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
