BIMAL SEAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS criminal appeal has been filed under Section 374 Cr. P. C. against the judgment dated 28. 06. 1985 passed by the Learned Assistant District and Sessions judge Alipore whereby the Learned Trial Court convicted both the accused appellants under Section 376 of the Indian Penal Code and sentenced each of them to suffer rigorous imprisonment for 10 (ten) years in connection with Sessions Trial no. 8 (1) of 1985. The brief facts of this case are that on 22. 02. 1982 in the evening one Kumari kabita (name changed) with her sister Sikha and friends Dola Ganguly, Gita Paul and Gouranga Paul, elder brother of Gita were coming from "annapurna Mandir" at madhyamgram after offering puja on the occasion of "sivaratri. " suddenly Bimal Seal (accused No. 1) gagged the mouth of Kabita on the point of a knife and she was taken to a mango grove of Sripur at 7. 30 P. M. and after reaching there, Kabita saw Satya Dev of Sripur and he was caught by Bhola Malakar (accused No. 2), a friend of Bimal. In the said garden, Bimal tore open her wearing sari and injured her with a knife and committed rape on her and thereafter accused bimal called Bhola and then he also committed rape on her. It was the further case of the prosecution that during that time Satya jumped on them to rescue Kabita but the accused attacked Satya. Hearing about the incident from the sister of Kabita, another boy went to the said garden and called for the accused Bimal by name and thereafter the accused left and ran away.

(2.) THE written complaint was lodged to Madhyamgram I. C. and it was forwarded to Barasat P. S and the said P. S. started Barasat P. S. Case No. 73 dated 23. 02. 1982 under Section 376 I. P. C. against the accused. Charge against the appellants was framed for the aforesaid offence to which they did not plead guilty. The case of the accused in defence was of total denial of the alleged occurrence. At the trial, altogether fifteen witnesses were examined by the prosecution including the complainant i. e. , Sikha Acharjee (P. W. 1), Gonga Rani Acharjee (P. W. 2), Kabita (P. W. 3), Santosh Acharjee (P. W. 4), Birendra Banerjee (P. W. 5), gouranga Chandra Paul (P. W. 6), Geeta Pal (P. W. 7), Satyajit Dev (P. W. 8), Dr. S. N. Banerjee (P. W. 9), Dr. S. N. Biswas (P. W. 10), Sri H. P. Ghosh (P. W. 11), Dr. S. R. Chakraborty (P. W. 12), Subhendu Halder (P. W. 13), P. R. Biswas (P. W. 14) and P. K. Banerjee (P. W. 15 ). Out of the above fifteen prosecution witnesses, P. W. 3 was the victim as well as the defacto complainant of this case. P. w. 1, sister of P. W. 3 was the witness to the occurrence. P. W. 2, the mother of P. W. 3, was the hearsay witness. P. W. 4, the father of P. W. 3, was also the hearsay witness. P. W. 5 being the local man was the hearsay witness. P. W. 6 being the brother of P. W. 7 accompanied P. W. 3, P. W. 1 and P. W. 7 and he was the witness to the occurrence. P. W. 8 was the witness to the occurrence. P. W. 9 being the Radiologist opined the age of P. W. 3. P. W. 10, the doctor of Barasat hospital opined the capability of intercourse of accused Bimal and Bhola. P. W. 11, s. I. of police drew up the F. I. R. P. W. 12 being a doctor of the hospital examined kabita (P. W. 3 ). P. W. 13 was the witness to the occurrence. P. W. 14 was the part I. O. of this case. P. W. 15 submitted the charge sheet after investigation. Formal F. I. R. and written complaint were exhibited in connection of this case at the time of trial.

(3.) AFTER discussing the evidence of the prosecution witnesses, the Trial Court found the appellants guilty for the offence under Section 376 of the I. P. C. and the trial Court sentenced both the accused to suffer rigorous imprisonment for 10 (ten) years each. The appellants have challenged the impugned order of conviction on the following grounds;-