Calcutta High Court: The Division Bench of Joymalya Bagchi and Bivas Pattanayak, JJ. modified a sentence imposed which was given in relation to commission of offence punishable under Section 376(2)(f) of the Indian Penal Code, sentencing to suffer rigorous imprisonment for ten years and also to pay a fine of Rs 10,000.

Prosecution case, as alleged against the appellant was that 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. Written complaint was lodged by the mother of the victim.

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 convicted and sentenced the appellant, as aforesaid.

In the present petition, amicus curiae drew the attention of the Court towards evidence of the victim girl and submitted that the victim girl had not spoken of penetration. Lack of penetration was corroborated by medical officer who did not find any injury on the private parts of the victim. Hymen was also found intact. He prayed for acquittal.

Advocate appearing for the State submitted that the evidence was corroborated by other witnesses including a neighbour. Lack of injury simplicitor cannot be ground to disbelieve the prosecution case.

The Court noted that version of the victim to the extent that on that night the appellant had entered her room and misbehaved with her was proved beyond doubt. However, it was argued that the evidence of the victim does not make out a case of rape. In cross-examination she clarifies that the appellant attempted to rape her but could not do so as she shouted for help.

It is settled law penetration even of the slightest degree is necessary to establish the offence of rape.

The Court after analysis of the evidence found that evidence on record showed no case of penetration and converted the conviction of the appellant to one under Section 376(2)(f) read with Section 511 of the Indian Penal Code instead of Section 376(2)(f) of the Penal Code.

Appellant had already undergone more than 8 years of imprisonment and in these circumstances, the Court modified the sentence imposed and directed the appellant be sentenced to suffer imprisonment for the period already undergone and to pay a fine of Rs.10,000/-.[Dipak Singha v. State of W.B., C.R.A. 822 of 2013, decided on 14-02-2022]

Amicus Curie: Mr Pawan Gupta

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

Suchita Shukla, Editorial Assistant has reported this brief.

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