UJJAL DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) On 17/11/2014 the victim, a 14 year old girl, was invited over phone by her friend Ujjal Das, appellant No.1 to attend his birthday party. He requested the victim to come to Kaltala Dighirpar. Accordingly, the victim went to the spot and Ujjal took her to a field namely, Srimath, Tentultala. The victim was perplexed and asked Ujjal why he had brought her to a field to celebrate the birthday party instead of his residence. The victim found three other persons present. They were friends of Ujjal and through conversation the victim came to know of their names as Sentu Barik @ Sentu, Pankaj Chowdhury @ Pankaj and Susanta Mondal @ Susanta, that is, appellant Nos. 2,3 and 4 herein. While she was talking with them, Ujjal suddenly took off her clothes and forcibly raped her. Thereafter, she was repeatedly raped by the other appellants. Then, the appellants fled away and she complained of the incident to her mother and uncle who recovered her. Her mother lodged written complaint at Haringhata police station resulting in registration of Haringhata P.S. case No. 446 of 2014 dtd. 18/11/2014 under Ss. 376(I)/376D of the Indian Penal Code read with Sec. 4 of the POCSO Act.

(2.) In the course of investigation, the victim was medically examined and also made a statement before the Magistrate. The appellants were arrested and charge-sheet was filed against them. In the course of trial, prosecution examined nine witnesses and exhibited a number of documents. Defence of the appellants were one of innocence and false implication. On conclusion of trial, the learned Additional District & Sessions Judge, 2nd Court, Krishnanagar, Nadia by judgment and order dtd. 6/7/2015 & 7/7/2015 convicted and sentenced the appellants for the commission of offence punishable under Sec. 376 IPC and under Sec. 4 of the POCSO Act and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs.10,000.00 each, in default, to suffer rigorous imprisonment for three moths more. Ms. Mitra, learned advocate appearing for the appellants submits that the prosecution case is full of contradictions and inconsistencies. Although the victim claimed that she had suffered injuries and blood was oozing out from her private parts, no injury in her private parts had been noted by the medical witnesses, namely, P.W. 2 and P.W. 6. It is further contended that the circumstances in which the victim was called to the place of occurrence or recovered appear to be improbable. Victim is silent with regard to any telephonic conversation between her mother or uncle. But, her uncle P.W. 5 claims that she talked with him over mobile phone. It is also argued that her wearing apparels had not been sent for FSL examination. No Test Identification Parade was held to identify appellant Nos. 2 to 4 who were unknown to the victim. Hence, the prosecution case has not been proved and appellants ought to be acquitted.

(3.) On the other hand, Mr. Das with Ms. Mitra appearing for the State argues that the deposition of the victim girl (P.W. 1) is corroborated by her mother (P.W. 3) and her uncle (P.W. 5). Evidence of the victim is plausible and in view of the statutory presumption under Sec. 29 of the POCSO Act, the prosecution case stands proved. Absence of injuries or minor contradictions in the prosecution evidence cannot be a ground to disbelieve the version of a minor victim of sexual assault. Victim had ample opportunity to identify the appellant Nos. 1, 3 and 4 during the incident. Hence, their identification in Court cannot be said to be improbable. Appellant is liable to be dismissed.