Chapu Bagdi and anr. Vs. State of West Bengal - Court Judgment

Excerpt:
- girish chandra gupta, j.1. the accused chapu bagdi, son of shri nanda bagdi and the accused sone bagdi, son of late purna bagdi, both of dharapara in the district of burdwan were charged by the police with offences punishable under section 376(2)(g) read with section 506 of the indian penal code on the basis of a first information report lodged by champa mondal, wife of shri palanmondal of dharapara in the district of burdawn, on 13th december, 1993 at 16.25 hours. the accused persons were however charged by the id. trial judge under section 376 of the indian penal code and convicted and sentenced to suffer 10 years rigorous imprisonment and to pay a fine of rs. 1,000/- each and in default to suffer further six months rigorous imprisonment by an order dated 24th june, 1999.2. the convicted persons have come up in appeal. the appeal being cra no. 217 of 1999 was admitted by an order dated 27th july, 1999 by a division bench of this court. a further appeal being cra no. 370 of 2000 also filed against the selfsame judgment by both the convicts was admitted by an order dated 4th december, 2000. an application for suspension of the sentence was rejected on 3rd august, 1999. in the subsequent appeal an application for suspension of sentence made by the appellants was rejected by an order dated 23rd february, 2001. a still further application for suspension of sentence made by the appellants was rejected by an order dated 14th september, 2001.3. the case of the prosecution as would appear from the first information report is that on 12th december, 1993 at about 10.30 p.m. in the night the prosecutrix, daughter of palan and champa mondal, aged about 14 years, while she was returning home, from a video show held at the local bishahari club on the occasion of the annapurna puja, was intercepted by chapu. he gagged her by a thin gamcha belonging to the prosecutrix herself and at a knife point she was taken to manasatala where she was raped forcibly. chapu thereafter brought the victim to the nearby primary school and handed her over to sone. he again gagged and led her towards the crematorium and took her to a room (chalaghar) in the burning that and raped her forcibly. she was thereafter released near the primary school. soon thereafter she met her brother ajit. she narrated the entire incident to her brother. after the brother and sister had reached home the parents were told about the incident. the accused persons were caught by the local residents including the brother. it was decided that a salish would take place on the next day. no salish was however held and accordingly an fir was lodged on 13lh december, 1993 at 15.45 hours at the ghuskura police camp of the aaoushgram police station. the said police station recorded the fir at 16.25 hours and on the basis of the fir an investigation was started.4. the defence case is that of denial. the learned trial court after examining the witnesses held that the prosecution had proved its case beyond any reasonable doubt. the following points according to us arise for determination.(a) whether the victim at the relevant point of time was 14 years old?(b) whether the accused persons had forcible sexual intercourse with the prosecutrix on 12th december, 1993 as alleged by her?we shall take up the above points for our consideration in the order they are framed.5. as regards the age of the victim there is no documentary evidence. according to the mother of the victim the prosecutrix at the relevant point of time was 14 years old. after medical test conducted upon the person of the victim, dr. section gupta, pw-2 opined that on 12th january, she was below 16 years of age. he however had added in his deposition that she had 'breasts enlarged with prominent nipple' and had regular menstrual history. considering that the doctor in spite of his aforesaid observation opined that as on 12th january, 1994 the victim was below 16 years of age there is no room left for any doubt or dispute with regard thereto. there is no significant cross-examination on that point either. the first point is, therefore, answered in affirmative.6. on 14th december, 1993 the victim made a statement under section 164 cr. pc before a magistrate. in her statement she narrated that when she was about to go home at the instance of her brother from the video show chapu gave her a mild rebuke and asked her to accompany him. he took her through the fields. she protested. she also cried. he then gagged her. he took her to manasatala temple and raped her. he also asked her to come occasionally in lieu of money. he then took her to banshtalla near the primary school more. by that time sone had already reached there. sone then took her to a room on the bank of the crematorium pond and raped her and thereafter brought her back to banshtalla near the primary school where she met her brother ajit. she told him about the incident.7. in her statement under section 164 cr. pc, it would appear, she has talked about gagging by chapu. but there is no such allegation as against sone in that statement. in her cross-examination she admitted that gag was removed at manasatala and thereafter she remained with chapu for half an hour. she volunteered at that stage that she has tried to raise alarm but had refrained from doing so because chapu at that point of time had shown her a dagger. she has also admitted in her cross-examination that sone had removed the gag at the chalaghar, where she was raped, inside the burning ghat. dr. section gupta, pw.12 had examined the victim on 16th december, 1993. he deposed that the victim has an experience of forcible intercourse but in his cross-examination he admitted that no such opinion was expressed by him in his report. he deposed that vaginal examination was painful but has added that there was no vaginal discharge or bleeding.8. considering the evidence discussed above we are unable to accept that the sexual intercourse with the victim by the accused persons was forcible. we are fortified in our aforesaid view by the reason of the fact that the victim in her statement under section 164 of cr. pc stated that she was asked to come occasionally in lieu of money. we are inclined to hold that the annapurna puja and the function at the bishahari club gave her an excuse to sneak out from the parental protection during the night and she willingly submitted to both chapu and sone. she may have been lured but not threatened.9. we however have no doubt that chapu and sone did, in fact, have sexual intercourse with the prosecutrix on the alleged date and time. both chapu and sone were examined by shri laxmikanta ghosal, a lecturer in the department of fsn bmch who figured as the pw-10 and opined that both chapu and sone were capable of having sexual intercourse. dr. gupta, pw-12 after examining the victim on 16th december, 1993 has opined that 'on examination of the genital organs-clitoris enlarged, hymen was ruptured 5'0 clock and 8'0 clock position, vagina two-fingered dilated, regostry present'. the second issue is accordingly answered.10.mr. kalyan moitra appearing for the appellant by way of legal aid, has highlighted the following points for our consideration:(a) there is inconsistency between the evidence of pw.l and the contents of the fir lodged by her.(b) the victim pw.2 has referred to the time of the incident whereas she did not have any watch with her.(c) pw.3 the seizure witness deposed that he signed the seizure list at the instance of the i.o. the chatai seized by the i.o. was not identified by the victim.(d) pw.5 the maternal uncle of the victim stated that when he reached the house of the victim there was no villager whereas pw. 6, wife of pw. 5 in her deposition has stated that many villagers had assembled there.(e) appearance of the brother just after the accused persons had left the victim is dramatic and not believable.(f) the fir is claimed to have been lodged by the pw. 1 at the instance of jayprakash but jayprakash was not examined.(g) pw.10 who conducted an examination of the accused persons did not find any injury on their private parts. he submitted that it was not a case of alleged forcible rape.11. we have not been impressed by the submission made by the learned counsel for the appellant. pw. 1 who lodged the fir is not an eye-witness. therefore some inconsistency is bound to be there. we have no high opinion as to the evidence of the pw.l in any case. she has alleged in the fir that the salish scheduled to be held on the next day was not held whereas her evidence before the court was that she herself refused to participate in the salish. the time of the incident, given out by the victim without the benefit of a watch, does not in our opinion weaken the case of the prosecution in the least. the victim left bishahari club at about 10 p.m. where a video show at that time was going on. regard being had to the common course of human conduct it would not be unreasonable to presume that the time when she left the club was known to her. the incident happened shortly thereafter. it is, therefore, not possible to disbelieve the time given by the victim.12. the learned counsel was not correct in submitting that the chatai on which sone had raped the victim was not identified. the victim did, in fact, identify the chatai in her re-examination.13. presence or absence of villagers near the house of the victim does not really make any difference and is an insignificant part of the evidence. why and how did the brother of the victim appear at the relevant point of time near the school where the victim was left by sone is a question which should have been pursued in the cross-examination of the pw. 1 or pw.2 which the defence did not do at the trial stage. we do not think that jayprakash is a necessary witness. there is no question of injury on the private part of the accused persons as each one of them at the material point of time was a married person. besides we already have held that the theory of force allegedly applied by the accused persons on the victim introduced by the prosecution does not appear to be sound.14. therefore the question of any resistance or any injury being inflicted by the victim upon the private parts of the accused persons does not arise.15. therefore the conclusion reached is that the victim on 12th december 1993 was less than 16 years old and the accused persons had sexual intercourse with her. now the question is whether these two factors are enough to bring the accused persons within the mischief of section 376 of ipc. our answer in this regard is bound to be in the affirmative as would appear from the definition of rape provided in section 375 of ipc read with the sixth description, which reads as follows:375. rape. a man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:firs...secondly...thirdly...fourthly...fifthly...sixthly...with or without her consent, when she is under sixteen years of age......for the aforesaid reasons there is no scope to dislodge the conviction.16. we however are of the view that in the facts of the case the punishment inflicted by the learned trial court has been disproportionate. in that view of the matter and considering that the accused persons have already undergone imprisonment of 8 years or above we direct that both the appellants should be set free at once.17. this appeal and the connected appeal are, thus, disposed of. urgent xerox certified copy of this judgment, be supplied to the learned advocates of the parties, upon compliance of all formalities.kishore kr. prasad, j.i agree.