Ananda vs The State of West Bengal

Indira Banerjee, J—This appeal is directed against a judgement and order dated 27th July, 2006 and an order of sentence dated 28th July, 2006 passed by the Additional Sessions Judge, 2nd Fast Track Court, Alipore, South 24 Parganas in Sessions Trial No. 5 (12) 2004 corresponding to Sessions Case No. 13 (12) 2004 whereby the accused appellant has been convicted of the offence of rape of a six year old child under Section 235 of the Criminal Procedure Code and sentenced to suffer rigorous imprisonment for life for offence under Section 376 of Indian Penal Code and fine of Rs. 5,000/- in default of which he has to suffer further rigorous imprisonment for one year.

The case is indeed gruesome and heinous. It is the case of the prosecution that on 21st August, 1998 at about 12 noon, the victim about 5/6 years of age, was playing on the village road, near a video hall owned by the accused-appellant at Baburchak village under Kultali Police Station, District - South 24 Parganas.

The accused-appellant called this innocent child, took her inside the video hall and raped her. The victim came back home bleeding, with injuries on her private part. After returning home, the victim told her parents, what had happened. The victim was taken to a nursing home at Joynagar for treatment.

On 30th August, 1998, the defacto-complainant, who is the father of the victim, lodged a written complaint at Kultali Police Station. The complaint was treated as a First Information Report, pursuant to which, Kultali Police Station Case No. 93 dated 30th August, 1998 was started against the accused-appellant under Section 376 of the Indian Penal Code. About ten days after the incident, the statement of the victim was recorded before a Judicial Magistrate under Section 164 of the Criminal Procedure Code. After completion of investigation, the Investigating Officer filed a charge sheet against the accused appellant under Section 376 of the Indian Penal Code.

In this case, unfortunately, by the time trial commenced, the unfortunate child victim was no longer alive. She was killed in an accident one year after the unfortunate incident. However, the statement of this child victim, under Section 164 of the Criminal Procedure Code, was on record. The statement was proved by the Judicial Magistrate who recorded the statement (Prosecution Witness No. 10).

The prosecution examined eleven witnesses and the accused appellant examined one witness. The accused appellant was examined under Section 313 of the Criminal Procedure Code. From the trend of cross-examination of the prosecution witnesses, the evidence of the only defence witness, as also the answers given by the accused appellant in his examination under Section 313 of the Criminal Procedure Code, it transpires that the plea of the accused appellant in his defence was, that he was not there in his video hall on 21st August, 1998. He had been admitted in the nursing home of Joydeb Halder at Joynagar on account of his illness.

The learned Sessions Court considered and adjudicated the following issues:

(i) Whether the victim had been raped by the accused appellant?

(ii) Whether the prosecution had been able to prove its case against the accused appellant beyond all the reasonable doubt?

Both the aforesaid issues were decided against the accused appellant and the accused appellant was convicted of offence under Section 376 of the Indian Penal Code as stated above.

Mr. Sanyal, appearing on behalf of the accused appellant, referred to the statement of the victim under Section 164 of the Criminal Procedure Code and argued that the statement indicates that there was no rape.

In support of his submission that the accused appellant did not rape the victim, Mr. Sanyal also referred to the medical report, which indicated that no mark of external injury had been found on the body of the victim. We, however, find that the concerned doctor, who examined the child victim, clearly opined that there was evidence of sexual intercourse. The absence of any other injury in the body is immaterial. Having regard to the age of the child, there could be no question of consent.

A perusal of the Section 164 statement also, in our view, clearly indicates rape. In construing the statement, we cannot lose sight of the fact that the statement was being made by a six year old child. She stated that the accused appellant took off her under pants, lay on her and assaulted her on her private part, after which she felt that blood was coming out from her private part.

The first prosecution witness, a resident of the village said that he did not know any thing about the incident and was declared hostile by the prosecution. The evidence of this witness, is not of much relevance. The second prosecution witness, Dr. Gunadhar Sardar, deposed that he was a Medical Officer attached to Noorpur, Police Station - Malda. On 25th August, 1998 he was a private medical practitioner attached to Matri Bhawan Nursing Home at Joynagar Mazilpur in South 24 Parganas.

The doctor deposed that on 25th August, 1998 he had examined the victim aged about six years. The history of the victim, as stated by her, was that, there was bleeding from her vagina, for which she was treated medically.

The third prosecution witness, Dr. Debasis Bhattacharya, was a Radiologist who conducted the ossification test on the victim to determine her age. On examination the victim was found to be aged about five to six years. He identified the ossification test report.

The most important prosecution witness is the father of the victim, Prosecution Witness No. 4, who stated that on the day of the incident, his daughter had come home, weeping, and informed him that when she was playing in front of the video hall, the accused-appellant took her inside the hall, shut the door and raped her. He stated that he had found blood oozing out from the private part of the victim. He also stated that he had taken the victim to a nursing home at Joynagar, named Swapan Nursing Home, for treatment.

This witness deposed that on 30th August, 1998, he reported the incident to the Kultali Police Station. He stated that Kultali Police Station was far way from his house and he was busy with the treatment and recovery of the victim, his daughter. There was, therefore, delay of 8 to 9 days in lodging the written complaint, which, in our view, is not material in a case like this. This witness identified the complaint made by him. The complaint bore his signature. In cross-examination, this witness remained unshaken and reiterated that his daughter had been raped by the accused-appellant.

The next witness, (Prosecution Witness No. 5) is the mother of the victim. She reiterated that the incident took place at about 12.00 - 12.30 p.m. when the victim was playing in front of the video hall of the accused-appellant. She identified the accused-appellant in Court. She more or less confirmed what her husband had deposed. She stated that her daughter had come back home weeping and blood was oozing from her private part. On being asked what had happened, her daughter told her that when she was playing in front of the video hall of the accused-appellant, the accused appellant took her inside the video hall, shut the door and forcibly assaulted her sexually.

The prosecution witness No. 9, Smt. Sumitra Mondal, a resident of the village, deposed that on the day of the incident, after she got to know about the incident she rushed to the house of the victim and found the victim weeping. The victim told her that she had been playing. The accused-appellant took her inside the video hall and committed rape upon her. This witness had also found blood oozing from the victim''s private part. This witness advised the victim''s father (PW-4) to remove the victim to the hospital. This witness also identified the accused-appellant in Court.

This witness was subjected to severe cross-examination. In cross-examination she maintained that she had actually seen blood coming out of the private part of the innocent five/six year old victim. There may have been some inconsequential discrepancies in her statements in cross-examination. However, it is well settled that if the evidence given by a witness is otherwise credible and inspires the confidence of the court it is not material that there might be some minor discrepancies. This Court also cannot lose sight of the fact that evidence was taken several years after the incident.

The prosecution witness No. 6 is a police constable who took the victim to hospital after the complaint was lodged and the prosecution witness No. 8 is the police officer, who drew up the formal FIR and started the case. Their evidence is not of relevance to the issue of whether the accused appellant was guilty of the charge levelled against him.

The 11th prosecution witness is the Investigating Officer. From his evidence it would appear that he had no personal knowledge of what happened on the date of incident. However, he stated that the victim had died on 23rd February, 1999 and an unnatural death case, Kultali P.S. U.D. Case No. 2 dated 24th February, 1999 was started.

The 10th prosecution witness is the Judicial Magistrate who had recorded the statement of the victim under Section 164 of the Criminal Procedure Code. He stated that the contents of the statement as recorded by him had been explained to the victim and the victim had confirmed that what she had stated had correctly been taken down and had put her left thumb impression on the statement. He also certified that no police constable was present at the time when the statement of the victim was recorded.

The prosecution witness No. 7 is the doctor who medically examined the accused-appellant and the victim. The finding of this witness that the accused appellant was capable of sexual intercourse, as also the finding of absence of any mark of external injury on the accused-appellant, is not of much relevance. Capability of sexual intercourse does not in itself substantiate rape. In this case, the victim being a child, the absence of injury on the body of the victim is of no consequence. This witness found evidence of sexual intercourse, upon examination of the victim, even though he found no other injury on her body. The absence of injury on the body of the victim is of no relevance in the instant case.

The accused-appellant in his examination under Section 313 of the Criminal Procedure Code denied the statements made by the prosecution witnesses and pleaded innocence. He stated that he had been admitted in a nursing home on 21st August, 1998, being the date of the incident.

The only defence witness, Sri Shyama Prasad Matilal, a resident of Joynagar Mazilpur, deposed that he was a member of the Council of Joynagar Mazilpur Municipality in 1999. He had a certificate certifying that the accused appellant was admitted in Nursing Home on the date of the incident. He identified the said certificate.

However, in answer to a question put to him by Court, this witness admitted that he had issued the certificate at the request of the accused appellant''s brother-in-law Ananda Sardar. He also admitted that he had not consulted the Nursing Home Register of Jainagar Muzilpur Municipality before issuing the certificate. He, however, denied the suggestion that he had issued a false certificate.

The defence witness deposed that he knew the doctor Joydeb Halder who owned Joydeb Nursing Sadan. About 7/8 years ago on 21st August, 1999 he had gone to the Nursing Home along with the accused-appellant for his treatment. He deposed that the accused-appellant was not admitted in the nursing home. He deposed that he had taken the accused-appellant to the nursing home in the morning at about 8/8.30 a.m. in a rickshaw/van.

As observed above, the child who was raped when she was only five or six years of age, died a year later in a different accident. When the trial commenced, she could not depose in Court. However, the statement under Section 164 of the Criminal Procedure Code was duly proved by the concerned Judicial Magistrate who had recorded the same. The Judicial Magistrate deposed that the statement, as made by the victim had been recorded. The statement had been explained to the victim and the victim affirmed that the statement had correctly been recorded and thereafter the victim had put her left thumb impression on the statement.

The maker of the statement having died, there could be no question of examining her at the time of trial. It is true that she could not be confronted with her statement. Nor could she be cross-examined. However, what she stated before the Magistrate was more or less corroborated by the Prosecution Witness No. 4 being the father of the victim, the Prosecution Witness No. 5 being the mother of the victim, and the Prosecution Witness No. 9, a resident of the village who deposed that on hearing of the incident she had gone to the house of the victim and had seen the victim bleeding from her private part. All the three aforesaid witnesses were available for cross-examination and were subjected to cross-examination and they remained unshaken in cross-examination.

The second Prosecution Witness, Dr. Gunadhar Sardar, deposed that on the date of the incident, he was a private medical practitioner attached to Matri Bhawan Nursing Home at Joynagar Mazilpur. He confirmed that he had examined the victim, aged about six years on the date of the incident and as per the statement of the victim, there was discharge of blood from her vagina. The Prosecution Witness No. 7, Dr. P.B. Das, Medical Officer, who had examined the accused appellant as well as the victim, had clearly deposed that on examination of the victim he found evidence of sexual intercourse. In his report he had noted injuries in the private part of the victim. However, no other injury was found.

The girl being only five/six years of age, as per medical reports, whether she offered any resistance or not, is immaterial. There could be no question of consent, as observed above. The absence of injury on the body of the accused appellant is of no consequence at all. Even in cases of rape of women who have attained the age of consent, it is now more or less settled that absence of injury in itself is inconsequential. The absence of injury does not in itself indicate consent. Submission out of fear, threat, coercion cannot be construed as consent.

In this case, the victim, an innocent girl, did not even know what sexual assault was and there could hardly be any resistance. The statement of the victim under Section 164 finds corroboration from medical evidence as also the evidence of her two parents and a co-villager. On the other hand, the evidence of the only defence witness is fraught with inconsistencies and does not inspire the confidence of this Court.

It is well settled that under Section 106 of the Evidence Act, the burden of proving facts specially within the knowledge of any person is upon him. If it was, therefore, for the accused appellant to prove, with cogent evidence, that he was admitted in a nursing home. It was for him to disclose the circumstances in which he had to be so admitted.

The accused appellant in his examination stated that he had been admitted in hospital. No documents were disclosed. There is not a whisper of the circumstances in which the accused appellant was admitted in hospital. There is not a whisper of the ailment suffered by him. There is no prescription and the purported certificate of the defence witness given at the request of a relative of the accused appellant is also not upon reference to any records of the municipality. In his evidence also he has not stated why the accused appellant had to be taken to hospital. Moreover, it has transpired, from the evidence that he was, in fact, not admitted in the hospital. Even assuming that he did go to the Hospital/Nursing Home at about 8:30, that does not prove that he was not in the shop at the time of the incident.

The evidence of the prosecution witness No. 4, being the father of the victim, the prosecution witness No. 5, being the mother of the victim, the prosecution witness No. 9 being a neighbour, the prosecution witness No. 7, being the doctor, who examined the victim and the statements of the victim recorded by the Judicial Magistrate under Section 164 of the Criminal Procedure Code ten days after the incident and proved by the Judicial Magistrate, prove the case of the prosecution beyond reasonable doubt.

Mr. Sanyal submitted that the sentence should be reduced and appealed to this Court to reduce the quantum of sentence. However, having regard to the gravity of the heinous offence of rape of a child, 5 to 6 years of age, we are not inclined to interfere with the order of sentence.

The judgement of the Supreme Court in Bhavanbhai Bhayabhai Panella Vs. State of Gujarat(2015) 1 RCR(Criminal) 896 : (2015) 2 SCALE 189 : (2015) 3 SCJ 112 , was rendered in the particular facts of the case before the Supreme Court.

For the reasons discussed above, the appeal is dismissed and the judgment and order of conviction as also the sentence are affirmed.

Sahidullah Munshi, J.

I agree.