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2019 DIGILAW 84 (CAL)

KISHORE KUMAR RAM @ JULUA v. STATE OF WEST BENGAL

2019-01-17

JOYMALYA BAGCHI, RAVI KRISHAN KAPUR

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JUDGMENT : JOYMALYA BAGCHI, J. 1. The appeal is directed against judgment and order dated 28.2.2013 and 1.3.2013 passed by learned Additional Sessions Judge, Fast Track, First Court, Malda in Sessions Trial No. 16(06) of 2012 corresponding to Sessions Case No. 112 of 2012 convicting the appellant for commission of offence punishable under Section 376(2)(f) of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for six months more. 2. The prosecution case, as alleged against the appellant, is to the effect that on 28.1.2012 the victim aged around 6 and 1/2 years was dancing in the puja mandav where Saraswati Puja was being celebrated. Since 8.00 p.m. she went missing. After 10.00 p.m. her grandmother (P.W.1) found her lying senseless on the bank of the pond of one Haran Master. P.W.1 alleged that she heard from people that the appellant had taken the victim to the bank of the pond and committed rape on her. Accordingly, she lodged written complaint with Manikchak Police Station resulting in registration of Manikchak P.S. Case No. 21 of 2012 dated 29.1.2012 under Section 376 (2)(f) of the Indian Penal Code. 3. In the course of investigation, the victim was medically treated as well as her statement was recorded before the Judicial Magistrate. In conclusion of investigation, charge sheet was filed against the appellant under Section 376(2)(f) of the Indian Penal Code. The case was committed to the Court of Sessions and charge was framed under the aforesaid section. The appellant pleaded not guilty and claimed to be tried. 4. In the course of trial, prosecution examined 8 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. 5. In conclusion of trial, the Trial Judge by the impugned judgment and order dated 28.2.2013 and 1.3.2013 convicted and sentenced the appellant, as aforesaid. 6. Nobody appears on behalf of the appellant. Mr. Das is requested to assist this court as amicus curiae. 7. Mr. Das, learned counsel appearing as amicus curiae argued that the medical evidence (P.W.5) does not support the case of forcible intercourse. Evidence of P.W.1, the defacto complainant herein is at variance to the first information report with regard to the narration of the incident. Mr. Das is requested to assist this court as amicus curiae. 7. Mr. Das, learned counsel appearing as amicus curiae argued that the medical evidence (P.W.5) does not support the case of forcible intercourse. Evidence of P.W.1, the defacto complainant herein is at variance to the first information report with regard to the narration of the incident. Narration of the victim girl (P.W.3) does not appear to be convincing and militates against the facts and circumstances of the case. Accordingly, he prayed for acquittal of the appellant. 8. Mr. Sengupta, learned counsel appearing for the State submitted that the evidence of the victim girl (P.W.3) is corroborated by other witnesses. P.W.5 disclosed scratch marks and abrasions on the body of the victim corroborating the prosecution case of forcible rape. Hence, the appeal is liable to be dismissed. 9. P.W.1 is the informant and grandmother of the victim. He deposed on the day of Saraswati Puja the victim was dancing and subsequently she was taken away by the accused to the bank of the pond. She saw both of them in naked condition. When her granddaughter was brought to the house, she noticed bloodstains in her undergarment. She informed the matter to Manikchak Police Station and thereafter she lodged written complaint. Police seized wearing apparels of the victim under a seizure list. She signed the seizure list. The victim was admitted to hospital and stayed there for four days. 10. P.W.2 is a neighbour. He deposed that the incident occurred on 28.1.2012 on the day of Saraswati Puja at 8.00 p.m. The victim was dancing in the puja mandav. He saw the appellant take away the victim from the mandav. He was engaged by P.W.1 to search for the victim. He informed PW1 that the victim had been taken away by the appellant from the mandav. Thereafter P.W.1 found the victim in senseless condition near the pond of Haran Master. On the next day, the victim stated that the appellant had offered Rs. 200 to her and had tried to rape her. 11. P.W.3 is the victim herself. She deposed she was playing at the Saraswati Puja Mandav near the house of her maternal grandmother (P.W.1). Around 8.00 p.m. the appellant took her on his lap and went to the bank of the pond. Then he opened his pant and thereafter he opened her pant and committed rape on her. 11. P.W.3 is the victim herself. She deposed she was playing at the Saraswati Puja Mandav near the house of her maternal grandmother (P.W.1). Around 8.00 p.m. the appellant took her on his lap and went to the bank of the pond. Then he opened his pant and thereafter he opened her pant and committed rape on her. Blood was oozing out from her private parts. The appellant had also bitten her on her face and she became senseless. She was admitted at Malda Hospital for three days and she made statement under Section 164 Cr.P.C. 12. P.W.5, Dr. S. S. Manna, was the Assistant Profession, Department of Gynaecology at Malda Medical Collage and Hospital. He examined the victim and found the following injuries: - Two old scratch marks over right side of upper chest and two old scar marks over back in the midline and abrasion of left knee. Hymen was found intact. Figure could not introduced in side of the vagina. 13. He proved his medical report. 14. In cross-examination he stated that he did not give any opinion whether the victim was raped or not. There was no injury on labia minora and as no finger could be inserted into vagina, it was not possible for him to say anything. 15. P.W.6 scribed the first information report. He proved the said report (Ext.1/1). 16. P.W.8, Dr. Rajib Prasad examined the appellant and found him capable of sexual intercourse. He proved the report (Ext.7). 17. P.W.4 is the judicial officer who recorded the statement of the victim girl under Section 164 Cr.P.C. (Ext. 3/2). 18. P.W.7 is the Investigating Officer of the case. He went to the spot and prepared draft sketch map with index. He recorded the statement of the victim. He sent the victim for medical examination as well as for recording her statement under Section 164 Cr.P.C. He arrested the accused and sent him for medical examination. He prepared seizure list and submitted charge sheet against the appellant. 19. From the aforesaid evidence on record, it appears that on the night of Saraswati Puja the victim was dancing in the puja mandav. Around 8.00 p.m. P.W.2 saw the appellant take away the victim from puja mandav. As she did not come back, her grandmother started searching for her. 19. From the aforesaid evidence on record, it appears that on the night of Saraswati Puja the victim was dancing in the puja mandav. Around 8.00 p.m. P.W.2 saw the appellant take away the victim from puja mandav. As she did not come back, her grandmother started searching for her. P.W.2 narrated to (P.W.1), grandmother of the victim, that he had seen the appellant take away the victim. After 10.00 p.m. senseless body of the victim was found near the pond of Haran Master. First information report was lodged by P.W.1 over this issue. On the next day, the victim disclosed the incident to her relations. She was medically treated at Malda General Hospital and stayed there for three days. Her statement was recorded under Section 164 Cr.P.C. 20. It has been strenuously argued that the doctor (P.W.5) failed to give firm opinion whether the victim had been raped or not. He did not find any injury in her private parts. Her hymen was intact and no finger could be admitted. 21. I have given anxious consideration to the aforesaid submission in the light of the evidence on record. P.W.3 a minor child has in clear terms narrated the incident not only in court but also before the Magistrate. Evidence has also come on record that the victim was found lying naked in a senseless condition and was admitted to hospital for three days. 22. I am of the opinion that the attending facts and circumstances of the case, namely P.W.2 seeing the appellant take the victim away from the puja mandav and thereafter the victim being found senseless in a naked condition near the pond corroborates the prosecution case of sexual assault on the victim girl. 23. It is settled law that rape in legal terminology does not require full penetration and rupture of hymen. Penetration of the slightest nature would justify rape. It is true that the victim claimed that blood had oozed out from her private parts and P.W.1, her grandmother had claimed that her wearing apparels were tainted with blood. No chemical examiner's report has been placed on record to corroborate the oral version of P.W.1. P.W.5, the doctor who examined the victim, also did not speak of any bleeding injury in the private parts of the victim. However, P.W.5 noted abrasions on the chest, back and left knee of the victim. No chemical examiner's report has been placed on record to corroborate the oral version of P.W.1. P.W.5, the doctor who examined the victim, also did not speak of any bleeding injury in the private parts of the victim. However, P.W.5 noted abrasions on the chest, back and left knee of the victim. Absence of injuries or blood stain in the private parts of the victim, in my considered opinion, cannot be a ground to discard the allegations of rape upon a six-year old girl in the facts of the case. It is pertinent to note that the abrasions were found on her chest as well as on her back and left knee evidencing scuffle or force at the time of occurrence. Soon thereafter, she was found lying naked in a senseless condition. These circumstances corroborate the version of P.W.3, the victim, that she had been raped by the appellant. 24. Hence, I am inclined to uphold the conviction imposed on the appellant. 25. Coming to the issue of sentence, I find that the appellant has been awarded maximum sentence of life imprisonment. Although the crime committed on a minor girl is heinous one, it is also relevant to note that no injuries were found in her private parts and the appellant does not have any criminal antecedent. 26. Balancing the aggravating and mitigating circumstances in the instant case, I am inclined to modify the sentence imposed on the appellant and I direct that the petitioner shall suffer rigorous imprisonment for ten (10) years and to pay a fine of Rs. 5,000/-instead of the sentence imposed by the trial court. 27. With the aforesaid modification as to sentence, the appeal is disposed of. 28. 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 428 of the Code of Criminal Procedure. 29. Copy of the judgment along with L.C.R. be sent down to the trial court at once. 30. I record my appreciation for the able assistance rendered by Mr. Partha Pratim Das, amicus curiae in disposing of the appeal. 31. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. I agree.