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2015 DIGILAW 224 (CAL)

Santana Mondal v. State of West Bengal

2015-03-10

INDRAJIT CHATTERJEE, SUBHRO KAMAL MUKHERJEE

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Judgment :- Indrajit Chatterjee, J. This is one criminal appeal as filed under proviso to Section 372 of the Code of Criminal Procedure as amended in the year 2009. The present appellant is the victim/de facto complainant in a case in which the learned Additional Sessions Judge, Lalbagh, within the district of Murshidabad in Sessions Trial No.3 (8) 2012 and Sessions Case No.125 of 2010 arising out of G.R. Case No.856 of 2007 (Murshidabad Police Station Case No.123 of 2007 dated 06.08.2007) pleased to acquit the present accused/respondent no.2 as per order of acquittal dated 27th of June, 2014. The matter was heard extensively as to the point of admission of this appeal. The present respondent/accused faced the charges punishable under Sections 417, 493 and 376 all of the Indian Penal Code. The fact before the Trial Court was that the present appellant being the victim and a lady, in the afternoon of 29.07.2007, went to the jewellery shop of the present accused to collect one ear-ring for which she placed previous order and, thus, she introduced herself with the accused. The accused told her that the ear-ring was not ready and as such requested her to come to his residence, which was adjacent to his shop at 10.00 pm on that date. The prosecutrix/victim went there and found none of the family members of the accused in that house and on her asking the accused reported that his wife and parents had gone to their house at Lalgola and at that time the accused also disclosed his willingness to marry her and forcibly put vermilion on the prosecutrix and compelled her to involve into sexual act. It may be mentioned herein further that on the next day the mother and the grandmother of the prosecutrix came to that house to take back the prosecutrix and then the accused declined to allow her to go back and informed the mother of the prosecutrix that he had married the prosecutrix. It was further case of the victim/prosecutrix that this accused cohabited with her as husband and wife on 29.07.2007. It was also the prosecution case that ultimately on 31.07.2007 at about 6.00 pm before arrival of the prosecutrix’s parents the accused drove the prosecutrix out of his house and accordingly the prosecutrix went back to her house and narrated the incident. It was also the prosecution case that ultimately on 31.07.2007 at about 6.00 pm before arrival of the prosecutrix’s parents the accused drove the prosecutrix out of his house and accordingly the prosecutrix went back to her house and narrated the incident. The FIR was lodged on 06.08.2007 with this plea that the delay in lodging the FIR was due to the talk of settlement with the intervention of the local people. The prosecution examined several witnesses including the victim, her mother, her maternal uncle, doctors, I.O etc. We have gone through the judgment passed by the Learned Trial Court meticulously. Giving our anxious thought to the judgment we are at one with the Learned Trial Court that it was not a fit case for conviction in respect of any count of the charge. We express our views in the next paragraphs:- 1) The incident took place on 29.07.2007 and the case was filed on 06.08.2007 there was physical intimacy on the victim on 29th as well as on 30th of that month. No receipt showing placing of order of earring was brought before the Court to prove that actually the victim placed order for such ear-ring for which she had to go to that shop of the accused. It is difficult to believe that the victim girl went to the shop of the accused on such a day when there was none in the house of the accused and this cannot be coincidence. 2) It is also difficult to believe that the accused instantly expressed her desire to marry the victim girl getting her alone in that house and put vermilion on her forehead (a sign of marriage). She did not raise any alarm during her total stay for two days plus in the house of the accused. There is no whisper in the judgment that he was forcibly confined in a room closing the doors or windows or that somebody was guarding her. It is difficult to believe that neither she nor her mother or grandmother did not make any hue and cry when the later came to the house of the accused on 30th of July, 2007. They did not lodge any complain with the police even after they return back from the house of the accused. It is difficult to believe that neither she nor her mother or grandmother did not make any hue and cry when the later came to the house of the accused on 30th of July, 2007. They did not lodge any complain with the police even after they return back from the house of the accused. Rather the victim and her mother were instrumental to the release of the accused on bail at the District Judges’ Court at Behrampore. It is clear from the judgment that the accused/respondent was previously married and was having two children out of that. 3) The victim girl was aware as regards the rituals of Hindu marriage as depicted by her in her cross-examination. At the time of the incident she was 19 years. The medical evidence does not suggest any forcible intercourse. No injury was found either on her body or on her private parts. Thus, the story as made out by the prosecution before the Trial Court vis-a-vis the evidence cannot secure our confidence. Thus, on reading and rereading the judgment we like to reiterate that the impugned judgment is fit to be affirmed and we do that with further observation that it was a glaring example of false implication invoking the power of the Court to misuse the criminal administration of justice. This being so, this appeal is devoid of any merit and cannot be admitted. The prayer for admission under Section 372 of the Code of Criminal Procedure is dismissed. The appeal is summarily dismissed at the admission stage.