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. 472 of 2007

Kaisar
Vs.
State of West Bengal

For the Appellant : Mr. Navanil De, adv.
(Amicus Curiae)

For the State : Mr. Sanjoy Bardhan, adv.
Mr. Arup Sarkar, adv.

Heard on : 20.12.2019,06.02.2020 11.02.2020

Judgment on : 28.02.2020

Subhasis Dasgupta, J:-

This appeal emerges out of an order of conviction and sentence. Learned

Additional Sessions Judge, Islampur, Uttar Dinajpur in Sessions trial No.09/07

arising out of Sessions Case No. 03/07 convicted accused/appellant under

Section 376 of the Indian Penal Code and sentenced him to suffer rigorous

imprisonment for eight (8) years and pay fine of Rs.3000/-(Rupees three

thousand) in default to suffer rigorous imprisonment for one year for the offence

under Section 376 of Indian Penal Code.
Facts

established during trial precisely may be mentioned as follows for

perfectly addressing the issues raised in this appeal.

The victim/prosecutrix being urged by nature came out of her room on

20/21.06.2005, night for urinating purpose, when suddenly accused caught hold

of her, gagged her mouth, took her away to nearby mango garden and finally

committed rape upon her against her wish under a threat with dire consequence,

leaving behind a promise of marriage therefor. About two months before also in a

similar manner accused/appellant did sex with victim girl by doing violation after

forcibly taking her to a jute filed, when victim went to the field for bringing back

goats from field. Victim received threat from accused/appellant with a promise to

marry this time too. She lost her sense receiving assault from accused, when she

tried to get into the house of accused. She was rescued by her parents and

villagers on the following morning. Ultimately, accused refused to marry the

victim on being challenged with the incident by parents of the victim, when

accused/appellant also threatened victim and her family members with dire

consequence. A child was, however, born to victim/prosecutrix.

Police started investigation after receiving a complaint from victim herself,

subjected the victim to Ossification Test for determination of her age, collected

the statement of victim recorded under Section 164 Cr.P.C. by learned

Magistrate, and finally concluded the investigation submitting charge sheet

against the accused/appellant.

Trial Court conducted the trial after framing charge under Sections

376/506/418 I.P.C. with collection of as many as six (6) witnesses, and

thereafter learned Judge conducting the trial held the accused to be guilty of
offence under Section 376 I.P.C. and awarded him sentence accordingly,

mentioned hereinabove.

At the very beginning of this case this may be put on record that due to the

absence of learned advocate for the appellant, a report from the concerned

correctional home was obtained to know about status of the accused/appellant,

and ultimately we decided to proceed with the appeal taking assistance of Mr.

Navanil De, as amicus curiae for accused/appellant.

Mr. Navanil De, learned amicus curiae, while challenging the order of

conviction submitted that the learned Trial Judge failed to appreciate the

consensual sexual acts performed between the parties in context with a promise

to marry in its true perspective, and held the accused person guilty most illegally,

disbelieving the consent, voluntarily given by victim/prosecutrix.

It was contended by Mr. De, learned amicus curiae, that though the Trial

Court doubted the report of ossification test, performed in this case, for

determination of age of victim girl, but the benefit of doubt could not be given to

the accused/appellant.

Further contention of Mr. De, learned amicus curiae, was that when victim

herself contradicted in several respects with her own version recorded in F.I.R.,

the Trial Court ought to have disbelieved her version, and the conviction so

recorded by the Trial Court will not be sustainable for such discrepancy in her

evidence. Referring loopholes contained in the evidence of victim/prosecutrix,

Mr. De, proposed that at best, the case could be regarded as a consensual sex

with a promise to marry, for which conviction under Section 376 I.P.C. and the

sentence awarded thereunder would not be sustainable.

Per contra, respondent State submitted disputing with the arguments

raised by Mr. Navanil De, learned amicus curiae, that the consent to the sexual

act committed upon victim having been obtained from victim putting her in a fear

of death, it was not a free consent of the victim/prosecutrix. More so, the victim

being minor, much less than 15 year old, the plea of consent giving rise to

consensual sex would not be available.

Respondent/State submitted that rural, rustic woman, like the victim girl

having no strong educational background could not be treated to be at par with

the girl living in modern society, because of change of socio-economic outlook

between the two. There might be some loopholes, discrepancies, inconsistencies

in her testimony, but the same being not major and strong enough, must be

disregarded. It was thus proposed by the respondent/State that there left

nothing to be interfered with.

As regards the point surfacing consensual sex with a promise to marry, as

strongly contended by Mr. De, a serious look with all sensitivity over the evidence

of victim/prosecutrix, adduced in this case for answering the issue raised in this

appeal is necessary.

In the testimony of the victim (PW-1) adduced on 16th April, 2007, the

victim (PW-1) stated recounting two episodes of her violation on two successive

occasions. One in the month of Jaistha corresponding to May, about two years

before the date of adducing evidence in court, i.e. on 16th April, 2007, at about

4.00 PM, when victim was physically violated by accused/appellant taking her to

a jute field with a promise to marry. Both the accused/appellant and the victim

herself in first episode at the relevant point of time had been to the field for
bringing back their respective goats and cows from the field. The victim was

threatened by the accused/appellant requiring her not to divulge the ill acts to

anybody else, accused would finish her. Accused then fled away to Siliguri.

The second episode of violation committed upon victim was held two

months after the first episode. In the month of Aashar, corresponding to June,

one day on 20/21.06.2005 at about 10.00 P.M. in the night she came out of her

room to the courtyard of her house for urinating purpose, suddenly accused

gagged her mouth providing her no scope to shout, and took her to a nearby

mango garden. In the mango garden accused did sex with the victim. About

20/30 minutes thereafter, accused/appellant left the spot for going to his own

house, when victim began to follow the accused/appellant wearing even her

petticoat. She tried to get into the house of accused, and in the result victim

received assault from accused/appellant, and ultimately got fainted. The villagers

including her parents, on the following morning, rescued the victim girl.

Accused/appellant was subsequently challenged with the incident proposing him

to marry the victim girl, but the accused refused to marry the victim girl, and

rather threatened to kill the victim and her family members. Victim further

stated in connection with the second episode that accused/appellant also

promised to marry her, though he threatened the victim girl requiring her not to

disclose otherwise, he would kill the victim.

What is significant to be noted is that promise to marry was there in both

the episodes. The existence of threat is common in both the situations, narrated

by the victim girl herself.

In the statement of the victim girl recorded under Section 164 Cr.P.C.

(Exhibit-6), the act of violation caused upon the victim was allegedly caused with

a threat coupled with a promise to marry. The occurrence depicted in the F.I.R.

was held on 20/21.06.2005 in the night, and the victim made her statement

before the Magistrate on 24th June, 2005. Though in the F.I.R. the first episode

of violation was omitted in the F.I.R., as the facts set out in F.I.R reasonably

connected the second episode, but such omission would not matter much,

because each of the two episodes alleging commission of sexual intercourse is

independent and complete in itself subject to disclosure of ingredients of offence

under Section 375 I.P.C. Each episode revolving around the story of violation

committed upon the victim being conclusive, can be presumed to have completed

paving the way for finality of offence contended. The contradiction thus sought

to be capitalized by Mr. De, learned amicus curiae, on this issue is not strong

enough to upset the story of commission of sexual violation rendering it to be

most inherently improbable.

The defence taken by accused/appellant in course of trial revealed that the

victim voluntarily consented to the sexual acts performed between the parties,

and it was reiterated in course of examination of accused under Section 313

Cr.P.C. by clarifying the answer, mentioned against question No. 11, that the

accused appellant had a friendship with the victim girl, and during such

courtship accused/appellant had the occasion to gossip with her even to the

extent of sharing bed with victim girl, which according to appellant would not

have been possible, had there not been any consent on the part of the victim girl.

The accused/appellant thus did not deny the violation committed upon the
victim girl in any manner whatsoever, what is disputed in this case by the

appellant was that the accused appellant did sex with the victim with her

consent.

Upon sensing the scheme of defence strategically adopted by the

accused/appellant in the given set of facts, it would not stand to reasons, if the

victim was violated in connection with first episode, or on subsequent occasion.

The fight between the parties thus squeezed to an important issue, what

according to appellant, it was an outcome of consent, the prosecution contended

the same action to be otherwise than on consent.

The cross-examination of victim’s testimony claiming to have experienced

threat, while being violated in the hands of accused/appellant, could not be

shaken to doubt. The credibility of victim/prosecutrix particularly as regards the

issue pertaining to exerting threat upon the victim/prosecutrix even could not be

attempted to be doubted by putting a suggestion in the form of denial. Evidence

is there that accused/appellant, as regards the second episode, gagged the

mouth of victim on the relevant night, when the victim came out of her room and

reached the courtyard for attending a nature’s call thereby providing her no

scope to raise any voice, and such part of the evidence cannot be automatically

impeached simply by taking plea of consensual sex.

In a case of this nature, age of the victim girl would be of highest

significance. Evidence is very clear that previously victim found her admission in

a school, known as Pandit pota Primary School, and where she attended only for

two days. The victim adduced her evidence on 16th April, 2007, when she claimed

to be of 16 year old. Incidentally, the victim girl gave birth to a male child.

Admittedly, the victim adduced her evidence about two years after the

incident. Arithmetically the day, when victim was violated in the mango garden

on 20/21.06.2005, night, she was little above than 15 years, but obviously much

below 16 years of her age, so as to reach her age of discretion. There was no

cross-examination by putting a suggestion even to victim/prosecutrix that the

moment when consensual sex was enjoyed between them, the victim was then

above the age of her discretion, and she voluntarily consented to the sexual act

having understood the consequence thereunder revealing her conscious decision.

In course of hearing of this appeal, Mr. De, learned amicus curiae, sincerely

tried to impress upon us referring the Ossification Test Report (marked as

Exhibit-1) prepared by PW-4 (a doctor) that victim was about twenty (20) years of

her age, the moment when she was allegedly violated, and according to appellant

it was rightly ascertained by PW-4, holding X-rays of different parts of the victim.

The Trial Court doubted the Ossification Test Report for want of margin of

two years not being shown therein coupled with absence of not taking proper

note of other secondary sex character of a female subject/person together with

her appearance/ physique and body weight.

Since Ossification Test performing doctor relied much upon the X-rays of

different parts of the victim girl principally taking note of fusion of epiphysis of

bones, PW-4 was declared hostile.

In course of cross-examination by prosecution, there left materials from

PW-4 (doctor) that he had expressed his full agreement that Ossification Test

could be based keeping note on other factors like eruption of teeth, development
of breast, weight and the appearance of pubic hair, which were essential to

ascertain age.

Argument was advanced on this score by Mr. De, learned amicus curiae,

that appearance of centres of ossification and fusion of epiphysis were more

reliable factors for determination of age. It was thus according to appellant, that

the age revealed during Ossification Test, though relied upon basically on the

fusion of epiphysis of bones together with physical appearance of victim girl, as

noted by the doctor, which having transpired prior to being declared hostile to

prosecution, ought not to have been discredited, and if at all discredited for

strong reasons, the benefit of which should have been favoured to

accused/appellant.

A fairly accurate information as to the age of tender aged children about to

reach adolescence or already reached adolescence may be given from the state of

eruption of teeth, height and weight of body, the general development of body and

condition of ossification of the bones, but it is subject to variation of two (2) years

on either side. Making reliance only upon one of these factors, would not be at all

safe to reveal the age of victim girl.

Mr. Bardhan, learned advocate representing State/respondent disputing

with such argument on the issue of age of victim girl, and the impact of

Ossification Test held in this case by the doctor revealing the victim girl to be

above twenty (20) years on 27th June, 2005, replied that age determination by

PW-4 having made purely upon the fusion of epiphysis together with appearance

of the victim, without taking care of other parameters required to be seriously
adhered to, the same would not stand favourable to the purpose of

accused/appellant.

Reliance was accordingly placed by learned advocate for the respondent on

a decision reported in (2008) 15 SCC 223, delivered in the case of Jyoti

Prakash Rai @ Jyoti Prakash Vs. State of Bihar, which sufficiently had taken

notice of the decision rendered in the case of Vishnu Vs. State of Maharashtra,

reported in (2006) 1 SCC 283, that the opinion of the Medical Officer is to assist

the court as he is not a witness of fact, and the evidence given by the Medical

Officer is really of an advisory character and not binding on the witness of fact.

The question is whether the Ossification Test Report (medical evidence) will

be given precedence to the oral testimony of victim girl herself sufficiently

revealing her age at the time of occurrence or not. There cannot be difference of

opinion on this proposition that a medical witness is called as an expert to assist

the court, who is not a witness of fact, and the evidence given by the Medical

Officer is really of an advisory character, given on the basis of symptoms found

on examination. The expert witness is expected to reveal before the court all

materials inclusive of data, which induced him to come to the conclusion and

enlighten the court on the technical aspects by explaining the terms of science,

so that the court although not an expert, may form its judgment on those

materials after giving due regard to the expert.

Since that part of evidence of a hostile witness supporting the prosecution

case subject to receiving corroboration on such part of the evidence of a hostile

witness may be utilised favourable to the purpose of prosecution, the evidence of

the doctor holding the Ossification Test and admitting in cross-examination to
have not taken care of the secondary sex character of a growing girl coupled with

her eruption of teeth, body weight, and relying grossly upon ossification and

fusion of epiphysis would itself render such medical evidence trash, even in the

absence of corroboration of such issue.

It is not a case of conflict between the medical evidence and oral evidence

over the issue of minor contradiction between the two. Irresistibly then, in our

considered view, oral evidence will be given precedence to the medical evidence in

the given set of facts.

The respondent state on this score profitably attracted to the ratio decided

in such referred cases so as to give precedence to the oral evidence over the

medical evidence for the peculiarity of circumstances involved in this case.

In this case, besides victim herself disclosing her age at the time of

occurrence, no other witness, either may be of her near relatives or her “para”

people revealing the age of victim girl was examined. In the F.I.R. victim did not

mention about her own age, but in the statement recorded under Section 164

Cr.P.C. victim voluntarily disclosed her age as 17 years on 24.06.2005.

Argument was advanced by Mr. De, learned amicus curiae that when victim

herself described her age voluntarily giving two figures, one as 17 years of age on

24.06.2005, and another as 16 years of age on 16.04.2007, her version

recounting the age will be doubtful, which would be itself sufficient to favour the

accused with an order of acquittal extending benefit of doubt.

Admittedly the victim girl in course of her statement recorded under

Section 164 Cr.P.C. disclosed her age as 17 years, but while adducing evidence

before court about two years after the incident (approx.), she disclosed her age to
be of 16 years. The victim girl is a rural and rustic one having no educational

background, and in the absence of any challenge being raised by the

accused/appellant disputing with age of the victim girl, during the course of

cross-examination, such misdescription of age, and that too from a rural, rustic

girl would not itself improbalise her entire version inclusive of her disclosure

made on 16th April, 2007, as regards her age, on the same date, as 16 years.

True it is that the investigating agency could have collected any age proving

document from the school, where the victim found her admission and continued

her school for two days. But it would not pave the way for acquittal capitalizing

such latches on the part of investigation. The court is thus obliged in such state

of affairs to rely on the testimony of victim girl disclosing her age, as 16 years on

16th April, 2007, when she first adduced her evidence before the Court, because

her version is otherwise acceptable in the absence of apparent strong

inconsistency. Such position is fortified from the definition of the word “Evidence”

found in Section 3 of the Evidence Act. The definition of the word “Evidence”

may be reproduced as follows for our present purpose:

“Evidencde”.- “Evidence” means and includes-
(1) All statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry,
Such statements are called oral evidence;
(2) [all documents including electronic records produced for the inspection of
the Court]
Such documents are called documentary evidence.”

The word “Evidence” covers both oral evidence and documentary evidence.

It would be relevant here to ascertain for our present purpose if the victim’s

testimony has passed through the test of probability or not, which may be

mentioned as:

a) how consistent the story is with itself;

b) how it stands the test of cross-examination ; and

c) how far it fits in with the rest of the evidence and the circumstances of this

case.

As has already discussed that age of the victim girl is not a disputed

phenomena, because there left nothing in the cross-examination suggestive of

putting a challenge even as regards the age of victim girl disclosed during trial of

this case, so the disclosure of age being consistent and compatible with the facts

and circumstances involved in this case having passed the test of probability, will

be extremely relevant.

Since disclosure of age of victim in course of her evidence during trial on

16th April, 2007, made in answer to the question before oath being administered,

presumably with the permission of court, in order to establish a charge claiming

to have been violated, which was under inquiry during trial, such disclosure of

statement pertaining to her own age will obviously not to be looked with

suspicion, if not treated as part of her oral evidence, and it will be sufficient to

reveal the age of such girl. Alternatively taking recourse to Section 3 of the

evidence Act, for the peculiarity of circumstances involved in this case, the

victim/prosecutrix could be safely taken to be 15 years (approx.), not reaching

the age of her discretion, the moment she was violated at the instance of the
accused/appellant. That being the position, the consent of the victim, if any,

would be without any relevance.

Since the victim was about 15 years of her age the date when she was

violated, it would be inconsequential to the stand of the appellant that the

allegation surfaced against the appellant was an outcome of consensual acts for

the consent of the victim being given voluntarily. The age of the victim being of

paramount consideration in the given set of facts, which in our considered view,

the victim was much less than 16 year old girl, but little above than 15 years at

the time of incident, it would not be that much relevant to consider if consent of

the victim was squeezed to be obtained by accused/appellant after putting her in

a fear of death, as contemplated in Section 90 of I.P.C., which has defined

consent in most negative terms. The other consideration like the previous,

contemporaneous and subsequent conduct of the parties may be relevant to

gather consent of victim /prosecutrix, which is of course a question of fact, but

the same would be inconsequential in this case on the ground when the victim

was found to be 15 years of her age (approx.), the moment she was violated. We

would thus resist ourselves from making any academic exercise to reveal if

therebe any consent on the part of the victim girl with regard to the sexual act

committed upon her, because any unproductive discussion not pertaining to the

text requiring decision on the issue, in our considered view, is most uncalled for.

The learned Trial Judge while disbelieving the ossification test report had

also taken care of the physical appearance of the victim girl in coming to a

finding that victim was a minor at the time of occurrence, which should not be

doubted for want of an inquiry being conducted by the Trial Judge in compliance
of the provisions, as contemplated in the Juvenile Justice Act, for ascertaining

age of victim. The satisfaction of the Trial Judge thus reached with respect to the

age of the victim girl, in our considered view, is of great importance, because the

Trial Judge had the occasion to physically look at the victim in course of

evidence, including the ordeal of her cross-examination. As there left nothing

disputing the age of victim girl, besides the ossification test report, the

assessment of age of learned Trial Judge, in the absence of any specific challenge

revealed from the cross-examination of the defence, should not be looked with

doubt.

Much was argued by Mr. De, learned amicus curiae submitting that the

charge under Section 376 I.P.C. should not be attracted against the

accused/appellant in a case where alleged violation was committed with a

promise to marry bearing in mind the doctrine of promiscuity. It was thus

sought to establish that not only by reason of consensual sex for the consent

being voluntarily given by the victim herself, the allegation of committing rape

will not be sustainable for the promiscuous behavior of victim in regard to her

alleged story of violation. Since this point, as argued, purely being founded upon

the question of age of the victim girl, which has already been addressed in our

discussion given above, such issue has no bearing, though proximate, on the

merits of the case, as already testified by victim herself.

Upon considering the totality of the circumstances revealed from the

evidence on record, it appears that the prosecutrix had no strong motive to

falsely implicate the person charged. There was no such evidence transpiring

existence of animosity, either of the victim herself or her parents with that of the
accused charged with the offence, suggestive of false implication. In such

circumstances, the Trial Court was rightly not faced with any hesitation in

accepting the version of prosecutrix. The testimony of the victim appears to be

probable, natural, and believable also. There was no compelling reasons

necessitating to look for corroboration of her statement.

Such was the argument raised by the respondent, while supporting the

order of conviction and sentence relying upon the decision of the Apex Court

reported in (1996) 2 SCC 384 delivered in the case of State of Punjab vs.

Gurmit Singh and Ors. The reliance to such decision by the State/respondent

in the given context of this case cannot be considered to be most inappropriate.

As regards the contradiction, discrepancy and inconsistency in the

evidence, as pointed out by the appellant surfacing over the F.I.R. with the

testimony of victim, which we already discussed mentioning its effect towards

rendering improbalization of prosecution story, such issue needs no more

address. We would, however, travel going to such extent that if such

inconsistency/discrepancy in the evidence is taken care of, in that event too, it

will not completely upset the version of prosecutrix claiming to have been violated

by accused/appellant. The discrepancy in the evidence having no effect over the

very substratum of the prosecution so as to upset the prosecution version will be

perceived to be inconsequential.

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

conviction was rightly reached bearing in mind the principle of law, and sentence

was rightly awarded adhering to the parameters required to be observed for

sentencing an offender.

It was brought to our notice that the accused/appellant had already

served out his sentence awarded in this case.

We thus uphold the conviction and sentence awarded in this case

maintaining the conviction.

The appeal fails being without any merits.

Before parting with the record, we must record our satisfaction for the

service rendered by the Mr. De, learned amicus curiae.

The appeal thus stands disposed of.

Department is directed to send a copy of this judgment along with Lower

Court Record to the concerned Trial Court without causing any delay through the

concerned District Judge.

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

concerned correctional home.

Urgent certified copy of this order, 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.)