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2019 DIGILAW 310 (CAL)

Mohan Thapa v. State of West Bengal

2019-03-05

JOYMALYA BAGCHI, MANOJIT MANDAL

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JUDGMENT : Joymalya Bagchi, J. 1. The appeal is directed against the judgment and order dated 09.10.2013 & 10.10.2013 passed by the learned Additional Sessions Judge Special, 1st Court, Darjeeling in Sessions Case No.36/2011 convicting the appellant for commission of offence punishable under Sections 376 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.50,000/- in default to suffer imprisonment for a further period of two years. 2. Prosecution case as alleged against the appellant is to the effect that the victim, who was aged around 15 years at the time of occurrence was in the custody of the appellant and her maternal grandmother. The appellant, being the second husband of her grandmother, took advantage of his fiduciary control over the minor victim and ravished her between September, 2008 till May, 2011. As a result she became pregnant. When her pregnancy was detected, she divulged the incident to her father (P.W.1), who lodged F.I.R. being Darjeeling Sadar Case No.47/11 dated 06.05.2011 under Section 376 of the Indian Penal Code. Victim was medically examined and her statement was recorded under Section 164 Cr.P.C. In conclusion of investigation, charge sheet was filed in the instant case under Sections 376 of the Indian Penal Code against the appellant. 3. The case was committed to the court of sessions and transferred to the court of learned Additional Sessions Judge Special, 1st Court, Darjeeling for trial and disposal. 4. Charge was framed under sections 376 IPC. The appellant pleaded not guilty and claimed to be tried. 5. In the course of trial, the prosecution examined 16 witnesses to establish its case and exhibited a number of documents. 6. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial court by the impugned judgment and order dated 09.10.2013 & 10.10.2013 convicted and sentenced the appellant, as aforesaid. 7. As the appeal has been filed from jail, we requested Mr. Sabir Ahmed, learned lawyer empanelled with the State Legal Services Authority to appear on behalf of the appellant. 8. Secretary, State Legal Services Authority is requested to regularize his appointment. 9. Mr. Ahmed, appearing for the appellant argued that evidence of the victim (P.W.9) suffered from various contradictions. He argued that the grandmother of the victim and the doctor who examined her had not been examined as a witness. 8. Secretary, State Legal Services Authority is requested to regularize his appointment. 9. Mr. Ahmed, appearing for the appellant argued that evidence of the victim (P.W.9) suffered from various contradictions. He argued that the grandmother of the victim and the doctor who examined her had not been examined as a witness. There is considerable delay in lodging the first information report and it is highly improbable that the victim would keep quiet in spite of sexual assault upon her and not revealed the incident to her parents and her grandmother. Accordingly, the appellant is liable to be acquitted. 10. Learned Public Prosecutor along with Mr. Das, learned counsel argued that the victim (P.W.9) was a minor child who was in the control and custody of the appellant, her grandfather by relation, at the time of occurrence. In view of all pervasive control of the appellant over victim, a minor girl, she was unable to raise protest and kept quiet until her pregnancy was discovered by her father, P.W.1. P.W.6 examined the victim and found that she was pregnant which corroborated her allegation of rape by the appellant. Evidence of the school teachers, that is, the independent witnesses corroborated the version of the victim of brutal sexual assault by the appellant. Hence, the appeal is liable to be dismissed. 11. P.W.9 is the victim and the most vital witness in the instant case. She deposed that she was studying in Class IX at St. Philomina Girls' Higher Secondary School, Kalimpong. She is 14 years' old and the appellant is her step grandfather. Since her childhood she was residing with the appellant and her grandmother at Singmari, Ropeway as her parents had separated. In the absence of her grandmother, the appellant used to touch in different parts of the body and wanted to have sexual intercourse with her. He threatened her with dire consequences. Out of fear she kept quiet. In September/October, 2010 her grandmother had gone to attend a political procession, when the appellant committed rape on her for the first time. He threatened her with dire consequences. Thereafter, the appellant had raped her on a number of times. In the month of January, 2011 her grandmother took her to a doctor who gave some medicine. She again developed stomach ache and her school teachers enquired about it. Then she disclosed everything to her teachers. He threatened her with dire consequences. Thereafter, the appellant had raped her on a number of times. In the month of January, 2011 her grandmother took her to a doctor who gave some medicine. She again developed stomach ache and her school teachers enquired about it. Then she disclosed everything to her teachers. She stayed in the hostel between 4th May, 2011 to 10th May, 2011 and was subsequently sent to Sishu Bhawan, Darjeeling. She delivered a child at Darjeeling Sadar Hospital. Her statement was recorded before the learned Magistrate under Section 164 Cr.P.C. 12. P.W.1 is the father of the victim. He deposed that her daughter was residing with the appellant and her maternal grandmother. The appellant had committed rape on her daughter and she became pregnant. He lodged written complaint which was scribed by one Santosh Roy (P.W.2). He proved his signature on the written complainant. 13. P.Ws. 10 to 13 are the teachers attached to the School where the victim studied. 14. P.W.10 deposed that the victim made a complaint with regard to her stomach pain. 15. P.W.12 deposed that the victim was a student of class VII in the year 2011. She was her class teacher. Victim was regularly absent herself from the school that year. When she made enquiries, victim told her that she was sick. Then she noticed some changes in her body. Again on enquiry, the victim initially told her she had a tumor in her stomach and had to be operated but on further enquiries by herself and Sister Colette (P.W.11), she admitted that she was pregnant and her grandfather was responsible for the act. Thereafter she reported the matter to the Head Mistress (P.W.10). Sister Edel Rai (P.W.10), the headmistress and Sister Colette Molomo (P.W.11) have corroborated P.W. 12. 16. P.W.S 2, 3 & 4 are local people who corroborated the version of the victim (P.W.9). P.W.3 further stated that the appellant had admitted his guilt before him and thereafter they had called the police. 17. P.W.6 was a gynecologist attached to District Hospital. On 9.5.2011 he examined the victim and found that she was carrying for 36 weeks. She proved his report. 18. P.W.15, a nurse attached to District Hospital, Darjeeling deposed that Sister Colette called her to the school and requested her to examine the victim. She examined the victim and found that she was pregnant. 19. On 9.5.2011 he examined the victim and found that she was carrying for 36 weeks. She proved his report. 18. P.W.15, a nurse attached to District Hospital, Darjeeling deposed that Sister Colette called her to the school and requested her to examine the victim. She examined the victim and found that she was pregnant. 19. P.W.13 is a police officer attached to Darjeeling P.S. He received the written complainant from P.W.1 and drew up the formal F.I.R. 20. P.W.14 is the investigating officer in the instant case. He went to the place of occurrence and prepared rough sketch map. He examined the witnesses and recorded their statements. He arrested the appellant. He sent the victim girl to the district hospital for medical examination. He collected the medical report. He made a prayer before the Chief Judicial Magistrate for recording statement of the victim under section 164 Cr.P.C. He seized the birth certificate of the victim (Ext.6). 21. P.W.16 proved the birth certificate of the victim which was seized by P.W.14. 22. The evidence on record disclose an unfortunate and painful saga of a minor who had been violated by her own protector i.e. the appellant. Parents of the minor victim had separated. Under such painful condition she found refuge at the residence of her grandmother who had married the appellant. The appellant being her step grandfather ravished her in the absence of her grandmother on a number of occasions since September 2011. As a result the victim started having pain in her stomach. She was taken to a doctor by her grandmother who detected her pregnancy. Her grandfather threatened her not to divulge the incident to anyone. She was tutored to state that she had tumour in her stomach. When her teachers particularly P.Ws 11 and 12 noticed changes in her body and enquired of her, initially she stated that she had a tumour. On further queries the victim disclosed that she was pregnant and her grandfather i.e. the appellant was responsible for such act. The school teachers requested P.W. 15, a nurse attached to the district hospital, to examine the victim. P.W. 15 examined the victim and confirmed her pregnancy. In this manner, the incident came to light. P.W 1, father of the victim lodged FIR setting the criminal law into motion. In the meantime, the appellant admitted his guilt before P.W. 3. The school teachers requested P.W. 15, a nurse attached to the district hospital, to examine the victim. P.W. 15 examined the victim and confirmed her pregnancy. In this manner, the incident came to light. P.W 1, father of the victim lodged FIR setting the criminal law into motion. In the meantime, the appellant admitted his guilt before P.W. 3. Victim was examined by P.W. 6, gynaecologist of the district hospital, who also confirmed her pregnancy and the victim delivered a baby boy in the said hospital. 23. It has been argued that there is delay in lodging FIR and the grandmother as well as the doctor who first treated the victim have not been examined. 24. I have considered the aforesaid submissions in the light of the peculiar facts and circumstances of the case. P.W 9, the minor victim was in the control and custody of the appellant and her grandmother at the time of the incident. P.W 9 claimed that the appellant, who was her step-father, had repeatedly raped her. He also threatened her with dire consequences and as a result she kept mum. When she suffered stomach ache, her grandmother took her to a doctor who stated that she had become pregnant. Her grandmother told her to keep quiet and tutored her to state that she had a tumour in her belly. These circumstances clearly establish the extremely oppressive conditions in which the victim had been subjected to at the time of rape. They undoubtedly explain the reason for her silence. Protector of the victim had turned into a predator and the unfortunate girl who had fallen into the lascivious grip of the appellant due to a fractured family had no other alternative but to bear the brutal sexual assault in silence. Finally she found succour in her teachers who discovered her pregnancy and brought the matter to light. The aforesaid facts explain away the delay in lodging FIR in the instant case. Evidence of P.W. 9 also discloses the complicity and connivance of her grandmother with the misdeeds of the appellant. Hence, the prosecution rightly chose not to examine the said witness. It is open to the prosecution to choose the witnesses through whom it would seek to establish its case. Evidence of P.W. 9 also discloses the complicity and connivance of her grandmother with the misdeeds of the appellant. Hence, the prosecution rightly chose not to examine the said witness. It is open to the prosecution to choose the witnesses through whom it would seek to establish its case. If the defence so desired, it could have examined the grandmother of the victim, who is none other than the wife of the appellant, to probabilise a different story. But it did not do so. Hence, I am of the opinion non-examination of the grandmother of the victim or the doctor who treated the victim at the behest of her grandmother had not adversely affected the unfolding of the prosecution case as narrated through the mouths of the victim herself and corroborated by other independent witnesses including the medical witnesses P.W.s 6 and 15 herein. No adverse inference can be drawn against the prosecution case on this score. 25. The aforesaid evidence on record leaves no doubt in one's mind that the appellant, who was in control and custody of the victim, had raped her on a number of occasions till she became pregnant and the matter was finally brought to light by her school teachers who detected her pregnancy at school. 26. Hence, I uphold the conviction recorded against the appellant. 27. Coming to the issue of sentence, no doubt the offence is a heinous one perpetrated by a person in control and custody of the minor victim. It is, however, pertinent to note that the appellant is a person advanced in age and does not have criminal antecedents. 28. Balancing the aforesaid aggravating and mitigating factors, instead of imposing the maximum sentence of life imprisonment upon the appellant, I consider it prudent to modify the sentence imposed upon him and I direct that the appellant shall suffer rigorous imprisonment for twelve (12) years and to pay a fine of Rs. 50,000/- in default to suffer rigorous imprisonment for two years for the offence punishable under section 376 of the Indian Penal Code. 29. With the aforesaid modification as to sentence, the appeal is disposed of. 30. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of section 428 of the Code of Criminal Procedure. 31. 29. With the aforesaid modification as to sentence, the appeal is disposed of. 30. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of section 428 of the Code of Criminal Procedure. 31. Copy of the judgment along with L.C.R. be sent down to the trial court at once. 32. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. I agree.