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Bablu Sardar v/s State of West Bengal

    Criminal Appeal No. 494 of 2015

    Decided On, 14 January 2020

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SHIVAKANT PRASAD

    For the Appearing Parties: Sreyashee Biswas, Ranabir Roy Chowdhury, Baisali Basu, Advocates.



Judgment Text


1. In this appeal judgment of conviction dated June 8, 2015 and order of sentence dated June 9, 2015 passed by the learned Additional Sessions Judge, Seventeenth Court at Alipore, South 24- Paraganas, in Sessions Trial No. 09(12)2013 corresponding to Sessions Case No. 51(09)2013 arising out of Maheshtala Police Station Case No. 507 dated August 21, 2010 under Sections 376 of the Indian Penal Code, convicting the appellant for commission of offence punishable under Sections 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven (7) years and to pay a fine of Rs. 15,000/- (Rupees fifteen thousand) in default to suffer rigorous imprisonment for one (1) year more, is under challenge.

2. The appellant, who is now serving sentence, has faced trial for the offence punishable under Section 376 of the Indian Penal Code. On the complaint of the defacto complainant, namely, Kajal Karan, Maheshtala Police Station Case No. 507 dated August 21, 2010 under Section 376 of the Indian Penal Code was started for holding investigation against the named accused, the appellant herein, on the allegation that on August 20, 2010 at about 8-30 a.m., the accused/appellant came to the house of the defacto complainant in her absence and committed rape on her minor daughter, being the victim girl, aged about 14 years when she was alone at home. The whole incident was reported to the defacto complainant by the victim girl after the defacto complainant returned to her home at 5-00 p.m. on the selfsame day.

3. On completion of investigation, the investigating officer submitted charge sheet against the appellant under Section 376 of the Indian Penal Code.

4. After the case was committed to the court of sessions on September 16, 2013, the learned Sessions Judge at Alipore, South 24-Paraganas, after having taken cognizance of the offence, transferred the case for trial and disposal to the court of the learned Additional Sessions Judge, Seventeenth Court at Alipore, South 24-Paraganas, before whom the case was registered as Sessions Trial No. 09(12)2013.

5. Charges were framed under Section 376 of the Indian Penal Code against the appellant and the same was read over and explained to the appellant, who pleaded not guilty and claimed to be tried.

6. In the course of trial, the prosecution examined as many as six (6) witnesses to bring home the charges levelled against the appellant. After the closure of prosecution evidence, the appellant was examined under Section 313 of the Code of Criminal Procedure to which he declined to adduce evidence and stated that he is innocent and has been falsely implicated in the instant case.

7. In conclusion of trial, the learned Trial Judge by the impugned judgment and order convicted and sentenced the appellant, as aforesaid.

8. Being aggrieved and dissatisfied with the judgment and order of conviction and sentence, the appellant has preferred this appeal, inter alia, on the ground that the trial court has failed to appreciate the evidence adduced by the prosecution witnesses no. 1, 3 and 4 while holding the appellant guilty of the charges levelled against him and that the story of accusation was in doubt due to the conflicting testimony of the witnesses, who were examined on behalf of the prosecution.

9. It is submitted that the prosecution witness no. 1, namely, Dr. Tapan Kanti Ray, had examined the victim girl after taking consent from her in prescribed form and having clinically examined the victim girl, he was of the opinion that the victim girl was habituated in sexual intercourse. The prosecution witness no. 1 had also examined the accused/appellant after taking consent and opined that the appellant was capable of performing sexual intercourse. The prosecution witness no. 1 proved the consent forms being Exhibits 1 and 3 and also proved the examination reports of the victim girl and the appellant, being the Exhibits 2 and 4.

10. It is submitted by Ms. Sreyashee Biswas, learned advocate, who appears for the appellant as State defence, that in absence of any corroborative evidence it would be improper for the learned trial judge to convict and sentence the appellant for committing offence under Section 376 of the Indian Penal Code inasmuch as the victim girl was habituated in sexual intercourse and the rupture in the hymen was long time back, as deposed by the prosecution witness no. 1. My attention was also drawn to the evidence adduced by the prosecution witness no. 3, being the defacto complainant and mother of the victim girl, to argue that the prosecution witness no. 3 had improved the prosecution story of accusation in the trial court, since there has been substantial difference in her statement made in the complaint and the evidence adduced by her with regard to the incident of rape.

11. I find that the prosecution witness no. 3, namely, Kajal Karan, deposed that on August 20, 2010 at around 8-30 a.m., when she was in the house of Mina Das where she worked as maidservant, the victim girl was at the home alone; at that point of time the incident of rape took place. The complaint itself is indicative of the fact that the defacto complainant learnt about the commission of rape on her daughter obviously as per the narration given by her daughter after she returned home from her work. The written complaint, which was ascribed by her brother, namely, Samar Sardar being the prosecution witness no. 5, as per the instruction of the defacto complainant and after the contents of the same being read over and explained to her, she had put her left thumb impression thereon. The written complaint has been marked as Exhibit-1. I find from the evidence of prosecution witness no. 3 that the written complaint, being Exhibit-5, on the basis of which the formal first information report was drawn up, has been substantially corroborated by its maker.

12. It is true, as per the evidence of victim girl, she had disclosed the incident of rape to one Rumki, but the said Rumki has not been examined. It is also true that Mina Das, in whose house the defacto complainant worked as maidservant, has also not been examined. Similarly the landlady in whose house the defacto complainant resides as a tenant has not been examined. But, non-examination of the said witnesses, in my opinion, is not fatal to prosecution case.

13. The victim girl has been examined as prosecution witness no. 4. She narrated the incident of rape committed on her forcibly by the appellant by binding her hands and face in her room, when she was alone and she had not disclosed the incident of rape to anybody except to her mother after she returned home and this fact finds corroboration in her statement made before the learned Magistrate under Section 164 of the Code of Criminal procedure, which she proved as exhibit-8 at the trial. She has also proved her age being 14 years on the date of occurrence as revealed from the birth certificate seized under the seizure list being Exhibit-7.

14. In the cross examination, the victim girl had taken a defence plea to the effect that since there was illegal relationship between her mother, being the defacto complainant, and the appellant, the accused/appellant has been falsely implicated in the instant case in conspiracy with her. Such question has not been put to the defacto complainant, the mother of the victim girl rather the admitted evidence by the defacto complainant is that the accused/appellant used to visit her house and she had good relation with the appellant, but such evidence of the defacto complainant does not mean that she had illicit relationship with the accused. There is no suggestion as well since such relationship was disclosed in the society to tarnish the image of the defacto complainant and not the defacto complainant had foisted a false case against the appellant. In cross examination, the victim girl stated that the victim girl did not call the appellant over phone in her room. Such suggestion does not help the appellant rather by putting such suggestion it can very well be construed that he had been in the room of the victim girl. Even it is taken into consideration for argument sake that the accused was called over phone by the victim girl herself. This fact cannot be lost sight of that the accused was a man aged about 36 years and the victim girl was aged about 14 years on the date of occurrence. Hence, if the victim girl was habituated in sexual intercourse, it amounted to penetrative sexual assault upon the victim girl.

15. The learned advocate appearing on behalf of the appellant submits that the swab of the victim girl has not been sent for examination before the forensic science laboratory to find out as to whether there is any sign of spermatozoa or to ascertain whether there was any sexual intercourse on the victim girl. Moreover, the first information report has also been lodged belatedly. But I find from the formal first information report and the complaint itself that the delay in lodging the first information report has been properly explained.

16. However, the absence of such report from the forensic science laboratory cannot be fatal to the prosecution case inasmuch as the investigating officer has clearly explained in his cross examination the reason as why the swab of the victim girl could not be sent for examination by the forensic science laboratory. The investigating officer, being the prosecution witness no. 6, has stated in his cross examination that he tried to collect the wearing apparels of the victim girl, but since those were washed away he did not seize the same. The said fact was also mentioned in the case diary. the investigating officer, for the purpose of investigation, visited the place of occurrence and prepared a hand sketch map being Exhibit-10. The investigating officer also seized the birth certificate of the victim girl under the seizure list. The investigating officer proved the formal first information report. He also proved the report of medical legal examination of the victim girl being Exhibits 1, 2, 3 and 4.

17. Thus, giving an anxious consideration to the evidence on record, I do not find any plausible or sufficient explanation or any ground to be attracted for the purpose of assailing the judgment impugned as I am not in a position to disagree with the observations and findings made by the trial court while holding the appellant guilty of committing offence punishable under Section 376 of the Indian Penal Code. In so far as the remission of sentence, as submitted on behalf of the appellant, is concerned, the sentence is a term imprisonment for seven years with fine, which is a minimum sentence as per the charge of offence under Section 376 of the Indian Penal Code. Therefore, this

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court is also unable to modify the sentence to the period already undergone by the appellant. 18. In the context what has been discussed above, this court does not find any ground of appeal. Accordingly, the conviction and sentence of the appellant is upheld and the appeal is dismissed. 19. The period of detention, if any, undergone by the appellant during the period of investigation, enquiry and trial shall be set off against the substantive imprisonment imposed on him in terms of Section 428 of the Code of Criminal Procedure. 20. The amount of fine, if deposited by the appellant, shall also be paid to the victim in terms of Section 357(1) of the Code of Criminal Procedure. 21. Let a copy of this judgment along with the lower court records be sent down to the trial court immediately to ensure necessary compliance of this order. 22. Let a copy of this judgment be also communicated to the Superintendent, Alipore Correctional Home for necessary information and doing the needful. 23. Photostat certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.
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