MURARI PRASAD SHRIVASTAVA,J. - (1.) THE present appeal is directed against the order of conviction and sentence dated 29.01.2007 and 31.01.2007 respectively passed by the learned Additional Sessions Judge, 1st Court, Krishnagar, Dist.- Nadia, in Sessions Case No. 112 (3) 05 relating to Sessions Trial No. iii of 2006 under Section 376 (1) I.P.C whereby the appellant was sentenced to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000/- in default to suffer simple imprisonment for 5 months, the learned Court further ordering that the said amount of fine, if paid, shall go to the de facto complainant-cum- victim, after deducting the expenses therefrom for sending the amount by money order.
(2.) THE prosecution case, in brief, is that on 11.10.2004 at about 7 p.m when the de facto complainant was working on the weaving machine in the house of one Ajit Ghosh, the accused Babu Pal, who used to work on another weaving machine in an adjacent premises, suddenly came from behind and gagging her mouth with her 'orna' forcibly dragged her to the bushes behind the premises, made her to lie down on the ground, tore open the ' churidar' which was on her person as also her inner panty, undressed himself and thereafter inserted his male genital organ forcibly into her female genital organ against her wishes. Since the mouth of the de facto complainant was tied, she could not shout but in the mean time a lady in the nearby house scolded her child loudly whereupon the accused out of fear left her and fled away. The de facto complainant became senseless and upon regaining her senses found her mother to be present who took her home and thereafter they came to the P.S. and lodged the written complaint. On the basis of the said F.I.R, Nabadwip P.S. Case No. 123 of 2004 was started and investigated. After completion of investigation charge sheet was filed against the accused under Section 376 I.P.C. Charge was duly framed against the accused for the offence punishable under Section 376 (1) I.P.C and upon the contents of the charge being read over and explained to the accused he pleaded not guilty and claimed to be tried. In all 12 witnesses were examined on behalf of the prosecution. The F.I.R., rough sketch map with index, seizure lists and other documents were admitted in evidence and were marked as exhibits. The wearing apparel of the victim as well as X-ray plates relating to the ossification test were marked material exhibits. The defence did not adduce any evidence and its plea was simply one of innocence. The learned Additional Sessions Judge upon consideration of evidence and materials on record found that the accused was guilty of the offence punishable under Section 376 (1) I.P.C and convicted and sentenced him to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000/- in default to suffer simple imprisonment for
(3.) MONTHS. 5. Though the appellant preferred the present appeal challenging the sustainability of the judgement on various grounds, Mr. Subir Debnath, learned Advocate for the appellant has frankly submitted that he is not challenging the conviction of the appellant but only the sentence imposed in the facts and circumstances of the present case. Mr. Debnath contends that though the de facto complainant has alleged about sustaining injuries on her private parts which has also been corroborated by her mother, the doctor P.Ws.1 and 2 who examined the victim and prepared the injury report found no injury on or around her private parts which clearly renders the story of forcible penetration improbable. He also submits that the material witnesses Ajit Ghosh and Madhab Biswas have not been examined by the prosecution and no explanation is forthcoming in this regard. Mr. Debnath also refers to some minor contradictions in the evidence of the PWs. However, this has been discussed by learned Additional Sessions Judge in details and as learned Advocate for the appellant has not challenged the conviction, I do not find it worthwhile to discuss the same. However, the fact remains that at the time of the alleged offence the accused was quite young and moreover he is in custody since the date of passing of the judgment in January 2007 and also for some period prior to the same. Furthermore, it has come out that his parents and grand father are wholly dependent on him. Also considering the other relevant factors and materials on record I am of the view that the substantive sentence should be reduced by way of modification to the effect that instead of suffering Rigorous Imprisonment for 7 (Seven) years it would be justified if the appellant is sentenced to suffer Rigorous Imprisonment for 6 (Six) years and also to pay fine of Rs. 5,000/- (Five thousand) in default to suffer Simple Imprisonment for 5 months.;