G. Barna Bas vs State

Ashim Kumar Banerjee, J.—Tanaya(not the real name) was seven years old. She was staying with her parents and her brother Sanjay. At about 4.30 PM on April 20, 2009 when her parents were out of the house for work and Sanjay went to play, Biswajit, her neighbour, came to her house and told her, her brother was calling her. She went along with Biswajit and reaching the house of Bhola she asked Biswajit about her brother. He left the place without replying to the query. Bhola asked her whether she wanted to eat "litchu". She replied in the affirmative. Bhola took her to the betelnut orchard where he made her lie down and pulled her skirt and underwear down. When she refused, she was told to keep quite. Then he patted her private parts. When she shouted, Bhola left the place. She got up and wore her skirt and panty and went to her house. In the night at about 8 o''clock when her parents came back from work, she narrated the incident. Next day, her mother took her to Tigga in whose orchard the incident happened. Then, they went to the police station and lodged complaint against the accused. She categorically told, Bhola did not do anything except touching her private parts after removing of her clothes. The police registered a case as against Biswajit and Bhola and charged them for the offences committed under section 363/34 as well as under section 376/511/34 of the Indian Penal Code.

The victim also made statement before the learned Magistrate that the learned Magistrate recorded under section 164 of the Cr.P.C. She deposed, Bhola removed her undergarments and dress. He started rubbing her private parts with finger when she shouted the accused ran away. She got up from there and after putting on her clothes, went back to home and complained to her mother. On the next morning, she lodged complaint accompanied by Tigga and her mother.

When both the accused were charged they pleaded not guilty and opted to be tried.

EVIDENCE:

P.W. 1, the victim herself deposed consistently with her statement before the police during lodging of FIR and before the Magistrate under section 164 of the Cr.P.C. According to her, when Biswajit called her she went to Bhola and wanted to know what had happened. Bhola asked her whether she would take "litchu". When she answered affirmatively, she was taken to orchard belonging to Kiran Tigga P.W. 8). Bhola asked her to lie down that she refused. Bhola took her lehanga and place his hand on her private parts. When she raised alarm, Bhola fled away. She identified Bhola and Biswajit in Court.

In cross-examination, she could not be shaken. She denied the suggestion, the incident never happened. She volunteered in cross-examination, Bhola made her naked and he also became naked and did the wrong thing to her.

P.W. 2 was the father. He narrated the incident, Tanaya told her about the incident after he had come back from work. P.W. 3, the mother also deposed and corroborated P.W. 1 and P.W. 2.

P.W. 4 was the medical officer. He examined the accused and found no mark of violence. P.W. 5 was the Chief Medical Officer in GB Pant Hospital. She examined Tanaya and found no forcible sexual intercourse being done to her. Her hymen was found intact. No mark of violence could be found.

P.W. 6 was the mazdoor in the Forest Department. She was a neighbour. She was present when the wearing apparels belonging to Tanaya was seized. She identified her signature.

P.W. 7 Sushil was also a seizure witness. In his presence, the wearing apparels belonging to the accused Bhola was seized.

P.W. 8 Kiran Tigga was the owner of the orchard where the incident happened. She also corroborated what she could gather from Tanaya and her parents about the incident.

P.W. 9 was the Head Constable who registered the FIR after recording the statement of Tanaya.

P.W. 10 Vijay was the seizure witness. In his presence, the wearing apparel belonging to the victim was seized. He identified his signature.

P.W. 11 Rathore conducted the investigation. He also corroborated the evidence led by all the witnesses. P.W. 12 Tewari received the CFSL report that he identified.

During the examination under section 313 Cr.P.C. Bhola denied the charges. Biswajit also denied the charges, however, made voluntary statement to the effect, on that day he was at his work place.

D.W. 1 Arathi was a neighbour. She found Biswajit working at the Bar. She denied the suggestion, Biswajit did not go for work on that day. She deposed, she heard from the mother of Bhola that Bhola had demanded money from P.W. 3 for the work he had done to them. However, P.W. 2 and 3 did not pay him and assaulted him. They went to the police station and came to know, the police arrested both the accused.

D.W. 2, the Chief Medical Officer at Diglipur identified the outpatient department slip treating Bhola in the Health Centre.

JUDGMENT AND ORDER IMPUGNED:

The learned Judge considered the evidence and rightly held, the offence alleged to have been committed under section 363 could not be proved, hence, acquitted both the accused from the said charge. Regarding the offences alleged to have been committed under section 376/511, he found no offence as against Biswajit and as such acquitted him. With regard to Bhola, he observed, it was a borderline case and should be dealt with under section 354. He found Bhola guilty for the offence under section 354 IPC and convicted him for the offence and sentenced him to suffer rigorous imprisonment for two years and pay fine of Rs. 2000/- and in default, to suffer rigorous imprisonment for two months more.

THIS APPEAL:

Being aggrieved, Bhola preferred the instant appeal that I heard on the above mentioned date.

CONTENTIONS:

Mr. Gobind, learned counsel appearing for the appellant advanced argument in support of the appeal. He would contend, there had been material discrepancy in the evidence that should lead to acquittal of the appellant.

Per contra, Mr. Mondal, the learned Public Prosecutor would submit, considering the evidence, this Court may reduce the sentence if it feels so fit and proper.

MY VIEW:

The incident so narrated by Tanaya before the police did not suggest any attempt for penetration. During trial, in cross-examination, she for the first time, deposed, Bhola was also naked. The medical evidence would also not suggest anything that would lead to any confusion with regard to the offence committed under section 376/511 and the learned Sessions Judge rightly held so. If we take the statement of the victim Tanaya that would lead to a conviction under section 354 and the learned Sessions Judge held so, and in my view, accurately.

I, however, considering the sum total of the evidence, particularly, considering the age of the accused who was 27 years old, being in his prime youth, wish to reduce the sentence so that he could amend himself.

The appeal thus succeeds in part. The conviction is upheld. The sentence is reduced to one year rigorous imprisonment coupled with fine of Rs. 2000/- and in default, to suffer rigorous imprisonment for three months more. If the fine is paid by the accused that may be paid to the victim as token of compensation.

The appeal is disposed of accordingly.

The lower court records be sent down immediately.

A copy of this judgment be sent to the Correctional Home for the information of the Administration as also for communication of a copy to the appellant.