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2009 DIGILAW 338 (CAL)

Ajoy Parida v. STATE OF WEST BENGAL

2009-04-29

KISHORE KUMAR PRASAD, PRANAB KUMAR CHATTOPADHYAY

body2009
Judgment PRANAB KUMAR CHATTOPADHYAY, J. :-The present appeal is directed against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court, Howrah in Sessions -Trial No. 519 of 2004 arising out of Sankrail P.S. Case No. 146 of 2004 dated 23-7 -2004 corresponding to G.R. Case No. 1602 of 2004. 2. The prosecution case, in brief, is that the mother of the prosecutrix lodged the written FIR (Exhibit 1) alleging inter alia that her minor daughter aged about 10 years went to the house of the appellant on 17th July, 2004 around 1.30 p.m. to watch T.V. along with a friend aged about 5 years. While the prosecutrix and her said friend were watching the T.V. at the house of the said neighbour-accused, at that time the accused drove out the friends of the prosecutrix from his house and thereafter, took the prosecutrix in a room. The accused thereafter, took the prosecutrix on his lap forcibly and also pressed the body of the prosecutrix. After a few minutes, the accused again took the prosecutrix on the bed and lay down her there and also removed her wearing pant. Thereafter, the accused himself removed his own pant and also attempted to rape the prosecutrix. At the time of the process of rape, the prosecutrix cried out and as such the accused accelerated the volume of the T. V. set so that nobody could hear the crying of the prosecutrix. At that time, the next door neighbour, Soma Chowdhury was talking with her mother on a loud voice and on hearing such voice, the accused got frightened and as such he opened the outer side gate/door when the prosecutrix came out from the room of the accused by way of running and reached at her own house and thereafter narrated the entire incident to her mother. The said mother of the prosecutrix attempted to suppress the entire episode out of fear of public and reputation of their family as well as future of the prosecutrix, but after making consultation with the next-door neighbour over the incident in question ultimately went to the Thana with her husband and the prosecutrix on 24th July, 2004 and lodged the written complaint. Pursuant to the aforesaid written complaint, police registered a case and started investigation. 3. Pursuant to the aforesaid written complaint, police registered a case and started investigation. 3. The victim girl was examined by the Doctor who found reddish hymen of the said victim girl and also detected sign of inflammation of the private parts of the victim girl. The accused appellant was also found to be potent for performing sexual intercourse by the Doctor during medical examination. 4. After completion of the investigation, police submitted charge-sheet against the accused-appellant under Sections 376/511, IPC before the learned SDJM, Howrah who took cognizance on the basis of the filed charge-sheet and the case was thereafter committed to the learned Sessions Judge, Howrah and subsequently, transferred to the Additional Sessions Judge, Fast Track Court, Howrah for trial. 5. In the Court of learned trial Judge, charge under Section 376/511 of IPC was framed against the appellant. The appellant pleaded not guilty to the charge framed against him and claimed to be tried. 6. In course of trial, the prosecution examined as many as 12 witnesses. Apart from leading oral evidence, the prosecution also tendered and produced a large number of Exhibits, which were marked as Exhibits 1 to 9 and Mat. Ext. 1. 7. Though the appellant was examined u/S. 313 of Cr. P.C. yet there was no adduction of evidence by him. The defence of the appellant was one of denial. 8. Upon conclusion of the trial, the learned Additional Sessions Judge. Fast Track Court, Howrah found the appellant herein guilty for committing the offence under Section 376. IPC and accordingly, after hearing the appellant on the question of sentence on 4-10-1995, the learned trial Judge sentenced the appellant to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/-, in default, to suffer further rigorous imprisonment for six months. The learned Judge also directed that period of detention during the enquiry, investigation and trial should be set off in terms of Section 428. Cr. P.C. from the total period of substantive sentence imposed upon the appellant. 9. On perusal of the judgment under appeal we find that the learned Additional Sessions Judge mainly relied on the evidence of the P.W. 1 (the mother of the victim girl). P.W.4 (the victim girl) and the medical evidence adduced by P.W. 5. The incident took place on 17th July. 9. On perusal of the judgment under appeal we find that the learned Additional Sessions Judge mainly relied on the evidence of the P.W. 1 (the mother of the victim girl). P.W.4 (the victim girl) and the medical evidence adduced by P.W. 5. The incident took place on 17th July. 2004 and the mother of the victim girl (P.W. 1) visited the local police station on 23rd,July, 2004 where she narrated the incident to the Officer-in-charge of the police station. The said Officer- in-charge recorded the statement of the mother of the victim girl (P.W. 1) in writing and read over explained the same to the said P.W. 1. On the basis of the said statement, formal FIR was lodged and thereafter investigation was started. After conclusion of the investigation, police submitted charge-sheet against the accused appellant under Sections 376/511. IPC. 10. The learned Additional Sessions Judge, however, on assessing the evidence of the P.Ws. namely. P.W. 1. P.W. 4, P.W. 7. P.W. 8, P.W. 10 and also considering the medical evidence adduced by P.W. 5 arrived at the conclusion that the prosecution has proved that the accused appellant committed an offence punishable under Section 376, IPC and not under Sections 376/511, IPC and, therefore, held the accused guilty for committing offence punishable under Section 376. IPC. 11. The learned Counsel representing the appellant urged before this Court that the learned Trial Court did not alter the charge levelled against the accused under Sections 376/511. IPC although convicted the appellant for committing the offence punishable under Section 376-IPC. The learned Counsel of the appellant submitted that the learned Additional Sessions Judge should not have punished the accused for committing an offence punishable under Section 376, IPC since the appellant was not charged under the aforesaid section. The learned Counsel of the appellant further argued that the prosecution could not prove the guilt of the accused for commission of the offence punishable under Section 376.IPC. 12. Mr. Goswami, learned Public Prosecutor also fairly submitted before this Court that the learned Trial Court found the accused guilty for committing an offence punishable under Section 376, IPC even without altering the charge framed against the said accused and on the basis of the evidence on record it is established that there is an attempt on the part of the accused to commit rape in terms of Section of IPC. 13. 13. Now, it is to be decided whether the learned trial Court was justified in holding the accused guilty for committing an offence punishable under Section 376, IPC and not under the charged Section i.e. under Section 376/511. IPC. 14. On examination of the written statement of the P.W. 1, which was the basis of the FIR we find that the said P.W. 1 specifically stated before the Officer-in-charge, Sankrail Police Station namely, P.W. 11 that the accused 4:ried to rape her daughter. However, at a subsequent stage, the said P.W. 1 while adducing the evidence in the Court changed her stand and stated in her evidence in the Court that the accused penetrated his penis to some extent in the private parts of her daughter (P.W. 4). It is the specific stand of P.W. 1 that the incident in question was narrated in details by her daughter (prosecutrix) on the very day of the incident in question and the said P.W. 1 herself made the statement before the Officer-in-charge of the local police station where she never stated that the accused penetrated his penis to some extent in the private parts of her daughter (prosecutrix). The aforesaid changed stand of the P.W. 1 should be cautiously examined in the light of the medical evidence adduced by the Doctor. 15. P.W. 5 thoroughly examined the whole body of the victim girl (P.W. 4) and on examination of the said victim girl found the following particulars : "Fourchete : Intact Hymen : Form surrounding area reddish Vaginal walls : Intact Any injury and foreign body : No injury and foreign body detected inside the vaginal wall." 16. During cross-examination the said Doctor (P.W. 5) deposed as under: "................I did not pen down, in my report (vide Ext. 6), about penetration. If I would have found the same, I would certainly penned down the same in my report (vide Ext.) .............." 17. The prosecutrix (P.W. 4) in her evidence specifically stated that the accused penetrated his penis partly in her private parts but during cross-examination the said prosecutrix categorically deposed : ................I did not sustain any bleeding injury on my private parts. I also did not sustain any external injury on my person……" 18. The P.W. 5, however, categorically stated in his deposition that he found the sign of inflammation which might have occurred due to pressure caused by male organ. 19. I also did not sustain any external injury on my person……" 18. The P.W. 5, however, categorically stated in his deposition that he found the sign of inflammation which might have occurred due to pressure caused by male organ. 19. The victim girl (P.W. 4) because of her tender age is not expected to realise and/ or understand definitely about the partial penetration of the penis of the accused in her private parts. Furthermore, the said victim girl while narrating the incident to her mother (P.W. 1) and her friend (P.W. 6) did not say anything about partial penetration of the penis of the accused in her private parts as in that event, said P.W. 1 whole making the statement in presence of the prosecutrix before the Officer-in-charge of the local police station would have said so. The P.W. 1 undisputedly in presence of the victim girl (P.W. 4) made the categorical statement before the Officer-in-charge of the local police station that the accused appellant tried to rape her daughter. In the aforesaid circumstances, it would be risky to place much reliance on the evidence of the victim girl about her claim regarding partial penetration of the penis. 20. From the evidence of P.W. 8 we also find that the accused appellant attempted to rape P.W. 4. The said P.W. 8 specifically stated in her evidence that she came to know about the incident in question from the mouth of the victim girl and her friend (P.W.6) and while adducing the evidence in the Court, said P.W. 8 specifically deposed as under : "..............accused Ajoy Parida laid the victim on the cot and removed his zangia and also attempted to rape her................." 21. On assessing the aforesaid evidence of P.W. 1, P.W. 4, P.W. 8 in the light of the evidence of P.W. 5, it is difficult to hold that the accused appellant raped the victim girl (P.W. 4) and thereby committed an offence punishable under Section 376, IPC However, we are satisfied that the prosecution has been able to prove beyond all reasonable doubt that the accused took the prosecutrix inside his room when his other family members were not in the house and sexually assaulted the said prosecutrix which was not merely an indecent assault by the appellant but that he actually attempted to commit rape on the prosecutrix though unsuccessfully to effect penetration with the exception of redness at the surrounding area of the entrance to the vagina. 22. For the aforementioned reasons, we are constrained to hold that the prosecution has been able to prove beyond all reasonable doubt that the accused appellant committed an offence punishable under Sections 176/511, IPC for which the accused appellant was charged and tried by the learned Additional Sessions Judge. 23. The learned counsel of the appellant urged before this Court regarding delay of six days in lodging the FIR with the local police station. Going through the evidence on record we find that the said delay has been properly explained and the learned trial Court rightly held that the delay of six days for lodging the FIR/written complaint has been sufficiently explained by the prosecution and, therefore, the prosecution case cannot be affected on the aforesaid ground of delay. 24. It was also argued on behalf of the accused appellant that P.W. 7 and P.W. 8 had grudge against the accused appellant for non-supplying cement by the father of the accused for construction of 'Lokenath Temple' and also for non-payment of subscription for the purpose of aforesaid construction of the temple. 25. The learned trial Court, in our opinion, has rightly refused to infer that there was an enmity in between P.W. 7 and the family of the accused appellant. It has also not been established before the learned trial Court that the P.W. 8 was nursing a grudge against the accused for non-payment of subscription in the matter of construction of 'Lokenath Temple'. 26. It has also not been established before the learned trial Court that the P.W. 8 was nursing a grudge against the accused for non-payment of subscription in the matter of construction of 'Lokenath Temple'. 26. On consideration of the aforesaid evidence of P.W. 1, P.W.4, P.W. 7, P.W. 8 in the light of the medical evidence adduced by P.W. 5 we find the appellant guilty for commission of offence under Sections 376/ 511, IPC and the learned Trial Court should not have held the appellant guilty under Section 376, IPC even without altering the charge framed against the said appellant under Sections 376/511, IPC. 27. For the reasons discussed hereinabove, the impugned judgment and sentence passed by the learned Trial Court convicting the appellant u/S. 376 of IPC are liable to be set aside and the appellant is liable to be convicted under Section 3.76 read with Section 511 of IPC. Accordingly, the appellant is convicted under Section 376 read with Section 511 of IPC. 28. Custodial sentence of the appellant for five years rigorous imprisonment along with a fine of Rs.1, 000/ -, in default, to undergo further six months rigorous imprisonment would meet the ends of justice in the facts situation of the present case. The entire amount of fine, if realised, shall be paid to the prosecutrix towards compensation. 29. Therefore, the order of conviction and sentence passed by the learned trial Court are modified in the manner mentioned hereinabove. 30. The appellant-accused is now in jail. He is directed to serve out the remainder part of his sentence as modified by us in the manner as mentioned hereinabove. However, it is made clear that the appellant is entitled to set-off in terms of Section 428 of Cr. P.C. 31. The appeal is allowed to the extent indicated above. 32. The Criminal Section is directed to forward a copy of this judgment along with the LCRs to the learned Court below and the learned Court below shall issue a revised jail warrant and forward the same to the Correctional Home where the appellant/ convict is now detained. 33. Send a copy of this judgment to the Superintendent of the concerned Correctional Home where the appellant is now under detention for information and necessary action. 33. Send a copy of this judgment to the Superintendent of the concerned Correctional Home where the appellant is now under detention for information and necessary action. Urgent xerox certified copy of this judgment, if applied for, be supplied to the learned counsel for the parties upon compliance with all formalities. K1SHORE KUMAR PRASAD, J. :- I agree. Order accordingly.