TAPAN GHOSE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is directed against the order of the Learned Additional Sessions Judge, 7th Court, Alipore convicting and sentencing the appellant to suffer rigorous imprisonment for one year under section 354 of the Indian Penal Code. The appellant was charged under section 376 I.P.C. and under section 379 I.P.C. The learned Sessions Judge held that there was no evidence on record to substantiate the charge under sections 379 and 370 I.P.C. and that therefore the said two charges failed but that the evidence justified conviction under section 354 I.P.C. and accordingly passed the order of conviction and sentence noted above. Hence this appeal. Learned advocate for the appellant argued before us that the facts and circumstances of this case clearly point out that the whole prosecution case brought before the court was Improbable and that the accused has been falsely implicated out of grudge.

(2.) Before considering the points urged by the learned advocate for the appellant the prosecution case may be briefly noted; The victim girl P. W. 1 lived with her mother-P.W.4, her sister-P.W. 3 father and other brother and sisters in Ambagan Railway Quarter at Naihati. The appellant also resided in the same colony. He lived in the Railway Quarter opposite to the one where P. W. 1 resided with her parents and brothers and sisters. On 22.7.73 the victim girl-P.W. 1 then aged about 17 years, went with her sister-P.W. 3 to witness a cinema show. That show started at 5-30 p.m. and ended at 8 p.m. Before they left their home for going to cinema they were asked by their mother- P. W. 4 that they should return early. When they were returning after the show they met the accused on the road. The accused caught P. W. 1 by the hand. Another person was with the accused. That person kept P. W. 3 detained on the road. P. W. 1 shouted and the accused put a portion of P.W. 1 sari into the mouth of P.W. 1. The accused then took P.W. 1 to a bush lying at, a distance of about 20 cubits from the Railway Institute and took out the sari and saya of P.W. 1. The accused kept P.W. 1 in the bush for about two hours. She was made to lie down on the ground and the accused did everything with his hand. After about two hours when the accused allowed P.W. I to go, P.W. I went home running. P.W. 3 who was detained by the other person was allowed to leave the place by that person about 10/15 minutes after P.W. 1 was caught by the accused and taken towards the bush. P.W. 3 went home but she waited at the gate of the house for about two hours and thereafter when P.W. 1 returned weeping she and P.W. 1 entered home and reported the occurrence to her mother-P.W. 4. Their father was then in his office doing night duty. P.W. 1 and her mother-P.W.4 went to the office bf the P.W.8 at about 12 midnight wherefrom the father of P.W. 1 was asked over the phone to come home but the father did not come that night. The father of P.W. 1 returned in the following morning and thereafter P.W. 1 and 4 went to the Police Station where P.W. 1 lodged the F.I.R. on 23.7.73 at 12-05 p.m. and the present case was, started.

(3.) Learned advocate for the appellant submitted that the prosecution gave up its original case of rape because the Medical Officer-P.W.9 on examination of the victim girl, P.W. 1 on 24.7.73 ruled out the possibility of commission of any rape within 10/12 days before the examination thereby falsifying the prosecution story of rape made out in the F.I.R. where it is stated by the victim girl that she was ravished twice by the accused and that on this ground alone the prosecution case should be thrown aside. We are unable to consider the contradiction between the F.I.R. that P.W. 1 was forcibly ravished twice by the accused and the evidence of P.W. 1 that the accused did everything with his hand, because P.W. 1 was not confronted with her previous statement in the FI.R. according to rules prescribed ill section 145 of the Evidence Act.