SK UMBAR ALI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against the judgement and order dated 31st July, 2007 passed by the learned Additional District & Sessions Judge, Fast Track Court, Bishnupur, Bankura in Sessions Case No. 6 (8)03 [Sessions Trial No. 1 (9)03] convicting the appellant for commission of offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for eight years and to pay fine of Rs.10,000/-, in default, to suffer simple imprisonment for one year more with further direction that 75% of the fine amount, if realised, shall be paid to the victim.

(2.) The prosecution case as alleged against the appellant is to the effect that the victim was known to the appellant as his father was a friend of the complainant's husband. The appellant developed intimacy with the family by showing sympathy towards the victim who was the daughter of the complainant and is a physically challenged person. On 25th Baiskah 1407 B.S. the complainant and his son had gone to a Pir Dargah to collect medicine and did not return for the night. Taking advantage of their absence, the appellant induced the daughter of the complainant to have physical relationship with him on the false promise of marriage and cohabited with her on 25th Baiskah 1407 B.S. and also on 26th Baiskah 1407 B.S. As a result, the victim became pregnant. There was a salish over the matter but on 7th December, 2000 such negotiations failed and the complainant took out a petition before the learned Magistrate under Section 156(3) of the Code of Criminal Procedure resulting in Patrasayer Police Station Case No. 10 dated 14th February, 2003 under Sections 376/493 IPC. Charges were framed under Sections 376/493 IPC. In the course of trial, the victim (PW12) was examined through an Interpreter and she stated that the appellant had come at night while her mother and brother were away and had cohabited with her on the promise of marriage. The victim further stated that she tried to resist him. Thereafter, when she became pregnant, she disclosed the incident to her mother. Her mother took her to a doctor.

(3.) Mr. Milon Mukherjee, learned senior Advocate appearing for the appellant, submitted that the evidence of the victim is improbable and that she was major at the time of the incident.