Research › Search › Judgment

Calcutta High Court · body

2007 DIGILAW 525 (CAL)

Sk Selim v. The State of West Bengal

2007-07-16

KALIDAS MUKHERJEE

body2007
Judgment :- (1.) THIS jail appeal has been preferred by the appellant against the order of conviction and sentence passed by learned Additional Sessions Judge, first Court, Howrah in Sessions Trial No. VII (October) 1997 convicting the accused and sentencing him to suffer R.I. for 4 years and also to pay a fine of Rs. 500/- in default to suffer R.I. for three months under Section. 366 I.P.C. and also to suffer R.I. for 4 years and to pay a fine of Rs. 500/- in default to suffer R.I. for three months under Section 376/109 I.P.C. with the further direction that both the sentences will run concurrently. The application under section 5 of the Limitation Act bearing C.R.A. No. 326 of 1998 has already been allowed vide order dated 27.10.98: One Rashmoni Haider lodged complaint with the Bally P.S. alleging that on 12.03.92 her daughter aged about 14 years went to take bath in the Ganges, but returned home after a long time. After taking meal her daughter left the house and did not come back. After search she could not be traced out. On the next day a diary was lodged with Bally P.S. Gobru and Selim disclosed that they would trace out the victim, but no troubles should be created by the de facto-complainant against them. The mother of the victim disclosed the matter to the neighbours who started searching for the victim girl. On being chased by the local people, Gobru and Selim tried to flee away but they were apprehended. Thereafter, the victim girl was recovered from the house of one Azad. On being asked the victim girl disclosed that on the material day at night she came back home, but found that the door of her house was locked. At that time Azad came there and took her away to Bhot Bagan. At Bhot Bagan she was raped by Azad. When the local people went in the house of Azad, Gobru and Selim on seeing them started fleeing away, but they were apprehended. Azad fled away from the house. On receiving the complaint, the Bally P.S. Case No. 70/1992 was started and after completion of investigation, charge-sheet was submitted. Azad and Gobru absconded and the learned Magistrate vide Order dated 23.09.1997 filed the case against them for the present. The present appeal has been preferred by Sk. Azad fled away from the house. On receiving the complaint, the Bally P.S. Case No. 70/1992 was started and after completion of investigation, charge-sheet was submitted. Azad and Gobru absconded and the learned Magistrate vide Order dated 23.09.1997 filed the case against them for the present. The present appeal has been preferred by Sk. Selim who faced the trial before the learned Additional Sessions Judge, Howrah. (2.) THE learned Judge framed charges under Sections 366 and 376/109 I.P.C. against the accused Sk. Selim. In this case the prosecution examined as many as 11 witnesses including the neighbours, the parents, the doctor, the victim girl and the I.O. P. W. 3 was declared hostile. After considering the materials-on-record the learned Trial Judge convicted the accused and passed the sentence as stated above. (3.) THE learned Trial Judge observed that the victim girl was about 14 years of age at the time of the occurrence and the accused took part in abducting the victim girl to the house of Azad. The learned Trial Judge further observed that this accused abetted Azad to commit rape on the victim girl. The learned Judge further held that from the evidence-on-record it was clear that the accused Sk. Selim was apprehended after chase. The learned Trial judge ultimately convicted the accused under Sections 366 I.P.C. and 376/109 I.P.C. and passed the sentence as aforesaid. (4.) MR. R.K. Ghosal, the learned Counsel appearing on behalf of the appellant submits that there is no evidence to show that the appellant forcibly took away the victim girl and from the evidence it would appear that victim girl used to visit different houses to view the TV. It has been contended by mr. Ghosal that there is grave discrepancy between the statement of the victim girl recorded under Section 164 Cr.P.C. and her evidence before the learned Court, inasmuch as, in the statement under Section 164 Cr.P.C. there is no mention of the name of the appellant and she stated that she voluntarily went to the house of Azad and in the evidence before the Court she identified the appellant, but did not specifically state his name. Mr. Ghosal submits that the appellant has been falsely implicated in this case. (5.) IT has further been submitted by Mr. Mr. Ghosal submits that the appellant has been falsely implicated in this case. (5.) IT has further been submitted by Mr. Ghosal that the age of the victim girl was not established, inasmuch as the transfer certificate was not produced before the learned Court at the time of trial and the production of the register atone would not prove the age of the victim girl. It is the contention of Mr. Ghosal that the doctor who examined the victim opined that victim girl was "possibly raped" and, if rape is not proved, in that case the charge under section 109 I.P.C. does not stand. Mr. Ghosal submits that the learned Trial judge was not justified in recording the order of conviction and sentence. (6.) MR. Mallick appearing on behalf of the State relied on the evidence of P. Ws. 2,5,7,8 and11. Mr. Mallick contends that the school register was produced by P.W.11 and it is clear therefrom that the age of the victim girl was 14 years at the time of the occurrence. Mr. Mallick contends that as per the evidence of the doctor, P.W.5, the hymen was torn and the doctor further opined that the victim was "possibly raped". Mr. Mallick contends that the appellant took active part in taking away the victim to the house of azad where the rape was committed upon her and in the statement under section 313 Cr.P.C., as against question No. 2, the appellant stated that he had nothing to say. Mr. Mallick contends that nothing has been elicited in the cross-examination of the P. Ws and there is nothing to impeach the evidence of the prosecutrix and there was no chance of false implication. Mr. Mallick contends that in view of minor discrepancy between the statement of the victim girl recorded under Section 164 and her evidence before the Court, the substantive evidence before the learned Court would prevail. Mr. Mallick further submits that from the evidence of the prosecutrix it is clear that the appellant along with another person waited out side the room and guarded Azad and the prosecutrix identified the appellant at the time of trial. Mr. Mr. Mallick further submits that from the evidence of the prosecutrix it is clear that the appellant along with another person waited out side the room and guarded Azad and the prosecutrix identified the appellant at the time of trial. Mr. Mallick contends that there is nothing to disbelieve the testimony of the prosecutrix and the learned Trial Judge was justified in recording the order of conviction and sentence and there is no ground to interfere with the findings of the learned Trial Judge. (7.) SO far as the charge under Section 366 I.P.C. is concerned, P.W.1 has stated that they searched for the victim girl and on getting information went to Bhot Bagan and found that the victim along with three other persons were in the said house and on seeing them three persons tried to flee away and they could apprehend two of them, but another person fled away. (8.) IT is in the evidence of Keshab Haider (P.W.2), the father of the victim, that they searched for victim girl and lodged diary with the P.S.; subsequently, she was recovered after three days and three persons were responsible for her abduction. (9.) P.W.6 Sewnath Singh who is the landlord of the informant has stated that on 12.03. 92,2/3 boys abducted the victim and she was recovered from a house at Joybibi Lane. It is in his evidence that they apprehended two miscreants after chase. It is in his cross-examination that many people accompanied them including Mahadeb, Mewalal Singh etc. (10.) P.W.7 is the victim girl. She has stated that 3/4 persons caught hold of her and did not allow to shout; they took her to the house of Azad who was one of the miscreants. It is also in her evidence that two other miscreants were known to her by face and she identified the appellant on dock. She has further stated that she was confined there for three days and one night Azad removed her pant and committed rape upon her; that she could not shout out of threat. She has further stated that this accused along with another person waited out side the room and guarded Azad. She has further stated that she was confined there for three days and one night Azad removed her pant and committed rape upon her; that she could not shout out of threat. She has further stated that this accused along with another person waited out side the room and guarded Azad. She has stated that one day the police came and the said miscreants tried to flee away with her and she was rescued by the police and many para people were also with the police and Azad fled away; that the other miscreants were apprehended. She has stated that she made statement before the learned Magistrate. (11.) IN her cross-examination the victim girl has stated that there were other tenants in the house where Azad was staying, but she was not allowed to come out of the room or to go to the bath-room; that there was no window in the room where she was confined, only ventilator was present. She has further stated in cross-examination that she was not allowed to talk to any other tenant or to come out of the house. (12.) P.W.8 is the mother of the victim. She has stated that one day her daughter was missing and they were searching for her; subsequently her daughter was recovered by the police and the neighbours. (13.) P.W.10 is the I.O. who has stated that he did not try to ascertain the age of the victim girl by referring her for ossification test. (14.) P.W.11 is the Assistant Teacher of Belur Panchanantala Sushila balika Vidyalaya who produced the school admission register of the year 1989 and stated that the date of birth of the victim girl was 31.12.1978. It is in his cross-examination that the date of birth was noted on the basis of transfer certificate which has not been produced before the Court. (15.) AS regards the charge under Section 366 I.P.O. it is evident from the evidence of P.W.1, P.W.6, P.W.7 that the victim girl was taken away to the house of Azad, The contention of Mr. (15.) AS regards the charge under Section 366 I.P.O. it is evident from the evidence of P.W.1, P.W.6, P.W.7 that the victim girl was taken away to the house of Azad, The contention of Mr. Ghosal that in the statement under section 164 Cr.P.C. the victim has stated that she voluntarily went to the house of Azad does not carry any importance, inasmuch as, in her substantive evidence before the learned Trial Judge she has specifically stated that she was taken away to the house of Azad and confined there for three days where the rape was committed upon her. In view of her substantive evidence before the Court, the discrepancy in her statement made before the learned magistrate under Section 164 Cr.P.C. relegates to insignificance. Nothing has been elicited in her cross-examination so as to cast any shadow of doubt on her testimony. In her statement under Section 164 Cr.P.C. she has stated that "they" confined her in the said house. There is, therefore, no ground to disbelieve the evidence of the prosecutrix and her evidence remains unimpeachable. The possibility of false implication, can safely and reasonably be ruled out in view of the cogent and convincing evidence-on-record. It is in the evidence of the other P. Ws that they chased the miscreants and apprehended the appellant. (16.) P.W.5 is the doctor who examined the victim and found: " (a) Labia - normal (b) Vaginal swab and smear taken preserved and sent for pathological examination. (c) Fourchette - normal. (d) Hymen - torn-allows one finger. (e) Vaginal wall normal-no injury or foreign body found. " (17.) THE doctor gave the following opinion:- " (i) Possibly raped -to be confirmed after report of swab test, (ii) She is capable of sexual intercourse. " (18.) FROM the evidence on record it is clear that this appellant took active part in taking away the victim to the house of Azad and he waited outside the room and guarded Azad at the time of the commission of rape upon the victim girl. The appellant, therefore, abetted by intentionally aiding azad to commit rape upon the victim girl. From the evidence of P.W.11 it is also clear that the victim was 14 years of age at the time of the occurrence. After giving anxious consideration to the submissions of Mr. Ghosal and Mr. The appellant, therefore, abetted by intentionally aiding azad to commit rape upon the victim girl. From the evidence of P.W.11 it is also clear that the victim was 14 years of age at the time of the occurrence. After giving anxious consideration to the submissions of Mr. Ghosal and Mr. Mallick and after considering the evidence-on-record, I find that the learned trial Judge was justified in passing the impugned judgment of conviction and sentence and there is no ground to interfere with the findings of the learned trial Judge. There is no merit in this appeal bearing C.R.A. No. 311 of 1998. I have already mentioned that the application under Section 5 of the Limitation act bearing C.R.A. No. 326 of 1998 was allowed on 27.10.98. The appeal is, therefore, dismissed.