GOLAM MD KHAN Vs. STATE

JUDGEMENT

(1.) The accused Golam Mohammad Khan has been convicted under S.376, I. P.C. and sentenced to R. I. for a period of eight years and a fine of Rs. 1000/- in default R. I. for a further period of six months by the learned Assistant Sessions Judge, Midnapore by his judgement and order dated 7th February 1981 in Sessions Trial Case No. III of August 1980. It is this order of conviction and sentence which is under challenge in this appeal.

(2.) Briefly stated, the case of the prosecution was that on 26-4-79 corresponding to 12th Baisakh 1386 B. S. which was a Thursday, while P.W. 1 Anwara Khatun was bringing back the cattle from the field, the accused Golam Mohammad caught hold of her and tied her face with a napkin and physically lifted her to a bamboo grove at some distance, assaulted her in spite of her resistance and raped her against her will. Anwara returned home weeping and related (narrated) the incident to her mother and brother's wife who in turn reported the incident to her father and brother. That evening a salish was called which was attended to by some neighbours including the accused and his father. The salish proved ineffective and on the following morning, that is on 27-4-79 the victim girl went to Ghatal P.S. along with her brother Murshed and grandmother Pearon Bibi and made a verbal complaint which was recorded by S.I. Police Saroj Kumar Lahiri (P.W. 10) on the basis of which F. I. R. Exbt. 2 was drawn up and Ghatal P.S. Case No. 12 dated 27-4-79 under S.376, IPC was started against the accused who had been earlier produced at the P. S. and taken into custody. The S. I. Police who took up the investigation of the case went to village Maricha, visited the place of occurrence, drew up a sketch map Exbt. 3 of the place of occurrence as pointed out by the victim girl and examined some witnesses. The I.O. seized the wearing apparel of the victim girl under the seizure list, Exbt-4 and sent the same to the Chemical Examiner for examination and report. The victim girl and the accused were referred to S.D.M.O., Ghatal Hospital for medical examination. After competition of the investigation, the I.O. submitted charge-sheet against the accused under S.376, I.P.C. followed by a trial by the learned Assistant Sessions Judge and a conviction and sentence in the manner hereinbefore stated.

(3.) The prosecution case mainly consists of the direct evidence of P.Ws. 1 and 2, corroborative evidence of P.Ws. 3 and 4 and the medical evidence of P.Ws. 7 and 8. P.Ws. 5 and 6 have been examined for establishing the fact of salish alleged to have taken place in the afternoon of 26th April. Mr. Chittaranjan Das the learned counsel for the appellant, drew our attention to certain facts and circumstances appearing in evidence and argued in his usual candidness that the entire prosecution case was a fabrication and the story of the accused committing rape on the victim girl was highly improbable. In support of the improbability, the topography of the place of occurrence was brought to our notice and the medical evidence ruling out the possibility of the girl being a raped a victim was referred to. Emphasis was laid on the specific defence case that over some quarrel between the accused on the one hand and the victim's brother and father on the other regarding supply of irrigation water, the accused was assaulted and wrongfully confined by P.W. 1's father and brother.