Raj Kumar Pal @ Palan vs State Of West Bengal
2022 Latest Caselaw 706 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.13 of 2015 with CRAN 1 of 2015 (old No. CRAN 360 of 2015)

Raj Kumar Pal @ Palan

-Vs-

State of West Bengal

For the Appellant : Mr. Jagannath Ganguly, Adv.

For the State              :     Mr. S. G Mukherji, learned P.P.
                                 Mr. N. P. Agarwal, Adv.
                                 Mr. P. P. Das, Adv.

Heard on                   :     21st February, 2022

Judgment on                :     21st February, 2022


Joymalya Bagchi, J. :-

With the consent of the parties, the appeal is taken up for hearing.

The appeal is directed against the judgment and order of conviction

and sentence dated 25.11.2014 and 26.11.2014 respectively passed by the

learned Additional District & Sessions Judge, 2nd Court, Krishnagar,

Nadia, in Sessions Trial Case No. 1(IX) of 2014 arising out of Sessions Case

No. 3(2) of 2014 (Spl.) convicting the appellant for commission of offence

punishable under Section 376(2)(i) of the Indian Penal Code and Section 6

of Protection of Children from Sexual Offences Act and sentenced him to

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

default to suffer further rigorous imprisonment for a period of three

months more.

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

that on 05.05.2013 at 3.30 p.m. minor daughter of the de facto

complainant/P.W. 1 was subjected to penetrative sexual assault by the

appellant who is the uncle of the father of the victim. Minor girl disclosed

the incident to her mother and F.I.R. came to be registered. Victim was

medically treated at Aronghata B.P.H.C. and then at Ranaghat S.D.

Hospital. Her statement was recorded before the learned Magistrate.

Appellant was arrested and charge-sheet was filed. Charges were framed

against the appellant under Section 376(2)(i) of the Indian Penal Code and

Section 6 of Protection of Children from Sexual Offences Act. The appellant

pleaded not guilty and claimed to be tried. In conclusion of trial, the

appellant was convicted and sentenced, as aforesaid.

Mr. Ganguly, learned Counsel appearing for the appellant argues

that the prosecution case suffers from various inconsistencies and

contradictions. The appellant has been falsely implicated in the instant

case due to a land dispute. There is variation in the injuries noted by P.W.

3 and P.W. 5 and the charge of forcible rape is not proved. Hence,

conviction of the appellant may be set aside and the appellant is entitled to

an order of acquittal.

On the other hand, Mr. Das, learned Counsel appearing for the

State argues the version of the victim girl who was aged about 6 years at

the time of the occurrence is corroborated by her relations as well as

neighbours. Medical evidence also supports penetrative sexual assault on

her. Hence, the appeal is liable to be dismissed.

P.W. 1 is the minor victim who was 8 years old at the time of

examination. Trial Court put questions to her which were answered by her

intelligently. Being satisfied with her competence to depose, her evidence

was recorded. She stated that she used to refer to the appellant as 'Dadu'.

On the date of occurrence at about 11-30/12-00 noon when she was

returning home after purchasing groceries, the appellant pulled her frock

and took her to the courtyard of her 'Jethi' Alpana Pal. There he gagged her

mouth and took her to his room. He bit her breasts and committed rape on

her. Appellant threatened her not to disclose the incident to anyone. She

narrated the incident to her mother. She was taken to Dhantala Police

Station by her parents and thereafter to the hospital. Doctor examined her

and thereafter she was taken to Ranaghat court where she made statement

before the learned Magistrate. She was extensively cross-examined.

However, no significant variation or contradiction was elicited from the

minor during cross-examination.

Her deposition is supported by her mother (P.W. 2) and her father

(P.W. 6).

P.W. 2 is the mother of the victim and informant in the instant

case. She stated that the appellant is their relative and adjacent

neighbour. At the time of the incident she was sleeping in the house. Her

daughter returned to home and she found bite marks on her breast.

Initially her daughter was unable to disclose anything. Upon persuasion

she narrated the incident to her. Thereafter, she lodged complaint to

Dhantala Police Station. She put signature on the written complaint

marked as 'Exhibit - 2'. In cross-examination, she deposed that her father-

in-law purchased some land for extending his house and the appellant had

also purchased an adjacent plot together with dwelling house about four

years ago. Their house is situated behind the house of the appellant.

P.W. 6, father of the victim girl, has also corroborated his minor

daughter. He deposed at the time of the incident he was in his hotel. He

received telephonic information from his wife and returned home. Her

daughter disclosed the incident to him and his wife lodged complaint at

Dhantala Police Station. Her daughter was taken to Aronghata B.P.H.C.

and therefrom to Ranaghat S.D. Hospital. In cross-examination, he denied

the suggestion that there was dispute between the appellant and his father

over land.

Evidence of the relations are corroborated by the neighbours,

namely, P.Ws. 7 and 8 who stated upon hearing hue and cry they came to

the spot and found P.W. 2 and her daughter weeping. On query, the victim

narrated the incident to them. They noticed bite marks on her breast.

Medical evidence is led by P.W. 3 and P.W 5 who treated the victim.

P.W. 5, Dr. Jayanta Sarkar, treated the victim at Aronghata

B.P.H.C. He found bruise mark over chest area. He referred her to

Ranaghat S.D. Hospital. The emergency ticket was prepared and signed by

him marked as 'Exhibit-5'.

P.W. 3, Dr. Amit Mukherjee, examined the victim at Ranaghat S.D.

Hospital. He found bite marks over both breast with swelling. He noted

swelling over vulva region, reddish appearance of fourchette. He found

hymen was intact but tenderness on vulva region. He proved the injury

report marked as 'Exhibit-3'.

Analysis of the aforesaid evidence shows version of the minor victim

(P.W.1) is not only corroborated by her parents, namely, P.W. 2 and P.W. 6

but also the neighbours. Medical evidence on record also supports the

sexual assault on the victim. Both the doctors found injuries on her breast

and swelling in and around the vulva region. No doubt, P.W. 3 found

hymen of the victim intact. It is settled law that slight penetration is

sufficient to prove the offence of rape. Hence, non-rupture of hymen does

not improbabilise the allegation of rape particularly when injuries were

found on the private parts including fourchette and vulva of the minor girl.

Thus, I am of the opinion that the version of the minor is reliable

and inspires confidence. Plea with regard to enmity is vague and not

probabilised through evidence on record. Appellant was the uncle of the

father of the victim and his house was adjacent to that of the victim. In

fact, close proximity between the appellant and the victim is established

and proababilises the circumstances which save opportunity to the

appellant to predate on the minor. Merely because the appellant was an

adjacent house owner, one cannot infer dispute between them. On the

contrary, P.W. 6 has squarely denied the suggestion of land dispute. No

material by way of documentary or oral evidence is produced by the

defence to probabilise the plea of enmity.

In view of the aforesaid discussion, I am of the view that conviction

and sentence imposed on the appellant is liable to be upheld.

The appeal is, accordingly, dismissed.

In view of dismissal of the appeal, the connected application being

CRAN 1 of 2015 (old No. CRAN 360 of 2015) also stands dismissed.

Period of detention suffered by the appellant during investigation,

enquiry and trial shall be set off from the substantive sentence imposed

upon the appellant in terms of Section 428 of the Code of Criminal

Procedure.

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.)




sdas/akd/PA (Sohel)