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Haroshit Pandey @ Harasit vs The State Of West Bengal on 14 February, 2019

Form No. J(1)

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE

Present:
The Hon’ble Justice Joymalya Bagchi

The Hon’ble Justice Manojit Mandal

C.R.A. 715 of 2014

Haroshit Pandey @ Harasit
-vs-
The State of West Bengal

For the Appellant : Ms. M. Gomes

For the State : Mr. Ranadeb Sengupta

Heard on : 14.02.2019

Judgment on : 14.02.2019

Joymalya Bagchi, J.:

The appeal is directed against the judgment and order dated

16/17.9.2014

passed by the learned Additional District Sessions Judge, 2nd

Court, Krishnagar, Nadia in connection with Sessions Trial No. II (July) of 2014

corresponding to Sessions Case No. 5(5) of 2014 (Spl) GR case no. 297 of 2014

arising out of Haringhata P.S case no. 59 of 2014 dated 27.2.2014 convicting the

appellant for commission of offences punishable under Section 376 of the Indian
Penal Code and section 8 of the Protection of Children from Sexual Offences Act

and sentencing him to suffer imprisonment for life and to pay fine of Rs.10,000/-

in default, to suffer rigorous imprisonment for six months more.

The prosecution case as alleged against the appellant is to the effect that

on 27.2.2014 the appellant committed rape on a five-year old girl and also

subjected her to sexual assault. The case arose out of a written complaint lodged

by the mother of the victim (P.W 1) alleging that on the aforesaid date around 1

p.m. her daughter had gone for taking bath. At that time she urinated and cried

out in pain. Upon query she stated that the appellant pushed his penis into her

vagina and as a result she suffered pain. Pursuant to aforesaid written complaint

Haringhata P.S case no. 59 of 2014 dated 27.2.2014 under section 376 IPC and

section 8 of the POCSO Act 2012 was registered for investigation. Victim was

medically examined and her statement was recorded before the magistrate.

Charge sheet was filed against the appellant and charge was framed under

section 376 IPC and under section 8 of the POCSO Act 2012 against him.

Appellant pleaded not guilty and claimed to be tried. In the course of trial

prosecution examined 8 witnesses and exhibited a number of documents.

Defence of the appellant was one of innocence and false implication. In

conclusion of trial learned trial judge by judgment and order dated 16/17.9.2014

convicted and sentence the appellant as aforesaid. Hence, the present appeal.

Learned Counsel appearing for the appellant submits that the prosecution

has failed to prove the ingredients of the alleged offences beyond reasonable

doubt. Version of P.W 4, the victim, is unreliable and is not supported by medical
evidence. She further submits that there is enmity between the parties and the

chance of false implication cannot be rulled out. She accordingly prayed for

acquittal of the appellant.

On the other hand learned counsel for the State submits that the version of

the victim (P.W 4) is corroborated by her parents as well as the medical evidence

on record. Hence, the appeal is liable to be dismissed.

P.W 4, the victim is the most vital witness in the instant case. She was

examined by the trial judge after ascertaining her competence to depose. She

deposed that appellant pushed his penis into her vagina in the afternoon.

Thereafter, she went to take bath. While she was urinating she felt burning

sensation in her vagina. She narrated the incident to her grandmother, P.W 3.

After the incident her uncle assaulted the appellant. She was taken to the police

station. She was examined by a doctor. She went to Kalyani court and made

statement before the magistrate. In cross-examination, she stated she had not

made statement before the police. The aforesaid evidence of P.W. 4 is

corroborated by her mother P.W 1 and her grand-parents, P.W 2 and P.W 3. All

these witnesses have corroborated the version of the victim and stated that while

the victim went to bathroom for bathing she felt burning sensation in her vagina

at the time of urination. On query she disclosed that the appellant had inserted

his penis into her vagina. P.W 1 proved the written complaint (Ext 1). P.W 5,

another relation of the victim, has also corroborated her version. He claimed that

the appellant tried to flee away and was apprehended. P.W 5 was also a signatory
to the seizure of wearing apparels of the victim. P.W 7 is the medical officer who

examined the victim on 20.3.2014. He found the following injuries:-

“Genitalia – there is cut or bite mark of injury on external genitalia and

pubic area. On separating the labia majora she feels pain and tenderness.

There is no cut or abrasion mark on the vaginal mucosal wall, fornics of

vagina and clitoris except slight congestion of the mucosal. Vagina is

capable to admit little finger only. Critoral opening is normal contur and no

tear. There is no foreign body or abnormal discharge found inside the

vagina.”

He opined that the injuries may be due to deep rubbing on the vagina.

In cross examination, he stated that the allegation of rape had been

disclosed to him by the mother of the victim. He also stated that he could not

detect whether the injury on the vagina was a cut or bite mark.

P.W 8 is the investigating officer in the instant case. He took up

investigation and visited the place of occurrence. He prepared rough sketch map

with index (Ext 6). He recorded statement of witnesses. He forwarded the accused

to the magistrate. He forwarded the victim girl and her mother for recording

statement before the magistrate under section 164 Cr.P.C. He proved the

statements of the victim girl and her mother (Ext. 7 and 8). He submitted charge

sheet.

P.W. 4, the victim, claimed that she had been violated by the appellant,

who was the father of her friend Rick. Soon after the incident the victim went to

take a bath. While she was urinating she suffered pain and cried out. When her
grandmother (P.W 3) and other relations enquired of her how the injury was

caused she divulged the incident to them. Her version is corroborated not only by

her mother P.W 1 and grandparents P.W.s 2 and 3 but also a distant relation P.W

5 who came to the spot and heard the incident from the victim. Hence, I find

there is sufficient corroboration of the version of sexual assault upon the victim

by the aforesaid witnesses.

It has been argued that the medical evidence does not support the

prosecution case of rape.

Analysing the medical evidence on record, I note although the doctor (P.W.

7) found a cut or bite mark on external genitalia and pubic area of the victim, he

opined that such injury may be due to deep rubbing on the vagina. In view of

such opinion given by P.W 7, it is difficult to come to a conclusive opinion that

there was penetration of the vagina of the victim. On the other hand, the medical

evidence establishes a case of attempted rape on the victim.

Accordingly, I modify the conviction imposed upon the appellant and hold

that he committed offences punishable under section 376/511 IPC and section 8

of the POCSO Act.

Coming to the issue of sentence, I modify the sentence imposed on the

appellant and I direct that the appellant shall suffer rigorous imprisonment for

eight (8) years and to pay a fine of Rs. 10,000/-, in default to suffer rigorous

imprisonment for six months more for the offence punishable under section

376/511 IPC and shall suffer rigorous imprisonment for four (4) years and to pay

a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for three months
more for the offence punishable under section 8 of the POCSO Act. Both the

sentences shall run concurrently.

Period of detention suffered by the appellant during investigation, enquiry

and trial shall be set off from the substantive sentence imposed upon him in

terms of 428 of the Code of Criminal Procedure.

Copy of the judgment along with L.C.R. be sent down to the trial court at

once.

Appeal is, accordingly, disposed of.

Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after

complying with all necessary legal formalities.

I agree.

(Manojit Mandal, J.) (Joymalya Bagchi, J.)

Tkm/PA

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