MAFIJUDDIN SHEIKH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal has been preferred by the accused/appellant who faced the trial for the alleged commission of offence under Section 376/417, I.P.C. After trial, the learned Sessions Judge was pleased to hold the accused guilty for the offence under Section 376, I.P.C. and convicted and sentenced him to suffer R.I. for seven years and to pay a fine of Rs. 7,000/- in default further R.I. for seven months. However, he acquitted the appellant so far as the offence under Section 417 is concerned. Being aggrieved and dissatisfied with the said order of conviction, the appellant has preferred this appeal on the ground that the learned Sessions Judge was not at all Justified in convicting the appellant for the offence under Section 376, I.P.C. and it has been specifically claimed by the appellant that the learned Sessions Judge failed to appreciate the evidence properly and ignored the glaring discrepancies that were there in the evidence on the side of the prosecution. As such, the appellant has prayed for setting aside the said order of conviction, as passed by the learned Sessions Judge on him.

(2.) Prosecution case is that one Samagri Bibi, being the mother of a deaf and dumb girl, filed a petition of complaint under Section 156(3), Cr.P.C. before the learned Chief Judicial Magistrate, Nadia alleging therein that the accused/appellant, being the neighbour allured her deaf and dumb daughter with the promise of ornaments and marriage etc. and committed sexual intercourse with her on different occasions taking advantage of her absence in the house as she was busy in attending her ailing husband and son who were undergoing medical treatment in the hospital. It has further been alleged that the appellant threatened her deaf and dumb daughter with dire consequences in the event of disclosure of the act of sexual intercourse between them to anybody. The complainant has claimed that she came to know about the incident when her daughter was carrying for three months. On her query the victim pointed to the house of appellant by her pose and posture and the pregnancy was confirmed by Dr. Subrata Pal of Krishnanagar. A salish was convened, where the victim identified the appellant, as the person responsible for the pregnancy, before the villagers. At that time, the appellant confessed his guilt and he was directed to pay a fine of Rs. 20,000/-: However, the appellant paid Rs. 500/- and prayed for one month's time to pay off the balance amount. Subsequently, the accused/appellant refused to pay the balance amount and proposed the victim girl to cause abortion and when she did not agree to that proposal, the appellant started threatening the victim and her family members in various ways. When the defacto complainant approached the Police Station, the police authority refused to accept the petition of complaint on the ground of inordinate delay and as such finding no other way out, the defacto complainant filed the petition before the Chief Judicial Magistrate, Nadia who forwarded the same to the O.C. Chapra P.S. on 11.03.1999 for treating the said petition of complaint as F.I.R. and directed that the matter should be investigated. On the basis of that, Chapra P.S. case No. 77/99 dated 14.03.99 was started against the appellant. The case was investigated and after completion of the investigation, charge sheet was submitted against the accused/appellant. During investigation, the victim girl's statement was recorded by a learned Magistrate under Section 164, Cr.P.C. In the mean time, the victim girl gave birth to a child who after few days expired. Subsequently, the case was committed to the Court of Sessions and charge under Section 376, I.P.C. alternatively under Section 417, I.P.C. was framed against the accused/ appellant. During trial, prosecution in all has examined 19 witnesses to prove the charge against the accused/appellant. Defence has adduced evidence of two witnesses and the defence case as it has transpired from the trend of the cross-examination and also from the statement of the accused made under Section 313, Cr.P.C., is that of complete denial and that he has been falsely implicated in connection with this case. The learned Sessions Judge, considered the entire materials on record and thereafter he was of the opinion that there is no case for proving the charge under Section 417, Cr.P.C. and as such he acquitted the accused in respect of the said charge. However, the learned Sessions Judge was pleased to hold that the evidence on record sufficiently established that the accused/appellant was guilty of committing rape on the victim girl and as such the learned Trial Judge convicted the accused/appellant for the offence under Sections 376, I.P.C, Being aggrieved and dissatisfied with the said finding of the learned Trial Judge, the appellant has preferred this appeal.

(3.) The point that is to be considered, so far as the present appeal is concerned, is, whether prosecution has been able to prove that it was the accused/appellant who actually committed rape on the victim girl against her will. Let us now see how far the prosecution has been able to prove the said charge against the accused/appellant beyond any reasonable shadow of doubt.