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2020 DIGILAW 304 (CAL)

Kaisar v. State of West Bengal

2020-02-28

SAHIDULLAH MUNSHI, SUBHASIS DASGUPTA

body2020
Judgment : Subhasis Dasgupta, J. 1. This appeal emerges out of an order of conviction and sentence. Learned Additional Sessions Judge, Islampur, Uttar Dinajpur in Sessions trial No.09/07 arising out of Sessions Case No. 03/07 convicted accused/appellant under Section 376 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for eight (8) years and pay fine of Rs.3000/-(Rupees three thousand) in default to suffer rigorous imprisonment for one year for the offence under Section 376 of Indian Penal Code. 2. Facts established during trial precisely may be mentioned as follows for perfectly addressing the issues raised in this appeal. 3. The victim/prosecutrix being urged by nature came out of her room on 20/21.06.2005, night for urinating purpose, when suddenly accused caught hold of her, gagged her mouth, took her away to nearby mango garden and finally committed rape upon her against her wish under a threat with dire consequence, leaving behind a promise of marriage therefor. About two months before also in a similar manner accused/appellant did sex with victim girl by doing violation after forcibly taking her to a jute filed, when victim went to the field for bringing back goats from field. Victim received threat from accused/appellant with a promise to marry this time too. She lost her sense receiving assault from accused, when she tried to get into the house of accused. She was rescued by her parents and villagers on the following morning. Ultimately, accused refused to marry the victim on being challenged with the incident by parents of the victim, when accused/appellant also threatened victim and her family members with dire consequence. A child was, however, born to victim/prosecutrix. 4. Police started investigation after receiving a complaint from victim herself, subjected the victim to Ossification Test for determination of her age, collected the statement of victim recorded under Section 164 Cr.P.C. by learned Magistrate, and finally concluded the investigation submitting charge sheet against the accused/appellant. 5. Trial Court conducted the trial after framing charge under Sections 376/506/418 I.P.C. with collection of as many as six (6) witnesses, and thereafter learned Judge conducting the trial held the accused to be guilty of offence under Section 376 I.P.C. and awarded him sentence accordingly, mentioned hereinabove. 6. 5. Trial Court conducted the trial after framing charge under Sections 376/506/418 I.P.C. with collection of as many as six (6) witnesses, and thereafter learned Judge conducting the trial held the accused to be guilty of offence under Section 376 I.P.C. and awarded him sentence accordingly, mentioned hereinabove. 6. At the very beginning of this case this may be put on record that due to the absence of learned advocate for the appellant, a report from the concerned correctional home was obtained to know about status of the accused/appellant, and ultimately we decided to proceed with the appeal taking assistance of Mr. Navanil De, as amicus curiae for accused/appellant. 7. Mr. Navanil De, learned amicus curiae, while challenging the order of conviction submitted that the learned Trial Judge failed to appreciate the consensual sexual acts performed between the parties in context with a promise to marry in its true perspective, and held the accused person guilty most illegally, disbelieving the consent, voluntarily given by victim/prosecutrix. 8. It was contended by Mr. De, learned amicus curiae, that though the Trial Court doubted the report of ossification test, performed in this case, for determination of age of victim girl, but the benefit of doubt could not be given to the accused/appellant. 9. Further contention of Mr. De, learned amicus curiae, was that when victim herself contradicted in several respects with her own version recorded in F.I.R., the Trial Court ought to have disbelieved her version, and the conviction so recorded by the Trial Court will not be sustainable for such discrepancy in her evidence. Referring loopholes contained in the evidence of victim/prosecutrix, Mr. De, proposed that at best, the case could be regarded as a consensual sex with a promise to marry, for which conviction under Section 376 I.P.C. and the sentence awarded thereunder would not be sustainable. 10. Per contra, respondent State submitted disputing with the arguments raised by Mr. Navanil De, learned amicus curiae, that the consent to the sexual act committed upon victim having been obtained from victim putting her in a fear of death, it was not a free consent of the victim/prosecutrix. More so, the victim being minor, much less than 15 year old, the plea of consent giving rise to consensual sex would not be available. 11. More so, the victim being minor, much less than 15 year old, the plea of consent giving rise to consensual sex would not be available. 11. Respondent/State submitted that rural, rustic woman, like the victim girl having no strong educational background could not be treated to be at par with the girl living in modern society, because of change of socio-economic outlook between the two. There might be some loopholes, discrepancies, inconsistencies in her testimony, but the same being not major and strong enough, must be disregarded. It was thus proposed by the respondent/State that there left nothing to be interfered with. 12. As regards the point surfacing consensual sex with a promise to marry, as strongly contended by Mr. De, a serious look with all sensitivity over the evidence of victim/prosecutrix, adduced in this case for answering the issue raised in this appeal is necessary. 13. In the testimony of the victim (PW-1) adduced on 16th April, 2007, the victim (PW-1) stated recounting two episodes of her violation on two successive occasions. One in the month of Jaistha corresponding to May, about two years before the date of adducing evidence in court, i.e. on 16th April, 2007, at about 4.00 PM, when victim was physically violated by accused/appellant taking her to a jute field with a promise to marry. Both the accused/appellant and the victim herself in first episode at the relevant point of time had been to the field for bringing back their respective goats and cows from the field. The victim was threatened by the accused/appellant requiring her not to divulge the ill acts to anybody else, accused would finish her. Accused then fled away to Siliguri. 14. The second episode of violation committed upon victim was held two months after the first episode. In the month of Aashar, corresponding to June, one day on 20/21.06.2005 at about 10.00 P.M. in the night she came out of her room to the courtyard of her house for urinating purpose, suddenly accused gagged her mouth providing her no scope to shout, and took her to a nearby mango garden. In the mango garden accused did sex with the victim. About 20/30 minutes thereafter, accused/appellant left the spot for going to his own house, when victim began to follow the accused/appellant wearing even her petticoat. In the mango garden accused did sex with the victim. About 20/30 minutes thereafter, accused/appellant left the spot for going to his own house, when victim began to follow the accused/appellant wearing even her petticoat. She tried to get into the house of accused, and in the result victim received assault from accused/appellant, and ultimately got fainted. The villagers including her parents, on the following morning, rescued the victim girl. Accused/appellant was subsequently challenged with the incident proposing him to marry the victim girl, but the accused refused to marry the victim girl, and rather threatened to kill the victim and her family members. Victim further stated in connection with the second episode that accused/appellant also promised to marry her, though he threatened the victim girl requiring her not to disclose otherwise, he would kill the victim. 15. What is significant to be noted is that promise to marry was there in both the episodes. The existence of threat is common in both the situations, narrated by the victim girl herself. 16. In the statement of the victim girl recorded under Section 164 Cr.P.C. (Exhibit-6), the act of violation caused upon the victim was allegedly caused with a threat coupled with a promise to marry. The occurrence depicted in the F.I.R. was held on 20/21.06.2005 in the night, and the victim made her statement before the Magistrate on 24th June, 2005. Though in the F.I.R. the first episode of violation was omitted in the F.I.R., as the facts set out in F.I.R reasonably connected the second episode, but such omission would not matter much, because each of the two episodes alleging commission of sexual intercourse is independent and complete in itself subject to disclosure of ingredients of offence under Section 375 I.P.C. Each episode revolving around the story of violation committed upon the victim being conclusive, can be presumed to have completed paving the way for finality of offence contended. The contradiction thus sought to be capitalized by Mr. De, learned amicus curiae, on this issue is not strong enough to upset the story of commission of sexual violation rendering it to be most inherently improbable. 17. The contradiction thus sought to be capitalized by Mr. De, learned amicus curiae, on this issue is not strong enough to upset the story of commission of sexual violation rendering it to be most inherently improbable. 17. The defence taken by accused/appellant in course of trial revealed that the victim voluntarily consented to the sexual acts performed between the parties, and it was reiterated in course of examination of accused under Section 313 Cr.P.C. by clarifying the answer, mentioned against question No. 11, that the accused appellant had a friendship with the victim girl, and during such courtship accused/appellant had the occasion to gossip with her even to the extent of sharing bed with victim girl, which according to appellant would not have been possible, had there not been any consent on the part of the victim girl. The accused/appellant thus did not deny the violation committed upon the victim girl in any manner whatsoever, what is disputed in this case by the appellant was that the accused appellant did sex with the victim with her consent. 18. Upon sensing the scheme of defence strategically adopted by the accused/appellant in the given set of facts, it would not stand to reasons, if the victim was violated in connection with first episode, or on subsequent occasion. The fight between the parties thus squeezed to an important issue, what according to appellant, it was an outcome of consent, the prosecution contended the same action to be otherwise than on consent. 19. The cross-examination of victim's testimony claiming to have experienced threat, while being violated in the hands of accused/appellant, could not be shaken to doubt. The credibility of victim/prosecutrix particularly as regards the issue pertaining to exerting threat upon the victim/prosecutrix even could not be attempted to be doubted by putting a suggestion in the form of denial. Evidence is there that accused/appellant, as regards the second episode, gagged the mouth of victim on the relevant night, when the victim came out of her room and reached the courtyard for attending a nature's call thereby providing her no scope to raise any voice, and such part of the evidence cannot be automatically impeached simply by taking plea of consensual sex. 20. In a case of this nature, age of the victim girl would be of highest significance. 20. In a case of this nature, age of the victim girl would be of highest significance. Evidence is very clear that previously victim found her admission in a school, known as Pandit pota Primary School, and where she attended only for two days. The victim adduced her evidence on 16th April, 2007, when she claimed to be of 16 year old. Incidentally, the victim girl gave birth to a male child. 21. Admittedly, the victim adduced her evidence about two years after the incident. Arithmetically the day, when victim was violated in the mango garden on 20/21.06.2005, night, she was little above than 15 years, but obviously much below 16 years of her age, so as to reach her age of discretion. There was no cross-examination by putting a suggestion even to victim/prosecutrix that the moment when consensual sex was enjoyed between them, the victim was then above the age of her discretion, and she voluntarily consented to the sexual act having understood the consequence thereunder revealing her conscious decision. 22. In course of hearing of this appeal, Mr. De, learned amicus curiae, sincerely tried to impress upon us referring the Ossification Test Report (marked as Exhibit-1) prepared by PW-4 (a doctor) that victim was about twenty (20) years of her age, the moment when she was allegedly violated, and according to appellant it was rightly ascertained by PW-4, holding X-rays of different parts of the victim. 23. The Trial Court doubted the Ossification Test Report for want of margin of two years not being shown therein coupled with absence of not taking proper note of other secondary sex character of a female subject/person together with her appearance/ physique and body weight. 24. Since Ossification Test performing doctor relied much upon the X-rays of different parts of the victim girl principally taking note of fusion of epiphysis of bones, PW-4 was declared hostile. 25. In course of cross-examination by prosecution, there left materials from PW-4 (doctor) that he had expressed his full agreement that Ossification Test could be based keeping note on other factors like eruption of teeth, development of breast, weight and the appearance of pubic hair, which were essential to ascertain age. 26. Argument was advanced on this score by Mr. De, learned amicus curiae, that appearance of centres of ossification and fusion of epiphysis were more reliable factors for determination of age. 26. Argument was advanced on this score by Mr. De, learned amicus curiae, that appearance of centres of ossification and fusion of epiphysis were more reliable factors for determination of age. It was thus according to appellant, that the age revealed during Ossification Test, though relied upon basically on the fusion of epiphysis of bones together with physical appearance of victim girl, as noted by the doctor, which having transpired prior to being declared hostile to prosecution, ought not to have been discredited, and if at all discredited for strong reasons, the benefit of which should have been favoured to accused/appellant. 27. A fairly accurate information as to the age of tender aged children about to reach adolescence or already reached adolescence may be given from the state of eruption of teeth, height and weight of body, the general development of body and condition of ossification of the bones, but it is subject to variation of two (2) years on either side. Making reliance only upon one of these factors, would not be at all safe to reveal the age of victim girl. 28. Mr. Bardhan, learned advocate representing State/respondent disputing with such argument on the issue of age of victim girl, and the impact of Ossification Test held in this case by the doctor revealing the victim girl to be above twenty (20) years on 27th June, 2005, replied that age determination by PW-4 having made purely upon the fusion of epiphysis together with appearance of the victim, without taking care of other parameters required to be seriously adhered to, the same would not stand favourable to the purpose of accused/appellant. 29. Reliance was accordingly placed by learned advocate for the respondent on a decision reported in (2008) 15 SCC 223 , delivered in the case of Jyoti Prakash Rai @ Jyoti Prakash Vs. State of Bihar, which sufficiently had taken notice of the decision rendered in the case of Vishnu Vs. State of Maharashtra, reported in (2006) 1 SCC 283 , that the opinion of the Medical Officer is to assist the court as he is not a witness of fact, and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact. 30. State of Maharashtra, reported in (2006) 1 SCC 283 , that the opinion of the Medical Officer is to assist the court as he is not a witness of fact, and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact. 30. The question is whether the Ossification Test Report (medical evidence) will be given precedence to the oral testimony of victim girl herself sufficiently revealing her age at the time of occurrence or not. There cannot be difference of opinion on this proposition that a medical witness is called as an expert to assist the court, who is not a witness of fact, and the evidence given by the Medical Officer is really of an advisory character, given on the basis of symptoms found on examination. The expert witness is expected to reveal before the court all materials inclusive of data, which induced him to come to the conclusion and enlighten the court on the technical aspects by explaining the terms of science, so that the court although not an expert, may form its judgment on those materials after giving due regard to the expert. 31. Since that part of evidence of a hostile witness supporting the prosecution case subject to receiving corroboration on such part of the evidence of a hostile witness may be utilised favourable to the purpose of prosecution, the evidence of the doctor holding the Ossification Test and admitting in cross-examination to have not taken care of the secondary sex character of a growing girl coupled with her eruption of teeth, body weight, and relying grossly upon ossification and fusion of epiphysis would itself render such medical evidence trash, even in the absence of corroboration of such issue. 32. It is not a case of conflict between the medical evidence and oral evidence over the issue of minor contradiction between the two. Irresistibly then, in our considered view, oral evidence will be given precedence to the medical evidence in the given set of facts. 33. The respondent state on this score profitably attracted to the ratio decided in such referred cases so as to give precedence to the oral evidence over the medical evidence for the peculiarity of circumstances involved in this case. 34. 33. The respondent state on this score profitably attracted to the ratio decided in such referred cases so as to give precedence to the oral evidence over the medical evidence for the peculiarity of circumstances involved in this case. 34. In this case, besides victim herself disclosing her age at the time of occurrence, no other witness, either may be of her near relatives or her "para" people revealing the age of victim girl was examined. In the F.I.R. victim did not mention about her own age, but in the statement recorded under Section 164 Cr.P.C. victim voluntarily disclosed her age as 17 years on 24.06.2005. 35. Argument was advanced by Mr. De, learned amicus curiae that when victim herself described her age voluntarily giving two figures, one as 17 years of age on 24.06.2005, and another as 16 years of age on 16.04.2007, her version recounting the age will be doubtful, which would be itself sufficient to favour the accused with an order of acquittal extending benefit of doubt. 36. Admittedly the victim girl in course of her statement recorded under Section 164 Cr.P.C. disclosed her age as 17 years, but while adducing evidence before court about two years after the incident (approx.), she disclosed her age to be of 16 years. The victim girl is a rural and rustic one having no educational background, and in the absence of any challenge being raised by the accused/appellant disputing with age of the victim girl, during the course of cross-examination, such mis-description of age, and that too from a rural, rustic girl would not itself improbalise her entire version inclusive of her disclosure made on 16th April, 2007, as regards her age, on the same date, as 16 years. 37. True it is that the investigating agency could have collected any age proving document from the school, where the victim found her admission and continued her school for two days. But it would not pave the way for acquittal capitalizing such latches on the part of investigation. The court is thus obliged in such state of affairs to rely on the testimony of victim girl disclosing her age, as 16 years on 16th April, 2007, when she first adduced her evidence before the Court, because her version is otherwise acceptable in the absence of apparent strong inconsistency. The court is thus obliged in such state of affairs to rely on the testimony of victim girl disclosing her age, as 16 years on 16th April, 2007, when she first adduced her evidence before the Court, because her version is otherwise acceptable in the absence of apparent strong inconsistency. Such position is fortified from the definition of the word "Evidence" found in Section 3 of the Evidence Act. The definition of the word "Evidence" may be reproduced as follows for our present purpose: "Evidencde".- "Evidence" means and includes- (1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, Such statements are called oral evidence; (2) [all documents including electronic records produced for the inspection of the Court] Such documents are called documentary evidence." The word "Evidence" covers both oral evidence and documentary evidence. It would be relevant here to ascertain for our present purpose if the victim's testimony has passed through the test of probability or not, which may be mentioned as: (a) how consistent the story is with itself; (b) how it stands the test of cross-examination ; and (c) how far it fits in with the rest of the evidence and the circumstances of this case. 38. As has already discussed that age of the victim girl is not a disputed phenomena, because there left nothing in the cross-examination suggestive of putting a challenge even as regards the age of victim girl disclosed during trial of this case, so the disclosure of age being consistent and compatible with the facts and circumstances involved in this case having passed the test of probability, will be extremely relevant. 39. Since disclosure of age of victim in course of her evidence during trial on 16th April, 2007, made in answer to the question before oath being administered, presumably with the permission of court, in order to establish a charge claiming to have been violated, which was under inquiry during trial, such disclosure of statement pertaining to her own age will obviously not to be looked with suspicion, if not treated as part of her oral evidence, and it will be sufficient to reveal the age of such girl. Alternatively taking recourse to Section 3 of the evidence Act, for the peculiarity of circumstances involved in this case, the victim/prosecutrix could be safely taken to be 15 years (approx.), not reaching the age of her discretion, the moment she was violated at the instance of the accused/appellant. That being the position, the consent of the victim, if any, would be without any relevance. 40. Since the victim was about 15 years of her age the date when she was violated, it would be inconsequential to the stand of the appellant that the allegation surfaced against the appellant was an outcome of consensual acts for the consent of the victim being given voluntarily. The age of the victim being of paramount consideration in the given set of facts, which in our considered view, the victim was much less than 16 year old girl, but little above than 15 years at the time of incident, it would not be that much relevant to consider if consent of the victim was squeezed to be obtained by accused/appellant after putting her in a fear of death, as contemplated in Section 90 of I.P.C., which has defined consent in most negative terms. The other consideration like the previous, contemporaneous and subsequent conduct of the parties may be relevant to gather consent of victim /prosecutrix, which is of course a question of fact, but the same would be inconsequential in this case on the ground when the victim was found to be 15 years of her age (approx.), the moment she was violated. We would thus resist ourselves from making any academic exercise to reveal if therebe any consent on the part of the victim girl with regard to the sexual act committed upon her, because any unproductive discussion not pertaining to the text requiring decision on the issue, in our considered view, is most uncalled for. 41. The learned Trial Judge while disbelieving the ossification test report had also taken care of the physical appearance of the victim girl in coming to a finding that victim was a minor at the time of occurrence, which should not be doubted for want of an inquiry being conducted by the Trial Judge in compliance of the provisions, as contemplated in the Juvenile Justice Act, for ascertaining age of victim. The satisfaction of the Trial Judge thus reached with respect to the age of the victim girl, in our considered view, is of great importance, because the Trial Judge had the occasion to physically look at the victim in course of evidence, including the ordeal of her cross-examination. As there left nothing disputing the age of victim girl, besides the ossification test report, the assessment of age of learned Trial Judge, in the absence of any specific challenge revealed from the cross-examination of the defence, should not be looked with doubt. 42. Much was argued by Mr. De, learned amicus curiae submitting that the charge under Section 376 I.P.C. should not be attracted against the accused/appellant in a case where alleged violation was committed with a promise to marry bearing in mind the doctrine of promiscuity. It was thus sought to establish that not only by reason of consensual sex for the consent being voluntarily given by the victim herself, the allegation of committing rape will not be sustainable for the promiscuous behavior of victim in regard to her alleged story of violation. Since this point, as argued, purely being founded upon the question of age of the victim girl, which has already been addressed in our discussion given above, such issue has no bearing, though proximate, on the merits of the case, as already testified by victim herself. 43. Upon considering the totality of the circumstances revealed from the evidence on record, it appears that the prosecutrix had no strong motive to falsely implicate the person charged. There was no such evidence transpiring existence of animosity, either of the victim herself or her parents with that of the accused charged with the offence, suggestive of false implication. In such circumstances, the Trial Court was rightly not faced with any hesitation in accepting the version of prosecutrix. The testimony of the victim appears to be probable, natural, and believable also. There was no compelling reasons necessitating to look for corroboration of her statement. 44. Such was the argument raised by the respondent, while supporting the order of conviction and sentence relying upon the decision of the Apex Court reported in (1996) 2 SCC 384 delivered in the case of State of Punjab vs. Gurmit Singh and Ors. The reliance to such decision by the State/respondent in the given context of this case cannot be considered to be most inappropriate. 45. The reliance to such decision by the State/respondent in the given context of this case cannot be considered to be most inappropriate. 45. As regards the contradiction, discrepancy and inconsistency in the evidence, as pointed out by the appellant surfacing over the F.I.R. with the testimony of victim, which we already discussed mentioning its effect towards rendering improbalization of prosecution story, such issue needs no more address. We would, however, travel going to such extent that if such inconsistency/discrepancy in the evidence is taken care of, in that event too, it will not completely upset the version of prosecutrix claiming to have been violated by accused/appellant. The discrepancy in the evidence having no effect over the very substratum of the prosecution so as to upset the prosecution version will be perceived to be inconsequential. 46. For the discussion made above, we are of our considered view that conviction was rightly reached bearing in mind the principle of law, and sentence was rightly awarded adhering to the parameters required to be observed for sentencing an offender. 47. It was brought to our notice that the accused/appellant had already served out his sentence awarded in this case. 48. We thus uphold the conviction and sentence awarded in this case maintaining the conviction. 49. The appeal fails being without any merits. 50. Before parting with the record, we must record our satisfaction for the service rendered by the Mr. De, learned amicus curiae. The appeal thus stands disposed of. 51. Department is directed to send a copy of this judgment along with Lower Court Record to the concerned Trial Court without causing any delay through the concerned District Judge. 52. Department is further directed to send a copy of this judgment to the concerned correctional home. 53. Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.