MAHAMMAD ALAM Vs. THE STATE

JUDGEMENT

(1.) This revisional application is directed against the judgment and order dated August' 10, 1985, passed by the learned Additional Sessions Judge, Alipore, affirming the order of conviction and sentence passed by the learned Assistant Sessions Judge, 8th Court, Alipore, under Sec. 376 of the Indian Penal Code. The petitioner was sentenced to suffer rigorous imprisonment for four years and to pay a fine of Rs.5oo/ - in default to suffer further rigorous imprisonment for three months. Shortly, stated the prosecution case is that on 15th October, 1982 at about 2 P.M. at 7, Sk. Muslim Road, Kamarhati within police station Belghoria, the petitioner Mahamud Alam, who is a tenant under the de facto complainant Nazm Ahamrned took Nazma aged about 3 and 1/2 years, daughter of another tenant Md. Munir, to his room and forcibly committed rape on her. Nazma cried and came out of the room. Being asked Nazma told that the accused opened her jangia. Thereafter the de facto complainant along with others took the victim to Sagar Datta Hospital wherefrom she was taken to R. G. Kar Hospital. On perusal of the materials on record, prima facie case under Sec. 376 of the Indian Penal Code having been established charge has been framed accordingly. The accused pleaded not guilty to the charges and claimed to be tried.

(2.) The learned Judge in convicting the petitioner has considered the testimony of the mother of the victim Nazma. But in this case the victim was examined by the learned Judge the girl appeared to be 5/6 years old. She was asked the following questions: What is her name, what is her father's name and whether she reads in school or not. According to the learned "judge "the witness gave proper replies and as such he was satisfied that "she will understand questions and she will be capable of giving replies." The witness was therefore administered oath. Then he recorded the evidence of the girl as follows:

(3.) The learned assistant Sessions Judge, who tried the case, held as follows: