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2009 DIGILAW 911 (CAL)

Sital Murmu v. STATE OF WEST BENGAL

2009-12-16

D.P.SENGUPTA, PRABHAT KUMAR DEY

body2009
Judgment : SENGUPTA, J. (1.) In spite of repeated calls, nobody appears on behalf of the State/respondent. (2.) This appeal is preferred against the judgment and order of conviction and sentence dated 13.11.2003 passed by the learned Additional Sessions Judge, 2nd Court, Bankura in Sessions Case No. 29(9) of 2002 (Session Trial No. 2(3) of 2003), thereby convicting the appellant, namely, Sital Murmu, under Section 376, I.P.C. and sentencing him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/-, in default to suffer simple imprisonment for a further period of one year. (3.) The prosecution case in short is that on the basis of a complaint lodged by P.W. 1, Arati Hembrem, the case was registered with Khatra Police Station alleging commission of offence under Section 376, I.P.C. In the F.I.R, it was alleged that the victim girl, Arati read upto Class IX and the accused appellant, Sital Murmu was also a student of that school. There was love affair between victim girl and the accused appellant, which started in the year 1997. It was further alleged that, sometime in the month of Baisakh, 1407 B.S. at about 6 P.M. when she was in the nearby pond, suddenly, the accused appellant appeared there and committed rape upon her. The accused appellant assured her that he would marry her and she should not inform the matter to her parents. It was also stated in the F.I.R. that after that incident, the accused appellant used to cohabit with her on several occasions and ultimately, she conceived. According to prosecution, she was taken to a doctor to cause abortion and pregnancy was ultimately, terminated. Thereafter, the victim girl disclosed the incident to her parents and other relatives. (4.) To prove its case, the prosecution examined as many as 11 witnesses including the Investigating Officer. None was examined on behalf of the defence. The defence of the accused appellant was a plea of innocence and of false implication. (5.) P.W. 1, was the victim girl and she corroborated her earlier statement in the F.I.R. She stated about the incident of first rape upon her, one day, in the month of Baisakh, 1407 B.S., in the evening, when she went to a nearby pond, the accused appellant appeared there, caught hold of her and forcibly raped her. (5.) P.W. 1, was the victim girl and she corroborated her earlier statement in the F.I.R. She stated about the incident of first rape upon her, one day, in the month of Baisakh, 1407 B.S., in the evening, when she went to a nearby pond, the accused appellant appeared there, caught hold of her and forcibly raped her. She also stated that there was love affair and exchange of love letters between them. In her cross-examination, she also stated that after that incident, the accused appellant twice cohabited with her. The victim girl stated in her evidence that she conceived and when it was detected that she was carrying three and a half months, the matter was reported to the accused appellant and the accused appellant told that he was willing to marry her, if that pregnancy was terminated. Thereafter, the victim girl was taken to one doctor Sahu at Supur and the pregnancy was terminated. The statement of the victim girl was recorded under Section 164, Cr.P.C. by the learned Magistrate. (6.) P.M. 2, was the father of the victim girl and he stated in his evidence that he was informed by his daughter that she was raped by the accused appellant. (7.) P. W. 3, was a witness to the seizure of some letters produced by the victim girl, Arati Hembrem and seized by An S.I., D.K. Chndra. (8.) P.W. 4, was the sister-in-law of the victim girl and she stated in her evidence that after abortion, the victim girl reported to her that she conceived and such conception was terminated by the accused appellant. (9.) P.W. 5, Smt. Kanchani Murmu, was the nephew of the accused appellant and she stated in her evidence that the victim girl, Arati reported to her that there was a love relation in between Arati and the accused appellant. (10.) P.W. 6, was the Headmaster of Hirbandh High School and he produced the certificate showing the date of birth of the victim girl as 7th June, 1979. (11.) P.W. 7 was a co-villager and he stated nothing about any relationship between the victim girl and the accused appellant. (12.) P. W. 8, was the owner of a medicine shop and he stated nothing about the incident. (13.) P.W. 9, did not say anything about the incident in his evidence. (11.) P.W. 7 was a co-villager and he stated nothing about any relationship between the victim girl and the accused appellant. (12.) P. W. 8, was the owner of a medicine shop and he stated nothing about the incident. (13.) P.W. 9, did not say anything about the incident in his evidence. (14.) P.W. 10, was the Panchayet Pradhan and he identified the handwriting of the accused appellant in his letters. He also stated that he had no personal relation, or acquaintance with the accused appellant. He further stated that the appellant was a voluntary Teacher of Saksharata Mission. (15.) P.W. 11 was the investigating officer of the case, who visited the place of occurrence, examined the victim girl and other witnesses and on completion of investigation, submitted charge sheet. (16.) In the present case, admittedly, there was a relationship between the accused appellant and the victim girl. It is in the evidence of the victim girl that she was raped sometime in the month of Baisakh, 1407 B. S. and after such incident of rape, cohabitation between them continued for sometime. She also stated that due to such cohabitation, she conceived and she was taken to a doctor, where her pregnancy was terminated. But surprisingly, there, was no medical evidence to show that any pregnancy was terminated by, any doctor. No doctor was examined in the present case. After the incident, the victim girl was examined by one doctor of Bankura B. S. Medical College, who opined that the victim girl was habituated to sexual intercourse and in such a case, no definite opinion as to recent sexual intercourse could he given. (17.) The alleged incident took place sometime in the month of Baisakh, 1407 B. S. According to the School Certificate, date of birth of the victim girl was recorded 7th June, 1979. So on the date of incident, she was 21 years. That apart, she herself admitted in her evidence that at the relevant time, she was aged about 20 years. It is also surprising to note that no ossification test was held by the Investigating Agency and no such prayer was made by the investigating officer for holding such ossification test to ascertain the age of the victim girl. That apart, she herself admitted in her evidence that at the relevant time, she was aged about 20 years. It is also surprising to note that no ossification test was held by the Investigating Agency and no such prayer was made by the investigating officer for holding such ossification test to ascertain the age of the victim girl. (18.) It also appears from the evidence of the victim girl that after abortion of her pregnancy, she did not disclose the matter to any of her family members, although it was stated by her father in this evidence that he came to learn from his daughter that she was raped by the accused appellant and ultimately, she conceived. (19.) It may also be mentioned here that the doctor, who examined the victim girl was not cited as witness in the present case and the medical report, which was made Exbt. 10 also did not support the prosecution case. There was no medical evidence regarding the termination of pregnancy. No ossification was held and no prayer for such ossification test was made by the investigating officer of the case to ascertain the age of the victim. (20.) In view of the discussions made above, we are of the view that the prosecution was not able to prove its case beyond reasonable doubt. We find sufficient merit in the submission made by the learned Advocate of the appellant. (21.) Accordingly, we allow the present appear and set aside the judgment and order of conviction and sentence passed by the learned Trial Judge as the same suffer from serious illegality. The accused appellant is acquitted of the charge framed against him and the accused appellant, Sital Murmu, who is now in jail custody, will be set at liberty forthwith, if he is not wanted in any other case. (22.) Lower Court records along with a copy of this judgment may be sent down to the Court below immediately.