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2022 Supreme(Cal) 56
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Joymalya Bagchi, Bivas Pattanayak, JJ.
Manick Sardar - Appellant
Vs.
State Of West Bengal - Respondent
C.R.A. 941 of 2013
Decided On : 11-02-2022
Advocate Appeared:
For the Appellant :Mrs. Karabi Roy, Advocate, Mr. Arani Bhattacharyya, Advocate.
For the Respondent:Mr. Parthapratim Das, Advocate, Mrs. Manasi Roy, Advocate
The victim's evidence is to be treated on par with an injured witness, and mere penetration is sufficient to prove the offence of rape.
Headnote:
Indian Penal Code - Rape - Section 376(2)(f)
Fact of the Case:
The appellant was convicted for raping a minor girl and sentenced to rigorous imprisonment for ten years. The victim's mother found the appellant leaving the house and her daughter crying with her pant removed. The victim's deposition was corroborated by her mother and local witnesses.
Finding of the Court:
The court found the victim's testimony reliable and noted that her evidence is to be treated on par with an injured witness. The court upheld the conviction and sentence imposed upon the appellant.
Issues: The issues revolved around the credibility of the victim's testimony, the absence of injuries on the victim's body, and the proof of the written complaint (FIR).
Ratio Decidendi: The court emphasized that the victim's evidence is to be treated on par with an injured witness and that failure to prove the written complaint does not affect the credibility of the prosecution case. The court also highlighted that mere penetration is sufficient to prove the offence of rape, and it is not necessary for injuries to be present.
Final Decision: The appeal was dismissed, and the period of detention suffered by the appellant during investigation, enquiry, and trial was set off from the substantive sentence imposed upon the appellant.
ORDER :
Joymalya Bagchi, J.
The appeal is directed against judgment and order dated 18.09.2013 and 19.09.2013 passed by the learned Sessions Judge, Nadia in Sessions Trial No. Ill of August, 2013 arising out of Sessions Case No.4(8) of 2013 convicting the appellant for commission of offence punishable under Section 376(2)(f) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-, in default, to suffer further rigorous imprisonment for six months more with a further direction that if the fine amount is recovered, 50% of the same shall be paid to the victim.
2. The prosecution case as alleged against the appellant is to the effect that on 14.04.2013 PW1 had gone out for work as a domestic help leaving behind her minor daughter aged around 7 years and her one year old son at home. Taking advantage of her absence, the appellant, who is a neighbour, came into the house and raped the minor girl. When PW1 returned around 2.30 P.M., she found the appellant coming out of her house wearing a gamchha. Upon entering the house she found her daughter was crying and her pant had been removed. Upon questioning, her daughter stated that the appellant after forcibly pressing her mouth took off her pant and raped her. Upon raising hue and cry, local people assembled at the spot and apprehended the appellant. On the written complaint of PWl, Kaliganj Police Station Case No.235 of 2013 dated 14.04.2013 under Section 376(2)(f) of the Indian Penal Code was registered for investigation. In course of investigation, the victim girl was medically examined. Her statement was recorded under Section 164 of the Code of Criminal Procedure. The accused who had been apprehended soon after the incident, was also medically examined and charge sheet was filed. Charge was framed under Section 376(2)(f) of the Indian Penal Code. Appellant pleaded not guilty and claimed to be tried. In course of trial, prosecution examined 11 witnesses and exhibited a number of documents. In conclusion of trial, the learned trial Judge by the judgment and order dated 18.09.2013 and 19.09.2013 convicted and sentenced the appellant, as aforesaid.
3. Initially, nobody appeared on behalf of the appellant. Today, Mrs. Karabi Roy, learned advocate has appeared on behalf of the appellant through video linkage. In order to facilitate the hearing of the appeal, we have requested Mr. Arani Bhattacharyya, learned advocate, to assist this court as Amicus Curiae.
4. Mrs. Roy, learned advocate, appearing on behalf of the appellant along with Mr. Arani Bhattacharyya, Amicus Curiae argued that the FIR has not been proved. PW1 stated that the complaint was written at Matiari Police Camp by the officer on duty. However, Investigating Officer (PW11) does not disclose the identity of the person who had drafted the complaint. It is also argued that allegation of forcible rape on a seven year old child appears to be improbable as no injuries were found on the private parts of the victim. Hence, the prosecution case is wholly improbable and liable to be dismissed.
5. Mr. Parthapratim Das with Mrs. Manasi Roy, learned advocates, appearing for the State submits that the minor who was examined as PW3 has succinctly depicted the manner in which she had been subjected to sexual assault. Her deposition has been corroborated not only by her mother but other local witnesses namely, PWs 4, 5, 6 & 9. All these witnesses stated that they had seen the appellant come out of the room wearing a gamchha. Soon thereafter the appellant was apprehended and handed over to police. These circumstances corroborate the prosecution case. The victim was a minor and helpless girl aged about seven years.
6. She was unable to resist when she was suddenly subjected to sexual assault by the appellant. Absence of injuries, under such circumstances, cannot be a ground to disbelieve her version. Accordingly, the appeal is liable to be dismissed.
7. From the arguments made at the B
