GOURHARI JANA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Challenging the judgment of conviction dated 29.05.2010 under Section 376 of the Indian Penal Code (in short I.P.C.) and sentence against the appellant to suffer rigorous imprisonment of ten years and to pay fine of Rs.10,000/ - in default of payment of fine to suffer simple imprisonment for ten months passed by learned Additional Sessions Judge, Fast Track 3rd Court, Contai in Sessions Trial No. S.T. 5/June/2008 arising out of Sessions Case No. 318/May/2008, this appeal has been preferred by convict appellant Gourhari Jana for setting aside the said judgment (hereinafter called as impugned judgment) and for his acquittal of the charge which was framed in the trial Court against him.

(2.) In the trial Court the State prosecution examined the prosecutrix (victim) as PW 1 who is a virgin young lady aged 24 years, father in law of the elder sister of prosecutrix as PW 2, a brother by relation of PW 2 as PW 3, husband of the elder sister of prosecutrix as PW 4, a neighbour of PW 4 as PW 5, father of prosecutrix as PW 6, scribe of the complaint lodged by PW 1 as PW 7, elder sister of prosecutrix as PW 8, mother of PW 4 as PW 9, medical officer who examined the prosecutrix at Contai S.D. hospital on 15.12.2006 as PW 10, another medical officer of that hospital who examined the accused appellant on 02.01.2007 as PW 11, learned Judicial Magistrate who recorded statement of the prosecutrix on 12.12.2006 under Section 164, Code of Criminal Procedure as PW 12 and the investigating police officer (in short I.O.) as PW 13. Prosecution also adduced documentary evidence which are written complaint lodged by PW 1 in the Court of learned Additional Chief Judicial Magistrate at Contai on 04.11.2006 for treating the same as FIR under Section 156 (3), Code of Criminal Procedure (in short Cr.P.C.) as exhibit - 1, statement of PW 1, recorded by PW 12 under Section 164, Cr.P.C. as exhibit - 2, a seizure list dated 17.12.2006 relating to seizure of wearing apparels of the victim as exhibit - 3, another seizure list dated 13.01.2007 relating to seizure of a torch light and a hurricane on production by PW 4 before PW 13 as exhibit - 4, medico legal report of PW 1 as exhibit - 5, medico legal report of the accused appellant as exhibit - 6 and a rough sketch map with index of the place of occurrence (in (short P.O.) prepared by PW 13 as exhibit - 7. Prosecution also produced wearing sari (Mat. exhibit - I), petticoat (Mat. exhibit - II) and blouse (Mat. exhibit - III) which were on the persons of PW 1 at the time of occurrence and seized torch light (Mat. exhibit - IV) and hurricane (Mat. exhibit - V) which were used for identification of the accused appellant at the time of his taking to his heel after occurrence.

(3.) The case of the prosecutrix is that on 3rd Kartick 1413 B.S. corresponding to 21.10.2006 PW 1 went to the house of her elder sister PW 8 and her husband PW 4 on the occasion of Kali Puja and stayed there for a few days. The accused appellant is neighbour of PW 4 and PW 8. He had visiting terms in the house of PW 4. In that house finding PW 1 alone the accused made indecent proposal to her to which she protested and cautioned him at which the accused became annoyed and he threatened her to teach a good lesson. On the 8th Kartick 1413 B.S. corresponding to 26.10.2006 in the night at about 8:30 p.m. PW 1 was going towards fishery house of PW 4 at a little bit distance from the dwelling house of PW 4 and PW 8 in order to give food and betel (PAN) to the parents of PW 4. On her way the accused embraced PW 1 from her back side and pressed her mouth with hand and laid her on the ground and removed her wearing clothes against her will. He forcibly committed rape on her. Anyhow PW 1 managed to remove hand of accused from her mouth and started screaming. PW 1 felt pain on her private organ. PW 2, PW 9, PW 4, PW 3 and PW 5 rushed to that place and they could recognise the accused with light of torch and hurricane while the accused fled away leaving PW 1 there. On the following day 27.10.2006 PW 1 submitted her written complaint at Marishda P.S. but it was neither registered nor investigation was done by police on the basis of such information. After waiting for police action the PW 1 lodged the written complaint in the Court of learned Additional Chief Judicial Magistrate, Contai for treating it as FIR under Section 156 (3), Cr.P.C. Said complaint was forwarded to Marishda P.S. and it was registered there as Marishda P.S. FIR No. 70/06 dated 11.12.2006 under Section 376, I.P.C. and the case was investigated by police.