BISWANATH DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal has been preferred by Two of the convicted persons namely Biswanath Das and Arun Dey. The appeal is directed against the judgment dated 15/3/2010 and the order of conviction dated 16/3/2010 passed by the learned Additional District and Sessions Judge, Fast Track Court No. 2, Sealdah, South 24 Pgs in S.T No. 5(3) of 2008 corresponding to S.C No. 3(2) of 2008 whereby and whereunder the 2 appellants along with one Ramesh Hazra and Rajesh Prasad were found guilty of the charges for the offence punishable under Section 506(ii)/34, 365/34 and 376/(2)(g) of the Indian Penal Code. All the appellants were sentenced to suffer Rigorous Imprisonment for Ten years with a fine of Rs. 10,000/- and in default to suffer Simple Imprisonment for Two years under Section 376(ii)(g) of the Indian Penal Code. Each of the convicts were also sentenced to suffer Rigorous Imprisonment for Two years under Section 365/34 of the Indian Penal Code with a fine of Rs. 2,000/- and in default to suffer Simple Imprisonment for Two months and they were also sentenced to suffer Rigorous Imprisonment for Two years with a fine of Rs. 2,000/- and in default to suffer Simple Imprisonment for Two months under Sections 506(ii)/34 of the Indian Penal Code. It was further directed that if the fine was realized, 50% of the same shall be paid to the victim.

(2.) The case has its initiation with Tangra P.S. Case No. 168 dated 7/10/1995 under Sections 365/376(ii)(a)/506/34 of the Indian Penal Code. On 7/10/95, Jhuma Sardar, the victim made a written report stating interalia therein that she, along with her husband Mithu Sardar, lived in a shanty beside the railway line by the side of 11/2 Shil Lane. On 06/10/1995 she and her husband had gone to the house situated adjacent to theirs at 9 P.M to watch a movie on the television and at about 1:30 A.M they returned back and went to bed. At about 3 A.M or 3:30 A.M, she woke up hearing a rustling sound on the wall made of bamboo slips of her room. Then she found Six men in her room. One of them held a razor on the throat of her husband and Three of them dragged him out of the room at the point of the razor while Three of them stayed inside. One of them had a razor in his hand and he was standing beside her. She could not make any sound or noise out of fear because they threatened that they would kill her husband if she shouted. Out of those Three men, one pushed her down on the bed by force and pressed her mouth and raped her. Thereafter another person who had a knife in his hand grabbed and also started raping her by force. At that point of time her elder sister Maya Mandal called her by name and asked as to what had happened. She also called her own husband and on hearing such calls the Three men fled from the room. The prosecutrix could recognize all the Six men one of whom was Nona and the other was Narayan. A lantern was burning inside the room and she could recognize the Two persons who had raped her but she did not know the other names although she stated that they live at Malipara. She also stated that whenever she used to go to work they would make gestures at her. The report was then made to the Police Station in the morning at 10:55 A.M of 7/10/95. On the basis of the said written report an investigation was started as per order of the then Officer-in-Charge of the Tangra Police Station and on completion of the investigation the Investigating Officer submitted a charge-sheet against these appellants as well as against Ramesh Hazra, Rajesh Prasad, Nona Das @ Babu Das and Narayan Sarkar under Sections 365/376(ii)(g)/506/34 of the Indian Penal Code.

(3.) Learned Counsel for the appellants has submitted that the incident occurred at 3:30 A.M of 7/10/95 and the information at the Police Station was received at 10:35 hours on 7/10/95 and therefore there is no explanation for the delay of almost Seven hours in lodging the complaint. We are not impressed by such a submission since, according to us, Seven hours' delay in lodging the F.I.R can be condoned considering the nature of the offence said to have been perpetrated upon the victim and the trauma associated with it. It is a common feature that in such cases the victim and / or her family would take sometime for the offence to sink in and then deliberate and decide on what course of action is to be taken. Moreover the incident has taken place in the wee hours of the night and therefore if the victim lodged the F.I.R at 10:35 A.M, this cannot be considered to be a gross delay. The next point that learned Counsel has argued is that the victim had named Nona and Narayan and therefore these Two petitioners cannot be held responsible for the offence. We are not inclined to accept such a submission because from the written report itself it is evident that she did not name Nona and Narayan as the persons who had raped her. All that she said was that out of the Six persons, she knew Nona and Narayan. The other interesting feature is that in the written report, the victim has mentioned about a lantern and from the records we notice and specially from the evidence of Barid Baran Chakraborty, the Sub-Inspector of Police who was posted at Tangra Police Station on 7/10/95 is that he had seized the kerosene oil lamp by preparing the seizure list. The evidence of the prosecutrix, Jhuma Sardar was recorded on 3/5/08. The incident is of 1995 and therefore there are bound to be some discrepancies here and there since by the time she deposed, Thirteen years had passed by. Such minor contradictions cannot be treated to be fatal. In the F.I.R, she has very specifically stated that one person was holding a razor and in her deposition she has given out the name of that person as Arun. Let it once again be recorded at the risk of repetition, that after a period of Thirteen years, the same is sufficient for anyone to have come to learn about the name of any person whom she could not name initially. Moreover she has also clearly stated that Arun along with Ramesh had raped her and that Biswanath along with Ramesh and Rajesh had taken her husband outside the Jhopri at the point of a razor. This fact stands corroborated by the evidence of PW 5, Baburam Mondal who is also a co-resident of the Jhopri.