IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Before :
The Hon’ble Justice SAHIDULLAH MUNSHI
And
The Hon’ble Justice SUBHASIS DASGUPTA
C.R.A. No. 257 of 2015
Bikash Pramanik @ Subhas
… Appellant/Accused
(in Correctional Home)
-Versus
The State of West Bengal
… Respondent
Mr. Navnil De,
Ms. Ayantika Roy
Mr. Rajeshwar Chakraborty
… for the appellant
Mr. Binoy Kumar Panda
Mr. Narayan Prasad Agarwala,
Mr. Arindam Sen
… for the State
Heard on : 13.08.2019, 14.08.2019, 16.08.2019, 02.09.2019
03.09.2019.
Judgment on : December 13, 2019
Sahidullah Munshi, J.: This appeal is at the instance of
Bikash Pramanik assailing the order of conviction dated 26th March,
2
2013 passed by the learned Additional Sessions Judge, Fast Track,
2nd Court Haldia, Purba Medinipur in Sessions Trial No. 04(8)/12,
thereby convicting the appellant under Section 376(2)(g) of the Indian
Penal Code and directing him to suffer rigorous imprisonment for life
and to pay a fine of Rs.10,000/- in default to suffer rigorous
imprisonment for one year and with a further order of conviction
under Section 394 of the Indian Penal Code and sentencing to suffer
rigorous imprisonment for 10 years and to a fine of Rs. 5,000/- in
default to suffer further rigorous imprisonment for a term of six
months and directing that both the sentences are to run concurrently.
The above order of sentences were passed against four persons
namely, (1) Bikash Pramanik @ Subhas (2) Sanu @ Sachi Dolui (3)
Ranjit Manna @ Kanai (4) Subhankar Jana of whom only Bikash
Pramanik alias Subhas is the appellant before us. The appellant has
been charged for the commission of an offence punishable under
Section 382/394/376(2)(g) IPC. Briefly the prosecution case is that
complainant Nandalal Chakraborty, husband of the victim, a resident
of “Technovilla” Complex, Azad Hind Nagar, Haldia Township, Purba
Medinipur at the time of commission of offence at 2.30 am on 15th
/16th December, 2011 received an information over telephone from
his wife that four miscreants broke open his flat after breaking
padlock and iron grill of the main gate and committed physical
assault upon his wife and son. They also committed physical torture
upon his wife and stole away few articles including gold ornaments
and cash. The miscreants also assaulted night guard of the said
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residential complex and took away mobile phone of the security guard
armed with iron rod, vojali (sharp cutting weapon) etc. On the basis of
such written complaint Halida police started Haldia P.S. case no.
153/11 dated 17.12.11 under Section 382 IPC. Sub Inspector Ajay
Kumar Mishra was entrusted to investigate the case and he recorded
statements of the available witnesses; seized wearing apparels of the
victim; seized broken lock and collected the copy of the statement
recorded under Section 164 Cr.P.C. and thereafter, made a prayer for
addition of offence under Section 376(2)(g) of Indian Penal Code before
the learned Additional Chief Judicial Magistrate, Haldia. On his
transfer the case was handed over to some other Investigating Officers
namely, S.I. Gopal Patak and S.I. Santosh Hazra. In course of
investigation TI parade of the accused persons were held. After
completion of investigation charge-sheet was submitted under Section
382/376(2)(g)/394/412/123 of IPC against the accused persons,
wherein one accused person namely, Sk Manirul was shown to be an
absconder. The charge against this appellant was framed on
16.08.2012 under Section 382/394/376(2)(g) of IPC . Charge was
read over and explained to the accused persons to which they pleaded
not guilty and claimed to be tried.
No evidence has been adduced by the defence but it appears
from the trend of cross-examination that the accused/appellant
pleaded innocence during examination under Section 313 of the Code
of Criminal Procedure.
4
The main thrust of the appellant in this appeal is that the
testimony of the complainant regarding commencement of the offence
cannot be believed inasmuch as the commission of offence was
registered on 17th December, 2011 through written complaint by the
husband (PW1) of the victim (PW2), but there was no whisper about
the commission of offence under Section 376 IPC and it was only then
disclosed before the learned Magistrate when her statement was
recorded under Section 164 of the Code of Criminal Procedure on 19th
December, 2011. The appellant submitted that although, immediately
after the written complaint was lodged police recorded the statement
of the victim, she did not disclose the commission of the offence under
Section 376 IPC.
Learned advocate for the appellant tried to argue that Medical
Report does not corroborate the statement of the victim recorded
under Section 164 of the Code of Criminal Procedure, particularly,
that the medical report (Exbt.3) does not show any injury upon her
private parts. The report, however, shows injury to the extent “sub-
conjunctival hemorrhage present on her left eye, bruise mark present
below left lower eye lid”
Submission made by Mr. De that because of non-revealing
injury in the private parts of the victim, allegation of rape cannot be
believed particularly when the evidence of doctor examining the victim
does not corroborate the statement of victim recorded under Section
164 of the Code of Criminal Procedure.
5
Such submission of Mr. De, however, cannot be accepted in
view of the decision in Lalliram Anr. -Vs. – State of Madhya
Pradesh reported in (2008) 10 SCC 69 the Hon’ble Apex Court has
held that mere non-appearance of injury is not sufficient to hold
acquittal of the accused. Therefore, such submission of Mr. De cannot
be a basis to grant acquittal in this case.
Mr. De, further submitted that quality of the evidence of the
victim is not good, however, we have already justified as to why the
victim’s statement under Section 164 Cr.P.C. is to be accepted in view
of the corroboration. The victim herself stated that two accused
persons violated her and two accused persons were assaulting her son
in the nearby room. If this fact is established then it establishes the
basis for punishment under Section 376(2)(g) read with Explanation-
1.
Mr. De, learned advocate appearing for the appellant relied on
the following decisions:
• Lalliram Anr. -Vs. – State of Madhya Pradesh
reported in (2008) 10 SCC 69;
• Om Prakash -Vs. – State of Haryana reported in AIR
2011 SC 2682;
• Unreported judgment in C.R.A. No. 591 of 2015 decided
on 11.01.2019 in the case of Kamal Krishna Banik -Vs.
– State of West Bengal
6• Rameshwar S/o Kalyan Singh -Vs. – The State of
Rajasthan reported in AIR (39) 1992 SC 54;
• Rai Sandeep alias Deepu -Vs. – State of NCT of Delhi
reported in AIR 2012 SC 3157
• Rajesh Patel -Vs. – State of Jharkhand reported in AIR
2013 SC 1497.
Mr. De, learned advocate appearing for the appellant submitted
that an accused is entitled to acquittal if the evidence of the witnesses
shows contradiction and in particular when there is inconsistency in
statement of the prosecutrix as regards the accused who committed
rape upon her. In support of such proposition he relied on a decision
in Laliram (supra) which is also a case under Section 376 (2)(g) of the
Indian Penal Code meaning thereby the allegation is of gang rape.
Banking upon the medical report that there was absence of any injury
and where the testimony of the prosecutrix as well as the medical
evidence the Hon’ble Apex Court held that the accused cannot be
convicted on the basis of her version. The fact involved in this case is
that “On 23rd September, 1985 in the evening the prosecutrix along
with her husband Dayaram went to Khajuri. On the way near the field
of Mangal, the appellants met them and started to abuse the
prosecutrix. The appellants also started beating the husband of the
prosecutrix and took the prosecutrix near the well of Kamal Singh
where the accused Pooran Singh and Lalliram talked to Chaturbhuj.
Dayaram was locked in a room. Then the appellants took away the
7
prosecutrix to the upper room of the house and committed rape
repeatedly in the night. In the next morning they released the
prosecutrix and warned her not to report to anybody. Then she brought
Dayaram from the room and at that time Latura, Gyarasa, Bharo Singh,
Kamal Singh and Harihar reached there. They were informed about the
incident. The appellant also snatched a bag from prosecutrix containing
Rs.25/- and identity card of Dayaram.” In the said case order of
acquittal was passed by the trial Court but High Court did upset the
acquittal which has been held to be clearly unsustainable by the
Hon’ble Apex Court while allowing the appeal.
In the said decision the Hon’ble Apex Court held that “However,
if the Court finds it difficult to accept the version of a prosecutrix on the
face value, it may search for evidence direct or circumstantial.” In the
said cited decision the victim PW2 stated about her injuries on cheek
and back. But such injury could not be related to medical
examination repot. PW2/victim also stated that she suffered injuries
on her legs. Such injuries were also not noticed. Several
contradictions were noticed by the Hon’ble Apex Court and as a result
evidence was not relied on and held acquittal to be justified.
Applying the tests laid down in the said decision this can safely
be held that the fact of the said case does not tally with the fact of the
present case. The present case is clearly distinguishable from the
facts on the basis of which above decision was given by the Hon’ble
Supreme Court. Simply because the victim did not disclose the
8
occurrence of rape to the post-occurrence witnesses there can be no
reason to hold that her entire statement before the Police under
Section 161 Cr.P.C. and before the Magistrate while recording her
statement under Section 164 Cr.P.C. should be disbelieved or liable to
be discarded, nor can there be any reason to hold that the evidence of
the victim is not creditworthy. It is the settled law that even sentence
can be given to the accused solely on the basis of the evidence of the
prosecutrix and version of the prosecutrix if appears to be credible,
then no corroboration is necessary as held by the Hon’ble Apex Court
in Aman Kumar -Vs.- State of Haryana reported in (2004) 4 SCC
379.
Next decision in Om Prakash (supra) has been relied on by Mr.
De on the issue that delay in lodging complaint is fatal for the
prosecution to invite an order of conviction. Mr. De submitted that in
the present case since the allegation of rape was not included in the
FIR and it was brought only at the stage when her statement under
Section 164 of the Code of Criminal Procedure was recorded by the
Learned Magistrate, he submitted that such delay is fatal for the
prosecution to establish the case of rape upon the victim beyond any
reasonable doubt and the approach of the prosecution is shrouded
with suspicion. Therefore, Mr. De submitted that the order of
conviction passed by the learned trial Court should be set aside and
the appellant should be acquitted of the offence complained of. The
decision cited by Mr. De relates to an offence one of gang rape where
the trial Court convicted the accused person under Section 363/368
9
376(2)(g) IPC. Two appellants preferred separate appeals before the
High Court but were dismissed, upholding the judgment of conviction
and order of sentence awarded by the trial Court. Judgment of the
High Court was challenged in appeal before the Hon’ble Apex Court
and the order of conviction and sentence was modified. Reducing the
sentence whereby the appellant was acquitted of charge under Section
376(2)(g) IPC, however, conviction under Section 363 and 368 IPC was
upheld and directed the accused to undergo rigorous imprisonment
for five years with fine of Rs.5,000/- in default of payment of fine to
undergo rigorous imprisonment for four months. While deciding the
said appeal the Hon’ble Apex Court, however, made the observation
“once a reasonable explanation is rendered by the prosecution then
mere delay in lodging of a First Information Report would not
necessarily prove fatal to the case of the prosecution.” The above
observation made by the Hon’ble Supreme Court has a direct impact
in the present case at hand.
Therefore, simple delay is not fatal, unless a case is made out
that the delay has not reasonably been explained which is not the
case at hand. Here the delay has been explained and we, particularly,
hold that the offence of rape upon a married lady cannot ordinarily be
perceived to be disclosed to all people or the post-occurrence
witnesses. The submission of Mr. De that she has not even disclosed
the fact to her son, who was also a victim of the robbery, cannot be
appreciated at all. Similarly, the stand taken by the appellant that she
has not disclosed the fact to the security personnel after the
10
occurrence cannot also be appreciated at all. So far, the disclosure of
the incident to the husband who was not present at the time of
incident and was posted out station and informed by the wife over
telephone, it is not expected that she would communicate everything
over telephone to her husband before he comes back. Therefore, it can
be logically concluded that instead of informing the husband over
telephone who might be accompanied at the relevant time by other
persons and she thought it not proper to communicate about such a
heinous offence to her husband and when this phone call was made
by the victim to her husband, her son was at home resulting thereby
she was hesitant to disclose the fact to her husband. The attending
circumstances does not permit us to hold that the delay in the instant
case is such a delay which doubts the occurrence of the offence or
that it remained unexplained or that it vitiates the prosecution’s case
either way.
Kamal Krishna Banik (supra) has been cited on the issue when
seizure and FSL are absent with the prosecution case. Mr. De
submitted that no articles were seized by the Investigating Officer
and/or recovered from the appellant who was taken into custody on
the very day of lodging of the FIR. He further submitted that victim
did not speak to IO about the rape committed upon her and vaginal
swarb of victim was not sent by the Investigating Officer for FSL.
According to Mr. De this lacuna is sufficient enough to destroy the
prosecution case. In the cited decision although, it was one of the
issues regarding non-seizure of the wearing apparels of the victim and
11
the forensic examination of the appellant but there were other
convincing evidence supporting prosecution case and there appears
no ground to hold that the appellant was entitled to be acquitted.
In the said case the prosecution suppressed that the victim
refused to get herself medically examined on the next day of
occurrence after the FIR was lodged and this fact is coupled with
other very important factors that the evidence of the victim was
unreliable, inasmuch as in her cross-examination she stated that the
appellant called her to his house, she shouted for help but such
statement made by the victim during her cross-examination did not
find support from her statement recorded under Section 164 of the
Code of Criminal Procedure. That apart the medical Officer (PW6) did
not support the allegation of rape. Therefore, the decision cited by Mr.
De cannot be relied on to hold that his client is also on similar footing.
Cited decision is thus distinguishable on fact.
The decision in Rameshwar (supra) has been cited by Mr. De to
argue that delay is fatal to establish the prosecution case. In our case
there is no doubt that there has been some delay in making the
complaint of rape upon the victim lady but the attending
circumstances justifies the delay in opening her mouth with regard to
the commission of offence of rape to the police authorities. The offence
was committed in the night of 15th and 16th December, 2011 at about
2.30 am and her husband lodged the complaint before the police on
17th December, 2011 about the robbery. In the said complaint nothing
12
was disclosed about the rape. Only what has been disclosed to the
police authority by the husband/complainant is that the accused
persons committed physical torture upon her. She informed her
husband who was posted out station and for the first time she
disclosed that rape was committed by the accused persons on 19th
December, 2011 before the Learned Magistrate who recorded her
statement under Section 164 of the Code of Criminal Procedure
between 17th and 19th December, 2011, and thereby one day
intervened and this might have happened because of the mental
trauma which she suffered because of the inhuman behaviour caused
by the accused person as is evident from her 164 statement as also
her deposition in Court and there can be no reason not to implicate
the accused persons in the offence of rape. TI Parade was held and
she identified the offenders. That apart medical report (Exbt.3) and
the examination of the Medical Officer who examined the victim
corroborates the victim’s testimony so also the statement under
Section 164 of the victim. Exbt.2 and Exbt.3 if considered together
there is no chance to disbelieve the witnesses deposing on those
documents.
Therefore, delay, in our opinion is not so much, so that the
prosecution case cannot inspire confidence of this Court. In our view,
such delay of one day on the part of the victim to disclose the offence
under Section 376 IPC for the first time before the learned Magistrate
is not that fatal which may lead to the acquittal of the accused
persons. The victim is a married lady and her son is a student of
13
Class-XII with security guard posted in her house and having some
social status taking note of the fact that her husband is an engineer,
if she has not made the fact public immediately, it cannot be
construed that the victim concocted a story.
The decision in Rai Sandeep (supra) has been cited by Mr. De
to argue that when prosecution relies on a particular witness here in
this case the victim to be the ‘starling witness’, he should be of a very
high quality and caliber whose version should be unassailable.
The decision in Rai Sandeep (supra) has been relied on by Mr.
De to argue that the medical report does not corroborate the
testimony of the victim lady and he relies on paragraph 23 of the
decision which is set out hereinbelow:
“23:- In the decision reported as Lalliram Anr. v. State of
Madhya Pradesh (supra) in regard to an offence of gang rape
falling under Section 376 (2) (g) this Court laid down the
principles as under in paras 11 and 12:
“11. It is true that injury is not a sine qua non for deciding
whether rape has been committed. But it has to be decided on
the factual matrix of each case. As was observed by this
Court in Pratap Misra v. State of Orissa where allegation is of
rape by many persons and several times but no injury is
noticed that certainly is an important factor and if the
prosecutrix’s version is credible, then no corroboration is
necessary. But if the prosecutrix’s version is not credible then
there would be need for corroboration. (See Aman Kumar v.
State of Haryana.)
14
12. As rightly contended by learned counsel for the
appellants, a decision has to be considered in the background
of the factual scenario. In criminal cases the question of a
precedent particularly relating to appreciation of evidence is
really of no consequence. In Aman Kumar case it was
observed that a prosecutrix complaining of having been a
victim of the offence of rape is not an accomplice. There is no
rule of law that her testimony cannot be acted upon without
corroboration in material particulars. She stands on a higher
pedestal than the injured witness. In the latter case there is
injury in the physical form while in the former both physical
as well as psychological and emotional. However, if the court
finds it difficult to accept the version of a prosecutrix on the
face value, it may search for evidence direct or
circumstantial.” (emphasis added).”
Paragraph 23 of the cited decision discusses the ratio of
Lalliram (supra) which we have already discussed earlier. Injury, as
held by the Hon’ble Apex Court, is not the sine qua non to come to a
finding that the victim was violated or that there can be no finding
that there has been rape upon the victim simply because the medical
report does not disclose any mark of injury. In the case at hand as we
have already pointed out that incident took place in the night of 15th
and 16th December, 2011 whereas on 19th December, 2011 she has
disclosed before the learned Magistrate about the offence under
Section 376 IPC. Medical examination was held sometime later.
Therefore, it is reasonably not possible to get any mark of injury as
Mr. De sought to argue. That apart victim is a married lady aged
about 50 years. Applying the same principles in Lalliram (supra) and
15
Rai Sandeep (supra) we can safely come to a conclusion in the
present case that non-mention of mark of injury at the private part of
the victim cannot give advantage to the accused for an order of
acquittal from the offence complained of under Section 376 IPC. We
apply the same principle as has been applied by the Hon’ble Apex
Court that there is no rule that testimony of the victim cannot be
acted upon without corroboration in material particulars. Being a
victim of the offence complained of, she stands on a higher pedestal
than the injured witness and it is not expected that the victim
belonging to a noble family with high social status would disclose
everything to the police authorities immediately after such an heinous
offence committed by the accused persons. Therefore, this judgment
cited by Mr. De showing acquittal of the accused persons is only
applicable on the given fact on the basis of which the decision of
acquittal was passed but the same ratio is not applicable in the
present case as the same is distinguishable on fact.
The decision in Rajesh Patel (supra) has been cited by Mr. De,
to argue that delay in disclosing the offence under Section 376 IPC by
the victim before the police officials is detrimental to the prosecution
case. As we have already discussed earlier about the delay and the
delay is justifiable. The given decision shows a fact totally different
and there it was eleven days delay whereas in the present case the
delay is only two intervening days if not one. The fact of the case cited
does not match with the present case and therefore, the same is
distinguishable on fact and no reliance can be placed.
16
Mr. Panda learned advocate appearing for the State has rightly
pointed out that delay in making FIR cannot be the sole ground to
exonerate the offenders. He submitted that on the facts narrated in
the written complaint and the attending circumstances proved by the
prosecution it is established beyond reasonable doubt that the charge
has been proved not only under Section 394 IPC but also under
Section 376(2)(g) of the Indian Penal Code.
Mr. Panda further submitted that it is quite possible for a lady
after being ravished in her own residence by miscreants in presence of
her grown up child that she should suffer a mental trauma and this
trauma so long exists, she cannot speak to others. So far the injury
report is concerned Mr. Panda submitted that because of the lapse of
time the injury must have been recovered in natural course. The
evidence adduced by the prosecution sufficiently proved the offence
under Section 394 IPC, that is, commission of robbery and the
statement of the complainant has been corroborated by PW3 and
PW5. If such incident is proved, if breaking open the padlocks and
grill is proved at the dead at night simple denial of the incident of
commission of rape upon the victim is not the sufficient defence for
the accused. Totality of the evidence adduced by the prosecution has
clearly established the charges both under Section 394 and 376(2)(g)
IPC.
17
Mr. Panda has also relied on a decision in Om Prakash -Vs. –
State of Haryana reported in AIR 2011 SC 2682 which has been
relied on by Mr. De too. Citing this decision Mr. Panda submitted that
common intention of the accused is clearly evident from the evidence
that they jointly broke open the padlock and grill, took the victim to
bathroom and ravished her twice. Therefore, submission of Mr. De
that his client is innocent cannot be accepted. He submitted that the
decisions in Rajesh Patel -Vs. – State of Jharkhand reported in AIR
2013 SC 1497 and Rai Sandeep alias Deepu -Vs. – State of NCT of
Delhi reported in AIR 2012 SC 3157 are not applicable in the
present case and that apart they are distinguishable on fact.
In the present case PW2 (victim) was cross-examined at great
length by the defence but she could not be shaken to any extent.
Therefore, there is no reason why should we not believe the testimony
of PW2 regarding the commission of the offence. Why the incident of
physical violence could not be disclosed has been sufficiently
explained by PW2 in her evidence, she stated that police interrogated
her on 17th December, 2011 but she could not disclose everything due
to shame and prestige but she disclosed to the police on 18th
December, 2011. Such conduct of the victim not concealing anything
in her testimony also supports her case that she spoke the truth, not
only before the police but such fact has been recorded in 164
Statement (Exbt. 12) on 19th December, 2011. As statement made
under Section 164 (Exbt. 12) Cr.P.C. may be used to corroborate or
contradict a statement made in Court in the manner provided by
18
under Section 145 and 157 of the Indian Evidence Act. And in this
case corroborative value of Exbt.12 cannot be denied. Her statement
before the Magistrate has been well corroborated by her when she
stated before the Court that accused persons assaulted her over her
body; removed her wearing apparels; dragged her into bathroom and
violated her. Another witness PW5 Somnath Chakraborty who is aged
about 18 years and son of PW2 also stated before the learned
Magistrate under Section 164 of the Code of Criminal Procedure and
marked as Exbt.7 also is an important piece of evidence which
corroborates the testimony of the victim PW2. This witness PW5
deposed that on 15/16th December, 2011 at about 2.30 hours at night
he heard a sound of breaking of door and padlock and then accused
persons entered into the house when he was sleeping in one room and
his mother was sleeping in another adjoining room. He specifically
stated that four miscreants entered into their house. He further
deposed that two miscreants entered into his room and two other
miscreants entered into his mother’s room who assaulted him. He
heard crying of his mother. The trial Court relying on the evidence of
the son PW5 has rightly held that it is not expected that a son will
make any false statement as to the chastity of her mother on dock.
Therefore, testimony of PW5 is also very important in the present case
to come to a finding that the offence under Section 376 IPC is not a
concocted story made by PW2. PW5 fully corroborates the testimony
of PW2.
19
In the case at hand PW2 and PW5 at the time of their
examination-in-chief also deposed before the Court that during the
incident all the lights were switched on as PW5 was busy in preparing
his study for his ensuing examination.
Such evidence at least would show that the accused persons
could be identified if they were known but since the miscreants were
not known to the victim TI Parade was held and during TI Parade both
PW2 and PW5 identified the accused persons as would be evident
from the report of TI Parade. Any of the Reports of TI Parade those
were marked as Exbt.15, Exbt.16 and Exbt.18 would show that victim
PW2 duly identified three accused persons namely Bikash Pramanik,
Sanu and Ranjit Manna. Perfectness of the report and manner of
conduct of the TIP is not under dispute at the instance of the defence
as is evident from the examination of the accused persons under
Section 313 of the Code of Criminal Procedure. The identification
process was conducted inside correctional home because the accused
persons were arrested by then.
The victim PW2 was examined by PW7 who prepared a report
marked Exbt.11. Report indicates mark of injury over the parts of the
body of the victim. However, no injury was clinically detected on the
private organs of the victim. Question raised whether such
circumstances of non-disclosure of the injury to the private parts of
the body of the victim should in any way lead to acquittal of the
accused persons. We have already elaborately discussed and we have
20
also considered the settled law on the issue that mere absence of
injury on the prosecutrix is not by itself sufficient to hold that she has
not been violated. The trial Court has rightly held that the medical
evidence is an evidence of opinion but not the evidence of fact. It is
not possible for a medical practitioner to say whether the victim has
been raped or not. Rape is a medical diagnosis.
To this extent Mr. Panda is right in submitting that because of
the delay the injury perhaps could not be detected which healed up in
natural course. The medical examination was done on 22.12.2011
after seven days of the alleged incident and what Mr. Panda submitted
has got some basis. In addition, the victim is an aged lady on 49 to 50
years and after all a mother of a grown up boy who is a student of
Class-XII. Therefore, this argument on behalf of the defence that since
there is no mark of injury charge should not have been held to be
proved cannot be accepted.
Although, it is argued by the defence counsel that there are
sufficient contradiction in the victim’s statement with regard to the
commission of rape and particularly that there are sufficient reasons
to disbelieve the victim’s testimony, we find that there is no such
inconsistency nor is there any contradiction. The victim all
throughout was consistent, cogent and otherwise truthful. The
testimony of the victim inspires confidence of this Court. Therefore,
when it is the settled law that sole-testimony of the prosecutrix can be
sufficient to sentence the accused, there is no reason to come to a
21
conclusion that the prosecution case should fail inasmuch as victim
did not react immediately after the commission of offence and as
pointed out by the defence counsel that the complainant, did not
mention the same in FIR.
A prosecutrix of a sex offence cannot be put on par with an
accomplice. She is, in fact, a victim of the crime. The Evidence Act,
1872 nowhere says that her evidence cannot be accepted unless it is
corroborated in material particulars. Apart from the corroboration to
the extent, we have discussed, relying on the testimony of PW3 and
PW5, we hold that undoubtedly, she is a competent witness within the
meaning of Section 118 of the Indian Evidence Act and her evidence
must receive the same weight as is attached to an injury in cases of
physical violations as has been observed by the Hon’ble Apex Court in
various decision.
Charge was framed under Section 394 of IPC against the
accused persons and such charge has duly been proved by the
prosecution by proving that (a) accused/appellant committed or
attempted to commit robbery; (b) either the appellant or anyone else
jointly concerned in committing or attempting to commit robbery
caused hurt; (c) such hurt was caused voluntarily. Offence of robbery
is contained under Section 394 of the Indian Penal Code.
The important facet of Section 394 IPC is voluntarily causing
hurt in course of committing or attempting to commit robbery by any
person or with any other person jointly shall be punished with
22
imprisonment for life or with rigorous imprisonment for a term which
may extend to 10 years and is also liable to fine.
The learned Court below upon due consideration of the evidence
adduced by the prosecution arrived at a finding that the alleged
incident of robbery actually took place on the date mentioned in the
FIR. The witnesses witnessed that accused persons entered into the
house after breaking open padlock of the complainant’s room and
caused assault upon his son and wife, tortured his wife and after
breaking almirah stolen away two gold chains, ear rings, bangles, four
mobile phones, digital camera, wrist watch and cash of Rs.20,000/-.
PW2 and PW5 witnessed the said incident. PW5 who was present at
the time of alleged incident has corroborated the said facts. The
accused persons assaulted the victim; and assaulted victim’s son and
ultimately, robbed away digital camera, wrist watch and some cash
from almirah. PW3 in his evidence deposed that accused persons
entered into the building complex and assaulted him and thereafter
snatched away his mobile phone and Rs.80/-. He deposed that the
accused persons snatched away the keys of the gate. From the above
evidence it is evident that the alleged incident of robbery took place on
the aforementioned date as mentioned in the written complaint filed
by PW1. More so, the accused persons were duly identified by the
witnesses inside the correctional home at the time of conduct of
identification parade in presence of a Magistrate and those witnesses
also identified the accused persons in Court during trial.
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It is, therefore, evident that the accused persons used force and
assaulted physically PW2, PW3 and PW5 and commission of such act
attracts the provisions of Section 382 IPC. The act of robbery with
voluntarily causing hurt attracts the prescribed punishment under
Section 394 IPC. Therefore, in our view the learned Court below has
rightly answered the charge under Section 394 IPC in positive.
It is now the law settled that even other witnesses in a case like
this where commission of offence has been alleged under Section 376
IPC, the evidence of the victim alone can be sufficiently relied on to
sentence the accused persons if such evidence of the victim inspires
confidence upon the Court and the evidence seems to be creditworthy.
This discussion we have made earlier and there is no doubt in
our mind to hold that the evidence of the victim is by any means
could be doubted or that her testimony is not creditworthy, or that
the evidence has not been corroborated by other witnesses. In such a
situation we do not justify that simply because during the lodging of
the complaint on 17th December, 2011 the offence of rape was not
mentioned but it was subsequently mentioned before the learned
Magistrate while recording her statement under Section 164 of the
Code of Criminal Procedure would be sufficient to disbelieve the
testimony of PW1 or that we should consider that there have been no
offence committed by the appellants. We reiterate that when the
offence under Section 394 IPC has been proved and evidence available
in support thereof could not be doubted seriously by the defence, the
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offence being one under Section 376 IPC which is in connection with
the earlier offence cannot brush aside simply because the accused
persons are of the same age group of 19 years as submitted by Mr.
De. Mr. De has reiterated by relying on a decision in Lalliram Anr.
-Vs. – State of Madhya Pradesh reported in (2008) 10 SCC 69 to
submit that similar lenient view may be taken considering the age of
the accused persons. We, however, are not convinced at all with such
submission made by Mr. De.
So far, the sentence imposed by the learned Court below with
regard to the charge under Section 394 IPC is concerned, we do not
find any illegality. We, therefore, affirm the order of conviction and
sentence under Section 394 IPC.
So far the charge under Section 376(2)(g) IPC in view of the
evidence as discussed earlier, we hold that the said charge has also
been proved by the prosecution beyond all reasonable doubt.
The order of conviction passed by the learned Court below
under Section 376(2)(g)/394 IPC are hereby confirmed.
There is no merit in the appeal and the same is hereby,
dismissed.
The Criminal Section is directed to send down the records to the
learned Court below together with a copy of the judgment forthwith to
the concerned learned trial Court.
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Urgent Photostat certified copy, if applied for, be delivered to the
learned counsel for the parties, upon compliance with all usual
formalities.
I agree.
(Subhasis Dasgupta, J.) (Sahidullah Munshi, J.)