Harshajit Bala & Anr vs Unknown
2022 Latest Caselaw 5823 Cal

                                       CRA 509 of 2006
                                            With
24.08.2022
   Sl. 70
                     IA No: CRAN 1 of 2006 (Old No: CRAN 1331 of 2006)
Court No.12                                 With
  Sourav/             IA No: CRAN 2 of 2007 (Old No: CRAN 485 of 2007)
 Suvayan
                In the matter of: Harshajit Bala & Anr.
                                                                    ....Appellants.

                Mr. Prabir Majumder
                Mr. Snehansu Majumder
                                                             ...for the appellants.

                Mr. Madhusudan Sur
                Mr. Manoranjan Mahata
                                                                   ...for the State.


                    1.

Heard Mr. Snehansu Majumder, learned Counsel led by

Mr. Prabir Majumder, learned Counsel appearing for the appellants

and Mr. Madhusudan Sur, learned Counsel appearing for the State.

2. The judgment of conviction dated May 18, 2006 and the

order of sentence dated May 19, 2006 passed by the learned

Additional Sessions Judge, Fast Track Court - III, Krishnagar,

Nadia in Sessions Case No. 65(8) of 2005/ Sessions Trial No. XIII

(Aug) 2005, convicting the appellant for offence under Section

376(2)(g) of the Indian Penal Code and sentencing each of them to

suffer rigorous imprisonment for 10 years and to pay fine of Rs.

2,000/- each, in default, to suffer rigorous imprisonment for one

year more is impugned in this appeal by the appellants.

3. A compendium of prosecution case is that the occurrence

happened at about 9.00 P.M. on October 27, 2004 and the FIR was

lodged on October 28, 2004 before the jurisdictional Police Station.

On October 27, 2004 at about 9.00 P.M. the mother of the victim

girl went to the nearby telephone booth to have a talk with her

husband over telephone as her husband (father of the victim) was

residing at Dubai. She became late in returning. The victim went

out of her house for searching her mother. After proceeding, some

distance from her house, the convicts, namely, Harshajit Bala

(appellant No.1), Sadhan Kirtania (not an appellant), Golla Tikadar

@ Sankar Tikadar (appellant No.2) and Madan Das (not an

appellant) caught hold of her and pressed her mouth by a 'gamchha'

and lifted her to an abandoned hut of Samar Roy situated in front of

godown of Harshajit Bala (appellant No.1) adjunct to the road. It is

further alleged that all the aforesaid convicts forcibly ravished her

against her will.

4. After the incident, the victim returned to her house but out

of fear and shame, she could not disclose about the incident before

her mother. Next day, she disclosed about the incident before three

of her friends and, thereafter, from their friends the victim's mother

came to know about the incident and she came to the Police Station

along with the victim with her wearing apparels, got an FIR scribed

and lodged the report. On the registration of the FIR, investigation

was taken up by the Investigating Officer. The victim and the

accused persons were sent for medical examination, incriminating

articles were seized, material witnesses were examined and on

completion of investigation, charge-sheet under Section 376 (2) (g)

of the Indian Penal Code was filed against the appellants and the

others.

5. The prosecution has examined 14 witnesses to prove the

charge. P.W. 1 is the victim girl, P.W. 2 is the scribe of the FIR,

P.W.s. 3, 4 and 10 are the friends of the victim before whom she

had disclosed about the incident first, P.W. 5 is the grand-father of

convict Sadhan, P.W. 6 is a local person, P.W. 7 is the mother of the

victim girl, P.W. 8 is the nephew of P.W. 7 before whom also the

victim had narrated the incident, P.W. 9 is the medical officer of

Sadar Hospital, Krishnagar and he being a gynecologist had

examined the victim on police requisition, P.W.s. 11 and 12 are two

official witnesses, P.W. 13 is the teacher-in-charge of Goabari Netaji

Bidhyapith who brought the school admission register of the victim

in support of her age, P.W. 14 is the Investigating Officer. Besides

the aforesaid oral evidence, incriminating materials along with the

medical report, etc. have been proved by the prosecution to bring

the charge to home.

6. Defence plea one of complete denial and no witness has

been examined by the defence.

7. The learned Trial Court took into consideration the

evidence of P.W. 1 (the victim girl), P.W. 7 (her mother) and P.W. 8

(nephew of P.W. 7) before whom the victim had narrated the

incident to return the finding of the guilt against the accused

persons. The friends of the victim, i.e., P.W.s. 3, 4 and 10 did not

support the prosecution case and they were also cross-examined by

the prosecution. Evidence of other witnesses narrated (Supra) are

at the fringe.

8. Mr. Snehansu Majumder, learned Counsel appearing for

the appellants submits that the victim having not disclosed the

incident before her mother immediately after the occurrence, she

cannot be believed as a truthful witness. It is also submitted that

the evidence of the medical officer, i.e, P.W. 9 is clearly to the effect

that the vagina of the victim was admitting one finger easily and

there was discharge of blood as she was menstruating. P.W. 9 had

found that there were old tears in the hymen of the victim at 3 and

6 O'clock position and no recent injury was seen in her vaginal

orifice.

It is submitted by learned Counsel for the appellants that in

view of such specific opinion of the Medical Officer, it cannot be said

that the medical evidence adduced on record corroborated the

version of the victim girl of gang rape. It is also submitted by the

learned Counsel for the appellants that the friends of the victim,

P.W.s. 3, 4 and 10 having not supported the prosecution case, the

victim's evidence finds no corroboration from any quarter.

9. Mr. Madhusudan Sur, learned Counsel appearing for the

State submits that so far as the jurisprudence of rape is concerned,

the victim is to be treated as an injured witness and not an

accomplice and injured's evidence is the best evidence. There are

catena of decisions to support the proposition that the evidence of

victim if otherwise reliable needs no corroboration.

It is submitted by Mr. Sur, learned Counsel appearing for the

State that had the victim disclosed the incident before her mother

immediately after the occurrence, the evidence of her mother would

have fallen under the category of corroborative evidence as a part of

res gestae which assumes relevance under Section 6 of the Indian

Evidence Act but she (the victim) having ipse dixit testified that she

could not disclose about the incident before her mother out of fear

and shame, the evidence of the victim cannot be disbelieved on that

score.

10. We having heard the learned Counsel for the parties at

length, having perused the relevant finding arrived at by learned

Trial Court and having perused the evidence of P.W.s 1, 7 and 8

minutely, it is found that P.W. 1 (the victim) has been consistent in

material particular throughout her testimony. Evidence of P.W.s 7

and 8 though held to be corroborative by learned Trial Court, we are

unable to concur with that view inasmuch as there has been much

delay in disclosure of the incident by P.W. 1 (the victim) before her

mother (P.W. 7) and before her cousin (P.W. 8) and that too after

P.W. 7 came to know about the incident from P.W.s. 3, 4 and 10

(friends of the victim), who have not supported the prosecution case.

They have only reiterated what had been disclosed by the victim

before them. While reproducing the disclosure made by the victim

before them, there has been minor discrepancies and contradictions

in their evidence but we having held that their evidence is of no

relevance so far as the factum of rape is concerned, we are not

commenting on the contradictions and discrepancies shown to us

by the learned Counsel for the appellants in the evidence of P.W.s. 7

and 8.

11. Though much effort has been made by the learned

Counsel for the appellants to make us read the evidence of P.W. 1

(the victim) between the lines, we do not find any major

contradictions and discrepancies in the evidence of P.W. 1 which

strikes at the root of the prosecution case as alleged. From her

evidence regarding incident that attended the incident and that

followed the incident, we are of the merited consideration that

evidence of P.W. 1 (the victim) inspire our confidence to believe her

version.

So far as the criticism of the evidence of Medical Officer, P.W.

9 is concerned, we are of the view that the test of one finger/two

finger entry is never a scientific test and it has come to be

recognized throughout these years mechanically as a matter of

course. We do not agree with such test to be conclusive test

regarding the factum of ravishment or verginity. Further when the

victim was menstruating at the time of ravishment, there would

have been easy penetration without causing any injury to the

vaginal orifice of the victim as at that time the vaginal orifice must

have been congruous. Regarding had to such fact, we do not think

that the medical evidence adduced by P.W. 9 in any way nullify the

evidence of P.W. 1 (the victim) for us to disbelieve P.W. 1.

13. In view of the discussion (Supra), we are constrained to

hold that we do find any infirmity in the impugned judgment and

order of sentence and accordingly, the same are confirmed.

14. In view of the above, the appeal being CRA 509 of 2006

is dismissed.

15. The interim application being IA No: CRAN 1 of 2006

(Old No: CRAN 1331 of 2006) and IA No: CRAN 2 of 2007 (Old

No: CRAN 485 of 2007) are disposed of accordingly.

(Chitta Ranjan Dash, J.)

(Aniruddha Roy, J.)