IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

Appellate Side

Present:

The Hon’ble Justice Md. Mumtaz Khan

And

The Hon’ble Justice Jay Sengupta

C.R.A. 851 of 2006

Mintu Banik

Versus

The State of West Bengal

For the appellant : Mr. Subir Ganguly…..Advocate

For the State : Mr. Pravas Bhattacharya
Mr. Suman De
…..Advocates

Heard on : 14.05.2018

Judgment on : 03.08.2018
Jay Sengupta, J.:

1.

This appeal is directed against the judgment and order of conviction

dated 8th June, 2006 and sentence dated 9th June, 2006 passed by the

learned Additional Session Judge, Fast Track 2nd Court Alipurduar,

Jalpaiguri in Session Trial No. 11/2006 : Session Case No. 173/2005,

thereby convicting the accused appellant Mintu Banik for committing an

offence under Section 376 (2) (f) of the Indian Penal Code and sentencing

him to imprisonment for life and to pay a fine of Rs. 50,000/-, in default to

suffer further rigorous imprisonment for three years. In the event of

realisation of fine, 90 per cent of the same was directed to be paid to the

victim girl in terms of Section 357 of the Code of Criminal Procedure. This is

a case where the appellant father was convicted for ravishing his own minor

daughter.

2. The mother of the victim girl and wife of the appellant lodged the First

Information Report on 26th August, 2005 at about 13.35 hours alleging that

her 10 years old daughter was raped by the appellant on 13th August, 2005

at about 8 hours. She alleged that in the 11 years of her marriage she gave

birth to three daughters, the victim being the eldest one aged about 10

years. She stated that her husband was engaged in electrical job. Due to

poverty she had to take up a job in a nursing home. She used to go out in

the early morning and return home at about 8 P.M. The victim used to go to
school at 7 A.M and return home at 9 A.M or 10 A.M. At that time the

appellant used to close windows of the room and when their daughter

entered he used to shut the door and used to rape her on the mat kept on

the floor by threatening her with dire consequences with a sharp chopper

kept by his side. He had been doing so for the last two months. On 13th

August, 2005 when the informant became ill and went to her maternal home

accompanied by the victim, there at about 8 A.M she sent the victim to her

husband to bring some money for purchase of medicines. The victim first

went to her aunt PW 3. Thereafter, as soon as victim entered into the

appellant’s room, he forcibly brought her below the ‘chowki’ and began to

rape her. He threatened her not to disclose the matter or else he would kill

her with a chopper. But, the victim disclosed the matter to her eldest aunt

PW 3, who in turn, intimated the same to the mother PW 2. Since then the

de facto complainant kept her daughter with her eldest uncle PW 8 and

informed the matter to all her family members. At this the appellant became

angry and came to beat her. Lastly on 22nd August, 2005 at about 1.30 A.M

the appellant asked PW 2 to call the victim. When she refused, the appellant

attacked her with fists and blows and threatened to cut her down with a

chopper. Being unable to bear such intolerable crimes, PW 2 decided to file

the First Information Report. But, due to illness, she was late in informing

the police.

3. After registration of the First Information Report, investigation started.

The accused appellant was arrested. The victim was medically examined by

a doctor (PW 9). Her statement under Section 164 of the Code was also

recorded by a learned Magistrate (PW 17). A charge-sheet was submitted

and finally a charge was framed against the appellant on 8th March, 2006 for

commission of an offence under Section 376 (2) (f) of the Penal Code.

4. During trial the prosecution examined as many as 18 witnesses to

establish its case. From the trend of cross-examination of prosecution

witnesses and examination of the accused under Section 313 of the Code,

the defence case appears to be that of a denial of the prosecution case.

5. PW 1 was the victim in this case. She was a minor daughter of the

appellant and the de facto complainant. The victim clearly supported the

First Information Report. She deposed that her mother usually attended her

duty from 8 A.M to 8 P.M. She used to go to school at about 7A.M and came

back around 9 A.M. She categorically alleged that her father the appellant

after closing the windows and the door of their house had been raping her

for about two months. She gave graphic details of what the appellant used to

do. The appellant committed such offence on her lastly on 13th August,

2005. She reported this crime to her mother and to her eldest aunt. She

deposed that immediately after the offence on 13th August, 2005 she
reported it to her eldest aunt. After about 13 days of the last incident they

reported the matter to the police. She was medically examined and also

made a statement before the Learned Magistrate. In the cross-examination

PW 1 stated about quarrels between her parents. The appellant used to

threaten her with a Dao. As she was put to fear she could not disclose the

incident initially to anyone but thereafter, she disclosed it to her mother and

her eldest aunt. She deposed that first her eldest aunt did not believe her.

Later, she advised her to cry if the appellant tried to do any bad thing. But,

she had no chance of crying in the course of the incident. She stated that

her mother became ill and was admitted in hospital. She further admitted

that for the incident of 13th August, 2005, it was her mother who disclosed it

to the eldest aunt. PW 1 also stated that after filing of the case she and her

mother lived with the appellant.

6. PW 2 was the mother of the victim and the de facto complainant of the

case. She deposed that she became seriously ill and was admitted in

hospital. She had to send the victim to the appellant to bring money from

him. On that night the victim’s eldest aunt visited PW 2 at the hospital who

disclosed that the victim had been raped by the appellant. When PW 2 went

back from the hospital, she made arrangements for the stay of the victim at

the house of the eldest aunt. Thereafter one night the appellant assaulted

her and committed serious ill-treatment. In the cross-examination PW 2

deposed that she had given her youngest daughter to a person in Cooch

Behar by way of adoption.

7. PW 3 was the eldest aunt of the victim and the sister-in-law of the

appellant. She deposed that on 13th August, 2005 when she went to the

hospital to see PW 2, PW 2 disclosed her that the appellant was committing

torture upon the victim in the form of rape for quite a few days. PW 1 the

victim also reported to her about such incident on the last occasion.

Subsequently, an arrangement was made to keep the victim in her house.

She deposed that in the night of 22nd August, 2005 there was a quarrel and

altercation between the appellant and his wife PW 2. PW 2 reported to her

that on that night the appellant demanded that the victim be brought back

in their house. She also deposed that the victim told her about the appellant

threatening her with a Dao. In the cross-examination PW 3 admitted that

PW 2 told her about the incident for the first time on 13th August, 2005

when she was in hospital. She deposed that in the noon of 13th August,

2005 the victim had seen her in their house while she came to fetch money

from her father for the treatment of her mother. She corroborated the victim

that the third child of the couple was given in adoption to a man in Cooch

Bihar.

8. PW 4 was a relation of the appellant who was declared hostile. But, he

admitted that PW 2 had disclosed to him about her husband committing

rape upon the minor daughter. PW 5 another relation also deposed that PW

2 had told her about the appellant committing rape upon their daughter on

13th August, 2005. Another relation PW 6 disclosed the fact about PW 2
reporting to him about heinous crime committing by the appellant. PW 7

learnt about the allegations from PW 8, a relation of his. PW 8 the elder

brother of the appellant also supported the prosecution case. He deposed

that on 13th or 14th August, 2005 he found the victim weeping and the

victim told him that when she came to collect money for her mother’s

treatment, the appellant ravished her by keeping at Dao by his side. She

signed in seizure list for the birth certificate of the victim. PW 10 was the

maternal grand-mother of the victim. She deposed that the victim had

disclosed her about the appellant committing rape on her.

9. PW 9 was the doctor who examined minor victim. In his opinion there

was no forceful attempt of coitus and he found no injuries on the private

parts.

10. PW 11 is the doctor who examined the appellant. In his opinion the

appellant could not be declared incapable of doing sexual inter course.

11. PW 12 was a seizure list witness to the seizure of victim’s birth

certificate. PW 13 is the Police Officer who received and recorded the First

Information Report in the case. PW 14 was another witness to the seizure of

the victim’s birth certificate. PW 15 was the Inspector-in-Charge who

endorsed the case for investigation to the Investigation Officer. PW 16 typed

the complaint (Ext. 2) at the instance of the de facto complainant as drafted
by one Manoranjan Sarkar, a law clerk. PW 17 was the learned Magistrate

who recorded the statement of the victim under Section 164 of the Code. In

such statement the victim had categorically made the allegations of rape

against the appellant. PW 18 was the Investigating Officer of the case.

12. Mr. Subir Ganguly, the learned Advocate appearing on behalf of the

Appellant submitted that the medical evidence did not support the ocular

version of the victim and the prosecution case for that matter. He contended

that this evidence of PW 9, the doctor who examined the victim girl, that

there was no injury on the victim daughter and her hymen was intact totally

demolished the prosecution case. He submitted that there were

discrepancies between the evidence adduced by the PWs 1, 2 and 3,

especially about to whom and when did the victim girl first disclose about

the incident of rape. The learned Advocate lastly contended that the

sentence of life imprisonment imposed on the appellant father was too

harsh.

13. Mr. Prabhas Bhattacharaya, the learned Advocate appearing on behalf

of the State strongly supported the conviction and sentence passed in this

case. He submitted that even a slightest penetration is sufficient to

constitute rape. The minor child might not suffer any injury and her hymen

might remain intact in such event. He also contended that witnesses need

not repeat verbatim the facts stated by another. If at all any inconsistency
was there, it was not material so as to weaken the prosecution case. He also

pointed out that since the appellant was arrested very fast and had been in

custody since then, the victim’s statement that they all lived together even

after the incident, may not be interpreted literally.

14. We have given our thoughtful consideration to the submissions

advanced by the learned Advocates for the parties and have carefully

perused the evidence and materials on record.

15. PW 1, the victim girl was about 10 years old when her father the

appellant allegedly committed rape on her. She had given vivid and painful

details of the torture committed by her father on her. It was quite natural for

her first not to disclose it and so she took some time to muster courage and

come out of her disturbed shell to disclose the truth. In fact, first PW 3 did

not even believe her. But later on she advised the child to scream or cry

whenever the father tried such abominable acts. There is no evidence that

the child had any special animus towards her father so that she would go to

such an extent as to lie about being ravished by her own father. In fact, the

family was in such poor shape that the dependants could not be without the

appellant’s income. So, PW 2 the mother sent the victim to the appellant to

bring money for her treatment on 13th August, 2005 and even on that day

the appellant could not resist himself from raping his own daughter. The

victim’s testimony could not be shaken in Court. Her evidence is
corroborated by the statement recorded by PW 17, the learned Magistrate

under Section 164 of the Code. This is a fit case where conviction and

sentence can be based on the sole testimony of the minor prosecutrix.

16. The little delay in lodging the FIR by PW 2 has been satisfactorily

explained. First, there is ample evidence to support her explanation that she

was ill at the time. In fact, she was hospitalised as would be evidence from

the deposition of PW 3. It also appears that due to poverty, the victim’s

mother PW 2 used to work in a nursing home and even after learning that

the appellant was raping their minor daughter, she could not afford to

complaint, but to save her daughter, she arranged for her stay elsewhere. It

was only after the appellant insisted that the victim child be brought back

implicitly so that he could satisfy his incestuous lust and perversion and the

appellant even beat up the wife that the wife PW 2 decided to lodge a

complaint.

17. The purported discrepancy about to whom the victim child first

disclosed the incident and when, the alleged inconsistency is not clearly

made out. Even, if it were there, the same would be too minor and

inconsequential in the face of the evidence of the victim child and other

witnesses.

18. PW 2, the mother and PW 3, the eldest aunt of the victim child

deposed that the victim had intimated them about the commission of rape

by her father on her. PWs 2 and 3 gave credible accounts of their

interactions with the victim, which could not be shaken in the cross. PW 8,

the elder brother of the appellant and PW 10, the maternal grandmother of

the victim child also deposed about hearing, about the rape from the child.

PW 8’s evidence is very important as he was the brother of the appellant and

heard about such crime from the victim immediately after the incident on

13th / 14th August, 2001 when he found the victim weeping. Moreover, PW 4,

although hostile and PW 5 and PW 6 deposed that PW 2, the mother of the

victim had disclosed them about the factum of rape after the incident.

19. Now, coming to the question of medical evidence, first it was rightly

pointed out by the learned Advocate for the State that even the slightest

penetration would constitute the offence of rape. If one carefully looks at the

details given by the victim child, it is clear that the appellant was more in

the habit of committing perverted acts with utter impunity and these would

obviously cause some kind of penetration, but may not leave a mark of

injury. It is quite well settled that a hymen may not rupture in all cases. Due

to relative elasticity, a rape may not necessarily cause rupture of hymen

especially in children. Furthermore, it has come in the evidence that the

appellant used to rape the victim by giving out a fear of threat of dire

consequences and by keeping a “dao” by his side. If the victim is compelled

to yield to the violator due to fear, she may not suffer any other external
injury as a consequence of rape. Therefore, upon a careful perusal of the

medical evidence, it does not appear that it militates against the prosecution

case.

20. On the question of sentence, Section 376 (2) (f) of the Penal Code

envisages imposition of life imprisonment. This is a case where a father is

alleged to have repeatedly raped his minor daughter and have shamelessly

faught with his wife to get the child back from an alternative arrangement

for stay so that he could continue to satisfy his incestuous and paedophilic

lust by forcing himself upon her own minor daughter. If this not a fit case

for imposition of maximum punishment, then one wonders what is. We

cannot be guided by any misplaced sense of sympathy and award a flea-bite

sentence in this case.

21. In view of the above discussions, we are of the opinion that the

prosecution has been able to prove its case beyond all reasonable doubts

and the Trial Court was also absolutely right in awarding the conviction and

sentence. Accordingly, we dismiss the appeal being C.R.A No. 851 of 2006

and affirm the impugned judgment and order of conviction and sentence

passed by the learned Trial Court.

22. Let a copy of this judgement along with the lower Court records be

sent down to the learned Trial Court forthwith for information and necessary

action.

23. Urgent certified copies of the judgment may be supplied to the parties,

if applied for, upon compliance of all formalities.

(Jay Sengupta, J)

I agree

(Md. Mumtaz Khan, J)