GOPAL TAMANG Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This criminal appeal is directed against the judgment and order of conviction and sentence under Section 376, I.P.C. passed by the Additional District and Sessions Judge, Hooghly in Sessions Trial No. 144 of 1994. The learned Judge convicted the appellant under Section 376, I.P.C. and sentenced him to imprisonment for life and to a fine of Rs. 1,00,000, in default to R.I. for five years. The appellant/accused Gopal Tamang alias China was charged under section 366 and Section 376, I.P.C. for kidnapping and committing rape on a minor girl Tanuja Mallick on 15th February, 1993. The learned trial Judge however after trial convicted the accused u/S. 376, I.P.C. but acquitted him of the charge under Section 366, I.P.C.

(2.) The prosecution case in short is that on 15-2-1993 while the victim girl Tanuja aged about 9 years was playing near her house she was taken away by the accused on a cycle on the pretext of taking her for a ride and then committed rape on her in a bamboo grove. Exb. 1/1 is the FIR lodged by Smt. Kanan Mallick, the mother of the victim girl Tanuja at Chandannagar P.S. at 7.35 p.m. on 15-2-1993. In short, it is stated in the FIR that at about 5 p.m. on 15-2-1993 the accused took the victim girl Tanuja on her cycle for a ride and then at about 6.45 p.m. Sk. Mossair of Sukhnagar Para, village Bilkuli, P.S. Bhadreswar, Sk. Kowsher and others brought the accused China with her daughter and reported that the accused committed rape on Tanuja. Bleeding was seen from the private part of the girl and the girl reported weeping that the accused (China) took her on the pretext of taking on a ride on cycle and committed rape on her in a bamboo grove. It is also stated in the FIR that on seeing that the girl was weeping the boys of that place came and she reported to them that the accused China committed rape on her. It is further stated in the FIR that China confessed her guilt to them there and again he confessed his guilt when he was brought to the mother of the victim girl. Then the mother of the girl and the accused China came to the P.S. and lodged FIR. The victim girl was sent to the hospital from the police station.PW-1 Smt. Kanan Mallick is the mother of the victim girl. From her we get that she has twin daughters Tanuja and Anuja. She says that after finishing her work when she returned home she found her elder daughter Anuja Mallick in the house but Tanuja was absent and Anuja reported to her that Tanuja had gone with the accused China on his bicycle. When Tanuja did not return home at about 7 p.m. she says, she went to the stationary shop of Swapan Biswas and informed him about the matter and sometime thereafter several para people brought Tanuja and the accused China in her house along with the cycle of China. She also found blood stained mark on the pant of Tanuja and Tanuja informed that she was taken to village Bilkuli by the accused and there the accused forcibly committed sexual intercourse with her and for that reason blood was coming out from her private part. Then they went to the police station and there PW-1, lodged complaint. She says that the accused was known to them by face as he used to visit their area and also used to work as mason. In their cross-examination she says that she cannot tell the exact date of birth of her daughter. But she says that the victim girl was born in the nursing home of Dr. Sudarkar Sett of Chandannagar. She also says in her cross-examination that the accused China used to work as paint mistri and as helper of mason and he also worked as painter in her house. She denies the defence suggestion that she did not pay the wage of the accused and when the accused demanded his wage she falsely implicated the accused in this case with the help of villagers. In her cross-examination she says that she cannot state the names of the local boys who had accompanied her on that date to the P.S. and she also cannot say the names of the persons who brought Tanuja and the accused to their house onthat date. There is nothing improbable in it, because she was deposing in December, 1996 while the incident took place in February, 1993. It may not be possible to remember the names of the persons who brought the accused and the girl to her house about four years back, particularly when such persons belong to a different locality. PW-2, Tanuja is the victim girl. She says that on the date of incident at about 2 p.m. when her mother went away to attend to her job as maid servant, she and her sister Anuja were playing infront of their house along with other children and at about 4 p.m. when they were returning to her house the accused China came to them and played with them for sometime and then he asked her to visit his house. She says that she then informed her mother's mother Bechu Bibi that she was going with China and then the accused China took her to a distant place by the side of railway track and when it was dark he took her to a bamboo grove and forcibly removed her pant and committed rape on her. She says that she began to cry but the accused asked him (her) not to disclose the fact to others and the accused then took her on his bi-cycle when she was weeping and at that time some persons were passing by the side of that place with torch and they asked her as to why she was crying and she disclosed the entire fact to them and then those persons began to assault the accused and they took the accused and the cycle along with her to her house. She further says that at that time blood was coming out from her private part and after returning home she narrated the entire incident to her mother and at that time her Mesho was also present. She says that thereafter para people and her Mesho and her mother took her to the police station and at the police station the police officer had interrogated her and she was offered a glass of milk and thereafter she was taken to the hospital. She says that she was in the hospital for five days and was attended by medical officer there. She also says that her mother had taken out her wearing apparel in her house and at that place she changed her garments. She however failed to identify the Jangia as her Jangia which was shown to her at the time of her examination in Court. This, in our opinion, of no consequence. It is quite possible that after about 4 years a minor girl may fail to identify her Jangia because the Jangia itself might have undergone some change in look by reason of passage of time, having been kept as a seized article obviously not under so much of care as it would have been had it been kept under good care in the house. In her cross-examination PW-2 Tanuja says that the accused China has worked as painter and as day labourer in their house. She denies the defence suggestion in her cross-examination that the accused has been falsely implicated in the case because of any quarrel between him and her mother over any non-payment of wages. She says that her mother, her Mesho, Swapan and the persons who took her to her house from the place of occurrence went to the P.S. while recording her deposition the trial Judge also recorded an observation that the witness was of very tender age and she appeared to be aged about 11 years to the learned Judge having regard to the physical features noted by him.

(3.) PW-3, Swapan Biswas says that PW-1, Kanan Mallick is his wife's eldest sister. He is Mesho of the victim girl Tanuja. At the relevant time he was running a betel shop by the side of Chhabighar Cinema. His evidence is that on the date of the occurrence at about 5.30/6 p.m. PW-1, Kanan came to him to ask about the whereabout of her daughter Tanuja and he informed her that Tanuja was playing infront of his shop in a field and the accused China was also searching for her. He further says that subsequently at about 7.30 p.m. some persons of the village Bilkuli appeared along with the victim girl Tanuja and the accused China and they informed that the accused committed rape on Tanuja and Tanuja has also narrated the incident to him as to how the rape was committed on her. He further says that the accused prayed for mercy. He also says that blood was coming out over the legs of Tanuja and thereafter they called Kanan Mallick from the place where she was working. His evidence is that thereafter PW-1, Kanan Mallick came near his shop and Tanuja narrated the incident to her and they also narrated incident to her and thereafter Kanan took Tanuja to the hospital and took the accused China to the P.S. and subsequently the Police Officer from Chandan Nagar P.S. went to hospital and also went to the P.O. which was in the village Bilkuli and they accompanied police officer and they found that there were blood drops on the bamboo leaves which were lying on the ground and the police officer seized some of the bamboo leaves in their presence. Some comments have been made by the learned Advocatefor the appellant as to the evidence of this PW-3, Swapan Biswas regarding the sequence in which the victim girl was taken to the hospital and the accused to the P.S. In our opinion this is really insignificant. There is no doubt from the evidence on record that the accused was taken to the police station and the victim girl was also taken there and from there the victim girl was taken to the hospital. In his cross-examination PW-3 Swapan says that the P.O. is at a distance that can be covered by bi-cycle in half an hour. He says that the accused was worked as a paint mistry in her house of the PW-1 prior to the date of incident. He denies the defence suggestion regarding quarrel over wage to be paid to the accused. PW-4 Sk. Samad is a resident of the village Bilkuli. He says that about 3/4 years ago at about 6.30 p.m. Meshed Sekh of their village detected the victim girl and detained the accused from one bamboo grove of their village and thereafter brought them to his house and he saw that blood was coming out and there was flow of blood on the legs of the victim girl and informed him that the accused had given her one rupee and took her to that bamboo grove and committed rape on her. He says that thereafter they took that victim girl and the accused to the house of the victim girl which was near Chhabighar morh and after reaching that place he was guarding the cycle and other persons were talking with others. He further says that those persons thereafter took the accused and the victim girl to the nearby Bakultala T.O.P. and thereafter he returned to his house. In his cross-examination he says that he has no direct knowledge regarding the incident and whatever he stated in chief was heard from Meser and the victim girl. He says that Swapan was not known to him prior to the date of incident. PW-5, Sk. Sajahan is a resident of the village Bilkuli. He knows Meser and from him we get the Meser was not at the station (at the time of trial). His evidence thus explains why Meser could not be examined in this case as a prosecution witness although in the FIR it has been stated that at about 6.45 p.m. on the date of the occurrence Sk. Meser and others brought the victim girl along with the accused. PW-5, Sk. Sajahan says that in the evening when he was taking tiffin in his house he heard hallah hnar his house and thereafter he came out and saw Meser and others were there and one boy and one girl. His evidence is that on enquiry the girl informed them that the accused took her to the bamboo grove and committed rape on her. He also says that blood was on the legs of the girl as found in the light of the torch light. They took the boy and the girl to their Panchayat Office and there they were asked to hand over the girl to their family members, and then they went to the house of the girl. He further says that the girl informed them that the accused had worked as paint mistry in their house on that date and the mother of the victim girl and the local people took the accused and the girl to the local P.S. He also accompanied the police to the place of occurrence in the police van and after reaching Bilkuli the accused led up to the P.O. He also says that police seized some bamboo leaves from the P.O. under a seizure list. We find no sufficient reason to disbelieve the evidence of this witness.