In the High Court at Calcutta
Criminal Appellate Jurisdiction
The Hon’ble Justice Sahidullah Munshi.
The Hon’ble Justice Subhasis Dasgupta.
CRA No.743 of 2014
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
(Sahidullah Munshi, J.) (Subhasis Dasgupta, J.)