Deben Burman vs State of West Bengal

Indira Banerjee, J. - This appeal is against a judgment and order dated 30th July, 2008 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Siliguri in Sessions Case No. 28(1) of 2004 corresponding to Sessions Trial No. 7 of 2005 whereby the accused appellant has been held guilty and convicted of offence under Section 376 of the Indian Penal Code and also an order of sentence dated 31st July, 2008 whereby the accused appellant has been sentenced inter alia to rigorous imprisonment of ten years for the said offence under Section 376 of the Indian Penal Code, and also to fine of Rs. 5,000/-.

The offence for which the accused appellant has been convicted is heinous. The accused appellant has, by the judgment and order under appeal, been found guilty of rape of a ten year old girl.

The case of the prosecution in a nutshell is that the accused appellant is the owner of a timber shop beside the house of the de facto complainant, father of the victim.

On Friday, 7th April 2000, in the evening the de facto complainant''s wife went to the market, leaving at home their nine year old daughter (the victim) and five year old son.

When the de facto complainant''s wife returned from the market at around 8.30 p.m and called out to the victim, the accused appellant ran past her out of the room.

The victim, thereafter, told the de facto complainant''s wife that the accused appellant had forcibly entered the de facto complainant''s room, threatened the victim and raped her in the absence of the de facto complainant and his wife. The de facto complainant''s wife later informed the de facto complainant of the incident as narrated to her by the victim.

When the de facto complainant came back home, he too made enquiries from the victim, and came to know that the accused appellant had raped the victim. The next day, that is on 8th April 2000, at about 1.45 p.m in the afternoon, the de facto complainant lodged a complaint with the Officer-in-Charge, Matigara Police Station in District Darjeeling.

After investigation, charge was issued against the accused appellant for committing rape on the victim, a minor girl aged about nine years and thereby committing an offence punishable under Section 376(2)(f) of the Indian Penal Code.

In course of trial, the prosecution examined about twelve witnesses. No oral evidence was adduced on behalf of the defence. The accused appellant was, however examined under Section 313 of the Criminal Procedure Code. He denied his guilt.

Mr. P.S. Bhattacharya appearing on behalf of the accused appellant argued that there had been unexplained delay in filing of the FIR. There was no explanation in the FIR as to why the FIR was filed on 08.04.2000 at around 1.45 p.m. when the incident had taken place the previous evening.

Mr. Bhattacharya further argued, and rightly that unexplained delay in lodging the FIR, raises serious doubts with regard to the prosecution case. There is strong possibility of false implication, exaggeration and embellishment.

However, delay in the lodging of an FIR does not, in itself, vitiate the prosecution case. Be that as it may, the complaint in this case has been lodged within twenty-four hours, seventeen hours to be precise. In the case of rape, delay of a few hours is no delay at all.

Of the twelve witnesses who deposed on behalf of the prosecution, the most important witness is the victim herself, whose statement had also been recorded under Section 164 of the Criminal Procedure Code.

The victim was examined in Court almost five and a half years after the incident. At the time when the victim was examined she was about 13 years old. The victim deposed that she knew the accused appellant who had a shop beside her house.

The victim stated that on 7th April, 2000 at about 8/8:30 p.m. the victim''s mother had gone to the market, after telling the victim and her younger brother to read. The victim further stated that after her mother left, she and her younger brother started reading. After a while, her brother fell asleep and she too was sleepy and was almost falling asleep when the accused appellant came to their house and entered their room.

On seeing the accused appellant entering the room she woke up and she asked the accused appellant why he was closing the door. While the victim was about to shout, the accused appellant tied her mouth with a white cloth, which he had taken out from his pocket.

The victim deposed that the accused appellant made her lie down by the side of the cot, took off her panty and raped her. The victim stated that her mother returned, thereafter, and started calling her from outside and also asked her to open the door.

The victim stated that the accused appellant threatened her that he would kill her parents and her brother if she narrated the incident to her mother. The victim also stated that the accused appellant had threatened her with a knife.

The victim stated that the accused appellant untied the cloth with which he had tied her mouth, after which he pressed her neck with his fingers and then she lost her sense. When she regained her sense she found herself on her mother''s lap. When her mother asked her what had happened, she told her mother that she would not tell her what had happened because the accused appellant had threatened to kill her mother, father and brother, if she did.

The victim further stated that on the insistence of her mother, she narrated the incident to her mother. She also told her mother that she was feeling pain in her urinal passage, after which her father gave her a medicine and she went off to sleep.

The victim deposed that on the next day, at around noon, the police came to her and asked her about the incident. She stated that she told the police about the incident. She also told a woman of the locality about the incident.

Thereafter, the police took the victim to the police station. The victim stated that she had told the police officer at the police station what had happened. Thereafter the police took her for medical examination. The doctor examined her. She also stated that she came to the Court and made a statement before a lady Magistrate.

The victim was cross-examined at length. As observed above, the victim who was about nine/ten years old when the unfortunate incident had taken place, was examined in Court after over five years. After so many years the victim would obviously not remember minute details of the exact time at which the accused appellant entered her room, how long he remained there, whether the accused appellant was still raping her or had finished raping her when her mother returned and called out to her. She stated that the accused appellant was still in the room when her mother returned.

The victim, however, remained unshaken and maintained that the accused appellant had raped her, after tying her mouth with a cloth and had threatened her with dire consequences if she disclosed the incident to her mother.

The Prosecution Witness No. 1, who is the father of the victim and the de facto complainant and the Prosecution Witness No. 2, who is the mother of the victim, more or less corroborated what the victim had stated.

The Prosecution Witness No. 9, being the doctor who had examined the victim confirmed that on examination of the girl he had informed the Inquiry Officer that (i) she had experienced forcible sexual intercourse; (ii) there was evidence of recent forcible sexual intercourse; (iii) she was not habituated to sexual intercourse. This doctor opined that the victim was at the time of the incident above 10 years but below 12 years of age.

It is well settled that in a case of rape, the evidence of the victim is of immense importance. Her testimony need not be tested with suspicion as though she were an accomplice to a crime. The evidence of the victim, even if uncorroborated, is admissible in evidence. Her evidence is to be given the same weight, as is given to the evidence of an injured, in a case of physical violence. The evidence of a victim has to be analysed with the same degree of care and caution with which the evidence of an injured complainant, or an eye witness to a crime, and no more. This proposition finds support from the judgment of the Supreme Court in Mohd. Imran Khan v. State (Govt of NCT of Delhi).

In this case, the victim was a child. Her statement was recorded under Section 164 of the Criminal Procedure Code almost contemporaneously. The evidence of the victim deserves credence, more so, when the evidence of the victim, that she had been raped, is substantiated by the medical opinion of the Prosecution Witness No. 9, the Doctor who examined the victim shortly after she had been raped.

In our view, the evidence of the victim, supported by medical opinion is sufficient for conviction of the accused appellant of the offence of rape under Section 376 of the Indian Penal Code. It is therefore, not necessary for us to discuss the evidence of other witnesses. Suffice it to mention that the Prosecution Witness Nos. 1 and 2 being the parents of the victim, more or less corroborated what the victim had stated. There may have been minor discrepancies and/or minor inconsistencies in the evidence which are, in our view, not very material.

Mr. Bhattacharya also pointed out that the evidence reveals that the mobile police van of Matigara stops at the second gate of North Bengal University every alternative half an hour. Mr. Bhattacharya wondered why the de facto complainant whose house was located near the second gate, had chosen not to report the incident to the mobile police van, the same evening, insinuating thereby that the allegations in the complaint were an after thought.

When an incident of this kind takes places, where a small child is raped, it is only natural for the parents to be too shocked and devastated to react. There is also a tendency to conceal incidents of sexual assault. In fact, the Prosecution Witness No. 2, being the mother of the victim stated in evidence that she did not disclose the incident to any one out of shame.

Mr. Bhattacharya has emphasised on discrepancies and inconsistencies in the evidence. Minor discrepancies and/or inconsistencies in the evidence do not vitiate the trial or render a conviction bad. There may have been some discrepancies in the evidence of different witnesses and may be even some embellishment and/or exaggeration as well. However, all the main witnesses, including in particular, the victim and her parents withstood lengthy cross-examination, but remained unshaken and maintained all through, that the victim had been raped by the accused appellant. In a society where pre marital and/or extra marital sex is considered a taboo, and shameful, parents of minor girls are unlikely to make allegations of rape of their own daughter just to implicate others, and thereby invite perceived ignominy and embarrassment.

Referring to the judgments discussed hereinafter, Mr. Bhattacharya submitted that sentence of 10 years should be reduced to the period of sentence already served.

The judgment of the Supreme Court in Rahim Beg v. The State of Uttar Pradesh reported in AIR 1973 SC 343 cited by Mr. Bhattacharya, was rendered in the particular facts of the case where a full grown man had allegedly raped a girl 10 to 12 years of age but the girl''s hymen was intact and no injury detected on the male organ either. The judgment is distinguishable. In this case the doctor who had examined the victim, opined with certainty that the victim had been subjected to recent forcible sexual intercourse.

In State of M.P. v. Bhaiyalal reported in 1997 SCC (Cri) 1074, the Trial Court had sentenced the accused for five years for offence under Section 376, but the High Court had reduced the sentence. The Supreme Court restored the sentence imposed by the Trial Court of rigorous imprisonment of five years. In the aforesaid case, the reduction was in question. The imposition of sentence of 5 years'' rigorous imprisonment was not in issue.

In State of Karnataka v. Raju reported in (2008) 1 SCC (Cri) 787, cited by Mr. Bhattacharya, the Supreme Court found that the accused had committed the offence of rape of a minor, punishable under Section 376(2)(f) of the Indian Penal Code. In the aforesaid case, the victim was 10 years of age. Even though the minimum punishment was 10 years and only for adequate and special reasons, sentence of less than 10 years could be imposed, the Sessions Court had sentenced the accused for 7 years and the High Court had further reduced the sentence. The Supreme Court held that in the absence of any reason, which could have been treated as special and adequate reason, reduction of the sentence by the High Court was unsustainable. However, as the State had not questioned the inadequacy of sentence imposed by the Trial Court, the sentence of 7 years as imposed by the Trial Court was restored in that case.

In Mohd. Imran Khan v. State (Govt. Of NCT of Delhi) reported in 2012 (1) All India Criminal Law Reporter 244, the High Court had reduced the sentence to five years, taking into consideration the fact that the victim was more than 15 years of age when she had eloped with the accused appellants, she had willingly accompanied the appellants to Meerut and stayed with the appellants in a hotel. The accused appellants were also young boys. The Supreme Court, however declined to further reduce the sentence. This is a heinous case of rape of a nine/ten year old child.

In Mohd. Kalam v. State of Bihar reported in (2008) 7 SCC 257, cited by Mr. Bhattacharya, the Trial Court and the High Court had sentenced the accused to five years'' imprisonment, even though the Supreme Court found that offence was under Section 376(2)(f) for which the minimum punishment was ten years extendable to life imprisonment. The Supreme Court did not interfere with sentence of five years imprisonment imposed by the Trial Court and maintained by the High Court possibly because the State had not appealed. It was the accused appellant who had appealed. In Datta v. State of Maharashtra reported in (2012) 4 SCC (Cri) 692 cited by Mr. Bhattacharya, the prayer for reduction of sentence was rejected.

In State of M.P. v. Bala Alias Balaram reported in (2005) 8 SCC 1 the Supreme Court held that maximum punishment may depend on circumstances of the case, but minimum punishment was generally imperative. There can be no doubt, as held by the Supreme Court that punishment should be commensurate with the gravity of the offence. In this case the offence was grave.

In Dhanesh alias Konda Banjara v. State of Chhattisgarh reported in 2007 CRI.L.J. 3328 the Single Bench of Chattisgarh High Court disbelieved the evidence of the prosecutrix that there had been complete penetration in the absence of any local medical evidence. In this case as observed above, the evidence of the prosecutrix is substantiated by the evidence of the doctor who had examined the victim.

The appellant was charged under Section 376(2)(f) of the Indian Penal Code. It was proved that the appellant had committed the rape of a minor. Considering the evidence of PW9, the doctor who had examined the victim, and opined that the victim was above ten years of age, but below twelve years, the appellant was liable to conviction under Section 36(2)(f) of the Indian Penal Code for which the minimum sentence is ten years. For adequate reasons lesser sentence might be granted.

The learned Sessions Court, however, convicted the accused appellant under Section 376, for which the minimum punishment is seven years'' rigorous imprisonment extendable till life. The accused appellant was given the benefit of possible difference between the actual age of the victim and the age estimated by PW9, though the PW9 was definite that she was above ten years and less than twelve years.

We do not find any reason to interfere with the sentence and reduce the term of imprisonment.

The appeal is, therefore, dismissed.

The judgment and/or order of conviction and the order of sentence are confirmed.

Photostat certified copy of this judgment, if applied for, be supplied to the parties expeditiously, subject to compliance with the requisite formalities.