SK. AMINUL Vs. THE STATE OF WEST BENGAL

JUDGEMENT

(1.) Claiming himself aggrieved by and dissatisfied with the judgment dated 30.07.2010 of conviction and order dated 31.07.2010 of sentence of the charge under Section 376 (2) (f) of the Indian Penal Code (in short I.P.C.) passed by learned Sessions Judge, Purba Medinipur in Sessions Trial No. 14/December/2006 the appellant has preferred this appeal. In the impugned judgment the appellant was found guilty of the charge under Section 376 (2) (f) of the I.P.C. and thereby convicted and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.20,000/ - and in default of payment of fine to suffer further rigorous imprisonment for one year with an order that if the fine amount is realised, 50% of the same will be remitted to victim deducting the money order charge.

(2.) In the first Court the appellant as accused was charged that on 23.02.2006 he committed rape of a minor girl (hereinafter called as victim girl) aged about 8 years at Chandir bazaar under P.S. Chandipur. He was tried on that charge which was framed on the allegation made in FIR lodged by the father of the victim girl at Chandipur P.S. on 24.02.2006 at 5:15 a.m. According to the FIR, on 23.02.2006 the victim girl (PW 2) alongwith her friend (PW 8) was returning home from school and on their way at about 3:15 p.m. the appellant called them to his shop. He gave one mug to PW 8 for fetching water from tube wall and after departure of PW 8 from the shop the appellant shut down the shutter of his shop. He caught hold of PW 2 and put off her pant. He kissed on the persons of PW 2 and putting off his own pant he attempted to penetrate his penis in the genital of PW 2 when she cried. Appellant threatened her to kill by throttling and PW 2 became silent. Then the appellant closed her mouth by hand and committed rape on her. At that time another shop keeper (PW 7) of that market called the appellant and the PW 2 was released by him with direction not to disclose the fact before others. Thereafter PW 2 went to a pond and washed her pant beside their house which was noticed by her mother (PW 6). On her mother's interrogation she narrated the fact to PW 6. In the night her father (PW 1) returned home and he was apprised about the incident by his wife (PW 6). Then with the help of neighbours the PW 1 searched out and apprehended the appellant and on their interrogation the appellant made confession of his guilt before them. In the following morning PW 1 produced the appellant at Chandipur P.S. and lodged the FIR (exhibit - 1) at 5:15 a.m. Police investigated the case and submitted charge sheet against the accused appellant. On the very date of lodging FIR the statement (exhibit - 4) of the victim girl (PW 2) was recorded by learned Judicial Magistrate (PW 3) under Section 164 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) and wearing apparels of PW 2 were seized under a seizure list on which PW 1 and PW 5 put their signatures (exhibits 2 and 2/1 respectively). With the written consent (exhibit - 3) of parents of PW 2 medical examination of PW 2 was done by PW 11 (report of such examination is exhibit - 5) on 02.03.2006. For ascertaining the age of PW 2 she was examined by PW 14 on 09.03.2006 (report is exhibit - 8). PW 12 examined the accused appellant on 03.03.2006 to ascertain his capability for performing sexual intercourse (report is exhibit - 6). During trial, fifteen witnesses were examined by prosecution. Accused appellant was examined under Section 313, Cr.P.C. The appellant did not adduce any evidence. In trial, the first investigating police officer (in short I.O.) could not be examined as witness due to his death.

(3.) Defence of the accused appellant during trial was outright denial of the allegations brought by prosecution excepting the facts that the appellant has a shop at Chandir Bazar, the PW 2 is a minor girl, the appellant was apprehended by PW 1 and others in the night of 23.02.2006 and 24.02.2006 and was produced at Chandipur P.S. in the morning of 24.02.2006 and the appellant is capable to perform sexual intercourse. His specific defence is that he has been falsely implicated in the case out of political rivalry. Appellant remains on bail as per order dated 22.09.2011 passed in this appeal. The appellant has prayed for setting aside the impugned judgment of conviction and sentence and for his acquittal of the charge framed against him.