HAREN DAS Vs. STATE OF WEST BENGAL

LAWS(CAL)-2010-10-73

HIGH COURT OF CALCUTTA

Decided on October 04,2010

HAREN DAS Appellant

VERSUS

STATE OF WEST BENGAL Respondents

JUDGEMENT

- (1.) COMPLAINT :- Kartick Das of Chao Police Station, Hariharpara in the district of Murshidabad lodged a complaint with the Police on January 2, 2005 that the appellant raped her minor daughter Atosi Das (not real name). According to the complaint, Atosi fell ill on December 30, 2004. At 10.00 p.m. she was taken to Baharampur Sadar Hospital. The doctor after examination told him that Atosi was in the family way having child in the womb for last eight months. On returning home and on being interrogated he came to know that about seven/eight months ago Atosi had gone to the house of Haren to prepare food for him when Haren forcibly raped her after closing the door. Haren threatened Atosi with dire consequence. Out of fear and shame she did not disclose the incident to anyone. On the basis of the complaint, the Police started an investigation and arrested Haren. On January 4, 2005 Atosi gave birth to a male child in Primary Health Centre Haren was chargesheeted under Section 376 of the Indian Penal Code. Haren pleaded innocence and faced trial.
(2.) EVIDENCE :- PW-1 (Kartick) :- The witness was the complainant. He was consistent with his complaint. He deposed that on December 30, 2004 he had taken Atosi to Berampore Sadar Hospital when the doctor had disclosed him that she had been in the family way. He came to know that Haren committed rape on her as disclosed by Atosi. Haren was related to Kartick. Atosi used to call him dadu (Haren's mother's brother). Atosi went to his house for cooking. None was present in his house. Taking advantage, he committed rape upon her. Out of fear and shame, she did not disclose the incident to anyone. Barhan Islam wrote a complaint as per his instruction. He signed the complaint. At the time of incident Atosi was fourteen years old. Kartick identified Haren on the dock. In cross-examination Kartick disclosed that Haren had three sons and two daughters. Two sons were married. They used to stay in a joint mess. Kartick visited the house of Haren occasionally. He gave a brief idea of the house. He denied the suggestion that Haren never had committed rape upon Atosi or that no such incident had taken place or that they had falsely implicated Haren out of political grudge and "some other dispute ". PW-2 (Atosi, the victim) :- Atosi was consistent what her father had said in his complaint as well as deposition. In addition, she stated that none had been present in the house. She went and started cooking. She asked for some green chilly. Haren told her to bring green chilly from his bed room. Atosi went to his bed room. Haren entered the bed room and locked it from inside. Haren forcibly opened her wearing apparel and made her naked and made her lie on the cot and committed rape upon her forcibly against her will. Haren showed her a chopper (Hanso) and threatened her with dire consequence. She returned back home after putting her wearing apparel. He kept mum out of fear and did not disclose the incident to anyone. After about one or two months she felt pain in her belly. She was treated at Student Health Home and Hariharpara Primary Health Centre. After about eight months she was examined by a doctor at Baharampur Hospital. After examination, the doctor disclosed to her father that she was pregnant for about eight months. They returned home. Atosi disclosed the incident to her father. After two days her father lodged a written complaint with the Police Station. Police came and arrested Haren. Atosi was also taken by the Police. She was released subsequently. Two days thereafter she gave birth to a male child at Hariharpara Primary Health Centre. She made confessional statement before the learned Magistrate prior to her delivery. Initially, the doctor of the Student Health Home advised her to have urine test. She visited Berampore Hospital for urine test when her pregnancy was detected. They were very poor. Their financial condition was not good. She was aware that due to pregnancy the belly became enlarged. Her grandmother died at the age of ninety years, three years before the date of making deposition. Accused Haren was her brother being three years younger to her. She denied the allegation that they had falsely implicated Haren out of political grudge. She deposed that she had been still prosecuting her study in school. She also denied the allegation that the accused was not capable of sexual intercourse. PW-3 (Subagi Das) :- The witness was the unfortunate mother of Atosi. Two years ago, on the plea of cooking Haren called Atosi to his residence. There was none in the house save and except Haren. After about three months, Atosi reported to her about pain in her belly. She was taken to Hariharpara Hospital for treatment and thereafter to Berampore Hospital for better treatment. Five/ six months thereafter it was detected that she was pregnant. The accused Haren was her maternal uncle in-law (Mama Sasur). In cross-examination, she disclosed that at the time of deposition Atosi was a student of class nine. She denied the suggestion that Haren never called her for cooking or that Atosi never suffered any pain in her belly or that she never conceived. PW-4 (Subrata Sarkar) :- The witness was the Sub-Inspector of Police attached to Khargram Police Station. He was attached to Hariharpara Police Station on the relevant date. He received the written complaint from Kartick and registered a formal FIR. PW-5 (Dr. B.Das) :- The witness was the Medical Officer attached to Hariharpara Health Centre. He however expressed his inability to disclose anything about the case without looking into the records. PW-6 (Dr.Biswajit Ghosh) :- The witness was the doctor at Hariharpara Primary Health Centre. Atosi suffered labour pain. On January 4, 2005 she was admitted in the said Hospital. She gave birth to a male child on that date at about 11.50 p.m. The witness proved the discharge certificate which was tendered in as exhibit. PW-7 (Ms. Sumita Bhattacharjee) :- The witness was the nurse attached to Hariharpara Primary Health Centre. She corroborated Dr. S. Das being PW-6 about admission of Atosi and her subsequent delivery of a male child. PW-8 (Dr. D. Biswas) :- The witness was attached to Baharampore Sadar Hospital. The witness examined Haren and found him to be potent and capable of doing sexual intercourse. PW-9 (Subhas Chandra Ghosh) :- The witness was a clerk at B.B. Pal Vidyaniketan, Hariharpara. He produced the register recording the date of birth of Atosi as May 4, 1990. He proved the Birth Certificate issued by the then head master of the concerned school in his usual capacity. He was acquainted with the signature of the headmaster. PW-10 (Barhan Islam) :- The witness was the scribe of the complaint. He was a teacher by profession. He wrote the complaint as per the version of Kartick. He put his signature, so was Kartick. He proved the complaint that was tendered as exhibit. He denied the suggestion of having written the complaint under the influence of a political party. PW-11 (Indrila Mukherjee) :- The witness was a Judicial Magistrate. She recorded the statement made by the Atosi under Section 164 of the Criminal Procedure Code. She proved the said statement tendered as exhibit. PW-12 (Intaj Ahamed) :- The witness was the Sub-Inspector of Police attached to Islampur Police Station. He was attached to Hariharpara Police Station on the relevant date. He conducted the investigation and recorded the statements of the witnesses under Section 161 of the Criminal Procedure Code. He collected Medical Report of the victim girl as well as the accused and got the statement of the victim recorded under Section 164.
(3.) EXAMINATION OF THE ACCUSED :- The learned Judge examined the accused Haren under Section 313. He denied all the allegations. He also denied having been examined by the doctor. In reply to question no.22, he stated that he was innocent, he had problems with Kartick regarding monetary issue. For that reason, he was falsely implicated in the said case.;

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