SUJIT DUTTA Vs. THE STATE OF WEST BENGAL

JUDGEMENT

(1.) Appellant has preferred this appeal challenging the judgment and order against the appellant of conviction and sentence of rigorous imprisonment for ten years and to pay fine of Rs.5000/- and in default of payment of fine further rigorous imprisonment for five months of the charge under Section 376 of the Indian Penal Code (in short I.P.C.) passed by learned Additional Sessions Judge, Fast Track Court, Mathabhanga, Cooch Behar in Sessions Trial No. 5 (7)/2007 arising out of Sessions Case No. 81 of 2007. In the impugned judgment order has also been passed for payment of the fine amount, if realised, to the victim girl as compensation.

(2.) The case of the prosecution in the trial Court was that a minor girl aged about 12 years was raped by the accused on the 1st August, 2002 at about 10:00 p.m. in an open place near the house of the victim girl (PW 8). At the relevant time of occurrence the victim girl and her ailing grandmother who was sleeping then were present in their house. The accused went to that house and asked for providing him fire for his smoking. The victim girl, knowing the voice of appellant, opened the door taking a burning kerosene lamp to supply fire to the accused when the accused closed her mouth (gagged) with a napkin and took her on his shoulder to the place of occurrence and raped her forcibly making her nude. Due to such incident hymen of the victim girl was ruptured and she suffered from bleeding and pain. The accused threatened the victim with dire consequence in case of her disclosure of the incident before others. In that night PW 8 did not disclose the fact before anybody. In the next morning she narrated it to her grandmother and uncle (PW 1). Then PW 1 informed the villagers who firstly assured that they would arrange for amicable settlement but they did nothing. Thereafter on 4.8.2002 PW 1 lodged FIR at police station at 8:15 p.m.

(3.) During investigation the statement of the victim girl (PW 8) was recorded under Section 164 of the Code of Criminal Procedure (in short Cr.P.C.) which was marked exhibit- 15 during trial. She was medically examined by PW 12 on 6.8.2002 and the report of such examination is exhibit- 7. On ossification test her age was ascertained as 10-12 years as per report (exhibit- 8). The accused/ appellant was medically examined by PW 7 and as per report (exhibit- 3) there is no evidence from which it can be said that the person is incapable for sexual intercourse. Total fifteen witnesses were examined by prosecution during trial. PW 8 is the most vital witness of the prosecution. Neither in her earlier statement under Section 164, Cr.P.C. nor in the deposition which was tested by cross-examination she stated anything to disbelieve her truthfulness or specific allegations against the accused/appellant regarding the commission of rape on her by the accused. In the matter of happening of the occurrence the PW 8 was sufficiently corroborated by other witnesses who deposed as post occurrence witnesses gathering knowledge of the occurrence from PW 1 or PW 8. Age of the victim girl was sufficiently proved by victim's uncle (PW 1) and the Head Master (PW 14) of the school where the victim girl was admitted in Class- V on 23.05.2002 as per admission register (exhibit- 10) duly corroborated by medical evidence of PW 7 and exhibit- 3 that at the relevant time of occurrence the PW 8 was a minor girl aged around twelve years. Regarding medical examination of PW 8 by PW 12 after five days of occurrence the evidence of PW 12 appears to us self-contradictory. PW 12 stated that there is no sign by which it can be said that the girl is raped. Simultaneously, he stated that hymen is ruptured and during cross-examination he stated, "There is less possibility rupture of hymen in case of girl of 10-12 years by means other than rape". His said evidence in substance supports the prosecution case that the PW 8 was raped in the night of 01.08.2002 although the PW 12 expressly opined otherwise. In the impugned judgment learned Additional Sessions Judge meticulously scrutinized the evidence of each witness and has believed the prosecution case to be true and held that the prosecution has been able to prove the charge of rape on the victim beyond reasonable doubt and the accused is guilty of the charge under Section 376, I.P.C.