ASHOK GOLAY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against the judgment and order dated 27.08.2014 and 28.08.2014 passed by the learned Additional District and Sessions Judge, 2nd Court, Darjeeling in Sessions Trial No. 12 (1)/2014 arising out of Sessions Case No. 8/2014 convicting the appellant for commission of offence punishable under Section 376(1) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 10,000/-, in default, to suffer rigorous imprisonment for six months more.

(2.) The prosecution case as alleged against the appellant is to the effect that on 18.09.2013 uncle of the victims (P.W.9) noticing suspicious behaviour on the part of the appellant in going to the residence of the victims in the absence of their parents, called him to discuss the matter in the evening. The appellant did not turn up in the evening. On the next day i.e. 19.09.2013 when the appellant turned up, the victims, P.Ws.5 and 6 complained that they have been sexually exploited by him. Over such issue, P.Ws.5 and 6 lodged a joint complaint with the police station resulting in registration of Kalimpong Police Station Case No.248 of 2013 dated 19.9.2013 under Section 376 of the Indian Penal Code. In conclusion of investigation, charge sheet was filed against the appellant. The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of the Additional District and Sessions Judge, 2nd Court, Darjeeling for trial and disposal. Charge was framed under the aforesaid provision of law. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 14 witnesses and exhibited a number of documents. In conclusion of trial, the trial Judge by the impugned judgment and order dated 27.08.2014 and 28.08.2014 convicted and sentenced the appellant, as aforesaid.

(3.) Mr. Bhattacharyya, learned Senior Advocate appearing on behalf of the appellant submitted that the charge framed in the instant case is woefully vague and does not comply with the basic requirements of Section 212 of the Code of Criminal Procedure. Date and time of occurrence has not been specifically stated in the charge. It is a rolled up charge where allegation of rape of P.W.5 and P.W.6 have been clubbed together. Framing of charge in such manner has severely prejudiced the appellant and had occasioned failure of justice. Not only that, the evidence of P.W.5 and P.W.6 is gloriously vague as to the time and date on which they had been ravished by the appellant. P.W.5 claimed that she was ravished once in the house of Panchay Sundas and on another occasion in that of the appellant. P.W.6 claimed that she was ravished in a bamboo cluster which is a public place open to public view. Evidence on record does not specify the time and date of the occurrence and there is no explanation as to why the victims kept quiet about the allegations of forcible rape in the instant case. He accordingly prayed for acquittal of the appellant.