KRISHNA PADA MAHATO Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 30.7.96 passed by the learned Additional Sessions Judge, Purulia in Sessions Trial No. 14 of 1995 (Sessions Case No. 35A of 1992) thereby convicting the appellant under section 376 of the Indian Penal Code (hereinafter called the IPC) and sentencing the appellant to suffer detention for five years in lieu of imprisonment with further direction that the appellant being juvenile delinquent be kept in safe custody in Purulia Jail for five years. Being aggrieved by, and dissatisfied with, the judgment and order of conviction the appellant who was a juvenile at the relevant time of incident has preferred the instant appeal.

(2.) The prosecution case was started on the basis of complaint filed by the victim Charubala Mahato in the Court of the learned Chief Judicial Magistrate (hereinafter called the CJM), Purulia praying for sending the complaint to Officer-in-Charge, Purulia (M) P.S. for investigation under section 156(3) of the Code of Criminal Procedure (hereinafter called the Code) treating the complaint as FIR. According to the story as depicted in the FIR, the victim and the accused are residents of same village and victim was aged about 15/16 years old and the accused was aged about 17/18 years. There was love affair between the victim and the accused-appellant. The appellant forcibly inter- coursed with the victim and the victim raised objection but the appellant stated to her that he will marry her soon. The appellant used to meet with the victim and intercoursed with her against her will. He assured the victim that he will make his father agree in marrying her but, his father the accused No. 2 denied the proposal. Subsequently the appellant refused to marry the victim on 4th August, 1991. Since 21st January to 4th day of August, 1991 the accused made sexual intercourse with the victim against her Will and the victim did not state it to any other as she was a poor girl and her father was unable to give her marriage and the victim was under the belief that the appellant would marry her. When on 4th August, 1991 the appellant denied to marry her the victim stated the entire fact to her father, mother and others. There was a meeting in village but the accused No. 2 denied the proposal of villagers to give marriage of appellant with the victim. The villagers assured that they will settle the matter within 15 days but they failed to do anything and hence there was delay in lodging FIR. The villagers arranged for her medical treatment and she was examined by Dr. Goswami on 6.8.91 when it was detected that she was pregnant for about 7 Viz months. Learned CJM sent the petition of complaint to O.C., Purulia (M) P.S. and on the basis of it Purulia (M) P.S. Case No. 188 dated 30.8.91 under sections 493/ 376/ 506/ 109 of IPC was started against the appellant and his father. After completing investigation the police submitted chargesheet against this appellant and his father. This appellant raised the plea in the Court below that he is a juvenile and accordingly by the order of the learned Sessions Judge, Purulia an enquiry was made by the learned SDJM, Purulia, who after considering the ossification test report and school certificate opined that the appellant was a juvenile. Accordingly, trial was separated for this juvenile appellant and he was examined under section 251 of the Code. After the trial the learned Sessions Judge found him guilty under section 376 of IPC and sentenced him to suffer detention for five years in safe custody in lieu of sentence of imprisonment.

(3.) The materials on record including the Lower Court Records reveals that in the trial 11 witnesses were examined for the prosecution and the appellant did not examine any witness. Out of 11 witnesses examined in Court during trial P.W. 1 Dr. Sanatan Dutta, P.W. 3 Dr. Ramkrishna Mondal, P.W. 4 Dr. Panchanan Dey and P.W. 5 Dr. A. K. Hazari are the medical officers. P.W. 1 is a Gynaecologist attached to Purulia Sadar Hospital and on 2.9.91 he examined the victim being referred by O.C. Purulia (M) P.S. and found the victim pregnant and was carrying for 28 weeks. P.W. 3 examined this appellant and opined that he was capable of enjoying sexual intercourse. P.W. 4 Dr. Panchanan Dey held ossification test of the victim on 11.9.91 and opined that the victim completed 18 years of age but below 25 years of age on the date of examination. P.W. 5 Dr. A. K. Hazari after receiving the victim for medical examination sent her to radiologist for ossification test. P.W. 2 Kishore Kr. Sinha was Officer-in- Charge of Purulia (M) P.S. on 30.8.91 and receiving the complaint sent by the learned CJM started Purulia (M) P.S. Case No. 188 dated 30.8.91 treating the said complaint as FIR. These five witnesses are not witnesses of incident and their evidence is only corroborative in nature.