Tarak Das vs State Of West Bengal
2022 Latest Caselaw 625 Cal

Sl. No. 20




                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. 418 of 2010

                                     Tarak Das
                                        -Vs-
                               State of West Bengal



For the Appellant :       Mr. Partha Sarathi Bhattacharya, Adv.
                          Mr. Debangan Bhattacharjee, Adv.
                          Mr. Siddhartha Chowdhury, Adv.
                          Ms. Swarnali Saha, Adv.


For the State         :   Mr. Saswata Gopal Mukherjee .. Ld. Public Prosecutor
                          Mr. Saryati Datta, Adv.


Heard on              :   17.02.2022


Judgment on           :   17.02.2022


Joymalya Bagchi, J. :-

        A minor aged around 11 years fell victim to the carnal lust of her

own father. In a drunken condition he subjected the minor to sexual

assault on a number of occasions. Finally, the minor was able to come out

and disclose the incident to one Bijoli Chakraborty (PW1), a member of

Paschim Banga Ganatantrik Mahila Samity, South Dum Dum area. She

lodged FIR resulting in registration of Lake Town Police Station Case

No.113 dated 16.06.2007 under Section 376(2)(f) of the Indian Penal Code
                                       2

against the father of the victim i.e. the appellant herein. Victim was

medically examined and her statement was recorded under Section 164 of

the Code of Criminal Procedure during investigation. Appellant was

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

aforesaid section and the appellant was put to trial. In course of trial,

prosecution examined 12 witnesses. Defence of the appellant was one of

innocence and false implication. It was his specific defence that he has

been falsely implicated due to political rivalry. In conclusion of trial, the

learned trial Judge by the judgment and order dated 30.04.2010 and

03.05.2010

convicted the appellant for commission of offence punishable

under Section 376(2)(f) of the Indian Penal Code and sentenced him to

suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in

default, to suffer rigorous imprisonment for one year more.

Mr. Partha Sarathi Bhattacharyya, learned advocate, appearing on

behalf of the appellant submits that the prosecution case has not been

proved beyond doubt. Minor victim did not state that she had been raped.

Medical officer (PW11), who examined the victim, also did not note any

injury on her body or private parts. FSL report was not collected during

investigation. Maternal aunt of the victim was not examined. Hence, the

appeal may be allowed.

Mr. Saryati Datta, learned advocate, appearing for the State submits

that the victim was an eleven years old girl who was under the control of

her father. Appellant sexually abused the victim on a number of occasions.

Owing to her tender age and the fiduciary relationship between the

perpetrator and the victim, the latter kept quiet. Finally, she divulged the

incident to PW1 and law was set into motion. Mere absence of injuries

disclose the helpless surrender of a minor to the sexual attack of her own

father. This does not render the prosecution case improbable. He prays for

dismissal of the appeal.

PW5 is the minor victim in the instant case. She was aged around 11

years. Trial Court put questions to her and upon being satisfied with her

capacity to depose, recorded her statement. Initially, in course of her

deposition, the victim was shy and embarrassed. She was unable to come

out with the truth and claimed that she had fallen asleep and was unaware

of what happened at night. Thereafter, she started weeping. Finally,

overcoming all inhibition she divulged that her own father committed foul

act on her frequently at night.

Referring to her initial inhibition and statement that she had fallen

asleep and was unaware of what happened, Mr. Bhattacharyya submits her

latter version ought not to be believed. I am unable to subscribe to such

argument. Assessment of evidence of a victim of sexual assault must be

done with due care and sensitivity keeping in mind the severe trauma, both

physical and psychological, suffered due to the heinous crime. This

situation further exacerbated when the assault is perpetrated by the

guardian himself i.e. the father in the present case. PW5 was barely 11

years of age. Her mother had died. Her brother had been kept in an ashram

and she was in control of her father who sexually abused her regularly at

night. It is, therefore, natural that initially the victim out of fear and shame

could not spell out the manner in which her father had subjected her to

sexual attacks. In fact, compelling the witness to recount the entire

incident in Court is to relive the horror and amounts to secondary

victimisation. However, in an adversorial system of criminal justice,

deposition on oath must be the foundation to come to a finding of guilt.

Thus, the trial Court had to perform the unenviable job of pursuing the

victim to come out with the ugly truth which she finally disclosed.

Assessing the evidence of the minor in this backdrop, her initial

inhibition and recalcitrance cannot be a ground to treat her deposition as

that of a prevaricating witness. On the other hand, such conduct borne out

of shame and fear has a ring of unhappy truth which she was required to

recount in Court for the purpose of administration of justice. Thus, I am of

the opinion the evidence of the victim girl read as a whole is clear, succinct

and wholly truthful.

It has been argued her maternal aunt has not been examined.

Offence had been perpetrated by the father of the victim. Hence, the victim

was extremely diffident to come with facts with her family members. It is

also probable the aunt being a family member was under the influence of

the father of the victim, that is the appellant herein and the prosecution

chose not to unfold its case through her. On the other hand, the minor

divulged the incident to a member of a local Mahila Samity namely, Bijoli

Chakraborty (PW1) who lodged the FIR. Conduct of the victim in this regard

cannot be stated to be unnatural. Bijoli Chakraborty was a social worker.

She was trained to deal with victims of sexual crime. She was not a family

member but a prominent and active personality in society. This empowered

the victim girl to come out with the facts to Bijoli and not to others in the

family. In view of the aforesaid, this aspect of the prosecution case is

neither unnatural nor suffers from any artificiality.

Plea has been taken that the appellant has been falsely implicated

due to political reasons. Apart from bare suggestion to that effect, no

evidence with regard to the political allegiance of the appellant, which was

at cross purposes with Bijoli Chakraborty (PW1) and the other members of

the Mahila Samity namely, PWs. 2, 3 & 4 who corroborate the prosecution

case, has been brought on record. PW5 was a minor girl who had to meekly

succumb to the sexual avarice of her father. The relationship between them

and her helpless condition clearly show that she was not in a position to

resist. Under such circumstances, absence of injuries on her body or

private parts is neither unnatural nor renders the prosecution case

improbable. It is trite law that version of a victim of sexual assault if

reliable and inspires confidence, absence of injuries shall not be a ground

to disbelieve the prosecution case.

Finally, it is submitted that FSL report was not produced. Since the

prosecution case has been proved beyond doubt through the evidence of

the victim (PW5) and the corroboration it receives from Bijoli Chakraborty

(PW1), the informant and other members of the Mahila Samity namely,

PWs. 2, 3 & 4 herein, I am of the opinion production of FSL report was not

relevant for the unfolding of the prosecution case and does not affect its

credibility.

In the light of the aforesaid discussion, I uphold the conviction and

sentence imposed upon the appellant.

The appeal is accordingly, dismissed.

Lower Court records along with a copy of this judgment be sent down

at once to the learned trial Court for necessary action.

Photostat certified copy of this order, if applied for, be given to the

parties on priority basis on compliance of all formalities.

I agree.

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




akd/tkm/PA (Sohel)