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2018 DIGILAW 906 (CAL)

Bibhuti Bhusan Roy v. State of West Bengal

2018-12-10

JOYMALYA BAGCHI, MADHUMATI MITRA

body2018
JUDGMENT : Madhumati Mitra, J. The appeal is presented by the convicted accused/appellant against the judgment dated 17.05.2013 and sentence dated 18.05.2013 passed by Learned Sessions Judge, Malda in Sessions Trial No.02 of 2013, arising out of Sessions Case No. 123 of 2013 convicting the present appellant for committing the offences under Section 376(2)(f), 376(2)(f)/511 and 506 of the Indian Penal Code (hereinafter referred to as I.P.C.) and under Sections 4,6,8,12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act) and sentencing him to suffer imprisonment for life and to pay fine of Rs.5,000/- (Rupees Five Thousand) for committing the offence under Section 376(2)(f) of the I.P.C and seven years rigorous imprisonment and to pay a fine of Rs.2,000/- (Rupees Two Thousand) for committing the offence under Section 376(2)(f)/511 of I.P.C. and imprisonment for six months for committing the offence under Section 506 I.P.C. The appellant has also been sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.5000/- for committing the offence under Section 4 of the POCSO Act, 2012 and he has been further sentenced to suffer imprisonment for life and to pay fine of Rs.5000/- for commission of the offence under Section 6 of the POCSO Act, 2012. He has further been sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.2000/- for committing the offence under Section 8 of the POCSO Act, 2012 and to suffer rigorous imprisonment for five years and to pay a fine of Rs.2000/- for committing the offence under Section 12 of the POCSO Act, 2012. 2. The case of the prosecution in brief is that the minor daughter of the informant (P.W.No.2) aged about 9/10 years was alone in their house at about 4:00 p.m. on 02.04.2013. The appellant/accused came to their house and committed rape on the minor victim girl of the informant by force. Victim girl did not disclose the incident of rape to anybody as she was threatened to be killed by the appellant/accused. Again on 23.04.2013 at about 5:00 p.m. the victim girl was alone in her house, the appellant came to the house of the informant and attempted to commit rape on the victim girl by force and disrobed her. Victim girl did not disclose the incident of rape to anybody as she was threatened to be killed by the appellant/accused. Again on 23.04.2013 at about 5:00 p.m. the victim girl was alone in her house, the appellant came to the house of the informant and attempted to commit rape on the victim girl by force and disrobed her. At that moment informant came back to her residence and found appellant was trying to commit rape on her daughter and seeing the incident the informant raised alarm, then the appellant/accused left the victim girl and fled away. After sometimes, the accused/appellant and his son Bikash Roy came to the house of the informant and threatened them. 3. Pw.No.2(Informant) lodged an F.I.R. with Bamongola, P.S. on 24.04.2013 at about 19:15 hours. On the basis of said F.I.R., Bamongola, P.S.Case No.65 of 2013 dated 24.04.2013 was started against accused/appellant and his son Bikash Roy for commission of alleged offences punishable under Sections 376 (2)(f)/109 I.P.C and under Section 4,6,8 and 12 of the Protection of Children from Sexual Offences Act, 2012. After completion of investigation charge sheet was submitted against appellant/accused and his son. 4. The case was committed to the Court of Sessions by learned Chief Judicial Magistrate, Malda. Learned Sessions Judge, Malda framed charge against accused/appellant for commission of alleged offences punishable under Sections 376(2)(f), 376(2)(f)/511/506 I.P.C. and under Sections 4, 6, 8, 12 of the POCSO Act, 2012. Learned Sessions Judge framed charge against accused Bikash Roy for commission of the offences punishable under Sections 376/511/109/506 of the I.P.C. 5. Both the accused pleaded innocence and claimed to be tried. 6. Defence case as it appears from the trend of cross-examination of prosecution witnesses and the examination of the accused persons under Section 313 Cr.P.C is that the informant (P.W.No.2) took a loan of Rs.5,000/- from the appellant/accused and when the appellant/accused demanded the said amount of Rs.5,000/- from the informant then the informant falsely implicated them in order to avoid payment of money. 7. Learned Trial Judge upon evaluation of the materials on record convicted the accused/appellant for committing the offences punishable under Sections 376(2)(f), 376(2)(f)/511/506 of the I.P.C and under Sections 4,6,8,12 of the POCSO Act, 2012 and sentenced him to suffer life imprisonment and to pay fine. Accused Bikash Roy was acquitted by the learned Trial Judge. 7. Learned Trial Judge upon evaluation of the materials on record convicted the accused/appellant for committing the offences punishable under Sections 376(2)(f), 376(2)(f)/511/506 of the I.P.C and under Sections 4,6,8,12 of the POCSO Act, 2012 and sentenced him to suffer life imprisonment and to pay fine. Accused Bikash Roy was acquitted by the learned Trial Judge. Accused/appellant has preferred the present appeal against the said and order of conviction and sought for acquittal. 8. When the appeal was called on for hearing on 22.11.2018 nobody was present for the appellant. 9. Mr. Partha Pratim Das who was requested to appear as amicus curiae has made his submissions regarding the merit of the present appeal. 10. Impugned judgment and order of conviction have been assailed on the grounds that learned Sessions Judge had failed to appreciate the evidence of the prosecution witnesses in its true perspectives. In support of his contention he has placed his reliance on the cross-examination of Doctor i.e. P.W.No.8 and submitted that the Doctor who had examined the victim girl opined that hymen of a girl of 9 to 10 years could get torn and slightly parted for several other reasons and learned Sessions Judge in fact did not consider that aspect at the time of arriving at his conclusion. His further contention is that learned Trial Judge had committed an error both in law and fact in not taking into consideration the defence case. He has further contended that learned Trial Judge overlooked the contradictions between the evidence of prosecution witnesses particularly P.W.No.5 and 9 which go to the very root of the prosecution case and makes the same doubtful. His further submission is that P.W.No.4 Sudhangshu Das and P.W.No.5 Bablu Mondal did not corroborate the prosecution case. According to his contention the P.W.No.s 4 & 5 deposed that they had found accused/appellant to flee away from the house of defacto complainant and that evidence was not sufficient to draw conclusion that the appellant committed rape on victim girl. 11. On the other hand learned Counsel appearing for the State has submitted that the accused/appellant committed the crime of rape on a girl aged about only 9/10 years when she was alone in her house. Testimony of the victim girl herself, her mother and medical evidence go to show that victim girl was subjected to rape. 11. On the other hand learned Counsel appearing for the State has submitted that the accused/appellant committed the crime of rape on a girl aged about only 9/10 years when she was alone in her house. Testimony of the victim girl herself, her mother and medical evidence go to show that victim girl was subjected to rape. The defence had not led any evidence to show that appellant/accused was falsely implicated. He has stated that the guilt of the appellant/accused was established by the prosecution beyond reasonable doubt. 12. Before I note and appreciate rival contentions, it will be better to see the impugned and order of conviction along with the facts and circumstances of the case and the evidence on record. 13. P.W.No.2, the mother of the victim girl who lodged the F.I.R, in her examination in chief stated that on 23.04.2013 she was coming back from the market and at that time she had noticed that accused Bibhuti Bhusan Roy disrobed her daughter and tried to commit sexual assault on her. When she entered her house Bibhuti Bhusan Roy fled away. From her deposition it came out that on being asked, her daughter told her that on 02.04.2013 accused/appellant had sexually assaulted her daughter and her daughter sustained severe pain. P.W.No.2 further deposed that after a while on that date both the accused persons had come to their residence and threatened them with dire consequences. During her examination in chief the said P.W.2 further deposed that she had told the incident to her brother Ananda Majumder and her neighbours namely Sudhangshu and Bablu. The said Ananda Majumder, Sudhangshu Das and Bablu Mondal were examined by the prosecution as P.W.No.s.3, 4 and 5 respectively. From her deposition it appears that on the next day she lodged F.I.R. with the Police Station and one Dilip Babu wrote the said F.I.R. P.W.No.6 is Dilip Barman. He corroborated the evidence of P.W.No.2 regarding writing of the F.I.R. by him as per the dictation of P.W.No.2. Exhibit No.5 is the said F.I.R lodged by P.W.No.2 before the Police Station against the accused/appellant making allegation of rape, and attempt to commit rape on her daughter on 02.04.2013 and 23.04.2013 respectively. He corroborated the evidence of P.W.No.2 regarding writing of the F.I.R. by him as per the dictation of P.W.No.2. Exhibit No.5 is the said F.I.R lodged by P.W.No.2 before the Police Station against the accused/appellant making allegation of rape, and attempt to commit rape on her daughter on 02.04.2013 and 23.04.2013 respectively. P.W.No.9, the then O.C. Bamongola Police specifically deposed that on that date i.e. on 24.04.2013, he had received one written complaint from one Furfuri Goyla i.e P.W.No.2 and registered a case being Bamongola P.S.Case No.65 of 2013. Exhibit-5/1 is the endorsement made by P.W.9 in this regard. 14. The F.I.R. lodged by P.W.No.2 disclosed the occurrence of two separate incidents on two different dates. One incident took place on 02.04.2013 and another took place on 23.04.2013. The mother of the victim girl was an eye witness regarding the incident dated 23.04.2013. So far first incident dated 02.04.2013 is concerned, P.W.No.2 had not seen that incident but she had been informed by her daughter who was the victim of the incident. P.W.No.2 in her F.I.R. as well as in her deposition before the Court specifically stated that she had been told by her daughter that the latter was subjected to sexual assault by the accused/appellant and she had sustained severe pain. 15. P.W.No.1 is the victim girl. Before recording her evidence the learned Trial Court ascertained her capability for giving rational answers as at that time she was aged about 10 years. On being satisfied, the learned Trial Court recorded her evidence. Regarding the first incident dated 02.04.2013 she deposed that on the date of the alleged incident she was alone in her residence and accused/appellant came to their house and disrobed her and he undressed himself and began to rub his penis over her vagina. From the deposition of P.W.No.2, it appears that at the time of the commission of the alleged incident something was attached to the penis of the accused/appellant. The victim girl also deposed that she sustained severe pain for such act of the accused. From her deposition it also came out that she could not disclose the incident as she was threatened with dire consequences by the accused/appellant. The victim girl also deposed that she sustained severe pain for such act of the accused. From her deposition it also came out that she could not disclose the incident as she was threatened with dire consequences by the accused/appellant. Regarding second incident dated 23.04.2013, P.W.No.1 deposed that in the evening when her mother and sister went to the market and she was alone in her residence accused/appellant tried to do the same thing which he had done on 02.04.2013 and in the mean time her mother came back and then the accused fled away. P.W.No.1 stated that she narrated the entire incident including the incident dated 02.04.2013 to her mother. In her deposition before the Court the victim girl gave a vivid description of both the incidents. The statements of the victim girl and her mother were recorded under Section 164 Cr.P.C. immediately on the next date of lodging of F.I.R. Those statements are consistent with their depositions before the Court. P.W.No.3 who is the brother of P.W.No.2 and maternal uncle of P.W.No.1 (victim girl) deposed he had heard about the incident from his sister (P.W.No.2). P.W.No.4 Sudhangshu Das and P.W.5 Bablu Mondal, deposed that on the date of the incident they found the accused/appellant was coming out from the residence of the de facto complainant and they were told by P.W.No.2 that accused/appellant committed rape on her daughter. 16. P.W.No.7, the Medical Officer of Malda District Hospital examined accused/appellant on 26.04.2013 and found that he was capable of performing sexual act. Exhibit-6 is the said Medical examination report of accused/appellant prepared by P.W.No.7. 17. P.W.No.8 is another Medical Officer who examined the victim girl. From his deposition it appears that he examined the victim girl on 25.04.2013 and at relevant point of time the victim girl was aged about 9 to 10 years. Exhibit no.2/1 is the Medical Examination report of the victim girl. On examination he found that the hymen of the victim girl was torn and slightly parted. During cross-examination a specific suggestion was given to the Doctor that hymen of a girl might be torn and slightly parted for many reasons. This type of suggestion is very common in rape cases. On examination he found that the hymen of the victim girl was torn and slightly parted. During cross-examination a specific suggestion was given to the Doctor that hymen of a girl might be torn and slightly parted for many reasons. This type of suggestion is very common in rape cases. In a criminal trial where no enmity between the parties is established by cogent and reliable evidence, then the question which arises in the mind of the Court is why the accused would be falsely implicated by the victim? In the instant case the defence had tried to establish that the mother of the victim girl (P.W.2) had taken a loan of Rs.5,000/- from the appellant/accused and when the appellant/accused demanded that amount then he was falsely implicated. Specific suggestions were given to prosecution witnesses during their cross-examinations in this regard, but those suggestions were denied by the witnesses. Mere suggestion in cross-examination unsupported by defence evidence has no evidentiary value. 18. It has been submitted that there are contradictions and discrepancies in the evidence P.W.No.3, 5 and 9 and as such no reliance should be given to their evidence and the same should be discarded. It is true that there are minor discrepancies in their evidence. From the evidence of P.W.No.s 3,5 and 9 it appears that their statements before the Police and their evidence on oath before the Court are not so inconsistent with each other as to be discarded & disbelieved. The entire evidence adduced by the prosecution goes to show that there is consistency in the evidence adduced by the prosecution regarding commission of alleged offences on 02.04.2013 and 23.04.2013. Moreover, the evidence of prosecution witnesses require to be read as a whole and their veracity are to be considered in the totality of the circumstances of the case. While appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the root of the prosecution case, should not be taken into consideration as they do not form grounds to reject the evidence as a whole. While appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the root of the prosecution case, should not be taken into consideration as they do not form grounds to reject the evidence as a whole. The discrepancies in the evidence of prosecution witnesses as pointed out by learned amicus curiae are minor in nature which do not go to the root of the matter and shake the basic version of the witnesses and as such I am of the view that undue importance should not be given to the minor discrepancies as they are not fatal to the prosecution case specially when the statement of the victim girl is corroborated by injuries on her private part. 19. From the materials on record it appears that during investigation the original birth certificate of the victim girl was seized by the I.O. on the basis of a seizure list. The Exhibit no.4, is original birth certificate of the victim girl. From the said birth certificate it appears that the victim was born on 02.12.2003. The alleged incidents occurred on 02.04.2013 and 23.04.2013. That means at the relevant point of time the victim girl was under 12 years of age. Delay in lodging the FIR regarding the first incident of rape on 02.04.2013 has been properly explained by the prosecution witnesses as the victim girl was under threat to be killed by the accused/appellant. At the time of commission of second incident her mother fortunately arrived at the place of occurrence and she herself saw the incident. Thereafter the victim girl got the courage to disclose the previous incident to her mother. On the very next date, the mother of the victim reported the entire matters to the police. 20. The entire materials on record prompts me to hold that the victim girl aged about 9/10 years was sexually assaulted by the accused/appellant in her residence on 02.04.2013 and she sustained injury in her private part. The medical evidence corroborated the said injury of the victim girl. The prosecution has also succeeded in proving the second incident of attempt to commit rape on the victim girl by the accused/appellant on 23.04.2013 when the victim girl was alone in her residence but appellant/accused could not commit rape due to sudden arrival of the mother of the victim girl. The prosecution has also succeeded in proving the second incident of attempt to commit rape on the victim girl by the accused/appellant on 23.04.2013 when the victim girl was alone in her residence but appellant/accused could not commit rape due to sudden arrival of the mother of the victim girl. The learned Trial Judge rightly came to his conclusion, that the accused/appellant was guilty for commission of the offences in respect of which he (Accused/Appellant) had faced trial. I do not find any reason to interfere with the conclusion arrived at by the learned Trial Judge regarding the guilt of the accused/appellant in respect of the offences for which he had faced trial. 21. Learned Trial Judge sentenced the accused/appellant for commission of offences under different Sections of Indian Penal Code and under POCSO Act, 2012. In this regard it may be mentioned that the acts of the accused as proved by the prosecution come within the purview of offences under Indian Penal Code as well as POCSO Act. In this connection it would not be out of place to mention Section 42 of the POCSO Act. Here the offender i.e. accused/appellant has been found guilty for an offence under Section 376(2)(f) of the Indian Penal Code as well as under Section 6 of the POCSO Act along with other Sections of the Indian Penal Code and POCSO Act. Section 42 of the POCSO Act provides that the offender who is found guilty of any of the offences under Indian Penal Code as mentioned in Section 42 of POCSO Act shall be liable to punishment under this Act (POCSO Act) or under the Indian Penal Code as provides for punishment which is greater in degree. Section 6 of the POCSO Act prescribes punishment for aggravated penetrative sexual assault and this section prescribes minimum punishment for such offence not less than 10 years rigorous imprisonment which may extend to life imprisonment and liable to pay fine. On the other-hand, Section 376(2)(f) of the I.P.C. provides punishment for rigorous imprisonment for a term which shall not be less than 10 years and which may extend to imprisonment for life and also liable to fine. The minimum punishment under Section 376(2)(f) of the Indian Penal Code and under Section 6 of the POCSO Act is not less than 10 years of rigorous imprisonment, which may extend to life. The minimum punishment under Section 376(2)(f) of the Indian Penal Code and under Section 6 of the POCSO Act is not less than 10 years of rigorous imprisonment, which may extend to life. The only exception is that in Section 376(2)(f) I.P.C in exceptional cases, for special and adequate reasons sentence of less than 10 years rigorous imprisonment may be awarded. In the instant case the accused/appellant has been awarded life imprisonment for commission of offences under the above mentioned two sections. In view of the provision of Section 6 read with Section 42 of POCSO Act the question of awarding less than ten years rigorous punishment does not arise. Though the award of maximum punishment may depend on the facts and circumstances of the case, the award of the minimum punishment, generally is imperative. From Section 376(2)(f) I.P.C., Section 6 of the POCSO Act read with Section 42 of the POCSO Act it is clear that the minimum sentence of rigorous punishment of 10 years has been provided and considering the attendant circumstances the imprisonment for life in a given case is permissible. In the instant case no such factor to award maximum sentence has been indicated by the learned Trial Court. Having regard to the facts and circumstances, I am of the view that rigorous imprisonment for ten years and to pay fine of Rs.5,000/- will sufficiently meet the interest of justice. Accordingly I reduce the sentence of life imprisonment to ten years rigorous imprisonment and to pay a fine of Rs.5,000/- for commission of the offence punishable under Section 376(2)(f) I.P.C. and under Section 6 of the POCSO Act. 22. In the instant case appellant/accused has been awarded separate sentences under Sections 4 and 6 of the POCSO Act. Section 4 of the said Act prescribes punishment for penetrative sexual assault whereas Section 6 provides punishment for aggravated penetrative sexual assault. When the accused has been convicted for major offence I think there is no need to award separate sentence under Section 4 of the POCSO Act. 23. All sentences will run concurrently. With the modification of sentences as indicated above the appeal is disposed of. The period of detention of the accused in jail custody in connection with this case be set off under Section 428 of the Code of Criminal Procedure. 24. The assistance rendered by Mr. 23. All sentences will run concurrently. With the modification of sentences as indicated above the appeal is disposed of. The period of detention of the accused in jail custody in connection with this case be set off under Section 428 of the Code of Criminal Procedure. 24. The assistance rendered by Mr. Partha Pratim Das along with Ms.Amita Gaur as amicus curiae in disposing of the present appeal deserves appreciation. 25. Let a copy of the judgment along with the LCR be sent down to the Trial Court at once. 26. Urgent photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities. Joymalya Bagchi, J. - I agree.