Ujjal Sarkar vs The State Of West Bengal
2023 Latest Caselaw 616 Cal

Sl. Nos.58 to 60




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

                               C.R.A. 76 of 2018

                                   Ujjal Sarkar
                                      -Vs-
                             The State of West Bengal

                                    W I T H

                                C.R.A. 29 of 2018

                                Lankeswar Sarkar
                                      -Vs-
                             The State of West Bengal

                                     W I T H

                                C.R.A. 30 of 2018

                                  Nirmal Sarkar
                                      -Vs-
                             The State of West Bengal

For the Appellant        :      Mr. Sekhar Kr. Basu, Sr. Adv.
[in CRA 76/2018]                Mr. Rajdeep Majumder, Adv.
                                Mr. Pritam Roy, Adv.
                                Ms. Shyanti Poddar, Adv.

For the Appellant        :      Mr. Debasis Roy, Adv.
[in CRA 29/2018]

For the Appellant        :      Mr. Kallol Mondal, Adv.
[in CRA 30/2018]                Mr. Debdas Khanna, Adv.
                                Mr. Krishan Ray, Adv.
                                Mr. Souvik Das, Adv.
                                Mr. Anamitra Banerjee, Adv.
                                         2


 For the State             :    Mr. Madhusudan Sur, ld. APP.
                                Mr. Manoranjan Mahata, Adv.


 Heard on                  :    04.01.2023, 10.01.2023 & 19.01.2023



 Judgment on               :    19.01.2023


 Joymalya Bagchi, J. :-

1.

Appeals are directed against judgment and order dated 18.12.2017

& 20.12.2017 passed by learned Additional District & Sessions

Judge, Fast Track Court, Tamluk-I, Bongaon, North 24-Parganas in

Sessions Trial No.2(4)/2012 arising out Sessions Case No.

06(11)/2011 convicting the appellants for commission of offence

punishable under Section 376(2)(g) of the Indian Penal Code and

sentencing them to suffer rigorous imprisonment for fifteen years

and to pay a fine of Rs.25,000/- each, in default, to suffer rigorous

imprisonment for one year more.

Prosecution case:-

2. Prosecution case as alleged against the appellants is to the effect

that the survivor is a married lady whose husband used to work in

Dubai. On the fateful day i.e. 28.04.2010, her mother-in-law had

gone to a relation's house. She was alone with her five-year old

daughter. At night around 9:00/10:00 P.M. she put her daughter to

sleep. She went out to tie the calf at the cowshed and entered the

house. Thereafter, she had a bath and was about to lock the main

door when Lankeswar Sarkar and Nirmal Sarkar forcibly barged

into the room. Lankeswar gagged her mouth and made her lie on

the ground inside the room and told Nirmal to do whatever he

wanted. Thereafter, they disrobed her. She was only wearing a petty

coat. First Nirmal raped her and thereafter, Lankeswar also raped

her. The accuseds told her to keep quiet otherwise she would be

killed. Out of fear, she kept quiet. After the incident, Lankeswar left

the room.

3. She somehow ran out of the room and found Ujjal was outside the

door. Ujjal caught hold of her and tore her petty coat and threw it

in the courtyard. He tried to assault her. As a result, she again

entered the room.

4. Her mother-in-law returned after 2-3 days. After consultation with

her mother-in-law, she lodged written complaint at police station on

02.05.2010 which resulted in registration of Bongaon Police Station

Case No.195 of 2010 dated 02.05.2010 under Sections

376(2)(g)/506 of the Indian Penal Code against Lankeswar Sarkar,

Nirmal Sarkar and Ujjal Sarkar i.e. the appellants herein.

Proceedings before the trial Court:-

5. In the course of investigation, the survivor was medically examined.

Her statement was also recorded before Magistrate. In conclusion of

investigation, charge sheet was filed and charges were framed

against the appellants under section 376(2)(g) and 506 of the Indian

Penal Code. In course of trial, prosecution examined six witnesses

and exhibited a number of documents. Defence of the appellants

was one of innocence and false implication.

6. In conclusion of trial, learned trial Judge by the impugned

judgment and order convicted and sentenced the appellants, as

aforesaid.

Arguments at the Bar:-

7. Mr. Debasis Roy and Mr. Kallol Mondal, learned Advocates for the

appellants viz. Lankeswar Sarkar and Nirmal Sarkar respectively

submit the survivor (PW1) is not a reliable witness. There is a delay

of four days in lodging FIR. Father of the survivor had come to the

residence on the next day. It is unclear why she had to wait for the

arrival of her mother-in-law to lodge FIR. Though she claimed she

suffered injury on her hand, Medical Officer (PW4) who examined

her did not find marks of injury. Incident occurred in a populated

area. PW1 claimed she had cried 'bachao bachao'. No local people

assembled at the spot. This also improbabilises her version. There

was enmity between the mother-in-law of the survivor (PW1) and

Ujjal Sarkar. This had prompted them to falsely implicate the

appellants. Hence, the appellants are entitled to an order of

acquittal.

8. Mr. Sekhar Basu, learned senior Advocate for the appellant viz.

Ujjal Sarkar submits his client was not present before or during the

incident. In all probability hearing cries of the survivor, he had

come out and tried to save her. This finds corroboration from the

statement of the survivor before Magistrate. Though she alleged she

suffered injuries when Ujjal had scuffled with her, no injury was

detected on her hands. It cannot be said Ujjal was a member of the

group which shared common intention to commit rape. Accordingly,

he prays for acquittal of Ujjal Sarkar.

9. Mr. Madhusudan Sur, learned Additional Public Prosecutor

submits PW1 has graphically narrated the incident of gang rape on

her. On the fateful night, she was alone in the house. Taking

advantage of the situation, Lankeswar and Nirmal had forced

themselves into the house and raped her. Nirmal had misbehaved

with her earlier. As one of the appellants viz. Lankeswar was related

to her, she waited for her mother-in-law to return. Thereafter, FIR

was registered. In this factual matrix, delay stands explained.

Evidence of the survivor does not suffer from inherent

improbabilities or inconsistencies. Her version is corroborated by

her father (PW2). She was medically examined after four days.

Hence, absence of injury would not militate against the probability

of the prosecution case.

Evidence on record:-

10. PW1 is the survivor. She deposed on 28.04.2010 she was alone

with her minor daughter. Her husband used to work in Dubai. Her

mother-in-law had gone to her relation's house. At night her

daughter went to sleep. She went out to tie the calf. After she

returned, she bathed. Then she went to the door to lock it. At that

time, Lankeswar and Nirmal forced themselves into the house. They

gagged her mouth, disrobed her and committed rape upon her. She

was wearing a petty coat. She somehow escaped and as she came

out of the room she saw Ujjal standing outside the door. Ujjal

caught hold of her and tore her petty coat. She again returned to

the room. During the incident, Lankeswar and Nirmal threatened

her with dire consequences. She further deposed couple of days

earlier Nirmal had teased her. She complained about the incident to

Nirmal's mother. Her mother-in-law returned after 2-3 days.

Thereafter, she lodged complaint. She proved the complaint. She

made statement before Magistrate. She was medically examined.

11. PW2 is the father of the survivor. He corroborated her evidence. He

deposed police seized the petty coat. He proved the signature on the

seizure list. In cross-examination, he stated he heard about the

incident from his daughter on the next day. He stayed at her in-

laws house for 3-4 days.

12. PW4 (Keshba Nanda Goswami) medically examined the survivor. He

proved the history of assault which implicates the appellants. He

did not find any injury on the survivor.

13. PW5 (Rina Talukdar) recorded her statement under Section 164 of

the Code of Criminal Procedure (Ext.2).

14. PW6 (Susanta Mukherjee) is the Investigating Officer of the case. He

went to the spot. He drew up rough sketch map. He arrested the

accused persons. Statement of the survivor was recorded before

Magistrate. She was medically examined. He submitted charge

sheet.

Delay in lodging FIR:-

15. Learned Advocates for the appellants have assailed the prosecution

case on the ground there is delay in lodging FIR. Incident occurred

in the night of 28.04.2010. The survivor (PW1) was alone in the

house with her minor daughter. Her husband was working in Dubai

while her mother-in-law had gone to a relation's place. Lankeswar

and Nirmal had trespassed into the house and committed rape

upon her. Lankeswar and Nirmal had also threatened her with dire

consequences. As she was alone, she could not muster courage to

lodge criminal case. It may not be out of place to note the

appellants are close neighbours. One of them viz. Lankeswar is also

a relation of the survivor.

16. It is strenuously argued father of the survivor (PW2) had heard the

incident on the next day and had come to her matrimonial home.

Still then, PW1 did not lodge FIR.

17. I am unable to accept the aforesaid submission.

18. PW1 had been raped at the matrimonial home. One of the

assailants viz. Lankeswar was her relation. They had threatened

her with dire consequences. Naturally she waited for her mother-in-

law to return before she initiated criminal action against the

accuseds, one of whom was her relation.

19. One cannot lose sight of the fact that even in present times,

freedom and agency of a married woman at the matrimonial home

is restricted. Ordinarily a married woman would not even go to her

parental home without intimation or permission from her in-laws.

The present case portrays a brutal act of sexual assault on her by

the neighbours and a distant relation. Her husband was working

abroad. In this scenario, it is not unnatural that she waited for the

arrival of her mother-in-law before lodging FIR.

20. Delay in lodging FIR particularly in sexual offences require to be

assessed bearing in mind the impact of the offence on the psyche of

the survivor and its ramifications in society. Judged from this

perspective delay of four days in lodging FIR owing to the absence

of mother-in-law is probable and does not affect the credibility of

the prosecution case.

Whether the version of the survivor (PW1) is credible:-

21. It is trite law a conviction may be founded on the evidence of the

survivor alone. She is to be treated on par with an injured witness.

Furthermore, her deposition has to be assessed with adequate

sensitivity bearing in mind the scars an act of sexual trauma leaves

behind on the survivor.

22. I have examined the deposition of PW1 from that perspective.

Lankeswar and Nirmal were known to her. Infact, Lankeswar was a

distant relation. When she was about to lock the door and retire for

the night, both of them barged into the house. They dragged her

into a room, gagged her mouth and committed rape upon her

repeatedly. They also threatened her with dire consequences. Her

deposition with regard to the act of rape by Lankeswar and Nirmal

is substantially corroborated in the FIR as well as in her statement

before Magistrate.

23. It has been strenuously argued no injuries were found in her

private parts. PW1 deposed that she had been overpowered by

Lankeswar and Nirmal. While one gagged her, the other raped her.

Being so overpowered, she was unable to resist. She herself stated

in Court she had not suffered injuries during rape.

24. In this backdrop, absence of injuries on her private parts cannot be

a ground to disbelieve her version.

25. When two adult males overpower and rape a helpless woman, she

would be unable to resist. Under such circumstances, absence of

injuries can neither improbabilise the incident nor signify consent

on her part.

26. It has also been argued PW1 cried 'bachao bachao' but none of the

neighbours came to the spot. There were homes and a club room

around the place of occurrence. Reading the evidence of PW1 as a

whole it appears at the time of commission of rape she had been

gagged and was unable to raise alarm. After the incident, she cried

out 'bachao bachao' and ran out of the room. There she met Ujjal. I

would deal with the role of Ujjal in the incident later.

27. Learned Advocates also referred to minor contradictions and/or

embellishments in her deposition in court. Crux of the offence of

gang rape by Lankeswar and Nirmal is consistently appearing in

the FIR, statement of the survivor before the Magistrate as well as

in her deposition in court. Her deposition is a ring of truth and I am

unwilling to discard it by reference to such minor contradictions.

28. In this backdrop, I am of the opinion version of the survivor does

not suffer from patent absurdities or inherent improbabilities so as

to render her deposition improbable.

Corroboration of the Survivor's version:-

29. Evidence of the survivor is corroborated by her father (PW2). On the

next day, he heard about the incident. Fearing security of his

daughter, he stayed at the matrimonial home till her mother-in-law

arrived. This circumstance demonstrates the fear and trauma

which overawed the survivor after the incident. The case discloses a

further disturbing feature. In course of cross-examination,

appellants brazenly exhibited affidavits (Exts.6 & 7) claimed to be

signed by the survivor and her husband. In the affidavits it is

averred she does not have any allegation against the appellants. In

cross-examination, she categorically stated that she was misled to

give signatures on documents.

30. I have examined the documents. Tenor of the documents and the

cryptic manner in which they have been prepared clearly show that

the documents were manufactured and the survivor and her

husband were compelled to sign them. The malevolent influence of

the appellants on the survivor and her family is evident and also

lends justification to the reasons for delay in setting the criminal

law in motion.

Prior enmity:-

31. It is also argued appellants have been falsely implicated due to

prior enmity with Ujjal. Reference is made to payment of

compensation by Ujjal to the mother-in-law of the survivor over

breaking of a branch. The issue raised on behalf of the defence is a

minor one and cannot by any stretch of imagination be believed to

give rise to hostility of such nature which would lead to false

implication of all the appellants. It must be borne in mind that the

role ascribed to Ujjal is a minimal one. If the survivor had been

prompted by the so-called enmity, why would she ascribe a minimal

role to Ujjal and implicate the others, i.e. Lankeswar and Nirmal in

the act of rape.

32. It may be out of place to mention Lankeswar is a relation of the

survivor and is no way connected with Ujjal. Evidence has also

come on record a couple of days earlier Nirmal had misbehaved

with the survivor. She was compelled to report it to his mother.

These facts expose the hollowness of the defence plea regarding

false implication.

Role of Ujjal:-

33. Coming to the role of Ujjal in the incident, I note the said appellant

was neither present before or at the time of incident. PW1 deposed

after the occurrence when she came out of the room she saw Ujjal

standing. He caught hold of her and tore her petty coat and threw it

in the courtyard. Her deposition in court with regard to Ujjal's role

is at variance to her statement before Magistrate. Before Magistrate,

PW1 claimed Ujjal had tried to save her. When he caught hold of

her, the petty coat came off. Intention of Ujjal to obstruct the

survivor or to snatch away her petty coat is not transpiring from the

said statement. Even her version that she suffered injuries during

scuffle with Ujjal is not supported by medical evidence.

34. In Explanation I of section 376 of Indian Penal Code gang rape is

defined as follows :-

"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 ..."

35. A reading of the definition clause would show when one or more

members of a group commits rape, each member of the group who

shares common intention to commit the crime is guilty of the

offence of gang rape. The punishment is enunciated in Om

Prakash vs State of Haryana 1 as follows: -

"22. .....the prosecution must adduce evidence to show that more than one accused has acted in concert and in such an event, if rape had been committed by even one of the accused all will be guilty irrespective of the fact that she has not been raped by all of them. Therefore, it may not be necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. The provision embodies a principle of joint liability and the essence of that liability is in existence of common intention. That common intention presupposes prior concert as there must be meeting of minds, which may be determined from the conduct of the offenders which is revealed during the course of action.

23. After examining the circumstances relied upon by the prosecution to indicate concert, the Court in Ashok Kumar [(2003) 2 SCC 143 : 2003 SCC (Cri) 446] concluded that mere presence of the appellant could not establish that he had shared a common intention with the co-accused to rape the prosecutrix."

36. Both Lankeswar and Nirmal committed rape on the survivor one

after another. The offence is clearly established against them. To

prove the offence against Ujjal, prosecution was required to show

that he was a member of the group, one of whom committed rape

and he shared common intention with the other offender to commit

the offence. Admittedly, Ujjal was not seen with the other two

(2011)14 SCC 309

appellants before or during the offence. He was not present in the

room when the offence was committed. Even if he was seen in the

house immediately after the incident, it cannot be ruled out that

hearing the cries of the victim he rushed to the spot and had tried

to save her. In his effort to do so, her petty coat came off. This plea

finds corroboration from the statement of PW1 before Magistrate.

37. In this backdrop, it cannot be said to have been proved beyond

doubt that Ujjal was a member of the group, one of whom had

committed rape and he shared common intention with them to

commit the offence. Hence, I am inclined to extend the benefit of

doubt to him.

Conclusion: -

38. In the light of the aforesaid discussion, conviction of the appellants

viz. Lankeswar Sarkar and Nirmal Sarkar is upheld. Conviction and

sentence imposed upon the appellant viz. Ujjal Sarkar are set aside.

39. Coming to the issue of sentence imposed upon the appellants viz.

Lankeswar Sarkar and Nirmal Sarkar, I note that the said

appellants do not have criminal antecedents. No doubt the offence

of gang rape is a heinous and deplorable one. However, no physical

injuries were found on the survivor. Possibility of reformation and

rehabilitation of the appellants cannot be ruled out.

40. Balancing the aggravating and mitigating factors, I modify the

sentence imposed upon the appellants viz. Lankeswar Sarkar and

Nirmal Sarkar and direct they shall suffer rigorous imprisonment

for ten years and pay a fine of Rs.25,000/- each, in default, to

suffer rigorous imprisonment for one year more.

41. Period of detention suffered by the appellants viz. Lankeswar

Sarkar and Nirmal Sarkar during investigation, enquiry and trial

shall be set off against the substantive sentence imposed upon

them in terms of Section 428 of the Code of Criminal Procedure.

42. With the aforesaid modification as to sentence, CRA 29 of 2018 and

CRA 30 of 2018 are disposed of.

43. The appeal being CRA 76 of 2018 is accordingly, allowed.

44. Appellant viz. Ujjal Sarkar shall be discharged from his bail bond

upon execution of a bond to the satisfaction of the trial Court which

shall remain in force for a period of six months in terms of Section

437A of the Code of Criminal Procedure.

45. Lower court records along with a copy of this judgment be sent

down at once to the learned trial Court for necessary action.

46. Photostat certified copy of this order, if applied for, be given to the

parties on priority basis on compliance of all formalities.

I agree.

 (Ajay Kumar Gupta, J.)                             (Joymalya Bagchi, J.)


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