Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 77 (CAL)

Sanjay Paswan v. STATE OF WEST BENGAL

2009-02-06

ASHIM KUMAR ROY, PRANAB KUMAR CHATTOPADHYAY

body2009
Judgment : PRANAB KUMAR CHATTOPADHYAY, J. (1) This appeal has been preferred at the instance of the convict challenging the order of conviction and sentence passed by the learned Additional Sessions Judge at Barrackpore, North 24-Parganas in ST 3(1) 2005/SC 21 (12) 2004. (2) The prosecution case, in short, is that the victim girl was aged about 31/2 years at the time of commission of the alleged offence. The said victim girl used to live along with her parents and other relations in the Bhadreswar Jute Mill Quarter. On 24th September, 2004 the victim girl reported to her mother at about 6:00 p.m. that she was having pain in the vagina and the accused, Sanjay Paswan had inserted his penis in her vagina. The said victim girl was thereafter taken to the house of the accused where she identified the appellant/convict, Sanjay Paswan, the person who inserted his penis in her vagina. The incident was reported to the police at about 8:15 p.m. on the same day and a criminal case was thereafter started against the appellant/convict. (3) The victim girl was also examined by the Doctor and the Doctor opined that mild abrasion was found on both sides of Iabia minora of the said victim. The convict was also found to be potent for sexual intercourse during medical examination by the Doctor. The police submitted charge-sheet against the appellant herein and ultimately, learned Additional Sessions Judge framed charge against the appellant under Section 376(2)(a) of I.P.C. (4) In course of trial, the prosecution examined as many as 12 witnesses. The defence of the appellant was one of innocence and false implication. (5) Upon conclusion of the trial the learned Additional Sessions Judge, Barrackpore found the appellant herein guilty of the charge and after conviction sentenced the appellant to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/-, in default, to suffer simple imprisonment for one year more. (6) On examination of the judgment under appeal we find that the learned Additional Sessions Judge mainly relied on the evidence of the victim girl, namely P.W.2. There is no dispute that the incident was reported by P.W.2 to others namely, P.W.1, the mother of victim girl, P.W.3, the father of the victim girl, P.W.5, the grandmother of the victim girl and P.W.6, another relation of the victim. The aforesaid P.Ws. There is no dispute that the incident was reported by P.W.2 to others namely, P.W.1, the mother of victim girl, P.W.3, the father of the victim girl, P.W.5, the grandmother of the victim girl and P.W.6, another relation of the victim. The aforesaid P.Ws. undisputedly derived knowledge about the alleged incident only from P.W.2. Therefore, the evidence of P.W.2 is required to be examined very carefully. (7) From the records we find that the Judicial Magistrate, Barrackpore, Sri A. K. Pandey could not record the statement of the victim under Section 164 of Cr.P.C. as the said victim girl could not understand the questions put to her and could not give rational answers to the questions. The said Judicial Magistrate was examined as P.W.8 before whom the victim girl was produced for the purpose of recording her statement under Section 164 Cr.P.C. The relevant portion of the evidence of the said P.W.8 is quoted hereunder:- "................Owing to tender age the victim could not understand the questions put to her by me and could not give rational answer to the questions and as such I could not record her statement under Section 164 Cr.P.C................" (8) The said victim girl admittedly adduced evidence before the learned Trial Court within a period of six months from the date of her production before the learned Judicial Magistrate, Barrackpore, (P.W.8). (9) On examination of the evidence adduced by P.W.2 we do not find that the learned Trial Court ascertained whether the victim could understand the questions put to her and was in a position to give rational answers to those questions. It was the duty of the learned Trial Court to ascertain at the very outset the mental capacity of the child witness by putting appropriate questions to her. (10) Unfortunately, in the present case, we do not find that the learned Trial Court discharged its obligation to that effect specially when the learned Judicial Magistrate only before couple of months came to the specific conclusion that the said victim girl could not understand the questions put to her and could not give rational answers to those questions as a result whereof the said Judicial Magistrate could not record the statement of the victim under Section 164 Cr.P.C. (11) The rule of prudence demands that the child witness should be examined very cautiously and carefully which we do not find in the present case. (12) In the aforesaid background, let us now examine the evidence of the Doctor, namely P.W.4. The said P.W.4 in her evidence specifically deposed as under:-"...........One little finger cannot be inserted in the vagina of a little girl aged about 3 to 4 years because the canal is very narrow. In my opinion -the mild abrasion seen over the labia minora may be due to excoriation of a mucus membrane due to itching or may be caused due to forceful introduction of some blunt, hard object. The blunt hard object may be penis...:.............." (13) During cross-examination, the said Doctor (P.W.4) admitted that no definite opinion can be given regarding act of rape in the present case as the hymen and the posterior fourchette of the victim were found to be intact. The said P.W. 4 further opined:- "If the penis of an adult person is penetrated in the vagina of a small girl, there will be rupture of vagina including hymen and fourchette." (14) It appears from the evidence that the alleged incident took place at about 6 p.m. on 24th September, 2004 and we find from the medical report given by P.W.4, which is marked as Exhibit-1 in this case, that the victim girl was examined by the said P.W.4 on the same day of occurrence at about 10:45 P.M. i.e. within a period of less than five hours from the time of occurrence. We find that according to the prosecution case as advanced by the prosecution witnesses including P.W.2, the appellant herein is an adult aged about 23 years at the time of occurrence who inserted his penis in the vagina of the victim girl. The total absence of any injury mark on the vagina of the victim girl as noticed by P.W.4 and on which the said witness based her opinion indicates that the occurrence as to rape might not have been properly understood by the victim girl and correctly explained to her near relations who were examined in this case as prosecution witnesses. (15) The fact remains that in the F.I.R., which was lodged by the grandmother of the victim girl (P.W.5), the appellant herein removed the undergarments of the victim girl and thereafter committed the act of rape. (15) The fact remains that in the F.I.R., which was lodged by the grandmother of the victim girl (P.W.5), the appellant herein removed the undergarments of the victim girl and thereafter committed the act of rape. The narration of the occurrence as stated by P.W.2 and supported by other witnesses also indicates that P.W.2 was made naked by the appellant and thereafter the appellant inserted his penis in the vagina of the victim girl. (16) We have already observed that the appropriate questions to ascertain the mental capacity of P.W.2 was not assessed by the learned Court below specially when we find that the victim girl did not reply to many important questions and remained silent. (17) From the evidence of P.W.4 and his report, which is marked as Exhibit-1, we find that P.W.4 noticed mild abrasion on both sides of labia minora without any bleeding. Such injury on the private parts of P.W.2 would be available if an attempt was made to violate her. (18) The evidence of P.W.2 who is a child witness even though indicates that the appellant committed a dastardly act of making an attempt to violate the minor girl but the evidence is not conclusive to establish beyond all reasonable doubt that an offence of rape within the meaning of Section 375 I.P.C. was committed in this case. Penetration is sufficient to constitute the sexual intercourse necessary to commit the offence of rape but the same must be established by the prosecution by leading appropriate evidence. In the present case, all other witnesses who are relations of P.W.2 could state about the occurrence only after hearing from her but so far as the evidence of the victim girl (P.W.2) is concerned, we find that her narration about the occurrence as to commission of offence of rape is not supported by the medical evidence. (19) The victim girl at the time of occurrence was only aged about 31/2 years and on the date of her examination she was aged about 4 years. The victim girl due to her tender age may not have understood the actual commission of the act by the appellant herein and her statement as recorded by the learned Trial Court must be considered and understood in the background of the entire evidence as discussed above. The victim girl due to her tender age may not have understood the actual commission of the act by the appellant herein and her statement as recorded by the learned Trial Court must be considered and understood in the background of the entire evidence as discussed above. (20) We do not rule out that no act was committed by the appellant herein to violate the person of the victim girl. The victim girl herself stated that she was made naked by the appellant and the said appellant also removed his undergarments with a positive intention to commit rape which, however, could not be established conclusively in view of the medical evidence as recorded by the P.W.4. From the evidence of the victim girl coupled with the abrasion mark on her private parts as reflected in Exhibit-1 we are of the view that the appellant herein made an attempt to commit rape upon the victim girl but the evidence as to commission of offence of rape is not conclusive. (21) On consideration of the evidences as discussed above we find the appellant guilty for commission of offence under Section 376(2) (f) read with Section 511 I.P.C. (22) Accordingly, we dispose of the appeal after altering the charge from Section 376 I.P.C. to Sections 376/511 I.P.C. Custodial detention of the appellant for five years rigorous imprisonment along with a fine of Rs. 5,000/-, in default, to suffer simple imprisonment for six months would meet justice in the facts situation of the present case. Therefore, the order of conviction and sentence passed by the learned Trial Court are modified in the manner as mentioned hereinabove. 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.