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2007 DIGILAW 327 (CAL)

KAMRUL ISLAM v. STATE OF WEST BENGAL

2007-05-03

ALOK KUMAR BASU, KALIDAS MUKHERJEE

body2007
KALIDAS MUKHERJEE, J. ( 1 ) THIS appeal arises out of the conviction and sentence passed by learned Additional Sessions Judge, 3rd Court, suri, Birbhum in Sessions Trial No. 7 of July, 2002 corresponding to sessions Case No. 11 of 1999 convicting the accused persons viz. Kamrul Islam and Sk. Sablu and sentencing them to suffer R. I. for 10 years each and also to pay a fine of Rs. 2,500/- each in default to suffer r. I. for six months more for the offence under sections 376 and 109 of the IPC and they were further sentenced to suffer Simple imprisonment for one month each for the offence under section 341 ipc with the direction that both the sentences shall run concurrently. ( 2 ) THE victim girl lodged complaint with the O. C. of Panrui P. S. alleging that on 07. 12. 98 when she was returning from school by bus at 2. 00 P. M. and on getting down from the bus proceeding towards her house on foot, two boys viz. Kamrul Islam and Sk. Sablu forcibly caught hold of her and dragged her into the sugarcane field. Those two boys tied her hands and feet and they tortured her physically. They wrapped her mouth with clothing and, as such, she could not raise any alarm. After regaining her senses she could realize that she was in naked position and some how could return home. Upon receipt of the complaint the Panrui P. S. Case No. 65 of 1998 dated 07. 12. 1998 was started under section 341/376 IPC. After completion of investigation the charge sheet was submitted. The learned Trial Judge after consideration of the materials on record framed charges under sections 376, 109, 341 of the IPC against both the accused persons viz. Kamrul islam and Sk. Sablu to which they pleaded not guilty and claimed for trial. ( 3 ) IN this case the prosecution has examined as many as 10 P. Ws. The learned Trial Judge after consideration of the materials on record framed charges under sections 376, 109, 341 of the IPC against both the accused persons viz. Kamrul islam and Sk. Sablu to which they pleaded not guilty and claimed for trial. ( 3 ) IN this case the prosecution has examined as many as 10 P. Ws. including the victim girl, her parents, the neighbouring person, the medical Officer, the Judicial Magistrate recording the statement of the victim girl and the I. O. ( 4 ) THE learned Trial Judge upon consideration of the evidence, recorded the order of conviction and sentence holding that the wearing 'jangia' of the victim was stained with semen was seized on the date of occurrence and on chemical examination (Exhibit 9) it was detected that the wearing 'jangia' of the victim was stained with semen. The learned Judge further observed that the prosecution was able to prove the essential ingredients of the offence punishable under section 376 of the IPC against accused Kamrul Islam and the charge under section 109 of the IPC was also established against the other accused Sk. Sablu. The learned Judge ultimately found no difficulty in recording the order of conviction and sentence as stated above. ( 5 ) MR. Sekhar Basu appearing on behalf of the appellants submits that there was no charge of gang rape although the amendment of the section in this regard had already been effected, but, the learned Trial judge framed charge under section 376/109 IPC and did not alter the charge at any stage of the trial. Mr. Basu contends that the sentence of 10 years R. I. was awarded by the learned Trial Judge in the light of the provision of section 376/ (2) (g) IPC. Mr. Basu contends that the incident occurred on 07,12. 1998 and the victim girl was examined on 15. 12,1998. Mr. Basu contends that the parents did not take steps although they approached the local people who did not pay any need to their words. Mr. Basu submits that the learned Trial Court was not justified in passing the order of conviction and sentence. Mr. Basu contends that accused Sk. 1998 and the victim girl was examined on 15. 12,1998. Mr. Basu contends that the parents did not take steps although they approached the local people who did not pay any need to their words. Mr. Basu submits that the learned Trial Court was not justified in passing the order of conviction and sentence. Mr. Basu contends that accused Sk. Sablu against whom there is allegation under section 109 IPC allegedly assaulted the victim by fists and blows and considering this factual aspect of the case the learned Trial Judge was not justified in equating the case of Sk. Sablu with that of accused kamrul Islam. Mr. Basu further contends that considering the age of the accused persons and having regard to the factual aspect of the case, the learned Trial Judge was not justified in passing such harsh sentence against the accused persons. ( 6 ) MR. Subir Ganguly appearing on behalf of the State has submitted that the evidence of the victim girl coupled with the evidence of the doctor was sufficient to warrant conviction against the accused persons and there is no ground to interfere with the order of conviction and sentence passed by the learned Trial Court. ( 7 ) P. W. 1 is the victim girl who has stated that on 07. 12. 1998 at about 2. 00 P. M. while she was returning from school by bus and after getting down from the bus, she was proceeding on foot for her house, at that time Kamrul and Sk. Sablu, the two boys of her village coming from the sugarcane field tied her hands with a rope and forcibly took her into the sugarcane field. It is also in her evidence that in the sugarcane field both these accused persons took out her wearing apparels and accused Kamrul forcibly cominitted rape upon her and at that time she had her school dress - white saree with blue, border, jangia, saya and blouse. She has also stated that for the said illegal act of the accused kamrul, she sustained pain on her wrist of both the hands, bleeding injury on her upper lip and also bleeding injury inside her nose. She has also stated that for the said illegal act of the accused kamrul, she sustained pain on her wrist of both the hands, bleeding injury on her upper lip and also bleeding injury inside her nose. It is also in her evidence that when Kamrul took attempt to commit rape upon her she tried to raise alarm, but, accused Sablu assaulted her with fists and blows severely and, as a result, she sustained pain all over her body. It is in her evidence that after committing rape both the accused persons fled away from the said place and with much difficulties after returning home she narrated the incident to her mother and her mother thereafter disclosed the incident to the father. ( 8 ) IT is in her eviderice that on 07. 12. 1998 she handed over her wearing jangia to the police and that the said jangia was stained with semen of accused Kamrul Islam. It is in her evidence that she was taken to Abinashpur PHC for her medical treatment and on 15. 12. 1998 she was taken to Suri Sadar Hospital for examination on the point of rape. In the cross-examination she has stated that Kamrul lifted upwards her wearing saree first and then he took out her wearing jangia and at that time she was lying on the ground; thereafter Kamrul started committing rape upon her and at that time accused Sk. Sablu asaulted her putting his hand on her face. It is in her evidence that said Kamrul Islam continued rape upon her 15/20 minutes and after completion of intercourse both the accused persons left the place. It is in her evidence that when the said intercourse was completed she became perplexed for about 4 minutes and thereafter she got up and finding that her saree was in lifted condition, she wore her jangia and returned home. She has stated in cross-examination that for the said intercourse she felt pain in her vagina. She made similar statement before the learned Magistrate which was recorded under section 164 cr. PC (Exhibit - 3 ). ( 9 ) P. W. 2 is the employee of Abinashpur Sriram High School who has stated that on 06. 05. 1997 victim girl was admitted in the school in class IX. She made similar statement before the learned Magistrate which was recorded under section 164 cr. PC (Exhibit - 3 ). ( 9 ) P. W. 2 is the employee of Abinashpur Sriram High School who has stated that on 06. 05. 1997 victim girl was admitted in the school in class IX. ( 10 ) P. W. 3 is the father of the victim who has stated that at the time of occurrence her daughter was a student of class X. ( 11 ) P. W. 4 Khairunnessa Bibi is the mother of the victim. P. W. 3 and p. W. 4 corroborated P. W. I saying that their daughter after the occurrence reported the incident to them. ( 12 ) P. W. 5 is a resident of the said village who visited the house of p. W. 1 and stated that victim girl narrated the incident to him. ( 13 ) P. W. 7 is the Medical Officer who examined the victim and found (i) violation done on private parts, fourchetteetorn (ii) No foreign materials detected he opined that the victim was raped. He has also stated that on examination it was detected that the hymen was not ruptured. During the course of examination he found marks of injury on her right wrist. In the cross-examination he has stated that on examining the private parts of the victim only fourchettee torn was detected and excepting the said fourchettee torn nothing was found about violation on private parts. He has stated that only considering said fourchettee torn, he came to an opinion that the said girl was raped. He has further stated in cross-examination that fourchetteetorn was recent i. e. the same was caused within seven days. He has further stated that the injury on the right wrist as shown in the report was defensive injury and that victim girl received the injury on her right wrist to defend herself at the time of committing rape. ( 14 ) P. W. 10 is the I. O. from whose cross-examination it would appear that the victim girl was sent to Abinashpur PHC on 07. 12. 1998 but the medical Officer expressed his inability about the examination of the victim girl and thereafter on 14. 12. 1998 the victim girl was sent to Suri sadar Hospital for her examination through learned SDJM, Suri. 12. 1998 but the medical Officer expressed his inability about the examination of the victim girl and thereafter on 14. 12. 1998 the victim girl was sent to Suri sadar Hospital for her examination through learned SDJM, Suri. ( 15 ) AS regards the injuries in the wrist, nose, upper lip as stated by p. W. 1 it appears from Exhibit 8 i. e. the report from Abinashpur PHC wherein it was mentioned that there was parallel bruise over right and left wrist, oozing of blood from nasal orifice and swelling of upper lip. It was mentioned therein that the girl was sent back to the O. C with the request to send the victim girl to Suri District Hospital for expert opinion as no opinion for any sexual assault could be given at block PHC level. Exhibit 9 is the FSL report which shows that semen was detected in the seized jangia. ( 16 ) FROM the evidence on record as discussed above it is clear that there was no prior enmity between the parties. In the cross-examination of P. W. 1 it was suggested that there was love affair between the accused and the victim and some letters were shown to the victim which she totally denied. It can, therefore, reasonably and safely be said that there was no scope for false implication. Having regard to the testimony of the prosecutrix coupled with the medical evidence, it is clear that she was raped and the learned Trial Judge was justified in convicting the accused persons. ( 17 ) AS regards the question of sentence, we find from the impugned judgment that the learned Trial Court while passing the sentence considered the condition of the unmarried helpless Innocent girl and observed that the offence of rape committed by the accused persons left a scar on her dignity, honour, reputation and that rape was not only a crime against the person of a woman but also a crime against the society. It further appears that as regards sentence, the convicts were not willing to say anything before the learned Trial Judge and considering of the circumstances, the learned Trial Judge passed the sentence as aforesaid. ( 18 ) HAVING regard to the submissions made by Mr. Basu and Mr. Ganguly, we are of the considered view that from the evidence on record it is clear that accused Sk. ( 18 ) HAVING regard to the submissions made by Mr. Basu and Mr. Ganguly, we are of the considered view that from the evidence on record it is clear that accused Sk. Sablu assaulted the victim when Kamrul was committing rape upon her. Although from legal point of view an abettor under section 109 of the IPC stands on the same footing with the principal offender, yet having regard to the factual aspect of the case, we are inclined to hold that a sentence of five years under sections 376/109 of the IPC for the appellant Sk. Sablu will meet the ends of justice. But we are not inclined to interfere with the sentence passed by the learned Trial Court in respect of accused Kamrul Islam. Accordingly the appeal stands allowed in part. Appellant Sk. Sablu is sentenced to suffer R. I. for five years and to pay a fine of Rs. 2,500/- in default to suffer R. I. for six months under section 376/109 IPC. The remaining portion of sentences and directions given by the learned trial Judge would remain unaltered. The impugned Judgment stands modified to the extent as stated above. Appeal accused in part.