Sariful Sk. & Anr vs The State Of West Bengal
2022 Latest Caselaw 1098 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


                            CRA 86 of 2013
                                   +
             CRAN 3 of 2014 (Old No. CRAN 3012 of 2014)
                                 With
                            CRAN 4 of 2021
                       (via video conferencing)

                           Sariful Sk. & Anr.
                                   Vs.
                        The State of West Bengal

For the Appellant No.1:      Mr. Md. Asraf Ali, Adv.
                             Mr. R.I Sardar, Adv.

For the Appellant No.2       Mr. Sumanta Ganguly,Adv.
Amicus Curiae:

For the State :              Mr.Neguive Ahmed,Learned APP.
                             Ms. Amita Gaur, Adv.
                             Ms. Z.N. Khan, Adv.



Heard on :                   15.02.2022

Judgment on:                 09.03.2022


Bivas Pattanayak, J:-

1.

This appeal is directed against the judgement and order dated 28.01.2013

and 29.01.2013, passed by Additional District & Sessions Judge, Fast Track

3rd Court, Rampurhat, Birbhum in Sessions trial no. 40(9)/2011 arising out

of Sessions case no. 119/2011 convicting the appellants under Section

376(2)(g) of the Indian Penal Code and sentencing the appellants for rigorous

imprisonment for life and pay fine of Rs. 20,000/- each in default rigorous

imprisonment for a further period of one year for offence punishable under

section 376(2)(g) of the Indian Penal Code.

2. The prosecution case against the appellants is to the effect that on

17.05.2011 in the morning while the victim was returning after offering puja

at Tulsipur village and had reached near Tulsipur River the appellant no.1

forcibly took her near the canal and committed rape upon her. Victim tried to

raise alarm but was threatened by appellant no.1 that he would have her and

her son murdered. Appellant no. 2 at the material point of time kept

surveillance upon the passer-bys. After committing rape appellant no. 1 took

away the golden earing and bangle from the victim and both of the miscreants

fled away. In relation to the incident Murarai Police Station case no. 42 of

2011 dated 17.05.2011 under Section 376(2)(g)/379 of the Indian Penal Code

was initiated against both the appellants.

3. Upon completion of investigation police submitted charge sheet under

Section 376(2)(g) of the Indian Penal Code against the appellants.

4. Thereafter on compliance of legal formalities the case was committed to the

Court of Sessions which was incidentally transferred to Additional District &

Sessions Judge, Fast Track 3rd Court, Rampurhat, Birbhum for trail and

disposal.

5. Charge under Section 376(2)(g) of the Indian Penal Code was framed

against both the appellants who pleaded not guilty and claimed to be tried.

6. The prosecution in order to prove the aforesaid charge against the

appellants has examined as many as 17 witnesses and proved number of

documents. Defence did not adduce any evidence, however the defence case is

of innocence and false implications. From the trend of cross-examination it

appears that the appellants tried to make out a positive case that due to their

protest against the illegal selling of country liquor (Cholai Mod) by the

husband of the prosecutrix (victim) they have been falsely implicated in this

case.

7. Upon consideration of the materials and the evidence on record the trial

judge by the impugned judgment and order dated 28.01.2013 and

29.01.2013 convicted and sentenced the appellants as aforesaid.

8. Mr. Md Asraf Ali, learned advocate appearing for appellant no.1 submitted

that the evidence of the victim is full of inconsistencies and infirmities and

therefore, is not at all reliable to convict the appellants on the basis of the

same. Further it is evident from the statement of PW16, Swapan Mondal, who

helped her to reach her home after the incident, that PW1 (victim) only stated

to him that her sari was pulled by somebody nothing more nothing less.

Moreover, as per the doctor (PW15) and the medical report of the victim

(Exhibit 7) she did not sustain any injuries either to her private parts or other

parts of the body to probabilise the occurrence, as alleged. Furthermore he

submitted that there is delay in lodging FIR resulting in embellishment and

conjectures. He further submitted that the husband of the victim has illegal

business of selling country liquor (Cholai Mod) in the locality which was

objected by the appellants which led to false implication. In view of his above

submissions he prayed that the appeal be allowed and the appellant no.1be

acquitted from the case.

9. Mr. Sumanta Ganguly, appearing as amicus curiae on behalf of appellant

no.2 also submitted in similar fashion and asserted that the case of the

prosecution against the appellants has not been proved to the hilt and there

are several loop-holes in the prosecution case. He further submitted that the

appellant no. 2 as per the prosecution case did not take any active part in the

commission of the offence alleged and he was only standing beside the place

of occurrence and therefore no culpability is attributed to appellant no. 2. He

prayed the appellant no.2 be acquitted from the instant case.

10. Mr. Neguive Ahmed, learned Additional Public Prosecutor appearing for

the State submitted that as per the statement of the victim there are specific

allegations against appellant no. 1 of committing forcible rape upon the victim

and the appellant no. 2 contributed to the offence by threatening the victim

and also keeping watch on the local people who were crossing the place of

occurrence. Thus, both the accused persons have concert and they shared

common intention in committing the offence upon the victim. Furthermore,

the statement of the victim in the FIR and before the magistrate is

corroborative of what she has stated before the court during her deposition.

He further submitted that although as per the medical report the victim did

not sustain any injuries, yet such aspect does make the prosecution

unreliable as presence of injuries is not sine qua non for establishing an

offence of rape. Further the defence did not lead any evidence to probabilise

false implication. Moreover the FIR has been lodged on the day of occurrence

itself and there is nominal delay of few hours which does not at all affect the

prosecution case. Therefore, when the evidence of the victim is intrinsic and

reliable it should be acted upon to reach a logical conclusion in a prosecution

of rape and thus in the facts and circumstances of the case the conviction

and sentence of the appellants made by the trial judge should be affirmed.

11. In the present case the appellants are charged with the offence of gang

rape. It is trite law that in a prosecution of rape the testimony of the victim of

sexual assault is vital and unless there are compelling reasons which

necessitate looking for corroboration of her statement, the courts should not

find any difficulty in acting on such testimony of the victim of sexual assault

alone to convict an accused where her testimony inspires confidence and is

found to be reliable. In the aforesaid backdrop the evidence of the victim

(PW1) is to be analysed in order to ascertain the extent of its reliability.

11.1.PW1 (victim) deposed that on 17.05.2011 at about 2 PM while she was

returning after offering puja at Tulsipur village and was crossing the river by

walking, since there was little water, at that time appellant no. 1 caught hold

of her hand and appellant no. 2 caught hold of the hand of her minor son

aged about two years and thereafter appellant no. 1 undressed her, torn her

blouse and committed rape upon her. She further deposed that appellant

no.2 threatened her of killing the victim and her son by putting 'hasua' on the

throat of her son. Although the victim did not state either in her written

complaint or statement under section 164 of the Criminal Procedure Code

that of the above role played by appellant no.2 yet such are minor

discrepancies in view of the fact that the aspect of threat upon her has been

stated in both her aforesaid statements. The presence of the appellant no.2

during the occurrence is well established. Further there are evidence that

both of them fled away after the incident. The victim (PW1) has been

extensively cross-examined, however, no such notable contradictions or

infirmities is seen in her cross-examination as regards her statement made

in-chief against the appellants save and except which has been indicated

above.In the written complaint (Exhibit 1/1) and statement made before the

Magistrate under Section 164 of the Criminal Procedure Code the victim also

disclosed similar circumstances and the manner in which the rape was

committed upon her at the instance of the appellants. Before PW15, Dr

Nirapada Das the victim stated about the involvement of the appellant no. 1

in perpetration of rape upon her during her medical examination.

11.2. The victim (PW1) also deposed that she informed the incident to her

mother-in-law, sister-in-law and thereafter her mother-in-law also informed

the matter to her elder brother-in-law, who in turn informed it to her

husband. She further deposed that when her husband returned home she

along with her husband and sister-in-law went to Murarai police station and

lodged written complaint. She proved her signature on the written complaint

marked Exhibit 1.The prosecution has examined the husband (PW2), the

sister-in-law (PW 3) and the brother-in-law (PW4).

PW2, Satya Narayan Bhakat husband of the victim deposed that he came to

know of the incident from his elder brother Kali Prasad Bhakat and further

stated that his wife (victim) narrated to him that the appellant no. 1

committed rape upon her and appellant no 2 was standing nearby.

PW3, Felurani Jaiswal deposed that on the date of incident after returning

from Tulsipur village, the victim (PW1) narrated the incident to her alleging of

forcible rape committed upon her by the appellants and also of intimidation

meted out to her. She also deposed that as per instruction of the victim (PW1)

she scribed the written complaint. She proved the written complaint marked

Exhibit 1/1.

PW4, Kali Prasad Bhakat who is the elder brother-in-law of the victim stated

that he came to learn from her elder sister (PW3) about the incident of rape

upon the victim by the appellants which occurred by the side of Tulsipur

River. There is discrepancy as to the source of information of this witness to

the extent he deposed that he got information from his elder sister while

victim (PW1) deposed that her mother-in-law informed PW4(brother-in-law).

Be that as it may, it is quite natural for PW4 (brother-in-law) to receive

information of the incident from any of the family members. Whether

information is received from his mother or elder sister is of hardly any

consequence.

Upon going through the cross-examinations of the aforesaid witnesses it is

found that there are no notable contradictions or inconsistencies in their

statements. All the aforesaid witnesses have corroborated the evidence and

version of the victim (PW1).

11.3. The victim (PW1) also deposed that she handed over her "saya" and

torn blouse which she was wearing at the time of incident to the police and

she proved her signatures on the seizure list (Exhibit 2).PW17, Brajendranath

Maity (investigating officer) also deposed that he seized the wearing apparels

of the victim. PW5, ASI Sunil Kumar Dey and PW6, Constable Amal Kumar

Saha who are witness to the said seizure also supported the fact of seizure of

such wearing apparels of the victim by the investigating officer. Further PW5,

ASI Sunil Kumar Dey also identified the said torn blouse of the victim marked

Mat Exhibit I. The aforesaid seizure list has been marked as Exhibit 2/4.

Thus the seizure of the wearing apparels is supportive of the version of the

victim (PW1).

11.4. It has been strenuously argued on behalf of appellants as per

deposition of PW16, Swapan Mondal, the person who helped the victim to

reach home after the incident, the victim only stated that somebody pulled

her sari and hence no incident of rape took place as alleged. In her

examination victim (PW1) deposed that she narrated the incident to one

Swapan and thereafter Swapan and one of his relatives reached her to her

house at Barua Gopalpur. PW16, Swapan Mondal stated that the victim

informed them that someone pulled her sari hence she returned to their

village. Be that as it may, I am unable to accept such proposition inasmuch

as generally a victim of rape would only narrate her terrible and unpleasant

experience to the person of her confidant and trust and none else.

Accordingly, the victim had inhibition in narrating her trauma of sexual

assault to PW16, Swapan Mondal who is an outsider and therefore her not

divulging the incident to PW16, Swapan Mondal is quite natural.

11.5. Further it has been vehemently argued on behalf of the appellants that

the victim (PW1) did not sustain any injuries either to her private parts or any

portion of the body which conclusively establishes the fact that no incident

took place in the manner as has been alleged. PW15, Dr Nirapada Das, who

examined the victim, deposed in his cross-examination that he did not find

any injuries on the private parts of the victim. He proved the injury report

marked Exhibit 7. Upon perusal of the injury report (Exhibit 7) it is found

that no injuries are noted either in the private parts of the victim or in any

other portion of her body. At this juncture the question arises whether such

aspect makes the prosecution case unworthy of acceptance. It is settled

principle that mere absence of injury either in the private parts or person of

the victim cannot be a ground to hold that no rape was committed and also

not an evidence of falsity of the allegation. In the present case the victim is a

married grown up lady having a child she was threatened with dire

consequences at the time of incident and therefore, it can readily be inferred

that during the occurrence she was not in a position to physically resist the

appellants in committing the crime due to fear and as such the absence of

injury to her private parts or the body is not of much significance.[See

Santosh Kumar versus State of M.P reported in (2006) 10 SCC 595] Thus

I am not in conformity with such proposition advanced on behalf of

appellants.

In view of the above discussion I find that the version of the victim (PW1) is

trustworthy, reliable and consistent to act upon. In order to impeach the

version of the victim the defence has tried to make out a case that as they

protested against illegal selling of liquor (Cholai Mud) in the locality by the

husband of the victim, she had falsely entangled them in the present case.

However it is placed on record that no such evidence is forthcoming from the

side of the defence to probabilise such fact. There is no reason as to why the

victim would falsely implicate the appellants. Further PW10, Dr Dipak Kumar

Morothi who examined appellant no.1 proved the medical report (Exhibit 5).

In the medical report (Exhibit 5) it has been reported that there is nothing to

suggest that appellant no.1 is incapable of sexual intercourse.

11.6. It has been vociferously argued on behalf of the appellants that the case

of the prosecution is shrouded with suspicion as there is immense delay in

lodging of the FIR. The incident took place on 17.05.2011 at 2PM and the FIR

has been lodged on the same day at 21.15 hours meaning thereby there has

been delay of some hours. Victim (PW1) deposed that after the incident with

the assistance of one Swapan and one of his relatives she reached her house

at 4 PM from Tulsipur village. Her brother-in-law Kali Prasad Bhakat (PW4)

informed her husband about the incident and as per PW2, Satyanarayan

Bhakat he received information of the incident at 4.30 PM. After her husband

returned home she along with him and her sister-in-law went to Murarai

police station at 8.30/9PM. The victim underwent a traumatic experience of

sexual assault and was panic stricken. She was confused and disoriented as

to what would bring succour to her and naturally she waited for arrival of her

husband who was in his office. After the arrival of her husband and on giving

a cool thought she went to the police station to lodge complaint in the evening

around 8.30/9PM. This obviously has led to delay of few hours in lodging of

the FIR. There is no case of embellishment or concoction of facts in the FIR

due to such delay. Even otherwise, the mere factum of delay in filing

complaint in regard to an offence of this nature by itself would not be fatal so

as to vitiate the prosecution case. [See State of Chhattisgarh versus Derha

reported in (2004) 9 SCC 699].Accordingly, the argument advanced in this

regard does not stand to reason.

11.7. It is submitted on behalf of appellant no. 2 that as per the prosecution

case he did not take any active part in the commission of the offence alleged

and was only standing beside the place of occurrence and therefore no

culpability is attributed to appellant no. 2.The role attributed to appellant

no.2 that he caught hold of the hand of her minor son of the victim aged

about two years and threatened her of killing the victim and her son by

putting "hasua" on the throat of her son is at variance with the earlier

statement made by the victim in her written complaint and statement before

the magistrate. Be that as it may, such aspect does not absolve appellant

no.2 from the offence in view of the fact that as per the victim he was present

during the occurrence and after the incident he fled away along with

appellant no.1 meaning thereby he shared common intention with appellant

no.1. Thus the prosecution has been able to show that both the appellants

acted in concert. The conduct of appellant no.2 to remain present during the

occurrence and flee away along with appellant no.1 soon after the incident

shows his prior concert and meeting of minds with appellant no.1.

Explanation 1 to Section 376(2) clearly provides that where a woman is raped

by one or more in a group of persons acting in furtherance of their common

intention, each of the persons shall be deemed to have committed gang rape

within the meaning of this sub-section. Thus where there is meeting of minds

and sharing of common intention in such an event all the accused will be

guilty irrespective of the fact that the victim girl has been raped by one or

more of them and it is not necessary for the prosecution to adduce evidence of

a completed act of rape by each one of the accused. The essence of joint

liability is the existence of common intention which presupposes prior concert

which may be determined from the conduct of the offenders revealed during

the course of action and it could arise and form suddenly but there must be

meeting of minds. [See Ashok Kumar versus State of Haryana reported in

(2003) 2 SCC 143]. Thus the argument advanced on behalf of appellant no.2

as above is of no substance.

11.8. From the aforesaid evidence on record it is found that the prosecution

has been able to establish the following requisites for sustaining an order of

conviction under section 376(2)(g):

(i)that more than one person had acted in concert with common intention to

commit rape on the victim with prior meeting of minds and with element of

participation in action;

(ii)that in furtherance of such common intention one or more persons of the

group actually caused rape on the victim.

As from the evidence on record it is found that the appellants in furtherance

of their common intention committed rape on the victim lady, the

presumption in law under section 114A of the Evidence Act comes into

operation. Section 114A of the Evidence Act reads hereunder.

" Section 114A of the Evidence Act-Presumption as to absence of consent in certain prosecution for rape.- In a prosecution for rape under clause(a) , clause(b), clause(c), clause (d), clause (e), clause(f) , clause(g), clause(h), clause(i), clause(j), clause(k), clause (l), clause(m) or clause(n) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent."

There is no case of the defence that the incident of rape was consensual. The

aforesaid presumption in law has also not been rebutted either from the

materials on record or by leading cogent evidence from the side of the

defence. Thus in view of statutory presumption envisaged in section 114A of

the Evidence Act it is presumed that the victim did not consent to such rape

by the appellants.

Accordingly, the conviction of the appellants made by the trial court is

upheld.

12. Now coming to the aspect of sentencing, the trial court has convicted the

appellants for offence punishable under Section 376(2)(g) of the Indian Penal

Code for rigorous imprisonment for life and to pay fine of Rs.20,000/- each.

At the outset it is noted that the aforesaid offence is a crime against women

which is direct insult to the human dignity of the society. Thus imposition of

any inadequate sentence in such offence not only results in injustice to the

victim and the society in general but also stimulates criminal activities. While

considering the appropriate punishment the court has not only to keep in

view the rights of the criminal/accused but also the rights of the victim who

suffers in the hands of the perpetrator of crime. However, keeping in mind the

entirety of the circumstances I am of the opinion that imposition of maximum

punishment for rigorous imprisonment for life by the trial court in respect of

offence under section 376(2)(g) of the Indian Penal Code needs to be

reappraised. Ordinarily sentence should be commensurate with the gravity of

offence and should act as deterrent to commission of such offences. Section

376(2)(g) of the Indian Penal Code contemplates punishment with rigorous

imprisonment for a term which shall not be less than 10 years but may be for

life and shall also be liable to fine. In the case in hand it is found that there

are no such criminal antecedents of the appellants or any previous

convictions. Thus keeping in mind the aggravating as well as mitigating

circumstances, in my view, a term of 10 years of rigorous imprisonment with

fine of Rs.10,000/- each will be commensurate with the nature of offence.

Accordingly, the sentence of rigorous imprisonment for life imposed in respect

of Section 376(2)(g) of the Indian Penal Code with fine of Rs.20,000/- each

against the appellants is reduced to rigorous imprisonment for a term of 10

years with fine of Rs.10,000/- each. The default clause as imposed by the

trial court is maintained. The sentence in respect of offence under Section

376(2)(g) of the Indian Penal Code is modified to the aforesaid extent.

The period of detention undergone by the appellants during investigation,

inquiry or trial of the case shall be set-off from the substantive sentence in

terms of Section 428 of the Criminal Procedure Code.

13. In the light of the above discussion, the conviction of the appellants is

upheld and sentence passed by the learned trial court is modified to the

extent as aforesaid.

14.The instant appeal, accordingly, is allowed in part to the extent of

aforesaid modification in the sentence.

15.The connected CRAN No. 3 of 2014 (Old CRAN No. 3012 of 2014) and

CRAN No.4 of 2021 also stands disposed of.

16. Before parting I record my appreciation for the assistance rendered by

Mr. Sumanta Ganguly as amicus curiae.

17. The instant appeal being no. 86 of 2013 is thus disposed of.

18. Copy of the judgement along with the lower court records be sent down to

the learned trial court at once.

19. Urgent Photostat Certified copy of this judgement, if applied for, be

supplied expeditiously after complying with all necessary legal formalities.

I Agree,


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