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.)
