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2007 DIGILAW 562 (CAL)

ATUL ROY (IN JAIL) v. STATE OF WEST BENGAL

2007-07-26

GIRISH CHANDRA GUPTA, KISHORE KUMAR PRASAD

body2007
GIRISH CHANDRA GUPTA, J. ( 1 ) THE accused Atul Roy son of Mahesh Roy of sardarpara within Kotwali Police Station in the district of Jalpaiguri a permanent labourer of BPL Tea Garden, pursuant to a written complaint lodged by Shri Mahendra Nath Roy with the Officer-in-Charge of the Kotwali Police station on 5th July 2001, was charged with an offence punishable under section 376 of the Indian Penal Code. He pleaded not guilty and was therefore tried. The learned Trial Judge on 20th March, 2004 has convicted the accused and on 22nd March, 2004 has passed a sentence directing him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo further rigorous imprisonment for a period of six months. The convict has come up in appeal. The prayer for suspension of the sentence was rejected by a Division Bench of this Court by an order dated 30th April, 2004. ( 2 ) THE case of the prosecution briefly stated is that on 30th June, 2001, the prosecutrix aged about 13 years, a temporary worker in the BPL Tea Garden, at about 1 p. m. was forcibly raped by the appellant. When she tried to shout the appellant pressed her mouth and throttled her. After the offence was committed he threatened the victim that he would kill her if she disclosed the incident to anyone. The accused pleaded innocence and stated that because of enmity he has been falsely implicated. ( 3 ) THE only point for consideration is whether the alleged rape was proved by the prosecution beyond reasonable doubt. ( 4 ) THE learned Trial Judge relying upon the testimony of the victim and the medical evidence adduced by P. W. 6 and P. W. 11 reached the conclusion that rape had, in fact, committed. ( 5 ) MR. A. Moitra, learned Advocate appearing for the appellant submitted that the important pieces of evidence were overlooked by the learned Trial judge which, if taken into consideration, would go to show that the appellant at the highest could have been held for an offence under section 354 of the indian Penal Code for having applied criminal force on the victim with intent to outrage her modesty but the charge under section 376 cannot said to have been proved. ( 6 ) IT would at this stage be proper to scrutinise the evidence on record: a) The rape is alleged to have been committed on 30th June at about 1 p. m. inside the BPL Tea Garden. Except for the victim there was no other eye-witness. Immediately after the incident, according to the evidence of the victim in the examination-in-chief, she went weeping to the house of Naren Kaku. Naren Kaku is deposed by the victim to have told her not to weep and to go home. In the examination-in-chief, there is no indication as to whether she narrated the incident to Naren Kaku. The victim however made a statement under section 164 of Cr. PC on 7th July, 2001 which has been marked as exhibit. In her aforesaid statement she has stated that she told the incident to Naren Kaku. After reaching home she told the incident to her mother. The father of the victim at the relevant point of time was not at home. The mother being the P. W. 3 in her cross-examination has admitted that I) she did not see the private parts of her daughter; II) that she did not take her daughter to a doctor on the date of incident; and III) she did not inform the matter to the police. She also has admitted that the daughter informed Naren Kaku first of all about the incident. Naren Kaku, the p. W. 5 in his examination-in-chief deposed that there has been an incident of 'dhastadhasti'. He further deposed that Atul Roy dragged her, caught her and thereafter left her. He was declared hostile and cross-examination was declined. Vaginal swab of the victim, sent for examination on 6th July, 2001, did not contain any element of sperm and as such the doctor has rightly pointed out that after such a long time presence of sperm was not likely to be found. P. W. 11 Dr. Ghatak who examined the victim found that both the hymen and fourchette were ruptured but the vagina was intact. He was of the opinion that the victim might have been raped. He however added in his cross-examination that he did not see any mark of injury in the walls of vagina. He thereafter has volunteered to add that vagina is a flexible organ. Hinting thereby that mark of injury is not a necessary indication of rape. He was of the opinion that the victim might have been raped. He however added in his cross-examination that he did not see any mark of injury in the walls of vagina. He thereafter has volunteered to add that vagina is a flexible organ. Hinting thereby that mark of injury is not a necessary indication of rape. At this stage the evidence of the victim herself in cross-examination becomes very material. The relevant portion whereof is as follows: "accused after jumping over me opened his pant and my pant. I made a chitkar on which accused fled away. " ( 7 ) THE evidence tabulated above goes to suggest that serious attempt to commit the offence was made but could not possibly be completed. This view of ours find support from the fact that Naren Kaku who is the first person to be reported about the incident told her, even according to the victim, not to weep and to go home. Had the offence been completed, a caring person might not have contented himself by advising the victim to go home and not to weep. It is in evidence that the FIR was lodged on 5th July, 2001 whereas the father of the victim according to his own evidence came back on 3rd July, 2001. The only explanation for delay in lodging FIR is that he convened a salish but the accused did not participate therein. But at the same time he has deposed that he did not inform the Panchayat about incident. P. W. 11 in has report indicated that the hymen and fourchette were ruptured. He also has indicated about the injury appearing on the thigh and left breast but the victim has categorically deposed that she did not suffer any injury. The irresistible inference therefore is that the injury found by the doctor, if at all, is not relatable to this offence. ( 8 ) MR. A. Goswami, learned Public Prosecutor relying on judgment in the case of State of Punjab vs. Gurmit Singh, reported in AIR 1996 SC 1393 , submitted that delay in lodging FIR in the case of sexual offence cannot be viewed with the same seriousness as in the other cases. ( 9 ) RELYING on a judgment in the case of Madan Gopal Kakkad vs. Naval dubey and Anr. ( 9 ) RELYING on a judgment in the case of Madan Gopal Kakkad vs. Naval dubey and Anr. , reported in 1992 (3) SCC 204 , he submitted that the sole testimony of the prosecutrix if believed by Court is enough to convict the accused. ( 10 ) RELYING on the judgment in the case reported in 2006 SCC (Criminal) 1, he submitted that no corroboration is required if the case as a whole appears probable. ( 11 ) RELYING on the judgment in the case of Santosh Kumar vs. State of M. P. , reported in 2007 (1) SCC (Criminal) 20, he submitted that absence of injury is non decisive. ( 12 ) FINALLY he submitted that it is unbelievable that by bringing that kind of accusation against the appellant the victim would invite ignominy for herself in the present social set up. ( 13 ) THE decisions cited above by Mr. Goswami themselves contain a caution that the sole testimony of the prosecutrix may be enough for the purpose of convicting the accused provided such testimony is believed. It is nobody's case that for nothing the accusation was made against the appellant. ( 14 ) MR. Moitra, as a matter of fact, has submitted that his client at the highest may be held guilty for an offence for applying criminal force upon the victim with intent to outrage her modesty. ( 15 ) CONSIDERING the facts and circumstances of the case we are of the considered opinion that the appellant did not succeed in his attempt to commit the offence of rape. He made a serious attempt, he dragged the victim, throttled her, opened his pant and that of the victim but he fled away when the victim shouted. We, therefore, are of the view that the punishment in this case should be not under section 376 simpliciter but under section 376 read with section 511 of the Indian Penal Code. ( 16 ) IN the result the appeal partly succeeds. The sentence imposed by the learned Trial Judge is reduced from 10 years to 5 years rigorous imprisonment and the quantum of fine shall remain the same and in default of payment of the fine the appellant shall suffer further rigorous imprisonment for six months. ( 17 ) THE learned Trial Court is directed to issue a revised jail warrant in the light of this order. ( 17 ) THE learned Trial Court is directed to issue a revised jail warrant in the light of this order. ( 18 ) LOWER Court Record with a copy of this judgment to go down forthwith to the learned Trial Court for information and necessary action. ( 19 ) URGENT xerox certified copy of this judgment, if applied for, be supplied to the learned Advocates for the parties on compliance of all formalities. Appeal partly succeeds.