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2020 DIGILAW 178 (CAL)

Nepal Mondal v. State Of West Bengal

2020-02-10

ARIJIT BANERJEE, THOTTATHIL B.RADHAKRISHNAN

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JUDGMENT Thottathil B. Radhakrishnan,J. - We have heard learned counsel for the appellant and learned counsel for the State. 2. This appeal is against an order of conviction and sentence imposed for the offence punishable under Section 376(2)(f) of the Indian Penal Code. 3. Learned counsel for the appellant argued that there is absolutely no legal evidence on the basis of which the offence could be, if at all, found to be established with reference to Clause (f) of sub-section (2) of Section 376 IPC. She argued that there is nothing on record to show that the accused is a relative, guardian or tutor or a person in position of trust and authority vis- vis the victim. It is also pointed out that in terms of the statute that stood as on 26.02.2012, which is the date of the alleged sexual assault, the punishment of imprisonment that could have been handed down was for a maximum period of 10 years while there was a minimum sentence of 7 years in terms of Section 376(1) as it then stood. She also impeached the reliance placed by the Court below on the examination of the victim by the Doctor to find out whether the vagina admitted two fingers. She pleaded that the test itself has been found with passage of time by the superior courts to be one which is not in conformity with settled principles of human rights as well as scientific evidence for best adjudication of such cases. Therefore, she pleaded that on the whole this may be treated as either a case of acquittal or trimming down the penalty handed down by the Court of first instance. It is shown that the accused has undergone a period of more than seven years imprisonment by now. 4. Learned counsel for the State argued that in the case in hand the victim was 12 years old and that it appears that there was a continuous relation between the victim and the accused/appellant, even going by the version of the Doctor. He says so because the medical evidence is to the effect that the victim appears to be habituated to sexual intercourse. He further pointed out that the element of coercion or other suppressive and oppressive modes of obtaining consent for intercourse is obviously used and in such circumstances, the conviction and sentence handed down stands. 5. He says so because the medical evidence is to the effect that the victim appears to be habituated to sexual intercourse. He further pointed out that the element of coercion or other suppressive and oppressive modes of obtaining consent for intercourse is obviously used and in such circumstances, the conviction and sentence handed down stands. 5. For one thing, if a particular bunch of facts is pleaded by the prosecution to show that the evidence falls under a particular clause of subsection (2) of Section 376 IPC; having regard to the way in which the different clauses of Section 376 (2) are laid down, the same definitely indicates that in all cases one cannot put the totality of facts from one clause to another clause at trial to sustain the conviction. The trial ought to be confined to the charge as against the accused. In the case in hand, the medical evidence is to the effect that the victim was, according to the medical expert, habituated to sexual intercourse though she was only around 12 years of age. While we would not attribute anything to her such conduct; one thing is certain, namely, that even if the victim girl had never made any complaint in earlier point of time as against the accused but had to speak up only when she was found to be in such activity with the accused by her uncle who caused the first information statement to be lodged by the victim's father which relates to the registration of FIR. Therefore, we are of the view that while the activity of sexual intercourse committed by the accused on the victim is established by legal evidence on record, it is a case where, though consent of the victim is not decisive in the case in hand, but for the intervention of the uncle leading to the disclosure of the illicit activity to the other members of the family, the relationship, whatever, between the accused and the victim would have not stopped. 6. On the whole, we are satisfied that on the scale of justice, while the conviction handed down by the Court of first instance is only to be sustained, the punishment imposed deserves to be trimmed down to be for a period undergone which will be beyond 7 years and 10 months. 7. 6. On the whole, we are satisfied that on the scale of justice, while the conviction handed down by the Court of first instance is only to be sustained, the punishment imposed deserves to be trimmed down to be for a period undergone which will be beyond 7 years and 10 months. 7. We accordingly, allow this appeal partly modifying the conviction and sentence to be for a period of 7 years and 10 months. 8. The appellant shall be released forthwith from custody if he is not wanted in any other case. He, however, shall furnish a bail bond to the satisfaction of the trial Court which shall continue for six months from this date in terms of Section 437A of the Code of Criminal Procedure. 9. In view of disposal of the appeal the connected application being CRAN 1049 of 2019 is disposed of. 10. Copy of the judgment along with the Lower Court Records be sent down to the Court below at once. 11. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties on usual undertaking.