TAPAN KISKU Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against the judgment and order dated 17th June, 2016 passed by the learned Judge, Special Court-cum-learned Additional Sessions Judge, 2nd Court, Malda in Sessions Trial No.36 of 2014 arising out of Sessions Case No.369 of 2013 convicting the appellant for commission of offence punishable under Section 376(2)(i) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs. 10,000/-, in default, to suffer further rigorous imprisonment for six months for the offence punishable under Section 376 (2)(i) of the Indian Penal Code and to suffer rigorous imprisonment for seven years and to pay fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for three months for the offence punishable under Section 4 of the POCSO Act. Both sentences to run concurrently.

(2.) The prosecution case as alleged against the appellant is to the effect that on 008.2013 at around 4.00 P.M. when the victim had gone to take her bath in a pond near her house, the appellant had caught her and dragged her into a bush and committed rape upon her. The victim shouted for help. Thereupon, her mother, P.W.6 came to the spot and the appellant ran away. The appellant had threatened the family members of the victim and as a result there was delay in lodging the complaint which finally came to be lodged on 4.8.2013 by P.W.5, the father of the victim resulting in registration of Habibpur Police Station Case No.119 of 2013 dated 4.8.2013 under Section 376 of the Indian Penal Code and under Sections 8 and 10 of the Protection of Children from Sexual Offences Act, 201 The victim was medically examined and the charge sheet was filed against the appellant. The Special Court framed charges under Section 376(2)(i) of the Indian Penal Code and under Sections 4, 8 and 12 of the POCSO Act against the appellant. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 10 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgment and order and dated 17th June, 2016 convicted and sentenced the appellant, as aforesaid. Hence, the present appeal.

(3.) Mr. Sanyal, learned senior counsel appearing on behalf of the appellant submitted that the version of the victim is most unnatural and does not inspire confidence. Date of occurrence is unclear and there is contradiction between the prosecution evidenced and the history of assault as noted by the doctor as per the version of the victim in that regard. Incident occurred in a public place. However, there is no independent witness supporting the prosecution case. Delay in lodging the FIR has not been adequately explained. No injury was found by the doctor, P.W.7 who medically examined the victim. Age of the victim has not been established beyond doubt as not ossification test was conducted. Accordingly, appeal is liable to be allowed.