Haroshit Pandey @ Harasit vs State Of West Bengal

Joymalya Bagchi, J

The appeal is directed against the judgment and order dated 16/17.9.2014 passed by the learned Additional District & Sessions Judge, 2nd Court, Krishnagar, Nadia in connection with Sessions Trial No. II (July) of 2014 corresponding to Sessions Case No. 5(5) of 2014 (Spl) GR case no. 297 of 2014 arising out of Haringhata P.S case no. 59 of 2014 dated 27.2.2014 convicting the appellant for commission of offences punishable under Section 376 of the Indian Penal Code and section 8 of the Protection of Children from Sexual Offences Act and sentencing him to suffer imprisonment for life and to pay fine of Rs.10,000/-in default, to suffer rigorous imprisonment for six months more.

The prosecution case as alleged against the appellant is to the effect that on 27.2.2014 the appellant committed rape on a five-year old girl and also subjected her to sexual assault. The case arose out of a written complaint lodged by the mother of the victim (P.W 1) alleging that on the aforesaid date around 1 p.m. her daughter had gone for taking bath. At that time she urinated and cried out in pain. Upon query she stated that the appellant pushed his penis into her vagina and as a result she suffered pain. Pursuant to aforesaid written complaint Haringhata P.S case no. 59 of 2014 dated 27.2.2014 under section 376 IPC and section 8 of the POCSO Act 2012 was registered for investigation. Victim was medically examined and her statement was recorded before the magistrate. Charge sheet was filed against the appellant and charge was framed under section 376 IPC and under section 8 of the POCSO Act 2012 against him. Appellant pleaded not guilty and claimed to be tried. In the course of trial prosecution examined 8 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. In conclusion of trial learned trial judge by judgment and order dated 16/17.9.2014 convicted and sentence the appellant as aforesaid. Hence, the present appeal.

Learned Counsel appearing for the appellant submits that the prosecution has failed to prove the ingredients of the alleged offences beyond reasonable doubt. Version of P.W 4, the victim, is unreliable and is not supported by medical evidence. She further submits that there is enmity between the parties and the chance of false implication cannot be rulled out. She accordingly prayed for acquittal of the appellant.

On the other hand learned counsel for the State submits that the version of the victim (P.W 4) is corroborated by her parents as well as the medical evidence on record. Hence, the appeal is liable to be dismissed.

P.W 4, the victim is the most vital witness in the instant case. She was examined by the trial judge after ascertaining her competence to depose. She deposed that appellant pushed his penis into her vagina in the afternoon. Thereafter, she went to take bath. While she was urinating she felt burning sensation in her vagina. She narrated the incident to her grandmother, P.W 3. After the incident her uncle assaulted the appellant. She was taken to the police station. She was examined by a doctor. She went to Kalyani court and made statement before the magistrate. In cross-examination, she stated she had not made statement before the police. The aforesaid evidence of P.W. 4 is corroborated by her mother P.W 1 and her grand-parents, P.W 2 and P.W 3. All these witnesses have corroborated the version of the victim and stated that while the victim went to bathroom for bathing she felt burning sensation in her vagina at the time of urination. On query she disclosed that the appellant had inserted his penis into her vagina. P.W 1 proved the written complaint (Ext 1). P.W 5, another relation of the victim, has also corroborated her version. He claimed that the appellant tried to flee away and was apprehended. P.W 5 was also a signatory to the seizure of wearing apparels of the victim. P.W 7 is the medical officer who examined the victim on 20.3.2014. He found the following injuries:-

"Genitalia - there is cut or bite mark of injury on external genitalia and pubic area. On separating the labia majora she feels pain and tenderness. There is no cut or abrasion mark on the vaginal mucosal wall, fornics of vagina and clitoris except slight congestion of the mucosal. Vagina is capable to admit little finger only. Critoral opening is normal contur and no tear. There is no foreign body or abnormal discharge found inside the vagina."

He opined that the injuries may be due to deep rubbing on the vagina.

In cross examination, he stated that the allegation of rape had been disclosed to him by the mother of the victim. He also stated that he could not detect whether the injury on the vagina was a cut or bite mark.

P.W 8 is the investigating officer in the instant case. He took up investigation and visited the place of occurrence. He prepared rough sketch map with index (Ext 6). He recorded statement of witnesses. He forwarded the accused to the magistrate. He forwarded the victim girl and her mother for recording statement before the magistrate under section 164 Cr.P.C. He proved the statements of the victim girl and her mother (Ext. 7 and 8). He submitted charge sheet.

P.W. 4, the victim, claimed that she had been violated by the appellant, who was the father of her friend Rick. Soon after the incident the victim went to take a bath. While she was urinating she suffered pain and cried out. When her grandmother (P.W 3) and other relations enquired of her how the injury was caused she divulged the incident to them. Her version is corroborated not only by her mother P.W 1 and grandparents P.W.s 2 and 3 but also a distant relation P.W 5 who came to the spot and heard the incident from the victim. Hence, I find there is sufficient corroboration of the version of sexual assault upon the victim by the aforesaid witnesses.

It has been argued that the medical evidence does not support the prosecution case of rape.

Analysing the medical evidence on record, I note although the doctor (P.W. 7) found a cut or bite mark on external genitalia and pubic area of the victim, he opined that such injury may be due to deep rubbing on the vagina. In view of such opinion given by P.W 7, it is difficult to come to a conclusive opinion that there was penetration of the vagina of the victim. On the other hand, the medical evidence establishes a case of attempted rape on the victim.

Accordingly, I modify the conviction imposed upon the appellant and hold that he committed offences punishable under section 376/511 IPC and section 8 of the POCSO Act.

Coming to the issue of sentence, I modify the sentence imposed on the appellant and I direct that the appellant shall suffer rigorous imprisonment for eight (8) years and to pay a fine of Rs. 10,000/-, in default to suffer rigorous imprisonment for six months more for the offence punishable under section 376/511 IPC and shall suffer rigorous imprisonment for four (4) years and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for three months more for the offence punishable under section 8 of the POCSO Act. Both the sentences shall run concurrently.

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

Copy of the judgment along with L.C.R. be sent down to the trial court at once.

Appeal is, accordingly, disposed of.

Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.

I agree.