MD MIZAM Vs. STATE OF WEST BENAGAL

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of conviction and sentence passed by learned Additional Sessions judge, Fast Track Court-4, Raghunathpur in Sessions Trial No. 2 (1) of 2003 corresponding to Sessions Case No. 63 of 2000 convicting thereby the appellants under section 363 IPC and sentencing each of them to suffer R. I. for 4 years and to pay a fine of Rs. 5,000/- i. d. to suffer R. I. for one year. Appellant Md. Mizan has been convicted and sentenced to suffer imprisonment for five years and to pay a fine of Rs. 5,000/- i. d. to suffer R. I. for one year under section 366a IPC. No separate sentence was passed by the learned Trial Judge against convict Niamul Hoque under section 366a ipc. The appellant Md. Mizan has also been convicted and sentenced to suffer R. I. for seven years and to pay a fine of Rs. 10,000/- i. d. to suffer R. I. for one and half years under section 376 IPC with the direction that the sentences shall run concurrently.

(2.) THE prosecution case, in short, is that the informant Gulzar Hossain lodged complaint with Raghunathpur P. S. on 17. 08. 96 alleging that his daughter aged less than 16 years and a student of Class IX in Cheliama girls High School went to the school, but, did not return home on 13. 08. 96. On 14. 08. 96 the informant lodged a missing diary with Raghunathpur P. S. During search the informant came to learn that on the date of incident i. e. on 13. 08. 96 during the tiffin hours at about 1. 30 p. m. Niamul Hoque took her away from the school. The victim was taken to Md. Mizan who took her to Cheliama bus stand. Thereafter the victim girl was enticed away to Purulia by a trekker and they spent one night in the house of one Munna Tailor near Purulia Court. Thereafter they stayed in a house near Islamia hotel at dhanbad Road. Taking advantage of the minority of the victim girl, Mizan might have married and committed rape upon her. Upon receipt of the complaint, the Raghunathpur P. S. case No. 47 of 1996 was started and after completion of investigation chargesheet was submitted. The charges were framed against the accused persons under sections 363, 366a and 366a/109 ipc against both the accused persons. The charge of section 376 IPC was also framed against the accused Md. Mizan. Both the accused persons pleaded not guilty and claimed to be tried.

(3.) MR. Bag, learned Counsel appearing on behalf of the appellants submits that the incident occurred on 13th of August, 1996 and on the next day missing diary was lodged and on 17th August, 1996 the FIR was lodged by the informant. Mr. Bag contends that there is no evidence of enticing away the victim girl. Mr. Bag contends that from the evidence of the P. Ws. it would appear that if the victim left the school, she had left voluntarily and the learned Trial Court failed to appreciate the evidence from its proper perspective. Mr. Bag contends that learned Trial Court ought to have relied on the ossification test which clearly shows that the victim girl was major on the date of alleged incident. It is contended that no shouts or hue and cry was raised by the victim girl while she was allegedly taken away. It is further contended that there was no mark of violence on the private parts of the victim girl. It is contended that medical evidence was not properly considered by the learned Trial Court and the absence of hymen, ipso facto, is not the conclusive proof of alleged commission of rape upon the victim girl. Mr. Bag contends that the learned Judicial Magistrate recorded the statement of the victim girl under section 164 Cr. PC in a casual manner. Mr. Bag contends that the learned Trial Court was not justified in recording the judgment of conviction and sentence against the appellants.