Premanath @ Premanath Dutta vs State Of West Bengal
2022 Latest Caselaw 6444 Cal

Sl. No.2


                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
              And
The Hon'ble Justice Ananya Bandyopadhyay


                          C.R.A. 475 of 2018
                    Premanath @ Premanath Dutta
                                 Vs.
                        State Of West Bengal

For the Appellant :      Mr. Anirdam Jana


For the State       :    Ms. Zareen N Khan
                         Ms. Amita Gaur

Heard on             :   05.08.2022

Judgment on          :   09.09.2022


Ananya Bandyopadhyay, J.:-


      The instant appeal is preferred against the judgment and order

of conviction dated 18.07.2018 and 19.07.2018 passed by Ld.

Additional Sessions Judge, 2nd Court, Serampore, Hooghly in sessions

Trial No. 15 of 2015 arising out of sessions case no. 38 of 2015

convicting the appellant under Section 376 (2)(1) of the Indian Penal

Code (for short IPC) and sentencing him to suffer imprisonment for life

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

imprisonment for one year more.
                                    2


      The prosecution case emanated from a complaint dated

13.10.2014

wherein the complainant Ranjana Sadhukhan being the

mother of the victim stated that she had been a widow residing

permanently in the village of Rajbalhat of Rajbalhat-2 Gram

Panchayat under Jangipara P.S., Hooghly. On 11th of October, 2014

she accompanied her younger daughter for private tuition at about 3

pm leaving her 19 years old physically challenged elder daughter at

home. On her exit from the house the victim was taken to Kali Charan

Samsan by Premanath Dutta, a neighbour in the locality enticing her

with an ice-cream who thereafter raped her. At about 4 p.m., on her

return the complainant noticed signs on her elder daughter been

subjected to rape. Being perplexed, the helpless complainant went to

the local doctor namely Partha Pratim Jana on 12.10.2014 who

requested her to seek legal recourse. The complainant prayed for

taking legal steps against the miscreant.

Based on the written complaint Jangipara P.S case No. 233 of

2014 dated 13.10.2014 under Section 376 (2)(1) IPC was instituted. A

formal FIR was registered against the convict Premanath @ Premnath.

The investigation originated and terminated with the submission of

chargesheet under Section 376 (2)(1)(j) IPC. Chargesheet was

submitted on 30.11.2014. Subsequently, charge was framed against

the appellant under Section 376 (2)(1)(j) IPC to which he pleaded not

guilty and claimed to be tried.

The prosecution cited 8 witnesses and exhibited 10 documents,

in order to establish its case.

Learned Advocate Mr. Arindam Jana for the appellant at the

outset stated that the evidence of PW1 reflected inconsistency

regarding the time of her absence from her house contrary to the

evidence of PW 3. PW 1 in her evidence stated that she went out at 3

pm and returned at 4 pm. She witnessed the clothes and pants of the

victim stained with blood which however, were not seized. PW 3 Sikha

Addya in her evidence stated that PW 1 was present at her house from

3:30 to 5 pm like any other day when the younger daughter of PW1

attended her tuition. He further argued that the scribe namely

Subhash Dutta who had written the complaint was not examined. He

further stressed upon the fact not a single member was cited as a

witness who had accompanied PW 1 to the Police Station to lodge the

complaint. Moreover, it was surprising that PW 1 was oblivious of the

names of the members who accompanied her to the Police Station. It

was further strenuously argued that considering the gravity of the

offence, PW 1 belatedly lodged the complaint and went to the doctor

after two days of the incident for examination. It was further stressed

PW 2 the victim stated that she was in Mansatala along with her

friend and the said friend was not examined. Moreover, the appellant

had taken PW2 to a jungle where there was snake and the said jungle

was not denoted in the map. He further stated that the evidence of PW

2 is not trustworthy owing to her physical and mental retardedness.

She would not have been able to comprehend the term "Sabhadhipati"

and the version of her evidence was tutored. The wearing apparels of

the victim were not seized for FSL report. The incident of physical

molestation of PW 2 was reported for the first time to PW 4 by PW 1 on

whose advice the written complaint was lodged and the victim was

subjected to medical examination. There were inconsistencies in the

opinion of the Doctors who had examined the victim. PW 5 stated that

the hymen of the victim was intact and there was no bruise, nail

mark, cut injuries found over the breast, neck, lower abdomen, vulva

and perineum and thigh of the victim however, PW 7 stated a small

tear in posterior wall of hymen extending to left lateral wall to be

present in the body of the victim, though active bleeding or foreign

body were absent in her private part. PW 7 in his evidence stated that

the victim sustained an injury on 12.10.2014 at about 4 pm however,

according to the complaint the incident took place on 11.10.2014,

therefore, the evidence of PW 1 was unreliable. He concluded in

absence of corroborative evidence and inconsistencies in the medical

reports the conviction of the appellant should be set aside.

Learned Advocate Ms. Zareen N. Khan appearing for the State

submitted minor discrepancies in the evidence of the prosecution

witnesses concerning the date of the incident does not shake the crux

of the prosecution case. The evidence of PW 1, 3 and 7 corroborated

the prosecution case with regard to the time of the incident and the

medical report mentioned a tear of the hymen and accordingly, the

prosecution had been successful in proving its case and, therefore, the

appeal should be dismissed.

PW 1, Ranajana Sadhukhan, the mother of the victim stated to

be a widow with two daughters of whom the elder daughter, the victim

had been physically and mentally challenged. She further stated that

on 11th October, 2014 she had taken her younger daughter to

Suparibagan for her studies at about 3 pm leaving her elder daughter

i.e. the victim at home. On her return at about 4 pm, she saw the

clothes and pant of the victim stained with blood and on enquiry the

victim revealed that she had been in the open and Prema Kaka i.e. the

appellant took her on a bicycle to Kali Mandir at Samsan Ghat with a

promise of providing her "fuchka" and "ice-cream". The appellant had

also tortured the victim. The complainant became mentally depressed

and thereafter lodged the complaint which was written by one

Subhash Dutta at her instruction with her signature thereon marked

as Exhibit 1. She had also submitted certain documents under a

seizure list to the Police with her signature marked as Exhibit 2. The

victim was medically treated at Jangipara and Serampore Hospital

and was further examined by the Police. The handicapped certificate

and birth certificate of the victim handed over to the Investigating

Officer were marked as Exhibit 3 and Exhibit 4 respectively.

During her cross-examination PW1 stated to have known the

scribe Subhash Dutta who was a "Sabhadhipati" belonging to a

particular political party who helped them in their difficult times and

she had been supporting him. She acceded to the fact of her absence

at the time of the incident at the place of occurrence and confirmed

the date and time of lodging the complaint at the Police Station. She

agreed to have been accompanied by Subhash Babu to the Police

Station though she could not recollect the names of the other

members who went to the Police Station along with her. She

confronted to have filed a false case against the appellant of a different

political party being a supporter of Subhash babu. She stressed upon

the fact of witnessing the clothes and pant of the victim stained with

blood.

PW 2 i.e. the victim stated that she visited the Court in order to

say something. She revealed that "one bad incident took place with"

her. She further stated that her father expired and her mother was

alive. The appellant gave her an "ice-cream" and "fuchka" to eat. She

was sitting at Mansatala. She also stated to have one younger sister

and named her in Court who went along with her mother to study on

the date of the incident. She further stated that the appellant took her

to a jungle on a bicycle and "did a dirty work with" her, which scared

her. She also identified the place where the appellant had taken her

through a photograph shown to her. She further stated that in

absence of her father the appellant Premanath "did this work" to her.

She had been to the Court and made a statement before the

Magistrate. The appellant threatened to throttle her neck, spread one

"Gamchha" and made her lie down on it and committed the offence

which she could not understand. She stated that accused had taken

her at the pretext of giving her "fuchka" and raped her. He had also

physically assaulted her. She stated the incident to her mother and

also to the Police.

During her cross-examination, she stated to have obeyed the

directions of her mother who lodged the present case and she was

deposing in the case. During her cross-examination she further stated

the incident took place for about one year back and at the relevant

time no one was present at the place of the incident. She controverted

the fact that the appellant did not commit rape on her.

PW3 Sikha Addhya in her statement corroborated the fact that

she taught the younger daughter of the complainant PW1 at her

house and on 11th October, 2015 both the complainant PW 1 and her

younger daughter were present at her home for the purpose of tuition

from 3.30 to 5 pm. She came to know the incident of the victim being

raped from someone and she was interrogated by the Police.

PW 4 Dr. Partha Pratim Jana stated that the victim being

mentally challenged was under his treatment. He had advised the

complainant PW1 to visit any Government Hospital or Police Station

concerning the physical molestation of her daughter by someone and

denied to have issued any document of reference to the hospital or

Police Station.

PW5 Dr. Dibyendu Dutta stated to have been attached with

Serampore Walsh Hospital as Gynaecologist. He had examined the

victim girl brought by the complainant and one lady constable.

Complainant PW1 narrated the incident of sexual assault on the

victim to him. He further stated to have found the hymen of the victim

intact without any bruise, nail mark, cut injuries over the breast,

neck, lower abdomen, vulva, perineum and thigh. The vaginal sperm

was taken and sent for semen examination and report was prepared

in his handwriting and signature marked as exhibit-5. He further

stated that "in case of non-application of any force and resistance at

the time of sexual intercourse injuries like nail mark, bruise, cut mark

cannot be seen". He further stated that he did not examine the

interior of vagina of the victim and the rupture of hymen of an

unmarried girl correlated to the type of hymen. He further stated at

the time of examination he did not find any sign of rape on the victim.

PW-6, Dr. Anindita Chakraborty, stated to be a Medical Officer,

posted in Walsh Hospital, Serampore, had examined the appellant in

connection with the case. She had prepared a medical examination

report in her own handwriting bearing her signature and an official

seal marked as Exhibit-6.

PW-7, Dr. Anupam Ghosh, stated that on 14.10.2014 he was

posted at Jangipara Rural Hospital as General Duty Medical Officer

and on the date of examination he was posted at Medical College and

Hospital, Calcutta, as Post-graduate trainee and he examined the

victim at 1.00 am during the intervening night of 13.10.2014 and

14.10.2014 in connection with the case. He learnt about the incident

of rape as described by the complainant i.e. PW-1 comprehending the

language of the victim about the manner of its occurrence. He further

stated that the victim though conscious and alert was physically and

mentally retarded in external appearances. Initially, PW 6 found a

small tear in the postural wall of the hymen extending to the left

lateral wall. PW 7 did not find any active bleeding or foreign body on

the private part of the victim which according to him required

confirmation of the Gynaecologist. The injury report of the victim

prepared and signed by him was marked as Exhibit 7. He had referred

the victim to Walsh Hospital for further opinion and testing.

PW 8 S.I. Maheswar Majhi stated that on the date of the

examination he was posted at Uttarpara P.S. and on 13.10.2014 he

was posted at Jangipara P.S. as S.I. of Police and received one

complaint from PW 1 which was marked as Exhibit 1/1, resulting in

the initiation of a specific case being Jangipara P.S. case no.

233/2014 dated 13.10.2014 under Section 376 (2)(1) IPC. Based on

which the formal FIR was drawn up signed by him marked as Exhibit

8 whereby he was endorsed to investigate the case. He had examined

Subhash Dutta the scribe of the complaint under Section 161 Cr.P.C.

who conformed to have written the complaint under the instruction of

the complainant PW 1 and signed the same which was marked as

Exhibit ½.

PW8 further stated that he visited the place of occurrence,

examined the witnesses and recorded the statement under Section

161 Cr.P.C., prepared the rough sketch map with the index of the

place of occurrence and the rough sketch map along with signature

was marked as Exhibit 9 and 9/1 respectively. He had taken the

photograph of the place of occurrence and had taken the victim for

medical examination to Jangipara Rural Hospital. He collected the

outdoor ticket and the injury report of the victim who was referred to

Serampore Walsh Hospital and examined. The medical examination

report was collected. Subsequently, he arrested the appellant who was

thereafter medically examined and his medico-legal examination

report was collected. The birth certificate and disability certificate of

the victim were collected from the complainant through a seizure list

marked as Exhibit 2/1. Thereafter, the statement of the victim was

recorded under Section 164 Cr.P.C. and the same was collected. He

had also recorded the statement of Dr. Partha Pratim Jana under

Section 161 Cr.P.C. and submitted the chargesheet against the

appellant as aforesaid. He further stated he did not seize any wearing

apparel of the victim as well as the appellant. He further stated that

the injury report mentioned the date and time of injury to be

12.10.2014 at about 4 pm. In the course of investigation it was

established that at the time of occurrence there were none other than

the victim and the appellant at the place of occurrence and he did not

examine the neighbours at the place of occurrence.

On the basis of rival submission and the materials on record it

transpired that :-

The document marked as Exhibit 4 i.e. the original birth

certificate of the victim revealed her date of birth to be 4th July, 1995

which established the fact of her being an adult on the date of

commission of the offence. The original disability certificate marked as

Exhibit no. 3 denoted the victim to be suffering from congenital

mental retardation with an IQ of 30+-5. Moreover, it stated that the

victim could not travel without assistance of escort as well as live her

livelihood independently. It appears that the victim does not possess

the cognitive faculty to fabricate an incident which she has not

experienced by herself. It is evident from the deposition of the

complainant PW1 that on her return she noticed blood stain on the

garments of the victim to her supposition of rape. The victim on her

own accord did not narrate the incident to her mother i.e. PW1.

However, on inquiry she disclosed being raped by the appellant.

Learned Advocate for the appellant argued that the rough

sketch map did not mention the presence of any jungle. The victim

during her examination under Section 164 Cr.P.C. stated to have been

taken to the house of the convict and raped. The index of the rough

sketch map marked as Ext. 9/1 revealed the existence of a small room

"said to be old Kali Temple at Kali Chatterjee Samsan south faced

having two windows, one door and one veranda on the east and south

side of the said temple". It is a pucca building situated at village

Rajbalhat JL 06, P.S. Jangipara, Hooghly. The rough sketch map

describing the place of occurrence and its adjacent areas depicted a

span of cultivating land without any house suggesting the same to be

uninhabited, probably being an isolated place which can be an

envisionary of a jungle to the victim. Moreover, during her deposition

the victim PW 2 recognised the place of occurrence through the

photograph shown to her. The physical and mental disability of PW2

has been proved by the document marked as Ext. 3. The document

marked as Ext. 10 on admission stated the opinion of the ACJM,

Serampore endorsing that "the victim girl was mentally and physically

handicapped but she has given the correct answer to some relevant

question. But she is not absolutely in fit state of mind to understand

everything asked to her." The said observation was in consonance with

the deposition of the victim before the Court where she stated that,

she could not understand what the appellant was doing at her private

part. Thereafter, she confirmed being raped and physically assaulted

by the appellant.

It is natural and obvious that a widowed mother of two

daughters, one of them being physically and mentally challenged girl

was confounded at the revelation of her vulnerable daughter being

subjected and exposed to such an offence creating deep and severe

impact on the body and mind of the victim. Her perplexity was

perhaps intensified with the social element of stigmatization of her

daughter in the village. In the predominant rustic environment the de

facto complainant i.e. the mother will not risk of maligning and

abashing her daughter's reputation, character and image to the

detriment of her daughter and such quandary must have prevented

her to take an immediate decision. She, therefore, at the first instance

sought for the help of the local doctor on whose advice she reported

the incident to the Police and thereafter resorted to medical

assistance. Non-examination of the scribe in the instant case cannot

be fatal to the prosecution case, non compliance of which by the

prosecution in presence of creditworthy evidence can be done away

with.

In my opinion, any nexus, premeditation or connivance on the

part of the complainant to implicate the appellant in a false case is

absent. The plea taken by the appellant of political rivalry was not

established through defence witnesses. Seeking help from a literate

localite is a normal practice in village ambience. It negates any

probability of vengeance to have been exercised against the appellant

in the disguise of proximity of the PW 1 and her daughters with the

scribe. In case of such prevailing situation there would not have been

any delay to lodge a complaint and instant action would have been

taken against the appellant. The helpless and distressed mother was

obfuscated and initially went to the local doctor for relief rather than

reporting the incident to the police or disclosing the same in the

neighbourhood.

The evidence of PW 5 i.e. Dr. Dibyendu Dutta revealed the

absence of bruise, nail mark, cut injuries over the breast, neck, lower

abdomen, vulva, perineum and thigh which he had earlier mentioned

in the report marked as Exhibit 5 wherein it was further stated that

the victim had been a mentally retarded lady. According to her

mother's statement she was sexually assaulted by the appellant on

11.10.2014. The date and time of the examination was 14.10.2014 at

4 pm PW 7 i.e. Dr. Anupam Ghosh in his deposition stated that at

about 1 a.m. of the intervening night of 13.10.2014 and 14.10.2014

he had examined the victim and the report of the examination had

been marked as exhibit 7 which stated two days back on an afternoon

a man named Prema called the victim at the Samshan near her house

to give her "ice-cream" and "fuchka" while the victim went to the

samsan, the appellant Prema raped her "day before yesterday". The

mother of the victim assisted in communicating the language of the

victim patient to PW 7 who according to him was 'growth and mentally

retarded'. The Ld. Advocate for the appellant stated the date of injury

as per the injury report marked as Exhibit 7 was 12.10.2014 and the

incident took place on 11.10.2014. He stressed on the discrepancy

with regard to the date of occurrence of the incident with its

subsequent reporting asserting it to be a false accusation of the

appellant into inculpation. The serial no. 8 which mentioned the date

and time of examination in the injury report marked as Exhibit 7

delineated the same to be 14.10.2014 at 1 am.(night) which meant

that the examination was held one hour after of the midnight of

13.10.2014. It further revealed that the PW 7 mentioned the alleged

sexual assault to have occurred "two days back afternoon" which

corroborated the incident to have taken place in the afternoon of

11.10.2014 incongruity with the deposition of other prosecution

witnesses namely PW 1, PW 2 and PW 3. PW 7 had deposed of a small

tear in posterior wall of hymen that extended to left lateral wall. Active

bleeding or foreign body were not found on the private part of the

victim. After a lapse of considerable time of the incident it is evident

that any extraneous substance or bleeding will definitely be absent at

the time of examination. The victim during her examination stated

that "I could not understand what Prema was doing". She further

stated that "Prema did a dirty work with me. I got scared due to fear".

It evinced the fact that victim by virtue of her ignorance as to what she

was exactly subjected to, did not offer any resistance, out of fear of

assault. In absence of any forceful resistance any bruise or marks on

the body of the victim might not appear. The rupture of hymen

exclusively does not determine the commission of rape.

In Modi's medical jurisprudence, twenty-third edition, at pages

897 it is stated:

"At page 897: To constitute the offence of rape, it is not necessary

that there would be complete penetration of the penis with emission of

semen and the rupture of hymen. Partial penetration of the penis

within the labia majora or the vulva or pudenda with or without

emission of semen or even an attempt at penetration is quite sufficient

for the purpose of law. It is, therefore, quite possible to commit legally

the offence of rape without producing any injury to the genitals or

leaving any seminal stains."

In Amal Kumar and another vs. State of Haryana 1 the

Hon'ble Supreme Court had opined that in order to satisfy the

ingredient of rape, complete penetration is not necessary to be

present.

The Ld. Advocate for the appellant stated that the prosecution

did not examine the friend accompanying the victim prior to the

commission of the offence. Moreover, wearing apparels of the victim

was also not seized. The complaint was lodged belatedly and there had

been every possibility that the garments worn by the victim must have

been washed. The non-examination of the friend will not discredit the

evidence of the victim if her statement is sufficient to evoke confidence

to be believed and relied upon. The Hon'ble Supreme Court on several

occasions observed that corroboration is not elementary or a cardinal

principle for conviction in a rape case. If the evidence of the victim is

unambiguous, does not suffer from basic infirmity and inspires

confidence it cannot be rendered unworthy of credence.

The Supreme Court in Rai Sandeep alias Deepu v. State (NCT

of Delhi) 2 observed that,

15. In our considered opinion, the sterling witness should be of a very high quality and calibre whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the

2004) 4 SCC 379

(2012) 8 SCC 21

consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a sterling witness whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.

In the instant case the victim in her statement recorded under

Section 164 Cr.P.C. stated that the appellant at first gave her "fuchka"

to eat followed by an "ice-cream" and subsequently raped her. During

her deposition before the Court on 07.09.2015 she did not deviate

from her earlier statement and confirmed the act of rape committed

upon her by the appellant. The defence could not shake her evidence

during cross examination. In an indoctrinated rural society

manifesting obstinate social dogmas the de facto complainant will not

prevaricate and falsely implicate the appellant in the commission of

rape on her daughter causing her humiliation, aggravating the

sufferings of her daughter beyond her physical and mental disability.

The mother will generally not intend to stigmatise her daughter

dishonouring her reputation and dignity in the society. The victim PW

2 during her deposition stated that her father was not there so the

appellant "did this work" to her. This statement exemplifies the forlorn

and wretched condition of the family afflicted with anxiety and

deprivation of father's physical presence and emotional support

resulting in insecurity. Under such despondency to rely upon an

influential person in the vicinity viz. the Scribe is quite normal. The

victim identified the appellant as 'Prema Kaka' as a co-villager.

Therefore, to address the scribe as the "Sabhadipati" having been

acquainted with him over considerable period of time cannot be

considered to be tutored. The veracity of the prosecution case becomes

reliable since no mother would generally try to take advantage of or

destroy her daughter's honour, respect and moral through false

accusation of sexual molestation. Failure on her part to recollect and

name the members who accompanied her to the Police Station is

natural, considering her hapless state of mind and excruciation.

In my opinion the testimony of the victim and other prosecution

witnesses corroborated each other and is therefore worthy of credence

and reliability.

In my opinion, the prosecution has been successful in proving

its case. The conviction of the appellant Premanath Dutta @ Premnath

under Section 376(2)(1)(j) IPC is upheld.

The Ld. Trial Court has imposed maximum sentence of life

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

rigorous imprisonment for one year more, considering the fact that the

offence was perpetrated against a vulnerable lady.

However, external injuries were not found on the body of the

victim. No criminal antecedent was found against the appellant.

Balancing the aggravating and mitigating factors, I am of the opinion

to reduce the sentence imposed on the appellant. The appellant is

directed to suffer rigorous punishment for a period of 10 years and to

pay a fine of Rs. 10,000/- in default to suffer further simple

imprisonment for one year more with the aforesaid modification.

The appeal is disposed of.

The period of detention if any undergone by the appellant

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.

Let a copy of this judgment along with the lower court records

be forthwith sent down to the trial Court at once.

Photostat certified copy of this judgment, if applied for, shall be

made available to the appellant upon completion of all formalities.

I agree.

(Ananya Bandyopadhyay, J.)                   (Joymalya Bagchi, J.)