Calcutta High Court (Appellete Side)
Sri Mukul @ Mafikul Mondal vs The State Of West Bengal & Anr on 1 July, 2010
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
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Present:
The Hon'ble Justice S.P. Talukdar & The Hon'ble Justice Prabhat Kumar Dey C.R.A. No. 394 of 2007 With C.R.A.N. No. 324 of 2009 Sri Mukul @ Mafikul Mondal Vs. The State of West Bengal & Anr.
For the Appellant : Mr. Himangsu De,
Mr. Sandip Kundu,
Mr. Suman De,
Mr. Habibur Rahaman.
For the State : Mr. Ashimesh Goswami, Ld. P.P.,
Mr. K. J. Ahmed.
Judgment on : 01.07.2010.
S.P. Talukdar, J.: Appellant, Mukul @ Mafikul Mondal, was found guilty of the charge under Section 376 of the Indian Penal Code and was convicted accordingly. Learned Court of Additional Sessions Judge, Fast Track Court-IV, Krishnagar, Nadia, by 2 order dated 16.6.2007 sentenced him to rigorous imprisonment for 10 years and to pay fine of Rs. 5,000/- i.d. to further imprisonment for five months.
Being aggrieved by the said judgment and order of conviction and sentence, appellant approached this Court with the instant appeal. The prosecution case can best be summed up by referring to the evidence of the victim, who had deposed as P.W. 2.
The same is :-
On 9th June, 2006, she being accompanied by her elder brother, Sukanta, went to the place of the accused/appellant for her private tution. Her brother, Sukanta, was first called by the accused inside the room and he was asked to massage his body. After sometime, she was called by the accused through her elder brother. She entered into the room and it was then locked by the accused from inside. She was undressed by the accused, who too took off his dress. Then, he put his penis into her vagina. Thereafter, he ejaculated and asked her to get the panti washed in his bathroom. She, however, did not do so. She returned home and washed the same. She reported the incident to her mother.
Over such incident which was reported to police by her father (P.W. 1), Tehatta P.S. Case No. 118/06 dated 12th June, 2006 under sections 376/511 of IPC was started.
Police authority after completion of investigation submitted charge sheet. The case was, thereafter, committed to the learned Court of Sessions. The accused was charged for the offence under Section 376 of IPC. He pleaded not guilty and claimed to be tried.
Defence case, as it appears from the trend of cross-examination and the statements made during examination under Section 313 of Cr.P.C., is the denial of the prosecution case and the plea of innocence.3
Prosecution in order to establish the charge examined as many as 14 witnesses. Of them, P.W. 1 is the defacto complainant, being the father of the victim girl. He, in his evidence in chief, stated that he was away from home on the relevant date i.e., 9th June, 2006. His wife informed him about the incident over phone and he returned home on 12th June, 2006. He was told that his nephew and daughter used to attend the house of Bablu Sardar where they used to be privately taught by the accused person. P.W. 1 deposed that his nephew was first called by the accused to a room for massage of his forehead and thereafter, his daughter was called inside after his nephew left the room. The room was then locked from inside. His daughter was laid down on a chowki and the accused undressed her. The accused, thereafter, committed rape upon his daughter. His daughter returned home and washed herself. She reported the incident to her mother who, in turn, narrated the same to P.W. 1. P.W. 1 informed some of the local people and thereafter, lodged complaint.
Referring to the written complaint, he deposed that it was written by one Chandan Ghosh as per his instruction and after that, he put his signature in it. The same had been marked exhibit-1. In cross-examination, he was shown four letters and he identified the same as in the handwriting of his sister. The same had been marked exhibit-A series. In cross-examination, P.W. 1 specifically stated that the date of birth of his daughter is 20th September, 1996. He clearly denied that his sister had any relationship with the accused. He could not say anything about any romantic relationship between his sister and the accused. He also deposed in cross-examination that he did not know whether the accused cautioned his sister and asked her not to write love letters since it could affect communal 4 harmony. He specifically denied that the case was falsely started by him in collusion with Sankar Ghosh and Tarun Ghosh.
In cross-examination, P.W. 2 stated that she did not sustain any bleeding injury on her vagina.
In cross-examination, P.W. 2 admitted that the accused asked her Pishi (Paternal aunt) not to send love letters to him. P.W. 2 further admitted that Rani, who is the daughter of the accused, was her classmate.
P.W. 3 is the son of Bablu Sardar. He stated that the accused used to teach him as well as Mousumi (P.W. 2) in their house, as private tutor. In cross-examination such P.W. 3 denied to have stated before the I.O. that Sukanta came out of their house and sent Mousumi inside who, in turn, gave massage to the body of the accused.
P.W. 4 is another student of the accused but like P.W. 3, he was also declared hostile by the prosecution since their evidence did not lend any support to the prosecution case.
P.W. 5 is the brother of the victim of P.W. 2. In his evidence in chief, he corroborated the evidence of P.W. 2 on all material points. According to him, his sister, Mousumi, narrated the entire incident to him. She, thereafter, reported the matter to her mother. He appears to have stood the test of cross-examination quite well.
P.W. 6 is a local witness, who in his evidence in chief stated that the father of Mousumi reported that Mukul was private tutor of his daughter and he used to teach in the Varandah of the house of Sardar. P.W. 6 then deposed that the father of Mousumi told him about commission of rape upon his daughter by the accused. He identified his signature in 5 the seizure list, which was prepared after seizure of a pant from the house of Jagadish. In cross-examination, he denied that he deposed as per instruction of Sankar Ghosh.
P.W. 7 is the Doctor who on 15th June, 2006, examined the accused, Mukul and found that he was capable of sexual intercourse. There was no injury or foreign body in his private parts. P.W. 7 identified the report marked exhibit-5.
Evidence of P.W. 8 is extremely vital in the present case. On 15th June, 2006, he examined Mousumi Biswas, P.W. 2, nine years, Hindu female, in connection with Tehatta P.S. Case No. 118/06 dated 12.6.2006. On examination, he could not confirm whether she was raped or not. He, however, stated that she was not accustomed with sexual intercourse. He found lacerated injury in the lower vaginal wall. He proved the report prepared by him, which had been marked exhibit-6. He further deposed that "lacerated injury means that there was violence on the victim."
Strangely enough, in response to the question made by the defence in his cross- examination, he stated that "this lacerate injury is during act of coitas."
P.W. 9 is the Judicial Magistrate, who on 14.6.2006 recorded the statement of the victim girl under Section 164 of the Cr.P.C. On being proved by him, such recorded statement had been marked exhibit-2/4. In his cross-examination, P.W. 9 stated that the witness i.e., P.W. 2 mentioned that after returning home, she narrated the entire incident to her mother.
P.W. 10 is the mother of the victim girl, who in her evidence in chief stated that at the relevant time her daughter, Mousumi, was a student of class-V. Mousumi being accompanied by her cousin, Sukanta, went to Mukul master for her private tution in the 6 house of Bablu Sardar. According to her, Mousumi disclosed the entire incident of the sexual intercourse to her after returning home. She thereafter informed the incident to her husband over phone. In cross-examination, she deposed that one day after hearing about the incident, she informed her husband over phone at about 4 p.m. Her husband returned on the following morning. Thereafter, complaint was lodged in the police station. In cross- examination, she denied that since Mukul protested against writing of love letters by her sister-in-law, there had been a quarrel between Mukul i.e., the accused and the members of her family. She denied that her husband in collusion with Sankar Ghosh Chowdhury and others falsely implicated the accused in this case.
P.W. 11 is a neighbour of the victim's family. He in his evidence in chief deposed that the incident took place on 9th of June, 2006 at about 5 p.m. According to him, after hearing Mousumi crying, he had been to their house. He was told by Mousumi that she was asked to massage the body of Mukul and thereafter, she was laid down by the accused who undressed her and then had sex with her. P.W. 11 identified her signature in the seizure list and the same had been marked exhibit- 4/1. In cross-examination, he stated that he had been to the house of Mousumi after hearing her cry and Mousumi's mother was also present. He stated that two days after hearing of the incident of Mousumi he met the Police Officer and during this period, he did not share this with anyone else.
P.W. 12 is the A.S.I., who started the case. He proved the formal FIR, which was prepared on the basis of the written complaint and such formal FIR had been marked exhibit-7.
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P.W. 13 is the Sub-Inspector of Police, who after completion of investigation, submitted charge sheet under Section 376 of I.P.C.
P.W. 14 is another Police Officer. In his favour, the case was initially endorsed for investigation. He visited the P.O. and prepared rough sketch map of the P.O. with index. Being proved by him, the same had been marked exhibit-8. On 12th of June, 2006, he recorded the statement of the victim girl, Mousumi, her cousins Sukanta, Prosenjit and other witnesses. He prayed for medical examination of both the accused and the victim girl. He also prayed for recording of statement of the victim girl by the Magistrate under Section 164 of Cr.P.C. On his transfer, he handed over the case docket to the I.C. on 1st July, 2006. He seized one 'jangia of yellow colour' under seizure list, which was prepared by him. Such seizure list had been marked exhibit-4/2. He then referred to the statements made by P.W. 4, which were recorded by him.
The accused was examined under Section 313 of the Cr.P.C. He denied the allegations against her and pleaded innocence.
Learned Trial Court on the basis of such materials on record found the accused person guilty of the offence under Section 376 of I.P.C.
Mr. Himangsu De, learned Counsel appearing for the appellant, stated that the witnesses P.W. 3 and P.W. 4 had been declared hostile. He also invited attention of the Court to the evidence of P.W. 6, whose evidence as a local witness was not found consistent with that of the P.W. 1.
Referring to the decision of the Apex Court in the case between Rahim Beg & Anr. And State of U.P., as reported in 1972 SCC (Cri) 827, Mr. De submitted that having 8 regard to the age of the alleged victim girl, there was possibility of the accused person suffer injuries on his male organ. Absence of any such injury could very well be taken as a circumstance pointing to his innocence.
He derived inspiration from an Apex Court decision in the case between Shekara And State of Karnataka, as reported in (2009) 1 C Cr LR (SC) 637. This was in the context of his submission that the evidence of record in this case could at best justify conviction for the offence under Sections 376/511 of I.P.C.
He also referred to a Division Bench decision of this Court in the case between Ajoy Parida And The State of West Bengal, as reported in (2009) 2 C Cr LR (Cal) 154 in this case.
Reference was further made to another decision of the Apex Court in the case between Premiya @ Prem Prakash And State of Rajasthan, as reported in (2009) 1 SCC (Cri) 20 where the Apex Court having regard to the evidence on record brought down the charge from an offence under Section 376 of I.P.C. to Section 354 of I.P.C. In the said case, the prosecutrix did not state specifically about the act, but loosely described the same as 'fondling'.
In the case between Koppula Venkat Rao And State of A.P., as reported in 2004 SCC (Cri) 840, the Apex Court held that sine qua non of offence of rape is penetration. Ejaculation without penetration could constitute an attempt to commit rape and not actual rape.
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Mr. De, as learned Counsel for the appellant, submitted that the evidence on record in the present case cannot be said to be sufficient so as to establish the charge under Section 376 of I.P.C.
In order to establish the charge under Section 376 of I.P.C., the prosecution must prove :
(i) that the accused had sexual intercourse with the woman in question;
(ii) that the act was done under circumstances, falling under any of the five descriptions specified in Section 375;
(iii) that such woman was not the wife of the accused; or, if she was his wife, she was under fifteen years of age;
(iv) that there was penetration.
Learned Counsel for the State, however, categorically submitted that having regard to the evidence of the victim girl, there could be no justification to hold that there had been no penetration and he found no merit in the suggestion that there could at best be an offence under Sections 376/511 of I.P.C.
In Parikh's Textbook of Medical Jurisprudence and Toxicology, sexual intercourse has been explained as follows :
"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."10
Absence of injuries on the private parts of the prosecutrix cannot rule out her being subjected to rape. (Ref: Harpal Singh, AIR 1981 Sc 361).
In Modi's Medical Jurisprudence, (22nd Edn., P. 502), it has been clearly observed that in case of children who are incapable of offering any resistance external marks of violence may not be found.
In the present case, the Doctor, who examined the victim girl, clearly stated in cross- examination that the lacerated injury, which was found by him on examining the victim girl, could be caused during act of coitas. He explained in his evidence in chief that lacerated injury means that there was violence on the victim. Such P.W. 8, however, could not confirm as to whether the victim girl was raped or not. But the victim girl in her statement before the Magistrate as recorded under Section 164 of Cr.P.C. clearly mentioned about it.
On behalf of the appellant, it was submitted that there is no explanation for the delay in lodging of the complaint. Learned Trial Court found that the circumstances, as revealed from the evidence on record, sufficiently explain the delay of about 3/4 days. Incident took place on 9th June, 2006 at about 6 p.m. Father of the victim girl was informed over phone since he was away from home and he rushed back and lodged the complaint on 12th June, 2006. We do not think that there could be any need for any further explanation since there had hardly been any delay.
It was faintly suggested that there was romantic involvement of the 'Pishi' (paternal aunt) with the accused, who was reluctant to continue the relationship and that could be the 11 reason for falsely implicating him in this case. It is not only far too remote but in the backdrop of the evidence on record, this suggestion is rather preposterous.
Evidence of the victim girl is consistent and convincing. Her evidence had found effective support and strength from the evidence of her cousin (P.W. 5), her father (P.W. 1) and mother (P.W. 10). P.W. 8, the Doctor, in fact, left no scope for any confusion or controversy.
In this context, it may be said that credibility of evidence depends on judicial evaluation of the totality and not isolated scrutiny. Marginal mistakes and minor discrepancies cannot demolish a prosecution case. Proof beyond reasonable doubt is a guideline, not a fetish. And, who can dispute that truth may suffer from infirmity when projected through human process.
Mr. De categorically submitted that there is no sufficient evidence of 'penetration'. We find it difficult to accept such contention. In fact, there can be no reason to disbelieve a minor girl of 9/10 years who had the misfortune of experiencing such a tragedy and that too, at a tender age. Thus, we find no merit in the grievances ventilated on behalf of the appellant.
Mr. De further submitted that the punishment inflicted on the appellant is rather too harsh. Having regard to the nature of the crime and circumstances of its commission, we find it difficult, if not impossible, to share his views. We cannot also be unmindful to the trauma, which the minor victim girl had to experience. There are instances where a victim of rape gets so traumatized that she can never recover from it. 12
After due consideration of all relevant facts and materials, we are inclined to hold that the judgment and order of conviction and sentence, which are under challenge in the instant appeal, suffer from no such infirmity or illegality, which can justify any interference by this Court.
Accordingly, the appeal being C.R.A. No. 394 of 2007 fails and be dismissed. The judgment and order dated 15.6.2007 and 16.6.2007 passed by the learned Additional Sessions Judge, Fast Track Court IV, Krishnanagar, Nadia, thus, stand affirmed.
This consequently disposes of C.R.A.N. No. 324 of 2009 Send a copy of this judgment along with the LCR to the learned Trial Court for information and necessary action.
Criminal department is directed to supply certified copy of this judgment, if applied for, to the learned Counsel for both parties as expeditiously as possible.
(S.P. Talukdar, J.) I agree, (Prabhat Kumar Dey, J.)