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2020 DIGILAW 77 (CAL)

Debdas Mondal v. State Of West Bengal

2020-01-20

JOYMALYA BAGCHI, SUVRA GHOSH

body2020
JUDGMENT Joymalya Bagchi, J. - The appeal is directed against the judgment and order dated 18.6.2016 passed by the learned Additional Sessions Judge, Fast Track, 2nd Court, Hooghly in Sessions Trial No.22 of 2014 arising out of Sessions Case No.22 of 2014/507 of 2014 convicting the appellant for commission of offence punishable under Sections 376(2)(f) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 10 years and to pay fine of Rs.10,000/- in default to suffer further imprisonment for two months. 2. Prosecution case, as alleged, against the appellant is to the effect that on 12.8.2012 at around 12 noon, the victim girl aged about 4 years could not be traced at her residence. Her mother started searching for her and finally recovered her from the house of the appellant. She was found sobbing and had injuries in her private parts. She told her mother that the appellant had tempted her to follow him into his room on the allurement of giving her food and thereafter had raped her. She was treated at Jirat Hospital on the self-same day. On the written complaint of the mother of the victim, P.W.1, Balagarh P. S. Case No.178 of 2012 dated 12.8.2012 under Section 376(2)(f) of the Indian Penal Code was registered for investigation. In the course of investigation, the victim was again medically examined during investigation. In conclusion of investigation, charge sheet was filed and the case was committed the Court of Sessions and transferred to the court of the learned Additional Sessions Judge, Fast Track, 2nd Court, Hooghly for trial and disposal. Charge was framed under Section 376(2)(f) of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 16 witnesses and exhibited number of documents. In conclusion of trial, trial court by judgment and order dated 18.6.2016 convicted and sentenced the appellant, as aforesaid. 3. Learned Advocate appearing for the appellant argued that the allegation of penetrative sexual assault on the victim has not been proved beyond doubt. Medical evidence with regard to injury on the private parts of the victim is contradictory. Time of examination of the victim at Balagarh PHC appears to be prior to the incident. Hence, there is serious doubt with regard to authencity of the medical report. Medical evidence with regard to injury on the private parts of the victim is contradictory. Time of examination of the victim at Balagarh PHC appears to be prior to the incident. Hence, there is serious doubt with regard to authencity of the medical report. Evidence of the prosecution witnesses including the victim appear to be embellished and are at variance from the case narrated in First Information Report. P.W.1, mother of the victim admitted that there was civil dispute between the parties. Possibility of false implication is writ large in the facts of the case. Hence, the appellant is entitled to an order of acquittal. 4. Learned Public Prosecutor submitted that the evidence of the minor victim P.W.7 unequivocally establishes the prosecution case against the appellant. Her evidence is corroborated by her parents as well as relations and other witnesses. Victim was recovered from the house of the appellant. Injuries were found in her private parts at Balagarh PHC by P.W.16. Incorrect recording of time in the medical report would not affect the authencity of the said document. Allegation of enmity is vague and in view of the overwhelming evidence on record, the prosecution case is proved beyond doubt. 5. The victim was a four and half year old girl at the time of the incident. On the fateful day, she was found missing from the residence. Her mother P.W.1 started searching for her and the victim was recovered from the house of the appellant. These facts have been narrated in the First Information Report, Ext.1 which was lodged soon after the incident by P.W.1, mother of the victim. Her version is corroborated by her husband, P.W.2, her mother-in-law, Parul Dhali, P.W.6 and another daughter Latika Dhali, P.W.10. Other witnesses viz., P.W.3, P.W.5, P.W.8 and P.W.9 have also corroborated the evidence of the aforesaid witnesses. Their version has been criticized on the ground that their evidence is at variance with the genesis of the incident as described in the First Information Report. Presence of chappal (foot wear) of the victim in front of the room of the appellant was not stated in the First Information Report. Other incriminating facts i.e. the appellant was found inside the room with the victim and the door was locked from inside are also significantly absent in the FIR. Presence of chappal (foot wear) of the victim in front of the room of the appellant was not stated in the First Information Report. Other incriminating facts i.e. the appellant was found inside the room with the victim and the door was locked from inside are also significantly absent in the FIR. It is strongly contended that witnesses had developed the aforesaid case in Court to probabilise presence of the appellant at the scene of crime although such aforesaid facts were absent in the First Information Report. The fact that the appellant was arrested on the next day adds to the improbability of the deposition of the witnesses that he was present in the room when the victim was recovered. If the appellant was present at the spot when the victim was recovered from his room with bleeding injuries as deposed by prosecution witnesses, he would have been caught red-handed. However, the appellant was arrested on the next day casting serious doubt with regard to his presence in his room when the victim was recovered. 6. I have given anxious consideration to the aforesaid contentions of the appellant. There are some embellishments in the deposition of the aforesaid witnesses with regard to noticing of chappal of the victim in front of the room of the appellant and his presence at the spot. However, crux of their evidence with regard to recovery of the victim from the room of the appellant with injuries finds resonance with the First Information Report registered in the instant case. 7. Hence, on an analysis of their evidence, I am of the opinion that the said witnesses have unequivocally deposed that the victim was recovered on the fateful day around 12 noon from the room of the appellant with bleeding injuries in her private parts. Thereafter, the victim (PW7) narrated to them the incident of penetrative sexual assault upon her by the appellant. These corroborative pieces of evidence support the version of the victim herself, P.W.7, the star witness. She was a seven year old child at the time of examination. Trial court took pains to put question to her to examine her capacity to depose. After being satisfied, her deposition was recorded. The victim unequivocally stated on the fateful day she was lured into the room of the appellant and was subjected to penetrative sexual assault. She suffered bleeding injury. Trial court took pains to put question to her to examine her capacity to depose. After being satisfied, her deposition was recorded. The victim unequivocally stated on the fateful day she was lured into the room of the appellant and was subjected to penetrative sexual assault. She suffered bleeding injury. Her mother recovered her from the room of the appellant. She was treated by the doctor (P.W. 16). Cross-examination of the said witnesses did not make any dent to the aforesaid narration of events. 8. Hence, I am inclined to hold that the clear and unequivocal version of the minor victim is corroborated by the evidence of other prosecution witnesses and establishes the case of penetrative sexual assault. 9. Medical evidence in the present case also supports the prosecution case. P.W.16, Dr. Sourav Jash treated the victim on the date of the incident. He found swelling and tenderness in her internal genitalia. He proved the report marked as Ext.11. On the next day, she was treated at Chinsurah Hospital by Dr. Gautam Kumar Mondal, P.W.14. He, however, did not find any injury on the victim and reserved opinion regarding sexual assault on her which, according to him, was required to be established through circumstantial evidence. He proved his report, Ext.4. Evidence of P.W.16 and the medical report at Balagarh PHC, Ext.11 has been strongly criticized as such opinion is contrary to the opinion of P.W.14 and the time of examination in the said report (Ext:11) was noted as 11.30 A.M, i.e, prior to the occurrence at 12 noon. 10. The victim had been rushed to Balagarh PHC immediately after she was recovered by P.W.1 from the room of the appellant with bleeding injuries. One cannot be unmindful of the distraught mental condition of P.W.1 who brought the victim to the PHC and the stressful circumstances in which medical attention was extended to the minor victim of sexual assault. Judged from such perspective, the minor error in recording the time of examination in the medical report, in my estimation, does not affect its truthfulness. Even the variation in the medical opinion of the two doctors must be assessed from the time when they had examined the victim. P.W.16 had the occasion of examining the victim immediately after the incident. He had noted swelling and tenderness in the private parts but recorded the prognosis as good. Even the variation in the medical opinion of the two doctors must be assessed from the time when they had examined the victim. P.W.16 had the occasion of examining the victim immediately after the incident. He had noted swelling and tenderness in the private parts but recorded the prognosis as good. On the next day, P.W.14 examined her and could not find any injury on the victim. As prognosis of the injury was good, passage of time between the two medical examinations, in my considered opinion, had resulted in subsiding of the swelling in the private parts and, therefore, such sign was not noted by P.W.14 when he examined the victim. Under such circumstances, the medical opinion of P.W.14 and P.W.16 are clearly reconcilable and the prosecution case does not suffer a jolt on such score. 11. In the light of the aforesaid discussion, I am of the opinion that the evidence of the victim, P.W.7 is not only corroborated by the evidence of her parents and other witnesses but also by the medical evidence on record. Complete penetration is not necessary to prove a case of penetrative sexual assault. Slightest penetration of the vagina which appears to be corroborated by swelling and tenderness in the genitalia establish the ingredients of the offence. Hypothetical version of similar injury by fall without being corroborated by circumstances available in the case would not affect the credibility of the prosecution case. 12. Lastly, it has been argued that the appellant had been falsely implicated due to enmity as there is civil dispute between the parties. Although P.W.1 admitted there was a land dispute between them, no particulars with regard to the dispute and/or contemporaneity of such dispute vis-a-vis the incident has been probabilised by the defence. Vague plea of a prior litigation would not affect the prosecution case which appears to be firmly established by the corroborative version of the minor victim supported by medical evidence. 13. Accordingly, I am inclined to uphold the conviction and sentence of the appellant imposed upon him. 14. The appeal is dismissed. 15. 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. 16. 14. The appeal is dismissed. 15. 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. 16. Copy of the judgment along with lower court records be sent down to the trial court at once for necessary compliance. 17. Urgent photostat certified copy of this order, if applied for, shall be given to the parties, as expeditiously as possible on compliance of all necessary formalities. 18. I agree.