Bhupen Mandal vs The State of Jharkhand

Pradeep Kumar, J.—Heard learned Counsel for the appellant and learned Counsel for the State.

This appeal is directed against the judgment of conviction and order of sentence dated 07.02.2001 passed by Shri Dinesh Singh, learned Assistant Sessions Judge, Rajmahal in Sessions Trial Case No. 80 of 1997, by which judgment, he found the sole appellant, Bhupen Mandal guilty for the offence under Sections 376, 324 and 448 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years for the offence u/s 376 of the Indian Penal Code, one year u/s 324 of the Indian Penal Code and six months u/s 448 of the Indian Penal Code and all the sentences have been ordered to run concurrently.

It is submitted by learned Counsel for the appellant that the , conviction of the appellant u/s 376 of the Indian Penal Code is bad in law, since, the defence has given the evidences to prove that the informant-victim Smt. Rakhi Devi had love affairs with the appellant and she used to write love letters to him. The love letters were filed in the court and marked as Ext. x and x/6 for identification in the court, but the Court did not considered the same. The trial court also failed to consider the same that most of the witnesses have become hostile. In that view of the matter, the conviction u/s 376, 324 and 448 is bad in law and fit to be set aside.

On the other hand, learned Counsel for the State has opposed the prayer and submitted that there are sufficient evidences including .the evidence of the informant''s husband, P.W.13 as also the evidences of P.W.7 and P.W.10, the independent witnesses, who have supported the prosecution case, that the victim girl, Rakhi Devi was raped by the appellant in her house itself and he was caught red handed by the witnesses and handed over to the choukidar of the village to put him to police station, and as such, the case has been proved beyond reasonable doubts and, as such, the conviction of the appellant is well founded and requires no interference by this Court.

After hearing both the parties and after going through the evidences on record, I find that the prosecution case was started on the basis of fardbeyan given by the informant, P.W.12, Rakhi Devi, the wife of Shri Abhiram Karmakar stating therein that on 27.09.1996 at about 7.30 P.M. in the evening, when she was making preparation for cooking food in the kitchen, then the accused Bhupen Mandal, aged about 30 years entered into the kitchen with a knife in his hand and dosed the door of the kitchen and at the point of knife, he overpowered her and thereafter, he put her on the ground and after removing her clothes committed rape upon her. She wanted to make hulla, but the accused closed her mouth from his hands and in spite of that she made bulla, which attracted her husband and the neighbours, who gathered outside the kitchen of the house. The appellant torn her blouse causing injury on her upper part of body and lastly, due to her hulla, he left her and putting his clothes when he opened the door of the kitchen, the villagers and her husband wanted to caught hold of him, but he attacked with the knife over the head of the husband of the victim girl causing injury in his head and ran away. Thereafter, he was chased by the villagers namely Dilip Saha, Dulal Sana, Ramsharan Saha, Tanu Goswami, Santosh Mandal, Nakul Mandal, Gopal Goswami, Tarapado Karmakar, Sukesh Pramanik, Ajay Karmakar and Vijay Karmakar and they caught hold of him and handed over to the choukidar, Haren Tanti.

On the basis of written report, police registered a case for the offence under Sections 376, 307, 324, 448 and 341 of the Indian Penal Code and after investigation submitted charge sheet against the accused.

Since, the case was exclusively triable by the court of Sessions, learned magistrate committed the case to the court of Sessions and lastly tried by Assistant Sessions Judge, Rajmahal, who passed the judgment as aforesaid.

It appears that in course of trial, the prosecution has examined 17 witnesses.

P.W.1, Nakul Mandal was turned hostile.

P.W.2, Santosh Mandal was also turned hostile.

P.W.3, Ajay Chand Karmakar was also turned hostile.

P.W.4, Tanu Goswami was also turned hostile.

P.W.5, Mukesh Pramanik was also turned hostile.

P.W.6, Gopal Goswami was a hearsay witness.

P.W.7, Dilip Shah has supported the prosecution case.

P.W.8, Vijay Karmakar has also supported the prosecution case.

P.W.9, Tarapado Karmakar has also supported the prosecution case.

P.W.10, Dulal Saha has also supported the prosecution case.

P.W.11, Ramsharan Saha has also supported the prosecution case.

P.W.12, Smt. Rekha Devi is the informant in the case.

P.W.13, Abhiram Karmakar is the husband of the informant.

P.W.14, Dr. Sunita Prasad, who examined the victim lady and proved her injury report as Ext.2.

P.W.15, Dr. Shashank Shekhar Mishra, who proved-the injury report of the husband of the informant.

P.W.16, Kamta Prasad Singh is the investigating officer.

P.W.17, Haren Tanti is the choukidar, who arrested the accused.

The defence witnesses are D.W.1, Sudhir Chand Saha and D.W.2 is Bhupen Mandal, the accused himself.

Thus, after going through the evidences, it appears that P.Ws. 1 to 6 have turned hostile and P.W.7 is a hearsay witness and said nothing about the occurrence. However, the prosecution case has fully been supported by the evidence of P.W.12, the informant, Rakhi Devi and she has very clearly stated that on the date of occurrence i.e. on 27.09.1996, when she was making preparation for cooking food at 7.30 P.M. in the evening, then the accused came to her house with a knife in his hand and closed the door of the kitchen and at the point of the knife, he overpowered her and thereafter, he put her on the ground and after removing her sari and under clothes committed rape upon her and when she wanted to make hulla, he closed her mouth with his hand and told her at the point of knife that do not make hulla, but still she was making hulla, which attracted her husband and the neighbours, who gathered outside the kitchen of the house. Thereafter, after committing rape, when the accused was putting his clothes, she again started making hulla, then he opened the door of the kitchen, then the villagers and her husband wanted to caught hold of him, but he attacked with the knife over the head of the husband of the victim girl causing injury on his head and he ran away. Thereafter, he was chased by the villagers, who caught hold of him and handed over to the choukidar, Haren Tanti, who took him in custody (sic) she gave fardbeyan at the police station and after that put her signature on it, which is marked as Ext.1. In her cross examination, she stated that in the next day, she was sent to Rajmahal hospital, where she was medically examined. She stated at para 10 that she was married about eleven years back with P.W.13, Abhiram Karmakar. She also admitted that before her marriage, her husband had earlier married with another lady, but she does not know the first wife of her husband. A1 para 18 she stated that she has got two daughters and one son from her marriage.

The prosecution case has also been supported by P.W.13, the husband of the informant, who has stated that on the date of occurrence i.e. on 27.09.1996, hearing bulla of his wife coming out from the kitchen, he came to the door of the kitchen to save her and started giving knock to the door for opening the same. And hearing his bulla, other villagers also came there and after 8-10 minutes, when the door of the kitchen was opened, then Bhupen Mandal, the accused came out with a knife in his hand and gave a knife blow over him, causing injury over his head and be ran away, but the accused was chased by other villagers and lastly the villagers caught hold of him when he entered the house of Lalji Mandal. Thereafter, the village choukidar was called and they handed over the accused to him and he went to police station and his wife also accompanied with him and his wife gave her fardbeyan. He stated in his cross examination that at the time of occurrence, his mother and son and daughters were not present in the house. They all had gone to the neighbour''s house and he was also sitting in the house of Ramsharan. After hearing hulla, his other three brothers came and other 20-25 villagers also gathered. The accused was caught red handed when he was trying to run away after opening the door of the kitchen.

The prosecution case has also been supported by the doctor, P.W.14, Dr. Sunita Prasad, who found some stains on the peticot, which was preserved and also injury on the upper part of her body, which is blue in colour of size 1" x 1/2" caused by hard and blunt substance caused within 1-3 days. She also stated that the victim lady was used to sex and she found old rupture of hymen. She found that there has been a sexual intercourse with her within 2-3 days, since, dead spermatozoa was found during microscopic examination of vaginal swab. P.W.15, Dr. Shashank Shekhar Mishra has examined the P.W.13, the husband of the victim lady, who found one incised wound on the left side of the head 11/2" x 1/2" x and also one bruise on the upper lip 1/2" x 1/4". The age of injuries was within 24 hours. He found that the nature of injuries was simple and caused by a knife.

It appears that the prosecution case has also been supported by P.W.7, Dilip Shah, P.W.8, Vijay Karmakar, P.W.9, Tarapado Karmakar, P.W.10, Dulal Saha and P.W.11, Ramsharan Saha and they stated that on hearing hulla coming out from the kitchen of the house and also on hearing hulla of the husband of the victim lady i.e. P.W.13, Abhiram Karmakar, they came to the house of the informant and found that the door of the kitchen was closed from inside and the informant was also making hulla. On hearing hulla, the accused after 8-10 minutes opened the door of the kitchen and came out wife a knife in his hand and attacked, over P.W.13, Abhiram Karmakar causing injury over his head. Thereafter, he ran away, but he was chased and caught, hold by them and handed over to the village choukidar.

As said, it is evidently clear from the evidences of all the prosecution witnesses that the accused was caught red handed while rapping the victim lady in the kitchen and he was caught by the villagers P.W.8 to P.W.11 while running away after opening the door of the kitchen, and as such, there is no doubt that he committed rape upon the victim lady as also inflicted injury on the informant''s husband, P.W.13, hence his conviction under Sections 376, 324 and 448 of the Indian Penal Code is well founded and requires no interference by this Court.

However, it is submitted by learned Counsel for the appellant that it will appear from the defence witnesses as also the document filed in the Court i.e. the love letter written to the accused by the informant, that she had some love affairs with the accused and that prompted him to rape her finding the victim lady alone in the house. More so, the appellant has been suffered from his act and he has remained in custody for about seven years.

Learned A.P.P. also verified that the appellant has remained in custody from 28.09.1996 to 04.09.2003 i.e. for about seven years.

Considering the fact that the accused had some relation with the informant, which prompted him to commit the heinous crime in entering the house of the informant and committing rape upon her, for which, he has already suffered for about 7 years in custody and also the rigors of trial and appeal. In the result, in my opinion, the sentence of about seven years already undergone by the appellant during trial and appeal, is sufficient punishment for the offence committed by him under Sections 376, 324 and 448 of the Indian Penal Code, hence, his sentence is reduced to the period already undergone by him and he is directed to be released from the bondage of the bail bond.

With the aforesaid alteration in the sentence, this appeal is accordingly dismissed.