Dilip Soren vs State Of West Bengal
2022 Latest Caselaw 2439 Cal

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE

Present:

The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Bivas Pattanayak

C.R.A. 629 of 2014

Dilip Soren

-Vs-

                             State of West Bengal



For the Appellant        :     Mr. Subrata Karmakar, Adv.


For the State            :     Mr. Saswata Gopal Mukherjee, Ld. P.P.
                               Mr. Ranadeb Sengupta, Adv.

Heard on                 :    29th April, 2022

Judgment on              :    29th April, 2022


Joymalya Bagchi, J. :-

The appellant has assailed judgment and order dated 23.07.2014

and 24.07.2014 passed by the learned Additional District & Sessions

Judge, 4th Court, Malda, in connection with Sessions Case No. 02/14

corresponding to Sessions Trial No. 7(02)2014 convicting the appellant for

commission of offence punishable under Section 376 of the Indian Penal

Code and sentencing him to suffer imprisonment for life and to pay fine

of Rs.50,000/-, in default, to suffer further rigorous imprisonment for one

year.

Victim is a blind girl who was barely 18 years old at the time of

occurrence. In the night of 14.11.2013 the victim went out of her house to

answer natures call. The appellant who was a neighbour forcibly pressed

her mouth and took her to a field and raped her. When she resisted the

appellant told her to keep quiet uttering 'chup chup'. She identified the

appellant by his voice. After committing rape appellant threw her in a

nearby well. She cried for help. Local villagers rescued her. Her parents

also came to the spot. Her father (P.W.1) lodged written complaint against

the appellant resulting in registration of Habibpur P.S. No. 203 of 2013

dated 15.11.2013 under Section 376/307 of the Indian Penal Code.

Victim was medically treated. Her statement was recorded before

Magistrate. Appellant was arrested. Charge-sheet was filed against the

appellant. Charges were framed under Section 376/307 of the Indian

Penal Code. Appellant pleaded not guilty and claimed to be tried.

In course of trial prosecution examined 7 witnesses. Defence of

the appellant was one of innocence and false implication. It was the

specific defence of the appellant there was a love affair between him and

the victim. Victim wanted to marry him. In order to exert pressure on the

appellant he was implicated in this false case. To probabilise his defence,

appellant examined his wife as D.W.1 and one Shyamali Hembram as

D.W.2.

In conclusion of trial, learned trial judge by the impugned

judgment and order dated 23.07.2014 and 24.07.2014 convicted and

sentenced the appellant, as aforesaid. He, however, acquitted the

appellant of the charge under Section 307 of the Indian Penal Code.

Mr. Karmakar, learned Counsel appearing for the appellant argues

allegation of rape is a false and concocted story. P.Ws. 1 and 2 parents of

the victim girl are silent with regard to rape upon their daughter in court.

Evidence of victim P.W.3 suffers from contradictions and embellishments.

Evidence has come on record appellant used to visit the residence of

P.W.1 and consume liquor. He had good relation with the victim. These

probabilise the defence version that there was a love affair between the

parties and to compel the appellant to marry, he was falsely implicated in

the instant case. Injuries noted by P.W.6 may have been due to scratches.

No injuries was found on the chest, back and breast of the victim girl.

Hence, appellant is entitled to an order of acquittal.

Mr. Sengupta, learned Counsel appearing for the State submits

victim sufffered from blindness. Appellant was known to her. She

identified the appellant by his voice and stated on the fateful night he had

raped her. Allegation of forcible rape is corroborated by medical evidence.

Doctor who examined the victim found lacerated injuries in her private

parts and stated she had been subjected to forcible rape. Defence version

is palpably false and was rightly rejected by the trial Judge. Appeal is

liable to be dismissed.

P.W. 3 is the victim and most vital witness. She deposed she

suffered from blindness since birth. She was sleeping in her house at

night. She went to answer natures call. Appellant forcibly pressed her

mouth, took her to a field and raped her. When the appellant uttered

'chup chup', victim could identify him by his voice. Thereafter appellant

threw her in a nearby well. Victim cried for help. Local witnesses, namely,

Shyamali and Shanti rescued her. She stated the incident to her parents.

Her parents had talks with villagers. They refused to interfere. Then they

went to Habibpur Police Station and lodged complaint. She was taken to

the hospital at Bulbulchandi and thereafter to Malda Hospital. She was

examined at Malda Hospital. She made statement before the learned

Magistrate.

In cross-examination, she remained consistent with regard to her

version of forcible rape by the appellant. She stated there was bleeding

from her vagina. She clarified though she had good relation with the

appellant as a co-villager, she did not have any romantic relationship with

him.

P.W. 3 is corroborated by P.W. 6, medical officer who examined her

at Malda Medical College and Hospital. He stated he found evidence of

recent sexual intercourse. Her hymen was lacerated and bleeding. There

was slight abrasion in introitus. He also found 1"x ¼" abrasion over her

left knee. He proved injury report as "Exbt.-3". He also examined the

appellant and found he was capable of sexual intercourse.

In cross-examination, he stated abrasion of the victim girl in left

knee may be due to sudden accidental fall on earth. He did not find

injuries on the chest, back and breast of the victim girl.

Mr. Karmakar, learned Counsel for the appellant challenges the

prosecution case on the ground P.Ws. 1 and 2, parents of the victim, did

not depose regarding rape.

I have assessed such submission in the light of evidence on record.

P.W. 1, father of the victim, deposed at the night of the incident he

was sleeping in the varanda of the house. He went outside to answer the

natures call. He found his daughter missing and started searching for

her. Two village women came and informed him that his daughter had

been recovered in a well near the house. He saw his daughter lying in the

well. His daughter stated the appellant pushed her in the well. He

discussed the matter with the villagers and went to Habibpur Police

Station and lodged written complaint which was scribed by P.W. 5.

P.W. 2, mother of the victim girl, deposed the victim had been

raped by the appellant. Thereafter she had been pushed in the well.

Shyamali and Shanti informed them about the incident. They went to the

police station and lodged complaint.

In cross-examination, she initially stated Shanti told her appellant

Dilip Soren raped the victim. Thereafter she corrected herself and stated

the victim herself had stated about rape.

From the aforesaid evidence it appears there is some departure in

the deposition of P.W. 1 with reference to the F.I.R. Though in the F.I.R.

P.W. 1 stated his daughter had told she had been raped but in court he

was silent. However, his wife (P.W. 2), unequivocally stated her daughter

was raped by the appellant and thrown in the well. She wholly

corroborated her daughter (P.W. 3). As discussed earlier, evidence of P.W.

3 with regard to forcible rape is corroborated by medical evidence on

record. In this factual matrix, variation in deposition of P.W. 1 with

regard to disclosure of rape is of little consequence and does not affect the

veracity of prosecution case.

It is argued Shyamali and Shanti who had recovered the victim

from the well had not been examined. Neither Shanti nor Shyamali were

present when the victim had been forcibly ravished by the appellant.

Their examination would be material to prove the prosecution case

relating to recovery of the victim from the well and not with regard to

forcible rape upon the victim. Soon after the incident victim had narrated

the facts to her mother (P W. 2) who had corroborated her. Under such

circumstances, non-examination of the aforesaid witnesses does not affect

the unfolding of the prosecution case or discredit the victim (P.W. 3) in

any manner whatsoever.

It appears that appellant tried to create undue influence on the

local witnesses and had persuaded one of them namely Shyamali

Hembram to depose as D.W. 2 in his favour. Shyamali stated they drew

water from the tubewell and there is no well in the village. Her deposition

runs against ordinary course of natural events. It is common knowledge

that villages in India are dotted with wells. Falsehood of her deposition is

further exposed in cross-examination when she was confronted with her

earlier statement to the police wherein she appears to have supported the

prosecution case. Defence of the appellant that there was love affair

between him and the victim and that the victim had falsely implicated the

appellant in order to exert pressure upon him to marry her is patently

absurd. To probabilise the defence he examined his wife as D.W. 1. D.W.

1 claimed the victim was staying in their house for three months and she

had protested regarding the free mixing of the appellant and the victim.

She, however, admitted she had not lodged any protest prior to the

incident to anyone. If the appellant had an amorous relationship and was

cohabiting with the victim as his wife, D.W. 1 would like the court to

believe, it is highly improbable he would subject the victim to forcible

sexual intercourse as proved through medical evidence on record.

Defence of the appellant runs hollow and was rightly rejected by the trial

court.

In view of the aforesaid discussion, I am of the opinion conviction

of the appellant under section 376 IPC does not call for interference.

Coming to the issue of sentence, I note the appellant had

committed heinous act of subjecting the victim, who is a helpless blind

girl barely 18 years old, to forcible rape. She suffered bleeding injuries in

her private parts. In view of gravity of the offence, imposition of

maximum sentence of life imprisonment appears to be proportionate and

does not call for interference. Sentence imposed on the appellant is also

upheld.

The appeal is, accordingly, dismissed.

Period of detention suffered by the appellant during investigation,

enquiry and trial shall be set off against the substantive sentence imposed

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

Let a copy of this judgment along with the lower court records be

forthwith sent down to the trial court at once.

Photostat certified copy of this judgment, if applied for, shall be

made available to the appellant upon completion of all formalities.

I agree.

(Bivas Pattanayak, J.)                            (Joymalya Bagchi, J.)




cm/sdas/PA