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2013 DIGILAW 132 (CAL)

Ganesh Mondal v. STATE OF WEST BENGAL

2013-03-05

ASIM KUMAR RAY, NADIRA PATHERYA

body2013
JUDGMENT Nadira Patherya, J. 1. This appeal has been filed against the judgment and order of conviction dated 29th November, 2005 and sentence dated 30th November, 2005 passed in Sessions Case No. 102(2) of 2005. By the said judgment the appellant/convicted person was sentenced to suffer rigorous imprisonment for 10 years under section 376 IPC and was directed to pay fine of Rs. 5,000/- in default he was to suffer simple imprisonment for 3 months. The case of the prosecution was that the appellant had raped the victim girl on 25th May, 1994 at 4.30 PM. The FIR was filed on 26th May, 1994 by the victim's father with the Santipur Police Station. The FIR was registered and investigation initiated in Sessions Case No. 102(2) of 2005. On completion of investigation charge-sheet was submitted against the accused person under section 376 IPC. Charges were framed under the sections mentioned above to which the appellant has pleaded not guilty and sought trial. In course of trial 18 prosecution witnesses were examined and documents exhibited. 2. On a consideration of the evidence and documents exhibited the Additional Sessions Judge, Fast Track Court IV Krishnagar, Nadia found him guilty and passed the impugned order of conviction and sentence. 3. It is against the order of conviction and sentence that this appeal has been filed and counsel for the appellant submits that although the incident of sexual assault occurred on 25.5.1994 at 16.30 hrs. but the FIR was filed after a delay of 19 hours on 26th May, 1994. The victim was examined medically on 7th June, 1994 i.e. after 12 days as will appear from exhibit 5 series. The incident was not reported by the victim to the Investigating Officer therefore, there has been no occurrence of the incident. Doctor Sushil who was the first to examine the victim girl has not been examined. PW 12 has stated in his evidence that the admission ticket and the bed head ticket issued at the time of admission bears his signature but writings on the lower portion of the bed head ticket and writing on another paper does not belong to him. Therefore exhibit 5 series has been manufactured and no reliance ought to be placed thereon. The injury caused to the victim girl was due to forcible contact with the corner of a chowki and this has been accepted by PW 6 (Dr. Therefore exhibit 5 series has been manufactured and no reliance ought to be placed thereon. The injury caused to the victim girl was due to forcible contact with the corner of a chowki and this has been accepted by PW 6 (Dr. Gupta) in his evidence. PW 13 (Dr. Ghosh) has also in his evidence stated the possibility of such injury by forcible contact with the corner of a chowki. Therefore the possibility of the victim girl being injured by forcible contact with the corner of the chowki ought not to be ruled out as per the evidence of PW 6 and PW 13 both of whom are doctors attached to the Gynaecology department of Kalyani JNM Hospital and their evidence ought to be relied on. The victim girl did not state the cause of injury before the Investigating Officer. As there has been delay in filing of the FIR therefore the filing is nothing but an afterthought. The case as made out in the FIR so also the case of the prosecution is marred with falsity and contradictions. The neighbours were not examined. There is no independent witness, in fact the victim girl also did not state anything about the incident before the doctors. The Tant ghar from where the appellant came out is not on the right side of the house of the appellant as stated by the victim girl in her evidence. 4. Therefore in view of the aforesaid the order of conviction be set aside so also the sentence. 5. Opposing the said appeal it has been submitted by counsel for the State that the entire incident was pre-planned by the appellant. PW 2, viz. the victim girl while playing in the house of the appellant was taken to his bed room and the offence committed. No disclosure of the said incident was made by the victim girl due to fear. The explanation given by the appellant in respect of the injury suffered by the victim girl being contact with the corner of the chowki cannot be accepted. PW 6 has stated that blood was coming out from the vagina and the case might be a case of vault tear which may be by forcible contact with any pointed hard substance. 6. PW 10 has also stated in his evidence that he found the victim girl bleeding down her leg. PW 6 has stated that blood was coming out from the vagina and the case might be a case of vault tear which may be by forcible contact with any pointed hard substance. 6. PW 10 has also stated in his evidence that he found the victim girl bleeding down her leg. PW 15 the gynaecologist attached to Kalyani Hospital has categorically stated that huge amount of clots was removed from the injured victim's vagina and such injury was repaired under general anesthesia. Therefore the case under section 376 IPC has been proved by the prosecution and the order of conviction and sentence be upheld. 7. Reliance is placed on the decisions reported in (2004) 1 AI Cr LR (SC) A 733 : (2004) 1 SCC 421 for the proposition that delay in filing FIR cannot be fatal to the prosecution case and that cases of sexual crime against women be dealt with utmost sensitivity. 8. Reliance is placed on the decisions reported in AIR 2006 SC 381 : 1987 Cr LJ 557 : (2004) 3 AI Cr LR (P & H) 958 and (2012) 2 SCC 684 for enhancement of punishment. 9. In reply it has been submitted by counsel for the appellant that the date of arrest of the appellant is 27th May, 1994. 10. Having considered the submissions of the parties the sexual offence was committed by the appellant on 25th May, 1994 on the victim girl aged 10 years. From the evidence of PW 10 (Haren) it will appear that PW 3 (mother) was informed by him. This is corroborated by the evidence of PW 3. On 26th May, 1994 the victim girl with a suspected vault tear was sent to the hospital at Kalyani and in the bed head ticket while recording the case history it was noted that somewhere repair was done. Clots were also removed from the vagina and repaired tear was found at perineum along with other tear. This will be evident from exhibit 5 series. 11. From exhibit 4 it will appear that the admitting officer on 26th May, 1994 provisionally diagnosed vaginal tear and bleeding. The evidence of the doctors being PW 12, PW 13 and PW 15 clearly states that the victim girl was admitted in the hospital with a case history of vaginal tear and bleeding. 11. From exhibit 4 it will appear that the admitting officer on 26th May, 1994 provisionally diagnosed vaginal tear and bleeding. The evidence of the doctors being PW 12, PW 13 and PW 15 clearly states that the victim girl was admitted in the hospital with a case history of vaginal tear and bleeding. PW 15 has categorically stated that the victim girl was examined under general anesthesia and 1 inch length wise tear appeared on the right lateral wall of the vagina which was then repaired. Huge amount of clots were also removed from the vagina and 1 inch tear had been repaired. Such injury could only be caused by forcible intercourse and is rarely caused during playing or forcible contact with a corner of chowki. In the light of the evidence of PW 12, PW 13 and PW 15 the evidence of PW 6 as regards the vault tear by forcible contact with any pointed hard substance or the possibility of injury by forcible contact with corner of a chowki as deposed by PW 13 cannot be accepted. 12. It is true that the incident was not narrated by the victim girl to PW 18 who is the Investigating Officer but it is quite possible that a girl of 10 years would not have understood the full implications of what she had suffered. According to PW 10 the appellant was found standing in the verandah of his house and it is unbelievable that in the event the corner of a chowki had hit the victim girl which caused the bleeding, he would not have taken her to the nearest doctor for treatment or informed of the incident to her parents. Therefore in view of the aforesaid the appeal is dismissed and the order of conviction and sentence affirmed. I agree. Appeal dismissed