GIRISH CHANDRA GUPTA - (1.) THIS appeal is directed against a judgment dated 25th February, 2008 by which the learned Additional District and Sessions Judge, Fast Track 2nd Court, Jalpaiguri, in Sessions Case No. 102 of 2003 corresponding to Sessions Trial No. 29 of 2003 (State of WB vs. Manik Roy) convicted the accused of an offence punishable under Section 376 I.P.C. By an order dated 26th February, 2008 the convict was sentenced to simple imprisonment for 10 years as also to pay fine of sum of Rs. 5,000/-, in default to suffer further simple imprisonment for a year for the aforesaid offence.
(2.) THE facts and circumstances of the case of the prosecution briefly stated are as follows: - On 9th August 2000, the prosecutrix, aged about 16 years, lodged a written complaint alleging, inter alia, that during the period between the months of Aghrayan and Chaitra of 1406 B.S she was at her maternal uncles house in order to look after her ailing maternal grandfather. THE accused Manik Roy @ Bishadu, aged about 25 years, a neighbor of the maternal uncle of the de facto complainant was a frequent visitor to the house of the maternal uncle of the prosecutrix. THE maternal uncles and their respective wives were a daily labourers. THE grandmother also occasionally used to remain absent. At an opportune moment in the month of Falgun ( 1406 B.S.) the accused called at the maternal uncles house of the prosecutrix when no one was there except for the ailing grandfather in a different room. THE accused entered the house talking from outside and finding the victim alone raped her. THE prosecutrix out of fear and shame did not disclose the incident. Subsequently the accused on the basis of a false promise to marry made her to maintain silence and to submit for further intercourse. As a result her menstruation stopped which she brought to the notice of the accused. He again asked her to keep silence and assured that he would marry her. After 2 or 3 months had elapsed the mother of the prosecutrix noticing unusual signs suspected her and took her to a doctor when the fact that she was pregnant was discovered. THEreafter, the mother of the prosecutrix met the father of the accused. He proposed to hush up the mater in lieu of money. THE prosecutrix was not willing to accept the proposal. THE matter was brought to the notice of the gram panchayat. A meeting was convened on 30th July, 2000. Neither the accused person nor the members of his family appeared thereat. In the circumstances she lodged a written complaint. During the investigation her ossification test was conducted and the reports thereof are exbts. 4 and 5. According to ossification test report on 16th September, 2000 the prosecutrix was above 16 years but below 18 years of age. The potency test of the accused was also conducted and he was found sexually capable. The report in that regard is ext.6. Subsequently, on 20th October 2000 the prosecutrix was delivered of a male child. DNA test was conducted in order to ascertain the paternity of the child. The result thereof is that the prosecutrix is the biological mother of the child and the accused is the biological father of the child as would appear from exbts.8 and 9. Mr. Amit Moitra, learned Advocate appearing for the appellant assailed the impugned judgment on the following grounds: (A) He submitted that it is not the case of the prosecution that there was no one in the house where the alleged rape took place. The ailing grandfather admittedly was there. If the prosecutrix was forcibly raped she was expected to raise hue and cry which does not appear to have been done in this case nor did the police seize any torn wearing apparels which could show any sign of resistance. The nearest neighbor Bulobala Roy was not even examined. He therefore contended that the prosecutrix was in fact a consenting party. (B) The Second submission was that the F.I.R is grossly belated and therefore does not inspire confidence. (C) His third submission was that there is no proof of the fact that the prosecutrix at the material point of time was a minor. (D) Lastly he contented that out of grudge a false F.I.R had been filed.
(3.) MR. Prasun Dutta, learned Advocate appearing for the State disputed each of the submissions advanced by MR. Moitra. Whether the prosecutrix was a consenting party is the bone of contention. We already have indicated the case of the prosecution appearing from the written complaint and the documentary evidence adduced in the case. The prosecutrix was examined as the P.W.1. She deposed in court inter alia as follows : My ailing grandfather was in his room and whereas I was in separate room. Accused Manik Roy availed of such opportunity and entered inside my room. He caught hold of me and pressed my mouth by his hand and also denuded me and committed sexual inter course upon me forcibly against my will and without my consent. Out of fear I could not express this incident to others. Few days thereafter Manik again came to the said house and proposed to me not to disclose this matter to other and thus he would marry me. But he did not comply with his said promise. Rather he committed sexual intercourse with me thrice four times on the promise of marriage. The cross-examination of the prosecutrix with respect to what was deposed by her during examination-in-chief is as follows :- I mentioned in the written F.I.R. that Manik entered in my room and thereafter he caught hold of me forcibly and also pressed my mouth and also denuded me and thereafter he committed sexual intercourse with me against my will and without my consent. If Manik Roy would agree to marry me I could not lodge any F.I.R. against him. Prior to going before the Doctor at Dhupguri I did not disclose anything about the incident to my mother. I never disclosed about the incident to any one. I was brought to Dhupgari Hospital in the last part of the month of Bhadra. From Dhupguri I was directly carried to the house of my MAMA by my mother. At that time was carrying six months.;