Bhadra Mondal vs The State of West Bengal

Indira Banerjee, J—This appeal is against a judgment and order of conviction dated 31st May, 2011 and an order of sentence dated 1st June, 2011 passed by the Additional District and Sessions Judge, Fast Track Court-I, Baruipur, South 24-Parganas in Sessions Trial Case No. 5(12) 2006 corresponding to Sessions Case No. 43(11)2006 whereby the appellant has been convicted of the offence of rape under Section 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of eight years and fine of Rs. 2000/-, in default whereof, further rigorous imprisonment of three months.

The prosecution case in brief is that the prosecutrix had, after bathing in a pond adjacent to her home, returned home and was changing her clothes. While she was changing, the accused appellant came into her room, forcibly caught her from behind, pushed her down on the floor and raped her. After raping her, the accused appellant kicked her infant daughter, who had been lying on the floor and left.

The incident took place on 13th July, 2006. On 15th July, 2006 at about 9 O''clock in the morning, the First Information Report was lodged by the prosecutrix, alleging that while she was changing after taking a bath in the pond at about 10-30 a.m. on 13th July, 2006 and was in a petticoat, the accused appellant entered her room, undressed her, put a cloth in her mouth and raped her against her will. He later ran away after kicking her infant daughter.

Pursuant to the aforesaid FIR, Bhangore Police Station Case No. 63 of 2006 dated 15th July, 2006 was started. After completion of investigation, charge-sheet dated 8th December, 2006 was issued against the accused appellant wherein it was alleged as under:

"That you, on or about the 13th day of July, 2006 at about 10-30 A.M. in the room of the informant Putul Mondal at vill.-Amreswar, P.S.-Bhangore committed rape on Smt. Putul Mondal and thereby committed an offence punishable under Section 376 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried by the said Court on the said charge. The contents of the charge are read over and explained to the accused who pleads not guilty to the charge and claims to be tried."

Ten witnesses have been examined on behalf of the prosecution. The defence did not adduce any oral evidence. The appellant was, however, examined under Section 313 of the Code of Criminal Procedure. His defence was of complete denial and innocence.

The Prosecution Witness No. 1 is the prosecutrix herself, the Prosecution Witness No. 2 is the scribe of the FIR, the Prosecution Witness No. 3 is the sister-in-law of the prosecutrix (husband''s brother''s wife) and an alleged eyewitness, the Prosecution Witness No. 4 is the Judicial Magistrate, who recorded the statement of the prosecutrix and her sister-in-law under Section 164 of the Code of Criminal Procedure, the Prosecution Witness No. 5 is the husband of the prosecutrix, the Prosecution Witness No. 6 is a neighbour and the Prosecution Witness No. 7 is a brother-in-law of the prosecutrix. The evidence of the Prosecution Witness Nos. 6 and 7 is based on hearsay and, therefore, not very material. The Prosecution Witness No. 8 is the Duty Officer, who took down the complaint lodged by the prosecutrix, the Prosecution Witness No. 9 is the doctor, who examined the prosecutrix and the Prosecution Witness No. 10 is the Investigating Officer, who investigated the case.

The main witness is the Prosecution Witness No. 1, that is, the prosecutrix herself, who deposed in Court on 7th May, 2007. In her evidence, she stated that about ten months ago at about 8-30 A.M., while she was going to the pond to take a bath, the accused appellant asked the prosecutrix where her husband was, whereupon she told him that her husband had gone to work. After returning home from the pond, when she was changing her wet clothes and wearing fresh clothes, the accused appellant came into the room, bit her cheek, pushed her down on the floor and, thereafter, raped her. The deposition of the prosecutrix, as translated by the Trial Judge, is as follows:

"Thereafter the accused took away my chastity. The accused penetrated his penis into my private parts. I could not bear with the force mounted on my body by the accused. I tried to raise alarm but the accused di not allow me to raise alarm. Then my "Ja" (sister-in-law) Monoti Mondal saw the incident. I had a female child by the side of me. The accused Bhadure after pushing away my child with kicks fled away from my room. My female child was then aged about three years. The accused Bhadure Mondal is present in court on dock (identified)."

This witness deposed that she narrated the incident to a member of a political party, who sought a week''s time, but later told her that he could not do anything. Thereafter, she went to the Bhangore Police Station and lodged a written complaint. She was medically examined. She was also taken to learned Judicial Magistrate at Baruipur for recording her statement under Section 164 of the Code of Criminal Procedure.

In cross-examination, this witness stated that she was an illiterate lady. She only put her signature in Bengali and it was not possible for her to read out the entire contents of the FIR. She stated that the FIR was written at the Police Station, where, besides the scribe, police personnel were also present. She also reiterated that she had informed a local political party, but since no action was taken, she had to go to the Police Station. This witness remained more or less unshaken in cross-examination and she reiterated all that she had deposed in course of her examination in chief.

The Prosecution Witness No. 2, stated that he had written the complaint on the basis of what was told to him by the prosecutrix. He identified his signature in the complaint. In cross-examination, he stated that he had written the complaint at Bhangore Bazar at a tea stall. He maintained that he had written the complaint on the basis of whatever was told to him by the prosecutrix. He also deposed that while he wrote down the complaint, the prosecutrix and her husband were both present.

Mr. Ratan Das, Counsel, appearing on behalf of the appellant, strenuously contended that there was a discrepancy between the statement made by the Prosecution Witness No. 2 and the statement made by the prosecutrix. While the prosecutrix stated that the complaint was written at the Police Station, the scribe of the FIR stated that the complaint was written at Bhangore Bazar.

This Court cannot but take note of the fact that the prosecutrix was an illiterate lady who could only somehow sign her name. It is possible that some writing was done in the Police Station, for example, the affixation of signatures and she might have referred to the same. In her evidence, she stated that the FIR was written at the Police Station. She probably meant that the FIR was recorded at the Police Station and at the time when the FIR was recorded, the scribe was also present apart from police personnel. The discrepancy, if any, between the statement of the scribe that the complaint was written at a tea stall at Bhangore Bazar and the statement of the prosecutrix that the FIR was written at the Police Station was not a major discrepancy. The discrepancy, if any, does not render the evidence given by the Prosecutrix doubtful.

Even assuming that there was any discrepancy, it is well-settled that minor discrepancies which do not go to the root of the case of the prosecution, would not vitiate a conviction. In this context, it would perhaps be pertinent to note that both the prosecutrix (P.W.1) and the scribe (P.W.2) have confirmed that the complaint was written out by the scribe (P.W.2) on the instruction of the prosecutrix (P.W.1). The place where the complaint was actually written out is hardly of any relevance to the issues involved in this case.

The Prosecution Witness No. 3 is the sister-in-law (husband''s brother''s wife) of the prosecutrix, who claims to be an eyewitness. She deposed that at about 10-30 A.M. on the date of the incident, she had been washing utensils at a tank by the side of her house. After washing the utensils, she returned home and while she was keeping the washed utensils in the kitchen, she saw the accused appellant entering the room of the prosecutrix. She heard the sound "aah" from the room of the prosecutrix. She also heard the child of the prosecutrix weeping.

She further stated that the accused appellant pushed the prosecutrix down on the floor and raped her. Seeing this, she raised an alarm. None of the male family members were at home. She went to call her husband''s elder brother, who told her to go back home and that he would come back home soon. However, before he could return, the accused appellant ran away after pushing the daughter of the prosecutrix and kicking the prosecutrix herself.

It appears to us that there is definitely exaggeration in the evidence given by this witness. It does not seem very natural that a person who saw her sister-in-law being raped, would merely raise a hue and cry and go out to call her elder brother-in-law. It is equally unlikely that the elder brother-in-law on being informed that his younger sister-in-law was being raped, would just tell her to go back home. It is possible that this deponent may have seen the accused appellant entering the house of the prosecutrix and later running away, and she may also have heard a cry. The rest seems to us to be an embellishment. She possibly got to know of the incident from her sister-in-law. However, it is well-settled that the evidence of the prosecutrix requires no corroboration when it inspires the confidence of the court.

The Prosecution Witness No. 5 is the husband of the prosecutrix, who was also not present when the incident took place. He, however, deposed that when he returned home from work, his wife told him that the appellant had raped her. He deposed that his wife had told him that while she was changing her clothes on returning home after bathing in the pond, the accused appellant had raped her. He identified the accused appellant in court.

In cross-examination, he categorically denied that he had any intimacy with the appellant and he also denied that he used to take money on loan from the accused appellant. He categorically denied that he had taken loan of Rs. 7000/- from the accused appellant to purchase a cow. He denied that he had filed a false case to avoid repayment of the loan. Significantly, no attempt has been made by the defence to substantiate the vague insinuation in cross-examination that the accused appellant had taken a loan.

As observed above, the evidence given by the others is not of much relevance. The Prosecution Witness No. 4 is the Judicial Magistrate who recorded the statement of the prosecutrix under Section 164 and also the statement of her sister-in-law, both of whom gave evidence as Prosecution Witness No. 1 and Prosecution Witness No. 3 respectively.

As observed above, the evidence of the Prosecution Witness No. 6, a neighbour and Prosecution Witness No. 7, brother-in-law of the prosecutrix are not material as they are based on hearsay. The Prosecution Witness No. 8 only recorded the FIR and had no personal knowledge of the incident and the Prosecution Witness No. 10 was the Investigating Officer.

The Prosecution Witness No. 9 was the doctor who had examined the prosecutrix. He deposed that he had examined the prosecutrix and he opined that the prosecutrix was habituated to sexual intercourse. It is not in dispute that the prosecutrix is a married woman with a child and she would obviously be habituated to sexual intercourse. It is immaterial that no bleeding or discharge could be noted.

It is well settled that a case of rape, the evidence of the Prosecutrix does not require corroboration, if it is trustworthy. In the instant case, as observed above, the prosecutrix remained unshaken in cross-examination. Moreover, in Leela Ram (Dead) Through Duli Chand Vs. State of Haryana and Another, AIR 1999 SC 3717 : (1999) 8 JT 274 : (1999) 6 SCALE 477 : (1999) 9 SCC 525 : (1999) 3 SCR 435 Supp : (1999) AIRSCW 3756 : (1999) 8 Supreme 631 , the Supreme Court held as follows:

"It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment - sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over-anxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of the view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same. "

The fact a witness may be an interested witness is not a ground for rejection of evidence, which is otherwise trustworthy. The test of creditworthiness of the evidence should be the guiding factor. The evidence must inspire confidence and when credibility is unshaken, there could be more justifiable reason to reject the evidence. This proposition finds support from the judgment of the Supreme Court in Union of India (UOI) and Others Vs. Dhir Singh China, Colonel (Retd.), AIR 2003 SC 1197 : (2003) 96 FLR 916 : (2003) 1 JT 561 : (2003) 1 SCALE 606 : (2003) 2 SCC 382 : (2003) SCC(L&S) 165 : (2003) 1 SCR 779 : (2003) 2 SLJ 48 : (2003) AIRSCW 760 : (2003) 1 Supreme 785 cited on behalf of the prosecution.

In State of Maharashtra Vs. Chandraprakash Kewalchand Jain, AIR 1990 SC 658 : (1990) CriLJ 889 : (1990) 1 Crimes 724 : (1990) 1 JT 61 : (1990) 1 SCALE 33 : (1990) 1 SCC 550 : (1990) 1 SCR 115 , the Supreme Court held :

"A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."

In O.M. Baby v. State of Kerala cited by the prosecution, the Supreme Court referred to its earlier judgment in State of Maharashtra v. Chandraprakash Kewalchand Jain (supra) and observed that while appreciating the evidence of the prosecutrix, the Court must keep in mind that in context of the values prevalent in the country, particularly in rural India, it would be unusual for a woman to come up with a false story of being a victim of sexual assault so as to implicate an innocent person.

The proposition that conviction can be based on the evidence of the prosecutrix also finds support from the judgment of the Supreme Court in State of Punjab Vs. Gurmit Singh and Others, (1996) 1 AD 492 : AIR 1996 SC 1393 : (1996) CriLJ 1728 : (1996) 1 Crimes 37 : (1996) 1 JT 298 : (1996) 1 SCALE 309 : (1996) 2 SCC 384 : (1996) 1 SCR 532 and in Rajinder @ Raju Vs. State of H.P., AIR 2009 SC 3022 : (2009) CLT 1476 : (2009) CriLJ 4133 : (2009) 9 JT 9 : (2009) 9 SCALE 176 : (2009) 10 SCR 248 : (2009) AIRSCW 4858 : (2009) 5 Supreme 233 .

We do not find any reason to reject the evidence of the prosecutrix altogether. There is no evidence of any enmity between the prosecutrix and the accused appellant for which the prosecutrix might falsely implicate the accused appellant. It seems unbelievable that the prosecutrix a married woman should give evidence of having been ravished only to avoid repayment of some money owed by her husband to the accused appellant, as insinuated in cross-examination.

We find no infirmity in the judgment and order under appeal. The appeal is dismissed and the judgment and order of conviction as well as the sentence is affirmed.

Criminal Section is directed to supply photostat certified copies of this judgment to the parties, if applied for, upon compliance of all necessary formalities.

Subrata Talukdar, J.

I agree.