Ganesh Barui vs State Of West Bengal

Joymalya Bagchi, J

The appeal is directed against the judgment and order of conviction dated 17.08.2013 and 19.08.2013 passed by the learned Additional District and Sessions Judge, 3rd Court, Purulia, in Sessions Trial No. 29 of 2010 arising out of Sessions Case No. 89 of 2010 convicting the appellant for commission of offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- in default to suffer rigorous imprisonment for one year.

The prosecution case as alleged against the appellant is to the effect that between 07.11.2006 till 12.04.2008 on several dates the appellant committed rape on the minor victim. Prosecution case was initiated by P.W. 2, father of the victim, against the appellant and seven others being his relations on the basis of an application under Section 156(3) of the Code of Criminal Procedure. It was alleged in the said application that on 7.11.2006 the appellant came to the house of P.W. 2 and had sexual intercourse with his minor daughter. The appellant threatened her not to disclose the incident to anyone. Thereafter, on several occasions, appellant had sexual intercourse with the minor victim (P.W.4). As a result, she became pregnant. When she was pregnant for five/six months, the matter was detected by her parents P.W.2 and P.W.6. A meeting was arranged where the appellant admitted his guilt and it was agreed that he would marry the girl after delivery of the child. P.W.4 was admitted to Purulia Sadar Hospital on 4.8.2007. She gave birth to a male child. Thereafter, the appellant refused to marry the victim.

Pursuant to the direction passed by the Magistrate, First Information Report being Purulia (T) 92 of 2008 dated 7.7.2008 under Sections 376/493/109 of the Indian Penal Code was registered against the appellant and the other accused persons.

In the course of investigation, the blood samples of the victim, the appellant and the minor child was taken for D.N.A. examination. In conclusion of investigation, charge sheet was filed in the instant case. Case was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, 3rd Court, Purulia for trial and disposal. Charge was framed under Section 376 of the Indian Penal Code against the appellant and against the other accused persons under Sections 376/109 of the Indian Penal Code. In the course of trial, prosecution examined 14 witnesses and exhibited a number of documents. Forensic report of D.N.A. profile was received during trial and was exhibited as Ext.4 on admission. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial judge by judgment and order dated 17.08.2013 and 19.08.2013 convicted and sentenced the appellant, as aforesaid. Other accused persons were, however, acquitted of the charges levelled against them.

Nobody appears for the appellant. Ms. Puja Goswami, learned Advocate is requested to appear as amicus curiae.

Ms. Goswami argued that the age of the victim has not been proved beyond doubt. She further submitted that the paternity of the child has also not been established. There is no evidence that P.W. 4, the victim, had been forcibly raped. Accordingly, the appellant is entitled to an order of acquittal.

On the other hand, Ms. Biswas, learned Advocate appearing for the State argued that the evidence of P.W.4, the victim, is corroborated by her parents, P.W.2 and P.W.6. P.W.1, Headmistress of Ram Satyam Primary School where the victim studied has proved her age. Ossification report, Ext.2 also showed that the age of the victim was below 16 years at the time of occurrence. D.N.A. profiling report (Ext.4) also establishes that the appellant is the father of the child. Hence, the prosecution case has been proved beyond doubt. The appeal is liable to be dismissed.

P.W.4 is the victim. She deposed that on November, 2006, the appellant came to their house while she was alone and committed rape on her. When she raised alarm, he stated that he would marry her. Thereafter, the appellant had sexual intercourse to her on a number of occasions on the promise of marriage. When she became pregnant, her mother made enquiries and she revealed the incident to her. Doctor advised against abortion of the child. They went to the house of the appellant. He admitted his association with the victim and she stayed at the house of the appellant for some time in August, 2007. She was taken to Sadar Hospital, Purulia for delivery by the appellant and her parents. A child was born to her. When she went to the house of the appellant, she was driven away. She narrated the incident to the police. She also made a statement before the Magistrate.

P.W.2, Buglu @ Ashol Bauri is the father of the victim girl and the de-facto complainant in the instant case. He corroborated the version of her daughter.

Similarly, her mother (P.W. 6) has also supported her version.

P.W.11, Dr. Sankar Dey was a Medical Officer attached to Sadar Hospital, Purulia. He deposed that on 12.8.2007 the victim was admitted in the maternity ward of the hospital. She was accompanied by her parents. She delivered a pre-mature male baby on 13.8.2007. She was discharged from the hospital on 15.8.2007 at 10.00 a.m. He proved the bed head ticket.

P.W.12, Dr. Subodh Kr. Hansda is another Medical Officer of the said hospital. He had medically examined the victim. He proved his report, Ext.11.

P.W.9, Dr. Chiranjib Mukherjee was a Medical Officer attached to Department of Pathology, Sadar Hospital, Purulia. He collected blood sample of the appellant, the victim and the child on the requisition of the Investigating Officer P.W.13 in connection with this case. He handed over the samples to the Investigating Officer.

P.W.5, Anal Kanti Banerjee carried the samples to the State Forensic Laboratory for examination.

P.W.1, Shibani Banerjee, is the Headmistress of the Ramsatya Primary School. She produced admission register of the school between 1989 to 2004. In the year 2001 P.W.4, the victim, was admitted in Class I of the said school. Her date of birth has been recorded as 10.10.1996. She proved the said entry in the admission register.

P.W.3, Dr. Kedarnath Pal, is a Radiologist who held ossification test of the victim and opined that she was between above 15 years and below 16 years on 16.7.2008.

P.W.13, Shyamal Kumar Samanto is the Investigating Officer in the instant case. He made prayer for recording statement of the victim girl before the Chief Judicial Magistrate, Purulia. He also made prayer for ossification test of the victim as well as D. N. A. profiling/paternity test of the child born to the victim girl. He collected bed head ticket of the victim girl. He collected birth certificate of the victim girl from Ramsatya Primary School. He collected blood samples of the appellant, victim girl and the child from Sadar Hospital, Purulia and despatched the samples to Director, C. F. S. L. He did not receive the report and handed over the investigation to the Officer-in-charge upon transfer.

P.W.14, Tarun Kanti Dey is the second Investigating Officer who submitted charge sheet.

In the course of trial, the forensic report of D.N.A. samples was received by the trial court and exhibited as Ext.4 on consent.

From the evidence of P.W.4, the victim and that of her parents P.W.2 and P.W.6, it appears that there was cohabitation between the victim and the appellant since November, 2006. As a result, the victim became pregnant. She gave birth to a male child at Sadar Hospital, Purulia on 13.8.2007. Although, P.W.4 sought to make out a case of forcible rape on the first occasion, in the facts and circumstances of the case particularly in view of the fact that she kept mum and did not raise any protest at the earliest opportunity, I am of the opinion that the sexual relationship between the parties viz., the appellant and the victim was consensual. However, it appears that the victim had not attained the age of consent. P.W.1 headmistress of the school where the victim studied deposed date of birth of the victim as recorded in the admission register was 10.10.1996. P.W.3, Radiologist who held ossification of the victim on 16.7.2008 opined that the victim was above 15 years and below 17 years on the date of examination. Although it has been argued that the age of the victim was given as 19 years in the medical records of Sadar Hospital, Purulia at the time of admission for giving birth of a child, in the light of the aforesaid convincing evidence with regard to her age as deposed by P.W.1 and P.W.3 and that of her father, P.W. 2, I am of the opinion the victim was below 16 years on November, 2006 when the appellant had sexual intercourse with her for the first time. Thereafter, the appellant had sexual intercourse on a number times till she became pregnant.

Although the sexual intercourse between the appellant and the victim appears to be consensual, in view of the fact that the victim had not crossed the age of consent, i.e., 16 years of age, her consent to sexual intercourse was immaterial. On the other hand, D.N.A. profiling report of the child, Ext.4 establishes beyond doubt that the appellant is his father removing all doubts from one's mind that he had cohabited with the minor girl resulting in the aforesaid pregnancy.

In the light of the aforesaid discussion, I am inclined to uphold the conviction of the appellant under Section 376 of the Indian Penal Court is upheld.

Coming to the issue of sentence, I find that the sexual intercourse between the appellant and the victim was consensual. However, the victim was a minor and had not attained the age of consent. The appellant was also a young man with no criminal antecedents. Balancing the aggravating and mitigating factors in the instant case, I am of the opinion that the sentence imposed on the appellant may be modified and he is directed to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.10,000/- in default to suffer further rigorous imprisonment of one year more.

With the aforesaid modification as to sentence, the appeal is disposed of.

Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure.

Copy of the judgment along with the Lower Court Records be sent down to the Trial Court at once for necessary compliance.

I record my appreciation for the able assistance rendered by Ms. Puja Goswami, learned Advocate as amicus curiae in disposing of the appeal.

Urgent photostat certified copy of the order, if applied for, be given to the parties on priority basis.

I agree.