Kartick Mondol @ Baha vs State Of West Bengal on 6 March, 2020

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Calcutta High Court (Appellete Side)

Kartick Mondol @ Baha vs State Of West Bengal on 6 March, 2020

Accused/appellant held his house in the second floor of a building, while victim, a ten (10) year old girl, lived in the third floor of house in the same building with her parents. Both victim girl and accused/appellant were known to each other for their pre-acquaintance.

The mother of victim used to work as cook in someone's house, while father would earn his livelihood by pulling van rickshaw. The grandfather of the victim girl from her mother's side at the material point of time sustained fractured injury, meeting with a road traffic accident, and to take care of such ailing grandfather, the father of victim went to hospital. As usual, mother of the victim left her house on the relevant date for doing work as cook leaving victim girl, pursuing then study in Class-V, with her one year two month old son in the house. Accused/appellant was a known personality in the family of victim girl, and the victim for such pre-acquaintance would ordinarily address him as "Dadu". Taking the advantage of absence of parents of victim girl in her house, accused brought the victim girl in his own house on the pretext of a call from his son and then did sex with her causing penetration, fingering in her private parts, and also doing carnal sex inserting his private part in the mouth of victim girl. While doing such sex, accused/appellant pressed the mouth of victim, when she cried shouting, so that she could not raise any voice, and threatened her with dire consequence. Victim out of fear and shyness could not disclose such incident to her parents, but narrated the same to her friend Pinki and her mother reacting to the incident. The mother of victim girl could know about incident from Pinki and her mother. The mother when challenged the same with her victim doughter, she narrated everything as regards the sexual violation together with commission of carnal sex, what she had already narrated to Pinki and her mother reiterating the reasons that for shyness and after being frightened by accused, she could not divulge the same to her parents. Victim girl was lastly violated about seven (7) days before lodging of F.I.R. on 07.01.2013. She was also violated almost in similar manner by accused 3-4 times before the incident being made known to her mother.

Police took up investigation receiving a complaint from mother of the victim on 7th January, 2013. In course of investigation victim girl was put up for her medical examination, her statement was recorded under Section 164 Cr.P.C. Age determination of victim girl was done with the aid of Ossification Test, and ultimately police submitted chargesheet against accused/appellant.

The Trial Court framed charge against the accused person under Section 376 (2) (f)/ 377/ 506 of Indian Penal Code read with Section 4 of the Protection of Children From Sexual Offences Act 2012, and by collecting evidence of as many as nine (9) witnesses concluded the trial. The Trial Judge held the accused to be guilty of offence under Section 376 (2) (f)/ 377/ 506 Indian Penal Code on 06.09.2014, and awarded him sentence on 08.09.2014, as already mentioned.

The legality of conviction order giving rise to the sentence was under

challenge in this appeal alleging the same to have been reached most illegally.

At the very threshold of this case, this may be mentioned over here that administrative notice not being properly responded to, upon considering the age of this appeal, we considered the necessity to appoint Ms. Zareen N. Khan, as learned Amicus Curiae for the appellant, for obtaining her assistance in the interest of disposal of this appeal.

Learned amicus curiae for the appellant contended that the order of conviction had been made most illegally, as the story built up during trial, could not be believed on the ground that after allegedly being sexually violated on as many as 3-4 occasions, the victim girl continued to visit the house of accused/appellant voluntarily even without informing the alleged incident to her parents, though she allegedly informed the same to her friend Pinki and her mother, and such story, as narrated by the victim girl, being contrary to the ordinary course of conduct of a similarly circumstanced girl, the prosecution case was rendered highly improbable.

It was argued by learned amicus curiae that mother of the victim girl first gathered information of her daughter to have been sexually violated from Pinki and her mother, but such vital witnesses not being examined in this case, there developed strong suspicion, the benefit of which would go in favour of the accused/appellant.

Learned amicus curiae further submitted that for the inconsistency, discrepancy and contradiction contained in the evidence, not remaining sufficiently explained, the prosecution case suffered a strong blow causing the entire prosecution to become demolished.

Further challenge raised by learned amicus curiae was adverting to the medical evidence that medical evidence not having supported the story of being sexually violated, the version of victim girl would be without any consequence. The doctor thus not having found any bleeding wound and hymen not being ruptured, the medical evidence, according to appellant, belied the prosecution evidence.

Per contra, learned advocate for the State respondent supporting the order of conviction and sentence submitted that unimpeachable evidence of victim attracted the confidence of Trial Court, and accordingly sentenced the accused/appellant after holding him to be guilty. Referring to the purported deliberate sexual acts committed upon the victim girl, which surfaced in an unambiguous terms about one (1) week before lodging the F.I.R., learned advocate for the State respondent contended that there might be some discrepancy contained in the evidence, but the same not being strong enough ,would not render the prosecution case to be most improbable.

Before addressing to the issues principally raised surfacing over a claim pertaining to improbability of prosecution story, and the contradictions contained in the evidence, we felt an urge to look into the question first, if prosecution was succeeded to adduce foundational evidence, indicative of commissioning sexual violation together with carnal sex upon the victim girl under the influence of a threat to her with dire consequence, because unless that is established beyond all reasonable doubt, any exercise for giving decision as regards the probability of case for its contradiction contained in evidence , may not be productive and fruitful also. The point so chosen first will be of great help for addressing the issues raised.

Victim girl made disclosure claiming to have been sexually violated by accused/appellant finding her alone in an opportune moment. PW-2 (victim girl) in her evidence stated that while she was alone in her flat with her brother of about one (1) year two (2) months old, accused/appellant took her inside his house on the pretext of a call of his son. As regards the purported violation, she stated that accused did sex with her inserting his penis into her private part, and her mouth also. She further stated that the accused even pressed her breasts, and she cried raising her voice, when accused person pressed her mouth with a threat of dire consequence requiring her not to divulge the same to anyone. The incident revolving round the sexual violation committed upon the victim girl was first divulged to the mother of victim girl (PW-1) by Pinki and her mother, to whom victim claimed to have reported her purported violation reacting to the incident for the first time. Pinki happens to be the friend of victim girl, and Pinki's mother is treated by the victim girl like her own mother for her affection, reciprocity of mutual understanding between the two.

This is also the version of victim that she experienced such sexual violation 3-4 times before the incident being brought to light at the instance of Pinki's mother. The mother of victim girl left home as she is a cook by profession, for her professional engagement in some other's house, while her father being a rickshaw puller similarly left his home to take care of his ailing father-in-law in hospital, who sustained fractured injury, causing the victim girl to stay alone in her home with her one year two months old brother.

In her testimony the victim offered two reasons as to why she could not narrate the incident to her parents immediately after the occurrence. One of such reasons offered by victim herself is the shyness on her part, and her panic stricken state after being frightened by the accused causing threat to her with dire consequence in the event she dared to disclose the same to her parents. PW- 1 (mother of the victim girl) being the F.I.R. maker, who had the occasion to know about the incident first from Pinki's mother, and then from her own victim daughter, supported the reasons offered by her victim daughter, thereby, rendering corroboration on the issue as to what prevented the victim girl from disclosing such incident to her parents.

Interestingly the moment when the victim was sexually violated in the house of accused/appellant neither her mother, nor her father was present in the house. There was no challenge raised in cross-examination that victim had never been to the hose of accused/appellant after being called upon by accused/appellant. What was disputed by appellant is the conduct shown against the victim was nothing more than affection. PW-3 (father) could know about the incident subsequent to the occurrence, and that too from PW-1 and PW-2.

As regards the evidence adduced demonstrating a case of sexual violation of victim, the accused/appellant had taken two fold defence during trial. One, denying the incident and the second one being the affection of the accused, shown to victim, which was purposefully colourised, when failing to squeeze money from accused/appellant. It was thus, sought to establish by accused/appellant that out of affection, sometimes he would pay Rs.5/- to Rs.10/- to victim girl, enabling her to buy lozenge. Accused/appellant thus, claimed to have enjoyed his pleasure showing affection for his love to children, like the victim girl, for his previous acquaintance with the victim, and her family members.

Victim alone received favour from accused, enabling her to buy lozenge from money, she received from accused/appellant to the exclusion of other girls of contemporary age living in the same locality. The names of friends' of victim girl were disclosed in the cross-examination by victim herself, who are Pinki, Lakshmi and Puchki, and they were not shown any affection of accused/appellant.

There was nothing to reveal in the cross-examination, or even in examination under Section 313 Cr.P.C. that accused/appellant for his good attributes would offer money to the extent possible to some other girls living in the locality for buying items of their choice, and he kept doing such things simply for enjoying his pleasure experiencing the level of satisfaction of innocent girls. Victim admitted in his cross-examination, that she had not made over the money, she received from accused/appellant, and she bought logenzes utilizing the money. Such conduct of accused/appellant consequently to be looked with a question mark paving the way of causing allurement to victim girl, while doing sexual violation, as contended by prosecution. The possibility of allurement thus cannot be ruled out.

PW-4 and PW-5 are the post-occurrence witnesses, who could learn about the incident from the PW-3, receiving a phone call to that effect after the incident was made known to the mother of victim girl.

Appellant challenged the testimony of victim disputing with the conduct of victim girl, as to what prevented the victim girl from disclosing the incident to her parents immediately after the occurrence, and further the victim disclosing such incident first to Pinki and her mother to the seclusion of her parents, what according to appellant, could not be taken to be normal, natural being contrary to the ordinary course of conduct of a girl situated in the similar circumstances.

How a victim of rape will behave, and that too of a tender aged ten (10) year old girl, would depend upon the circumstances the victim was provided with, when she was sexually violated.

A sense of fear, shyness, shame, adverse consequences to follow in the event of incident being disclosed to parents for the uncertainties of the behavioural pattern and the mindset of parents etc. would be matter of consideration, but the same, however, cannot be straight jacketed.

We must not be forgetful to take note of a revealing fact that victim girl was born in a family, where her mother used to work as a cook in some other's house, and her father would pull rickshaw in search of their livelihood. Both the parents of victim thus, awfully remained busy connected with their profession for their earning and naturally they could not spend sufficient time with their children starying with them in the house at the relevant point of time.

The daily routine in the victim's family was further burdened for the admission of grandfather of the victim in hospital, for whom the father of the victim girl had to leave his house for taking care of his ailing injured father-in- law in hospital.

It was in these circumstances the victim was sexually violated by accused/appellant getting an opportune moment in her home. She was taken to the residence of accused/appellant, situated in the self-same building, on the pretext of a call from his son. Victim responding to the call of accused visited to the house of accused without any hesitation for her previous acquaintance with accused/appellant. Victim thus at the material time, was given to understand by accused/appellant that she was being called by son of accused requiring her to be present over there.

Police seized the wearing apparels of victim after it was produced by the mother of the victim girl, and the same were sent to F.S.L for report. The F.S.L report turned to be not positive, but absence of spermatozoa in the wearing apparels of the victim girl would not alone render prosecution story improbable, unless a strong inconsistency is there in the testimony of victim herself.

Admittedly, neither mother (PW-1), nor father (PW-3) had any previous knowledge about the incident. The mother having known such incident from Pinki's mother, interrogated her victim/daughter, when she narrated the entire episode, and the past events similarly held 3-4 times in December, 2012, together with reasons as to why the victim restrained herself from disclosing such incident to her parents.

In such state of evidence, it is utmost duty on the part of court to appreciate the evidence of rape victim with great sensitivity in the absence of any inherent contradiction in it. It is nobody's case that the victim preferred to conceal the incident for the reasons, other than mentioned in her testimony, like her shyness and the threat, she had received from accused with dire consequence.

The ordinary relationship, bonding, cohesion between a child and her parents differs from circumstance to circumstance. The girl who may not be comfortable to her parents in disclosing something, may be easy and comfortable with her friend, and her parents, for reciprocal understanding between the two.

Had the victim not disclosed such incident as an immediate reaction to such episode either to her friend Pinki, or to her mother, the allegation of having committed sexual violation would not have been brought to light. The graphical description of the offence narrated by the victim girl consistently in her own testimony together with her statement under Section 164 Cr.P.C (Exhibit- 5) and her mother demonstrated the condemnable acts of accused/appellant disclosing its seriousness which not only had stolen the innocence of victim girl, but also had put her to face extreme sexual exploitation getting her alone in the opportune moment of her house. When victim flatly denied in her cross- examination that whatever the accused/appellant had done on her was nothing but a scene of showing affection to her, and nothing more than that, the plea of accused/appellant taken during trial would be far from belief.

The belated reporting of incident by victim to her mother in such circumstances cannot be considered to be not probable, and unnatural. It was mutual relationship, the cohesion, bonding of the victim girl reciprocal understanding, sense of security of victim girl with that of her friend and friend's mother, compared to her parents, that goaded the victim girl to narrate the incident making first out burst reacting to the episode of her violation to her friend Pinki and her mother. The sense of comfort situation, emotional attachment together with one's security being thus purely relative to the mutual relationship, based on love and affection between the victim, and the people like Pinki and her mother providing a girl of ten (10) year old a sense of security would matter much, and upon consideration of which, such delay caused by the victim in reporting to her parents cannot be looked with doubt. The contention of learned amicus curiae persuading us to accept that the conduct of victim girl in not reporting the incident to her parents to be most unnatural is thus without any significance.

The doctor (PW-6) held medical examination of victim girl on 14.01.2013 i.e. about 7 days after the case was instituted in police station. The F.I.R. was admittedly lodged on 7th January, 2013. The sexual violation, according to PW- 2/victim, was committed 3-4 times in December, 2012, and she was violated lastly on 1st January, 2013 (approx.), because F.I.R. was lodged seven (7) days after the victim was last sexually violated. The doctor found the hymen of the victim to be intact, but noticed the reddish discolourization of vulva. Though hymen was found intact, but the labia majora were not apposed to each other, while labia minora were exposed on extension of her thigh during the course of her physical examination by doctor. The victim felt pain, while squatting even after seven (7) days of her last violation.

It was contended by the learned, amicus curiae that since hymen of the victim was found to be intact, and vaginal digital examination could not be done, therefore, it cannot be said that an offence of rape was committed upon her by accused/appellant. We are quite hesitant to accept such contention of learned amicus curiae giving a look at the definition of rape together explanation appended to Section 375 I.P.C, which may be mentioned as hereunder:-

"Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."

The doctor performing medical examination opined that victim had been subjected to sexual intercourse. Such finding of the doctor based on valuable inputs collected during the course of physical examination of victim remained unshaken to doubt during the ordeal of cross-examination. It would be profitable here in this context to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (22nd Edn.) at page 495, which found its relevance in the decision of Apex Court, reported in (2010) 2 SCC 9, delivered in the case of Wahid Khan Vs. State of Madhya Pradesh and that may be mentioned as follows:-

"Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. 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 such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is a crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."

Similarly in Parikh's Textbook of Medical Jurisprudence and Toxicology, "sexual intercourse" has been defined as under:

"Sexual intercourse.- In law, this term is held to mean the lightest 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."

This is a case where a ten (10) year old girl received sexual violation 3-4 times in December, 2012 and lastly on 1st January, 2013 (approx.), and in connection therewith, she was medically examined on 14.01.2013, when most probable evidence might disappear due to intervention of delay. There left nothing in cross-examination revealing the other probabilities to sustain reddish colorization of vulva, sustained by victim in her private parts. No suggestion even in the form of denial was put to such victim. Upon considering the aforesaid facts together, absence of hymenal injury to a girl of ten (10) year old would not matter much, when the doctor emphatically stated in his evidence that in a case of rape of child, there might not be any injury on the hymen of the children of such age, as the hymen being deeply situated, compared to adult.

Digital examination in respect of vagina of the victim girl, admittedly could not be done due to her pain, but the absence of digital examination of vagina is not strong enough to dilute the contention levelled against the accused/appellant, when there are other evidence revealed during medical examination of victim, indicative of subjecting the victim to sexual intercourse. The oral testimony of the victim together with her medical evidence certainly would constitute a offence of rape, and it left no amount of doubt in our mind for want of strong discrepancy in it.

As regards the defence put up by accused/appellant during trial, pertaining to false implication for being failure to squeeze money, it appears to us upon visualising the evidence of PW-1 to PW-3 that though a story was sought to be established for squeezing the money from accused/appellant together with a chance of false implication by reason of inimical relationship of accused/appellant with that of Pinki's mother, but nothing positive was revealed in cross-examination of those three witnesses. In the absence of any strong proof of previous animosity, and that too between the mother of Pinki and the accused/appellant, the chance of false implication is without any basis.

More so regarding the demand of money, sought to be recovered from accused/appellant capitalising the case, we are not prepared to accept that parents even living below the poverty level would allow their child to be sexually exploited in the manner as chosen by the accused/appellant after stigmatising their own child, and that too at the cost of injuring the chastity of their daughter.

The allegation of causing sexual violation upon victim girl thus cannot be falsified merely by reason of her visit to the house sometime before the incident, when there was categorical evidence transpired in the cross-examination of victim that she stopped visiting the house of accused, after he had committed the crime. True it is that within a gap of seven (7) days, the victim admitted to have visited three (3) times even after disclosing the incident to Pinki's mother, but it would not itself make the version of defence sufficiently strong that whatever the accused/appellant had done on the victim, was consequential to the exhibition of love and affection to a child by accused/appellant, a fifty (50) year old fully grown, able bodied man.

The consequent impact left the victim girl to discontinue her study from Class-V leaving a strong indelible mark on her mindset for such traumatized event, which is very difficult to retrieve in quick succession. The victim, as per decision of her parents, left her previous house and moved to a new destination, which also may be taken care of, while appreciating the evidence most critically.

Learned amicus curiae referring the statement of the victim girl recorded under Section 164 Cr.P.C. (Exhibit-5) and that of the F.I.R. (Exhibit-1) contended that there had been addition of new facts, new episodes, not originally stated in the F.I.R., and manufactured purposefully during the course of evidence which would be sufficient to make the prosecution story a doubtful for want of explanation being offered by prosecution to that effect.

The F.I.R. made out a case of sexual violation on multiple occasions putting a victim of ten (10) year old girl in a fear of death by reason of threat being exercised upon her. Admittedly, several facets of sexual violation, and that too upon a ten (10) year old girl could not be disclosed in so many words in F.I.R.

The mother having known the incident from Pinki's mother without causing any delay reported the incident to police, the day when she was reported about the incident. It is not the spirit of the law that F.I.R. must be taken to be an encyclopaedia of a crime. The facts which are explanatory to the original fact, stated in the F.I.R., may be developed during the course of trial, being material to the determination of offence, complained of.

In course of trial, none of the witnesses examined by the prosecution, particularly PW-1 to PW-3 disclosed anything connecting their version to a separate species of offence, other than sexual violation committed upon the victim. While satisfying lust of a person, inserting of one's penis in the mouth of a girl, and causing fingering in the private parts of victim girl, would obviously be considered to be within the meaning of sexual violation, what the victim girl actually contemplated in her unblemished testimony.

Therefore, for not mentioning of everything, would not be taken to be material suppression of important facts. The statement of the victim girl recorded under Section 164 Cr.P.C. on 08.01.2013 i.e. one day after registering F.I.R. in P.S., is however, supportive of testimony given by victim herself. So, little omission of facts, being insignificant, will not help in any way the accused/appellant favourable to his ultimate purpose.

Much stress was put by learned amicus curiae for vital witnesses like Pinki and her mother not being examined in this case, there left sufficient room for doubting the prosecution case.

Learned Trial Judge considered all the possible circumstances as to why the Pinki's mother could not be examined even after being cited in the charge sheet. The mother of Pinki having already left the address to unknown destination, she could not be examined, and naturally there was no chance for examination of Pinki too. Therefor, sufficient explanation having been recorded by the Trial Court in its judgment, the same will not pave the way to render the prosecution case to be improbable one.

According to learned amicus curiae, there was contradiction in the version of PW-1 and that of her husband/PW-3 in respect of the identity of the F.I.R. maker, and such contradiction, if considered in its true perspective, would demolish the prosecution story. PW-1, being the mother of victim and F.I.R. maker as well, stated in her version that she lodged the F.I.R. putting her Bengali signature in the F.I.R., though she claimed to be illiterate. PW-3 contradicted such version of his wife/PW-1 by stating to the effect that not only his wife was illiterate, but the F.I.R. was written by the victim daughter herself. Such contradiction in our considered view, is not strong enough to upset the entire prosecution story.

Though age of the victim was not at all disputed during the course of trial, but it appears that in the evidence, victim/PW-2 herself stated in her cross- examination revealing her date of birth as 24.04.2002. Apart from such disclosure of the victim as regards her age, the doctor/PW-6 performed radiological examination of victim girl in connection with Ossification Test for determination of her age, and as per Ossification Test report, victim was found to be between six (6) and nine (9) years on the date of her radiological examination, held on 28.01.2013. Since, the Ossification Test report carries age variation of two (2) years on either side, the disclosure of age of victim tends to support the prosecution story depicting the victim to be ten (10) years old (approx.), but obviously not reaching the age of twelve (12) years, the moment when victim suffered sexual violation.

There was no positive material elicited in the cross-examination that at the relevant point of time victim had never been to the house of accused/appellant after being called upon by accused/appellant on the pretext of attending a call of his own son, without which mere plea of claiming love and affection over victim by accused/appellant would not itself be sufficient enough for acceptance.

Now, coming to the issues raised by learned amicus curiae, as regards the improbability of prosecution story for the inconsistency, discrepancy and contradiction contained in the prosecution evidence, we are of considered view that victim's testimony had passed the test of probability by narrating the incident, which was consistent in itself, for the veracity of the relevant statement adduced in evidence pointing to the guilt of accused not being discredited in cross-examination, and thereby rendering her testimony to be fit with rest of the evidence, she adduced, revealing the circumstances she was provided with, while being sexually violated several times in the hands of accused/appellant after utilising the opportune moment.

The contradiction mentioned above, sought to be capitalised, not being major and potent enough, will leave no consequent effect on the very substratum of prosecution case.

Inevitably then the argument advanced by the appellant, aiming at rendering the prosecution case to be most improbable after capitalising the discrepancy contained in the witnesses, examined by the prosecution, deserves no acceptance.

The mother of victim girl having rendered strong support to the testimony of victim girl, the evidence of victim would inspire confidence, because her version is natural, probable and lacks of inherent discrepancies in it. Otherwise it is believable.

Though no argument was raised challenging the sentence awarded in this case describing the same to be most inappropriate, but upon considering the entire circumstances together, we are of considered view that conviction was rightly reached for commission of offence under Section 376 (2) (f)/377/506 I.P.C., and the sentence was appropriately awarded adhering to the parameters, required to be observed for sentencing an offender.

The criminal appeal fails being devoid of merits.

We thus, uphold the conviction and sentence, maintaining the conviction. Before parting with the record, we must record our deep sense of satisfaction for the service rendered by Ms. Zareen Nasema Khan, learned amicus curiae.

The appeal thus stands disposed of.

Department is directed to send a copy of this judgment along with Lower Court Record to the concerned Trial Court without causing any delay through the concerned District Judge.

Department is further directed to send a copy of this judgment to the concerned correctional home.

Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.

I agree.

(Sahidullah Munshi, J.)                       (Subhasis Dasgupta, J.)

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Calcutta High Court (Appellete Side)