NEPAL MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) We have heard learned counsel for the appellant and learned counsel for the State.

(2.) This appeal is against an order of conviction and sentence imposed for the offence punishable under Section 376(2)(f) of the Indian Penal Code.

(3.) Learned counsel for the appellant argued that there is absolutely no legal evidence on the basis of which the offence could be, if at all, found to be established with reference to Clause (f) of sub-section (2) of Section 376 IPC. She argued that there is nothing on record to show that the accused is a relative, guardian or tutor or a person in position of trust and authority vis- vis the victim. It is also pointed out that in terms of the statute that stood as on 26.02.2012, which is the date of the alleged sexual assault, the punishment of imprisonment that could have been handed down was for a maximum period of 10 years while there was a minimum sentence of 7 years in terms of Section 376(1) as it then stood. She also impeached the reliance placed by the Court below on the examination of the victim by the Doctor to find out whether the vagina admitted two fingers. She pleaded that the test itself has been found with passage of time by the superior courts to be one which is not in conformity with settled principles of human rights as well as scientific evidence for best adjudication of such cases. Therefore, she pleaded that on the whole this may be treated as either a case of acquittal or trimming down the penalty handed down by the Court of first instance. It is shown that the accused has undergone a period of more than seven years imprisonment by now.