KAMAL MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) By this appeal the three appellants assail the judgment and order dated 30.11.2000 passed by the learned Assistant Sessions Judge, 1st Court, Alipore whereby they were convicted under Section 376, I.P.C. read with Section 34, I.P.C. and sentenced to suffer rigorous imprisonment for 10 years each and a fine of Rs. 1,000/- each in default to suffer rigorous imprisonment for another six months each.

(2.) The victim's mother Bakuli Begum lodged a complaint with the O.C. Bishnupur P.S. at 10.25 hours on 2.7.1998 alleging that at 8.30 p.m. on 26.6.1998 when her daughter, the victim was coming back from the grocery shop the three appellants took her to an empty room after putting a cloth into her mouth whereupon the three raped her daughter one after another and carried on physical tortures on her throughout the night. She had been in search of her daughter in the night of 26.06.1998 itself and it was at 6 a.m. in the following morning (27.06.1998) when one Milan Bag told her that a girl was lying in a room beside his room she went there and found her daughter lying naked, unconscious and bleeding. After some basic treatment she regained her senses where after she narrated the incident to her. The victim was then taken to police station when bleeding was still coming out and she was shouting out of pain. On this written complaint Bishnupur P.S. Case No. 185 dated 2.7.1998 was registered under Section 376/34, I.P.C. and charge-sheet was submitted against them under the aforesaid section of the law and the learned trial Court, as said above found them guilty of the charge and passed the aforesaid sentence.

(3.) The victim's mother Bakuli Begum who is the P.W. 2 in this case says in her evidence that at 10 p.m. accused Kamal called her daughter from the shop of her aunt (Pishi) on the pretext that her mother (P.W. 2) had been calling her, and when the victim came out Kamal pressed her mouth by handkerchief and took her to a vacant house of one Allahadi and then the appellants Bapi Mondal, Kallo Sk. and Kamal Mondal raped her daughter. Though she had searched for her daughter in the night she could not find her and in the next morning Milan Bag informed her that her daughter had been sleeping in his house being unconscious. In the evening she narrated the incident to the police station and from the police station she was taken to hospital where she had remained admitted and thereafter she lodged complaint. P.W. 3 Sk. Sahabuddin is the father of the victim and the husband of P.W.2. He says that his wife told him that she could not trace out her daughter and as it was midnight all slept and in the following morning his daughter was taken to police station while she was without senses and informed the police of the incident. His daughter stated to him the names of the accused persons who, as narrated by his daughter, took her to the house of Allahadi after pressing her mouth and did 'bad' work with her. In his examination-in-chief it has further transpired that two days before his daughter was discharged from the hospital she narrated to him about the incident. The cross-examination of this witness has been too cryptic since it is confined only to the suggestion that he did not state to the I.O. that he came to know the names of the accused persons from his daughter two days prior to her discharge from the hospital and that he did not state to the I.O. that the accused persons took his daughter to the house of Allahadi and raped her. P.W.4 is Allahadi Mondal and the landlady of the house where the incident took place. Police according to her took her to that house where the incident had taken place concerning the daughter of P.W. 1 and P.W. 2 and after going there she saw pool of blood with victim lying unconscious and naked in a nearby hut. Cross-examination of this witness also has been short in this that she was simply suggested that she did not see the pool of blood with the victim in a nearby hut in an unconscious state and that she did not state to the I.O. that the police took her to her house so as to see the victim in a nearby hut. The first suggestion she denied, while affirming the second suggestion. P.W. 5 Smt. Kajal Singh is a very important witness because, according to her, the victim came to her house to see TV. When accused Kamal came there and asked the victim to go home as her mother was calling the victim came out on being despatched by P.W.5. One hour after P.W. 2 came to her house in search of the victim when she stated to P.W. 2 that the victim had gone with Kamal. P.W. 2 continued to search for her daughter and in the morning she heard hue and cry and she found the victim in the house of Milan Bag where she was lying in an unconscious state. She has said that after the victim regained senses she told her that the accused persons had raped her. A bundle of suggestions like she did not state to I.O. that in the morning she heard that the victim had been raped in the house of Milan Bag and that she lay unconscious, or that she did not state to I.O. that mother of the victim did not come to her house in search of the victim or that she did not state to I.O. that she would work as prostitute at Bagirhat prostitute's quarters or that she stated to the I.O. that in the morning at 6 a.m. she received an information that the victim was lying in the prostitute's quarters was put to P.W.5. The witness denied all the negative suggestions and admitted the further suggestion that she stated to the I.O. that on hearing the news she along with the parents of the victim had been to the quarters of the prostitute and found the victim lying naked. P.W.9 is the victim who says that when she was watching the T.V. in the house of her aunt (P.W. 5), Kamal came there and told her that her mother had been calling her. P.W.5 asked her to go with Kamal and when she was passing along a lane after coming out of the house of P.W.5 Karnal closed her mouth by a handkerchief, Bapi took her to a vacant house where she found a light and accused Kallo Sk. standing there. As she entered into the house accused Kallo Sk. showed a knife, Bapi caught hold of her and pressed her mouth and laid her on the cot and then Kamal, Bapi and Kallo Sk. raped her. She saw a black bottle there. The bottle looked like distilled water which Kallo forced her to drink as a result of which she lost senses. On the next morning at 7 a.m. when she regained her senses she found herself in the room of Milan Bag. In one part of the cross-examination it was suggested to her that she indulged herself in the trade of flesh which she denied forthwith. A piece of statement of her that she opened her clothes and there took place intermingling of bodies has been capitalized by the defence to argue that it was not a case of rape, although, at same time, the defence put forward the suggestion that no incident had at all taken place. However, it has appeared from her cross-examination that there are 40/50 quarters of the prostitutes in the area at Bagirhat under Bishnupur P.S. and around the vacant house where she was taken to there were 4/5 other houses.