KANCHAN CHAKRABORTY, J. - (1.) THIS appeal is at the instance of Laxmikanta Deb Sarma and directed against the judgement and order dated 6.9.2007 and 11.9.2007, respectively, passed by the learned Additional Sessions Judge, Fast Track Court no. 2, at Dinhata, in Sessions Trial No. 52(6)/2007 arising out of Sessions case no. 135/2007, thereby convicting the appellant Laxmikanta Deb Sarma for committing offence punishable under Section 376 of IPC and sentencing him to suffer R.I for 10 years with fine of Rs. 5000.00 .
(2.) THE victim, a young girl aged 19 years old had been suffering from unknown diseases and was bed-ridden for quite a long period. Her parents came to know that the appellant, Laxmikanta Deb Sarma, a priest of Gosaiganj Kali Temple used to cure diseases by various methods. They made contact with him and on 10.7.2006 the appellant, attended the victim (Since deceased) in her house and started treatment by various methods. On 12.8.2006 at about 4 P.M. he entered into the room of the victim, closed the doors and windows saying that he would treat her by the 'Jharfuk' method and cautioned everybody not to enter into the room or peep through the window or door to see what was going on inside the room. On the pretext of 'Tantrik'/ 'Jharkuk' treatment, and/or treatment by chants and incantations as stated in the F.I.R. he, to the utter surprise of the victim, raped her and told her not to disclose the incident to anybody. He also told the victim that in order to cure her, he would continue such method of treatment until her recovery. On 26.9.2006, the appellant had sexual intercourse with the victim on the pretext of his aforesaid method of treatment for the last time. The victim fell seriously ill and disclosed everything to the wife of her elder brother who narrated the incidents to other family members. The victim lodged an F.I.R. with Dinhata Police Station on 13.10.2006. On the basis of the said F.I.R., Dinhata Police Station case no. 391 of 2006 was started against the appellant, Laxmikanta Deb Sarma under Section 376 of IPC. In course of investigation the victim was medically examined and her statement under section 164 of the Code of Criminal Procedure was recorded. The investigation into the case ended in a charge-sheet against the appellant who was arrayed to face the trial under Section 376 of IPC in the Trial Court. Unfortunately the victim girl, died before the Trial commenced. So, the learned Trial Court could not record her evidence in course of trial. Nine(9) witnesses were examined on behalf of the prosecution including Doctors who examined the prosecutrix, (the victim herself) and the appellant. Some documents, such as, F.I.R., the rough sketch map of the place of occurrence, the seizure list in respect of the wearing apparels of the victim, the statement of the victim under Section 164 Cr.P.C. and medical papers were admitted into evidence and marked as exhibit on behalf of the prosecution. No witness was examined on behalf of the appellant. He, however, pleaded his innocence when examined under Section 313 of the Code of Criminal Procedure. The learned Trial Court, upon consideration of the evidence on record, oral and documentary, came to a finding that the prosecution brought home the charge of rape against the appellant and accordingly, recorded his conviction and sentence which is impugned in this appeal. Mr. Basu, learned Counsel, appearing on behalf of the appellant contended that the learned Trial Court failed to appreciate the facts of the case as well as the evidence on record in its true and proper perspective. He contended that there was inordinate un-explained delay in lodging of the F.I.R. The victim girl could not be examined as she died. Therefore, he contended, the statement made by her under Section 164 of Cr.P.C. could not be used for the purpose of contradiction and corroboration by the defence. He contended further that the appellant was 70 year old man at the relevant period of time and it was doubtful whether he was physically able to commit rape. These apart, he contended that the learned Trial Court failed to take note of the fact that there were serious discrepancies in the statement of witnesses on material points. Relying on a decision of Apex Court in Baij Nath Sah Vs. State of Bihar reported in (2011) 1 C Cr. LR(SC) 54, he submitted that conviction basing on statement under Section 164 of Cr.P.C. of the prosecutrix while prosecutrix was not examined, is improper. He contended finally that considering the age of the appellant, a lenient view be taken.
(3.) MR .Mondal, learned Counsel appearing on behalf of the respondent/State of West Bengal contended that the prosecution did not withhold examination of the prosecutrix intentionally. The victim died before the trial commenced. Naturally, the learned Trial Court had no opportunity to record her deposition. He contended further that the delay in lodging the F.I.R. was properly explained and learned Trial Court had rightly observed that there was sufficient reason for not lodging the F.I.R. before 13.10.2006. Mr. Mondal contended further that there was no enimity, whatsoever, between the family of the victim and, the appellant and, as such, there was no reason for the victim to implicate the appellant falsely in a such type of case. According to Mr. Mondal, the learned Court appreciated the evidence on record properly and came to a correct finding which is not required to be interfered with in this appeal.;