TARAK SARKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Challenging the correctness of the judgment and orders dated 18th May, 2007 and 19th May, 2007 passed by the Assistant Sessions Judge, Bishnupur, District: Birbhum in S.C.2(8) of 2005 the appellant has preferred this appeal. According to the appellant, the learned trial Court failed to consider the evidence of the prosecution witnesses in its proper perspective. Learned Court below did not take care about the delay caused by the de facto complainant in lodging the FIR. It is the case of the appellant that the evidence recorded by the witnesses has not been properly appreciated.

(2.) The instant appeal is pending nearly for 10 (ten) years and considering the age of the appeal, just yesterday Mr. Shataroop Purkayastha, learned advocate was appointed by this Court as Amicus Curiae. Today, Mr. Purkayastha appears on behalf of the accused/appellant and thrown light on many aspects. According to him, there is no explanation for lodging of the FIR at such a belated stage i.e. nearly 2 (two) months after the alleged offence. Prosecution case speaks that on the fateful day the victim was in her maternal uncle's house. They had gone to watch 'Kirtan' in that area when she was proceeding towards that place both came nearly to the bamboo bush the accused/appellant instantly caught her and took her lap and went to his own house. After that the accused/appellant disrobed her and committed rape upon her against her will. She bled profusely. The most curious thing is such that even after getting such injury in her private parts and such type of grievous offence had been committed upon her, she did not lodge any FIR instantly nor her father took any step for lodging the FIR. They waited for about 2(two) months for lodging the FIR but there is no such explanation on that point.

(3.) On the contrary, it appears, from the evidence given as suggestion that talks of settlement was going between the parties and perhaps for that reason it was suggested that if sum of Rs.5,000/-(Rupees Five thousand) would be given to the de facto complainant in that case FIR would not have been lodged. Ossification test of the victim as well as the accused were conducted by the respective doctors. The concerned doctor who had examined the accused had opined that he was about 16 years of age and he was capable of performing sexual act. The ossification test of the victim girl goes to show that she was in between 13 to 17 years. The doctor who had examined the victim found that there is no injury in her private parts but hymen was not intact. Therefore, she might be raped or had sexual intercourse with any body. In her statement recorded under Section 164 of the Cr.P.C. she mentioned that how she was raped. But there is mild explanation that she did not lodge the FIR because she ventilated her experience after 15 days. If a girl, who is in her teens, suffered an injury in her vagina certainly she would have been treated instantly by the medical doctor or at least she ought to have divulged to police but no early action was taken. Other witnesses did not support the prosecution case. All are hearsay witnesses. It is true that in such secret act Court cannot expect any sort of corroboration. If there is severe contradictions and if the prosecution could not justify the probability factor, Court must exercise its discretion by showing robust commonsense.