Mintu Banik vs State of West Bengal

Jay Sengupta, J.

This appeal is directed against the judgment and order of conviction dated 8th June, 2006 and sentence dated 9th June, 2006 passed by the learned

Additional Session Judge, Fast Track 2nd Court Alipurduar, Jalpaiguri in Session Trial No. 11/2006 : Session Case No. 173/2005, thereby convicting

the accused appellant Mintu Banik for committing an offence under Section 376 (2) (f) of the Indian Penal Code and sentencing him to imprisonment

for life and to pay a fine of Rs. 50,000/-, in default to suffer further rigorous imprisonment for three years. In the event of realisation of fine, 90 per

cent of the same was directed to be paid to the victim girl in terms of Section 357 of the Code of Criminal Procedure. This is a case where the

appellant father was convicted for ravishing his own minor daughter.

The mother of the victim girl and wife of the appellant lodged the First Information Report on 26th August, 2005 at about 13.35 hours alleging that

her 10 years old daughter was raped by the appellant on 13th August, 2005 at about 8 hours. She alleged that in the 11 years of her marriage she gave

birth to three daughters, the victim being the eldest one aged about 10 years. She stated that her husband was engaged in electrical job. Due to

poverty she had to take up a job in a nursing home. She used to go out in the early morning and return home at about 8 P.M. The victim used to go to

school at 7 A.M and return home at 9 A.M or 10 A.M. At that time the appellant used to close windows of the room and when their daughter entered

he used to shut the door and used to rape her on the mat kept on the floor by threatening her with dire consequences with a sharp chopper kept by his

side. He had been doing so for the last two months.

On 13th August, 2005 when the informant became ill and went to her maternal home accompanied by the victim, there at about 8 A.M she sent the

victim to her husband to bring some money for purchase of medicines. The victim first went to her aunt PW 3. Thereafter, as soon as victim entered

into the appellant’s room, he forcibly brought her below the ‘chowki’ and began to rape her. He threatened her not to disclose the matter or

else he would kill her with a chopper. But, the victim disclosed the matter to her eldest aunt PW 3, who in turn, intimated the same to the mother PW

Since then the de facto complainant kept her daughter with her eldest uncle PW 8 and informed the matter to all her family members. At this the

appellant became angry and came to beat her. Lastly on 22nd August, 2005 at about 1.30 A.M the appellant asked PW 2 to call the victim. When she

refused, the appellant attacked her with fists and blows and threatened to cut her down with a chopper. Being unable to bear such intolerable crimes,

PW 2 decided to file the First Information Report. But, due to illness, she was late in informing the police.

After registration of the First Information Report, investigation started. The accused appellant was arrested. The victim was medically examined by

a doctor (PW 9). Her statement under Section 164 of the Code was also recorded by a learned Magistrate (PW 17). A charge-sheet was submitted

and finally a charge was framed against the appellant on 8th March, 2006 for commission of an offence under Section 376 (2) (f) of the Penal Code.

During trial the prosecution examined as many as 18 witnesses to establish its case. From the trend of cross-examination of prosecution witnesses

and examination of the accused under Section 313 of the Code, the defence case appears to be that of a denial of the prosecution case.

PW 1 was the victim in this case. She was a minor daughter of the appellant and the de facto complainant. The victim clearly supported the First

Information Report. She deposed that her mother usually attended her duty from 8 A.M to 8 P.M. She used to go to school at about 7A.M and came

back around 9 A.M. She categorically alleged that her father the appellant after closing the windows and the door of their house had been raping her

for about two months. She gave graphic details of what the appellant used to do. The appellant committed such offence on her lastly on 13th August,

2005. She reported this crime to her mother and to her eldest aunt. She deposed that immediately after the offence on 13th August, 2005 she reported

it to her eldest aunt. After about 13 days of the last incident they reported the matter to the police. She was medically examined and also made a

statement before the Learned Magistrate. In the cross-examination PW 1 stated about quarrels between her parents. The appellant used to threaten

her with a Dao. As she was put to fear she could not disclose the incident initially to anyone but thereafter, she disclosed it to her mother and her

eldest aunt. She deposed that first her eldest aunt did not believe her. Later, she advised her to cry if the appellant tried to do any bad thing. But, she

had no chance of crying in the course of the incident. She stated that her mother became ill and was admitted in hospital. She further admitted that for

the incident of 13th August, 2005, it was her mother who disclosed it to the eldest aunt. PW 1 also stated that after filing of the case she and her

mother lived with the appellant.

PW 2 was the mother of the victim and the de facto complainant of the case. She deposed that she became seriously ill and was admitted in

hospital. She had to send the victim to the appellant to bring money from him. On that night the victim’s eldest aunt visited PW 2 at the hospital

who disclosed that the victim had been raped by the appellant. When PW 2 went back from the hospital, she made arrangements for the stay of the

victim at the house of the eldest aunt. Thereafter one night the appellant assaulted her and committed serious ill-treatment. In the cross-examination

PW 2 deposed that she had given her youngest daughter to a person in Cooch Behar by way of adoption.

PW 3 was the eldest aunt of the victim and the sister-in-law of the appellant. She deposed that on 13th August, 2005 when she went to the hospital

to see PW 2, PW 2 disclosed her that the appellant was committing torture upon the victim in the form of rape for quite a few days. PW 1 the victim

also reported to her about such incident on the last occasion. Subsequently, an arrangement was made to keep the victim in her house. She deposed

that in the night of 22nd August, 2005 there was a quarrel and altercation between the appellant and his wife PW 2. PW 2 reported to her that on that

night the appellant demanded that the victim be brought back in their house. She also deposed that the victim told her about the appellant threatening

her with a Dao. In the cross-examination PW 3 admitted that PW 2 told her about the incident for the first time on 13th August, 2005 when she was in

hospital. She deposed that in the noon of 13th August, 2005 the victim had seen her in their house while she came to fetch money from her father for

the treatment of her mother. She corroborated the victim that the third child of the couple was given in adoption to a man in Cooch Bihar.

PW 4 was a relation of the appellant who was declared hostile. But, he admitted that PW 2 had disclosed to him about her husband committing rape

upon the minor daughter. PW 5 another relation also deposed that PW 2 had told her about the appellant committing rape upon their daughter on 13th

August, 2005. Another relation PW 6 disclosed the fact about PW 2 reporting to him about heinous crime committing by the appellant. PW 7 learnt

about the allegations from PW 8, a relation of his. PW 8 the elder brother of the appellant also supported the prosecution case. He deposed that on

13th or 14th August, 2005 he found the victim weeping and the victim told him that when she came to collect money for her mother’s treatment,

the appellant ravished her by keeping at Dao by his side. She signed in seizure list for the birth certificate of the victim. PW 10 was the maternal

grand-mother of the victim. She deposed that the victim had disclosed her about the appellant committing rape on her.

PW 9 was the doctor who examined minor victim. In his opinion there was no forceful attempt of coitus and he found no injuries on the private

parts.

PW 11 is the doctor who examined the appellant. In his opinion the appellant could not be declared incapable of doing sexual inter course.

PW 12 was a seizure list witness to the seizure of victim’s birth certificate. PW 13 is the Police Officer who received and recorded the First

Information Report in the case. PW 14 was another witness to the seizure of the victim’s birth certificate. PW 15 was the Inspector-in-Charge

who endorsed the case for investigation to the Investigation Officer. PW 16 typed the complaint (Ext. 2) at the instance of the de facto complainant as

drafted by one Manoranjan Sarkar, a law clerk. PW 17 was the learned Magistrate who recorded the statement of the victim under Section 164 of the

Code. In such statement the victim had categorically made the allegations of rape against the appellant. PW 18 was the Investigating Officer of the

case.

Mr. Subir Ganguly, the learned Advocate appearing on behalf of the Appellant submitted that the medical evidence did not support the ocular

version of the victim and the prosecution case for that matter. He contended that this evidence of PW 9, the doctor who examined the victim girl, that

there was no injury on the victim daughter and her hymen was intact totally demolished the prosecution case. He submitted that there were

discrepancies between the evidence adduced by the PWs 1, 2 and 3, especially about to whom and when did the victim girl first disclose about the

incident of rape. The learned Advocate lastly contended that the sentence of life imprisonment imposed on the appellant father was too harsh.

Mr. Prabhas Bhattacharaya, the learned Advocate appearing on behalf of the State strongly supported the conviction and sentence passed in this

case. He submitted that even a slightest penetration is sufficient to constitute rape. The minor child might not suffer any injury and her hymen might

remain intact in such event. He also contended that witnesses need not repeat verbatim the facts stated by another. If at all any inconsistency was

there, it was not material so as to weaken the prosecution case. He also pointed out that since the appellant was arrested very fast and had been in

custody since then, the victim’s statement that they all lived together even after the incident, may not be interpreted literally.

We have given our thoughtful consideration to the submissions advanced by the learned Advocates for the parties and have carefully perused the

evidence and materials on record.

PW 1, the victim girl was about 10 years old when her father the appellant allegedly committed rape on her. She had given vivid and painful details

of the torture committed by her father on her. It was quite natural for her first not to disclose it and so she took some time to muster courage and

come out of her disturbed shell to disclose the truth. In fact, first PW 3 did not even believe her. But later on she advised the child to scream or cry

whenever the father tried such abominable acts. There is no evidence that the child had any special animus towards her father so that she would go to

such an extent as to lie about being ravished by her own father. In fact, the family was in such poor shape that the dependants could not be without

the appellant’s income. So, PW 2 the mother sent the victim to the appellant to bring money for her treatment on 13th August, 2005 and even on

that day the appellant could not resist himself from raping his own daughter. The victim’s testimony could not be shaken in Court. Her evidence is

corroborated by the statement recorded by PW 17, the learned Magistrate under Section 164 of the Code. This is a fit case where conviction and

sentence can be based on the sole testimony of the minor prosecutrix.

The little delay in lodging the FIR by PW 2 has been satisfactorily explained. First, there is ample evidence to support her explanation that she was

ill at the time. In fact, she was hospitalised as would be evidence from the deposition of PW 3. It also appears that due to poverty, the victim’s

mother PW 2 used to work in a nursing home and even after learning that the appellant was raping their minor daughter, she could not afford to

complaint, but to save her daughter, she arranged for her stay elsewhere. It was only after the appellant insisted that the victim child be brought back

implicitly so that he could satisfy his incestuous lust and perversion and the appellant even beat up the wife that the wife PW 2 decided to lodge a

complaint.

The purported discrepancy about to whom the victim child first disclosed the incident and when, the alleged inconsistency is not clearly made out.

Even, if it were there, the same would be too minor and inconsequential in the face of the evidence of the victim child and other witnesses.

PW 2, the mother and PW 3, the eldest aunt of the victim child deposed that the victim had intimated them about the commission of rape by her

father on her. PWs 2 and 3 gave credible accounts of their interactions with the victim, which could not be shaken in the cross. PW 8, the elder

brother of the appellant and PW 10, the maternal grandmother of the victim child also deposed about hearing, about the rape from the child. PW

8’s evidence is very important as he was the brother of the appellant and heard about such crime from the victim immediately after the incident on

13th / 14th August, 2001 when he found the victim weeping. Moreover, PW 4, although hostile and PW 5 and PW 6 deposed that PW 2, the mother of

the victim had disclosed them about the factum of rape after the incident.

Now, coming to the question of medical evidence, first it was rightly pointed out by the learned Advocate for the State that even the slightest

penetration would constitute the offence of rape. If one carefully looks at the details given by the victim child, it is clear that the appellant was more in

the habit of committing perverted acts with utter impunity and these would obviously cause some kind of penetration, but may not leave a mark of

injury. It is quite well settled that a hymen may not rupture in all cases. Due to relative elasticity, a rape may not necessarily cause rupture of hymen

especially in children. Furthermore, it has come in the evidence that the appellant used to rape the victim by giving out a fear of threat of dire

consequences and by keeping a “dao†by his side. If the victim is compelled to yield to the violator due to fear, she may not suffer any other

external injury as a consequence of rape. Therefore, upon a careful perusal of the medical evidence, it does not appear that it militates against the

prosecution case.

On the question of sentence, Section 376 (2) (f) of the Penal Code envisages imposition of life imprisonment. This is a case where a father is

alleged to have repeatedly raped his minor daughter and have shamelessly faught with his wife to get the child back from an alternative arrangement

for stay so that he could continue to satisfy his incestuous and paedophilic lust by forcing himself upon her own minor daughter. If this not a fit case

for imposition of maximum punishment, then one wonders what is. We cannot be guided by any misplaced sense of sympathy and award a flea-bite

sentence in this case.

In view of the above discussions, we are of the opinion that the prosecution has been able to prove its case beyond all reasonable doubts and the

Trial Court was also absolutely right in awarding the conviction and sentence. Accordingly, we dismiss the appeal being C.R.A No. 851 of 2006 and

affirm the impugned judgment and order of conviction and sentence passed by the learned Trial Court.

Let a copy of this judgement along with the lower Court records be sent down to the learned Trial Court forthwith for information and necessary

action.

Urgent certified copies of the judgment may be supplied to the parties, if applied for, upon compliance of all formalities.