Calcutta High Court (Appellete Side)
Moka @ Mukter Bayen @ Bhargi And Anr vs The State Of West Bengal on 17 February, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 AD 2 CRA 490 of 2013 17-02-2017
s.d.
Moka @ Mukter Bayen @ Bhargi and anr.
-versus-
The State of West Bengal Mr. Tapan Dutta Gupta ....for the appellants.
Mr. Prasun Dutta Ms. Kakali Chatterjee ...for the State.
The appellants exhort that on the sole testimony of the victim, the appellants could not have been convicted of gang-rape. The appellants have also been convicted of lurking trespass by night.
The appellants may have legitimately expected a degree of leniency. After all, the victim comes from a family which is considered the dregs of the society. In addition, the family is economically backward. The appellants tried the necessary tricks:
of questioning the character of the victim and trying to brand her has immoral. It appears to be a little more than outrage that these appellants express upon finding themselves convicted.
The victim narrated the incident to a police officer on the day following the incident. The incident occurred in the middle of the night. The police scribe was examined and he proved that he had taken down what the victim had told him. The victim's 2 narration of the events completely matched with her subsequent statement given under Section 164 of the Code of Criminal Procedure, 1973 and her evidence at the trial. The victim claimed that she was awoken by the sound of her door breaking. The door had been fastened with the help of her husband's lungi. The lungi was cut and the door was broken open and, in the light of the oil lamp that was burning in the room on the night of October 31/November 1, 2005, the victim saw and recognised the trespassers. She recounted that her husband was tied down by the miscreants, a sum of Rs.22/- that was available with the husband was snatched away and a silver necklace valued at Rs.250/- worn by the victim was torn away from her. She recollected that the miscreants had demanded more money, but upon being told that there was no more money at home, the victim was carried out of her small room and taken to the courtyard, her hands were tied and she was raped in turn by the assailants. The victim further claimed that her cries for help did not elicit any immediate response till her blind son, who was sleeping in a relative's house some distance away, made his way back home and untied his father for the father to free the hands of the victim.
The victim asserted that her husband and she reported the matter to some influential citizens of the village or the locality, 3 including the persons later called as PWs 6, 7, 8 and 11. She said that she was assured by such persons that the matter would be looked into on the following day. She narrated that a local quack doctor was sent to her place the following morning who prescribed some medicines to her to relieve her body ache. In course of the victim's testimony, she responded to a question from the court to say that since she did not feel well for the entire day, there was some delay on her part in lodging the complaint with the police.
As was to be expected, most of the locals who were called as witnesses on behalf of the prosecution turned hostile. The only meaningful evidence on the basis of which the matter had to be decided was the evidence of the victim as corroborated by the testimonies of her blind son and her husband. The husband recounted the matter from his perspective and his helplessness upon being bound to rescue or render any assistance to his wife. The blind son stated that since he was familiar with the surroundings he could make his way back home and by touch and sound he found his father and untied him before the father rescued the victim. The son of the victim also claimed that a relative by the name of Bidesh Murmu, in whose house the son had slept that night, was also alerted by the son when the son heard the cries of his mother and Bidesh Murmu followed a short while later and reached the place of occurrence. However, Bidesh 4 Murmu also turned hostile, though the investigating officer maintained in his testimony that Bidesh Murmu had made a statement to the investigating officer that he visited the place of occurrence immediately after the incident.
The appellants suggest that since the husband and son of the victim were only expected to be sympathetic to the victim, it was not surprising that they sang in the same tune as the victim and corroborated her version. The appellants say that no independent person testified against them or identified them. The appellants also refer to the evidence of the quack doctor, examined as PW-4, who claimed that the victim told her the morning following the incident that there was only a theft in the victim's house. Indeed, a judgment reported at (2005) SCC (Cri) 1050 has been cited and paragraph 9 of the report placed to impress on this court that when a witness is called by the prosecution and such witness is not declared hostile, the part of the testimony of such witness that goes against the prosecution must be held against the prosecution.
It is necessary to deal with the case and its applicability in the present context before returning to the narrative. Paragraph 9 of the report in that case records that a witness called by the prosecution had testified "in very clear terms that he saw PW 5 making the deceased believe that unless she puts the 5 blame on the appellants and his parents she would have to face the consequences like prosecution proceedings." Such evidence is qualitatively different from the statement of PW-4 that the appellants seek to seize and rely upon. PW-4 claimed in his cross- examination that upon him asking the victim "why she was feeling in pain on her person, to which she disclosed that she was assaulted by thieves and so she had the pain." The statement attributed to the victim by PW-4 does not negate the version rendered consistently by the victim. There is more reason to completely discard the testimony of the pretender of a doctor. It is evident that such quack visited the victim in the early hours of the morning following the incident. That would prove that the victim and her family had complained to the influential persons during the night that the victim, had, in some manner, been assaulted. It would be ludicrous to accept that the victim would go complaining of theft at her home when the loss in course of such theft was the priceless sum of Rs.22/- and an old silver chain of value of Rs.250/-. There must have been something more serious than such petty theft for the victim and the family to disturb the influential persons at night and for such persons to realise the gravity of the situation and request the local doctor - never mind that he was a quack - to call on the victim early next morning. Further, it must not be missed that the investigating 6 officer attributed a completely different statement to the quack than what was stated by such witness in course of the trial.
Despite all of the witnesses among PWs 6, 7, 8 and 11 turning hostile, the extent of their hostility to the victim was in their not referring to the victim having claimed to have been raped by the appellants. It is evident from the testimonies of such witnesses who turned hostile that a part of the incident was known to them and they corroborated that the victim and her husband had complained of the incident on the same night.
The victim's narration of what happened to her was so simple and lucid that it, quite understandably, found acceptance with the trial court. That no other neighbour came to the rescue of the victim despite her cries of help other than her son, may have been because that the nearest house was 400 meter away from the house of the victim; or worse, because the distressed family was of a low caste. The victim's husband was also found to be truthful and, between the son of the victim and her husband, they corroborated what the victim claimed.
One aspect of the matter which has been much emphasised on behalf of the appellants is that it is difficult to accept that the victim would be carried outside her room by two men and gangraped for nearly thirty minutes as she claimed, but she would not suffer any injury or bruise. The evidence of the 7 victim in course of her cross-examination is also placed in this context. The victim admitted that she was wearing churi, pala and sankha but none of them broke. The evidence of the doctor who examined the victim has also been placed. It is also pointed out that no evidence of semen or discharge was detected from the apparel or person of the victim.
The evidence of the victim was that her hands were tied. In such a position, the victim, obviously, could not lash out her hands. As a consequence, the churis, pala and sankha may not have been broken. There were two able-bodied men who committed the act and the victim was pinned down in the court- yard outside her room. The victim claimed body ache but merely because there were no cuts or bruises would not detract from her testimony and what she asserted. The doctor was not overly surprised that there were no injury marks in the private parts of a woman who was habituated to sex and had borne five children. A suggestion was put to such doctor as to whether it would be surprising that though she was subjected to such act but there was no injury; to which he agreed but said that it would depend on the severity of the act.
The vaginal swab obtained from the victim was sent for the examination. It appears from the report that the material reached the laboratory only on November 21, 2005. It is not 8 surprising that no spermatozoa was detected in the swab after such a hiatus. In any event, it was not the victim's evidence that the appellants had discharged in her. The victim claimed rape; and as long as there was penetration, it would be rape. The investigating officer took the additional precaution of obtaining the swab and sending it for the examination but by the time it was sent, it was useless.
On behalf of the appellants, a judgment reported on (2006) 3 SCC (Crl.) 373 has been placed where, in the absence of any injury to the persons of the victim, the court disbelieved the accusation. However, the victim was eight years old on the date of the occurrence and no injury was found on any part of the victim and even her hymen was found to be intact and the doctor opined that there was no sign of rape.
Another judgment reported at (2007) 1 SCC (Crl.) 161 has been cited on behalf of the appellants. Paragraph 9 of the report has been placed. The judgment instructs that when the sole testimony of the victim in a case of sexual assault is accepted, the court must be careful in scrutinising the same. Paragraph 10 of the report, however, reveals that the charge in that case was made against a doctor who had a lot of patients waiting outside his chamber and none outside heard any hue or cry nor was there any sign of injury on the victim. 9
The trial court found the oral testimony of the victim "trust-worthy, reliable and dependable". The court also observed that there was no reason or motive attributed to the victim to bring a false complaint of such serious nature against the appellants herein. The court found that the minor discrepancies in the details, as put forth by the victim, were "spontaneous and natural." Though six of the witnesses cited by the prosecution turned hostile and the quack claimed that the victim only complained of being assaulted by the thieves, the trial court found that, to the extent the statement of the hostile witnesses could be accepted, they supported the case of the victim.
In addition to the charges under Sections 457 and 376(2)(g) of the Penal Code that were found to be proved by the trial court, there were other charges levelled against the appellants herein under Section 380 of the Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The trial court found no evidence in support of either the charge of theft or that under the Act of 1989.
As a last ditch argument, it is submitted on behalf of the appellants that they have served out more than four years of the sentence and the sentence should be reduced. A judgment 10 reported at AIR1980 SC 249 is placed for the reformative approach taken by the Supreme Court as the evident therefrom. The case is often cited by rapists seeking a quick reprieve. A cousin was raped in that case and an affidavit was filed in court to the effect that the victim and her family had forgiven the accused. In the present case the victim came from a socially deprived and economically backward class. Despite her accusation and her immediate complaint to the influential locals, at the trial almost all of such locals turned hostile. The victim had to face the ignominy of her character being questioned. It would be anathema to justice if the appellants, upon being convicted of the grievous crime, are let off or any sympathy is shown to them. The appellants will serve the remainder of the sentence rightly earned by them. The order of conviction and the sentence do not call for any interference.
CRA 490 of 2013 is dismissed.
11Let copies of this order be made available to the appellants and to the correctional homes where they are lodged without any delay. Let the lower court records be sent down forthwith with a direction to the trial court to take immediate appropriate steps in accordance with law.
(Sanjib Banerjee, J. ) (Siddhartha Chattopadhyay, J. )