Swapan Mondal vs The State of West Bengal

R.K. Bag, J.—1. This appeal arises out of judgment and order dated May 24, 2013 passed by learned Additional Sessions Judge, 2nd Fast Tract Court, Jangipur in Sessions Trial No. 8th February, 2008 arising out of Sessions Case No. 7/2008, by which learned Judge of the trial Court sentenced the appellant to suffer rigorous imprisonment for 5 years and to pay fine of Rs. 1000/-, in default to suffer simple imprisonment for one month for the offence under Sections 376(2)(f)/511 of the Indian Penal Code and also to suffer imprisonment of one year for the offence under Section 354 of the Indian Penal Code.

The backdrop of conviction and sentence of the appellant is as follows:--

"On January, 29, 1999 at about 9 O''clock in the morning the victim girl aged about 10 years was alone in her house, when her parents were working in the nearby field. At that time, the appellant about 19 years old, who happens to be co-villagers of the victim, entered into the house of the victim, dragged her inside the room and made her lie down on the wooden cot. The appellant pressed cloth in the mouth of the victim, so that she may not raise any alarm. The appellant also threatened the victim with a knife. Thereafter, the appellant made the victim forcibly naked and tried to commit sexual intercourse on the victim against her will. The victim managed to remove the cloth from her mouth and raised alarm. Hearing alarm, the neighbours turned up on the place of occurrence and the appellant fled away. The victim narrated the incident to her father immediately after arrival of the parents in the house from the field."

The father of the victim filed written complaint before the Officer-in-Charge, Raghunathganj Police Station on January 29, 1999 and on the basis of the said written complaint Raghunathganj Police Station Case No. 26 of 1999 dated January 29, 1999 came into existence. The father of the victim narrated the incident in a written complaint as an attempt to commit rape and as such criminal case was started against the appellant under Sections 376/511 of the Indian Penal Code. The police investigated the said criminal case and submitted chargesheet before the competent Court of learned Magistrate. The case was committed to the Court of Sessions. The learned Additional Sessions Judge, 3rd Fast Track Court, Jangipur framed charge against the appellant on the allegation of committing offence under Section 376(2)(f)/511 and Section 354 of the Indian Penal Code. Having heard learned Advocates and on consideration of the evidence on record, learned Judge of the trial Court convicted the appellant for both the offences and imposed sentence of term imprisonment for five years for the offence under Sections 376(2)(f)/511 of the Indian Penal Code and imprisonment for one year for the offence under Section 354 of the Indian Penal Code. I am informed that the appellant is detained in custody since May 24, 2013 and the sentence was not suspended during pendency of the appeal.

Mr. Kushal Kumar Mukherjee, learned Counsel for the appellant contends that there is delay of eight days in sending copy of FIR to the Court of learned Magistrate and the said delay has not been explained by the prosecution and thereby the provision of Section 157 of the Code of Criminal Procedure is violated. By referring to the evidence of the victim girl (P.W. 3) and her statement recorded under Section 164 of the Code of Criminal Procedure (Ext. 1/3), Mr. Mukherjee submits that the victim has specifically stated that the appellant inserted penis in the private parts of the victim, but the medical reports of examination of the victim girl (Ext. 3 and Ext. 6) indicate that there is no injury on the private parts of the victim. According to Mr. Mukherjee, the absence of injury in the private parts of the victim raises suspicion about the statement of the victim girl with regard to commission of the offence of rape. The next submission of Mr. Mukherjee is that the victim girl has given her statement with regard to commission of rape, when the contents of the written complaint treated as an F.I.R. disclose that the appellant committed the offence of attempt to rape. By referring to the cross-examination of the father of the victim (P.W. 4), Mr. Mukherjee argues that the father of the victim has improved upon his statement given before the Investigating Officer during investigation of the case. He has also argued that the aunt of the victim (P.W. 5) is totally unreliable witness, as she has candidly admitted during cross-examination that she did not disclose the facts narrated during evidence-in-chief before the Investigating Officer during investigation of the case. He has further pointed out from the evidence of the mother of the victim (P.W. 8) that her evidence with regard to the incident of rape must go down as hearsay, because she claimed to have heard about the said incident from her daughter, whereas the victim did not disclose in the evidence that she narrated the incident to her mother (P.W. 8). Mr. Mukherjee has also urged this Court to consider whether the sentence imposed on the appellant can be reduced on consideration of young age of the appellant.

Mr. Ayan Basu, learned Counsel assisted by Mr. Saryati Datta, learned Counsel appearing for the State contends that the delay in sending copy of F.I.R. to learned Magistrate will not be fatal to the prosecution, because no suggestion is given to the Investigating Officer (P.W. 13) on behalf of the appellant that the F.I.R. of the instant case is antedated. Mr. Basu submits that the victim girl (P.W. 3) has given consistent statement during the evidence before the trial Court and also in her statement before the learned Magistrate under Section 164 of the Code of Criminal Procedure. He further argues that the victim girl (P.W. 3) never stated in her evidence that injury was caused in her private parts or she suffered from bleeding for commission of rape by the appellant, and as such absence of injury in the private parts of the victim as reflected in two reports of medical examination of the victim cannot have any adverse effect on the evidence of the victim girl. He argues that the criminal case was started against the appellant on the allegation of committing an offence of attempt to rape, though the evidence of the victim girl (P.W. 3) indicates that the offence committed by the appellant is punishable under Section 376(2)(f) of the Indian Penal Code. He further argues that the evidence of the mother of the victim girl (P.W. 8), the father of the victim girl (P.W. 4) and the aunt of the victim (P.W. 5) cannot have much bearing on the prosecution case which is proved from the evidence of the victim girl (P.W. 3) and other evidence. According to Mr. Basu, the sentence imposed by learned Judge of the trial Court for two different offences should run consecutively, as learned Judge of the trial Court has not specifically mentioned in the order that both the sentences will run concurrently.

With regard to delay of eight days in sending copy of F.I.R. to the learned Magistrate, I find that the Investigating Officer (P.W. 13) has not explained the delay during his evidence before the trial Court. However, no suggestion is given to the said Investigating Officer (P.W. 13) that the F.I.R. of this case was antedated. It is proved beyond doubt by the prosecution that the incident took place on January 29, 1999 at about 9 O''clock in the morning and the incident was reported to the police on the same day at about 4.05 p.m. Since there is no scope of registration of antedated F.I.R. in the instant case, the delay of eight days in sending the copy of F.I.R. to the learned Magistrate cannot be fatal to the prosecution.

It transpires from the evidence of the victim girl (P.W. 3) that on the date of the incident at about 9 O''clock in the morning the appellant entered into her house, dragged her inside the room and made her lie down on the wooden cot and thereafter she was stripped off. The victim girl has specifically stated how the appellant tried to commit sexual intercourse under threat and by putting cloth inside the mouth of the victim. The statement given by victim girl before learned Judicial Magistrate under Section 164 of the Code of Criminal Procedure (Ext. 1/3) has corroborated the evidence of the victim girl (P.W. 3). The father of the victim girl (P.W. 4) has narrated the same incident in his evidence before the Court and also in the written complaint treated as F.I.R. (Ext. 2). It is true that the father of the victim (P.W. 8) has made some exaggerated statements with regard to the incident, which cannot negate the incident of attempt to commit rape. What has been told by the father of the victim girl (P.W. 4) and the mother of the victim girl (P.W. 8) was heard by them from their daughter i.e. the victim girl. It is true that the victim girl did not disclose in her evidence before the Court that she narrated the incident to her mother, though the mother (P.W. 8) has stated in her evidence that she heard about the incident from the victim i.e. her daughter. It is quite natural that both the parents had the opportunity to hear the incident from the victim girl (P.W. 3), when they came back from the field after hearing the alarm raised in the house. The omission on the part of the victim girl (P.W. 3) to state that she disclosed the incident of rape to the mother cannot be considered seriously to brand the evidence of the mother of the victim girl (P.W. 8) as hearsay as contended on behalf of the appellant. However, the evidence of the aunt of the victim (P.W. 5) must go down as hearsay evidence, as she has candidly admitted during her cross-examination was that she did not disclose the statement given during her evidence-in-chief before the Investigating Officer during investigation of the case.

The victim girl was medically examined by P.W. 9 on the date of the incident that is January 29, 1999 and by P.W. 11 on March 9, 1999. Both the reports of medical examination of the victim (Ext. 3 and Ext. 6) indicate that the victim girl was ten years old, that her hymen was not ruptured and that she did not sustain any injury on her private parts. The consistent evidence of the victim girl (P.W. 3) during investigation under Section 164 of the Code of Criminal Procedure and during her evidence before the trial Court is that the appellant inserted his private parts in the private parts of the victim, but the appellant fled away as she could raise the alarm after removing cloth from her mouth. With the background of the report of medical examination of the victim, I find the evidence of the victim girl (P.W. 3) as credible and trustworthy. Since there was no injury in the private parts of the victim girl at the time of commission of offence by the appellant, learned Judge of the trial Court has rightly held the appellant guilty for commission of offence of attempt to commit rape. In view of above findings I cannot persuade myself to interfere in the judgment and order of conviction passed by the learned Judge of the trial Court.

With regard to the sentence imposed on the appellant I would like to consider the contention made on behalf of the appellant on consideration of the young age of the appellant. The sentence prescribed for the offence under Section 376(2)(f) of the Indian Penal Code is rigorous imprisonment for a term which shall not be less than ten years, but which may extend upto imprisonment for the life and also fine. On perusal of the provision of Section 511 of the Indian Penal Code, I find that the half of the longest term of the imprisonment provided for the offence under Section 376(2)(f) of the Indian Penal Code may be imposed for attempt to commit the said offence. The life imprisonment may be construed as 20 years as laid down in Section 57 of the Indian Penal Code. Since the appellant was convicted for the offence under Section 376(2)(f) read with Section 511 of the Indian Penal Code, the maximum sentence which can be imposed on the appellant is ten years which is half of the amount of life imprisonment, in terms of Section 57 of the Indian Penal Code. The appellant is sentenced to suffer imprisonment for five years, which is half of the maximum sentence which could have been imposed on the appellant and as such I am not inclined to reduce further the amount of sentence imposed on the appellant by the trial Court. However, I would like to hold that the sentence imposed on the appellant for the offence under Sections 376(2)(f)/511 of the Indian Penal Code and the sentence imposed on the appellant for the offence under Section 354 of the Indian Penal Code will run concurrently, as both the offences arose out of the same incident.

As a result the appeal is dismissed. The judgment and order dated May 24, 2013 passed by learned Additional Sessions Judge, 2nd Fast Track Court, Jangipur in Sessions Trial No. 8th February, 2008 arising out of Sessions Case No. 7/2008 is hereby affirmed. The sentence imposed on the appellant is also confirmed, except that the sentence imposed for both the offences will run concurrently.

The Department is directed to send down a copy of this judgment along with Lower Court Records to the trial Court for favour of information and necessary action.

Urgent photostat certified copy of this order, if applied for, be given to the learned counsel for the parties on priority basis upon compliance of all formalities.