Sk. Aminul vs State of West Bengal

Sankar Acharyya, J.—Claiming himself aggrieved by and dissatisfied with the judgment dated 30.07.2010 of conviction and order dated 31.07.2010 of sentence of the charge under Section 376 (2) (f) of the Indian Penal Code (in short I.P.C.) passed by learned Sessions Judge, Purba Medinipur in Sessions Trial No. 14/December/2006 the appellant has preferred this appeal. In the impugned judgment the appellant was found guilty of the charge under Section 376 (2) (f) of the I.P.C. and thereby convicted and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 20,000/- and in default of payment of fine to suffer further rigorous imprisonment for one year with an order that if the fine amount is realised, 50% of the same will be remitted to victim deducting the money order charge.

In the first Court the appellant as accused was charged that on 23.02.2006 he committed rape of a minor girl (hereinafter called as victim girl) aged about 8 years at Chandir bazaar under P.S. Chandipur. He was tried on that charge which was framed on the allegation made in FIR lodged by the father of the victim girl at Chandipur P.S. on 24.02.2006 at 5:15 a.m. According to the FIR, on 23.02.2006 the victim girl (PW 2) along with her friend (PW 8) was returning home from school and on their way at about 3:15 p.m. the appellant called them to his shop. He gave one mug to PW 8 for fetching water from tube wall and after departure of PW 8 from the shop the appellant shut down the shutter of his shop. He caught hold of PW 2 and put off her pant. He kissed on the persons of PW 2 and putting off his own pant he attempted to penetrate his penis in the genital of PW 2 when she cried. Appellant threatened her to kill by throttling and PW 2 became silent. Then the appellant closed her mouth by hand and committed rape on her. At that time another shop keeper (PW 7) of that market called the appellant and the PW 2 was released by him with direction not to disclose the fact before others. Thereafter PW 2 went to a pond and washed her pant beside their house which was noticed by her mother (PW 6). On her mother''s interrogation she narrated the fact to PW 6. In the night her father (PW 1) returned home and he was apprised about the incident by his wife (PW 6). Then with the help of neighbours the PW 1 searched out and apprehended the appellant and on their interrogation the appellant made confession of his guilt before them. In the following morning PW 1 produced the appellant at Chandipur P.S. and lodged the FIR (exhibit- 1) at 5:15 a.m.

Police investigated the case and submitted charge sheet against the accused appellant. On the very date of lodging FIR the statement (exhibit- 4) of the victim girl (PW 2) was recorded by learned Judicial Magistrate (PW 3) under Section 164 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) and wearing apparels of PW 2 were seized under a seizure list on which PW 1 and PW 5 put their signatures (exhibits 2 and 2/1 respectively). With the written consent (exhibit- 3) of parents of PW 2 medical examination of PW 2 was done by PW 11 (report of such examination is exhibit- 5) on 02.03.2006. For ascertaining the age of PW 2 she was examined by PW 14 on 09.03.2006 (report is exhibit- 8). PW 12 examined the accused appellant on 03.03.2006 to ascertain his capability for performing sexual intercourse (report is exhibit- 6). During trial, fifteen witnesses were examined by prosecution. Accused appellant was examined under Section 313, Cr.P.C. The appellant did not adduce any evidence. In trial, the first investigating police officer (in short I.O.) could not be examined as witness due to his death.

Defence of the accused appellant during trial was outright denial of the allegations brought by prosecution excepting the facts that the appellant has a shop at Chandir Bazar, the PW 2 is a minor girl, the appellant was apprehended by PW 1 and others in the night of 23.02.2006 and 24.02.2006 and was produced at Chandipur P.S. in the morning of 24.02.2006 and the appellant is capable to perform sexual intercourse. His specific defence is that he has been falsely implicated in the case out of political rivalry. Appellant remains on bail as per order dated 22.09.2011 passed in this appeal. The appellant has prayed for setting aside the impugned judgment of conviction and sentence and for his acquittal of the charge framed against him.

Among the fifteen witnesses of prosecution PW 2 is the victim girl, PW 1 is her father, PW 6 is her mother and PW 8 is her friend with whom she was returning home from school at the relevant time of occurrence. PW 7 has shop near the shop of appellant and said PW 7 was declared hostile during trial. PW 3 recorded statement of PW 2 under Section 164, Cr.P.C. At the relevant time PW 4 was Panchayat Pradhan and he claimed that the occurrence was narrated by PW 1 to him on his coming to the house of PW 1 on call by PW 1. Similarly PW 9, PW 10 and PW 5 were also informed about the incident by PW 1 as claimed by said witnesses. PW 5 accompanied PW 1 at the time of apprehending the accused appellant. PW 11, PW 12 and PW 14 are medical officers. PW 13 and PW 15 are police officers.

At the time of hearing this appeal learned counsel for the appellant argued that the PW 2 is the most vital witness of prosecution but although the admitted position is that at the time of alleged occurrence she was only eight years old and when she was examined in witness box during trial she was ten years old her capacity of understanding the questions and of giving rational answers to such questions was not tested properly under Section 118 of the Evidence Act. His further arguments on this point is that unless PW 2 was tutored by her father and other interested persons she would not be able to speak about penetration of penis to her vagina. He claimed that PW 2 cannot be treated as a trustworthy witness. In order to fortify his arguments he relied upon two decisions of the Supreme Court in the cases of Ratansinh Dalsukhbhai Nayak v. State of Gujarat reported in (2004) 1 SCC 64 and Dattu Ramrao Sakhare v. State of Maharashtra reported in (1997) 5 SCC 341. He also cited a decision of Gauhati High Court in the case of Kabiraj Tudu v. State of Assam reported in 1994 Cri.L.J. 432. On the other hand learned counsel for the State advanced his arguments that not only the PW 2, the PW 8 is also a child witness of the prosecution. Drawing our attention to the depositions of said two witnesses he argued that before recording examination-in-chief and cross-examination the PW 2 and PW 8 were tested by the trial Court for testing their capacity of understanding and of giving rational answer and on being satisfied the trial Court recorded their evidence. That apart, both the said witnesses gave rational answers to all the questions put to them in lengthy cross-examination. He pointed out a demeanour of PW 2 noted during her cross-examination, PW2 was asked by learned cross-examining lawyer that who taught her to say filthy words before learned Magistrate and after hearing such question PW 2 became excited then and there and she replied promptly that nobody tutored her and she stated before the learned Magistrate those facts which happened. Learned counsel for the state advanced his arguments that ratio of the decisions cited by learned counsel for the appellant is not against the prosecution in this case under appeal according to its facts, circumstances and evidence of PW 2 and PW 8. According to him, the principles of law about recording of evidence of child witness have been followed during trial as discussed in paragraphs 6 and 7 of (2004) 1 SCC 64 (Supra), paragraph 5 of (1997) 5 SCC 341 (Supra) and paragraphs 9 and 10 of 1994 Cri.L.J. 432 (Supra).

Having careful consideration on the totality of evidence of witnesses recorded during trial we are not satisfied to accept the arguments of learned counsel for the appellant relating to reliability of child witnesses in the case under appeal. We accept the arguments of the learned counsel for the State and we hold that at the time of recording evidence of child witnesses the principles of law discussed in the cases cited by learned counsel for the appellant were not violated. We are also convinced that the trial Court in the impugned judgment had borne in mind at the time of assessing the evidence of PW 2 and PW 8 that the witnesses must be reliable and their demeanour must be like any other competent witness and there is no likelihood of being tutored. We like to point out that soon after starting the case at Chandipur P.S. the PW 2 was produced before Court for recording her statement under Section 164, Cr.P.C. and such statement (exhibit- 4) was recorded by PW 3 after testing her capacity of understanding and on being satisfied about rationality in her answers to the questions of PW 3. As such, we cannot and we do not believe from the circumstances that PW 2 was tutored by anybody before producing her for recording exhibit- 4. In the same tune of exhibit- 4 she deposed as PW 2 in Court and had faced a lengthy cross-examination giving rational answers to each question put to her. It has been submitted before us by learned counsel for the appellant that in exhibit- 4 it was not stated by PW 2 that the accused/appellant gave 50 paisa also to PW 8 but during trial she made such statement as PW 2 and she stated that she did not make such statement before learned Magistrate. In our view it is not a contradiction touching the very root of the prosecution case but is an omission of PW 2 to mention at the time of recording her deposition that she mentioned it before PW 3. Significantly, it is mentioned here that it reveals from exhibit- 4 that PW 2 stated before PW 3 that opening the shutter the accused/appellant gave 50 paisa to PW 8 and asked her to go away. As per exhibit- 4, the PW 2 suffered pain on her private parts and sustained bleeding therefrom due to the incident of ravishing her by accused/appellant. During cross-examination of PW 1 he stated that PW 6 told him that the private parts of PW 2 became reddish and blood was oozing out therefrom. Learned counsel for the appellant argued that the medical officer (PW 11) did not corroborate any sign of rape on PW 2. Learned counsel for the State submitted that the PW 2 was medically examined on 02.03.2002 by PW 11 and as such the sign of rape on the persons of PW 2 disappeared by the passage of time of seven days from the date of occurrence. He further submitted that even when the PW 11 did not get sign of rape on PW 2, the PW 11 on examination of PW 11 medically on 02.03.2006 did not rule out the possibility of the incident of rape on PW 2 on 23.02.2006 as appears from the evidence of PW 11 and exhibit- 5. On this point we are satisfied to accept the arguments advanced on behalf of the State.

Regarding corroboration to the victim girl (PW 2) learned counsel for the appellant advanced his arguments that according to prosecution case the PW 7 is a vital witness as at his instance the appellant opened the shutter of his shop as alleged but the PW 7 did not corroborate such incident and he stated that at the relevant time of alleged incident he was in his house and not in his shop. He further argued that PW 4, PW 5, PW 9 and PW 10 deposed to corroborate the PW 1 as well as the prosecution case but significantly they belong to the same political party to which PW 1 belongs and it is evident from their depositions that the appellant belongs to rival political party and it is probable that the appellant has been falsely implicated due to political rivalry. Learned counsel for the State advanced his arguments that PW 2 was fully corroborated by PW 8 about the incidents occurred at the time of their returning home from school. He submitted that soon after the incident PW 2 narrated the incident of rape to PW 8 first and then to PW 6 who is mother of PW 2. The PW 6 fully corroborated the PW 2. He further submitted that by no stretch of imagination it can be believed that being parents the PW 1 and PW 6 would set up their growing daughter to make false imputation on the appellant due to the reason that the appellant belongs to opposite political party of PW 1. He further submitted that PW 7 turned hostile during trial avoiding his role in the occurrence as stated by PW 2 and the PW 7 stated that he heard that the appellant raped the PW 2. He submitted that the PW 7 was examined by PW 15 during investigation and statement of PW 7 was recorded under Section 161, Cr.P.C. and during trial the PW 15 stated the version of PW 7 recorded by him which is corroborative to the depositions of PW 2 and PW 8. Considering the above arguments and the evidence adduced during trial we are not satisfied that the totality of the evidence brought by prosecution during trial casts any reasonable doubt against the prosecution case.

At the time of hearing this appeal learned counsel for the State advanced his arguments that to constitute an offence of rape full penetration is not essential and in the absence of rupture of hymen of the PW 2 it cannot be said that she was not raped. He further submitted that although in a case with charge of rape evidence of the victim even without corroboration is sufficient to bring home the charge against accused but in the instant case there is sufficient corroboration to the victim girl (PW 2) by PW 8, PW 6, PW 1 and other witnesses and therefore, the guilt of the accused was successfully proved by prosecution against the accused beyond any shadow of doubt. In support of his arguments he relied on three decisions of the Hon''ble Supreme Court in the cases of Ranjit Hazarika v. State of Assam reported in (1998) 8 SCC 635, State of Punjab v. Gurmit Singh and Others reported in (1996) 2 SCC 384 and Madan Gopal Kakkad v. Naval Dubey and Another reported in (1992) 3 SCC 204. In our view the said citations are appropriate to fortify the prosecution case under this appeal. In paragraph 38 in the case reported in (1992) 3 SCC 204 (Supra) a passage has been quoted from Parekh''s Textbook of Medical Jurisprudence and Toxicology which is also quoted by us as -

"Sexual intercourse. - In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains".

In the impugned judgment learned Sessions Judge dealt with all the matters taking into consideration the facts, circumstances, evidence on record and the law on the subject and held that the charge under Section 376 (2) (f) of the I.P.C. has been brought home to the accused beyond all reasonable doubt and as such the accused/appellant was convicted and sentenced of the said charge. We do not find reason to differ with such findings of the trial Court and we are satisfied to uphold the impugned judgment.

As a result, this appeal is dismissed. The impugned judgment and orders of conviction and sentence of the appellant is confirmed.

Since the appellant was released on bail during pendency of this appeal the order granting his bail is hereby cancelled. The appellant is directed to surrender in the trial Court within seven days hereof for his serving out the remaining part of sentence. On his such surrender learned Sessions Judge, Purba Medinipur shall take him into custody and shall pass necessary order for completion of his serving out the remaining part of sentence. In case of his failure to surrender as aforesaid learned Sessions Judge shall pass necessary order to secure his attendance in the trial Court without any reference to this Court.

A copy of this judgment along with L.C.R. be sent to the trial Court.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties or their advocates on record promptly in compliance of requisite legal formalities.

Aniruddha Bose, J. - I agree.