Calcutta High Court (Appellete Side)
Bhola Das vs The State Of West Bengal on 25 September, 2019
Author: Arijit Banerjee
Bench: Arijit Banerjee
1 In The High Court At Calcutta Criminal Appellate Jurisdiction Appellate Side CRA 226 of 2016 CRAN 1505 of 2019 Bhola Das
-Vs.-
The State of West Bengal Before : The Hon'ble The Chief Justice Thottathil B. Radhakrishnan & The Hon'ble Justice Arijit Banerjee For the appellant : Mr.Biswajit Manna, Adv.
For the State : Mr.SaibalBapuli, Ld. A. P.P., Mr. A. Bhattacharyya, Adv.
Heard On : 28.08.2019 CAV on : 28.08.2019 Judgment On : 25.09.2019 Arijit Banerjee, J.:-
(1) By his judgment and order dated 28 January, 2016 passed in Sessions Trial No. 08 of 2013, the learned Additional Sessions Judge, Fast Track Court - II, Howrah, convicted the appellant for committing offence under Section 376(2)(f) of the Indian Penal Code (in short, 'IPC') and sentenced the appellant with rigorous imprisonment for 20 years and also imposed a fine of Rs. 25,000/-, in default simple 2 imprisonment for six months. The amount of fine if deposited was directed to be given to the victim as compensation. (2) The prosecution case essentially is that on 29 August, 2012 at about 9 A.M., when the victim girl, stated to be 8years of age at that time, was returning from private tuition, on the way she was intercepted by the accused/appellant who told her that he would buy biscuit for her. He took her to a stationary shop and purchased one packet of tiger biscuit. He then took her to the bank of a "jhil" (lake) near the Press Quarter. There the accused disrobed the victim and committed rape on her. Thereafter, he warned the victim not to disclose the incident to anybody otherwise he would kill her. (3) The written complaint was filed by the girl's mother on 1September, 2012 on the basis whereof the First Information Report was lodged on the same date. The charge-sheet was issued on 1 March, 2013. The accused was charged for committing offence punishable under Section 376(2)(f) of the IPC. He pleaded not guilty and accordingly stood for trial.
(4) The victim girl's statement was recorded under Section 164 of the Criminal Procedure Code. The prosecution examined 11 witnesses. 3 The defence examined none. The statement of the accused under Section 313 of the Criminal Procedure Code was recorded. (5) The learned Trial Judge analysed the evidence of all the witnesses. Primarily relying on the evidence of the victim girl (PW2), the learned Trial Judge found the accused to be guilty of the offence. He observed that there was no reason to disbelieve the victim girl. The facts of the case and evidence on record did not disclose any animosity between the victim or her family or the other witnesses and the accused so as to provide a motive for falsely implicating the accused. In this appeal we are called upon to decide how far the conviction of the appellant is sustainable.
(6) The alleged incident occurred on 29 August, 2012. The FIR was lodged on 1 September, 2012. Though the defence has raised the issue regarding the delay in filing the written complaint which was done on 1 September, 2012, we are of the opinion that the delay has been satisfactorily explained by the prosecution. The statement of the victim girl (in short "V.G.") under Section 164 of the Criminal Procedure Code was recorded on 1 September, 2012. In such statement, recorded in Bengali language, she said that on 29 August, 2012 at 9 A.M., the accused lured her by saying that he will buy biscuit 4 for her and then took her to the bank of the (jhil) in the jungle. On the way two persons saw the V.G. crying and asked the accused to let the girl go. The accused did not listen to them. Instead, he dragged the V.G. along with him and told those two persons that she is his grand- daughter; she was crying because she had been driven out of the house. Then those two persons went away. Then in the jungle the accused took off the V.G.'s frock and then forcibly also took off her pant. When the V.G. was crying loudly, the accused told her to shut up. The accused also slapped the girl on the cheek. Then the accused inserted his penis into her vagina. The V.G.suffered pain. The accused also squeezed the V.G.'sbreast. The accused also kissed the V.G.. When the V.G.was in tremendous pain and was crying loudly then the accused let her go. Then the V.G.dressed up herself and went home. The accused also left but before leaving he told the V.G.that if she narrated the incident to her parents then he would bury her on the banks of the jhil. Then the V.G.returned home and told her mother that her urinal passage was hurting because of what the accused had done to her. Her mother then called her father on telephone. Her father rushed back from work and after hearing everything called the police on telephone. Then the police arrested the accused from his house.
5(7) PW1 is the mother of the girl. She deposed that the incident took place on 29 August, 2012 at about 9 A.M. On the next date i.e. 30 August, 2012 when she returned from work, she found her daughter crying. She complained of pain in her lower stomach. On enquiry, her daughter told her that 'dadu' had allured her promising to buy biscuit for her and took her to the bank of the lake (Press Quarter,JhilDhar). There Daduundressed her and committed sexual intercourse which has caused pain in her lower stomach. Later on she came to know that the name of the said "dadu" is Bhola Das, the accused. She informed her husband of the incident and they together went to the police station and submitted a written complaint. Thereafter, Police took the V.G. to the hospital where she was medically examined. Police also visited the place of occurrence along with her and recovered one empty packet of biscuit. The Police also seized ''frock' and ''panti'' of the V.G. which she had worn at the time of the incident. In cross examination, she said that she informed the matter to the local Police on 31 August, 2012. On 30 August, 2012 when she came to learn that her daughter was suffering pain in her private parts, she did not take her to the local doctor or district hospital.
(8) PW2 is the V.G.. In her evidence she said that on 29 August, 2012 at about 9 A.M. she was returning from her private tuition. On the way 6 the accused told her that he will give her biscuit. He took her to a stationary shop and purchased one packet of Tiger biscuit and then took her to the Press Quarter field by the side of the big pond (jhil). There the accused tried to penetrate hispenis into her vagina. At that time she was crying out of pain. The accused slapped her and told her that if she disclosed the incident to anybody else, he would kill her and bury her by the side of the 'jhil'. Thereafter, in the night when she was sleeping she again felt pain on her lower abdomen. Then in response to her mother's query she disclosed the facts to her mother. On the next morning her mother informed the matter to her father by telephone. Her father returned to their house in the night then her father went to the house of the accused and brought him. Her father also informed the Police over telephone and the Police came to their house and took all of them to the Police Station. The Police took her and her parents to the hospital where she was medically examined. In cross-examination, she said that she goes to the school at about 10.30 A.M. accompanied by her elder sister. She goes to the private tutor after school hours from Monday to Friday. She goes to private tuition everyday at 5.30 P.M. and returns to her house at 7.30 P.M.. Police came to their house on the day after the alleged incident. She told the I.O. that her father informed the matter to the Police over telephone 7 and Police came to their house and took them to the Police Station. She also told the I.O. that her father went to the house of the accused and brought him. When the accused took her to the Press Quarter ground and committed the offence, she shouted loudly and two persons came there. This fact also she told the I.O.. The said two persons took her to her house after the incident. She told the Investigating Officer (I.O.) that the accused had penetrated his penis into her vagina.
(9) PW4 is the father of the V.G.. Almost all his statements in his evidence were based on her daughter's and wife's statements. He further said that his daughter and son used to take private tuition at about 8 A.M./9 A.M. and returned at about 9/9.15 A.M. (10) PW6 is the doctor who conducted potency test on the accused and opined that he was capable of performing sexual intercourse. (11) PW9 is the I.O. He deposed that on 01/09/12 he seized one 'Tiger Pineapple Britannia Mark Biscuit Packet' from the spot. He also seized the wearing apparels of the V.G.. He collected the vaginal swab of the V.G.on 1 September, 2012 and semen of the accused on 11 September, 2012 from Howrah District Hospital and sent the same with the wearing 8 apparels of the V.G.to Forensic Science Laboratory (FSL), Kolkata for medical examination on 21 September, 2012. He did not collect any certificate of age of the V.G. from the headmaster of the school where she studied. He did not seize any admission register from that school. He did not collect any certificate of birth from the office of Howrah Municipal Corporation. He could not collect any document showing that the V.G. went to her private tutor. The V.G. did not tell him that her father informed the matter to the Police over telephone and Police came to their house and took them to the Police Station. The V.G. did not state to him that her father went to the house of the accused and brought him. The V.G. did not tell him that her mother informed the incident over telephone to her father and her father came back in the night. The V.G. did not tell him that when she shouted loudly two persons came to the place of occurrence and the said two persons took her to her house after the incident. He did not collect the name of the said two persons from the V.G..
(12) PW10 is the learned Magistrate before whom the statement of the V.G. under Section 164 of the Cr.P.C. was recorded. He proved the statement and the same was marked as an exhibit.
9(13) PW11 is the doctor who was attached to the Howrah District Hospital on the date of the incident and who examined the V.G.. He proved the medical report and tendered the same in evidence. In his report, he stated that Hymen and Fourchette are not raptured in all cases. He did not specifically mention in his report that the V.G. was not raped. In case of forceful rape upon any girl of 8/10 years there must be bleeding from her private part and there must be chance of rapture of hymen. He did not find any external injury on the body of the V.G.. He said that from his report it cannot be ascertained whether any attempt was made to commit rape on the V.G..
(14) The accused was examined under Section 313 of the Cr.P.C. He said that he was not guilty. He did not give any biscuit to the victim. He did not know the victim. He had never been to the victim's house. He denied all the allegations made against him.
(15) The charge against the accused is under Section 376(2)(f) of the IPC. The said Section, as it stood on the date of the incident prior to its amendment by Act of 2013 with effect from 3 February, 2013, was to the effect that whoever commits rape on a woman who is under 12 years of age shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may be for life and 10 shall also be liable to fine; provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
(16) Section 375 of the IPC, which explains as to what amounts to committing rape, as it stood on the date of the incident read as follows:
"375. Rape - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly -With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature 11 and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under sixteen years of age.
Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
(17) The charge brought against the accused would only lie if the V.G.was less than 12 years of age. There is no evidence on record to the effect that the V.G.was less than 12 years old as on the date of the incident. No effort or investigation was made by the Investigating Officer (I.O.) to bring on record the birth certificate of the V.G.or even some kind of certificate from the school where she studied. The prosecution case is that the girl was a student of class IV. In this regard, also there is no evidence on record excepting the verbal statement of the V.G.in her evidence in Court that at the time of the incident she was a student of class IV in PhoolbaganCharaktala Primary School. However, we will proceed on the basis that such statement is correct and the same also seems to be consistent with the V.G.'s answer to the third question put to her by the learned Trial Judge to assess her capability of giving evidence. In her evidence which was 12 recorded on 25 March, 2014 and she stated that she was then studying in class VI.
(18) There are no eye-witnesses to the incident. The entire case rests on the V.G.'s version of the incident. While there is no rule of law that the evidence of a child witness cannot be the basis for conviction of the accused or that the victim's evidence cannot be the basis of conviction, in such cases, where there are no eye-witnesses, the Court has to be cautious in accepting the version of the child witness who is also the victim.
(19) We have carefully scanned the statements of the V.G.as record under Section 164 of Cr.P.C. has also in course of her deposition in Court. We have also analysed the evidence of the other witnesses. We find the following inconsistencies in the prosecution evidence:
(i) In her Section 164 statement the V.G. said that when the accused was taking her to the place of occurrence, on the way, two persons saw her crying and asked the accused to let her go. The accused did not listen. Then the two persons left. However, in her deposition in Court, in cross-
examination, the V.G. said that after the accused took her 13 to the place of occurrence and committed the offence, she shouted loudly and two persons came there who took her to her house after the incident.
(ii) In her examination-in-chief in Court, she said that the incident occurred on 29 August, 2012 at about 9 A.M. in the morning when she was returning from her private tuition. However, in cross-examination, she said that she goes to private tuition everyday at 5.30 P.M. from Monday to Friday.
(iii) In her Section 164 Statement she said that the accused inserted his penis into her vagina. However, in her examination-in-chief in Court she said that at the place of occurrence the accused 'tried to penetrate his penis into my vagina'. Then again, in her cross-examination which took place on a later date,she said that she told the I.O. that the accused had penetrated his penis into her vagina. However, this was not put to the I.O. during his examination and there is no corroboration of this statement by the I.O.
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(iv) In her evidence, she said that she told the I.O. that her father went to the house of the accused and brought him. This was denied by the I.O. during his examination.
(v) She said in her evidence that she told the I.O. that her father informed the matter to the police over telephone and police went to their house and took them to the hospital where she was medically examined. The I.O. denied that any such statement was made to him by her.
(vi) She said in her evidence that she told the I.O. that on the next morning her mother informed the incident to her father over telephone who returned back to their house in the night. The I.O. denied any such statement having been made to him by her.
(vii) She said in her evidence that she told the I.O. that when she shouted loudly, two persons came to the Press Quarter who took her back to the house after the incident. The I.O. denied that any such statement was made to him by her.
15(20) The aforesaid inconsistencies and contradictions create a lurking doubt in our mind about the reliability of the victim girl's evidence to the extent it inculpates the accused for having committed the offence of rape. It is not unknown that a child's evidence may be coloured or influenced by fanciful imagination or as a result of being tutored. Hence, one has to be specially careful before returning a verdict of conviction based primarily on the evidence of a victim child. As already noted by us, the statement of the victim girl in her examination-in- chief was that the accused "tried to penetrate his penis into her vagina". That statement of the victim girl considered in the backdrop of the factual matrix, would not lead to the conclusion that rape was committed.
(21) That apart, we notice that the examining doctor being PW11 in his evidence said that the hymen and fourchette of the V.G. are not ruptured. He further said that in case of forceful rape upon any girl of 8/10 years, there must be bleeding from her private part and there must be chance of rapture of hymen. This was not the case with the V.G. The doctor did not find any external injury on the body of the V.G. While we are conscious that it is possible to commit the offence of rape as defined under Section 375 of the IPC without causing rapture of hymen or bleeding, but chances are that such consequences 16 would follow in case of rape of an 8/10 years old child girl. Here also, we feel impelled to give the benefit of doubt to the accused. (22) Exhibit 2 is the endorsement of PW1 on the report of medical legal examination of the victim girl. The said report also states that there is no sign of sexual intercourse.
(23) The I.O. had collected the vaginal swab and vaginal smears of the victim girl, the urethralswab and urethralsmears of the accused and had also seized the 'frock' and 'panti' of the V.G.'s. The said items were sent to the Forensic Science Laboratory, Government of West Bengal for examination. The FSL report is exhibit 10. The material portion of the report reads as follows:
"Neither semen (no spermatozoon) nor blood could be detected on the contents of the items marked A (vaginal swab and vaginal smears said to be of Priya Chakraborty), B (urethral Swab and urethral smears said to be of Bhola Das) and C (frock and panty)."
(24) The FSL report also raises a doubt as regards the guilt of the accused for the offence he has been charged with. (25) On an overall assessment and appreciation of the evidence on record we are unable to persuade ourselves that it can be said beyond 17 reasonable doubt that the appellant committed the crime he has been charged with. However, we are of the considered view that there is sufficient legal evidence on record to hold that the accused took the V.G. to the place of occurence for the purpose of fulfilling his lust by raping her. A strong piece of evidence pointing to the presence of the appellant and the victim girl at the place of occurrence is the wrapper of tiger biscuit recovered by the I.O. from the place of occurrence. This sufficiently corroborates the V.G.'s statement that the appellant had bought a packet of tiger biscuit for her and thereby lured her to accompanying him to the place of occurrence. We are of the firm opinion that the ingredients of the accused attempting to commit the offence of rape on the V.G. are present in the present case. Hence, we alter the charge against the accused to attempt to commit rape on a woman when she is under 12 years of age and we alter the conviction to one for commission of such offence. Section 511 of the IPC provides for punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. The said Section reads as follows:
"511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment - Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be 18 committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished [with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both."
(26) The accused/appellant has been in custody since September, 2012. In the facts and circumstances of the case we are of the view that imposing a sentence of 10 years rigorous imprisonment along with fine of Rs.10,000/-, in default simple imprisonment for six months would be an appropriate punishment for the appellant. (27) Accordingly, we set aside the conviction of the appellant for commission of rape under Section 376(2)(f) of the IPC and convict him of the offence of attempt to commit rape under the said section of the IPC read with Section 511 thereof. We substitute the punishment imposed by the learned Trial Judge with rigorous imprisonment for 10 years and also a fine of Rs. 10,000/-, in default simple imprisonment for six months. The amount of fine, if deposited by the appellant shall be given to the V.G. as compensation and the Investigating Officer shall take all steps to ensure that the V.G. receives such compensation, if paid by the appellant. The period of detention of the 19 appellant during the period of investigation i.e. during the pre- conviction period, shall be set off under Section 428 of the Cr.P.C. against the total period of sentence.
(28) Let a copy of this judgment be given to the appellant free of cost immediately.
(29) Let the Lower Court's records be sent back immediately to the Court below.
(30) The appeal stands disposed of accordingly. (31) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
I agree.
(Thottathil B. Radhakrishnan, CJ.) (Arijit Banerjee, J.) 20