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Judgments of Supreme Court of India and High Courts

(In Correctional Home) vs The State Of West Bengal on 13 December, 2019

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
3

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.
23

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
24

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.

25

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.)

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