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Pran Krishna Shil @ Sil vs State Of West Bengal on 24 December, 2019

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.

C.R.A No. 710 of 2014

Pran Krishna Shil @ Sil
Vs.
State of West Bengal

For the Appellant : Mr. Jayanta Narayan Chatterjee, Adv.
Mr. Saidur Rahaman, Adv.

For the State : Ms. Anita Gour, Adv.

Heard on : 28.11.2019, 03.12.2019.

Judgment on : 24.12.2019

Subhasis Dasgupta, J:-

This criminal appeal is against the judgment and order dated 29.08.2014,

passed by the learned Additional Sessions Judge, 2nd Court, Raiganj, Uttar

Dinajpur, in Sessions Case No. 139 of 2010 convicting the accused/appellant

under Section 363/Section366/Section376 of Indian Penal Code and sentencing him

thereunder to suffer Rigorous Imprisonment for seven (7) years, and to pay fine of

Rs.2000/- (rupees two thousand) in default, to suffer Rigorous Imprisonment for

further two months for committing offence under Section 366 of the Indian Penal
Code and also to suffer Rigorous Imprisonment for ten (10) years and to pay a

fine of Rs. 3000/- (rupees three thousand) in default, to suffer Rigorous

Imprisonment for further three months, for offence under Section 376 of the

Indian Penal Code.

The factual matrix, as established during trial, may be put in short

compass as follows: –

The accused appellant kidnapped and abducted the victim girl, a fourteen

(14) year old girl, when the victim girl had been to her private tutor for taking

tuition, and then took her away to Raiganj and then to Dalkhola and finally to

Islampur, wherein she was kept detained for twelve (12) days, after getting her

forcibly married, and further did cohabitation with her giving deaf ear to the

protest raised by the victim girl. The accused appellant ultimately surrendered at

Hemtabad Police Station on 29.08.2008, being accompanied by victim girl. The

victim girl was directed to be returned as per order of the court, dated

30.08.2008 to her father/complainant. The victim girl was put up for her

medical examination in the like manner, as accused appellant was put up before

the Hospital authority. Over this incident, the father/complainant submitted a

complaint on 27.08.2008 with inspector-in-charge of Kaliyaganj P.S. alleging that

the victim girl had not returned home since 18.08.2008, the day when victim girl

left home for her private tuition. Till 27.08.2008, complainant did not find the

existence of his victim daughter even after doing necessary search for the

purpose. On the basis of this complaint, police took up investigation. In course

of investigation, the age of the victim girl was attempted to be ascertained by
conducting ossification test of the victim girl. After conclusion of investigation,

police submitted charge sheet. Accused appellant was put up to trial against a

charge of Under Section 363/Section366/Section376 of I.P.C. The Trial Court after collection of

as many as eleven (11) witnesses held the accused person to be guilty and

convicted under Section 363/Section366/Section376 of I.P.C.

The prosecution case in simpliciter is that accused/appellant, having

independent family, comprising of wife and children, and also doing saloon

business of his own, had taken away the victim girl, pursuing then study in class

six (VI) of a school, to Islampur within the district Uttar Dinajpur, and then made

the victim girl worn conch and vermilion to get her married, and detained her

there for twelve (12) days together, when accused did his forceful sex doing

cohabitation with the victim girl against her wish.

Accused/appellant assailed the order of conviction principally disputing

with the age of the victim girl, relying heavily upon the medical evidence,

adduced by PW-3 and PW-9, to render the testimony of victim girl/PW-6 to be

highly improbable, attracting the apparent contradiction contained in the

testimony of witnesses, capitalizing the delay of nine (9) days, contending the

same to have not been explained by prosecution, and further referring the

ingredients, as contemplated under Section 363/Section3663376 of I.P.C not to have

been proved, and further challenging the sentence already awarded in this case

describing the same to be most disproportionate.

The defence version though attempted to be established during trial, that

accused appellant had love relationship with the victim girl to the knowledge of
the parents of the victim girl, and the complainant being father of the victim girl

having been apprehensive of situation that his daughter might marry the accused

appellant out of such love affairs, such false case was instituted so that the

victim girl could not marry the accused appellant, but which however, having

been denied by the victim girl herself, went unestablished during trial. Such love

relationship was not even established independently by adducing any evidence

from defence side.

In FIR itself, marked as Exhibit-4, victim girl was described to be fourteen

(14) year old girl pursuing her study in class six (6) in Baral Haralal girls’ High

School on the day, when victim girl could not be found out after she had left

home for having private tuition from the private tutor, Pranabesh Pal. In the

evidence, both PW-1 and PW-7, who are parents of victim girl, consistently spoke

that their daughter was of fourteen (14) year old girl, pursuing study in class six

(6). The victim girl/PW-6 claimed herself to be of 14 year old girl, the day when

she was taken away by accused/appellant. PW-4 performed ossification test for

the victim girl, and furnished report, marked as Exhibit-2 stating that the victim

girl was more than fifteen (15) year old, but less than seventeen (17) year old girl,

the day when he performed his ossification test on 13.09.2008.

PW-3 held pregnancy and virginity test of victim girl, and while doing

medical examination of the victim girl on 30.08.2008, she was projected to be of

fourteen (14) year old girl. The birth certificate, issued by Department of Health

and Family Welfare of the victim girl, marked as Exhibit-10, recorded the date of
birth of the victim girl as 26th Day of April 1994, meaning thereby on the date of

occurrence victim girl was 14 year 4 month (approx.) old.

In such state of evidence, as mentioned hereinabove, learned advocate for

the accused/appellant argued that victim girl was nineteen (19) year old girl,

otherwise she would not have given marriage two years after she got release order

from court.

Learned advocate for the respondent/State drawing attention of us to the

order, dated 13.12.2013, recorded by the learned Trial Judge submitted that the

birth certificate had been marked exhibit under Section 74 of Indian Evidence

Act, for the same being issued by the official bodies in application of the

provisions under Section 294 Cr.P.C., and when there had been no apparent

challenge with regard to genuineness or authenticity of such birth certificate,

produced during trial, and further the finding reached by the Trial Judge, not

having been upset by any superior forum available under the law, the accused

appellant ought to be construed to have accepted the age of the victim girl, found

recorded in the birth certificate, marked as exhibit-10.

Learned advocate for the appellant further contended on this issue

submitting that when as per ossification test report, the victim girl was shown to

be more than fifteen (15) year old, but less than seventeen (17) year old on

13.09.2008, there being variation of two years always available in connection

with settled proposition of law to settle a dispute based on age, the accused

appellant should have been given the benefit of plus two years at the higher side

of the age mentioned in ossification test report (Exhibit-2).

Reliance was placed by appellant on this issue on a decision delivered in

the case of SectionRam Suresh Singh vs. Prabhat Singh Alias Chhotu Singh and

Anr. reported in (2009) 6 SCC 681, that a court of law for the purpose of

determining age of a party to the lis, having regard to the provisions of Section 35

of the Evidence Act, will have to apply the same standard.

Appellant further sought to rely upon a decision, delivered in the case of

SectionRajak Mohammad vs. State of Himachal Pradesh reported in (2018) 9 SCC

248 that the ossification test report describing the victim girl to be less than

fifteen (15) year, but not more than seventeen (17) year old girl having attracted

variation of two years in either side of the age mentioned in the ossification test

report, the probability of the victim girl being a consenting party to the act

complained of, could not be altogether ruled out and the benefit of doubt should

be given to accused/appellant.

In the first decision referred above, the plea of juvenility was raised before

the Trial Court in a murder trial. In support of plea of juvenility, the certificate

granted by the head master stating the date of birth, and the admission register

were produced. In either of the two documents, same date of birth was

mentioned in respect of the person, who pleaded juvenility. The entry in the

admission register was proved, and the school certificate mentioned in the date of

birth was also accepted in evidence. The Trial Court, however, appointed medical

board. The medical board estimated the age of the person claiming juvenility to

be 20-22 years. Upon consideration of the report of medical board, the plea of

juvenility was refused. The High Court in revision considered those two
documents produced by the petitioner, claiming juvenility to be admissible after

being proved, for the genuineness of such documents being not doubted, in

application of Rule 22(5) of Juvenile Justice Care and protection of Children

Rules 2001.

The High Court in its revisional jurisdiction observed that it is only in case

of some dispute regarding genuineness of those documents, the Juvenile Justice

Board can seek the opinion of a duly constituted medical board for ascertaining

the age of accused for declaring him juvenile. The High Court allowed the plea of

juvenility reversing the order of the Trial Court.

The Apex Court maintained the decision, rendered by the High Court

propounding that the entries in the admission register having proved in evidence

under Section 35 of the Evidence Act, and the school certificate being accepted

during evidence on proof, the same could not be doubted. Section 35 of the

Evidence Act, as sought to be made applicable by the appellant in this case,

would be of no help to appellant on the ground that in the case at hand, neither

any admission register, nor any school certificate mentioning the age of the

victim was accepted in evidence. The birth certificate, issued by the Department

of Health and Family Welfare, West Bengal being accepted in evidence under

Section 294 Cr.P.C. in application of Section 74 of the Evidence Act, the age of

the victim girl thus stood established. That being the position, the judgment

relied upon by the appellant is patently distinguishable on facts.

The victim girl not having raised any protest during her travelling in public

vehicle, after she was taken away, soliciting any help from people she came
across at different point of time, what according to appellant was contrary to the

ordinary course of conduct of a ordinary human being, the decision reached in

the case of Rajak Mohammad (supra), was sought to be made applicable in

the present case, in support of the argument that the possibility of the victim

being consenting party, could not be together ruled out.

In the case referred in Rajak Mohammad (supra), the victim girl had

freely moved around with accused appellant and in course of such movement the

victim came across many people at different point of time, when the victim did

not complain of any criminal act on the part of the appellant so long she

remained in the company of accused appellant for about twelve (12) days. The

case in hand revealed that the victim was held in captive for about twelve (12)

days until she was recovered. But there was no evidence revealing free

movement of the victim around during the period, the victim was made to stay in

the company of accused appellant. Further there was no evidence that the victim

girl in course of her free movement, she had occasion to come across many

people providing her a chance to make any complain as to the criminal act on the

part of the accused/appellant. In the referred case the victim prosecutrix

contradicted her previous statement. In support of the age of the victim girl, the

school admission form and the certificate issued by the school were produced in

evidence. The teacher, where the victim pursued her study at one point of time,

proved the admission form. The details of the admission register were entered

obtaining information from school leaving certificate, issued by a government

primary school. The certificate issued by the government primary school on the
basis of which the details in the admission form, were entered, remained un-

exhibited in the trial. The mother of the victim also remained unexamined in

such case. Upon consideration of the totality of the facts in such case, and

particularly the report of the radiologist describing the victim to be between 17 to

18 year old, in respect of which a variance of two years in either of the side being

available, the benefit of doubt was granted to accused/appellant.

The case in hand, however, projected nothing that the victim voluntarily

and satisfactorily succumbed the threat, pressure and fear, to which the victim

had to be put in, and in such circumstances, by any stretch of imagination it

cannot be perceived that the victim girl was consenting one. The possibility of

the victim being a consenting party goes altogether out upon visualizing the age

of the victim, who was then fourteen (14) year old girl (approx.), the date when

she was taken away and subsequently put to suffer forcible penetration. The

consent has no relevance in this case. The instant decision also, as referred by

the appellant, would thus be without any significant use, favourable to the

purpose of appellant.

The respondent/State countered the argument raised by the appellant

contending that the birth certificate issued by official bodies mentioned in

Section 74 of the Indian Evidence Act having been exhibited during the course of

this trial being a public document, there was hardly any scope for due

application of Section 35 of the Evidence Act so as to doubt the age of the victim

girl, which already stood established during the trial and the same even could

not be undemolished or upset by any order of the superior court.

It would be profitable here to refer an observation of the Apex Court made

in Para-13 of a decision delivered in case of SectionJyoti Prakash Rai Alias Jyoti

Prakash vs. State of Bihar reported in (2008) 15 SCC 223.

“Para-13: A medical report determining the age of a person has never been
considered by the courts of law as also by the medical scientists to be conclusive in
nature. After certain age it is difficult to determine the exact age of the person
concerned on the basis of ossification test or other tests. This Court in SectionVishnu v.
State of Maharashtra [(2006) 1 SCC 283], opined: (SCC p. 290, para 20)

“20. It is urged before us by Mr Lalit that the determination of the age of the
prosecutrix by conducting ossification test is scientifically proved and,
therefore, the opinion of the doctor that the girl was of 18-19 years of age
should be accepted. We are unable to accept this contention for the reasons
that the expert medical evidence is not binding on the ocular evidence. 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.”

In the aforementioned situation, this Court in a number of judgments has
held that the age determined by the doctors should be given flexibility of two years
on either side.”

There being an error of two years available in determining the age of a

person on the basis of ossification test report, the age found recorded in the birth

certificate, produced during trial of the case, the genuineness of which not being

doubted would be preferred in the given set of facts and the probative of value

birth certificate, issued by Department of Health and Family Welfare West Bengal

could not be looked with doubt any more taking recourse to Section 35 of the

Evidence Act.

Admittedly, victim was medically examined twice one on 29.08.2008, at

Kaliyaganj Hospital after she was recovered by the police of Kaliyaganj P.S., and

for the second time on 30.08.2008, at Raiganj District Hospital. The medical

examination of the victim girl, held on 29.08.2008, was proved by PW-9, doctor of

Kaliyaganj Hospital, and his medical examination report was accordingly marked

Exhibit-5, while medical examination report, held on 30.08.2008, proved by

Doctor between PW-3, was marked as Exhibit-1.

Doctor/PW-3 on 30.08.2008, held pregnancy and virginity test of the

victim girl, vide Exhibit-1, while PW-9, Doctor of Kaliyaganj Hospital, where the

victim girl was first produced after her recovery, performed medical examination,

vide Exhibit-5 and found the hymen of the victim to become ruptured without

mentioning the age of the rupture, as to whether it was old or recent in origin.

The evidence of hymen becoming ruptured was even reiterated by PW-3, another

doctor performing medical examination at Raiganj district Hospital on

30.08.2008.

PW-9, Doctor did not opine anything, if the victim girl was at all subjected

to rape or not. PW-3/doctor, however vide his report (Exhibit-1), stated in his

report against Sl. No. 2, that the victim girl had been habituated to intercourse.

Referring the testimony of two Doctors, PW-3 and PW-9, who examined the

victim girl on two different dates and furnished their medical examination

reports, marked as Exhibit-1 and Exhibit-5 respectively, learned advocate for the

appellant submitted that when the medical examination report was silent about

commission of rape, if any, upon the victim girl, the testimony of the victim girl
ought not to have given any credence merely visualizing a fact that the hymen of

the victim was ruptured, the possibility of which would attract multiple reasons.

Learned advocate for the appellant further contended that when victim girl

had been described to have been habituated to intercourse (in Exhibit-1) the

charge levelled against the accused appellant under Section 376 of I.P.C. would

automatically fail.

Respondent/State criticized such argument canvassed by the appellant

submitting that in a case of this nature, testimony of the victim girl would be of

paramount consideration.

In the evidence, adduced by victim girl/PW-6 coupled with her statement,

recorded under Section 164Cr. P.C., as already proved by victim herself, vide

Exhibit-3 and Exhibit-7 respectively, the victim girl conspicuously described as to

how she was subjected to sexual intercourse against her wish ignoring her

protest. The moment when the victim girl specifically denied the existence of her

having any love relationship with accused appellant, which even could not be

demolished in cross-examination even after putting suggestion, for the same

being ultimately denied by the victim, the testimony of victim girl should not be

looked with doubt on the premise that the burden of proof as to having love

relationship was shifted to accused/appellant, and the same not being duly

discharged, the evidence of victim girl will be treated as trustworthy.

PW-6 victim graphically stated that when she was put to suffer

cohabitation, she tried to resist the sexual act of the accused/appellant, but all

in vain. The significant fact is that the victim was a minor of about fourteen (14)
year old girl, who was to satisfy the sexual anger of the accused appellant, a

married man having family member comprising of his wife and children and in

such state of affair, the victim girl should not be perceived to be succeeded in

over-powering the accused/appellant. In the given context of the case, the victim

girl found no alternative, but to surrender helplessly to the accused appellant

during the period, while she was held in captivity. Though victim girl stated in

her 164 SectionCr.P.C. statement that during the stay of accused appellant at Islampur,

he would call upon her (the victim girl) over phone, requiring her to come over

there, but which itself would not be indicative of a relationship to exist between

them on the ground that proposal was unilaterally made. Looking at the age of

the victim girl, the victim girl can not be taken to be a consenting girl, voluntarily

leaving the lawful guardianship of her father, while she was continued to remain

as minor with no option of exercising her consent, for she not having reached the

age of exercising discretion at the relevant time.

As regards the noting made by doctor (PW-3) in his medical examination

report on 30.08.2008, depicting the victim to be habituated to sexual intercourse,

it would be profitable here to rely on a decision rendered by the Apex Court in the

case of State Of Punjab Vs. Gurmit Singh Ors. reported in 1996 SCC (2)

384, wherein it was held that even if the prosecutrix was promiscuous in her

sexual behaviour, the victim prosecutrix had right to refuse to submit herself to

sexual intercourse to anyone and everyone, because she is not vulnerable object

of prey for being sexually assaulted by anyone and everyone.

In the case of State of U.P. Vs. Pappu @ Yunus, reported in AIR 2005,

SC 1248, the Apex Court held that even in a case, where the girl is found to be of

easy virtue, or a girl being habituated to sexual intercourse, it could not be

ground to absolve the accused from the charge of rape.

The Apex Court, further in the case of State (Government of NCT Delhi)

Vs. Pankaj Chaudhary, reported in AIR 2018 SC 5412, held that even in cases

where there was some material to show that the victim was habituated to sexual

intercourse, there could not be any inference like victim being a woman of loose

moral character, providing the accused free hands, to go unpunished.

When the age of the victim girl stood established to fourteen (14) year

something (approx.) on the date of incident, not attending the age by this time to

exercise her option, the moment she was put to suffer ravishment; by reason of

mere noting of a doctor in the medical examination report revealing the victim to

be habituated to intercourse, the prosecution story of having subjected to sexual

intercourse can not be disbelieved. Even if the victim is taken to be habituated to

sexual intercourse, in the absence of any other convincing material found

available in the evidence, the same would not provide license to accused

appellant for committing rape upon the victim girl. The existence of hymen

getting ruptured, noted by the both the doctors in the medical examination

reports, in the given set of facts, would be suggestive of impact of penetration

forcefully done against the wish of the victim girl, what was exactly the version of

the victim girl, mentioned in her statement. Though age of the hymen becoming

ruptured, could not be disclosed in the medical examination report of doctors,
but in the absence of anything, suggestive of causing rupture to the hymen being

otherwise found available in the cross-examination of the witnesses, such

hymenal injury manifested in the form of becoming ruptured would necessarily

co-relate with the act of forceful penetration upon victim girl.

According to accused appellant, the F.I.R. of a case would give rise to

substratum of a criminal prosecution, and when there was contradiction in

between the version contained in the F.I.R., and that of the F.I.R.

maker/complainant, the neat result would be the prosecution case must be

shrouded with doubt, the benefit of which would go in favour of the accused

appellant.

It was suggested by the learned advocate for the appellant that the

moment, when the F.I.R. was lodged by father of the victim girl on 27.08.2008,

for an incident having held on 18.08.2008, victim girl could not be searched out,

after she went missing since 18.08.2008, even after an extensive search for the

purpose, but PW-1/complainant father himself contradicted with the version of

F.I.R. by testifying to the effect that he got back his victim daughter three days

after she went missing, meaning thereby the date when the F.I.R. was lodged, the

victim was very much in her home to the knowledge of complainant father, and

in suppression of which the complainant father deliberately filed this case on the

ground that his daughter was over interested to marry the accused appellant out

of her love relationship, and further that the father knew that the victim might

marry at any time to accused appellant, and therefore, the case was instituted
with a concocted version simply to put an end to the love relationship of accused

with victim daughter.

Respondent/State showing the evidence of the victim girl and her parents,

PW-1 and PW-7, together with evidence of I.O. (PW-10) proceeded to dispel the

doubt in this regard so as to eliminate the contradiction, focused by the accused

appellant. Victim girl was admittedly recovered by Kaliyaganj P.S. on 30.08.2008,

after the accused appellant and the victim girl together surrendered at Hemtabad

P.S. The police officer from Kaliyaganj P.S. had been to Hemtabad P.S. following

surrender of accused appellant and victim together. Thus, the F.I.R. was lodged

on 27.08.2008, stating the victim to have gone missing since 18.08.2008, after

she had left her home for having private tuition from a private tutor. The period

held in company of accused appellant for the victim could be easily counted to

twelve (12) days taking the date from she went missing since 18.08.2008,

because the victim/PW-6 herself consistently stated in her evidence that she was

held in captivity for twelve (12) days, and out of which she was put to suffer

forceful cohabitation for six (6) days together with the accused appellant without

her consent.

It is also the evidence of victim that she tried to communicate with her

parents, but she was not allowed to make any communication with her parents

during her period of detention under the custody of accused appellant. The

medical examination of the victim girl having held on 29.08.2008, at Kaliyaganj

Hospital, after the victim was recovered by Kaliyaganj P.S., the only inference is

that court be irresistibly drawn is that the victim came returned to her home on
30.08.2008, the reference of which could be easily found in the order dated

30.08.2008, when the victim girl was directed to be returned to her parents’

house upon execution of a P.R. bond of Rs.500/- (rupees five hundred).

It is thus deducible that the moment when the F.I.R. was launched by the

complainant/father on 27.08.2008, the victim girl did not return to her home.

The argument thus advanced by the appellant would be without any significance

on this score.

Focusing the testimony of PW-2, who found the victim and the accused

appellant boarding a trekker at Kulick Bridge on his way to Karandighi, after the

victim went missing, learned advocate for the appellant submitted that the

evidence of PW-2 could not be relied upon because of the contradiction shown in

the testimony of I.O (PW-10), when the I.O. himself stated in cross-examination

that PW-2 never made any statement in course of investigation that PW-2 had

ever informed the complainant/father stating that he had seen victim girl and

accused appellant boarding a trekker on the way to Dalkhola.

Respondent/State replied on this issue that such contradiction would not

matter much, because it was minor in nature, and it would not go to the very

root of the prosecution case.

PW-2, a known personality of the complainant, found accused appellant

and victim girl boarding a trekker, but he did not find them talking at the

relevant point in the trekker.

The entire effort of the appellant was to make the entire evidence of

witnesses doubtful and untrustworthy by reason of the inconsistency,
discrepancy, if there be any. It was proposed accordingly that testimony of PW-2

being devoid of anything to the effect that PW-2 had seen victim and the accused

appellant boarding together, the evidence of PW-2 would not inspire any

confidence, because of the contradiction revealed in his testimony with reference

to evidence of PW-10 (I.O.).

There is clear evidence in the cross-examination of PW-2 that PW-2 had

seen victim with accused appellant at the relevant point of time, while boarding a

Karandighi bound trekker, after the victim went missing on 8.08.2008. This part

of the evidence, not being demolished in any way during the course of cross-

examination of PW-2, the testimony of PW-2 would, however, inspire confidence,

irrespective of contradiction mentioned, which in our considered view, is nothing

more than minor, and further such contradiction would not upset the very edifice

of prosecution case.

Taking recourse to the statement of victim girl recorded under Section 164

Cr. P.C., when victim at the very threshold of her statement gave out that

accused would call upon her during his stay at Islampur, requiring her to come

at Islampur, which, according to appellant, would not otherwise have been

possible, had there not been any love relationship between the two, and learned

advocate for the appellant thus sincerely endeavoured to impress upon us that

there had been no taking away as regards the victim girl from the lawful

guardianship of father of victim girl, for the victim girl herself voluntarily left

home in consequence of her love relationship, and thus, argued that unless

kidnapping could be proved satisfactorily, and unless taking away be proved
satisfactorily, the offence under Section 376 I.P.C. would automatically get

diluted.

The respondent/State in answer to the point being raised by the appellant

submitted that accused appellant not only once, but twice had to be examined

under Section 313 Cr.P.C. enabling the accused appellant to offer satisfactory

explanation, if there be any, regarding the age of the victim girl, but when the

accused appellant failed to avail himself of that opportunity by exploring the

possibility of victim going away to his company in consequence of her exercising

free option, own free volition, without which the allegation of having kidnapped

the victim girl, and thereafter, forced her to get married in order to satisfy his

sexual anger, as established during trial, would go undiscredited.

In the evidence, victim girl testified that on the relevant date she left her

home for private tuition, but the teacher being absent, she was returning home.

On her way, she found accused appellant sitting at the bus stand of Hat

Kaliyaganj, where the accused appellant proposed her to go Raiganj and the

victim girl in consequence of accused having his pre-acquaintance with the elder

brother of victim girl, she agreed to the proposal treating accused appellant to be

as good as her elder brother.

Ultimately, victim girl was taken to Islampur. At Islampur victim was made

to wear conch, and further accused appellant put vermillion on her forehead, and

thereafter, started behaving in a manner similar to that of a wedded couple,

doing forcible cohabitation with the victim girl, despite the protest being raised by

the victim girl.

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

victim girl deliberately refused to get herself married with the accused appellant

for the accused appellant being a family man having wife and children.

Consistently, victim and her parents gave out in evidence that their victim

daughter returned on 30.08.2008, after she went missing. PW-2 had seen the

victim with accused appellant, after the victim went missing while boarding a

Dalkhola bound trekker, wherein victim was also travelling at the relevant point

of time. Such features found in the evidence, if considered together, would

inevitably give rise to a conclusion that the victim (a minor girl) was kidnapped

by the accused appellant, and got her forcibly married, and thereafter, did

forcible penetration upon her to pacify his insatiable hunger to the sex.

Though, some latches on the part of the investigation like, non-mentioning

of the reference police case in the medical examination report of the PW-9, non-

collection of any school certificate from the school where the victim girl pursued

her study at the relevant point of time were there, but such latches would not,

however, improbalise the prosecution story, so established during trial.

Argument was raised by the appellant that there was delay of 9 days in

lodging the prosecution, which could not be satisfactorily explained in the F.I.R.

itself. It was thus proposed by the learned advocate for the appellant that the

delay caused in lodging the prosecution not being satisfactorily explained in the

F.I.R. itself, the same would leave room for concoction and embellishment in the

prosecution story during intervening period of delay.

The respondent/State put a thrust against such submission contending

that the alleged delay, what remained unexplained in the F.I.R., and

consequently in evidence of complainant/PW-1, the same went vividly explained

in the testimony of the victim girl herself, and upon visualisation of which, the

delay though caused in launching the prosecution, but the same would not be

construed to be fatal for prosecution in the given set of facts.

Both in FIR and also in the evidence of parents of the victim girl, the delay

caused in lodging F.I.R. could not be explained in so many words, but while

doing appreciation of evidence of victim girl and her parents together, one thing

is very clear that the victim returned home on 30.08.2008, with the order of the

court, passed by the learned Magistrate before whom, the victim was brought

produced after her recovery by the police. The I.O. also ratified the situation that

both the victim and accused/appellant were recovered together from the same

place. The parents of the victim girl are naturally perceived to be taken to a

surprise after discovering the fact that their daughter had gone missing. The

father put extensive search, thereafter to trace out the victim girl. The

bewildered and perplexed father in such state of affairs can not be expected to

state details in F.I.R. including the delay, if there be any. The F.I.R. not being

treated to be an encyclopaedia, the delay though not explained in the F.I.R., was

amply clarified by the victim girl herself in her testimony, which in our

considered view, was cogent, natural and not at all tainted with any smell of

having any animosity with the accused appellant. The delay in lodging the F.I.R.,

as alleged by the appellant, cannot be construed to be fatal for prosecution.

The Trial Court thus rightly reached the conviction, believing the version of

victim and her parents, PW-2, and the testimony of doctor examining the victim

girl.

The testimony of the witnesses, mentioned hereinabove, is believable,

consistent, and would inspire confidence in holding the accused appellant to be

guilty of the offence under Sections 363/366/ 376 I.P.C.

Without awarding any separate sentence for offence under Section 363

I.P.C., learned Trial Court awarded sentence to suffer R.I. (rigorous

imprisonment) for 7 years and a fine of Rs.2000/- (rupees two thousand), in

default to suffer R.I. for two (2) months for offence under Section 366 I.P.C., and

ten (10) years R.I. and fine of Rs.3000/- (rupees three thousand), in default to

suffer R.I. for three (3) months, which according to appellant was most

disproportionately awarded, compared to the criminal act complained of, and

alternatively proposed for reduction of sentence.

Both the sentences were directed to run concurrently after allowing set off

of under Section 428 Cr.P.C. for the period already undergone in custody.

Respondent/State, as regards the sentence awarded, submitted that the

Trial Court considered all the parameters required to be observed before

awarding the sentence in a case where a fourteen (14) year old girl was

kidnapped, and then put to suffer forcible penetration/cohabitation for six (6)

days in all, out of twelve (12) days, so long the victim girl remained in the

company of accused appellant after getting her forcefully married.

As regards the offence under Section 366, there is no minimum sentence

statutorily prescribed. The sentence for offence under Section 366 I.P.C may be

extended up to a term of ten (10) years with fine, while in respect of offence under

unamended provisions of Section 376 I.P.C., that is minimum sentence

statutorily prescribed is for seven (7) years with fine, which however, may be

extended to a term of life, or for a term which may be extended up to ten (10)

years with fine.

The Trial Court having considered the manner in which the offence was

committed and upon taking conscious note of attendant circumstances,

indicative of making application of stern, or harsh sentence, than the minimum

statutorily prescribed, awarded more grave and stern sentence for the offence

under Section 376 I.P.C., which in our considered view is sufficient, adequate

and justified to go for more grave sentence than the statutorily minimum

prescribed. The vibrancy of life ordinarily found available to a minor of fourteen

(14) year old girl, was polluted, jeopardised and threatened by accused appellant,

a major of twenty seven (27) year old family members maintaining man, at the

cost of wounding the chastity of victim girl, who did not have required and

matured sense of exercising her discretion by that time, simply for his sexual

pleasure. Referring a judgment of the Apex Court rendered in the case of Gurmit

Singh Ors. (supra), it may be said that a rapist not only violates the victim’s

privacy and personal integrity, but inevitably causes serious psychological and

physical harm in the process, and in the instant case, it is expected to be much

more for the victim being a minor at the time of commissioning the crime.

So, the facts and circumstances involved in this case are not of the nature,

suggestive of giving any latitude to accused appellant by reducing the sentence

for offence under Section 376 I.P.C. to statutorily minimum sentence prescribed

as proposed by appellant.

We also do not want to interfere with the sentence already awarded

against the accused appellant for the offence under Section 366 I.P.C, for the

same being appropriately awarded in the instant case.

Both the sentences would thus go unaltered. We maintain the conviction

and sentence awarded in this case.

The criminal appeal fails being without any merits.

Both sentences to run concurrently and the accused/appellant be provided

with opportunity of claiming set off Section 428 Cr.P.C., if any, in respect of the

period already undergone in the correctional home.

With this observation, the criminal appeal stands disposed of.

Department is directed to send a copy of this order to the concerned

Superintendent of Correctional Home, where the convict/appellant is detained.

Department is further 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.

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.)

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