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Bhuban Mondal vs State Of West Bengal on 27 February, 2020

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION

Present:

The Hon’ble Justice Joymalya Bagchi
And
The Hon’ble Justice Suvra Ghosh

C.R.A. 927 of 2013

Bhuban Mondal
Vs.
State of West Bengal

For the appellant : Mr. Jayanta Narayan Chatterjee, Adv.
Mr. Apalak Basu, Adv.
Mr. N Ahmed, Adv.
Ms. J Patra, Adv.
Ms. S Das, Adv.
Ms. S Ghosh, Adv.

For the State : Mr. Rana Mukherjee, A.P.P.
Mr. Suman Saha, Adv.

Heard on : 27.02.2020

Judgment on : 27.02.2020

Joymalya Bagchi, J. :

The appeal is directed against the judgment and order dated 24.9.2013

and 25.9.2013 passed by the learned Additional District and Sessions Judge,

Fast Track Court I, Basirhat North 24 Parganas in Sessions trial no. 4(6)09

arising out Session Case No 9(11)08 convicting the appellant for commission of
offence punishable under Sections 376 of the Indian Penal Code and sentencing

him to suffer rigorous imprisonment for life.

The prosecution case as alleged against the appellant is to the effect that

on 17.1.2007 at 8 p.m. when none of the in laws of the victim were at home, her

uncle in law came to her house and entered her room while she was putting her

child to sleep. Suddenly, he gagged her mouth and thereafter committed rape on

her. He threatened the victim not to disclose the incident to anyone otherwise she

would face dire consequences. On the pretext of going to the toilet the victim

escaped by locking the door from outside. She came back with her neighbour but

the appellant escaped by removing a bamboo fencing around the house. She

went to the local panchayet members who claimed that they were busy. On the

next day, she went to the police station. They assured her that police force would

be sent from the local police outpost but such help did not arrive. Accordingly, on

21.1.2007

she lodged written complaint against the appellant alleging rape. In

conclusion of investigation charge-sheet was filed. Charge was framed against the

appellant under section 376 IPC. Appellant pleaded not guilty and claimed to be

tried. In the course of trial, prosecution examined 11 witnesses and exhibited a

number of documents. In conclusion of trial, learned trial judge by judgement

and order dated 24.9.2013 and 25.9.2013 convicted and sentenced the appellant,

as aforesaid. Hence, the present appeal.

Learned Counsel appearing for the appellant submitted that version of the

prosecutrix PW 1 with regard to forcible sexual assault is highly unnatural and

improbable. She did not raise any hue and cry and FIR was registered two days
after the incident. Other prosecution witnesses particularly PW 3 Sudhansu

Pramanik, panchayet member as well as Minati Mondal, PW 8 have not

supported the prosecution case and were declared hostile. Medical evidence is

also inconclusive. Hence, evidence of PW 1 remains uncorroborated and the

prosecution case is liable to be failed.

On the other hand, Mr. Mukherjee, learned counsel appearing for the State

submitted that delay in lodging FIR has been explained by the victim PW 1.

Other witnesses had been won over by the appellant who was an influential

person in the locality. They were declared hostile and extensively cross examined

with regard to their previous statements to police. Hence prosecution case has

been proved beyond doubt and appeal is liable to be dismissed.

From the evidence on record, it appears that the evidence of P.W.1 has not

been corroborated by other witnesses, including panchayet member Sudhansu

Pramanik, P.W.3 to whom the victim initially lodged complaint and Minati

Mondal, P.W.8, a neighbor who drafted the complaint.

A victim of sexual offence is not an accomplice but is in the same status as

an injured witness. It is settled law that conviction may be founded on the

uncorroborated version of such a victim provided her evidence is reliable. I have

assessed the evidence of P.W.1, (the victim in the present case) from that

perspective. P.W.1 deposed that the appellant was her kakasasur (uncle-in-law)

and on the fateful night, taking advantage of the absence of her husband and in-

laws, had come to her house. At that time she was in the verandah with her child

in her lap. In view of the appellant being a close relation, she did not initially
suspect any evil intention on his part. When she went to the room for putting the

sleeping child in bed, the appellant entered the room and asked her why she has

declined to join “Maobadi Sangathan”. Thereafter, appellant suddenly held her

from behind, gagged her mouth and committed rape on her. He also threatened

her that he had kept a secret machine in the room and would kill her and her

child if she narrated the incident to anyone. On the excuse of going to the toilet,

P.W.1 came out of the room and locked the door from outside and ran for help.

When she returned to the room with her neighbours the appellant fled from the

room by breaking the bamboo fence around the house. Her neighbours took her

to panchayet members who however turned her away claiming that they were

busy in a meeting. On the next day when she went to the police station she was

assured that police force from the local police camp would go to her house for

investigation. Unfortunately, the police did not come and finally on 21.01.2007

she lodged F.I.R.(Ext.1) scribed by P.W.2. She also made statement before

magistrate. She was medically treated (Ext.3). She also exhibited a written

complainant lodged on 18.01.2007 with Sudansu Pramanik, P.W.3, a panchayat

member, (Ext.5). She also proved the seal and stamp of the panchayat (Ext.7) on

the document.

Learned counsel appearing for the appellant has challenged the evidence of

P.W.1 on the ground Sudansu Pramanik, P.W.3 and Minati Mondal, P.W.8 who

wrote the aforesaid complaint did not support her case. It was also submitted

there was enmity between the appellant and P.W.1 over land. Medical evidence

does not corroborate allegation of forcible rape.

The instant case portrays a pathetic picture of secondary victimisation of a

victim of sexual assault. P.W.1 had been forcibly violated by her uncle-in-law.

She rushed to the local panchayat office on the selfsame night but was turned

away on the plea the members were busy in a meeting. Next day she went to the

police station but no complaint was received. She was told policemen would go

from the local police camp to investigate the matter. However, no one turned up.

Finally, on 21.1.07 she again went to police station and lodged FIR. Lack of

cooperation from the local panchayat as well as the law enforcement agency to

the unfortunate victim who knocked on their doors seeking legal redress is writ

large in the facts of case. Hence, I am of the opinion delay in lodging first

information report has been clearly explained and cannot be a ground to

disbelieve the version of the prosecutrix.

It has been contended that the conduct of the victim was unnatural as she

did not raise hue and cry at the first instance. Hence, allegation of forcible

sexual assault upon her is improbable and ought to be taken with a pinch of

salt. I am unable to accept such defence plea. Admittedly, appellant was known

to the victim and consequentially the latter could not have suspected his evil

intention when he initially entered the house. Thereafter, the appellant entered

her room on the pretext of discussing issue relating to her refusal to join

“Maobadi Sangathan”. Suddenly, he caught her and gagged her mouth.

Unexpected assault from a person in confidence clearly perplexed her and she

was unable to raise a hue and cry when she was gagged and raped. Thereafter

the appellant threatened her by saying he had kept a secret machine in the room
and would kill her and her child. Under such circumstances, without raising hue

and cry and risking the lives of her children and herself, P.W.1 escaped from the

clutches of her predator by pretending to go to the toilets and called for help.

Conduct of the victim in the attending facts and circumstances of the case

does not appear to be unnatural. She was a mother of two minor children whose

lives were at risk due to the threats held out by the appellant out by the

appellant. Hence, I am unwilling to come to a conclusion that conduct of the

appellant in not raising hue and cry during the incident is so improbable that her

version of forcible rape ought to be disbelieved. Presence of the minor children in

the room does not improbabilise the incident. They were aged around 2 years and

6 months respectively and were fast asleep at the time of the incident. For

reasons discussed hereinabove the victim was unable to raise hue and cry so as

to awaken the children. Accordingly, presence of the children in the room does

not rule out the prosecution case of forcible rape of the victim.

Judging in the backdrop of the aforesaid facts, I am of the view the version

of P.W.1 is a truthful one which inspires confidence and can be the sole basis of

conviction.

Unfortunately, other prosecution witnesses like P.Ws.3 and 8 appear to

have been won over and did not support the prosecution case. They were

declared hostile and were extensively cross-examined with regard to their

previous statements to police wherein they had fully supported the version of the

victim. Fact that the said witnesses held back truth from the Court is clear from

the contemporaneous complaint lodged by P.W. 1 with the panchayet member
P.W.3. The complaint, (Exhibit-5), was scribed by P.W.8. P.W.8, though hostile,

has admitted she wrote the complaint on the instruction of the victim P.W.1.

These circumstances clearly show that the hostile witnesses had been won over

and sought to protect the appellant for reasons not far to seek.

Evidence of P.W.6, the doctor who examined the victim has clearly

explained due to lapse of time medical evidence of rape may have disappeared.

Hence, little importance may be attached to the medical evidence in the facts of

the present case.

In the light of the aforesaid discussion, I am of the opinion version of the

victim is reliable and does not suffer from inherent improbabilities. National

Crime Record Bureau Reports1 show more than 90 per cent of cases of rape are

perpetrated by relations or known persons. It is, therefore, not unnatural that the

appellant, a close relation of the victim, took advantage of her helplessness while

her other in-laws were absent to subject the victim to rape. Plea of animosity due

to land dispute appears to be farfetched and not convincing. No question was put

to P.W.1 on such score and stray statements from a hostile witness in my

considered opinion cannot be the foundation of such an entrenched enmity

between the parties that would prompt the prosecutrix to falsely implicate the

appellant in a case of rape.

1 NCRB Crime in India Statistics in 2018 show that 93.9% of the total rape cases were
committed by persons known to the victim. In 2017, in 93% of the total rape cases, the
offenders were known to the victim while in 2016, 94.6% of the total cases were
committed by relations including father, brother, son, grandfather or other known
acquaintances.

In the light of the aforesaid discussion, I uphold the conviction and

sentence imposed on the appellant.

Coming to issue of sentence imposed upon him, I note the maximum

sentence of life imprisonment has been imposed upon him. The appellant does

not appear to have criminal antecedents. Balancing the aggravating and

mitigating facts in the present case, I am of the opinion sentence imposed on the

appellant may be modified. He is accordingly directed to suffer rigorous

imprisonment for seven years and to pay a fine of Rs. 10,000/-, in default, to

suffer rigorous imprisonment for six months more.

Period of detention suffered by the appellant during investigation, enquiry,

trial and hearing of appeal shall be set off from the substantive sentence imposed

upon him in terms of 428 of the Code of Criminal Procedure.

Appeal is accordingly disposed of.

Copy of the judgment along with L.C.R.s 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.

(Suvra Ghosh, J.) (Joymalya Bagchi, J.)
tkm/rkd/ss PA

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