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2016 DIGILAW 488 (CAL)

Rajen @ Raju Mondal v. State of West Bengal

2016-06-16

RANJIT KUMAR BAG

body2016
JUDGMENT : RANJIT KUMAR BAG, J. 1. This appeal arises out of judgment and order of conviction and sentence dated May 30, 2014 passed by learned Additional Sessions Judge, 2nd Court, Bankura in Sessions Trial No. 1(7) of 2011 arising out of Sessions Case No. 20(6) of 2011, by which the appellant was sentenced to suffer imprisonment for 7 years and to pay fine of Rs.10,000/- in default to suffer simple imprisonment for 6 months more for the offence punishable under Section 376 of the Indian Penal Code. 2. The backdrop of conviction and sentence of the appellant is as follows:- On February 12, 2011 at about 11 a.m. when the victim Mithu Maji was returning after taking bath in the rivulet of the village, she was dragged by the appellant towards a culvert in spite of protest and resistance by her. The appellant gagged the victim by pouring cloth in her mouth and committed sexual intercourse with her against her will. The victim is a young girl of 17 years old who was studying in the school. The appellant fled away after the incident. The victim returned to home and reported the incident to her mother and her father was absent from home at the relevant point in time. The incident was reported to the police by filing a written complaint of the victim Mithu Maji. Mejia Police Station Case No. 9/2011 dated February 12, 2011 under Section 376 of the Indian Penal Code was registered on the basis of written complaint of Mithu Majhi. The police investigated the said case and submitted charge sheet against the appellant for the offence punishable under Section 376 of the Indian Penal Code. The trial court framed charge against the appellant on the allegation of committing offence punishable under Section 376 of the Indian Penal Code. On consideration of the evidence adduced before the trial court, the appellant was found guilty for committing offence under Section 376 of the Indian Penal Code and he was sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs.10,000/- in default to suffer simple imprisonment for 6 months more. The appellant has challenged the said judgment and order of conviction and sentence passed by the trial court. 3. Mrs. The appellant has challenged the said judgment and order of conviction and sentence passed by the trial court. 3. Mrs. Anusua Sinha, learned counsel appointed as amicus curiae to represent the appellant in this appeal, contends that the victim attained the age of consent for sexual intercourse. By referring to the evidence of the victim girl and the evidence of the doctor who examined the victim, Mrs. Sinha submits that there is glaring inconsistency in the evidence of the above prosecution witnesses with regard to the injuries sustained by the victim at the time of the incident. She has also referred to the opinion of the doctor and submitted that there was no evidence of forceful sexual intercourse of the victim and that the injuries found on the face of the victim might have been self-inflicted. According to Mrs. Sinha, the defence case of implication of the appellant in this criminal case on false allegation as the appellant contracted marriage with another lady after having an affair with the victim, cannot be ruled out due to the above lacunae and inconsistency in the evidence adduced by the prosecution. 4. Mr. S. Dutta, learned counsel for the State has supported the conviction and sentence of the appellant as imposed by the trial court. According to Mr. Dutta, the opinion formed by the doctor who examined the victim are not based on proper findings and as such the said opinion evidence may not be accepted by the court for giving benefit to the appellant. 5. For proper appreciation of the submission made by learned counsel representing the respective parties, it is necessary to make a scrutiny of the evidence adduced before the trial court. The victim Mithu Maji was 17 years old and was studying in Class-X at the time of the incident. The appellant is co-villager of the victim. It is elicited from the evidence of the victim (PW-2) that on February 12, 2011 at about 11 a.m. when she was returning home after taking bath in a rivulet, she was dragged forcefully by the appellant towards a culvert, in spite of protest and resistance from her part. The victim has stated in her evidence that she was gagged by the appellant who committed sexual intercourse with her against her will. The victim has stated in her evidence that she was gagged by the appellant who committed sexual intercourse with her against her will. She has also stated in her evidence that she was threatened by the appellant not to disclose the incident to anyone and thereafter the appellant fled away. The victim returned to home and disclosed the incident to her mother, when her father was absent from home. The incident was reported to the police by filing a written complaint at about 7-45 p.m. The written complaint (exhibit-1) corroborates the oral testimony of the victim (exhibit-2). The victim also gave statement before the learned Magistrate which was recorded under Section 164 of the Code of Criminal Procedure and the said statement is marked (exhibit-2). On perusal of the said statement of the victim recorded under Section 164 of the Code of Criminal Procedure (exhibit-2), I find that the said statement also corroborates oral testimony of the victim (P.W.2) so far as the incident of sexual intercourse against the will of the victim is concerned. The victim stated in her statement under Section 164 of the Code of Criminal Procedure that she would appear in Madhyamik examination in the year when the incident took place, whereas she has stated in her evidence before the court that she passed Madhyamik examination at the time of the incident. This inconsistency in the statement of the victim girl does not lead me to doubt the statement given by her before the court. The cross-examination of the victim (P.W.2) reveals that the place of incident was beneath the culvert by the side of the village road. The cross-examination of P.W.2 also reveals that there are paddy fields on both sides of the village road and the rivulet where the victim took bath is used by the women folk of the village for taking bath from morning till to 3 p.m. However, there is nothing in the evidence to indicate the presence of any person in an around the place of occurrence when the incident took place. In the absence of any evidence about presence of any witness in an around the place of occurrence at the time of the incident, the submission made on behalf of the appellant that the victim did not raise any alarm cannot have any relevance. In the absence of any evidence about presence of any witness in an around the place of occurrence at the time of the incident, the submission made on behalf of the appellant that the victim did not raise any alarm cannot have any relevance. The cross-examination of P.W.2 does not demolish oral evidence of the victim (P.W.2) who has given vivid description of the entire incident of sexual intercourse by the appellant against her will. 6. P.W.3, mother of the victim girl has narrated the incident of sexual intercourse of the victim by the appellant on the date of the incident. The evidence of P.W.3 is relevant and admissible under Section 6 of the Indian Evidence Act. The cross-examination of P.W.3 could not demolish her examination-in-chief and, as such, I would like to give credence to the oral testimony of P.W.3. P.W.4, father of the victim girl heard about the incident of rape of the victim from the victim herself, but he was declared hostile and permitted to be cross-examined by the prosecution. The evidence of P.W.4 does not help the prosecution to prove the incident of rape. P.W.5, P.W.6 and P.W.7- the neighbours of both the appellant and the victim have stated about the incident of rape of the victim by the appellant. These witnesses heard about the incident of rape either from the victim or from the mother of the victim. The victim or the mother of the victim did not specifically disclose in their evidence that they narrated the incident to those witnesses immediately after the incident and as such the evidence of these three witnesses must go down as hearsay evidence. 7. P.W.1, constable of police accompanied the investigating officer of the case to arrest the appellant from his house. The time of arrest of the appellant disclosed by this witness is contradictory with the time of lodging of FIR. However, the above inconsistency is not fatal to the prosecution, as the appellant was arrested in connection with this case. P.W.8, constable of police is the witness to the seizure of wearing apparels of the appellant and the wearing apparels of the victim. The under-garments of the victim having blood stain was not sent to the forensic science laboratory for examination and as such, the seizure of wearing apparels of the victim does not help the prosecution in this case. P.W.10, Dr. The under-garments of the victim having blood stain was not sent to the forensic science laboratory for examination and as such, the seizure of wearing apparels of the victim does not help the prosecution in this case. P.W.10, Dr. Suparna Dutta examined the victim girl two days after the incident and submitted report which is marked exhibit-3/1. This witness has ascertained the age of the victim in between 16 years and 18 years on the date of her medical examination on February 15, 2011. 8. Learned counsel for the appellant has pointed out the inconsistency between the report of medical examination of the victim and the oral testimony of the victim before the court. P.W.2, the victim girl has stated during cross-examination that she sustained injury on the lower portion of her body from waist onwards at the time of the incident. She has also stated in her evidence that there was sand on the surface beneath the culvert where the incident of sexual intercourse took place. The cross-examination of P.W.2 would reveal that she sustained injury on her hands as the hands were pressed by the knee of the appellant at the time of commission of the crime. The doctor (P.W.10) who examined the victim girl two days after the incident, has not stated anything about the injuries sustained by the victim. On perusal of the report of medical examination of victim (exhibit-3/1), it appears that the doctor did not examine the hands of the victim or the lower portion of the body of the victim, but the doctor opined that there was no extra genital injury on the body of the victim except scratch mark of the nail on the cheek and the nose of the victim, which might have been done by self-infliction. It appears from the oral testimony of the doctor (P.W.10) and the report submitted by her that she suggested for second medical examination of the victim as the medical examination of the victim could not be done properly due to her menstruation period. This doctor suggested for second medical examination of the victim due to incomplete examination of the victim by her, but she opined that there was no evidence of recent forceful sexual intercourse on the basis of old rupture of the hymen and libia minorae. The doctor has also opined that the victim girl is habituated to sexual intercourse. This doctor suggested for second medical examination of the victim due to incomplete examination of the victim by her, but she opined that there was no evidence of recent forceful sexual intercourse on the basis of old rupture of the hymen and libia minorae. The doctor has also opined that the victim girl is habituated to sexual intercourse. No cross-examination of the doctor was done by the defence before the trial court. The date given by the doctor at the time of submission of the report is February 15, 2011 which is after three days of the incident. It is quite natural that the old rupture on private parts of the victim might have been healed up within three days which was overlooked by the doctor at the time of giving opinion. What should be the evidence of sexual intercourse is not spelt out by the doctor in her report marked exhibit-3/1. The injuries of nail mark on the face and nose sustained by the victim have been explained by the doctor that the said injuries have been caused by self-infliction without assigning any reason for the same. Since the doctor did not examine the hand and the lower portion of the body of the victim at the time of medical examination, I am inclined to believe the evidence of the victim girl about the injuries sustained by her on the hand and lower portion of the body. Since the doctor suggested for second medical examination of the victim due to incomplete examination for existence of menstruation period of the victim and since the private parts of the victim could not be examined properly by the doctor at the time of medical examination, I am inclined to discard the opinion of the doctor (P.W.10) to the effect that there was no evidence of recent forceful sexual intercourse and that the injuries found on the face and nose of the victim are by way of self-infliction. The second opinion of the doctor by way of medical examination of the victim is marked × for identification and the same has not been admitted into evidence and as such, I am not in a position to consider the said document. The second opinion of the doctor by way of medical examination of the victim is marked × for identification and the same has not been admitted into evidence and as such, I am not in a position to consider the said document. I do not find any cogent reason to disbelieve oral testimony of the victim girl about the commission of the crime of the appellant, particularly when her evidence is supported and corroborated by her statement given before the Magistrate under Section 164 of the Code of Criminal Procedure and from other surrounding circumstances reflected from the evidence of the other prosecution witnesses. 9. The defence version is that the appellant has been implicated in this criminal case on false allegation as the appellant contracted marriage with another lady in spite of having an affair with the victim girl has not been substantiated from the evidence on record. The appellant has not adduced any evidence before the trial court to prove the defence story which was suggested to the prosecution witnesses who have stoutly denied the same. Even the appellant has not given any statement during his examination under Section 313 of the Code of Criminal Procedure. The appellant is not entitled to get any benefit from the inconsistency in the evidence of the prosecution with regard to the injuries sustained by the victim and the opinion given by the doctor as pointed out by me hereinabove. Accordingly, I am not inclined to interfere in the judgment and order of conviction and sentence of the appellant passed by the trial court. 10. As a result, the criminal appeal is dismissed. The judgment and order of dated May 30, 2014 passed by learned Additional Sessions Judge, 2nd Court, Bankura in Sessions Trial No. 1(7) of 2011 is hereby affirmed. 11. Let a copy of the judgment and order along with the LCR be sent down to the learned court below for favour of information and necessary action. 12. Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible after compliance with all necessary formalities.