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2020 DIGILAW 489 (CAL)

Abed Ali Biswas v. State Of West Bengal

2020-06-12

SAHIDULLAH MUNSHI, SUBHASIS DASGUPTA

body2020
JUDGMENT Sahidullah Munshi, J. - This appeal is against the judgment and order of conviction dated 19th August, 2015 and order of sentence passed on 20th August, 2019 by the learned Additional District and Sessions Judge, 2nd Court, Krishnagar, Nadia in Sessions Trial No. 33(iv)of 2015 arising out of Sessions Case no. 5(03)15 (Special) convicting the appellant under Section 376 of the Indian Penal Code and under Section 4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act'). 2. Prosecution case in brief is that on 18.09.2013 one Rejaul Sekh (PW3) lodged a written complaint with the Officer-in-charge, Chapra Police Station lodging, inter alia, that since three months back from 23rd March, 2015 the appellant took the victim girl (PW1) of 13 years to a bank of river on a ploy to catch fish, committed rape on her and thereby committed penetrative sexual assault on the victim. After receipt of the complaint from grandfather (PW3) of the victim. Chapra PS case no.253/2015 dated 23.03.2015 was registered under Section 376(2)(i)/506 of Indian Penal Code and Section 4 of the POCSO Act. After investigation, the Investigating Agency submitted charge-sheet no.309/2015 on 30.03.2015 under Section 376(2)(i)/506 and Section 4 of the POCSO Act against the appellant. After receipt of such charge-sheet and upon compliance of necessary formalities the case was committed and transferred to the Additional District and Sessions Judge, 2nd Court, Krishnagar, Nadia. Charge under Section 376 of Indian Penal Code and Section 4 of the POCSO Act was framed against the appellant on 10.04.2015. Charges were read over and explained to the appellant, to which he pleaded not guilty and claimed to be tried. 3. In order to prove its case prosecution examined 14 witnesses and also relied on some documentary evidence. Defence adduced no oral evidence and pleaded a total denial of the occurrence of the alleged offence and that he was forcefully implicated in the case. 4. Learned Trial Judge on perusal of evidence on record and also after examining the appellant under Section 313 of the Code of Criminal Procedure and after hearing the submissions made on behalf of the parties, passed his judgment and order of conviction and sentence passed respectively on 19.08.2015 and 20.08.2015 convicting the appellant and sentenced him under Section 376 (2)(i)/506 of IPC and Section 4 of the POCSO Act. 5. 5. Written complaint was filed by one Alid Biswas (PW3) on the basis of which FIR was registered on 23rd March, 2015. In the complaint PW3 made out a case that his grand-daughter, the victim (PW1) aged about 13 years who was also student of Class-VI at Pathardaha Junior High School, was subjected to physical violence by the accused about three months ago. The accused whom the victim used to call 'Nana' (grandfather) duped her taking advantage on a fact that the victim lost her father at her early stage and her mother was a physically challenged lady married second time to some other person and in such a situation the victim is being looked after only by the complainant (PW3). The accused took the victim to a bush near river Jalangi. 6. Victim'S statement was recorded under Section 164 by the learned Magistrate and such statement under Section 164 has been marked as Exbt.1. After the incident, victim was first treated at Chapra hospital and thereafter, to Saktinagar Hospital. PW7 is the first doctor who examined the victim and PW11 is the second doctor who conducted ultrasonography of the victim. In order to prove the offence complained of, prosecution has examined PW1 and relied on other corroborating witnesses. PW1 in her examination stated that while she was playing at her Para (area), her 'Nana' Boga Biswas the accused called her to the bank of a river and took her to a bush at that time, the accused committed rape on her and thereby she became pregnant. She had been threatened by the accused that if she disclosed the fact to her mother he would kill her by Hansua. Even after a thorough cross-examination by the defence PW1 remained unshaken and she deposed that "At first, I raised objection for not going with accused to the bank of river and started to shout. Nobody came there as the place is lonely. My two friends did not accompany me to go to the bank of river. I voluntarily accompanied with accused to the bank of river. 7. When I went to the spot, I found nobody present there. I tried to resist the accused, when I was taken to bush. I cannot say the area of the bush where I was taken by the accused. 8. After committing rape by the accused, I went to my house. 7. When I went to the spot, I found nobody present there. I tried to resist the accused, when I was taken to bush. I cannot say the area of the bush where I was taken by the accused. 8. After committing rape by the accused, I went to my house. Due to such incident, my wearing apparels were not torn. I sustained injury on my body." 9. Since the victim stated that she voluntarily accompanied by the accused to the bank of river, learned advocate for the appellant submitted before this Court firstly, that it was because of her consent the rape was committed. Therefore, the rape is a consensual rape. Secondly, that the victim attained the age of consent and therefore, the offence complained of cannot be held to be an offence under Section 376(2)(i) IPC read with Section 4 of POCSO Act, having regard to such consent. In support of the submission that the victim has attained majority, that is, 18 years, the learned advocate for the appellant relied on the deposition of the victim where she has stated "After death of my father, my mother married for the second time with one Latif Sheikh. I have one step sister, namely, Soraya Khatoon. My father died about 17/18 years back. While I was aged about one year, my father died. At present, I am residing with my step father. My 'Nana' Alid Biswas is looking after me." Learned Advocate submits that if such fact appears to be true that the victim on the date of occurrence was not a minor or mature. According to him, as per written complaint, the date of occurrence would be 23rd March, 2015 when the written complaint was filed and that should be 23rd December, 2014. Deposition was recorded on 04.05.2015 and if she has spoken the truth that her father died 17 years back it would be May, 1998 when she was one year only meaning thereby her date of birth would be May, 1997. If that be so from May, 1997 therefore, on the date of occurrence she was 17 years 7 months and 19 days (approx). According to learned advocate for the appellant the charge which was framed against the accused cannot be sustained. On the point of age in her cross-examination the victim was asked whether she was aged about 19-20 years on the day of the incident. According to learned advocate for the appellant the charge which was framed against the accused cannot be sustained. On the point of age in her cross-examination the victim was asked whether she was aged about 19-20 years on the day of the incident. She clearly refused to agree to the suggestion put by the defence. She has also denied the suggestion that she had been deposing falsely as per dictation of her Nana (PW3). She also denied the suggestion that the case was framed for collecting money. In such circumstances it can hardly be contended that PW1 victim was lieing before the Court while her statement under Section 164 has been proved through the learned Magistrate (PW12) who recorded such statement and has been marked as Exbt.1. Victim's statement before the Court has been duly corroborated by her statement recorded under Section 164 which has been proved by the learned Magistrate in her deposition before the Court. Therefore, the complaint which has been filed by PW3 gets further corroboration from PW1. 10. The complaint filed by PW3 and the deposition of the victim (PW1) and her statement under Section 164 is considered together with the medical evidence of PW7 and PW9. Commission of the offence gets further corroboration. PW7 is the first doctor who examined the victim on 23.03.2015 and opined that the patient was pregnant for three months while PW7 referred the patient to Nadia District Hospital, Krishnagar for opinion of gynecologist. Medical report signed by the doctor (PW7) has been marked as Exbt.3. So far the age is concerned, the doctor was informed by the mother that the victim was 13 years old on the date of occurrence. The victim was brought before the doctor by a police constable attached to Chapra P.S. From the examination of PW11 who is another doctor conducted USG of the victim on 25.05.2015 and found that she was carrying 21 weeks. USG report has been marked Exbt.6. This Exbt.6 and testimony of PW11 further corroborates the statement of the mother (PW2) who deposed before Court that her daughter was carrying three months when she first came to learn of the incident. From evidence it appears that when the victim was asked by her she disclosed the name of the accused. The statement of PW2 has also been recorded under Section 164 of the Code of Criminal Procedure. From evidence it appears that when the victim was asked by her she disclosed the name of the accused. The statement of PW2 has also been recorded under Section 164 of the Code of Criminal Procedure. Therefore, the complaint as regards the offence committed by the accused is difficult to be disbelieved. On the point of age of the victim it is the consistent stand of the victim PW1, her mother (PW2), FIR maker (PW3) that the victim would be of 13 years of age and further that there was no birth certificate available from the end of the victim or her mother or her grandfather. And particularly, when the mother of the victim (PW2) in her cross-examination stated that she is a beggar by profession and she had no paper to show the date of birth of her daughter. On a comparison of the opinion of doctor (PW7) with his report (Exbt.3) and the testimony of the doctor conducting ossification test of the victim and her report (Exbt.6), we do not find any contradiction in between the victim's statement with that of her mother's testimony and that of the FIR maker (PW3). The evidence of PW1, PW2 and PW3 and the post occurrence witness PW6 reveals the correctness of the complaint case. Making a scrutiny of the evidence of PW13 the Investigating Officer who deposed that during investigation he visited the place of occurrence and examined available witnesses and recorded statement under Section 161 of the Code of Criminal Procedure. He took steps for examination of the victim as well as the accused by doctors for their medical test and collected medical report. The victim girl was sent before the learned Magistrate for recording her statement under Section 164 Cr.P.C. and the same is placed before the Court. Investigating Officer appears to have seized the school certificate where the victim's date of birth has been mentioned in the seizure list specifying that the date of birth was recorded in the admission register of the school to be 07.05.2002 and this seizure list containing entry of the date of birth of the victim as per the school admission register has been marked as Exbt.10 without any objection raised on behalf of the defence. On the point of age apart from the seizure list (Exbt.10) defence cross-examined the Investigating Officer and in reply the IO stated "Not a fact that I purposefully concealed ossification test report of the victim though it was held by doctor. Not a fact that in the ossification test report, age of the victim was written as 19 to 20 years. I did not collect the birth certificate of the victim from the competent authority." In the cross-examination of the Investigation Officer he further stated "Not a fact that victim is more than 18 years of age..." 11. From such cross-examination it is found that the seizure list has been admitted into evidence without any objection and particularly the date of birth has been mentioned in the seizure list to be 07.05.2002 and more so, it is mentioned that such noting has been made as per the admission register maintained by the school. In such circumstances unless any objection was raised by the defence regarding admission of the seizure list into evidence and being marked as exhibit. We are not inclined to travel further to ascertain whether the girl was a minor or major. We further do not agree with the suggestion of the learned advocate for the appellant that the girl attained the age of consent simply because it was in the evidence that she had cohabitation with the accused on repeated occasions. 12. Learned advocate for the appellant pointed out that time contradiction apparent on the face of the record may be fatal to belie the prosecution case. He has drawn attention of the evidence of PW14 who is a lady assistant Sub-inspector of police posted at Krishnagar Women P.S. on 24.03.2015 when the victim girl stated to her that the incident took place in the month of Aswin or Kartick. According to the learned advocate, if she is treated to be a post-occurrence witness before whom the victim disclosed the alleged incident and if the statement made by the victim is to be believed then the date of occurrence would be October or November. This evidence of PW14 cannot be solely relied for the acquittal of the accused because of this time contradiction. We have perused the reports of medical examination conducted by PW7 and PW11. Their reports (Exbt.3 and Exbt.6) cannot be brushed aside simply for the alleged contradiction of one or two months. This evidence of PW14 cannot be solely relied for the acquittal of the accused because of this time contradiction. We have perused the reports of medical examination conducted by PW7 and PW11. Their reports (Exbt.3 and Exbt.6) cannot be brushed aside simply for the alleged contradiction of one or two months. We cannot thus throw out the prosecution case as a whole holding that entire story is a concocted one as claimed by defence. The only question arises why the victim did not disclose the occurrence to her mother or grandfather immediately. We have perused the evidence of the victim (PW1) and her statement under Section 164 Cr.P.C. which reveals that the accused threatened the victim to kill her mother if she disclosed the fact to her. Even the victim gives description of sharp cutting weapon with the accused while he took her to violate. The evidence further reveals that accused is none else but the brother of PW3 and the victim calls her 'Nana' (grandfather's brother) in the sense that he is the brother of Alid Biswas (PW3) the FIR maker. Therefore, it cannot also be doubted as to why the victim accompanied the accused. There are sufficient reasons to believe that the victim was lured by the accused to accompany him for fishing in the river and while the victim accompanying him, she had been violated by her near relation, accused, taking advantage of the situation which we have already discussed earlier. 13. In such a situation it is the case where there is hardly any chance for the accused to submit that the order passed by the learned Court below cannot be sustained. The evidence on record also does not show any other things of false implication of the accused that he had been framed in the alleged offence. Various suggestions were given on behalf of the defence to the witness on the question of enmity and on the question of illegal monetary gain but nothing could be procured therefrom and the witness remained un-shaken. In such situation the outcome of the elaborate cross-examination if could not yield anything favourable for the defence it would surely go against them and in the instant case we cannot take a different view that the accused is not guilty. In such situation the outcome of the elaborate cross-examination if could not yield anything favourable for the defence it would surely go against them and in the instant case we cannot take a different view that the accused is not guilty. Even the victim what had described in her statement under Section 164 Cr.P.C. before the learned Magistrate and what the learned Magistrate deposed before the Court in her examination, we cannot hold that the statement of the victim does not inspire confidence of the Court. It is the settled law that in a case of rape the victim's sole testimony may be considered and the same is at par with an injured witness and that would be sufficient to hold that she has spoken the truth before the Court and this is sufficient for inflicting punishment upon the accused. In the instant case since the provision of POCSO Act is attracted presumption under Section 29 if applicable whether the accused is to prove that he is innocent. Looking at the examination of the accused under Section 313 Cr.P.C., we find that the accused has only taken a plea of not guilty. He has not even spent a single word that he has been falsely implicated. 'Not guilty' or 'innocent' in a matter where allegation of rape against a minor girl is concerned is too poor a plea to lead to acquittal of the accused. 14. As held by the Hon'ble Apex Court in Vimal Suresh Kamble - Vs. - Chaluverapinake Apal S.P. and Anr., (2003) 3 SCC 175 sole testimony of a victim in a rape case is itself sufficient to hold the accused guilty. Without getting any corroboration from any other independent witness as the victim in a rape case is compared to that on an injured witness. 15. In this regard we may consider the provision of Section 375 and 376 of the Indian Penal Code which defines rape and its punishment. The provisions are set out below: "S.375.. Rape.-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First - Against her will. Secondly -Without her consent. Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Secondly -Without her consent. Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly -With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years of age. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception -Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. STATE AMENDMENT Manipur -(a) in clause sixthly, for the word "sixteen" substitute the word "fourteen"; and (b) in the Exception, for the word "fifteen" substitute the word "thirteen". [Vide Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950) (made earlier than Act 43 of 1983)]. S.376. Punishment for rape.- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,- (a) being a police officer commits rape- (i) within the limits of the police station to which he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) commits rape on a woman knowing her to be pregnant; or (f) commits rape on a woman when she is under twelve years of age; or (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.-Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.-"Women's or children's institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.- "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation." 16. Explanation 3.- "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation." 16. Explanation to Section 375 says penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape and if such thing happens against the will of the victim and without her consent the section is attracted. In this case evidence reveals that there had been sexual intercourse by the accused resulting whereby the victim conceived. Evidence further revealed that the victim had no consent because she did not attain the age to give consent in law. Similarly, if she cannot give consent whether she had will or not is immaterial. 17. The learned advocate for the appellant drew our attention to a portion of the evidence of PW1 where she admitted that the occurrence was for repeated occasions and the learned advocate tried to capitalize this to be consent of the victim. Even this argument cannot stand when the other part of the evidence of PW1 and her statement under Section 164 is taken into consideration leads to a conclusion that the consent even if so obtained that was by putting the victim under fear of death of her mother or the victim herself. Therefore, the components of Section 375 is fully applicable in this case which follows the consequence of punishment for rape under Section 376 IPC. This is again to be read with Section 4 of the POCSO Act, which is set out below: "S.4.- Punishment for penetrative sexual assault.- Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine." 18. Learned advocate appearing for the appellant argues that the age of the victim cannot be 13 years as stated by her mother (PW2) inasmuch as the victim herself in her evidence stated that there was repeated intercourse with the accused/appellant and further medical report (Exbt.5) where it has been recorded by the doctor on the basis of the statement made by the victim that she had been physically violated for about 5-6 days consecutively. This shows that the girl is a major girl. This shows that the girl is a major girl. He further submitted that the mother in her evidence declined for DNA test proposed by the Investigating Officer. On a scrutiny of such evidence recorded during cross-examination of PW3 on 04.05.2015 it further does not reveal so. In the said crossexamination of PW3 stated "Not a fact that I never claimed money from the accused for compromising the matter. Not a fact that my granddaughter became pregnant due to free fixing with different persons and not the accused and for such reason, I did not agree for D.N.A. test by daroga-babu. Not a fact that due to animosity with accused, I have filed this false case against the accused person." 19. The statement of the witness in cross-examination leaves no doubt in our mind to come to a conclusion that neither was there any declination of PW3 for undertaking DNA test nor was there any animosity with the accused for which the accused/appellant could have been implicated falsely in the present case. However, if the cross-examination of the Investigating Officer PW13 on 03.07.2015 is taken into consideration it does not reveal that the Investigating Officer at all suggested for DNA test. Therefore, the submission on behalf of the defence that PW3 denied the suggestion of the Investigating Authority to undergo DNA test is not corroborated by the evidence of Investigating Officer. This submission has no merit. 20. Learned advocate further submitted that the prosecution has withheld the best evidence by not producing the ossification test report and therefore, presumption must go against the prosecution and the defence should get benefit out of it. But fact remains there was no ossification test report as it is revealed from the crossexamination of Investigating Officer on 3rd July, 2015 where he replied "I submitted charge sheet against the accused person under section 376 of I.P.C. I did not send the victim girl for her ossification test." And on the suggestion of the defence again it has been stated by the Investigating Officer "Not a fact that in the ossification test report, age of the victim was written as 19 to 20 years." Therefore, from such evidence of the Investigating Officer it does not appear that the prosecution sent for ossification test and report has been withheld by the Investigating Officer. If that be not the case, submission made by the learned advocate for the appellant on principles of withholding the best evidence, does not apply. 21. Learned advocate for the State has made categorical statement that the prosecution has been able to prove the offence against the accused/appellant beyond all reasonable doubts. The defence even after cross-examining the witness could not illustrate anything in support to make out an arguable case for acquittal of the convict/appellant. In support of conviction the State has relied on the following decisions: Kamal Kishore -Vs. - State of H.P., (2000) 4 SCC 502 & Dhiren Roy -Vs. - The State of West Bengal & Ors., (2018) 3 CalCriLR 1 (Cal). 22. In Kamal Kishore (supra) the decision is on different context where evidence indicates about the discrepancy as regards the age of victim and ossification or pathological test not carried out, finding of Sessions Court on the issue of relying on the statement of the mother need not be entertained with. In the present case we have already pointed out that both the victim (PW1) and mother (PW2) have stated the victim's age to be 13 years on the date of commission of offence. 23. In Dhiren Roy (supra) the issue was whether ossification test report can be taken for sure about the age of the victim? The Hon'ble Court while affirming the conviction held that " ossification test is not a surest test for determining age " This Hon'ble Court has also held in the said decision "It is well settled that when that discretion has been properly exercised, an appellate Court should not interfere unless there are very strong reasons and in case where the sentence cannot be said to be so grossly inadequate as to amount to a miscarriage of justice." Similar is the situation here where we do not find that the learned Court has committed any gross irregularity and illegality in convicting the appellant and pronouncing sentence. 24. On an analysis of the entire evidence we are of the firm view that not only the fundamental fact has been proved by the prosecution but the prosecution case has been proved beyond any reasonable doubt that the accused has committed the offence under which he was charged. We do not find any illegality on the part of the learned Court below to inflict punishment upon the accused. 25. We do not find any illegality on the part of the learned Court below to inflict punishment upon the accused. 25. We, therefore, are not inclined at all to interfere with the judicious discretion used by the Court below in sentencing the appellant. The judgment of conviction and order of sentence passed by the learned trial Court deserves to be confirmed. 26. The judgment of conviction and order of sentence is, therefore, confirmed. 27. Criminal Section is directed to send down the records to the learned Court below together with a copy of the judgment forthwith to the concerned learned trial Court. 28. Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities. 29. I agree.