Dipak Singha vs State Of West Bengal
2022 Latest Caselaw 531 Cal

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Bivas Pattanayak

C.R.A. 822 of 2013 Dipak Singha

-Vs-

                             State of West Bengal


Amicus Curie            :     Mr. Pawan Gupta, Adv.

For the State           :     Mr. Saswata Gopal Mukherji, Ld. P.P.
                              Ms. Amita Gaur, Adv.

Heard on                :     14.02.2022

Judgment on             :     14.02.2022


Joymalya Bagchi, J. :-

Appeal is directed against judgment and order dated 28th June, 2013

and 29th June, 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 also to

pay a fine of Rs.10,000/-, in default, to suffer rigorous imprisonment for

one year more.

Prosecution case, as alleged against the appellant is to the effect

that on 20.05.2010 at 11 p.m. in the night when family members of the

victim girl aged around 11 years had gone to attend 'Namsankritan', the

appellant came into the house and embraced her. Thereafter, he

committed rape on her. Hearing shouts of the victim, local people came to

the spot. Written complaint was lodged by the mother of the victim girl

(P.W. 1) resulting in registration of Bishnupur P.S. Case No. 236 of 2010

dated 21.05.2010 under Section 376 (2)(f) of the Indian Penal Code against

the appellant. In course of investigation, the victim was medically

examined and her statement was recorded before Magistrate. Appellant

was arrested and charge-sheet was filed. Charge was framed under Section

376(2)(f) of the Indian Penal Code.

In conclusion of trial, prosecution examined 12 witnesses to prove

its case. Defence of the appellant was one of innocence and false

implication. In conclusion of trial, the trial Judge by judgment and order

dated 28th June, 2013 and 29th June, 2013 convicted and sentenced the

appellant, as aforesaid.

Nobody appears for the appellant. Mr. Pawan Gupta, appearing as

Amicus Curiae draws our attention to the evidence of the victim girl (P.W.

3) and submits that the victim girl had not spoken of penetration. Lack of

penetration is corroborated by medical officer (P.W. 7) who did not find any

injury on the private parts of the victim. Hymen was also found intact.

Hence, he prayed for acquittal.

Ms. Gaur, learned Advocate appearing for the State submits that

the evidence of the P.W. 3 is corroborated by other witnesses including a

neighbour. Lack of injury simplicitor cannot be ground to disbelieve the

prosecution case. Hence, the appeal is liable to be dismissed.

I have considered the rival submissions at the bar.

P.W. 3, is the victim girl. She was aged around 11 years at the time

of occurrence. She deposed on 20.05.2010 around 11 p.m. her parents

along with her elder brother and sister had gone to their neighbour's house

to hear devotional songs. She was sleeping alone. Suddenly, she woke up

and found that the appellant was lying beside her. He forcibly kissed her,

placed his penis over her vagina after opening her underwear. She shouted

and the appellant fled away from the room. She narrated the incident to

her mother. In cross-examination, she stated that the appellant attempted

to rape her but as she protested he could not commit the offence.

P.W. 1, Kalpana Karan, is the mother of the victim girl and

informant in the instant case. She has corroborated the deposition of her

daughter. She proved her signature on the First Information Report.

P.W. 2, Sunita Karan @ Goswami, is the elder sister while P.W. 4,

Tulsi Karan is the father of the victim girl. Both the witnesses have

corroborated P.W. 1. P.W. 4 stated that the appellant tried to rape the

victim.

P.W. 6, Jagannath Khamaru, is a local witness who stated that on

that night the victim had come to Harinamtala and stated that the

appellant had outraged her modesty.

P.W. 10, Ashok Kr. Singha, is the Head Teacher of Khiristala F.P.

School. He proved the date of birth of the victim as 20.07.1998 as per

entry in the school register.

P.W. 12, Malay Kr. Chatterjee, is the Investigation Officer of the

case. He visited P.O., recorded statements of the witnesses, seized wearing

apparels of the victim and sent the victim for medical examination as well

as recording her statement before Magistrate under Section 164 Cr.P.C. He

submitted charge-sheet.

I note that the version of the victim to the extent that on the night

of 20.05.2010 the appellant had entered her room and misbehaved with

her is proved beyond doubt. Her deposition in this regard is corroborated

not only by her relations but also an independent witness, P.W. 6.

However, it is argued that the evidence of the victim does not make out a

case of rape. I have given anxious consideration to such submission. P.W.

3 in her deposition stated that the appellant had embraced and kissed her.

Thereafter, he removed her panty and placed his male organ on her vagina.

However, she does not speak of penetration. In fact, in cross-examination

she clarifies that the appellant attempted to rape her but could not do so

as she shouted for help. Deposition of the victim with regard to an attempt

is also corroborated by her father (P.W. 4) who stated that her daughter

stated that the appellant tried to rape her forcibly but could not do so as

she shouted for help and the appellant fled away.

It is settled law penetration even of the slightest degree is necessary

to establish the offence of rape. An analysis of the evidence on record

shows no case of penetration has been deposed either by the victim or

other witnesses. Although absence of injuries or non-rupture of hymen is

not a sine qua non to prove the offence of rape, in the factual matrix of the

case where the victim herself states that the appellant attempted to rape

her absence of injuries in her private parts corroborate the conclusion that

the case was one of attempt to commit rape. In the light of the aforesaid

discussion, I convert the conviction of the appellant to one under Section

376(2)(f) read with Section 511 of the Indian Penal Code instead of 376(2)(f)

of the Indian Penal Code.

Coming to the issue of sentence, I note that the appellant has

undergone more than 8 years of imprisonment. Under such circumstances

and in view of the alteration of his conviction as aforesaid, I modify the

sentence imposed on him and direct the appellant be sentenced to suffer

imprisonment for the period already undergone and to pay a fine of

Rs.10,000/- in default, to suffer rigorous imprisonment for six month

more.

The appeal is accordingly disposed of.

Period of detention, if any, undergone by the appellants during

investigation, enquiry and trial shall be set off against the substantive

sentence imposed upon him in terms of Section 428 of the Code of

Criminal Procedure.

Copy of the judgment along with LCR be sent down to the trial court

at once.

Urgent photostat certified copy of this order, if applied for, shall be

given to the parties, as expeditiously as possible on compliance of all

necessary formalities.

I agree.

(Bivas Pattanayak, J.) (Joymalya Bagchi, J.)