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2020 DIGILAW 408 (CAL)

Rabin Santra v. State Of West Bengal

2020-03-11

JOYMALYA BAGCHI, SUVRA GHOSH

body2020
JUDGMENT Joymalya Bagchi, J. - The appeal is directed against the judgment and order dated 08.06.2015 passed by the learned Additional District and Sessions Judge, Ghatal, Paschim Medinipur in Sessions Trial Case No.31/May/09 convicting the appellant for commission of offence punishable under Sections 363/366/376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.10,000/- in default, to suffer rigorous imprisonment for further 3 months for the offence punishable under Section 363 of the Indian Penal Code and to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.25,000/-, in default, to suffer rigorous imprisonment for further 6 months respectively for the offences punishable under section 366/376 of the Indian Penal Code. All the sentences shall run concurrently. 2. The prosecution case as alleged against the appellant is to the effect that on 22.10.2008 the victim, a 15 year old girl (P.W. 2) had been kidnapped by the appellant, an ayurvedic doctor, and taken to Calcutta where she was raped against her will and detained in the house of Timir Baran Nag, P.W.3. As she went missing and could not be traced out, her father, P.W.1 searched for her at various places but in vain. Ultimately, he lodged missing diary on 20.11.2008. Subsequently, suspecting that the appellant had a hand in kidnapped his daughter P.W.1 lodged written complaint at Chandrakona P.S. resulting in Chandrakona P.S. Case No.105/08 dated 28.11.2008 against the appellant. Appellant was arrested and on his showing the victim was recovered from the residence of Timir Nag. She was medically examined and made statement before Magistrate. In conclusion of investigation, charge-sheet was submitted against the appellant. The case was committed to the Court of Sessions for trial and disposal. Charges were framed against the appellant under Sections 363/365/366/376 of the Indian Penal Code. Appellant pleaded not guilty and claimed to be tried. 3. In the course of trial, prosecution examined 14 witnesses and exhibited a number of documents. 4. In conclusion of trial, learned trial judge by the impugned judgment and order dated 08.06.2015 convicted and sentenced the appellant, as aforesaid. Hence, the present appeal. 5. Mr. Bakshi, learned Counsel appearing for the appellant submitted that there is inordinate delay in lodging the missing diary/F.I.R. Allegation of kidnapping of the victim girl, P.W.2 is, therefore, highly improbable. 4. In conclusion of trial, learned trial judge by the impugned judgment and order dated 08.06.2015 convicted and sentenced the appellant, as aforesaid. Hence, the present appeal. 5. Mr. Bakshi, learned Counsel appearing for the appellant submitted that there is inordinate delay in lodging the missing diary/F.I.R. Allegation of kidnapping of the victim girl, P.W.2 is, therefore, highly improbable. He further submitted P.W.3 Timir Baran Nag has not supported the prosecution case. He also argued no ossification test to determine the age of the victim girl had been conducted. Accordingly, he prayed for acquittal of the appellant. 6. On the other hand, Mr. Ahmed, learned counsel appearing for the State submitted that evidence of the victim girl, P.W.2 is corroborated by other evidence on record including the medical evidence, P.W.8. Age of the victim has been proved through the evidence of her father, P.W.1 as well as the headmaster (P.W.7) of the school where she was studying during period of occurrence. Delay in lodging the F.I.R. has been duly explained and the prosecution case has been proved beyond doubt. Hence, he prays for dismissal of the appeal. 7. P.W.2 is the victim and the most vital witness. She deposed on 22.10.2008, that is, 5th Kartick 1415 B.S. around 4 P.M. she had gone to meet her younger sister Chandana Pal who was working as a maidservant in the house of one Indrajit Jana whom she was referred to as Jethamosai by village courtesy. While returning home she met appellant who is a Kabiraj by profession and used to visit her residence. She complained of headache and the appellant told her that medicine was available at Ghatal Bazar. Accordingly, she accompanied the appellant to purchase medicine at the Bazar. The medicine was not available at Ghatal Bazar. Appellant told her to accompany him in a bus to Panskura to purchase medicine. In good faith she accompanied the appellant to Panskura. When they reached Panskura, it had become dark and she wanted to return home. Thereupon the appellant told her he would give her employment at Calcutta but if she refused such proposal he would kill her and throw her dead body in the train line. As a result of such threats, she remained quiet and did not talk to anybody. Initially, she was kept in a hotel and he raped her in the hotel room. As a result of such threats, she remained quiet and did not talk to anybody. Initially, she was kept in a hotel and he raped her in the hotel room. Next day she was taken to the house of Timir Baran Nag, P.W.3 where she was kept. She remained in the house of Timir Baran Nag, P.W.3 for one month and seven days. Appellant returned to the house after 4/5 days. He stayed in the same room and raped her. 8. On 12th Aughrayan 1415 B.S. police came to the house of Timir Baran Nag and recovered her. Her boudi Samoli Pal (P.W.9), Swapan Kr. Bhuniya (P.W.6), Kochan Bera (P.W.5) and Tarak Bera (P.W.4) were also present at the spot. On the next day she was treated at Chandrakona Hospital. She disclosed the incident to the doctor. On 16th Aughrayan 1415 B.S. she made statement before Magistrate. She proved her signature on the statement. She remained unshaken in spite of extensive cross-examination. 9. Deposition of the said witness finds support of the evidence of her father, P.W.1 who stated his daughter went missing on 5th Kartick 1415B.S. On that day she had gone to meet her younger sister Chandana Pal who was working in the house of Indrajit Jana. He tried to trace out the whereabouts of his daughter but was unsuccessful. On 5th Aughrayan 1415 B.S. he lodged missing diary. Appellant was a practicing Kaviraj and used to visit their residence. He had asked the appellant whether he knew the whereabouts of his daughter and the appellant told him that his daughter had been kept in a place but did not disclose the particulars of the place. Accordingly, on 12th Aughrayan 1415 B.S. he lodged F.I.R. (Ext.1) which was written by Biswanath Pal. Appellant made statement before police that the victim was kept in the house of Timir Baran Nag. Police went to the house of Timir Baran Nag along with others and recovered the victim. His daughter was aged about 15 years at the time of incident. 10. P.W.14, Hishikesh Pal deposed that on 28.11.2008 he was posted at Chandrakona P.S. as S.I. At that time the officer-in-charge of the Chandrakona P.S. was Mahakash Chowdhury. He entrusted him with the investigation of the case which was registered on the written complaint of P.W.1. His daughter was aged about 15 years at the time of incident. 10. P.W.14, Hishikesh Pal deposed that on 28.11.2008 he was posted at Chandrakona P.S. as S.I. At that time the officer-in-charge of the Chandrakona P.S. was Mahakash Chowdhury. He entrusted him with the investigation of the case which was registered on the written complaint of P.W.1. On that date he went to the house of accused Rabin Santra along with the defacto complainant, P.W.1. He examined the accused person and recorded his statement (Ext.12). In his statement Rabin disclosed that he had kept the victim girl at the residence of Timir Baran Nag, P.W.3. To work out such information, P.W.14 along with the accused and others went to Behala P.S. and made a requisition for recovery of the victim girl (Ext.13). Pursuant thereto, P.W.12 ASI of Police attached to Behala P.S. was directed to assist P.W.14 to recover the victim. The police officers along with others went to the residence of Timir Baran Nag (P.W. 3) and recovered the victim girl. Evidence of the witness is corroborated with P.W. 12 who had accompanied him to recovery of the victim girl. Relations and neighbours of the victim girl, namely, P.W.5, Kochan Bera, P.W.6, Swapan Kumar Bhuniya and P.W.9, Shayamoli Pal who had accompanied the police also corroborated the prosecution case regarding her recovery from the house of Timir Baran Nag (P.W. 3). 11. In the light of the aforesaid convincing evidence on record with regard to recovery of the victim girl from the house of Timir Nag, I am of the opinion that lack of support from Timir Baran Nag, P.W. 3, to the prosecution case is of little relevance. It is not unnatural that the said witness in order to distance himself from the criminal activities of the appellant who had detained a minor in his residence had resiled from his previous statement to the police relating to the recovery of the minor girl and was declared hostile. Accordingly, he was extensively cross-examined with regard to such previous statement made by him to the police. 12. P.W. 8 is the medical officer who examined the victim after her recovery. He found tear and rupture of hymen and tissues around hymen. He opined there is evidence of sexual intercourse on the victim. Accordingly, he was extensively cross-examined with regard to such previous statement made by him to the police. 12. P.W. 8 is the medical officer who examined the victim after her recovery. He found tear and rupture of hymen and tissues around hymen. He opined there is evidence of sexual intercourse on the victim. He stated that the victim told her that she had been kidnapped by a person for one and half months and had been subjected to sexual intercourse by that person on three or four occasions. He proved the medical report. 13. In the light of the aforesaid evidence on record I am of the opinion the version of the victim P.W. 2 that she had been kidnapped, raped and detained against her will by the appellant in the house of the Timir Nag has been proved beyond doubt. 14. With regard to the age of the victim I note that both the victim and her father stated that she was around 15 years of age and was a student of class IX in B.J.R.C. High School. P.W. 7, the headmaster of the said high school exhibited the certificate and admission register, Exhibit 3 and 4 respectively, which showed that her date of birth as 10.04.1993. The victim had been admitted in the school on 10.05.2002. These evidence clearly prove that the victim was around fifteen and half years of age at the time when she had been kidnapped and raped. 15. It is argued no ossification test was held to determine the age of the victim. Medical evidence with regard to age is an approximation whereas the evidence of the father of the victim corroborated by a contemporaneous entry in her school records maintained in the ordinary course of business is a more authentic and convincing piece of evidence with regard to her age. 16. Moreso, I have no doubt with regard to the authenticity of the entries made in the admission register maintained in the said school in ordinary course of business. Hence, I am of the opinion failure to hold ossification test to determine the age of the victim does not affect the credibility of the prosecution case. 17. In the light of the aforesaid discussion, I uphold the conviction recorded against the appellant. 18. Coming to the issue of sentence, I note the offence is a serious one. Hence, I am of the opinion failure to hold ossification test to determine the age of the victim does not affect the credibility of the prosecution case. 17. In the light of the aforesaid discussion, I uphold the conviction recorded against the appellant. 18. Coming to the issue of sentence, I note the offence is a serious one. However, appellant has no criminal antecedents and the victim was marginally below the age of consent, i.e. 16 years. 19. Balancing the aggravating and mitigating factors in the instant case, I consider it prudent to modify the substantive sentence imposed on the appellant on the count of sections 366/376 of the Indian Penal Code. 20. Accordingly, I direct that the appellant shall suffer rigorous imprisonment for eight years and pay a fine of Rs. 25,000/- (Rupees twenty five thousand only), in default, to suffer rigorous imprisonment for six months more on each count, respectively. 21. Sentence for the offence under section 363 of the Indian Penal Code shall remain unaltered. 22. All the sentences shall run concurrently. 23. The period of detention, if any, undergone by the appellant during the period of investigation, enquiry and trial shall be set off against the substantive sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure. 24. The appeal is accordingly disposed of. 25. Copy of this judgment along with the lower court records be sent down to the trial court immediately for necessary action and execution of the sentence. 26. I agree.