Chiranjit Goswami vs The State of West Bengal

R.K. Bag, J.—1. This appeal arises out of judgment and order of conviction and sentence passed by learned Additional Sessions Judge, 2nd Court, Malda, in Sessions Trial No. 12 of 2011 corresponding to Sessions Case No. 287 of 2010, by which the appellant was convicted for the offence under Section 376 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for six years and to pay a fine of Rs. 2,000/-, in default to suffer imprisonment for six months.

The backdrop of conviction and sentence of the appellant by the trial court is as follows:

On June 15, 2010, one Biswanath Mondal filed a written complaint before the Inspector-in-Charge of English Bazar Police Station, Malda disclosing the fact that on June 8, 2010 at about 7 p.m he went to mango garden where he was engaged as watchman by the owner of the garden to bring back his mentally retarded daughter who used to keep watch in the said mango garden. The informant, Biswanath Mondal heard groaning sound coming from a ditch adjacent to the mango garden and rushed to the place of occurrence. He saw the appellant committing sexual intercourse with his mentally retarded daughter. He caught hold of the appellant and raised alarm. On hearing alarm raised by the informant, some neighbours turned up, but the appellant fled away after giving push to the informant. The neighbours of the informant gave him advice to call a meeting in the village over the incident without reporting the same to the police. The informant waited for about three days, but no meeting was convened by the headman of the village. When some neighbours persuaded the informant to go to the police without waiting further for the meeting to be held in the village, the headman called the meeting on June 12, 2010. No fruitful discussion took place in the said meeting due to threat of the co-accused persons, namely, Raju Goswami, Kanu Goswami and Netai Goswami. Ultimately, the meeting was disrupted and the informant lodged the written complaint on June 15, 2010. Thus, English Bazar Police Station Case No. 487 of 2010 dated June 15, 2010 under Sections 376/506 of the Indian Penal Code came into existence.

The police investigated the criminal case and submitted charge-sheet. The case was committed to the court of sessions. The charge was framed against the appellant under Section 376 of the Indian Penal Code and charge was framed against the co-accused persons under Section 506 of the Indian Penal Code. On conclusion of trial, learned Additional Sessions Judge convicted the appellant and sentenced him to suffer imprisonment for six years and to pay a fine of Rs. 2,000/-, in default to suffer imprisonment for six months more, but the co-accused persons were acquitted of the charge under Section 506 of the Indian Penal Code.

Mr. Swapan Kumar Mallick, learned counsel for the appellant contends that there is discrepancy in the evidence of the prosecution witnesses with regard to the place of occurrence. While the sketch map prepared by the Investigating Officer indicates that the incident took place in the sugarcane field, the evidence of most of the prosecution witnesses is that the incident took place in the mango garden. According to Mr. Mallick, this discrepancy in the evidence of the prosecution witnesses with regard to the place of occurrence casts doubt on the incident itself. Mr. Mallick further submits that the victim girl (P.W.4) has not stated anything about sexual intercourse, though she is capable of giving statement in the court. Mr. Mallick has pointed out that the co-accused Raju Goswami filed a criminal case being English Bazar Police Station Case No. 479 of 2010 dated June 12, 2010 under Sections 379/448 of the Indian Penal Code against the father of the victim and some of the prosecution witnesses. He argues that the appellant and his associates have been implicated in the criminal case on false allegation by the father of the victim against whom the criminal case was initiated three days before lodging of the FIR against the appellant. Mr. Mallick has also urged this Court to consider that the delay of seven days in lodging the FIR has not been explained in a reasonable manner before the court. By referring to the report of the medical examination of the victim girl, Mr. Mallick also submits that no medical opinion is forthcoming about the commission of rape on the victim girl as alleged by the prosecution. The last submission of Mr. Mallick is that the sentence of the appellant may be reduced on consideration of young age of the appellant, if the conviction is not set aside by this Court.

Mr. Imran Ali, learned counsel for the State submits that the victim girl (P.W.4) aged about 22 years is deaf, dumb and mentally retarded and she is not in a position to give complete statement with regard to the incident. He submits that the father of the victim girl (P.W.5) is eyewitness to the incident of sexual intercourse of the victim by the appellant. The father of the victim girl (P.W.5) not only saw the incident, but also raised the alarm and caught the appellant red-handed on the place of occurrence, though the appellant gave a push to the father of the victim and fled away. Mr. Ali contends that the persons who turned up on the place of occurrence after hearing the alarm raised by the father of the victim, have given consistent evidence before the trial court. Mr. Ali also submits that the doctor who examined the victim girl has given the report that the hymen of the victim girl was ruptured, though no external injury in the private parts was detected after almost eight days of the incident. According to Mr. Ali, there is nothing on record to disbelieve the evidence of the father of the victim who happens to be the eyewitness to the incident and the evidence of the neighbours of the victim coupled with the evidence of the doctor unerringly point out commission of sexual intercourse of the victim by the appellant without her consent. Mr. Ali has urged this Court to enhance the quantum of sentence imposed on the appellant as the appellant committed rape on deaf, dumb and mentally retarded girl.

Admittedly, the incident of rape of the victim girl was reported by the informant, Biswanath Mondal to the Inspector-in-Charge of English Bazar Police Station after seven days of the incident. I would like to consider whether the delay of seven days has been explained by the prosecution to the satisfaction of the court. The contents of the written complaint treated as FIR (Ext.-1) disclose that some neighbours of the father of the victim persuaded him not to go to the police immediately after the incident on assurance that a meeting will be convened in the village for settlement of the dispute. The informant, Biswanath Mondal, who happens to be a day labourer believed the co-villagers and waited for about three days for the meeting to be convened in the village without reporting the incident to the police. The contents of the written complaint further disclose that some other co-villagers persuaded him to go to the police without further waiting for the meeting to be held in the village. Thereafter, on June 12, 2010, a meeting was held in the village, but the associates of the appellant disrupted the said meeting and threatened with sharp cutting weapon not to proceed with the meeting and thereby no fruitful discussion took place in the said meeting. However, on June 12, 2010, one Raju Goswami, close associate of the appellant lodged a written complaint before the Inspector-in-Charge of the police station against the father of the victim and some neighbours who turned up at the place of occurrence on the date of the incident. Ultimately, the incident of rape of the victim was reported to the police by filing the written complaint by the father of the victim on June 15, 2010. I find satisfactory explanation for the delay in reporting the incident to the police station by the father of the victim. So, the delay of seven days in reporting the incident to the police is not fatal to the prosecution in the facts and circumstances of the present case.

Now, I would like to consider whether suspicion arises about genuineness of the incident due to discrepancy in the evidence of the prosecution witnesses with regard to the place of occurrence. The sketch map prepared by the Investigating Officer (P.W.17) indicates that the incident took place in sugarcane field. This sugarcane field is shown as place of occurrence in the sketch map marked (exhibit 5). The cross-examination of the Investigating Officer (P.W.17) indicates that the Investigating Officer did not make any attempt to ascertain who is the owner of the sugarcane field or who are the owners of the adjoining mango garden. What is the basis of preparation of the sketch map by the Investigating Officer (P.W.17) has not been disclosed in the evidence. On the other hand, Biswanath Mondal (P.W.5) who happens to be the eyewitness to the incident of rape of the victim girl, has categorically stated in evidence that he saw the appellant committing sexual intercourse with the victim in a ditch adjacent to the mango garden. The neighbours of the father of the victim (P.W.1, P.W.7, P.W.8. P.W.9 and P.W.12), who turned up to the place of occurrence after hearing the alarm raised by P.W.5 have consistently stated that they saw the appellant fleeing away from the mango garden after giving a push to P.W.5. I do not find any cogent reason to disbelieve the evidence of P.W.1, P.W.5., P.W.7, P.W.8, P.W.9 and P.W.12 with regard to their evidence about place of occurrence. Since the eyewitnesses have consistently stated before the trial court that the place of occurrence is a ditch near mango garden and since no evidence is forthcoming before the court whether the said ditch is a sugarcane field as pointed out by the Investigating Officer in the sketch map (exhibit 5), I am unable to discard the evidence of the eyewitnesses in this regard. The place of occurrence shown in the sketch map as the sugarcane field may be discarded on consideration of reliable evidence of eyewitnesses who have consistently stated that the incident took place in a ditch near the mango garden. In view of my above findings, I do not find any merit in the submission made on behalf of the appellant with regard to shifting of the place of occurrence in the instant case.

Now, I would like to scan the evidence of the prosecution witnesses to see whether the trial court is justified in holding the appellant guilty of committing rape on the victim girl. The victim girl (P.W.4) is examined as prosecution witness. On perusal of the deposition of P.W.4, I find that the victim girl aged about 22 years is mentally retarded and she is not in a position to give rational answer to the question put to her. However, she has stated that she was keeping a watch in the mango garden and her father saw everything as to what happened. One Biswanath Mondal, P.W.5, who happens to be the father of the victim girl, has categorically stated in evidence that on the date of the incident at about 7.30 p.m. he went to the mango garden to bring back the victim after closure of the work of the day. He has stated that on arriving in the garden he heard groaning sound and following the sound he reached near a ditch adjacent to the mango garden and found the appellant committing sexual intercourse with the victim. He has further stated in evidence that he caught hold of the appellant and raised alarm and thereby P.W.1, P.W.7, P.W.8, P.W.9 and P.W.12 and other persons arrived on the place of occurrence. It is the consistent evidence of Sunil Mondal (P.W.1), Pintu Mondal (P.W.7), Gobinda Mondal (P.W.8), Narayan Mondal (P.W.9) and Ananda Mondal (P.W.12) that the appellant fled away from the mango garden after giving heavy push to the father of the victim (P.W.5). The argument advanced on behalf of the appellant that the appellant and his associates Raju Goswami, Kanu Goswami and Netai Goswami were implicated in this case on false allegation of rape by the father of the victim and his associates due to filing of English Bazar Police Station Case No. 479 of 2010 dated June 12, 2010 under Section 448/379 of the Indian Penal Code against the father of the victim girl and his associates cannot be accepted, because the father of the victim has explained in the written complaint (Ext.-1) how the associates of the appellant disrupted the meeting in the village on June 12, 2010 and threatened the father of the victim, so that he may not report the incident of rape to the police. Accordingly, I would like to give credence to the testimony of P.W.5, P.W.1, P.W.7, P.W.8, P.W.9 and P.W.12.

P.W.2 (Dilip Mondal) who stated that he was present in the meeting of the village on June 12, 2010, was declared hostile and as such his evidence is not considered to prove the incident of meeting in village. Similarly, P.W.3 (Fulkuri Mondal) has stated in evidence that she heard from the father of the victim about the incident of rape of the victim by the appellant. Since the father of the victim did not disclose the fact of the incident of rape to P.W.3, the evidence of P.W.3 with regard to the incident of rape must go down as hearsay evidence. P.W.6 (Malati Mondal) has stated in evidence that she heard about the incident from the victim girl and the father of the victim girl. Since the victim girl and the father of the victim girl did not disclose in evidence that they narrated the incident of rape to P.W.6, I am of the view that the evidence of P.W.6 with regard to the incident of rape of the victim may also go down as hearsay evidence. P.W.10 (Tapan Mondal) has stated in evidence that a meeting in the village was held over the incident of rape of the victim. Even if I discard the evidence of the above prosecution witnesses, it is established from the consistent evidence of P.W.1, P.W.5, P.W.7, P.W.8, P.W.9 and P.W.12 that on June 12, 2010 a meeting was held in the village over the incident of rape of the victim girl by the appellant and the said meeting was disrupted by the intervention of the co-accused Raju Goswami, Kanu Goswami and Netai Goswami who have been acquitted of the charge under Section 506 of the Indian Penal Code by the trial court. The tenor of testimony of P.W. 1, P.W.5, P.W.7, P.W. 8, P.W.9 and P.W.12 goes to establish that the co-accused Raju Goswami initiated the criminal case against the father of the victim girl and his associates in order to debar them from lodging the complaint before the police in connection with the incident of rape of the victim girl. I have already observed that I am unable to accept the contention made on behalf of the appellant that the appellant was implicated in this case on false allegation by the father of the victim girl in order to get rid of the criminal case started by the co-accused Raju Goswami on June 12, 2010. Accordingly, I would like to hold that on June 12, 2010, there was a meeting in the village over the incident of rape of the victim girl by the appellant and the said meeting was disrupted by the intervention of the co-accused persons viz., Raju Goswami, Kanu Goswami and Netai Goswami.

It is elicited from the evidence of P.W.14 (Dr. Bablu Soren) that the appellant is found to be potent and capable of doing sexual intercourse. It also transpires from the evidence of P.W.16 (Dr. Sanjay Basak) that he did not find any injury in the private parts of the victim on her medical examination on June 16, 2010, though the hymen of the victim girl was found to be ruptured. The report of medical examination of the victim is admitted into evidence and marked exhibit 4. It is quite natural that no injury would be found in the private parts of the victim when she was examined after eight days of the incident of rape. The fact of old rupture of the hymen of the victim girl indicates that there was an incident of sexual intercourse of the victim girl. It is surprising to note that the P.W.16 has stated at the fag end of the cross-examination that he did not get any sign of rape. I fail to understand what is meant by sign of rape. Rape is an offence defined under Section 375 of the Indian Penal Code and the doctor can only give evidence with regard to any injury found on the body of the victim or on the private parts of the victim and other signs found during clinical examination of the victim which may indicate whether sexual intercourse of the victim girl took place. In the instant case, the old rupture of the hymen of the victim girl is indicative of sign of sexual intercourse of the victim, though the same has not been clearly disclosed by the doctor (P.W.16) in his evidence. The above findings go to establish that there was sexual intercourse of the victim girl who is mentally retarded.

On an analysis of the entire evidence adduced by the prosecution, I can safely hold that on June 8, 2010 at about 7 p.m. the appellant was caught red-handed by P.W.5 (father of the victim girl) when the appellant was committing sexual intercourse with the victim girl aged about 22 years and the said sexual intercourse took place without the consent of the victim girl who is mentally retarded and unable to give consent. The logical inference of my entire above observation is that the trial court is justified in convicting the appellant for the offence under Section 376 of the Indian Penal Code.

With regard to the quantum of sentence, I would like to consider whether the sentence can be reduced in the facts and circumstances of the present case. Section 376 of the Indian Penal Code (as applicable before amendment of Section 376 of Indian Penal Code with effect from 03.02.2013) lays down that the person who commits rape shall be punished with imprisonment for a term which shall not be less than seven years, but which may be for life or for a term which may extend to ten years and shall also be liable to fine. The proviso to Section 376 of the Indian Penal Code (before amendment) further lays down that the court must impose the sentence of imprisonment for a term of less than seven years for adequate and special reasons to be mentioned in the judgment. In the present case, learned Judge of the trial court has imposed sentence of imprisonment for six years on the ground that the appellant is a young man and he has no criminal background. I have also found that the appellant has just attained majority at the time of commission of offence of rape and there is no criminal background of the appellant. Accordingly, I am not inclined to interfere in the order of sentence of the appellant passed by learned Judge of the trial court.

As a result, the appeal is dismissed. The judgment and order passed by learned Additional Sessions Judge, 2nd Court, Malda in connection with Sessions Trial No. 12 of 2011 arising out of Sessions Case No. 287 of 2010 is hereby affirmed. It is relevant to point out that the period of detention undergone by the appellant as under trial prisoner will be set off under Section 428 of the Code of Criminal Procedure.

Let a copy of this judgment and order be sent down to the learned court below along with lower court record for favour of information and necessary action.