Pratap Dolai vs State Of West Bengal

Rajarshi Bharadwaj, J

This appeal arose out of a judgement and order of conviction dated 29th and 30th of June, 2015 passed by the Additional District & Sessons Judge, Fast Track 2nd Court, Contai, Purba Medinipur in case No. S.T. No. 01/April 2011/SC No. 31/Jan/2011 sentencing the appellant to suffer rigorous imprisonment for five (5) years and to pay a fine of Rs.4,000/- (Rupees four thousand) in default, to suffer simple imprisonment for a further period of six months.The appellant is also directed to pay a compensation of Rs. 10,000/- (Rupees Ten Thousand) to the victim girl for commission of offence punishable under Sections 376/511 of Indian Penal Code.

The prosecution case, in brief is that on 9th March, 2010, during school hours, when the victim went to toilet of Sitala Prathamik School at Betuliya Chak Lalpur, at that time the appellant Pratap Dolai entered into the toilet and committed rape upon the victim girl.

The instant case was started on the basis of a complaint dated 11th March, 2010, lodged by one Haripada Das before officer-in-charge Bhagwanpur Police Station. After receiving the complaint, the officer-in-charge, Bhagawanpur Police Station Bhagawanpur initiated P.S. Case No. 23 of 2010 dated 11th March, 2010 under Section 376(2) of the Indian Penal Code. The accused was arrested and produced before Court. After completion of investigation, charge sheet was submitted and on the basis of materials on record, charge was framed against the accused under sections 376/511 of the Indian Penal Code. The substance of accusation was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. On the completion of the prosecution evidences, the accused/appellant was examined under section 313 Code of Criminal Procedure and the appellant pleaded innocence by defending himself.

Mr. Tapan Datta Gupta, learned Counsel appearing on behalf of the appellant submitted that the case was concocted out of political rivalry and was established by the defence. From the medical report, it appears that there was no assult upon the victim and therefore, the learned trial judge came to a conclusion that since there was no penetrative sexual assult, the appellant was convicted under sections 376/511 of the Indian Penal Code. It is submitted that the elder sister of the victim girl in an eye witness to the incident, but she has not been examined as prosecuiton wtiness which indicates that the petitioner is falsely implicated in this case.

Learned advocate for the State submitted that the statements of P.W.1, P.W. 2, P.W. 3, P.W. 5 and P.W. 7 established the fact that the accused/appellant assaulted the victim girl. He further submitted that as the version of the victim has been corroborated by other witnesses, the appeal is liable to be dismissed.

Heard learned advocates for the parties.

The prosecution has examined as many as twelve (12) witnesses to substantiate the charge against the accused person.

P.W.-1, the father of the victim has stated that the incident took place on 9th March, 2010. At that time, the age of the victim girl was six years and she was reading in Sitala Primary School in Class-I. On that day the victim girl returned home with Basanti Das at about 02-00/02-30 p.m. After returning home, the victim girl told him that in the school she had gone to attend her nature's call in the latrine of the school. At that time, the accused Pratap Dolai entered into the latrine and forcibly committed rape upon her.

P.W.-2 who is the victim girl herself has stated that on the fatetful day she went to the latrine of the school accompanied by her elder sister, Basanti Das. She forgot to lock the room of the toilet from inside. At that time, the accused entered into the toilet room and pressed his penis in her private part. When she started crying, then the accused fled away from the spot.

P.W.-3, the mother of the victim has stated that on the fateful day after returning from Primary School, the victim girl told her that she has been facing difficulties in urinating. On being asked the victim girl further stated to the witness that on the day of the incident when she went to the toilet of her school to attend her nature's call, at that time the accused Pratap Dolai entered into the toilet and committed rape upon her. The victim girl further stated to the witness that the accused forcibly embraced her and pressed his penis in her vagina and when she began to cry the accused person fled away from the place of occurrence.

P.W.-4 who is the Headmaster of Betuliya Chak Lalpur Sitala Prathamik Vidyalaya, proved the admission of the victim girl in his school by producing Admission Register and also the attendance of the victim girl on the fateful day in the school by producing Attendance Register.

P.W.-5 who is a medical officer, has stated that he opined that the victim girl was not faced with intercourse. During examination, he found swelling over both vulva present and reddish discolouration inside labia minora. He further opined that such type of injury may be caused if any person tries to insert his penis in the vagina of a girl aged about six years.

P.W.-6 is also a medical officer who proved the medico legal report of victim girl.

P.W.-7 is also a medical officer who examined the accused person and opined that the patient was potent.

P.W.-8 has been declared hostile by the Prosecution.

P.W.-9 has stated that he was informed by the de facto complainant that on the fateful day during school hours, her daughter i.e. victim girl was sexually molested by the accused in the school toilet.

P.W.-10 has been declared hostile by the Prosecution.

P.W.-11 and P.W.-12 are the investigating officers who investigated the case and submitted charge sheet against the accused person.

It appears from the evidence on record that the victim girl was a minor on the date of incident. She categorically stated in her statement that the victim girl went to toilet at her school and at that time the appellant entered into the toilet and committed rape upon the victim girl. The victim girl was medically examined and it appears from the medical report that the doctor found swelling over both valva and reddish discolouration inside labia minora.

Although, it has been desperately argued before this court that the appellant was not present at the time of the incident, no such plea was raised nor any evidence led to probabilise, such plea of alibi on behalf of the appellant during trial.

In view of the aforesaid discussion, the appellant is found guilty of the offence punishable under Sections 376/511 of the Indian Penal Code.

Coming to the issue of sentence of the appellant and after considering the submission of the learned Counsel appearing for the appellant that the appellant was on bail during trial and no other criminal cases are pending against him and after considering the facts and circumstances of this case, the appellant is sentenced to suffer rigorous imprisonment for 5 (five years) and to pay a fine of Rs. 4,000/- (Ruppes four thousand) only, in default to suffer simple imprisonment for 6 (six) months is modified to the extent that the appellant is sentenced to suffer rigorous imprisonment for 5 years (five years ) and to pay a fine of Rs. 4,000/- (Rupees four thousand only) in default to suffer simple imprisonment for another 1 (one ) month.

The convict is also directed to pay compensation of Rs. 10,000/- (Rupees Ten Thousand) to the victim girl.

Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure.

Accordingly, the appeal is dismissed.

Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.

Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.