Sohan Singh Yadav @ Banti @ Laltu vs State Of West Bengal
2021 Latest Caselaw 5970 Cal

Form No. J(1)

                  IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                       APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
                And
The Hon'ble Justice Krishna Rao

                              C.R.A. 127 of 2019

                      Sohan Singh Yadav @ Banti @ Laltu
                                     -Vs-
                             State of West Bengal


For the Appellant :     Mr. Amitabha Karmakar, Adv.
                        Mr. Arup Kr. Bhowmick, Adv.


For the State     :     Mr. Abhra Mukherjee, Adv.
                        Mr. Dipankar Mahato, Adv.


Heard on          :             01.12.2021

Judgment on       :             01.12.2021


Joymalya Bagchi, J. :-

     The appeal is directed against the judgment and order dated

10.10.2018

and 11.10.2018 passed by the learned Additional Sessions

Judge, First Track Court, Haldia in S.T. no. 1/2017 arising out of

Sessions Case No.07(11)/2016 convicting the appellant for

commission of offence punishable under Section 376 of the Indian

Penal Code and sentencing him to suffer rigorous imprisonment for 10

years and to pay a fine of Rs.5,000/-, in default to suffer rigorous

imprisonment for six months more.

The case depicts a sordid incident of penetrative sexual assault

on a septuagenarian lady with hearing impairment. On the night of

16.6.2016 while all other family members had gone out to celebrate

Manasa Puja, it is alleged that the appellant entered the room of the

victim (PW 9) and forcibly committed rape on her. In the early morning

of 17.6.2016 when the family members returned from the celebrations,

they found the victim lying with bleeding injury. She narrated the

incident to her son-in-law, Subhash Chandra Kotal and others

implicating the appellant. Subhash Chandra Kotal (PW 1) lodged

complaint resulting in registration of Case No. 258 of 2016 dated

16.6.2016 under section 376 IPC. Victim was admitted to hospital

with injuries in her private parts and treated. With the help of

interpretor (PW 10), her statement was recorded before the police and

Magistrate. In conclusion of investigation, charge-sheet was filed.

Charges were framed under Sections 376/506 of the Indian Penal

Code and the appellant pleaded not guilty and claimed to be tried. In

course of trial prosecution examined 12 witnesses (including the

victim lady). The defence of the appellant was one of innocence and

false implication. In conclusion of trial, learned trial judge by the

impugned judgment and order convicted and sentenced the appellant,

as aforesaid.

Mr. Karmakar, learned Counsel appearing for the appellant

argues that the evidence of the victim with regard to rape suffers from

various contradictions and does not inspire confidence. Opinion of

doctor (PW 7) is not conclusive with regard to rape. He further submits

that the appellant had been falsely implicated by PW 1 son-in-law of

the victim in order to grab his land. Hence, the conviction is liable is to

be set aside.

On the other hand, Mr. Mukherjee, learned Counsel appearing

for the State submits that the evidence of the victim lady is

corroborated by other independent witnesses. PW 7, doctor found

injury on her private part of the victim. Possibility of such injury due

to fall is most improbable as there are no other marks of injury on the

body of the victim. Thus, the appeal is liable to be dismissed.

P.W. 9 is a septuagenarian lady who suffered from hearing

impairment. In the course of investigation she had been examined

with the help of an interpretor, PW 10. However, for reasons best

known to the prosecution, assistance of the interpretor was not taken

while recording her deposition in court. Be that as it may, trial judge

has recorded the victim's deposition wherein she unequivocally stated

that on the fateful night the appellant had entered her house and

committed rape upon her. He had also demanded money. She cried

out in pain. The appellant had also been identified by the victim in

court. In cross examination, the victim denied the suggestion that she

had suffered injury due to fall. Evidence of the victim is corroborated

by her son in law, PW 1 who is also the informant in the case. PW 1

deposed all of them had gone to celebrate Manasa Puja and the victim

was alone in the house. On returning from the celebration they found

the victim in bleeding condition and the victim narrated the incident to

them. He lodged written complaint, Ext 1. He has also signed on the

seizure list. The victim was admitted in hospital. Statement of the

victim was recorded with the aid of interpretor. In cross examination,

he has squarely denied suggestion that the appellant was falsely

implicated in order to snatch land belonging to him.

PW 3 is the second wife of the husband of the victim and PW 5

is her son. Both of them have corroborated the evidence of the victim

with regard to sexual assault by the appellant. PW 2 is a neighbor and

independent witness. She had also gone to attend the Manasa

celebration. She came to the house of the victim on the next day and

the victim narrated the incident to her.

From the aforesaid evidence on record it appears that the

victim had narrated the incident of rape upon her by the appellant at

the earliest opportunity to her relations including the neighbour, PW2.

Apart from the said corroboration, evidence of PW 7, doctor shows that

he victim suffered injury on the lower portion of vagina with bleeding

and required surgical intervention. Relying on the opinion of the

doctor that there was uncertainty whether the victim had been raped

or not as such injury may be caused due to trauma or accident, it is

argued that the prosecution case has not been proved. Evidence of a

medical expert is in the nature of opinion evidence and cannot

override the clear and unequivocal version of a rape victim. It is trite

law that the evidence of a rape victim is to be treated at par with that

of an injured witness. PW 7 found injury on the lower portion of the

vagina with bleeding which corroborates the allegation of sexual

assault resulting in bleeding injury as narrated by the victim.

Possibility of such injury being caused due to fall is in the realm of

conjecture and appears to be most improbable as the victim, an old

lady, did not consistent and corroborated version of the victim, PW 7

and suffer any other injury on her body which would have ordinarily

occurred in the event of a fall.

Thus, I am of the opinion that the prosecution case is proved

beyond reasonable doubt.

Conviction and sentence recorded against the appellant is

accordingly upheld.

The appeal is, accordingly, dismissed.

The period of detention suffered by appellant during

investigation, enquiry or trial shall be set off under Section 428 of the

Code of Criminal Procedure.

Copy of the judgment along with LCR be sent down to the trial

court at once for necessary compliance.

Urgent Photostat Certified copy of this order, if applied for, be

supplied expeditiously after complying with all necessary legal

formalities.

               I agree




         (Krishna Rao, J.)                                       (Joymalya Bagchi, J.)




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