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2016 DIGILAW 225 (CAL)

Ratan Sarkar v. State of West Bengal

2016-03-01

R.K.BAG

body2016
JUDGMENT : R.K. Bag, J. 1. This appeal is directed against the judgment and order of conviction and sentence passed by Learned Additional Sessions Judge, 4th Court, Krishnanagar, Nadia in Sessions Trial No.17(6) of 2011 arising out of Sessions Case No.23(12) of 2010, by which the appellant was sentenced to undergo imprisonment for seven years and to pay fine of Rs.10,000/- in default to suffer imprisonment for one year more for the offence under Section 376 of the Indian Penal Code. 2. The backdrop of the conviction and sentence of the appellant is as follows:- On June 18, 2010 the de facto complainant Chittaranjan Mondal filed a written complaint before the Officer-in-charge of Dhubulia Police Station disclosing the fact that the appellant had committed sexual intercourse with his minor daughter aged about 14 years without her consent for about one month. The appellant is married but his wife left him due to torture inflicted on her. However, Dhubulia Police Station Case No.213 of 2010 dated June 18, 2010 under Section 376 of the Indian Penal Code was started on the basis of the written complaint of the de facto complainant. The police investigated the criminal case and submitted chargesheet against the appellant for the offence under Section 376 of the Indian Penal Code. 3. Learned Additional Sessions Judge framed charge against the appellant for the offence under Section 376 of the Indian Penal Code. On conclusion of trial the appellant was found to be guilty and was sentenced to imprisonment for seven years and also fine for the offence under Section 376 of the Indian Penal Code. The appellant preferred appeal before the High Court and the said criminal appeal being CRA No.364 of 2012 was heard by Learned Single Judge of this Court. On February 7, 2009 Learned Single Judge of this Court disposed of CRA No.364 of 2012 by sending back the case on remand to the trial court with direction to take further evidence about the age of the victim girl and to admit the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure and to dispose of the case within a period of three months from the date of receipt of the order. Accordingly, Learned Judge of the trial court examined three witnesses in connection with the proof of document of age of the victim and one witness for proving the statement of the victim recorded under Section 164 of the Code of Criminal Procedure and examined the appellant afresh under Section 313 of the Code of Criminal Procedure and delivered the judgment by holding the appellant guilty for commission of the offence under Section 376 of the Indian Penal Code and imposed sentence of imprisonment for seven years and fine, in default to suffer imprisonment for one year more. The said judgment and order of conviction and sentence passed by Learned Additional Sessions Judge, 4th Court, Nadia is under challenge in the instant appeal. 4. Mr. Mahammad Mahmud, Learned Counsel for the appellant contends that there is discrepancy in the evidence of the prosecution witnesses with regard to the age of the victim girl who is a consenting party to the sexual intercourse. According to Learned Counsel for the appellant, the prosecution has failed to establish the charge against the appellant and as such the appellant is liable to be acquitted of the charge. 5. Mr. Ayan Basu, Learned Counsel for the State has pointed out from the evidence adduced before the trial court after remand that the victim girl was born on September 6, 1996 and as such she was only 14 years old at the time of sexual intercourse with the appellant. According to Mr. Basu, the prosecution has been able to prove by oral and documentary evidence that the victim girl was 14 years of age at the time of her sexual intercourse with the appellant and as such the appellant is guilty of the charge under Section 376 of the Indian Penal Code, irrespective of whether the victim girl gave consent for such sexual intercourse. 6. One Chittaranjan Mondal (PW4) who happens to be the father of the victim girl filed the written complaint treated as FIR (Exhibit-1). The contents of written complaint treated as FIR disclose that the appellant has committed sexual intercourse with the victim girl aged about 14 years for about one month and threatened the victim girl with dire consequence for not disclosing the same to anyone. The contents of written complaint treated as FIR disclose that the appellant has committed sexual intercourse with the victim girl aged about 14 years for about one month and threatened the victim girl with dire consequence for not disclosing the same to anyone. The victim girl (PW8) has stated in evidence that one day in the evening while she was walking near her house, the appellant caught hold of her, dragged her to a nearby house and committed sexual intercourse under threat. The victim girl (PW8) has also stated in her statement under Section 164 of the Code of Criminal Procedure how the appellant committed sexual intercourse under threat and continued to do so under threat until the same was detected by some co-villagers. Nothing is on record to disbelieve the evidence of the victim girl (PW8) who has given consistent statement in the court during trial and before Learned Magistrate under Section 164 of the Code of Criminal Procedure during investigation. Dr. Chanchal Sarkar (PW9) examined the victim girl and has opined that her hymen is absent and two fingers are admitted in the vagina. The result of clinical examination of the victim girl nadrrated by PW9 indicates that the victim girl had sexual intercourse. Dr. Kajal Mondal (PW11) who examined the appellant, has stated in evidence that the appellant is potent and capable of doing sexual intercourse. On an analysis of the evidence of the victim girl (PW8), her father (PW4), Dr. Chanchal Sarkar (PW9) and Dr. Kajal Mondal (PW11), I am of the opinion that the appellant committed sexual intercourse with the victim for a few months before reporting the incident to the police by her father. 7. I would like to discuss other evidence on record before discussing the evidence with regard to the age of the victim. PW1 (Maharaj Mondal) has not stated anything about the incident. PW2 (Biren Mondal) heard about the incident of rape from members of his family and as such his evidence must go down as hearsay evidence. PW3 (Mira Mondal) also heard about the incident from the victim, but the victim has not stated in her evidcence that she disclosed the incident of rape to PW3, and as such the evidence of PW3 will go down as hearsay evidence. PW5 (Abhijit Mondal) is the scribe of the written complaint which is admitted into evidence as Exhibit-1. PW3 (Mira Mondal) also heard about the incident from the victim, but the victim has not stated in her evidcence that she disclosed the incident of rape to PW3, and as such the evidence of PW3 will go down as hearsay evidence. PW5 (Abhijit Mondal) is the scribe of the written complaint which is admitted into evidence as Exhibit-1. This witness has not stated anything about the incident of rape. PW6 (Tejendra Kumar Ghosh) has not stated anything about the incident and this witness is declared hostile and as such the evidence is not taken into consideration by this court. PW7 (Monoranjan Mondal) also does not know anything about the incident of rape of the victim. This witness was also declared hostile and as such his evidence is not taken into consideration by this court. PW10 (Sub-Inspector Ashoke Kumar Mondal) had drawn up the formal FIR after receiving the written complaint and he has no knowledge about the incident. PW12 (Sub-Inspector Gobinda Chandra Banerjee) investigated the case and submitted chargesheet against the appellant. The above evidence adduced by the prosecution does not help the prosecution to establish the charge against the appellant. 8. Now, I would like to decide whether the victim girl is a consenting party to sexual intercourse as contended on behalf of the appellant. The definition of rape under Section 375 of the Indian Penal Code (before amendment with effect from 03.02.2013) indicates that a man is said to commit rape if he has sexual intercourse with a woman with or without her consent, when she is under 16 years of age. Let us now consider the evidence adduced before the trial court after remand to decide whether the victim girl was below 16 years of age on the date of her sexual intercourse with the appellant. The victim girl has stated in her statement under Section 164 of the Code of Criminal Procedure that she was 14 years old at the time of commission of the offence by the appellant. Smt. Sumana Ghosh (CW1) who happens to be the Headmistress of Dhubulia Subhas Chandra Balika Vidyalaya, has proved the entries made in the Admission Register of the said school in connection with admission of the victim Shilpa Mondal. The date of birth of the victim Shilpa Mondal is recorded as September 6, 1996 in the Admission Register of the said school. The date of birth of the victim Shilpa Mondal is recorded as September 6, 1996 in the Admission Register of the said school. The cross-examination of this witness reveals that the date of birth of the victim Shilpa Mondal was recorded in the Admission Register of the said school on the basis of School Leaving Certificate of the primary school. Mrs. Subhra Sarkar (CW2) who happens to be the Headmistress of Ashutosh Ghosh Smriti Vidyapith, has proved the relevant entry in the Admission Register of the said primary school in respect of date of birth of the victim Shilpa Mondal. The date of birth of the victim Shilpa Mondal is recorded in the Admission Register of the said primary school as September 6, 1996. This witness has stated that the date of birth was recorded in the Admission Register of the said primary school on the basis of the birth certificate issued by the hospital. One Buddhadeb (CW3) who happens to be the Registrar of Birth and Death of Krishnanagar Municipality, has proved the relevant entry in the Birth and Death Register in connection with date of birth of the victim Shilpa Mondal. It appears that the date of birth of the victim Shilpa Mondal is recorded as September 6, 1996 in the relevant column of Birth and Death Register maintained in Krishnanagar Municipality. This witness has stated that the date of birth in the register of birth and death is recorded on the basis of birth certificate issued by the hospital. One Jagojyoti Bhattacharjee (CW4), who happens to be the Judicial Magistrate has proved the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure. It has, thus, been established from the relevant entries made in the Admission Register of two schools and the Register of Birth and Death maintained by Krishnanagar Municipality and from the oral evidence of CW1, CW2 and CW3 that the victim Shilpa Mondal was born on September 6, 1996. There is no inconsistency in the evidence adduced by the prosecution with regard to the date of birth of the victim Shilpa Mondal which is found to be September 6, 1996. One mathamatical calculation I find that the victim Shilpa Mondal was about 14 years of age when the appellant had committed sexual intercourse with the victim. There is no inconsistency in the evidence adduced by the prosecution with regard to the date of birth of the victim Shilpa Mondal which is found to be September 6, 1996. One mathamatical calculation I find that the victim Shilpa Mondal was about 14 years of age when the appellant had committed sexual intercourse with the victim. In the instant case, the consent of the victim girl is immaterial as the victim girl has not reached the age of giving consent which is 16 years under the old provision of Section 375 of the Indian Penal Code. I have already observed that the consistent statement given by the victim before the court and before the Learned Magistrate under Section 164 of the Code of Criminal Procedure indicates how the appellant committed sexual intercourse with her under threat. On an analysis of the entire evidence on record, I have no hesitation to hold that the trial court is justified in holding the appellant guilty of the charge under Section 376 of the Indian Penal Code. No reasons are forthcoming for showing any leniency to the appellant in reducing the sentence imposed by the trial court, as the appellant has committed sexual intercourse with a minor girl aged about 14 years. 9. As a result, the appeal is dismissed. The judgment and order of conviction and sentence passed by Learned Additional Sessions Judge, 4th Court, Nadia in Sessions Trial No.17(6) of 2011 arising out of Sessions Case No.23(12) 2010 is hereby affirmed. Let a copy of this judgment and order be sent down to the Learned Court below along with Lower Court Record for favour of information and necessary action.