- (1.) The present appeal is directed against the order of conviction dated 26.05.2008 and sentence dated 27.05.2008 passed by the learned Additional Sessions Judge, Fast Track Fifth Court, Malda in Sessions Case No. 51 of 2007 (Sessions Trial No. 27(2) of 2007). By such order the learned Additional Sessions Judge has convicted the appellant Kashmir Sk. @ Sk. Kashmir under Section 376 IPC and sentenced him to suffer rigorous imprisonment for seven years and to pay fine of Rs. 1,000/-, in default to suffer simple imprisonment for three months.
(2.) The prosecution case in short is that on 05.10.2005 at about 8 p.m. one Rahima Khatun, minor sister of the complainant Md. Harun Seikh went outside to attend nature's call while accused Kashmir Seikh took her to a desolate place and committed rape upon her with a promise of marrying her. THEreafter, he took her to another married sister of the complainant namely, Anguri Bibi in Milki and then fled away. Over the issue there was a Salish in the locality. But the accused refused to accept the verdict of the Salish. On the basis of such complaint, the case was initiated being no. EBPS Case No. 500 of 2005 dated 12.10.2005 under Sections 493/376 IPC which resulted in filing of charge-sheet on 03.04.2006. Charge was accordingly framed under Sections 493/376 IPC, read over and explained to the accused who pleaded not guilty. THE prosecution has tendered 13 witnesses and adduced and exhibited nine documents to prove the case while no defence witness has been tendered. THE defence case appears to be a denial of the above allegation. From the impugned judgment of the learned Trial Judge it appears that he has carefully examined the testimony of all the 13 witnesses tendered by the prosecution along with the documents exhibited in this case. P.W. 1, Md. Harun Sk. is the de facto complainant who has reiterated the allegations made in the FIR (Exhibit 1). P.W. 2, Anguri Bibi is the elder sister of the victim Rahima Khatun. She has corroborated the allegation of rape as well as the incident of local Salish over the issue in presence of co-villagers. P.W. 3, Rahima Khatun, is the victim. In her statement she has claimed that on the date of occurrence she was forcibly caught hold by the accused person who proposed to marry her but she asked to inform his parents but the accused declined. From her testimony it also transpired that the accused was previously not known to her. She has categorically stated that the accused committed rape upon her by removing her wearing apparels forcibly in the said garden behind their house where she went to attend nature's call. Thereafter, the accused took her to her elder sister's house (P.W. 2) on the plea of marrying her. On arrival the accused asked the P.W. 2 to arrange for marriage and to call a Moulabi. When her elder sister's husband went to call Moulabi, the accused went outside with torch light and a badni on the plea of attending nature's call and fled away. On the next morning her elder sister took her to her father's house and reported the incident to her parents and brother. She also corroborates the attempt to settle the dispute through local Salish which yielded no result so the matter was reported to police. In her statement recorded under Section 164 Cr.P.C. (Exhibit 2) she has reiterated the same incident. P.W. 4, Dr. Kalyan Mishra examined the victim on 14.10.2005 and found absence of hymen from which it could be presumed that the girl has experienced sexual intercourse (Exhibit 4). P.W. 5, Piaru Sk. has admitted the holding of a Salish in 2005 over the incident at the instance of Aruf Sk., father of the victim Rahima Khatun and also claims that in such Salish accused confessed his guilt and agreed to marry Rahima but on condition that her father will have to pay a sum of Rs. 40,000/- in cash and a piece of land measuring 2 cottahs to the accused. As the poor father of the victim could not concede to such demand, no decision was arrived at in such Salish. He has also averred that at the time of occurrence the victim was about 14/15 years old. P.W. 6, Abdul Kuddus has corroborated P.W. 5. It also appears that P.W. 7, Ataur Sk. and P.W. 8, Sattar Sk. have been declared hostile. P.W. 9 Aruf Sk. is the father of the victim who has also corroborated the prosecution case. P.W. 10, Dr. P. B. Roy conducted Ossification Test (Exhibit 3/1) of the victim and assessed her age as 16 years + 2 years. P.W. 11, Dr. Debnath Sarkar conducted the capability test of the accused and prepared a report accordingly which has been marked as Exhibit 5. P.W. 13, SI, Atreyi Sen is the IO in this case who conducted the investigation, proved the FIR (Exhibit 6), Rough Sketch Map with Index (Exhibit 7), Seizure List in respect of the vaginal swab of the victim (Exhibit 8) and Seizure List in respect of seizure of semen of the accused (Exhibit 9).
(3.) While examining the evidentiary values of all the aforesaid oral testimonies and documentary evidence on record the learned Trial Court has carefully considered that the testimony of the prosecution witness excepts P.Ws. 7 and 8 have not been shaken in their cross-examination and credibility of their evidence was beyond all reasonable doubt. The conviction is accordingly based on unimpeachable testimony of aforesaid witnesses. According to the learned Trial Judge the delay in reporting of the incident of 05.10.2005 to the local police station on 12.10.2005 is justified and properly explained in view of local Salish conducted by the affected parties during the intervening period. Regarding age of the victim defence contention is that the FIR-maker has not stated before the Court that the victim was below 16 years of age at the relevant time. P.W. 5, Piaru Sk. and P.W. 9, Aruf Sk. who have averred that at the time of occurrence the victim was 14 years old could not tell the exact date of birth of the victim. But the learned Court has relied upon the testimony of the father of the victim, P.W. 9 who claimed the age of his daughter as 14 years at the time of commission of the offence. Learned Court below has rightly found corroboration of such oral testimony in the Ossification Test report of the victim (Exhibit 3/1) conducted by P.W. 10, Dr. P. B. Roy. Therefore, discarding the variation of the age of two years on the upper side the learned Trial Court has rightly arrived at a decision that the victim was a minor at the time of alleged offence.;