Monoj Bansfore vs The State of West Bengal

Joymalya Bagchi, J.—The appeal is directed against the judgment and order dated 31.08.2012 passed by the learned Additional Sessions Judge, Fast Track Court-II, Kalyani, Nadia for committing offence punishable under Sections 376/511 of the Indian Penal Code and sentencing him to suffer imprisonment for four years and to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for five months more.

The prosecution case against the appellant is that on 10.07.2011 at about 11:55 P.M. one Dr. Provas Chandra Mondal (PW-1) lodged a written complaint with Inspector-in-charge of Mohanpur I.C. under Haringhata Police Station alleging that the appellant was caught red-handed at Haringhata BPHC trying to ravish one Bimala Mondal (PW-2) who was in the Hospital in the night for taking care of a patient, namely, Sibani Bairagi (PW-5). The incident occurred at about 10:50 P.M. The appellant was apprehended in the Hospital and handed over to the Police Authority.

In conclusion of investigation, charge-sheet was submitted against the appellant under Sections 376/511 of the Indian Penal Code. Charges were framed u/s 376/511 of the Indian Penal Code. The appellant pleaded ''not guilty'' and claimed to be tried.

The case being a sessions triable one, committed to the Court of the learned Additional Sessions Judge, Kalyani, Nadia and transferred to the Court of the learned Additional Sessions Judge, 2nd Fast Track Court, Kalyani, Nadia for trial and disposal.

In course of trial, prosecution examined as many as seven witnesses. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by judgment and order dated 31.08.2012 convicted the appellant under Sections 376/511 of the Indian Penal Code and sentenced him to suffer imprisonment for four years and to pay a fine of Rs. 5,000/-, in default to undergo simple imprisonment for five months more.

Mr. Chatterjee, learned counsel appearing for the appellant submitted that the evidence of PW-2 (victim) is unreliable. He further submitted that the evidence of PW-2 (victim) suffered from embellishments and even if believed to be true would amount to an offence u/s 354 of the Indian Penal Code. He further submitted that PW-3 has not supported the prosecution case and therefore, the version of PW-2 lacked correction. He prayed for acquittal of the appellant.

Mr. Ghosh, learned counsel appearing for the State submitted that the evidence of PW-2 (victim) established the prosecution case beyond reasonable doubt. He further submitted that from the conduct of the appellant and other attending facts and circumstances it is clear that intention of the appellant was to ravish the victim and he failed to do so as the victim escaped. Hence, the order of conviction and sentence did not call for any interference.

PW-1 (Dr. Provas Chandra Mondal) was the Medical Officer at Haringhata BPHC. He stated that on 10.07.2011 at about 10:50 P.M. he heard a hue and cry from the side of female ward. He found that sweeper, namely, Champa Routh (PW-3 had apprehended a person for attempting to rape the victim (PW-2). The victim told him that the appellant gagged her mouth and hand for committing rape in the bathroom of the Hospital. He proved the First Information Report in the instant case.

PW-2 (Smt. Bimala Mondal) is the victim and the most vital witness of this case. She stated that she was in the Hospital for taking care of her relation Sibani Bairagi (PW-5) who was admitted. At about 10:30 P.M. to 11:00 P.M. she had gone to the bathroom beside the female ward where her relation was admitted. The appellant came out of the latrine gagged her mouth from the backside and tried to rape upon her. She somehow managed to free herself from his grip and raised a hue and cry hearing her shouts, the sweeper of the Hospital (PW-3) came and caught hold the appellant. Thereafter the attending doctor came there. She told everything to the said doctor. She further stated that she did not know the appellant personally prior to the alleged incident. She also deposed that she had made statement before the Magistrate. She proved her signature on the statement. In cross-examination, she stated that she had not seen the appellant before the incident and did not know him personally. She also stated that the appellant did not put his hand in her private parts or removed her saree.

PW-3 (Smt. Champa Routh) has been declared hostile. She however admitted that PW-2 was shouting in the bathroom as a person had entered the bathroom. People had apprehended such person and police took him away.

PW-4 (Smt. Uma Sarkar) is another lady who was attending her mother-in-law in the same Hospital. She heard shouts from the bathroom. She found that the appellant running away. He was apprehended. She stated that PW-2 told her that the appellant gagged her mouth and tried to commit rape upon her.

PW-5 (Smt. Sibani Bairagi) is the relation of PW-2 who was admitted in the Hospital. She has corroborated the version of PW-2.

PW-6 (S.I. Partha Pratim Roy), was the Sub-Inspector of Police attached with Mohanpur IC under Haringhata Police Station. He stated that ASI, Dulal Chanda received the written complaint from PW-1. He has proved the formal F.I.R. drawn up by Dulal Chandra. He took up investigation in the instant case recorded statement of the victim u/s 161 of the Code of Criminal Procedure and filed charge-sheet.

PW-7 (Sri Subrata Mukherjee), is the Judicial Magistrate who recorded the statement of PW-2 u/s 164 of the Code of Criminal Procedure. She has proved such statement.

The analysis of the aforesaid evidence clearly establishes that PW-2 was present at the Hospital on the fateful day for attending PW-5 who was admitted in the female ward of the Hospital. She went to the ladies bathroom attached to the female ward in the night when the appellant gagged her from behind and attempted to rape her.

It has been argued that conduct of the appellant at its height constitutes preparation to commit rape and not an attempt to rape. I am unable to accept such contention. The appellant was hiding inside the ladies toilet and when PW-2 went there he gagged her from behind and tried to ravish her. The fact that the PW-2 was lucky to escape from his grip and raise an alarm which alerted other witnesses in the Hospital who saved her from the brutal attempt of sexual assault. Intention of the appellant to commit rape on the victim is evident from his conduct of hiding inside the female toilet and gagging PW-2 from behind in an attempt to ravish her. Such action of the appellant was accompanied with requisite mens rea and the same clearly transcended the benign limits of mere preparations into attempt to commit rape.

It must also be understood that had the appellant succeeded in over powering the lady he would have definitely committed rape on her. It was fortuitous that PW-2 escaped from his grip. Ingredients of the offence under Sections 376/511 of the Indian Penal Code is, therefore, established beyond doubt. Gravity and seriousness of the act coupled with the requisite mens rea of the appellant cannot, in my opinion, constitute the minor offence u/s 354 of the Indian Penal Code as argued but qualifies to the graver offence of attempt to rape the victim.

For the aforesaid reasons, I am of the opinion that prosecution has been able to prove its case beyond reasonable doubt. The conviction and sentence upon the appellant is accordingly upheld.

The appeal is, accordingly, dismissed.

Let a copy of the judgment along with the Lower Court Record be sent down to the trial Court at once.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible.