Bapan Sandip Chakraborty vs State Of West Bengal

Joymalya Bagchi, J.

The appeal is directed against judgment and order dated 12.03.2015 passed by learned Additional Sessions Judge, Fast Track Court-III, Krishnanagar,

Nadia in Sessions Trial No. VII (February) 2012 arising out of Sessions Case No. 45(1) of 2012 convicting the appellant under Section 376(2)(g) of

the Indian Penal Code and directing him to suffer rigorous imprisonment for life and to pay a fine of Rs.50,000/-, in default, to suffer further rigorous

imprisonment for two years and further directing that 50% of fine, if recovered, for the offence under Section 376(2)(g) IPC shall be paid as

compensation to the victim girl.

The prosecution case as alleged against the appellant is to the effect that a minor deaf and dumb girl aged about 13 years had gone missing on the

fateful day that is on 05.05.2011. Her parents searched for her everywhere but could not trace her out. On further search they found her lying naked

in a nearby jute field in unconscious state. She was brought home and water was sprinkled on her face. In presence of her parents and other

neighbours the girl by sign language indicated that she had been raped by the appellant and two others, namely, Goutam and Arup. She was taken to

Santipur Hospital where she was treated. Her father lodged written complaint resulting in registration of first information report being Santipur, P.S.

Case No. 32015 dated 06.05.2011 under Section 376(2)(g) of the Indian Penal Code against the appellant and two other persons. As the co-accused

Arup Biswas and Goutam Mondal were found to be juvenile in conflict with law, their cases were separated and the Case was committed to the Court

of Sessions so far as the appellant was concerned and transferred to the Court of the Additional District and Sessions Judge, Fast Track Court No.

III, Krishnagar, Nadia, for trial and disposal. Charge was framed under Sections 376(2)(g) of the Indian Penal Code against the appellant pleaded not

guilty and claimed to be tried.

In the course of trial the prosecution examined 15 witnesses and exhibited a number of documents. The defence of the appellant is one of innocence

and false implication. In conclusion of trial, the trial Judge by judgment and order dated 12.03.2015 convicted and sentenced the appellant, as

aforesaid. Mr. Kabir, learned counsel for the appellant argued that there is variation in the narration of the alleged incident in the first information and

that in the deposition of the prosecution witnesses. Unlike the first information report, none of the prosecution witnesses deposed that the victim had

been called from her home by Goutam Mondal (juvenile in conflict with law). It is also submitted that no injuries were found on the body as well as

private parts of the victim and, therefore, the ocular version of the witnesses is clearly improbabilized by the medical evidence. He accordingly prayed

for acquittal of the appellant.

On the other hand, Mr. Ghosh, learned counsel appearing for the State submitted that the variations in the deposition of prosecution witnesses are

minor and the gist of the prosecution case has been consistently established through the evidence of the victim, her parents as well as the neighbours.

The victim is a deaf and dumb girl who had succinctly described the sexual assault upon her. Her version is corroborated by other witnesses including

neighbours. There is no reason to disbelieve their versions. He further submitted that slightest penetration would constitute rape in the eye of law and,

therefore, mere absence of injuries on the private parts of the victim cannot be a ground to throw out the otherwise credible version of the victim

corroborated by other prosecution witnesses.

Let me examine the rival versions in the light of the evidence on record. P.W. 4 is the victim in the instant case. She suffered from speech

impairment. Accordingly, her evidence was recorded through an expert in sign language, that is, Tapati Biswas (P.W. 3). The victim stated in the

course of her deposition that the accused persons made her sit on a cycle and took her away. They made her lie on the floor and assaulted her over

her belly. Thereafter with the help of her dopatta they blind folded her. They were three in number and they removed her wearing apparels, molested

her and raped her. She identified the appellant in court. She withstood the grueling cross-examination on behalf of the defence and nothing worthwhile

could be elicited out of her during such cross- examination. P.W 3, Tapati Biswas, a teacher of Karimpur Deaf and Dumb School deposed that she

had acted as an expert for recording the statement of the victim (P.W 4) before the Magistrate under Section 164 Cr.P.C.

P.Ws. 1 and 2 are the parents of the victim. P.W. 1, the father of the victim, deposed that the victim was 13 years old at the time of occurrence. On

that day his wife could not find her. He was working in the field. His wife informed him that the victim was missing. They went to search for their

daughter in the village but she was not found. Then they went to the mango grove of Nilmoni Ghosh to search for her. There they found her lying

unconscious without any clothes. Hearing their hue and cry, local people assembled. They took their daughter to their house. They sprinkled water on

her face and after a while she regained her consciousness. His daughter was deaf and dumb and upon queries she told in sign language that three

boys namely, Bapan Chakraborty, Arup Mondal and Goutam Mondal had committed rape on her. Then para people went to the house of the three

accused persons but they ran away. On the next day one of the accused persons was caught and he confessed his guilt. His daughter was taken to

Santipur Hospital on the next day and was admitted. Then he went to Santipur P.S. and lodged written complaint. He proved his signature on the

written complaint marked as exbt. 1. He identified the appellant. In crossexamination he stated that he saw injury on the belly of the victim.

P.W. 2 is the mother and has corroborated the evidence of P.W. 1. P.W. 6 is the relation of the victim while P.W. 7 is a neighbor. The said witnesses

accompanied the parents of the victim to the field where the victim was found unconscious in naked condition. They have substantially corroborated

the prosecution case. P.Ws. 8 and 9 are the neighbours of the victim and have stated in unison that they had arrived at the house of the victim where

she had been brought in an unconscious state from the field. Water was sprinkled on her face. The victim had regained consciousness and told in sign

language that she had been raped by the appellant and two other accused persons (juveniles in conflict with law).

P.W. 14 is the scribe of the written complaint. He proved the written complaint marked as exbt.1/2. P.Ws. 11 and 13 are the medical witnesses. P.W.

13 held ossification test on the victim and deposed that the victim was aged between 12 to 16 years. He proved the report marked as exbt. 7. P.W. 11

is the medical officer, Gynecologist attached to Santipur State General Hospital. He deposed that on 06.05.2011 he examined the victim and he found

her mentally challenged. He, however, did not find any injury on the private parts of the victim. No foreign body was detected in the vagina of the

victim. He proved the medical report marked as exbt. 4.

P.W. 12 is the police officer attached to Santipur P.S. who received the written complaint and proved the formal first information report. P.W. 15 is

the investigating officer in the instant case. He stated that he reached the place of occurrence as identified by P.W. 1. He drew up sketch map with

index marked as exbt. 8. He examined witnesses, collected medical report as well as ossification test of the victim. He produced the victim for

recording statement under Section 164 Cr.P.C. before the Magistrate. He collected the statement of the victim under Section 164 Cr.P.C. and filed

charge-sheet.

From the aforesaid evidence-on-record I note that the victim is a minor girl who is deaf and dumb. Taking advantage of her disability the appellant and

other accused persons had taken her away in a cycle to a nearby field. In the field, after disrobing her they molested her and raped her. The version

of the victim was recorded with the help of an expert, P.W. 3, who is a teacher in a deaf and dumb school. Evidence of the victim (P.W 4) is

corroborated by not only her parents P.Ws. 1 and 2 but also by other neighbours like P.Ws. 7, 8, 9 and 10. The evidence of the victim is an intrinsic

ring of truth and no contradiction could be elicited in the course of her cross-examination in Court.

Learned counsel drew our attention to the fact that there is variation in the first information report and the depositions of the witnesses with regard to

the person who had called the victim from her house. I am of the opinion that such variation is a minor one and does not impinge on the crux of the

prosecution case that the victim had been taken by the appellant and other accused persons on a bicycle to a nearby field where she was disrobed,

molested and raped. It has been strenuously argued that the allegation of gang rape on the minor is not supported by medical evidence. Drawing out

attention to the evidence of P.W. 11 it has been argued that no external injury on the victim including her private parts was noticed by the doctor. It is

submitted that if the minor had been raped by three accused persons as claimed, then the absence of injury on her private parts was an absurdity and

the prosecution case ought to be thrown out on such score.

Even no injury was found on her belly. Although, the victim had claimed that she had been assaulted by the accused persons on her belly and P.W 1

claimed he had seen such injuries on his daughter. It is trite law that conviction in a case of rape can be solely founded on the version of the victim

herself particularly when her version does not suffer from any patent improbability or inconsistency. In the present case a deaf and dumb minor girl

had described the incident in sign language in her deposition. She had withstood the crossexamination. Her version was also corroborated by other

witnesses. It is true that no external injuries were found in her private parts. However, I am not unconscious of the fact that slightest penetration in

her vagina, would constitute the offence of rape. It is possible that the penetration of the victim after she was disrobed by the appellant and other

accused persons (juveniles in conflict with law) was not absolute but of a slight nature and no external injury was detected.

In the aforesaid factual backdrop, I am of the opinion that mere absence of injuries on the body of the victim is no ground to disbelieve her consistent

and corroborated version of rape and accordingly I uphold the conviction recorded by the trial court. Coming to the issue of sentence I find that the

appellant was a young person who was aged about between 18 to 20 years at the time of occurrence. Keeping in mind the age of the appellant and

the fact that he does not have any criminal antecedent, I consider the imposition of indeterminate life imprisonment upon him as too excessive.

Accordingly, I reduce the sentence imposed upon the appellant and direct that he shall suffer rigorous imprisonment for ten years and to pay a fine of

Rs.50,000/- (rupees fifty thousand) and that 50% of the fine, if recovered, be paid as compensation to the victim girl in the instant case.

Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in

terms of 428 of the Code of Criminal Procedure. With the aforesaid modification as to sentence, the appeal is disposed of. Copy of the judgment along

with L.C.R. be sent down to the trial court at once. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after

complying with all necessary legal formalities.