TAPAS KARMAKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of the learned Additional Sessions Judge, Fast Track Court-II at Krishnagore dated 27th October 2006 passed in Sessions Trial No. 9 (12)/05 corresponding to Sessions Case No. 25 (11)/05 convicting the appellant u/s 376 of the IPC and sentencing him to suffer R. I for a period of 7 years with payment of fine of Rs. 2,000/- in default to suffer R. I for a further period of 6 months subject to set off u/s 428 of the IPC. As it appears from the FIR which was lodged within a few hours of the alleged incident on 2nd September 2005 by the victim herself with the O. C, Nabadwip PS, at about 8. 30 a. m. on 2nd September 2005 the appellant, uncle by distant relation of the victim took her to a room in a hotel on the plea that she was required to cleans the hotel room where on the previous night there was a party to celebrate birthday anniversary of the appellant's daughter, Tusi. As soon as she entered into the hotel room she was taken to a corner thereof and then the appellant started applying his hand on her breast and other parts of her body. She started crying, then she was undressed and made to lie on a bench and then raped against her will. She immediately rushed to her grandmother who enquired of the reason of her cry and she disclosed to her about the incident. The girl was in class V of the school and under 12 years of age.

(2.) NABADWIP police station recorded FIR being no. 95/05 u/s 376 of IPC against the appellant and upon enquiry submitted charge sheet against the appellant under that section of law. The learned Trial Court upon recording of evidence of 17 witnesses convicted the appellant u/s 376 (1) of the IPC and sentenced him in the manner as aforesaid.

(3.) THE victim is the main speaker of her own case and her evidence which was recorded on 16th January 2006 by the learned Judge when she was about 13 years old is that at 8. 30 a. m. of 2nd September 2005 the appellant who is her uncle by relation asked her to cleanse the hall where on the previous night birthday anniversary was celebrated of her cousin sister, Tusi, the daughter of the appellant. As she entered the hall the appellant started molesting her. She instantaneously retorted saying, "uncle what you are doing"? Paying no heed the appellant made her lie on a bench in the hall and then committed intercourse with her by gagging her mouth. She rushed home crying and reported the matter to her grandmother. Her grandmother reported the incident to her uncles and aunts and also her father and again she repeated the incident to them. Then accompanied by her father she came to the police station to lodge the FIR (Ext. 1 ). She showed the place of occurrence to the police. She made a statement before the Magistrate. She was cross examined at length and she was asked whether she scratched with her nails on the body of the accused or threw her leg against the accused. She was made to say in her cross examination that only a slight portion of the penis of the accused was pushed into her private part with no bleeding. She said that she cannot recollect whether she stated in the complaint that she felt pain along with the burning sensation in her vagina or whether she tried to raise the alarm when the appellant closed her mouth by his hand or whether semen was discharged in her private part of the body. PW 2, Kalipada Saha, the hotel keeper in whose hotel there was a birthday party of the appellant's daughter on the previous night says that at about 10 a. m. on 2nd September 2005 he heard a rumour that the appellant had committed rape upon the victim, her niece. Police came and asked him to open the hall and he opened the hall. Police seized the bench from the hall as was shown by the victim. Seizure of the bench was effected by the police in his presence. There was a cross examination by the defence that the hall was not hired by the appellant for any purpose at all and that there was no seizure of the bench. PW 3, Dr. Nripati Roy examined the appellant and found him able of performing sexual intercourse. PW 4 Bikash Kumar Saha, a neighbour of the appellant says that police came in front of the hall of PW 2 and on being pointed out by the victim the police seized the bench under a seizure list. PW 5 Sailen Mahapatra also gives the same evidence as PW 4. PW 6, Dr. Kanchan Kumar Sarkar examined the victim and said that hymen was intact and there was no marks of violence. PW 7 is a constable whose evidence is not of worth consideration. PW 8, Dr. Partha Lodh conducted ossification test of the victim and found the victim to be around 13 years of age with allowable variation. PW 9, Dilip Karmakar who is the another uncle of the victim was declared hostile although he stated in his evidence in chief that the victim and other members of her family told him that the appellant committed offence against her niece. According to the prosecution this witness stated to the IO that the victim had told him that she was raped by the appellant in the hotel hall. PW 10, Dulal Karmakar is also another uncle of the victim who said that the victim and also her grandmother told him that the appellant had committed rape upon the victim. He is a witness to the seizure of wearing apparels of the victim under seizure list. PW 11, Nepal Sarkar is a witness to the seizure of wearing apparels of the victim and the witness further stated that as the victim was weeping she told that the appellant took her to the hall of PW 2 and there at first he embraced her and then he made her lie on a bench and then after undressing her, he committed intercourse with her. PW 12, Dipak Karmakar is the father of the victim who narrated the incident in the following manner :