Calcutta High Court (Appellete Side)
Prasanta Singh @ Bhulu vs The State Of West Bengal on 25 June, 2020
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side
Present:-
The Hon'ble Justice Sahidullah Munshi.
And
The Hon'ble Justice Subhasis Dasgupta.
CRA No. 590 2015
Prasanta Singh @ Bhulu
Vs.
The State of West Bengal
For the Appellants :Mr. Avishek Bhandari, Adv.
For the State :Mr. Arun Kumar Maity, Ld. A.P.P.
Ms. Sreeparna Das, Adv.
Heard on : 19.12.2019, 03.03.2020
Judgment on : 25.06.2020
Subhasis Dasgupta, J:-
This criminal appeal found its emergence after it was preferred by
appellant against the judgment and order of conviction passed by learned
Additional Sessions Judge, 7th Court, Alipore, South 24 Parganas, in Sessions
Trial No. 5(6) of 2013, arising out of Sessions Case No. 17(5) of 2013, convicting
the appellant under Section 376(2)(f)/ 506 I.P.C., and thereby sentencing him to
suffer rigorous imprisonment for ten (10) years and to pay fine of Rs.20,000/-
(Rupees Twenty Thousand) with default stipulation to suffer further rigorous
imprisonment for one year for commission of offence under Section 376(2)(f) and
to suffer rigorous imprisonment for two (2) years for offence under Section 506
I.P.C.
The appellant challenged the order of conviction and sentnece contending
the same to have been erroneously recorded merely on assumption, surmises
and conjectures in a case where there was admittedly no medical evidence
indicative of commissioning rape upon the injured victim. Further contention of
the appellant is that the evidence was infested with several contradictions and
full of improbabilities, upon visualization of which accused/appellant ought to
have been favoured with benefit of doubt. According to appellant there could not
be any straight jacket formula to believe the sole testimony of the
victim/prosecutrix as a gospel truth even in absence of clinching medical
evidence, supportive of rape.
The best possible witness like the younger brother of victim, who at the
relevant point of time was present in the house of victim, when victim was called
upon by accused to his house, but he could not be examined in order to unveil
the prosecution story rendering the prosecution case to be highly suspicious.
Appellant thus sincearly persuaded us in course of hearing of this appeal
to consider that a false allegation of rape can cause equal distress, humiliation
and damage to the accused, and when the instant case was manufactured by the
victim/prosecutrix after being tutored by her mother, simply to take forcible
possessiion of rooms under occupation of appellant, the accused must be
protected against possibility of false implication.
Upon advancing such submissions, the order of conviction was contended
to be not sustainable.
Before addressing the points raised hereinabove, we thought it prudent to
refer to the established facts percisely established during trial, discernable from
the witnesses examined for addressing the issues most effectively.
Victim/prosecutrix, a nine (9) year old girl, pursuing her study in a school,
residing in a "basti" (slum) with her parents, was called by accused, a forty (40)
year well built man, living in the self same locality, on 02.02.2013, at about 2.30-
3.00 P.M., after the victim had returned from her half day school on Saturday, to
his house and since accused was previously known to victim, to whom victim
would ordinarily address accused/appellant as "Jathamosai", the victim felt no
hesitation to respond to the call of accused, and went to the house of
accused/appellant most innocently.
The room of the house of accused/appellant was then closed, victim was
forcibly made to lie down on the floor of his house after getting her undressed,
and accused/appellant then committed rape on her by laying on her person.
Victim tried to resist by shouting, but since accused/appellant pressed her
mouth and threatened to kill her if she dared to disclose the same to anybody
else, victim could not raise her voice at that time. After the incident victim
returned home crying and reported the incident to her parents, after they
returned home from their respective job.
The father of the victim works as a gardener in a hotel known as "Hyatt
Regency". The father of victim has to leave the house in the morning, and return
home in the evening by reason of his occupation. The mother of the victim also
works as a day labourer, and she would go for her work at 6.00 A.M. in the
morning and return at 10.00 A.M., and again she would leave for her work at
about 1.00P.M. and return home at about 5.00P.M. The parents of the victim
knew about the incident after they returned home individually, when victim
narrated everything to them. The victim complained of feeling burning sensation
while urinating to her parents, though she found no bleeding injury in her
private parts. The parents then after reporting the incident to their local club,
proceeded to police station in order to report the incident. Police recorded the
version of the mother of victim after procuring her L.T.I. on the F.I.R. on
02.02.2013at about 19.10hrs., and took up investigation after registering the complaint. Victim was sent for her medical examination, and she was temporarily put up in a Home till 27.02.2013. Her statement was recorded by learned Magistrate under Section 164 Cr.P.C. on 05.02.2013. She was medically examined again by a doctor of Alipore Police Hospital on 25.02.2013. On conclusion of the investigation, police submitted charge sheet against the accused.
Accused was put up for trial after framing charge against him under Section 376(2)(f)/506 I.P.C. and trial was concluded collecting as many as eleven (11) witnesses.
PW-1 is the victim herself. PW-2 and PW-3 are the parents of victim being mother and father respectively. PW-4 is a doctor, who held potency test of accused/appellant, and furnished his report Exhibit-6. PW-5 is a doctor, who medically examined the victim on 3rd February, 2013. PW-6 is a staff nurse/a seizure witness, in presence of whom vaginal swab of victim was handed over to police by seizure list. PW-7 and PW-8 are hostile seizure witnesses. PW-9 is a lady constable accompanying the victim to Alipore Police Hospital on 25.02.2013 during sencond time medical examination of the victim girl. PW-10 is a doctor of Alipore Police Hospital medically examining the vicitm second time on 25th February, 2013. PW-11 is the I.O. submitting charge sheet in this case.
The Trial Court based conviction relying upon the testimony of PW-1 being corroborated by her parents PW-2 and PW-3 together with the statement of victim recorded under Section 164 Cr.P.C., holding the testimony of victim to be inherently probable even in absence of any injury in the private part of victim intact.
We would now address the points raised in this appeal in order to arrive at a decision of a question if the conviction was lawfully recorded by the Trial Court, and further the sentence was appropriately awarded to accused /appellant or not.
The prosecution case simpliciter is that accused/appellant called the victim to his house in an opportune moment after the victim returned to her home from half day school on Saturday, and then forcibly ravished her making her undressed. Victim tried to protest by shouting, when her mouth was pressed threatening to kill her, if she dared to disclose the same to anybody else. A perusal of evidence with utmost sensitivity is essential for coming to a rational decision in this case after visualising the circumstances in which victim was violated in the house of accused in an opportune moment.
PW-1/victim/prosecutrix stated in her evidence that she returned home after her half day school, when her brother also reached home. Her parents already left home for their respective job. The younger brother of victim kept himself busy in watching cartoons on T.V.
Admittedly, victim resides in a house situated in "basti" (slum) area. Accused/appellant also resides in the same "basti", having four tile sheded rooms in his occupation. Out of four rooms, accused resides in a room, while other three rooms are under occupation of tenants, partitioned by "darma" (made of split bamboo wall). Adjoining to the house of complainant, there lies the house of uncle of victim, who lives with his wife in such house. The uncle and aunt of victim also work as day labourers.
There is clear evidence in the testimony of victim that there are other houses adjoining to her house, and a shop as well, but none was found present at the relevant time, and nobody found her going to the house of accused and returning to home crying thereafter. The adjoining shop, according to victim, was closed, since it was noon then. Victim herself admitted in her cross-examination that accused after calling her to his house, forcibly made her lie down on the floor, laid on his person, and then committed rape on her by pushing his private parts into her priavate parts. She cried shouting, when accused pressed her mouth, and threatened to kill her, if she shouted. Accused/appellant further threatened to finish her, if she dared to disclosed the incident to anybody else.
In consequence of such violation, the victim started feeling burning sensation, while urinating, from her private parts, and she narrated everything to her mother after the mother had returned home from her daily job.
She was medically examined on 3rd February, 2013, by the doctor at Chittaranjan Hospital, and she made her statement before the learned Magistrate reiterating her own version, stated in the F.I.R. The statement of victim recorded by the learned Magistrate on 5th February, 2013, corroborated the version of victim, depicted in the F.I.R.
The mother of victim/PW-2 supported the testimony of her daughter stating to that effect that she gathered knowledge of the incident after she had returned home on the relevant date from her daughter.
The mother corroborating the testimony of her daughter stated in her version that her daughter disclosed her that she had been feeling burning sensation in her private parts, while urinating. The mother also stated that her daughter had experienced threat from accused/appellant, when she tried to raise shout, and thus threatened her, saying that she would be killed, if she dared to disclose the incident to anybody else. According to mother, the accused/appellant had satisfied his sexual hunger after calling the victim to his house in an opportune moment, when none of her parents was present in the home.
The victim's mother/PW-2 visited the police station being accompanied by her victim daughter and husband after informing the club members for reporting the incident. The mother of the victim denied in her cross-examination about the any existence of any previous dispute with accused over his possession of four rooms in the same locality, and her attempt to forcibly possess those four rooms form occupation of accused/appellant.
In corroboration of the version of victim, the mother had the occasion to see the private parts of her daughter, when neither any bleeding, nor any wound could be detected in her private parts, though, victim was complaining burning sensation in her private parts.
PW-3/father, similarly supported the testimony of victim daughter that accused had ravished her daughter in his house after calling her to his house getting an opportune moment, when almost everybody residing in such locality left house for their respective job. PW-3/father produced the birth certificate of victim (Exhibit-5), wherein the date of birth of the victim stood recorded as 3rd March, 2004, meaning thereby she was about nine (9) year old at the relevant point of time, when she was sexually violated. The father of the victim was also made seizure witness to the wearing apparels of victim, produced by the mother of victim to police station, which the father could identify the same after it was produced before the court soon after holding F.S.L. examination, and marked as Mat. Exhibit-1 collectively. Both PW-2 and PW-3 stated in their respective version that members of club apprehended the accused after it was informed to them about the incident by them.
The evidence of victim/prosecutrix/PW-1 thus, received corroboration from her parents (PW-2 and PW-3). The definite case of the victim is that even after being ravished forcibly against her will, after taking her to the house of accused/appellant, she had only felt burning sensation from her private parts while urinating, though she did not sustain any bleeding injury on her private parts.
The only question requiring answer is whether the testimony of victim in such case avouching tohave been raped would be safe to rely on even in absence of any bleeding wound, or any kind of injury in her private parts.
The victim was medically examined twice. Once on 3rd February, 2013, by the doctor (PW-5) of Chittaranjan Hospital, Kolkata, who furnished his medical report (Exhibit-7), and another on 25th February, 2013, by the doctor of Alipore Police Hospital (PW-10) and furnishing his medical examination report (Exhibit-
2).
Both PW-5 and PW-10 found the hymen of the victim to be intact in course of medical examination on two separate dates with a gap of twenty three (23) days in between.
According to PW-5, there was neither any bleeding, nor any abrasion over her vulval region. The only abrasion was found in front of knee joint of the victim, which according to PW-5 could be a product of friction at the time of commission of rape. Regarding the knee injury of the victim, doctor/PW-5 accepted the probability that such abrasion could be caused on her knee even due to fall while playing.
No suggestion was put ot victim in her cross-examination that immediately before the incident, she had the occasion to play and sustain injury by falling down in course of her play, without which such probability of knee injury, as stated by PW-5/doctor in his cross-examination, could not be reasonably connected with the knee injury sustained by the victim, because it was the definite evidence of victim that the victim was forcibly made to lie down on the floor, and further that the accused laid on her person, while satisfying his sexual hunger. It is thus most probable and reasonable that the victim might have sustained knee injury in the process, while she was forcibly made to lie down on the floor. In the absence of any suggestion being put to victim, the knee injury alone can not be taken to be the product of falling down on ground, while playing.
More so, the doctor though not mentioned the age of abrasional injury found on the knee joint of the victim, but he indicated in his evidence that abrasion on knee could not be found to exist after eight/ten days. The abrasional injury found on the knee could be identified by the doctor just on the following day of the incident, and it is reasonable for all probabilities to take the same to be fresh, and not old at all.
Likewise, PW-5 in course of his medical examination on second time, did not find any injury in the private parts of victim, and accordingly opined that the victim was not subjected to sexual intercourse.
Learned advocate for the appellant adverting to medical evidence, adduced by two (2) doctors (PW-5 & PW-10) strongly contended that when victim neither had sustained any bleeding wound nor any injury in her private parts, in all probability the testimony of PW-1/victim would not be believable so as to inculpate the accused/appellant. Thus, according to appellant, the testimony of PW-1/victim/prosecutrix was not a believable one, and accordingly should not be taken to be a gospel truth, because there was enough possibility of exaggeration, embellishment or false implication in the prosecution version.
The brother of victim and the adjoining independent people living in such "basti", and club members not being examined in this case, the possibility of exaggeration and false implication, according to appellant, could not be ruled out.
We were tried to be impressed by the learned advocate for the appellant that it cannot be lost sight of that rape causes the greatest distress and humiliation to the victim, but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well.
Reliance was accordingly placed by appellant on a decision reported in 2008 (15) SCC 133, delivered in the case of Raju & Ors. Vs. State of Madhya Pradesh, wherein it was propounded that the testimony of the victim cannot always be presumed to be gospel truth, where there is possibility of exaggeration, embellishment or false implication, keeping in view the adverse character and immoral past incident of the victim/prosecutrix.
Unlike the present one, the case referred above by the appellant involved gang rape upon prosecutrix. The doctor therein after examining the victim opined that the prosecutrix/victim was habituated to sexual intercourse, and it was not possible for the doctor to ascertain as to when she had last sexual intercourse. The victim also admitted in her testimony that she had once been arrested in a hotel. The Trial Court did not accept the plea raised by the accused as to the adverse character of the victim. Keeping in view the previous immoral antecedent of victim together with doubtful identification of accused in T.I. parade of a gang rape of victim, the Apex Court favoured the accused with benefit of doubt, and acquitted the accused observing that in such circumstances it was probable that the victim/prosecutrix was indeed involved in some kind of bad activity, visualisation of led the Apex Court to propound that the testimony of victim cannot be always presumed to be gospel truth, when there was possibility of exaggeration, embellishment and false implication.
Here in this case, the antecedent of victim is far from doubt, and similarly the consent of the victim is no ground to be capitalised by accused/appellant in view of the age of victim, when she was about nine (9) year old girl. Her consent to the sexual act was obtained in the instant case after putting her in a fear of death demonstrated by the threat of accused to victim, which the victim and her parents sufficiently narrated the same in their respective version.
Though, the accused/appellant tried to set up a plea of false implication in the cross-examination of PW-2 by putting a suggestion that there was previous animosity between accused himself and the victim's family members, arising out of the desire of the parents of victim to dispossess the accused appellant from his possession in respect of four rooms, but it was denied emphatically by such witness. Besides such suggestion, there is no other convincing evidence revealed during the cross-examination of witnesses which would suggest or leave material for false implication of accused/appellant in this case.
The aforesaid decision cited by the appellant would thus be inconsequential in the given facts and circumstances of this case.
Further reliance was placed by the learned advocate for the appellant on a decision reported in 2018 (18) SCC 34, delivered in the case of Sham Singh Vs. State of Haryana, wherein it was propounded that medical evidence having not supported the version of victim, it not only weaken the prosecution case, but also the possibility of false implication could not be completely eliminated.
In the referred case by the appellant, a fifteen (15) year old minor girl was ravished by accused persons, when her organs of generation were not fully developed. The doctor in course of her medical examination observed that her vagina permitted two fingers, but her hymen could not be found to be exist. The doctor also did not mention the age of tear, because the tear was old.
The victim/prosecutrix at the time of commission of rape was staying in the house of her paternal uncle. She stepped out of the house to urinate, when she was approached by two accused persons, who were brother inter se. The accused and the victim are cousins. Allegation was that accused cousin brother forcibly took the cousin sister to their house and tied her hand on a cot with rope and committed rape on her.
Upon consideration of entire factual scenario in the background of medical evidence, the Apex Court observed that it may not be probable to commit rape in one'c own house in front of sister, children, wife and mother without attracting the attention of anyone at that point of time. In such probability of circumstances, the prosecution version was held to be seriously improbable, and the Apex Court observed that appellant could not be held convicted merely on assumptions, surmises and conjectures.
In the instant case, victim was taken to the house of accused in an opportune moment finding absence of her parents to the house, and committed rape on her, which the victim narrated vividly to her parents after their return to home.
The decision being relied upon by the appellant is thus, patently distinguishable on the facts involed in the instant appeal.
The violation of victim/prosecutrix was challenged primarily on the ground of insufficient medical evidence, for absence of injury in the private parts of the victim, and secondarily for the improbability and falsity of prosecution story, built up by prosecution witnesses in consequence of tutoring, particularly by the mother of the victim, while lodging F.I.R. in police station, and giving statement to the learned Magistrate under Section 164 Cr.P.C. by the victim herself, secondly by investigating officer to victim in the interest of prosecution case. It was grossly contended by the learned counsel for the appellant that since hymen of the prosecutrix was found to be intact, in the absence of any injury in the private parts, additionally on the victim, it could not be said that an offence of rape was committed on her by the appellant.
It would be relevant here to refer the explanation, for our present purpose, appended to Section 375 I.P.C.. The explanation reads as follows:
"Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."
The consistent view of the Apex Court in this regard is that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration would be inconsequential.
Reliance may be profitably given in this regard on a decision rendered by the Apex Court in the case Wahid Khan Vs. State of Madhya Pradesh reported in (2010) 2 SCC 9, wherein it was propounded that the rape upon the women can be safely determined even in absence of any injury in the private parts of victim prosecutrix. Paragraphs 20 and 21 of such judgement may be reproduced thus, which may be mentioned as hereunder:
"20. It is appropriate in this context to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (22nd Edn.) at p. 495 which reads thus :
"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 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." "
(Emphasis supplied) "21. 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 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." "
The PW-5, doctor while making medical examination of the victim girl on 03.02.2013 in hospital considered the physical condition of victim girl, which was obviously exposed in the body language of victim herself, and the doctor upon due consideration of such mental shock of the victim, being impact of the incident, advised admission clinically of the victim in hospital. Admission of the victim in hospital in consequence of mental shock remained unchallenged during cross-examination of the victim and her parents. The doctor thus considered the mental shock, received by the victim, is a consequence of traumatize incident, held upon her.
In the words used by the Apex Court, while making observation in the case of State of Panjab vs. Gurmit Singh and Others reported in (1996) 2 SCC 384, rape is not merely a physical assault. It is often destructive of the while personality of the victim. A murderer destroys the physical body of the victim, while a rapist degrades the very soul of helpless women. We must remember that the rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process.
The psychological harm sustained by the victim was clinically appreciated by the doctor, while making medical examination of the victim on 2nd February, 2013, prompting the doctor to suggest for her admission in hospital.
The accused in course of his examination under Section 313 Cr.P.C. had taken a plea that one of the tenant residing in his locality informed him that the mother of the victim had already tutored her victim daughter in the interest of making false implication against him. But the name of the tenant neither could be disclosed, nor could be examined independently by the accused even after entering into defence under Section 233 Cr.P.C..
Naturally such explanation, attempted to be offered during examination under Section 313 Cr.P.C. making him falsely implicated in the case, would thus be without any substance.
As has already discussed that the previous animosity, if therebe any, could not be successfully established in the cross-examination of witnesses, so in the absence of any proven hostility between the parties, it would be very difficult to believe that accused was falsely implicated in this case.
The settled proposition of law is that even evidence of victim in a case of rape has to be critically appreciated with utmost sensitivity keeping in view the broader probabilities of the incident. It is not understood why a self-respecting women, like the victim, would come forward in a court just to make a humiliating statement against her honour, such as is involved in the commission of rape on her. Similarly it is beyond all imagination that parents of the victim would manufacture a false case at the cost of assassinating the character of their own daughter. Tough the victim was a minor girl, but in any rate she is women with all attributes of showing modest to her.
The victim was sent to home soon after the incident being reported to the police, and from the home she was produced before the learned Magistrate for recording her statement.
Referring to the testimony of I.O, argument was raised that when I.O. himself collected victim from the Home, while causing production of victim before the learned Magistrate for making statement under Section 164 Cr.P.C., there was enough occasion left to the I.O. for tutoring the victim girl. True it is that I.O. admitted in his cross-examination that he had been to Cini Asha Home, but the victim was produced before the learned Magistrate by a lady constable. Merely presence of I.O. before the Home, while causing production of the victim before the learned Magistrate by lady home-guard, it would not necessarily stand to reasons the victim was sufficiently tutored by the I.O. himself as regards the statement to be made before the learned Magistrate under Section 164 Cr.P.C.
The probability of tutoring, accordingly to appellant, was transpired in the testimony of the victim herself in her cross-examination, when she frankly admitted that it was correct that she had talk with her mother, when she came to the Court, about the incident to be stated. Victim had to appear twice before the Court once, when her evidence was recorded in chief keeping her cross- examination deferred under Section 231 (2) Cr.P.C., and lastly during the actual cross-examination resumed on 30th July, 2013. Victim categorically stated that she came to depose in this case being accompanied by her parents. She stated with more stress eliminating all doubt that she did not ask her mother anything when they brought her to the Court. So before giving evidence, the victim disclosed in her evidence that she did not ask anything before being presented to the Court for giving deposition. Mere holding talk by a daughter with her mother, what is ordinarily held between mother and her daughter, would not necessarily leave inference that victim had discussed with her mother about the incident to be stated in Court. Even assuming for a moment, that the victim had discussion with her mother about the incident, still the victim had to stand to for facing the ordeal of extensive cross-examination. The varsity of the statement of the victim thus, could not be shaken to doubt, even if the victim is taken to have been tutored by her mother.
It is contrary to the principle of appreciation of evidence of a witness to simply concentrate upon the solitary statement of victim/witness ignoring the entire evidence of victim in its entirety. Giving a solitary look to the particular statement of a victim to the exclusion of other statement in her evidence is thus against the principle of appreciation on evidence of a witness, and that too in a case of rape victim. The probability of false implication in consequence of tutored evidence, as contended by the appellant in the given circumstances of the case, would be without any relevance.
Upon visualizing the medical report of victim, marked as Exhibit-2, it appears that primary and secondary female generation organs of victim were not fully developed, and it was stated to be at the stage of development. PW-5, doctor stated that hymen of a girl of such age could remain intact, even after rape on her. Thus according to doctor, hymenal injury or any hymenal abrasion would not be necessarily sustained by tender aged girl, when tissues involved therein, are supposed to go through a stage of development. More so in very young children, the hymen is found to be deeply placed, and due to deeper placement of hymen, full penetration with rupture of hymen may be a remote possibilities, and it was rightly considered in the findings reached by the learned Trial Judge. Thus for absence of either any bleeding wound, or hymenal abrasion, or any kind of vulva injury of the victim in the private parts of the victim her testimony should not be looked with doubt and suspicion. Feeling burning sensation of victim being impact of rape merely on the ground that in course of her medical examination she did not make any complaint to doctor, would not render her version most improbable.
In the absence of any cogent version being developed in cross-examination supportive of a fact giving rise to the burning sensation of victim, while urinating, we hardly find any reasons to disbelieve the version of victim, who became a victim of rape, even in the absence of any visible injury in her private parts.
Upon considering of the facts referred hereinabove, it cannot be disputed that the act of the appellant would not constitute an offence of rape. There left no doubt in our mind to disbelieve the version of victim/prosecutrix, for the same being cogent, consistent and remaining unshaken to doubt during her cross- examination.
By reasons of relationship of the parents with the victim, the testimony of the parents should not be disrespected, as upon close scrutiny of their version, their evidence appears to be intrinsically reliable being inherently probable.
The testimony of victim in such a case would not necessarily leave materials compelling us to look for corroboration of her statement, even by her younger brother, or any independent people living in the locality of complainant.
In all probability, the testimony of the victim inspired confidence being found to be cogent and reliable. Though there are adjoining houses occupied by different people living in the locality of the victim, but the important aspect to be kept in mind is that the occurrence was held in noon, when probability of adjoining people remaining present in their respective houses is very weak, because most of the people living in the locality of the victim are day labourers, and such day labourers cannot be expected to remain present in their houses at the relevant point of time, when a accused, the well-built man, satisfied his sexual hunger committing rape upon a victim girl, after calling her to his house. The presence and availability of witnesses thus would matter much.
For the discussion made above, we are impressed to hold that the victim was violated by the accused person in his own house, which she not only narrated to her parents, but disclosed the same to doctor in course of her medical examination, held on 3rd February, 2013.
The statement of the victim recorded by learned Magistrate under Section 164 Cr.P.C. having offered substantially corroboration to the testimony of victim, the prosecution version was completely unfolded. The Trial Court considered all the probable aspects of the case after critically evaluating the evidence adduced in this case.
We find sufficient reasons to uphold the conviction reached by the Trial Court.
Accordingly we dismiss the appeal maintaining the conviction and sentence, awarded by the Trial Court. Both the sentences, as awarded by the Trial Court, will run concurrently.
The appeal is thus 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.)