Calcutta High Court (Appellete Side)
Kripanath Barman vs The State Of West Bengal on 7 December, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
8
AB/S. Das
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Rajarshi Bharadwaj
C.R.A. 152 of 2008
KRIPANATH BARMAN
VS
THE STATE OF WEST BENGAL
For the Appellant : Mr. P. S. Bhattacharya, Advocate,
For the State : Mr. Neguive Ahmed, Advocate,
Ms. Faria Hossain, Advocate,
Heard on : December 7, 2017
Judgement on : December 7, 2017
Joymalya Bagchi, J. :
The appeal is directed against judgement and order dated 25.4.2007 and 27.4.2007 passed by learned Additional Sessions Judge, 1st Fast Track Court, Alipurduar in Sessions Case No.47 of 2006 arising out of Sessions Trial No. 4(4) of 2006 convicting the appellant for commission of offence punishable under Sections 448/323/376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for one year for the offence punishable under Section 448 of the Indian Penal Code, to suffer rigorous imprisonment for one year for the offence punishable under Section 323 of the Indian Penal Code and to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-, in default, to suffer further rigorous imprisonment for five months more for the offence punishable under Section 376 of the Indian Penal Code, all the sentences to run concurrently.
The prosecution case, as alleged against the appellant, is to the effect that on 23.8.2005 at the night the appellant trespassed into the house of the victim by breaking the door and assaulted her and when she protested, she was dragged to the jhorarpar and was raped. She became unconscious and thereafter took shelter in the house of Budhu Khalko (P.W.8) and then returned to her residence. On the next day she lodged written complaint at Samuktala Police Station resulting in Samuktala P.S. Case No. 80 of 2005 dated 24.8.2005 under Section 376 of the Indian Penal Code. In conclusion of investigation, charge sheet was filed against the appellant under Sections 448/323/376 of the Indian Penal Code. The case was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, Fast Track 1st Court, Alipurduar for trial and disposal.
Charges were framed against the appellant under Sections 448/323/376 of the Indian Penal Code and the appellant pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 12 witnesses in support of its case and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial court by the impugned judgement and order convicted and sentenced the appellant, as aforesaid.
Mr. Bhattacharya, learned counsel appearing for the appellant argued that the evidence of the victim (P.W.1) suffers from various contradictions. It is also submitted that the medical report relating to the treatment of the victim has not been proved in the instant case which improbabilises the allegation of rape. Hence, the appeal may be allowed.
On the other hand, Mr. Ahmed appearing with Ms. Hossain for the State submitted that the evidence of the victim (P.W.1) is corroborated by her children and other attending facts of the case. Hence, the conviction of the appellant may be upheld.
P.W.1 is the victim in the instant case. She deposed that on 23.8.2005 after taking dinner she along with her daughter (P.W.2) and son (P.W. 3) were sleeping. At that time, the appellant entered the house by breaking the door. There was an oil lamp burning. The appellant dragged her out of the room. She was shouting. The appellant assaulted her with an iron rod and took her to jhorar par. He lay down on her and committed rape upon her by removing her saya. The appellant removed her saya when he committed rape. Her daughter, Sumanti Kujur came behind her and informed her grand father (P.W. 6) and uncle (P.W. 4) and others about the incident. All of them came at the place of occurrence after the incident. From there she took shelter at the house of Budho Khalko (P.W. 8). She lodged F.I.R. at the police station. She put L.T.I. on the F.I.R. That was a stormy night and there was also a heavy shower. She made statement before the learned Magistrate. Learned Magistrate recorded her statement and she put her L.T.I. before the Magistrate. The recorded statement is marked as exhibit-1. She was taken to Samuktala Health Centre. After lodging F.I.R. she was also taken to Alipurduar Hospital. Police seized the saya and prepared the seizure list. She identified the appellant.
P.Ws 2 and 3 are the son and daughter of the victim respectively. They have corroborated the evidence of the victim (P.W. 1). P.W. 4 and P.W. 6 who are the brother and father-in-law of the victim were informed by P.W. 2 and arrived at the spot shortly after the incident. After the incident P.W. 1, the victim, took refuge in the house of Budho Khalko (P.W. 8). He has also corroborated the evidence of the victim.
As the prosecution witnesses particularly the minor children i.e. P.Ws 2 and 3 had witnessed the sexual assault on their mother there is no reason to disbelieve their versions.
In view of the fact that the sexual assault on the victim is supported by eye-witnesses, failure of the prosecution to adduce medical evidence is no ground to throw out the prosecution case.
Accordingly I uphold the conviction and sentence imposed upon the appellant. Period of detention suffered by the appellant during investigation, enquiry and/or trial shall be set off against substantive sentence under Section 428 of the Code of Criminal Procedure.
The appeal is, accordingly, dismissed.
Copy of this judgment along with the lower court records be sent down to the trial Court at once.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the parties expeditiously.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.)