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Bimal Pradhan vs State Of West Bengal on 18 November, 2019

In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side

Present:-
The Hon’ble Justice Sahidullah Munshi.
And
The Hon’ble Justice Subhasis Dasgupta.

CRA No.743 of 2014

Bimal Pradhan
Vs.
State of West Bengal

For the Appellant : Mr. Ayan Basu, Adv.

Mr. Shiladitya Banerjee, Adv.

Mr. Prabir Kumar, Das, Adv.

Mr. Sumit Routh, Adv.

For the State : Mr. Binoy Kumar Panda, Adv.

Mr. Subham Kanti Bhakat, Adv.

Judgment on : 18.11.2019

Subhasis Dasgupta, J:-

This Criminal Appeal being no. 743 of 2014 is directed against the

judgment and order of conviction dated 14.3.2014 and 15.3.2014, passed by

Learned Additional Sessions Judge, 1st Court, Darjeeling in Sessions Trial
No.01/2009, arising out of Sessions Case No. 26/2008, convicting the appellant

under Section 376 (2) (f) of the Indian Penal Code and thereby sentencing him to

suffer rigorous imprisonment for life and to pay fine of Rs.5000/- (rupees five

thousand), in default to suffer 1 (one) year Simple Imprisonment.

The factual position in a nutshell, as established in trial, is that on

19.7.2008, at about 2 p.m., the complainant/mother went to participate in the

procession of Gorkha Nari Mukti, conducted by Gorkha Janamukti Morcha,

keeping her seven (7) year old daughter (victim) under the temporary care of one

Sankar Tamang (husband of PW-3), a neighbour of complainant. The

convict/appellant during the absence of de-facto complainant/mother took her

daughter from the house of Shankar Tamang to his rented house at about 4 p.m.

After participating in the procession, the complaint/mother returned home at

about 4 p.m., and while searching for her daughter, she could find her

daughter/victim lying in unconscious condition with evidence of bleeding from

her private parts and further her wearing apparels becoming stained with blood.

After regaining sense, the victim/daughter, on a query being raised by

complainant/mother, told her mother that accused had ravished her taking her

to his rented house.

Police took up investigation on the basis of such complainant. Both victim

and the accused person as well were put up for medical examination. Victim was

subjected further to ossification test for determination of her age.
The statement of the victim (PW-2) and two other witnesses (PW-4 and PW-

9, marked as Exhibits-10, 11 and 5 respectively) was recorded. The birth

certificate recording date of birth of victim, dated 14.12.2001, was produced.

The victim had to be admitted in the hospital for three days. The injuries

sustained in the vagina of the victim were repaired taking her in the operation

theatre of the hospital. The wearing apparels of both victim and convict appellant

were sent to FSL examination and report. The report was collected. On

conclusion of investigation, police submitted charge-sheet.

The Trial Court after framing charge against the accused under Section

376 (2) (f) of the Indian Penal Code, examined as many as 17 (seventeen)

witnesses including the parents of the victim girl (PW-1, PW-5) and the doctor,

who medically examined the victim girl being a gynaecologist of Darjeeling Sadar

Hospital (PW-12).

The court conducting the trial, after collection of evidence proceeded to

hold the appellant guilty of offence, already charged with, relying upon the

evidence of PW-2 (victim), her mother (PW-1), PW-4 and PW-9, who found

convict/appellant taking away the victim to his rented house and also returning

to the place, where from the victim was taken away together with the medical

evidence of doctor examining the victim girl (PW-2).

Learned advocate for the appellant assailed the order of conviction and

sentence thereunder principally on two grounds, one on contradiction contained

in the evidence, and another on disproportionate sentence awarded against the

appellant. The contradiction in evidence, according to convict/appellant
rendered the prosecution case to be highly improbable. The discrepancy,

according to appellant was there first in the testimony of the PW-1 (the FIR

maker) and that of the FIR, relying upon which the prosecution case was set in

motion, and those two versions cannot go together. Thus, according to FIR, the

victim was found lying on road with evidence of bleeding, but PW-1 spoke in her

evidence that while searching for her daughter after returning from procession,

she went to the house of PW-3, a neighbour, being wife of Sankar Tamang, and

found her there with evidence of bleeding on her private parts. In order to

establish this contradiction more and more, our attention was drawn to the

testimony of PW-3, to whom victim (PW-2) reported about the incident for the

first time, wherein PW-3 claimed that when she had started going to the house of

victim after becoming aware of the incident, the victim became unconscious and

fell down.

The further contradiction attempted to be established was with regard to

giving one rupee to victim by convict/appellant after the occurrence, as stated by

the victim, PW-2, and her mother, PW-1 in their evidence, but could not be

disclosed in the FIR itself, causing the prosecution story a doubtful episode as

per version of appellant.

PW-3 is a witness, in whose house the victim was kept deposited by her

mother, while leaving for participation in a procession of Gorkha Nari Mukti,

organised by Gorkha Janamukti Morcha on 19th July, 2008, and she was the

first person to know about incident, pursuant to the disclosure of victim (PW-2).

PW-3 could notice that victim was wearing pant belonging to the son of the
accused with marks of bleeding not only on her wearing apparels, but also from

her private parts. Victim on her arrival to the house of PW-3 was found shivering

with restlessness.

Referring this part of the evidence, learned advocate for the appellant

attempted to establish contradiction regarding the pant being worn by the victim

soon after the incident in the house of convict/ appellant by co-relating with the

evidence of PW-2, wherein victim herself stated that before bringing her to the

house of PW-3, accused himself put on the pant of his son, and thus, according

to appellant, there developed serious contradiction, for which the prosecution

case would not be taken into confidence.

According to respondent/State, the contradiction shown in the evidence

and attempted to be capitalised, should not be seriously considered, because the

discrepancies shown in the evidence pertain to trivial matters. Thus according to

State respondent, the contradictions are on trivial matters being minor in nature,

not affecting the core of the prosecution case.

Herein in this case a Seven (7) year old girl was ravished by the convict

appellant after taking her to a rented house from the house of PW-3, where she

was kept deposited temporality by her mother for taking part in a procession,

conducted by Gorkha Nari Mukti of Gorkha Janamukti Morcha. Admittedly, PW-

3 had the occasion to know about the incident for the first time after being

disclosed by victim, PW-2, when the victim was looked to be shivering and

suffering from restlessness condition. PW-3 admitted in her testimony that the

mother of the victim got the victim deposited in her house soon before the
occurrence, when her husband (Sankar Tamang) was watching T.V programme

in the house. PW-2 started enjoying T.V. programme along with husband of PW-3

in her house. Suddenly at about 2.30 PM convict/appellant visited the house of

PW-3 and joined the T.V. watching programme. PW-3 had to go then to her

kitchen for preparing and serving tea to her husband as well as to

convict/appellant. Till such time, the victim was found playing near the door of

the house of PW-3. Soon thereafter PW-3 indulged in talking with a guest, who

suddenly appeared in her house, standing in her kitchen. After returning form

kitchen and also after departure of the guest, PW-3 did not find victim present in

her house, and naturally PW-3 started searching here and there of her house

including toilet and first floor of her house. On the same day at about 4 PM

convict/appellant came again in the house of PW-3 taking victim with him and

left the place having a glass of water. The victim was found then wearing a pant

belonging to the son of accused. PW-3 could identify the pant quickly, worn by

victim, as the son of the convict appellant would frequently visit the house of PW-

3. On being asked, the victim disclosed everything to PW-3 stating that accused

had committed rape on her taking to the house of convict appellant. PW-3 found

then profuse bleeding from the private parts of the victim oozing out, and her

wearing apparels getting stained with blood. Incidentally, having found the

father of the victim passing the house of PW-3, she asked the father of victim to

send his wife immediately. When PW-3 started proceeding to the house of victim,

the victim suddenly fell down being unconscious, and in the mean time the

mother of victim came towards her house of PW-3. PW-1 while visiting the house
of PW-3, found her daughter wearing a pant belonging to the son of the accused,

as already testified by PW-3.

The evidence referred above is to demonstrate the sequential events, and in

such background, the contradiction sought to be established, in our considered

view, has to be addressed.

PW-2 victim consistently stated in her version that convict appellant took

her to his own house from the house of PW-3 and performed a “Baje Kaj” after

getting her undressed and committed rape on her. After the incident, victim was

taken to the house of PW-3, when she was found wearing a pant belonging to the

son of convict appellant. PW-3 though had the first occasion to know about the

incident, but she stated without any ambiguity in cross-examination that she

had not been interrogated by the police during investigation.

PW-4, another neighbour of PW-1, though found the accused person taking

victim girl towards down hill, but he denied to have been interrogated by the

police during investigation in his cross-examination. His evidence as such not

being examined by the police during investigation would be without any

consequence.

PW-9 is a house wife by profession living in the same locality, where both

convict/appellant and the victim with her mother had their ordinary respective

residence, intervened by some distance. PW-9 is thus a co-villager, having pre-

acquaintance with convict/appellant. She had no enmity to settle an old scar

against the appellant, while testifying the incident before the Trial Court. The

house of accused/appellant is visible from the house of PW-9 being situated in
the same upper direction. PW-9 categorically stated with all emphasis that on the

relevant date of incident at around 3.00 PM, she found accused person taking

victim towards his house by holding her hand. Subsequently, PW-3 came to

know that the victim had been ravished by convict appellant. PW-9 also fond the

wearing apparels of the victim to become stained with blood, when victim was

going to Sonada Police out-post on the same date. She graphically stated in her

cross-examination that the house of victim was situated below the house of

convict appellant, and intervened by distance of 15 minutes on foot. PW-9 has

her own house in the same upper direction lying to the above of the house of

convict appellant. She further clarified in her cross-examination that the house

of convict appellant was situated in between her house and the house of victim

girl. Both the houses of victim and the house of convict/appellant, as well as the

house of PW-9 are at the same upper direction of hill. The credibility of this

witness could not be shaken to be doubt during cross-examination. Though,

PW-3 and PW-4 could not be believed, for they not being examined by the I.O

during investigation, but the evidence of PW-9 could be safely accepted, for the

testimony of PW-9 not being impeached to doubt.

PW-12 medically examined the victim and found two injuries:

(I) Vertical tear at the posterior wall of the perineum of 1 inch.

(II) Tear of 1.5 inch long on the posterior wall of the Vagina.
Hymen was found not intact. There was profuse bleeding from vagina,

when the doctor was medically examining the victim, as a result of which, the

victim had to be taken to O.T. for repairing her vaginal wounds.

According to doctor, the injury was caused due to forceful rape upon the

minor girl. The medical examination report was proved in evidence, and marked

as Exibit-6. Though the injury sustained might be caused due to falling on the

hard rocks or any sharp edged rocks, but the doctor eliminated the possibility in

his cross-examination by testifying that the wound, which the victim was found

to have sustained inside her vagina, could not be caused by any sharp edges.

The testimony of victim claiming to have been ravished by the convict

appellant thus stood objectively established with the evidence of PW-12, who was

definite in his opinion that the vaginal injury sustained by the victim was due to

forceful rape upon minor girl.

The complainant mother produced the birth certificate of her victim

daughter together with discharge certificate of the hospital recording the date of

birth as 14.12.01, which was seized by the police during investigation by seizure

list marked as Exhibit-3. Apart from the collection of the birth certificate of the

victim, she was put up for ossification test, and the ossification test report

marked as Exhibit-7 revealed that the victim girl was above six years old, but

bellow seven years on the date of holding ossification test, done on 19.08.08. The

evidence thus adduced in proof of age of victim, revealed that victim was much

below the age of 12 years, when she had to be a victim of sexual assault. The

FSL report received in respect of analysis of wearing apparels of both victim as
well as convict appellant, and vaginal swab, transpired nothing favourable for the

prosecution, but at the same time the FSL report, however, could not outweigh

the probative value of evidence, adduced by doctor, who held medical

examination of the victim soon after the incident and gave definite opinion of rape

upon visualising the vaginal injuries, sustained by victim together with evidence

of bleeding from her private parts.

As has already discussed that the entire exercise of the appellant was to

make the prosecution case doubtful showing the contradiction, discrepancy

contained in the evidence, but the point requiring decision by this court is

whether a different appreciation of evidence, compared to the Trial Court, could

be made by the Appellate Court in the given context of this case, when there was

no apparent inconsistency in due appreciation of evidence by Trial Court.

Undoubtedly, the Trial Court before whom evidence was given had the

opportunity to form the opinion about the general tenor of evidence given by the

witnesses. The Appellate Court, which has no such benefit, will have to attach

due weight to the appreciation of evidence by the trial Court, if not improperly

made making departure of the principles of law, and unless there are reasons

weighty and formidable, and it would not be proper to reject the evidence on the

ground of minor variations or infirmities in the mater of trivial details.

Respondent State on this score rightly referred a decision delivered in the

case of Vijay Alias Chinee vs. State of Madhya Pradesh reported in (2010) 8

SCC 191 submitting that even honest and truthful witnesses might differ in

some details unrelated to the main incident, because power of observation,
retention and reproduction differ from individual to individual. Herein in this

case the evidence of witnesses, referred above, appears to have been lawfully

believed and accepted ignoring the discrepancies in the evidence upon critically

evaluating the evidence in its entirety. It is settled proposition of law that even if

there are some omissions, contradictions and discrepancies, the entire evidence

cannot be disregarded. Thus, the undue importance should not be attached to

the omissions, contradictions, and discrepancies which would not go to the heart

of the matter, and shake the basic version of the prosecution witness.

Upon appreciating the evidence of witnesses, the Trial Court appears to

have rightly disregarded the minor discrepancies on trivial matters, which did not

affect the very core of the prosecution case and accordingly should not be taken

into consideration while reading the evidence as a whole.

The time contradiction, however, was grossly stressed to be capitalised,

favourable to the purpose of appellant, by submitting that while PW-1 herself

spoke in her evidence that she produced the wearing apparels of the victim to

police on 20.07.08 at about 10.00 A.M. for seizure of the same by police,

another seizure witness, PW-10 contradicting the version of PW-1, stated that the

mother of the victim girl deposited the same to police on 20.07.08 at about 11.30

A.M. rendering the two versions to be irreconcilable and the benefit of which

definitely would go in favour of accused appellant.

Another time contradiction was seriously sought to be established by

drawing our attention to the cross-examination of PW-9 transpiring to the effect

that on the relevant date at about 3.30 P.M., when she approached towards the
house of accused appellant, she found PW-3 and PW-15, the recording officer

being officer-in-charge of Jorebunglow P.S. present in the house of accused

appellant, and referring this part of evidence, learned advocate for the appellant

persuaded us to believe in exercise of his honest effort that had there not been

any incident held prior to 3.00 P.M. on the relevant date, the police would not

have reached to the house of the accused appellant at 3.30 P.M., which was

purposefully kept concealed/suppressed, thereby paving the way to draw adverse

presumption under Section 114(g) of the Evidence Act against the prosecution

evidence.

Here in this case the PW-1 is the mother, while PW-5 is the father of

victim/PW-2. Admittedly PW-5 is a ‘Coolie’ (Porter) by profession. The cross-

examination was not even directed to reveal the educational background of the

witnesses, if there be any, in order to establish the time contradiction, grossly

focused by the learned advocate for the appellant to make the prosecution case a

doubtful episode. Witnesses examined so far are from a different background

being people of hill area having no education, and they are naturally may not be

expected to give a precise account of the incident with all perfection. In the

absence of education, witnesses of this category sometimes they take care of time

for their chronometric sense (determination of time by looking at the sun). In a

case of this nature, where witnesses are bereft of sufficient education, time

contradiction would not matter much. It is impossible to lay down with precision

the chain of events, more particularly, when illiterate hill person villagers with no

sense of time are involved. If we consider this aspect, the contradiction of time,
as shown by appellant, would be without any significance, as it does not go to the

very root of the prosecution case. In the cross-examination of the witnesses, no

material inconsistency was surfaced, except some minor, which is but natural.

The important fact is that omission to state handing over of one rupee

note to victim by convict appellant in the FIR itself, what the witnesses like PW-1,

PW-2 and PW-3 stated in their respective version, though would likely to create

contradiction in the prosecution story, but such contradiction is not patent and

vital one so as to give benefit to the accused appellant, as it would not reach to

the very root of the matter of the prosecution case creating a turbidity in the

prosecution story.

Upon visualizing the entire evidence, adduced by the prosecution in its

entirety with care and caution, it appears to us that the victim was ravished by

the accused appellant taking her to his house at any time during post lunch

session on 19.7.2008, when the mother of the victim left the victim to the house

of PW-3 for taking part in a procession and returned home on the same day at

about 4.00 P.M. in the afternoon.

The other witnesses examined so far are mostly related to the seizure of

the items made in connection with this case, and they are in the nature of

hearsay evidence.

For the discussion made here-in-above, if we disbelieve the testimony of

PW-3 and PW-4 for not being examined by I.O. during investigation, the

prosecution story will not be liable for rejection, as the testimony of PW-9 is

there, which will definitely rescue the prosecution in holding the accused
appellant to be guilty with the aid of medical evidence of PW-12. There is

independent version of victim, which is inherently probable and bereft of any

ambiguity, and it would inspire confidence.

Learned advocate for the appellant proceeded further to assail the

testimony of doctor submitting that whatever injuries found in the vagina were

all inflicted on the posterior wall of the vagina, and in the absence of any

evidence transpiring commission of any injury on the anterior vaginal wall, the

entire prosecution episode of having committed rape on the victim was a doubtful

episode.

According to the appellant, perineum starts after vagina and extends up to

anus. Referring the vertical tear at the posterior wall of the perineum of one (1)

inch, learned advocate of the appellant argued with all humility that in the

absence of any vaginal injury on its anterior wall, there could not be any rape, as

alleged.

It is not alone the vertically tear found on the posterior wall of the

perineum of one (1) inch, but there was further tearing of 1.5 inch long on the

posterior wall of the vagina. Therefore, it is not the perineum alone, but the

vagina also got wounded, and the position of the perineum and vagina are very

critically located side by side. According to Medical Jurisprudence and Toxicology

of “Cox” 7th Edition, the vagina may be regarded as an irregular shaped pocket

with its anterior wall in six (6) centimeter in length. These walls are normally in

opposition and the whole organ is markedly distensible. Since a girl, below twelve

(12) years of age, a tender aged girl, was subjected to rape, when her soft tissues
involved in her private parts are not sufficiently matured enough to give a strong

and permanent shape. As in the absence of successful vaginal penetration, there

could not be any injury in the vagina, has been specifically emphasized by the

doctor in her testimony (PW-12), so absence of injury found on the anterior

vaginal wall of victim, would not matter much, because the ferocity of the thrust

into the vagina together with its momentum and direction are the striking

features, to be taken into account, while making consideration of injury found on

posterior vaginal wall. So, absence of anterior vaginal wall injury would not mean

that there was no penetration. The argument on such core, as advanced by the

defence, would not be an acceptable stand.

Learned advocate for the appellant disputing with the age of the victim

submitted that the age of the victim could not be satisfactorily proved and thus

quoting the provision of the Section 35 of Evidence Act, submitted that evidence

of PW-11, who being an ex-Pradhan of Gram Panchayat simply proved the age of

the victim by making statement alone before the court without producing the

original register recording the date of birth of the victim, and same would not

ipso facto prove the age of victim girl in terms of the provisions of law.

There was no cross-examination to I.O., who could have possibly offered an

explanation as to why the relevant register recording date of birth of the victim

could not be requisitioned at the relevant point of time, when PW-11 adduced

evidence before the Trial in order to prove the age of the victim. More so, the

ossification test report for ascertaining the age of the victim was marked as

exhibit without any objection from the side of defence. The ossification test report
thus can be safely taken to have been accepted without any resistance. That

being the position, what was not established in the cross-examination regarding

non-production of the relevant register, would be a subject of less importance

and no benefit as such would follow in favour of the appellant.

Learned advocate for the appellant submitted that since the prosecution

story was a concocted version and an afterthought production, the same even got

reflected in the conduct and behavior of the father of victim, who even after being

informed that his daughter had been ravished and that too by PW-3 on his way

to home in the afternoon, the father PW-5 without immediately responding to

such sensational information by visiting to the house of PW-3, where the victim

daughter could have been found, the father chose to return home straightaway

and such conduct of the father was highly improbable, being contrary to the

ordinary course of conduct of human being, indicative of a fact being

embellished, suitable to the purpose of prosecution.

It is the categorical evidence of PW-5 (father) that on being reported about

the incident by PW-3, he straightaway proceeded towards his house and sent

thereafter, immediately his wife/PW-1to the house of PW-3. PW-3 however,

supporting the testimony of PW-5 candidly stated that she having found PW-5

coming towards his house, at the relevant time, she called him requesting to

send his wife immediately to her house.

The conduct of a person should not be visualized by adopting a straight

jacket formula. Admittedly, the father of the victim is a porter by profession. The

father was called upon by PW-3, seeing him returning home at the relevant point
of time. PW-5 on being requested by PW-3, sent his wife immediately towards the

house of PW-3, respecting to the request of PW-3. It is not the position that the

father did not even give any regard to the information, furnished by PW-3.

Subsequently, the father after sending his wife to the house of PW-3, left

home for searching Bimal Pradhan, but he could not be found out. The father

performed his duty by taking his wounded daughter to the police station and

ultimately to hospital for treatment. If such conduct of PW-5/father, be viewed

sequentially, no abnormality, contrary to the ordinary course of conduct of a

human being could be directed. The argument thus, raised on this issue by the

appellant would be without any importance.

It was the case of the appellant that though in the F.I.R. it was mentioned

that the complainant mother left her daughter to the house of Sankar Tamang,

being husband of PW-3, but he could not be examined in this case in furtherance

of prosecution. Similarly, the guest, with whom PW-3 had the occasion to talk

standing in her kitchen at the relevant point of time, when the victim was taken

away by the accused appellant to his rented house for committing the crime,

could not be examined. The defect of the investigation was thus sought to be

capitalized by the appellant mentioning the evidence, referred above.

Respondent/ State referring the decision delivered in the case of

Viveswaran vs. State Rep. by S.D.M. reported in (2003) 6 SCC 73 submitted

that defective investigation, if any, would not result in acquittal.

In the case referred above the identity of the appellant was disputed for not

holding Test Identification Parade. The ratio decided in such case was that
acquittal would not follow as natural corollary for not holding T.I.P. in a case,

where identity of the appellant was disputed, provided sufficient convincing

materials were there. It was propounded further that identification of accused

either in Test Identification Parade, or in court, is not a sine qua non in every

case, if from the circumstances the guilt is otherwise established. It would be

relevant here to quote Para-12 of such decision on this score.

Para-12: “Before we notice the circumstances proving the case
against the appellant and establishing his identity beyond reasonable
doubt, it has to be borne in mind that the approach required to be adopted
by courts in such cases has to be different. The cases are required to be
dealt with utmost sensitivity, courts have to show greater responsibility
when trying an accused on charge of rape. In such cases, the broader
probabilities are required to be examined and the courts are not to get
swayed by minor contradictions or insignificant discrepancies which are
not of substantial character. The evidence is required to be appreciated
having regard to the background of the entire case and not in isolation.
The ground realities are to be kept in view. It is also required to be kept in
view that every defective investigation need not necessarily result in the
acquittal. In defective investigation, the only requirement is of extra
caution by courts while evaluating evidence. It would not be just to acquit
the accused solely as a result of defective investigation.”

Thus, the important aspect to be kept in mind is that the discrepancies or

irregularities in investigation would not necessarily lead to rejection of

prosecution case, when there were otherwise convincing materials unerringly

pointing out the accusing finger towards the guilt of the appellant beyond any

reasonable doubt.

Argument was further raised by appellant submitting that though the

victim made her statement under Section 164 Cr.P.C. before the learned

Magistrate, and the victim put her L.T.I. on such recorded statement, but neither
thumb impression was attested by a person, nor the person proving the L.T.I of

victim was examined during trial, and as such the testimony of victim claiming to

have made statement under Section 164 Cr.P.C. would be construed to be the

first disclosure regarding such incident before the court.

Thus, according to the appellant the statement of the victim girl recorded

under Section 164 Cr.P.C. not being duly proved in evidence, no credence could

be attached on it.

The complainant/mother of the victim (PW-1) categorically and consistently

stated in her version that the victim daughter made statement under Section 164

Cr.P.C. before the learned Magistrate, and it was duly recorded. Victim/PW-2

herself claimed to have made statement under Section 164 Cr.P.C. Thus, both

PW-1 and PW-2 were consistent in their respective version that the victim made

statement before the learned Magistrate and it was duly recorded.

The I.O./PW-17 in course of evidence, candidly stated that he got the

statement of the victim and two other witnesses recorded under Section 164

Cr.P.C. and the statement of the victim was marked as Exhibit-10.

True it is that the statement of the victim under Section 164 Cr.P.C. could

not be duly proved in evidence in accordance with the provisions of law, but

when there is specific evidence of witnesses claiming to have made statement

under Section 164 Cr.P.C. by the victim, we should not adopt a hyper technical

approach to disbelieve the prosecution version altogether merely on the ground of

valid proof of statement under Section 164 Cr.P.C. The technicality thus, pointed
out by the appellant, as such would not be a matter of serious consideration, as

sought to be done by the appellant in this case.

Submission was made by appellant focusing much stress that complaint

and evidence of PW-1 being at complete variance with, the prosecution case

should be looked with doubt, and the sequence of events as narrated by the

witnesses, highly improbablished the prosecution version.

Though, time and again contradictions, discrepancies and the deficiencies

in the evidence were strongly pressed in to service by the learned advocate for the

appellant after pointing out the same to our attention in order to persuade us to

believe that the prosecution story was a not believable version, and the witnesses

ought not be relied upon, but as has already discussed that there were clinching

circumstances unerringly indicated the guilt of the appellant beyond any

reasonable doubt.

The act complained of on the part of the appellant got sufficiently

connected with the vaginal injuries sustained by the victim, which was

objectively proved in evidence inspiring confidence to hold the accused guilty

beyond any reasonable doubt, irrespective of non-disclosure of name of culprit by

victim to some other witnesses, examined in this case.

Though, respondent/State while supporting conviction, had taken shelter

to a decision of the Apex Court, delivered in the case of State of Uttar Pradesh

vs. Pappu @ Yunus anr. reported in (2005) 3 SCC 594, but the proposition of

law as laid down there, would hardly have any relevance over the facts and

circumstances of the case, what was rightly contended by the learned advocate
for the appellant, because it was decided therein that though the victim was

previously accustomed to sexual intercourse, but that would not be a

determinative question, if the victim was subjected to rape or not.

It was the case of the appellant that for want of sufficient corroboration,

the prosecution case was highly improbable. Respondent/State countered the

submission of appellant referring a decision delivered in the case of State of

Kerala vs. Kurissum Moottil Antony reported in (2007) 1 SCC 627, wherein

the ratio decided was that an accused cannot cling to a fossil formula and insist

on corroborative evidence, even if taken as a whole, the case spoken to by the

victim strikes a judicial mind, as probable.

The plea about lack of corroboration in the given circumstances of the case

has no substance, as the testimony of the victim received substantial support not

only from PW-9, but also from her parents, who had the occasion to know about

the incident soon after occurrence. No case was made out in cross examination

that there was pre-existing hostility between complainant family and the accused

appellant, supportive of false implication.

That being the position, the girl being victim of sexual assault, should not

be viewed with doubt, disbelief and suspicion.

The prosecution case thus, having established, the respondent/State did

his honest endeavour to apply the ratio decided in (2003) 3 SCC 175 delivered in

the case of Vimal Suresh Kamble vs. Chaluverapinake Apal S.P. anr.,

wherein it was decided that the conviction on the basis of sole testimony of the
prosecutrix was permissible provided the evidence of the prosecutrix inspires

confidence and appears to be natural and truthful.

For the discussion made above, we are of the considered view that the Trial

Court after due consideration of evidence held the accused appellant guilty of the

offence under Section 376 (2) (f) I.P.C. after duly appreciating the evidence,

adduced in this case, without making any departure of established principle of

law. The conviction would thus, go unaltered.

Learned advocate for the appellant strenuously argued that the sentence

awarded in this case was grossly inappropriate than the required, as already

prescribed. According to appellant, the conduct of the accused, the state and age

of the sexually assaulted victim, and the gravity of the criminal act could not be

appropriately evaluated, while sentencing the accused appellant to suffer

rigorous imprisonment for life and to pay fine of Rs.5000/- (rupees five

thousand), in default to suffer one (1) year simple imprisonment in the given set

of facts.

Learned advocate for the State/respondent submitted with much stress

that the offence under Section 376 (2) (f) I.P.C. having being specifically

established and that too upon a minor of below twelve (12) years of age,

imprisonment for life could be awarded in order to give effect to the legislative

intendment.

The socio-economic status, religion, race, caste or creed of the accused or

victim are irrelevant consideration in sentencing policy. Protection of society and

deterring the criminal are the avowed objects of law, and that are required to be
achieved by imposing an appropriate sentence. Sexual violence committed upon

minor victim in the instant case not only left a physical injury, but more indelibly

a scar on the most cherished possession of a women. It degraded the victim for

she being helpless and innocent minor child. The traumatic effect caused upon

the victim, while considering the gravity of the offence, complained of critically,

needs to be looked into, while sentencing the culprit for his guilt having been

proved.

The sentencing court as such is, therefore, expected to consider all

relevant facts and circumstances bearing on the question of adequacy and

stringency of sentence, and proceed to impose a sentence commensurate with the

gravity of the offence. The sentencing court is, therefore, obliged to hear the loud

cry for justice by the society in cases of the heinous crime of rape on innocent

helpless girls of tender age, as in the instant case, and respond by imposition of

proper sentence recording proper reasons, after making adherence to parameters

of sentencing policy. Interestingly, there are no extenuating or mitigating

circumstances available on the record, which could justify imposition of any

sentence less than the prescribed minimum on the appellant.

The proviso under Section 376 (2) (f) I.P.C. lays down that the normal

sentence in a case of rape, committed on a child below twelve (12) years of age, is

not less than 10 years of rigorous imprisonment.

Thus, it is clear that a minimum sentence of ten (10) years has been

statutorily prescribed and upon considering attendant circumstances, the

imprisonment for life in a given case may be awarded. The Trial Court while
sentencing the accused appellant to rigorous imprisonment for life was

completely silent about the attendant circumstances, justifying imposition of

stringent sentence, which may extend to life. Recording of sufficient satisfaction,

supported by reasons in respect of attending circumstances, by the trial Court, in

our view, is a must, before calling upon application of stringent sentence, than

the minimum sentence statutorily prescribed.

In the absence of strong and sufficient attending circumstances being

satisfactorily established, awarding a sentence of rigorous imprisonment for life

together with fine, would be contrary to the sanction of law, in exercise of

authority by Trial Court.

Reliance may be placed on a decision reported in (2006) 3 SCC 771

delivered in the case of Dinesh @ Buddha v. State of Rajasthan as referred by

the respondent/State.

Argument thus raised by appellant being restricted to modification of the

sentence, awarded against the appellant, by scaling down to ten years, minimum

sentence statutorily prescribed in this case, in our considered view of this case,

needs strong consideration.

It was submitted by the appellant that the convict/appellant had already

suffered imprisonment of more than 11 years in the mean time. The entire trial

was conducted taking the accused in custody since 20.07.2008. There was

nothing shown regarding deposition of fine as already ordered by the Sentencing

Court.

Upon consideration of the entire facts and circumstances of this case, we

are of the considered view that sentence of life imprisonment, as already awarded

in this case by the Sentencing Court, may be modified, and reduced to ten years

with fine, as already imposed, maintaining the conviction.

Accordingly, the sentence of life is reduced to ten years with a fine of

Rs.5000/- (five thousand) in default to suffer simple imprisonment for one year.

Department is directed to send a copy of this order to concerned

Superintendent of Correctional Home, where the convict/appellant is detained for

taking steps, provided the sentence, as modified, is served out.

Department is further directed to send a copy of this judgment along

with L.C.R. (Lower Court Record) to the concerned Trial Court forthwith by

Special Messenger of this court, the cost of which will be borne by appellant.

The appeal thus stands disposed of.

Urgent certified copy of this order and judgment, if applied for, be given to

the appearing parties as expeditiously as possible upon compliance with the all

necessary formalities.

I agree.

(Sahidullah Munshi, J.) (Subhasis Dasgupta, J.)

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