SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Chanchal Kumar Mukherjee @ … vs Vrs on 11 April, 2019

1

Criminal Appeal (DB) No. 99 of 2016
Against the judgment of conviction dated 21.08.2015 and order of sentence dated
31.08.2015 passed by Shri Ramesh Kumar Srivastava, 2 nd Additional Sessions
Judge, F.T.C. Bermo at Tenughat in Sessions Case No. 292 of 2011.
—-

Chanchal Kumar Mukherjee @ Chanchal Mukherejee @ Bhujuwa…………Appellant
Vrs.

The State of Jharkhand ……… Respondent
—-
For the Appellant : Ms. Suchitra Pandey, Adv.
For the State : Mr. Ravi Prakash, Additional Public Prosecutor

PRESENT
HON’BLE MR. JUSTICE APARESH KUMAR SINGH
HON’BLE MR. JUSTICE KAILASH PRASAD DEO
—-

By Court: Heard learned counsel for the appellant, Ms. Suchitra Pandey

appointed by JHALSA to represent the appellant and learned counsel, Mr. Ravi
Prakash, Additional Public Prosecutor representing the State.

2. Before us is the sole appellant, who has been facing rigorous
imprisonment for 10 years on his conviction under Section 376(2)(f) of the Indian
Penal Code rendered by learned 2nd Additional Sessions Judge, Fast Track Court,
Bermo at Tenughat in Sessions Case No. 292 of 2011 by the impugned judgment
dated 21st August, 2015 and order of sentence dated 31 st August, 2015. Learned
Court has also recommended that the victim/prosecutrix through her dependent be
awarded compensation under Victim Compensation Scheme under Section 357-A
of the Code of Criminal Procedure.

3. Informant is the grandfather of the victim (name withheld), Ismail
Ansari, whose statement was recorded on 7 th June 2011 at 14:40 hours at Surjudih
Village near Nichetola by Subhash Singh, Officer-in-Charge, Kasmar P. S.

4. The gist of the allegation is as under:

Informant alleged that on 7th June, 2011 at 1:30 in the day when there
was slight drizzle and breeze, towards the west of his house at about 50 meters
from the house of Bipin Mukherjee and his agnates, their children were collecting
mangoes and rose apple from beneath those trees and eating them as well. In the
meantime, their neighbour, Chanchal Mukherjee, accused aged 35 years son of
Kalyani Prasad Mukherjee of village-Surjudih, P.S. Kasmar lifted his
granddaughter, the victim aged 4 years, in his lap and enticed her with an offer of
mangoes and took her in the nearby orchard, besides the mango tree and
committed rape upon her, as a result of which she was bleeding profusely and
2

shouting. On her shouts and the shouts of other children, a number of persons of
the locality assembled there when Chanchal Mukherjee ran towards his house. In
the meantime, police personnel came to their house and informant’s daughter
Maimun Nisha and son Fakruddin took the victim for treatment to the hospital.
Informant further alleged that Bipin Mukherjee, Bhawani Mukherjee and
Chanchal all have become emboldened these days.

5. On this Fardbeyan, First Information Report bearing Kasmar P. S. Case
No. 30 of 2011 under Section 376 of the Indian Penal Code was registered at
17.00 hours against the sole accused, Chanchal Kumar Mukherjee.

6. In course of investigation, the case was found true and charge-sheet
bearing no. 36 of 2011 under Section 376 Indian Penal Code was submitted
against the sole accused. Cognizance was taken on 29.08.2011 by the learned
Court. Since the case was triable by the court of Sessions, case was committed
before the learned Additional Sessions Judge-I, Bermo at Tenughat. Charges were
framed on 6th February, 2012 under Section 376 of the Indian Penal Code against
the sole accused. He denied the charge on being explained to him in Hindi and
pleaded not guilty and further claimed to be tried. Thus, trial commenced.
Prosecution examined altogether 12 witnesses in support of their case and also
adduced a number of documentary evidence upto Ext.-6 as under:

P.W,1, Ismile Ansari
P.W.2, Maimun Khan
P.W.3, Dilzan Ansari
P.W.4, Md. Rafique Ansari
P.W.5, Shakila Khatoon
P.W.6, Md. Fakruddin
P.W.7, Mehrul Hoda
P.W.8, Ashique Ansari
P.W.9, Shajadi Parvin
P.W.10, Amardeep Maharaj
P.W.11, Subhash Singh
P.W.12, Dr. Sneh Lal Sinha

Ext.1- Fardbeyan, proved by P.W.11
Ext.2-F.I.R, proved by P.W.11
Ext.3-Requisition of Medical Treatment, proved by P.W.11
Ext.4-Memo of Arrest, proved by P.W. 11
Ext.5-Charge-sheet, proved by P.W.11
Ext.6-Medical Report, proved by P.W.12.

7. After closure of prosecution evidence, the accused was examined under
Section 313 Cr.P.C, where he simply denied his involvement and pleaded
3

innocence. No other statements were made by him in support of his innocence
neither any evidence was adduced.

8. Learned Trial Court considered the evidence on record and the
submission of the parties and convicted him for the charge under Section
376(2)(f) of the Indian Penal Code and sentenced him to undergo rigorous
imprisonment for 10 years as above. During pendency of this appeal, the
Coordinate Bench of this Court has vide order dated 20 th April, 2017 issued
notice on the appellant on the question of enhancement of sentence awarded by
the learned trial court.

9. On behalf of the appellant, learned counsel, Ms. Suchitra Pandey has
inter alia made the following submissions:

It is submitted that when the evidence is read in entirety, look of the
prosecution case gives a clear indication of false implication on sectional lines.
There are vital discrepancies as to the description of place of occurrence by
different prosecution witnesses. There is also vital discrepancy in the narration
of manner of occurrence. The victim girl, who has been examined as P.W. 9 has
completely failed to prove any overt act of sexual assault upon her during trial.
She was about six years at the time of her deposition and though questions had
been put by learned trial court to test her competency but her answers on the
material allegations are completely superficial. P.W.5, victim’s mother has
exaggerated the manner of occurrence in her deposition. From perusal of the
evidence on record, it further transpires that the victim was examined on the next
day of the alleged assault i.e. on 8th June, 2011. The injury report proved by the
Medical Officer, Dr. Sneh Lal Sinha (P.W.12), if read properly does not
conclusively show penetration as required under Explanation-I to Section 375
(Unamended) to constitute the offence of rape. The evidence on record also
suggest that the victim was treated at three different places altogether without
any explanation for such treatment within a course of 24 hours. The victim’s
mother (P.W.5) and other prosecution witnesses like P.W.1 though have asserted
that she was bleeding profusely but the medical evidence brought on record as
Ext.-6 by P.W.-12 does not show any bleeding. As such, the case of prosecution
is shaky and conviction for a serious offence of rape under Section 376 of the
Indian Penal Code (Unamended) should not be upheld since the ingredients of
the offence have also not been duly established. Learned counsel for the
appellant, Ms. Pandey has fervently pleaded that no case of enhancement of
4

sentence against the accused is made out since there is no brutalization of the
minor girl proved even if the allegations are assumingly found true on the basis
of the prosecution evidence. None of the internal organs of the girl have been
ruptured because of any such sexual assault. The victim has apparently fully
recovered from the assault while the appellant was a young man of 35 years only,
who has a chance to reform in his life if the sentence is not disproportionately
enhanced.

10. Learned Additional Public Prosecutor has supported the findings
rendered by learned Trial Court in extenso. Relying upon the evidence on
record, he submits that the case of the prosecution is simple and fully proved by
the evidence of the prosecution witnesses such as P.W.1, the grandfather of the
victim and informant, P.W.5, Shakila Khatoon the mother of the victim, P.W.9,
the victim herself and the injury report Ext.-6 proved by P.W.12., the Medical
Officer, who examined the victim on the next day itself at around 9 am in the
morning. He has in particular taken this Court to the injuries found on
examination of the private part, which shows swelling of vulva present; tear of
lower vaginal mucosa above forchette present and other parts of valiga looks
inflamed. The victim was reacting on touching private part due to pain. As
such, the minor girl of a tender age of 4 years was sexually assaulted and
penetration within the meaning of Explanation-I of Section 375 (Unamended)
had been made out to constitute the ingredients of the offence. Learned Trial
Court has considered the evidence on record in proper perspective and rightly
recorded the finding of conviction against him. As such, the impugned
judgment does not deserve any interference in appeal. Moreover, the crime is
heinous and if such accused persons are not adequately punished, a wrong
message may go to the society. Learned Additional Public Prosecutor submits
that it is a case of enhancement of sentence since the appellant has been let away
with a considerably lesser sentence of 10 years only.

11 We have considered the submission of learned counsel representing the
appellant, Ms. Pandey appointed by JHALSA and learned Additional Public
Prosecutor, Mr. Ravi Prakash, gone through the materials on record, including
the Fardbeyan, framing of charge, evidence of 12 witnesses, 6 prosecution
exhibits, statement of the accused under Section 313 Cr.P.C and also perused the
impugned judgment of conviction and order of sentence.

The unamended Section 375 I.P.C which defines rape, reads as under:

5

“Section 375. Rape- A man is said to commit “rape” who,
except in the case hereinafter excepted, has sexual intercourse
with a woman under circumstances falling under any of the six
following descriptions:-

First- Against her will.

Secondly- Without her consent.

Thirdly- With her consent when her consent has been obtained
by putting her or any person in whom she is interested, in fear of
death or of hurt.

Fourthly- With her consent, when the man knows that he is not
her husband and that her consent is given because she believes
that he is another man to whom she is or believes herself to be
lawfully married.

Fifthly- With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or
the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she
gives consent.

Sixthly- With or without her consent, when she is under sixteen
years of age.

Explanation .- Penetration is sufficient to constitute the
sexual intercourse necessary to the offence of rape.

Exception – Sexual intercourse by a man with his own
wife, the wife not being under fifteen years of age, is not rape.”

12. In order to constitute rape as per the unamended provisions
penetration is sufficient to constitute the sexual intercourse necessary to the
offence of rape. Before us is the Fardbeyan of the informant, grandfather of
the victim, who examined himself as P.W.1 and fully supported the first
information story projected through him. In his testimony during trial, he has
categorically stated that the accused, Chanchal Mukherjee appellant herein
lifted his granddaughter (the victim) took her near a mango tree and when
they heard cries of the child and were looking for her, she was found with lot
of blood oozing out. This witness has further stated that his granddaughter
was bleeding from a private parts and on being asked named the accused,
Chanchal, who had committed wrongful acts with her after laying her down.
The gist of the allegations made in the Fardbeyan have been duly supported
in his examination during trial. P.W. 2, Maimun Jaan is the victim’s
grandmother, who has also supported the material part of the allegation made
in the Fardbeyan. She stated during trial that she had also disclosed to the
police that the victim had informed her that Chanchal Mukherjee had picked
her up from near the rose apple tree and brought her to such condition.

6

Thereafter she was taken for treatment to Jainamore Hospital and then to
B.G.H. Hospital. The defence has not been able to discredit the testimony of
this material witness, who has shown herself present soon after the incidence.
P.W.3, Dilzan Ansari is the victim’s uncle. He had also heard about the
incidence upon brawl being raised in the afternoon of that date and has
supported the case of the informant stating that the victim girl aged 4 years
was bleeding from her private parts after the assault and she had named the
accused, Chanchal Mukherjee as having committed the wrongful act upon
her. Nothing has been elucidated from him during course of cross-
examination by the defence. P.W.4, Md. Rafique Ansari is the cousin of
Sultan Mian and is also the uncle of the victim. His testimony is also in the
same fashion as P.W.3. Defence has not discredited him on any material parts
of his evidence. P.W.5 is the mother of the victim, namely, Shakila Khatoon,
whose testimony is vital for coming to a conclusion whether the prosecution
case as made out by the informant in his Fardbeyan duly stands corroborated
in its substance and entirety. She in her examination-in-chief categorically
states that on the eventful day there was light drizzle and breeze and children
were plucking rose apple when the accused Chanchal Mukherjee lifted her
four years old daughter and took her away and thereafter forcibly committed
rape upon her. When the girl started shouting he fled away. The girl
continued shouting and then lot of persons assembled there. She was
bleeding profusely, police has also come by that time. Her statement was
recorded by the police. The victim was taken to the hospital and the accused
was apprehended. Her daughter was treated at Bokaro. She has identified the
accused in the dock. In her cross-examination, she has reiterated the gist of
her statement to the effect that she found the child near the pond after hearing
her cries and by the time she reached her, the accused had ran away, but the
victim was crying. Thereafter a number of persons had assembled. The
accused was apprehended by the police and taken into custody. Defence has
not been able to show that her testimony suffers from any such inconsistency,
embellishment or improvements on which her evidence could be discarded.
P.W. 6, is Md. Fakruddin Ansari, another uncle of the victim. His statement
also proved the allegations made in the Fardbeyan, though he was not present
at the place of occurrence at that time. P.W.7, Mehrul Hoda also belonges to
the village Surjudih, who has reached the spot after hearing the brawl and
7

seen the victim bleeding from her private parts. He has also named the
accused as the perpetrator of the offence of rape. Defence has not been able
to discredit the witness either. P.W.8 is Ashique Ansari also of the same
village. His statements are also in the same fashion as that of P.W.7. Defence
has not been able to draw any contradiction in his evidence during cross-
examination. The evidence of the victim examined as P.W.9 is also of great
significance though she was aged 6 years at the time of deposition and only 4
years at the time of occurrence. She has been found to be a competent witness
by the learned Trial Court before her testimony has been recorded. In material
parts, the allegations made in the Fardbeyan has been proved by her. She has
stated that she was plucking rose apple under the rose apple tree. She has
identified the accused, who belongs to her own village. He was the one, who
lifted her and pressed her mouth whereafter she claims to have fallen
unconscious. There is nothing in her testimony to disbelieve the prosecution
case. P.W.10 is Amardeep Maharaj, a Sarpanch, who has been declared
hostile on the request of the prosecution. P.W.11 is the Investigating Officer,
who has proved Ext.-1, the Fardbeyan Ext.-2, formal F.I.R Ext.-3, medical
requisition for treatment of the victim Ext.-4, the memo of arrest and also the
charge-sheet submitted as Ext.-5. Now, we come to the medical evidence in
the nature of Dr. Sneh Lal Sinha, P.W.12, who examined the victim on 8 th
June 2011 at Sadar Hospital, Chas at 9 am. She has found the following
features on external physical examination of the victim and also found the
following injuries on examination on her private part.

13. The victim was fully conscious and there was a slight brownish serum
discharge. However, no active fresh bleeding was seen. The Injury report
proved as Ext.-6 in her handwriting and signature is extracted hereinbelow
” Examination of private part: Swelling of vulva present,
Tear of lower vaginal mucosa above forchette present. No
active bleeding present. Other part of vagina looks
inflamed and victim reacts on touching her private part
due to pain. Her mother complaint that she did not pass
urine after incidence. Vaginal swab taken gently. No
foreign body found in and around private organ. Vitadin
applied on vagina and abrasion on back. Antibiotic and
vitamin ointment advised. Hot and cold compression of
supra pubic region was advised. vaginal swab report-

sperm-Nil.

Opinion: 1. In my opinion sexual assault has been done.

2. Her age is about 4-5 years.

8

This report is written by me and it bears my signature.

Entire medico legal report has been marked as Ext.-6″

In cross-examination, she has however denied that any seminal stains
were noticed though swab (vaginal) was sent for microscopic examination.
Brownish bleeding was noticed though no fresh bleeding was seen.

14. We have analyzed the prosecution evidence on record in entirety and
also minutely. Upon careful analysis of the material evidence on record, we
find that the prosecution has been able to substantiate the charge of rape as
against the accused appellant herein. The allegations made by the informant,
grandfather of the victim in the Fardbeyan has been proved in all its
materials part during his examination as prosecution witness no. 1. More
particularly, the evidence of P.W. 5, mother of the victim also substantiate the
allegations made in the Fardbeyan in substance. The victim girl was picked
up during the day time at 1:30 while she was playing along with other
children picking up a rose apple and mangoes by the accused, Chanchal
Mukherjee and taken towards his orchard where the heinous offence of rape
was committed upon her. The girl raised lot of cries which attracted her
mother and other nearby persons including the grandfather, who immediately
rushed there and rescued her since the accused had fled away by that time on
cries being raised by the victim. The victim while being taken for treatment
was found to have suffered serious injuries on her private part. The injuries
found on her external examination by the doctor, extracted hereinabove,
clearly showed that swelling of valva was present; tear of lower vaginal
mucosa above forchette present and other parts of vagina looked inflamed
and the victim was reacting on touching of her private parts due to pain. The
doctor (P.W. 12) opined that sexual assault had taken place. Evidently, the
accused committed sufficient penetration in the private parts of minor girl of
tender age of 4 years and the injuries found during her medical examination
proved as Ext.-6 by P.W.12 corroborate the charge of rape in terms of
Section 375 Explanation-I of the Indian Penal Code as per the unamended
provisions.

15. Taking the material evidence in entirety and upon careful scanning of
the prosecution evidence, we are of the considered view that the learned trial
court has not committed any error or illegality in recording conviction under
Section 376(2) (f) I.P.C and sentencing the accused to rigorous imprisonment
9

of 10 years. However, on consideration of the submission of learned counsel
representing the appellant and learned A.P.P., we do not find sufficient
grounds to enhance the sentence any further. The present appeal being devoid
of merit, is accordingly dismissed.

16. Let Lower Court Record be sent down to the concerned court
with a copy of the judgment.

17. Before parting, we record our appreciation to the able assistance
rendered by learned counsel, Ms. Suchitra Pandey appointed by JHALSA to
represent the appellant during hearing of this case. The Member Secretary,
JHALSA would bear her admissible legal remuneration on production of the
certified copy of the judgment along with an application within a period of
four weeks therefrom.

(Aparesh Kumar Singh, J.)

(Kailash Prasad Deo, J.)

Jharkhand High Court, Ranchi
Date 11th April, 2019
jk

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation