During cross-examination she further narrated that members of her family generally ease themselves in the same drain as and when required. It should be noted here that in the F. I. R. it is stated by the Prosecutrix that there is no toilet inside their house, and the fact has not been disputed. During cross-examination P.W. -7 further stated that hearing the cry of her daughter she along with her family members rushed to the spot within five minutes and came to know about the incident of rape from her daughter. So, the evidence of P.W. -7 also supports the Prosecutrix.
29. Somnath Tanti (P.W. -8) is the younger brother of the Prosecutrix. He stated that in the night of the incident he heard screaming of his sister coming out from the stack of paddy of their next-door neighbour Chandi Charan Naskar and while moving towards the spot he found in the light of his torch, the Appellant fleeing away from there and on asking, his sister disclosed that she was raped by the Appellant. However, I. O. (P.W.- 13) stated that P.W.- 8 had not stated before him that he found the Appellant fleeing away in the light of his torch. No torch-light has been seized in the case.
30. Mr Ganguly vehemently argued that P.W.- 8 tried to improve the case by saying that he found the Appellant fleeing away in the light of his torch, although no such torch was seized by the I. O. At the relevant time there was no electricity in the village of the Prosecutrix. The time of occurrence was 9/9.30 O-clock in the night. In the villages, where there is no electricity, the villagers generally use torch-light while moving outside the house. So, the version of P.W- 8 is not improbable. Seizer of the torch-light was not essential as a torch-light is an essential household item in a village. That apart, P.W. -8 had shown the torch to the I. O. as claimed by him. According to P.W.-8 the night of the incident was a dark night. It is a fact of common knowledge that even in a dark night there is glow of light in the sky. The Appellant is a neighbour of P.W. - 8 it was, therefore, not impossible for him to identify the Appellant in such glow of light. So, the contention of Mr Ganguly on the point, is not acceptable.
31. In the F. I. R. it is not categorically mentioned that P.W. -7 or P.W. -8 in particular, had gone to the place of occurrence immediately after the occurrence as claimed by the Prosecutrix in her evidence. F. I. R. need not be exhaustive with all points in details. So, the point raised by Mr Ganguly is of no serious importance.
32. The Defence, by suggestion to the Prosecutrix and some other witnesses as well, has picked up a case that the Appellant has been falsely implicated due to family enmity and political rivalry as well. But, nowhere the nature of such family enmity has been explained by the Appellant and it does not appear also from any material on record. Similarly, what are the causes of the alleged political rivalry between the Appellant or his family and the Prosecutrix or her family has been brought on record. So, the Defence thus pleaded, is devoid of any basis whatsoever.
33. Mr Ganguly has cited the decisions of the Apex Court in Hem Raj's case (supra), Mohd. Ali alias Guddu's case (supra) and a judgment of a Single Bench of this Court in Nikhil Sardar's case (supra), to suggests as to how the evidence of a Prosecutrix in a case of rape has to be assessed. Similarly, Mr Ali has also cited the decisions of Gurmit Singh's case (supra), Chandra Prakash Kewal Chand Jain's case (supra), and Tara Singh's case (supra) on same the point.
34. In all the aforesaid decisions, it has been laid down that in a case of rape the Prosecutrix is the most vital witness and if her evidence is found credible and inspires total confidence then the accused can be found guilty of the charge of rape on the basis of the testimony of the Prosecutrix alone, even without corroboration and before attaching the full value and confidence to the testimony of the Prosecutrix, her testimonies have to be scrutinized critically and carefully. In the Gurmit Singh's case (supra) the principle has been elaborated in the following language "The testimony of victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. "
35. It has been discussed earlier that there is no inconsistency or contradiction found in the statements of the Prosecutrix during her examination-in-chief and cross-examination and there is no improbability also in the incidents narrated by her. The suggestion from the Defence that the Prosecutrix has falsely implicated the Appellant is devoid any basis as mentioned earlier. In fact, there is nothing on record also due to which the veracity of the Prosecutrix may be questioned into. The evidence of P.W.- 5, a close neighbour of the Prosecutrix lends strong support to the testimony of the Prosecutrix. Support to the version of the Prosecutrix is also found from the testimony of the mother of the Prosecutrix (P.W.-7) and her brother (P.W. - 8) as well.
36. So, having considered all the evidences on record I have no hesitation to hold that the testimony of the Prosecutrix is trust-worthy and inspires confidence. Delay in submitting the F. I. R. is not, therefore, fatal in the case. So, the Trial Court committed no error by finding the Appellant guilty of the charge under Section 376 I. P. C. and convicting the Appellant to the said charge. The Prosecutrix was a girl of 17-year only at the time of the incident and the Appellant was a matured boy. The offence of rape is, no doubt, a very serious offence. So, the question of reduction of sentence does not arise at all, in the case.
37. So, the appeal is dismissed. The judgment and order of conviction and sentence passed by the Trial Court in the case are affirmed. The Appellant is directed to surrender immediately before the Trial Court to serve out the sentence passed by the Trial Court.
38. Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities.
(Tapash Mookherjee. J)