Dhiren Roy vs State Of West Bengal & Ors.

Shivakant Prasad, J.

The instant appeal is directed against the judgment and order of conviction dated 27.09.2013 and sentence dated 30.09.2013 passed by the Additional

Sessions Judge, 2nd Fast Track Court, Raiganj, District- Uttar Dinajpur in Sessions Case No. 128 of 2007 convicting the appellant under Sections

363/376 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for seven years and to pay a fine of Rs. 10,000/- in default to suffer

Rigorous Imprisonment for six months for the offence punishable under Section 376 of the Indian Penal Code, 1860 and sentenced to suffer Rigorous

Imprisonment for three years and to pay fine of Rs. 5,000/in default to suffer Rigorous Imprisonment for three months for the offence punishable

under Section 363 of the Indian Penal Code, 1860 inter-alia, on the grounds that the impugned order of conviction and sentence is against the evidence

on record, is bad in law and liable to be set aside as the learned Judge having relied upon inadmissible evidence on surmises and conjectures not borne

out by any materials evidence on record.

Prosecution case leading to the instant appeal is that on the complaint of Arun Mondal Raiganj P.S. case no. 312/06 was registered under Sections

363/366/376 of IPC against three accused persons including the appellant to this effect that victim girl daughter of Manindra Mondal went out of the

house to bring a calf from a nearby pond but she did not return home. On 06.8.2006 inmates of the family came to know that she was in the house of

Dhiren Roy and she was recovered from his house. The victim girl narrated to the complainant that she had friendship with the accused Asit Roy who

had introduced her to the appellant and sent her with him to Siliguri where they stayed in a lodge at Medical More. She was raped for 20 days by

putting vermillion on her parted hair. After 20 days she was brought to the house of the appellant on 05.8.2006 and confined there. After the case was

committed to the Court of Sessions, trial started by framing charge under Sections 363/366/376 IPC against the appellant and separate charge was

framed against other accused persons under Section 109 IPC. To substantiate the charges prosecution examined as many as 12 witnesses and after

the evidence was closed the appellant declined to adduce any defense witness in support of his innocence.

Learned Judge by impugned judgment held the appellant guilty of the charge under Sections 363/376 IPC and the accused Asit Roy guilty of the

charge under Sections 363/366/376/109 IPC whereas accused Reba Roy was found not guilty and was acquitted. Now the point for decision is as to

whether the judgment impugned is tenable in law. It is contended by learned Advocate for the appellant that the evidence of Dr. Pradip Kumar

Bhattacharjee P.W.6 who held ossification test (Exbt. 6) to determine the age of the victim girl was of the opinion that victim seemed to be more than

18 years but less than 20 years. Dr. Tapas Kumar Ghosh P.W. 3 who examined the victim girl observed on examination that there was no sign of

external injury and no sign of resistance on her body surface.

It is also submitted that the prosecution has not produced any evidence, either oral or documentary, to substantiate that the victim girl had stayed in a

lodge at Siliguri Medical More since no staff of the lodge was examined where the victim girl and the appellant Dhiren Roy, stayed for some days

which makes the prosecution case unreliable. It is further submitted that S.1. Dilip Kumer Karmakar P.W. 9 Investigating Officer did not visit any

lodge at medical more, Siliguri. Therefore, the Trial Judge failed to consider case in its right prospective inasmuch as alleged incident took place on

14.6.2006, but the First Information Report was lodged on 10.8.2006 and recovery was made on 05.8.2006. So the First Information Report was

belated for more than one month from the date she went missing and after five days of her recovery without explanation of delay in FIR.

Learned Advocate for the appellant also submitted that impartial witness has deposed to support the case and age of the victim girl being a minor girl.

Now, let me scrutinise occular testimony of the victim girl P.W. 2 who is the first eye witness to the incident. P.W. 2 deposed in clear crystal term

that on 14.6.2006 around 5.00 P.M. she came out of her bath room and noticed that her calf was standing on the bank of the pond adjacent to her

house. She went to the said place when Asit Roy came and gagged her mouth by handkerchief from behind. She fell unconscious and regained her

sense in a room being confined by the appellant and two witnesses standing in the surrounding.

The appellant forced her to write something on a piece of paper and then she was shifted to an unknown place and forced to shallow sleeping pill. She

knew the appellant and her School fellow who are her co-villagers. In crossexamination she has stated in her crystal term that when she was shifted

to other place from her house confinement, she was brought by Dhiren Roy, the appellant herein and some other unknown person in a Taxi to a place

which she noticed at Siliguri Medical More. She was confined for twelve days at the first place and Dhiren Roy remained with her in the room but not

allowed to come out. The ocular testimony of P.W. 1 goes uncontroverted during her crossexamination. My attention is invited to letter allegedly

written by the victim showing that she had love relationship with the appellant Dhiren Roy which cannot be accepted in view of the evidence of victim

that she was forced to write on a piece of paper while confined in the room of the appellant.

The statement of the victim girl recorded under Section 164 Cr.P.C. corroborated her oral testimony. As regards the defence taken by the appellant

that the victim was a major girl in view of ossification test report on the medical evidence given by the doctor but I am of the view that the ossification

test report is not a surest test though it is a scientific test to ascertain the probability in determination of the age of the person. The victim herself has

disclosed about her age as 15 years as on 18.8.2006 before the Magistrate in her statement under Section 164 Cr.P.C. The birth certificate bearing Sl.

no. 1002 issued on 08.4.1993 by Pradhan of Sherpur Gram Panchayat reveals the date of birth recorded as on 24.01.1992. In case of a dispute as to

the age of a person the material evidence is that of the parents.

Manindra Mondal P.W. 7 stated that the victim was her daughter. Mother of the victim girl deposed that her daughter was missing and even after

search she could not trace out and for that her brother P.W. 1 had lodged missing diary at Raiganj P.S. on the next date of incident and 40/50 days

after they got the information that her daughter was in the house of Dhiren Roy and she was rescued therefrom. She was aged about 14½ years at

that time. Ranjan Mondal P.W. 8 brother of the victim has also corroborated the fact of his sister missing from the house and about the recovery. As

regards no external injuries as per the examining doctor, it would appear that she was subjected to sexual assault.

In consideration of the totality or the evidence on record I am of the view that the ossification test is not a surest test for determining age but the

opinion of the doctor as to the other factors should not be brushed aside mainly because he did not take such a test. An X-ray ossification test may

provide a surer basis for determining age of an individual than the opinion of a medical expert but, it can by no means be so infallible an accurate a test

as to indicate the correct number of years.

Obviously the Court has to proceed on the evidence of age as furnished by the ossification test when there is no other evidence produced in support of

the prosecution case with regard to the actual age of the victim girl but in the instant case the mother of victim girl has deposed regarding the age of

the victim as a minor girl, although the certificate of birth issued by Pradhan of the Gram Panchayat was not produced before the trial Court. Even if it

is accepted for argument sake, that victim was not less than 18 years she was undoubtedly abducted from her house against her wish which is

axiomatic from her statement under Section 164 Cr.P.C. fully corroborated by her during trial. For reasons stated above, I do not find the judgment of

conviction devoid of any merit.

As regards sentence, Mr. Iqbal Kabir amicus curiae appointed by this Court has submitted that as per the report of the Superintendent of Raiganj

District Correctional Home dated 28.6.2018 convict Dhiren Roy the appellant herein was convicted on 30.9.2013, sentenced for R.I. for 7 years and

fine of Rs. 10,000/- in default to six months to S.I. and further 3 years and fine to Rs. 5,000/- in default to 3 months S.I. and both the sentences were

to run concurrently and the appellant is still in custody under detention in Raiganj District Correctional Home as convict for more than five years.

Accordingly, Mr. Kabir submitted for reduction of the sentence to a period already undergone by the appellant. Although, the question of sentence is a

matter of discretion primarily resting with the trial Court. It is well settled that when that discretion has been properly exercised, an appellate Court

should not interfere unless there are very strong reasons and in case where the sentence cannot be said to be so grossly inadequate as to amount to a

miscarriage of justice. Therefore, the question of sentence has to be determined not with reference to the volume or character of the evidence

adduced by the prosecution in support of its case, but with reference to the fact whether there are any extenuating circumstance which can be said to

mitigate the enormity of the crime.

For reasons stated above, I do not find mitigating circumstances to modify the terms of sentence awarded against the appellant. Consequently, the

judgment and order of conviction dated 27.09.2013 and sentence dated 30.09.2013 passed by the Additional Sessions Judge, 2nd Fast Track Court,

Raiganj, District- Uttar Dinajpur is hereby affirmed. In the result, the appeal being CRA 381 of 2015 is dismissed. A copy of this judgment be supplied

to the appellant free of cost through his Advocate on record. Send a copy to the Superintendent Correctional Home. LCR be sent to the learned Court

below along with a copy of this judgment forthwith. Urgent copies of this judgment be supplied to the State free of cost at once.