Calcutta High Court (Appellete Side)
Dwijen Chowdhury vs The State Of West Bengal ... Opposite ... on 13 September, 2010
Bench: J. N. Patel, A. K. Roy
1
01 13.09.10 C.R.A. 134 of 2008
In the matter of : Dwijen Chowdhury ......petitioner/s (in
Jail)
Vs.
The State of West Bengal ... Opposite Party.
Mr. Prabir Majumder ......... for the Appellant.
Mr. Asimesh Goswami ......... for the ld. Public
Prosecutor
Ms. Shilpi Sengupta
Ms. Mala Mitra ......... for the State.
Coram - J. N. Patel, CJ. & A. K. Roy, J.
per : J. N. Patel, CJ.
By judgment and order dated 14th December, 2007, the Additional Sessions Judge, F.T. Court, Malda held the appellant guilty and convicted him on a charge of having committed rape on a minor girl in S.T. No. 59 of 2007. Hence this appeal.
The Additional Sessions Judge found the appellant/accused guilty of having committed an offence of rape under Section 376 IPC and sentenced him to suffer imprisonment for 10 years subject to the provision of Section 428 Cr.P.C. and pay compensation to the tune of Rs. 5000/- to the victim in default S.I for six months.
In nutshell it is the prosecution's case that Batorani Chowdhury (P.W. 1), daughter of Sudam Chowdhury who was 7 years old came to be raped at about 8 P.M. on 20.4.2001 at Kuchahi, Kalitala by the accused Dwijen Chowdhury, Batorani went alongwith her mother Reshmi Chowdhury (P.W. 2) to attend a marriage ceremony in the house of Rajen Chowdhury. The incident came to light when the victim Batorani (P.W. 1) was found crying by her mother and on enquiry she told her mother that she has 2 been ravished by Dwijen Chowdhury. Therefore, she took her daughter to her house put her on bed and went to Dwijen Chowdhury to enquire about the incident who misbehaved with her. On the following morning, she went to the Police Station, Ratua and lodged her report. The victim girl was sent for medical examination and also for ossification test, the Police after completing the investigation filed chargesheet against the appellant/accused Dwijen Chowdhury.
During the trial, the prosecution examined in all 10 witnesses including the Investigating Officer the plea of the accused in defence appear to be that of denial. The trial court found that the prosecution has established that the appellant has committed rape and that is how the appellant came to be convicted and sentenced.
The learned Counsel for the appellant/accused submitted that the prosecution case suffers from various deficiencies like delay in reporting the matter to the Police, non-examination of Haren Doctor where the victim was taken immediately. It is contended that the conduct of the victim girl will go to show that the prosecution has failed to prove the case beyond shadow of doubt. In the alternative, it is submitted that at the most the appellant/accused can be said to have committed offence of attempt to commit rape, in absence of the victim girl having narrated the incident without giving details and by just saying "he thereafter raped me". Therefore, in absence of prosecution proving penetration, the victim appellant/accused can at the most be convicted for an attempt under Section 511 read with Section 376 of IPC for having ravished the girl. It is, therefore, submitted that the appeal be allowed and the appellant/accused be set free as he has already undergone more than 3 years of imprisonment.
3On the other hand, the learned Public Prosecutor submitted that the prosecution has examined the prosecutrix, her mother, and the persons who were present in the marriage ceremony so also the Medical Officers who examined the prosecutrix as well as conducted ossification test. It is submitted that the prosecution having established the case beyond doubt the appeal deserves to be dismissed.
The only point which arises for determination is whether the prosecution has proved that the appellant/accused raped the victim Batorani Chowdhury who was a minor at the time of the incident.
The star witness in the case is Batorani Chowdhury, daughter of Sudam Chowdhury. In her evidence before the Court, the victim has narrated the incident by stating that when she has gone to wash her hands after having meals in the marriage ceremony she had a napkin on her shoulder. The appellant/accused took away the same from her and asked her to come to him to take the same. When she went there, he took her to Shishubagan by gagging her and thereafter raped her. She narrated the incident to her mother and specifically deposed about the fact. There was bleeding from her genital organ that is the place wherefrom she urinates. She has also stated that after she narrated the incident to her mother, (P.W. 2) Reshmi went to Dwijen Chowdhury. She has further deposed that she was examined by the Doctor and her statement was recorded by the learned Magistrate, that she has also narrated the incident to the Police.
In the cross-examination, there is nothing to show that the witnesses is telling a lie, her evidence stands duly corroborated by the evidence of her mother, P.W. 2 4 Reshmi stated that after having meals Batorani went to wash her hands she found her daughter crying and when she enquired she was told by her daughter that she was ravished by the appellant/accused Dwijen Chowdhury and that she could not walk properly. She also noticed blood coming out. Therefore, she took her daughter to the house and kept her in a bed and went to Dwijen Chowdhury who misbehaved with her. Thereafter, on the next day, she went to the Police Station and lodged the report. Ext 2.
In the cross-examination of Reshmi Chowdhury (P.W.
2), nothing has been brought on record to show that she has falsely implicated accused in the case. On the suggestions made to her she admitted that she took her daughter to Haren Doctor and he advised her to hot compress and she followed his advice. The prosecutrix and her mother stands corroborated by Sajen Chowdhury (P.W. 3) and Dilip Chowdhury (P.W. 7), they have attended the marriage ceremony in the house of Rajen Chowdhury and that there was an untoward incident relating to the victim and that her mother told them that she was ravished by Dwijen Chowdhury. The evidence of the prosecutrix stands fully corroborated by the evidence of Dr. Laxmi Kanta Datta, P.W. 4 to whom the victim was taken for medical examination. He stated that "on examination the patient found conscious. She was an average built girl, breasts were not developed as yet. There was no injury over the chest or face, pubic hair has not developed. There was one tear near the fourchette involving posterior wall of vagina and perineum. Raw area was about two cm length 1 cm wide and 1 cm depth with blood stained discharge present. Hymen has been torned vulva and perineal area were tender. There was no foreign body in the vagina. Vaginal swab was preserved and handed over to the escorting police. There may be attempt 5 of forcefull intercourse. After examination I prepared a report. This is the same. It bears my signature". (ext. 1) We have no hesitation to hold that the prosecution has established beyond shadow of doubt that the appellant/accused has committed rape on the victim, P.W. 1 the evidence of the victim inspires confidence as nothing has been brought on record to show that she would falsely implicate Dwijen Chowdhury who was known to her being neighbours and she stands fully corroborated by medical evidence as the Doctor found on medical examination that there was an attempt of forcefull intercourse. Therefore, the contention of the learned counsel for the appellant/accused that this may be a possible case of an attempt to commit rape cannot be accepted as the medical evidence shows hymen was torn vulva and perineal area were tender. Though vaginal swab was preserved and handed over to the escorting police, no forensic report has been obtained by the police, it does not affect the prosecution's case. Section 375 IPC defines rape and explanation makes it clear that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Therefore, mere penetration is vagina is an offence of rape which is well established by medical evidence.
In this case though there is a difference of opinion as regards the age of the prosecutrix as the mother of the victim claim her to be 7 years old and she was examined and subjected to ossification test and her age has been determined as +11 years as deposed by Dr. Monojit Chakraborti P. W. 9 which is not challenged there is nothing to show that she was over and above the age of consent.
6As regards delay in lodging FIR Ext 2 considering that the victim, a minor girl who is residing with her widow mother, belong to poor strata of society and rustic villagers a delay of overnight is no delay. The incident came to knowledge of all immediately therefore, it cannot be said that the report was concocted.
Therefore, we find that the learned Trial Judge was justified in holding that prosecution has proved the case against the appellant/accused and found him guilty of having committed offence under Section 376 IPC.
On the point of sentence it was submitted by the learned counsel for the appellant/accused that it is too harsh for a person who has got a family and three children consisting of mother, wife who are dependent on him. The learned counsel for the appellant/accused also drew our attention to the fact that the Trial Court has sentenced the appellant to suffer imprisonment for 10 years and has directed to pay compensation to the victim girl in the sum of Rs. 5000/- and in default to suffer S.I. for further six months It is submitted that the sentence to suffer S.I. for 10 years should be construed as rigorous imprisonment as it will benefit the appellant/accused to avail remission. Therefore, this court may clarify the same.
In the first place, we find that the trial court has not taken into consideration that the victim girl was below 12 years of age, a specific charge under Section 376(2)(f) ought to have been framed which provides punishment with rigorous imprisonment for a term which shall not be less than 10 years but which may be life and shall also be liable to be fined. But taking into consideration that he has convicted the appellant/accused for 10 years, in our view, this lacuna has not resulted in any miscarriage of justice. We do not find that the accused deserves any 7 sympathy and may be because the accused has a family consisting of his mother, wife and three children cannot be the mitigating the circumstances. The learned Judge of the Trial court has rightly dealt with the matter in observing that this was the case of a girl of tender age who was deflowered by the accused and any kind of leniency or mercy would be misplaced.
In so far as the contention of the learned counsel for the appellant accused that the sentence of imprisonment should be construed as rigorous imprisonment to enable the appellant/accused to claim remission as it is only in case of a person is sentenced to imprisonment of life that the imprisonment is considered as rigorous as such sentence would come within the ambit of Section 60 of the IPC which reads as follows:
"60. Sentence may be (in certain cases of imprisonment) wholly or partly rigorous or simple. - In every case in which an offender is punishable with imprisonment which may be of either description, it shall be competent to the Court which sentences such offender to direct in the sentence that such imprisonment shall be wholly rigorous, or that such imprisonment shall be wholly simple, or that any part of such imprisonment shall be rigorous and the rest simple."
Thus, it can be seen that Section 60 of the IPC deals with the discretion vested in the trial court to sentence such offender who is punishable with imprisonment for a term, to direct in the sentence that such imprisonment shall be wholly rigorous or that such imprisonment shall be wholly simple or that any part of such imprisonment shall be rigorous and the rest simple. In case the court omits to specify the nature of imprisonment in the judgment then being imprisonment for a term, the sentence must be construed as being one of simple imprisonment only. We do not find any reason to interfere with the discretion exercised by trial court in sentencing the appellant to imprisonment for 10 years.
8In the case of NAIB SINGH S/o MAKHAN SINGH VS. STATE OF PUNJAB [AIR 1983 Supreme Court 855], the Supreme Court observed as follows:
"( 17 ) DURING the hearing our attention was invited to a decision of the Kerala High Court in Mathammal Saraswathi v. The State, AIR 1957 Ker 102, where that High Court has taken the view that while naming the sentence of imprisonment for life a Criminal Court should keep in view the provisions of S. 60 of Indian Penal Code and choose one or the other form so as to clarify the exact nature of punishment intended to be inflicted on the accused, and went on to clarify this position by stating that the imprisonment for life in that case shall be simple imprisonment and not rigorous. It is not possible to sustain the aforesaid view of the Kerala High Court. In the first place, a distinction between 'imprisonment for life' and 'imprisonment for a term' has been maintained in the Penal Code in several of its provisions. Secondly, by its very terms S. 60 is applicable to a case where "an offender is punishable with imprisonment which may be of either description" and it is only in such case that it is competent for the court to direct that "such imprisonment shall be either wholly rigorous or wholly simple or that any part of such imprisonment shall be rigorous and the rest simple". And it is clear that whenever an offender is punishable with "imprisonment for life" he is not punishable with "imprisonment which may be of either description": in other words S. 60 would be inapplicable.
( 18 ) HOWEVER: for the reasons discussed above and in view of the authoritative pronouncements made by the Privy Council and this Court in Pandit Kishori Lal's case (AIR 1945 PC 64) and Gopal Godse's case (AIR 1961 SC 600) respectively, it will have to be held that the position in law as regards the nature of punishment involved in a sentence of imprisonment for life is well settled and the sentence of imprisonment for life has to be equated to rigorous imprisonment for life. In this view of the matter, the recommendation of the Law Commission contained in its 39th and 42nd Reports suggesting a suitable amendment in the Penal Code will have to be regarded as having been made only for a purpose of removal of doubts and clarifying or declaring the existing legal position. Presumably for that reason the suggested amendment has not been regarded as absolutely necessary and therefore not put through so far."
Therefore, the appellant/accused to undergo simple imprisonment for 10 years.
9We do not find any merit in the appeal the same is dismissed.
The Criminal Section is directed to forward a copy of this judgment along with the LCRs to the learned Court below and the learned Court below shall issue a revised Jail warrant and forward the same to the correctional home where the appellant/convict is now detained.
(J. N. PATEL, CHIEF
JUSTICE)
(ASIM KUMAR
ROY, J.)