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2019 DIGILAW 336 (CAL)

Nemai Ghosh v. State of West Bengal

2019-03-08

JOYMALYA BAGCHI, MANOJIT MANDAL

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JUDGMENT : Manojit Mandal, J. 1. This appeal is directed against the judgment and order dated 08.04.2013 and 09.04.2013 passed by the learned Sessions Judge, Dhakhin Dinajpur, at Balurghat in Sessions Trial Case No. 07 of 2013 arising out of Sessions Case No. 301 of 2012 convicting the appellant no. 1 for commission of offence punishable under Section 376 of the Indian Penal Code (hereinafter referred to as "IPC") and the appellant No. 2 for the commission of offence punishable under Section 376/109 of IPC. 2. The fact of the case in short is that victim girl (PW 2) lodged an ejahar with the Officer-in-Charge, Balurghat Police Station, on 21.07.2012 to the effect that appellant no. 1, Nemai Ghosh, is her grandfather and she lived with her father at their house. While on 13.07.2012 her Parents went to Rajasthan for livelihood, her father took her to the house of appellant no. 1 for keeping there. There she lived with her grandfather, the appellant no. 1, and his wife, the appellant no. 2. Her grandmother told her repeatedly to sleep with her grandfather and even told to cohabit with him but she declined. On 18.07.2012 at night her grandfather, the appellant no. 1, cohabited forcibly with her and her grandmother helped him. She did not disclose such facts to anyone and her grandparents told her if she discloses, it to anyone they would inflict physical torture upon her and even kill her. On the very day i.e. on Thursday after departure of her grandmother from the house, her grandfather kept her into a room locking from the outside and went away. She could not disclose the facts in fear. On that very day at night i.e., at the night of Thursday, her grandfather cohabited forcibly with her many times throughout the night. On 20.07.2012 at noon her grandfather was out of his house and at that time, she came out of the house and started shouting. On hearing her shouting her uncle and aunt came there and she narrated the incident to them. 3. Police investigated the case as usual and upon completion of investigation, submitted charge-sheet against the appellants under Sections 376/109/506 of the IPC. 4. On hearing her shouting her uncle and aunt came there and she narrated the incident to them. 3. Police investigated the case as usual and upon completion of investigation, submitted charge-sheet against the appellants under Sections 376/109/506 of the IPC. 4. On the basis of the materials on record, the learned Sessions Judge, Dakhin Dinajpur at Balurghat, framed charge under Section 376 of the IPC against the appellant No. 1 and under Sections 376/109 of the IPC against the appellant no. 2 to which the appellants pleaded not guilty. 5. In course of trial the prosecution examined 11 witnesses and marked several documents as exhibits. The appellants did not adduce any defence witness in support of their case. Upon consideration of evidence on record, the learned Sessions Judge convicted the appellant no. 1 for commission of offence punishable under Section 376 of IPC and appellant no. 2 for commission of offence punishable under Section 376/109 of the IPC and sentenced them to suffer rigorous imprisonment for life and to pay fine of Rs.5000/- (Rupees Five Thousand) each, in default, to suffer further rigorous imprisonment for six months each. 6. Being aggrieved by the said judgment and order impugned, the appellants have preferred this appeal. 7. The learned Advocate, Mr. Partha Sarathi Bhattacharyya appearing for the appellants argued that the Trial Judge had convicted the appellants on the basis of inadmissible evidence. He further argued that there is no cogent and corroborative evidence on the record connecting the appellants with the alleged crime and the learned Trial Judge illegally relied upon the surmises and conjectures not borne out by any materials on record. Hence, the appellants are entitled to be acquitted. 8. On the other hand, Mr. Neguive Ahmed, learned Advocate appearing for the State supported the conviction stating, inter alia, that the charge had been duly proved by evidence on record. 9. Now, the point to be considered is if the learned Trial Judge is justified in passing the judgment and order of conviction and sentence. 10. At first, I shall consider the potency of the appellant no. 1. In this respect on close scrutiny of the evidence on record and the statement of the appellant no. 1 under Section 313 of the Cr.P.C., I do not find that the appellant no. 1 has taken the plea of impotency. As per statement of the appellant no. 10. At first, I shall consider the potency of the appellant no. 1. In this respect on close scrutiny of the evidence on record and the statement of the appellant no. 1 under Section 313 of the Cr.P.C., I do not find that the appellant no. 1 has taken the plea of impotency. As per statement of the appellant no. 1, he was of 45 years of age. Dr. Swapan Biswas (PW 7) examined the appellant no. 1 and found him capable of performing sexual intercourse and he had proved his report, marked as exhibit 9. Therefore, I have no doubt that the appellant no. 1 is capable of performing sexual intercourse. 11. Now, as to the fact of the alleged occurrence, I find that PW 2 is the victim girl. According to her statement appellant no. 1 is her "Dadu". On 13th day of July of last year her parents kept her in the house of "Dadu" and her parents went to Rajasthan for working there. Her "Dida" told her to go and sleep with her "Dadu" and that sleeping with "Dadu" is normal. She did not agree to sleep with "Dadu". On 18th her "Didima" in the night pushed her in the room of "Dadu" and locked the door. "Dadu" threatened her not to divulge this matter to anyone. Dadu inserted his 'Nunu' in the organ of her body wherefrom she urinate. On 19th "Didima" left the house to go to her father's house. Dadu locked her in the house and went away. In the night, her "Dadu" came to her on the floor and her "Dadu" then had intercourse with her forcibly. On the next day "Dadu" told her to wash her wearing apparels and "Chadar" and have bath in the house. While her "Dadu" went to "hat", she came out and she narrated the entire fact to PW-1, Poly Ghosh, under banyan tree. Then her Kaku (PW 10) came there and he also heard the entire occurrence. Thereafter she was taken to the house of "Member Dida" (PW 4) and she narrated the same to her. She told such facts to the scribe (PW 3), the Doctor (PW 8), police and the Judicial Magistrate (PW 6). This witness was subjected to extensive cross-examination. Then her Kaku (PW 10) came there and he also heard the entire occurrence. Thereafter she was taken to the house of "Member Dida" (PW 4) and she narrated the same to her. She told such facts to the scribe (PW 3), the Doctor (PW 8), police and the Judicial Magistrate (PW 6). This witness was subjected to extensive cross-examination. On close scrutiny, I find that this witness has answered all those questions properly and that there is no statement in her deposition which appears to be tutored one. Nothing could be obtained to shake the credence of her statement. Her statement that she told the fact to PW 1, PW 3, PW 4 and PW 10, Doctor (PW 8), police and the Magistrate is corroborated by those persons. Her conduct appears be natural and probable in the situation. Therefore, I hold that the evidence of the prosecutrix is trustworthy, convincing and reliable. 12. The PW 1 is the Kakima of the victim girl. On hearing the incident, she took such steps as are expected from a close relation of a raped girl during absence of her parents. She has stated that she had heard from the victim girl that on 13th, her father kept her at the house of appellant no. 1 and went to Rajasthan along with her step mother and that "Didima", appellant no. 2, told her that she should go to her "Dadu" to cohabit with him. In the night on 18th, "Didima" Laxmi Ghosh pushed her in the bedroom of "Dadu", appellant no. 1. The appellant no. 1 forcibly co-habited with the victim girl. On the next day in the evening again appellant no. 1 forcibly against the will of the victim girl established sexual relation throughout the night and appellant no. 1 threatened the victim girl that if she would disclose this establishment of sexual relation, she would be killed. On the next day in the morning grandfather, appellant no. 1, told the victim to wash her cloths and bed sheet inside the house and take bath. The PW 1 had to take the victim to the hospital. The evidence of PW 1 is, therefore, trustworthy. The fact, the victim told such fact of rape by the appellant no. 1, upon her to "member Dida" (PW 4) and husband of PW 1 is corroborated by PW 4 and PW 10. The PW 1 had to take the victim to the hospital. The evidence of PW 1 is, therefore, trustworthy. The fact, the victim told such fact of rape by the appellant no. 1, upon her to "member Dida" (PW 4) and husband of PW 1 is corroborated by PW 4 and PW 10. The PW 1, PW 3, PW 4 and PW 10 have no reason to depose falsely against the appellant no. 1. So, the evidence of PW 1, I hold is reliable. I also find that the PW 3, PW 4 and PW 10 lends corroboration to the statement of prosecutrix. 13. The victim girl gave statement to the Judicial Magistrate (PW 6) on 25.07.2012 i.e., just after 7 days of the occurrence and she has stated that her father left for Rajasthan on 13th day of July, 2012 in order to work there leaving her at the house of Nemai Ghosh who happens to be her grandfather. Since then, she have been staying in the house of her grandfather, Nemai Ghosh and her grandmother Laxmi Ghosh. On 18.7.2012 her grandmother pushed her in a room and sent her grandfather and she locked the room from outside. Thereafter, her grandfather raped her forcibly twice. Again on 19.07.2012 her grandmother left the home and her grandfather came and raped her forcibly several times during the whole night. Such statement made by the prosecutrix before the learned Judicial Magistrate is very much relevant for the purpose of corroboration under Section 157 of the Evidence Act. The PW 6 has clearly stated that the victim girl made the statement before him voluntarily and thereafter, he recorded her statement. Such statement of the Judicial Magistrate (PW 6), I hold is satisfactory in consideration of the other direct and circumstantial evidence. 14. Pw 8 is Medical Officer-Gynaecologist of Balurghat Sadar Hospital. He examined the prosecutrix on 21.07.2012. On examination he found the following injuries: "1. No injury mark on private part. 2. Defloration was seen and No foreign body found, 3. Victim complaint pain in vaginal part. Vaginal swab was collected." 15. He opined that there was possibility of pain in vaginal intuitus if sexual intercourse has taken place of such young girl. The evidence of PW 8 discloses that the history of the case given to him is that victim girl was sexually assaulted by appellant no. 1. Victim complaint pain in vaginal part. Vaginal swab was collected." 15. He opined that there was possibility of pain in vaginal intuitus if sexual intercourse has taken place of such young girl. The evidence of PW 8 discloses that the history of the case given to him is that victim girl was sexually assaulted by appellant no. 1. Her relative and victim's parents were outside at that time. In the premises noted above, it is found that defloration has been found and victim girl complains pain in her private part. As the victim girl washed her cloths and taken bath other signs of sexual assault of medical nature could not be found but these are not demolishing the evidence of victim girl (PW 2). Therefore, it may be concluded that medical evidence supports the prosecution case of rape. 16. Now, I shall consider if the prosecution has been able to prove the crime under Section 376/109 of the IPC against the appellant no. 2. In the case of Arjun Singh v. State of Himachal Pradesh, (2009) 4 SCC 18 , the Hon'ble Apex Court has been pleased to observe that the law does not require instigation to be in particular form or that it should be only in words. The Hon'ble Apex Court has further been pleased to observe that instigation may be by conduct and whether there was instigation or not is a question to be decided on facts of each case. In this regard, I do not find any evidence on record that the appellant no. 2 instigated, either in words or by conducts, the appellant no. 1 to commit rape on the victim girl and she aided and abeted the perpetrator of this crime at the very time the crime was committed by the appellant no. 1, Nemai Ghosh. Direct involvement of the appellant no. 2 in the crime is also absent in the evidence of the victim girl. So, I hold that the prosecution has failed to bring home the charge under Section 376/109 of the IPC against the appellant No. 2. So, she should be acquitted of the charge under Section 376/109 of the IPC. 17. In the light of the above discussion, it may be concluded that the conviction of the appellant no. 1 should be upheld. 18. Coming to the issue of sentence, I find that appellant no. So, she should be acquitted of the charge under Section 376/109 of the IPC. 17. In the light of the above discussion, it may be concluded that the conviction of the appellant no. 1 should be upheld. 18. Coming to the issue of sentence, I find that appellant no. 1 committed rape on the victim girl. The appellant no. 1 is aged 45 years with other no criminal antecedents. Balancing the aggravating and mitigating factors in the present case and also considering the conduct of the appellant no. 1 and the age of the victim and the gravity of the offence, I am of the opinion that the sentence imposed on the appellant no. 1 may be modified and he is directed to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand), in default to suffer further rigorous imprisonment of one year more. 19. The appellant no. 2 is entitled to benefit of doubt. Conviction and sentence of the appellant no. 2 are set aside. She is acquitted accordingly. Bail bond stands cancelled and Bail Bond Register be adjusted accordingly. 20. With the aforesaid modification, the appeal is disposed of. 21. The period of detention suffered by the appellant no. 1 during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon the appellant no.1 in terms of Section 428 of the Criminal Procedure Code. 22. The Lower Court Record along with copy of this judgment be sent to the learned Trial Court below at once for information and taking necessary action. 23. Urgent Photostat certified copy of the order, if applied for, be given to the parties on priority basis on their usual undertaking. I agree.