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2016 DIGILAW 1047 (CAL)

Bablu Parui v. State of West Bengal

2016-12-20

JOYMALYA BAGCHI

body2016
JUDGMENT : Joymalya Bagchi, J. 1. The appeal is directed against the judgement and order dated 04.06.2013 passed by the Learned Additional District & Sessions Judge, Fast Track Court No.3, Barasat, North 24 Parganas convicting the appellant for commission of offence punishable under Section 376/511 of the Indian Penal Code and sentencing him to suffer S.I. for five years and to pay a fine of Rs.1,000/- in default to suffer S.I. for one month more. 2. The prosecution case as levelled against the appellant is to the effect that the appellant had committed rape on the minor daughter of the defacto-complainant on 12.2.2012 at vacant field of Vill- Anowadaha, P.S. Deganga. Over the said incident a written complaint was lodged by her resulting in registration of Degnaga P.S. Case No.91 dated 14.02.2012 under Section 376(2) (f) of the IPC. 3. On completion of investigation, charge sheet was filed. The case being a sessions triable one was committed to the Court of Sessions for trial. Charge was framed under Section 376(2)(f) of IPC and the same was read over to him. The appellant pleaded not guilty and claimed to be tried. 4. In the course of trial, prosecution examined as many as 11 witnesses in the instant case. 5. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial court convicted and sentenced the appellant, as aforesaid. 6. The learned counsel appearing for the appellant submits that the evidence of the victim P.W.2 has not been supported by other witnesses. In fact P.W.4 gives an entirely different version of the alleged incident. Medical evidence as to the rape has not been proved in the instant case. It has also been argued that the appellant had demanded money from the mother of the victim and in retaliation he had been falsely implicated in the instant case. Accordingly, the appellant ought to be acquitted. 7. On the other hand, the learned counsel for the State submitted that the evidence of P.W.2 was cogent and convincing in nature. It was supported by the evidence of her mother P.W.1 and other witnesses. Hence, the appeal is liable to be dismissed. 8. P.W.2 is the victim in the instant case. She was a ten years old girl at the time of commission of the incident. It was supported by the evidence of her mother P.W.1 and other witnesses. Hence, the appeal is liable to be dismissed. 8. P.W.2 is the victim in the instant case. She was a ten years old girl at the time of commission of the incident. She deposed that the appellant took her to the field and made her lie down on the field undressed her and put his penis into her vagina. She further stated that she narrated the incident to her mother. Thereafter she went to P.S. with her mother and narrated the incident to Daroga Babu. Again she stated the whole incident before the Learned Magistrate. She proved her signature (Ext.1/1). 9. In cross-examination, she stated after evening she does not go out of the house. 10. P.W.1, Champa Parui, is the mother of the victim and the defacto complainant in the instant case. She deposed that the victim is her daughter and one year ago the appellant called the victim to purchase exercise book. Thereafter he took to the victim to the field and made her lie down on the earth and committed rape upon her. The victim returned home crying and informed her about the incident. She lodged the written complaint at Deganga P.S. Police seized the wearing apparels of the victim. 11. In cross-examination, she stated that there is a shop in front of her house. In front of the shop there is a light post. The name of the shopkeeper is Sunil Chatterjee. Some distance from the shop, the house of the appellant is situated. Police came at night. She denied the suggestion that she had demanded a huge money from the appellant and as he refused she filed this false case. 12. P.W.3, Seulil Parui @ Chutki, is the sister of victim of P.W.2. She stated that she had gone to her grand mother’s house for studying. The appellant took her sister towards the field after catching her hand with one hand and with another hand he shut her mouth. On returning home, she found her sister who told her that the appellant did bad work with her. She was interrogated after two days. 13. P.W.4, Sima Parui, is another sister of the victim. She stated that when her sister and herself were going towards the shop she wanted to relieve herself. On returning home, she found her sister who told her that the appellant did bad work with her. She was interrogated after two days. 13. P.W.4, Sima Parui, is another sister of the victim. She stated that when her sister and herself were going towards the shop she wanted to relieve herself. When she answer nature’s call, she saw the appellant took her sister away after pressing his hand on her mouth. Then the appellant told her if she told anything to anyone he would assault her. Thereafter the appellant untied his pant and did bad thing with her sister. 14. In cross-examination, she stated that she answered nature’s call beside the shop. There is light in the shop and people used to play cards there. 15. P.W.5, Barun Kumar Parui, and P.W.6, Rabin Parui, are the seizure list witnesses. They have identified their signatures on the seizure list (Ext. 2/1 & 2/2). 16. P.W.7, Nato Parui, is the grand mother of the victim. She deposed that her grand daughter came to her and informed that the appellant did some illegal act upon her. 17. P.W.8, Nemai Das, is the scribe of the first information report. 18. P.W.9, Ishani Chakrovorty Banerjee, is the Magistrate who recorded the statement of the victim (Ext.1 & Ext. 1/1). 19. P.W.10, Kajal Ch. Roy, is the Radiologist who conducted the radiological examination of the victim and opined that her age was between 10 to 12 years (Ext.3). 20. P.W.11, Siddhartha Sankar Mondal, is the investigation officer in the instant case. On 14.02.2012 a written complaint was lodged by Champa Parui and as per direction of superior officer he started Deganga P.S. Case No.91 dated 14.02.2012 after making an endorsement on the first information report (Ext.4/1). He drew up formal F.I.R. (Ext.5). He visited the place of occurrence and drew up rough sketch map with index (Ext.6). He examined witnesses, made arrangement for medical examination of the victim. He also recorded statement of victim under Section 164 Cr.P.C. He seized the wearing apparels of the victim (Ext.2). He, thereafter, filed the charge-sheet. 21. I have perused the evidence of P.W.2, the victim, who is a minor girl aged around 10 years. She has unequivocally stated that on the fateful day the appellant had taken her to the field made her lie down and committed rape on her. He, thereafter, filed the charge-sheet. 21. I have perused the evidence of P.W.2, the victim, who is a minor girl aged around 10 years. She has unequivocally stated that on the fateful day the appellant had taken her to the field made her lie down and committed rape on her. Such evidence is supported by her mother, P.W.1, and her sisters P.W. 3 and 4. It is true that the deposition of P.W.4 is inconsistent with other witnesses. She claims to be present with the victim at the place of occurrence. Her presence, however, is not admitted by the victim P.W.2 or the other witnesses namely P.W.1 and 3. 22. Therefore, I am therefore inclined to disbelieve the version of P.W.4 that she was an eyewitness to the alleged incident. Even if one discounts the version of P.W.4, the deposition of the victim, P.W.2 which is clear, cogent and reliable cannot be brushed aside. Moreover, such evidence is supported by the version of P.W.1 and 3 who are the mother and the sister of the victim herself. 23. In view of the aforesaid evidence I hold out that on the date of the incident i.e. 12.02.2012, the appellant had taken the victim to the field and tried to ravish her. 24. It appears that the victim was medically examined but such medical examination had not been proved due to non-examination of the doctor. In the absence of medical evidence, as aforesaid, the trial court held the appellant guilty of attempting to commit rape upon the victim. 25. In the aforesaid facts and circumstances, I do not find any illegality in the conviction and sentence imposed on the appellant. Hence, the conviction and sentence of the appellant is upheld. 26. The appeal is dismissed. 27. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them in terms of 428 of the Code of Criminal Procedure. 28. Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance and execution of the sentence. 29. Certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities.