Calcutta High Court (Appellete Side)
Pradip Kumar Nayek @ Pradip Nayek vs The State Of West Bengal on 16 December, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present : The Hon'ble Justice Indrajit Chatterjee
C.R.A. 294 of 2013
Pradip Kumar Nayek @ Pradip Nayek
-Versus-
The State of West Bengal
For the Appellant : Mr. Partha Sarathi Bhattacharjee
For the State : Mr. Ayan Basu
Heard on : 16.12.2016
Judgment on : 16.12.2016
Indrajit Chatterjee, J.:- This Court is hearing this appeal under Section
374(2) of the Code of Criminal Procedure as against the judgement dated 26-02-
2013 passed by the then Additional Sessions Judge, Fast Track Court No. 1,
Barrackpore, North 24-Parganas, in Sessions Trial No. 1(2) of 2010 (Sessions
Case No. 254 of 2009) arising out of G.R. Case No. 1706 of 2009 (Naihati P.S.
Case No. 142 dated 11-07-2008).
The learned Trial Court as per that judgement, referred to above, found
this accused-appellant guilty in respect of the charge punishable under Sections
376/511 of the Indian Penal Code and on 01-03-2013, this convict-appellant was
directed to suffer rigorous imprisonment for five years along with a fine of Rs.
5000/-, i.d, to suffer simple imprisonment for six months for the offence
punishable under Sections 376/511 of the I.P.C. The learned Trial Court passed
an order that this appellant is entitled to get set off.
The appeal was filed as back as on 24th April, 2013.
On hearing Mr. Bhattacharjee, learned Advocate appearing on behalf of the
appellant, this Court was pleased to call for one report from the Superintendent,
Dum Dum Central Correctional Home and the report has been received by this
Court today vide letter No. 7999/RB dated 15-12-2016 wherein the said
Superintendent has noted that this convict after getting remission of 290 days
upto the month of December, 2016 and also set off has already served four years,
seven months and ten days as calculated on 15-12-2016.
With this scenario in background, this Court is hearing this appeal.
The fact which gives rise to this criminal proceeding can be stated in brief
thus :
That on 11-07-2008 at about 10.25 hours, the father of the victim lodged
one FIR with the Naihati Police Station to the effect that on 10-07-2008 at about
3-00 p.m. his minor daughter (name withheld) aged about 81/2 years was playing
alone with some leaves near her house adjacent to a school, namely,
Manbharathi Balika Vidyalaya and on that time, this accused gave her two
rupees. The version of the victim as P.W.1 shows that after the convict gave her
that two rupees, the accused told her to go to a park along with him. She further
disclosed that thereafter this accused entered into his house to collect a key of
the park and also collected one "Gamchha" from his room. She further claimed
that thereafter the convict took her to a park next to a Kali Temple and the
accused laying the said "Gamchha" on the ground of the park asked the victim to
lie down on the said "Gamchha" and thereafter he disclothed the victim and
robbed on her and pressed his penis on her vagina (private parts) and thereafter,
he cried out and tried to resist herself. It is further apparent from her evidence
that she told the incident to her mother and also the Police Officer. She further
claimed that she was produced before the hospital authority and told the incident
to the doctor. The said witness duly identified the accused on dock. The learned
Trial Court relying on her evidence and the evidence of the doctor passed the said
order of conviction and sentence about which I have already stated.
Mr. Bhattacharjee arguing on behalf of the appellant submitted before this
Court that even though the said "Gamchha", wearing apparels of the victim and
the accused were seized by the police but those were not forwarded to the FSL.
The statement of the victim was not recorded by any Magistrate to check further
improvement at the time of trial and that the report of the medical expert is not
complete as the victim refused to be examined by any Gynaecologist.
He further submitted by taking me to the evidence of P.W.-1 to show that
there was ejaculation at the time of the incident and as such, non-sending of
wearing apparels of the victim, accused and Gamchha is vital and that defect on
the part of the Investigating Agency will go in favour of this convict.
He further submitted that the Investigating Officer of this case submitted
charge sheet against the accused under Sections 354 and 376/511 of the Code
and the court convicted the accused in respect of the charge under Sections
376/511 of the I.P.C. but did not use any word regarding the offence under
Section 354 of the Code. He took me to the evidence of the Investigating Officer to
substantiate his claim that it was a case under Section 354 of the Code and not
under Sections 376/511 of the Code.
Mr. Basu, the learned Advocate, representing the State by taking me to the
evidence of the prosecutrix vis-à-vis the evidence of doctor and the medical report
submitted that after the entire picture is visualised, any one can say that it was
far more than that of outraging of modesty and the learned trial court duly
convicted the accused in respect of the offence punishable under Sections
376/511 of the Code. He further submitted that the evidence of prosecutrix is to
be relied upon by this court and her evidence can be treated in the same tune
like that of one injured witness. He further submitted that the evidence of
prosecutrix has been well supported by the evidence of the doctor (PW8) who
categorically stated that when she examined the victim, she found laceration on
both lateral walls of labia minora just outside the hymenal ring and according to
her, it was a sign of molestation. The learned advocate for the State further
submitted that the victim told the doctor that the accused tried to introduce his
erected penis on 10-07-2008.
In reply, Mr. Bhattacharjee submitted by taking me to the evidence of the
doctor that even though the victim was asked to be laid down on rough surface
but the doctor did not opine that she found any external injury on the body of the
victim and on that, learned advocate submitted that this incident is concocted
one and the evidence of the prosecutrix cannot be believed as her evidence has
not been corroborated by the doctor.
I have given my anxious thought to the arguments put forward by the
learned advocates appearing on behalf of the parties. The evidence of a
prosecutrix in a case of molestation is of enormous value and such evidence gets
greater importance if it is supported by the evidence of the doctor.
On scrutiny of the evidence of the doctor, I repeat that when she examined
the victim, she found slight laceration on both lateral walls of labia minora just
outside the hymenal ring and as per her opinion it was a sign of molestation.
This doctor also deposed that the victim told her on the date of examination on
11-07-2008that this accused-appellant tried to introduce his erected penis on 10-07-2008.
I am to answer the claim of Mr. Bhattacharjee that the doctor did not find any external injury on the backside of the victim including back portion of the thigh. It is true that if such incident took place on a rough surface, such injury can very well be accepted. Now, the question is whether the victim was asked to lie down on a rough surface. The evidence is scanty to support the claim of the defence that the place of occurrence was a rough surface. This Court should not be unmindful of the fact that the incident occurred in a park and as such it cannot be said with certainty where the offence actually took place was a rough surface of the park. This Court also cannot shut its eyes to the facts that the victim was asked to lie down on a Gamchha and such piece of cloth was enough to give protection to the victim from receiving any external injury about which the defence is harping a lot. Thus, considering the evidence and taking into consideration the topography of place of occurrence, this Court is of the opinion that simply because the doctor did not notice any external injury on the backside of the victim it is not enough to give a go-bye to the evidence of the prosecutrix, who was at that point of time only 81/2 years old and had no idea regarding such physical relationship, I find no substance in the argument of Mr. Bhattacharjee on this point.
Regarding the second argument of the defence that this Gamchha, wearing apparels of the victim and the accused were not produced before the FSL authority to give opinion to establish that there was trace of semen on it, this Court is of the opinion that PW2 did not say that there was ejaculation on her private parts or that such ejaculation touched the Gamchha or wearing apparents. The evidence of PW1, which is contrary to the evidence of PW2 regarding ejaculation etc. cannot be relied upon by this Court to give benefit to the defence for non-examination of Gamchha, wearing apparels of the victim and the accused by the FSL authority.
Regarding the lapse of the I.O. to record the statement of the victim under Section 164 of Cr.P.C. as clamored by the defence, this Court is satisfied that when the incident took place in 2008 there was no such legal prescription that every such victim is to be examined under Section 164 of Cr.P.C. The Investigating Agency takes recourse to Section 164 Cr.P.C. mainly when the Investigating Agency is not sure that the said witness will support the case of the prosecution at the time of trial. It is true that Section 164 Cr.P.C. statement is a guard against subsequent embellishment. Such statement is itself not a substantive evidence but it can be used only for the purpose of corroboration or contradiction. The FIR was lodged on the very next date of the incident, the victim was examined by the doctor on the very next date of the incident and this Court is satisfied that simply because the statement of the victim was not recorded under Section 164 of Cr.P.C. that cannot give extra mileage to the defence story that no such incident at all took place.
Thus, I have answered all the points as raised by the defence. This Court on scrutiny of the evidence on record, both oral or documentary, is satisfied that the learned trial court has rightly convicted the accused-appellant in respect of the offence punishable under Sections 376/511 of the Code as the crime as alleged was much more than a crime which can be covered under Section 354 of the Code. The learned trial court ought to have acquitted the accused in respect of the offence punishable under Section 354 of the Code and charge was framed on that score also but simply for this omission the judgment of the trial court cannot be questioned.
Thus, this Court is satisfied that there is no merit in this appeal and it is answered in the negative, so far as to the finding of guilt of the accused-convict. The order of conviction of guilt is hereby affirmed.
The substantive sentence, however, be reduced to that of the period of imprisonment already undergone. At the same time, this Court prefers to enhance the fine amount from Rs.5,000/- to 7,500/- and the entire amount will go to the father of the victim (PW1) Dhusha Reddy, who will keep the said money in fixed deposit till the victim attains majority. If the fine amount is not paid, then this convict-appellant will have to undergo further period of rigorous imprisonment for six months.
This appeal is accordingly, disposed of.
Office is directed to communicate this judgment to the learned trial court. The lower court records be also so forwarded to the learned trial court by Special Messenger at the cost of the Court (as the appellant is in jail) so that this appellant may not find any problem in depositing the fine amount.
Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Indrajit Chatterjee, J.)