- (1.) This appeal is directed against the judgment and order of conviction dated 19/12/08 and 20/12/08 passed by the Ld. Additional Sessions Judge, Kandi in the district of Murshidabad in Sessions Case No. 77 / 04 corresponding to Sessions Trial No. 3 of 2005 whereby and whereunder the appellant Raju Das was convicted for the offence under Section 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years and also to pay a fine of Rs. 50,000/- and in default, to suffer further rigorous imprisonment for 2 years. It was ordered that the period of detention undergone by the convict in connection with this case be set off from the period of substantive sentence under Section 428 CrPC and that the amount of fine, if realized, be given to the victim Kajal Mandal as compensation under Section 357(I)(b) of the Code of Criminal Procedure, 1973. The case was initiated on the basis of an F.I.R lodged by one Rubi Mandal, mother of the victim girl Kajal Mandal and it was registered as Kandi P.S. Case No. 97/01 dated 5/10/01 under Section 376 of the Indian Penal Code. According to the prosecution case, Kajal Mandal was the deaf and dumb daughter of Rubi Mandal and she was aged about 16 years. After noticing a tendency of vomiting and change in her body, Rubi took Kajal to a local Doctor and came to know that she was pregnant for 6 months. Thereafter the parents of Kajal came to know that the appellant had taken advantage of her simplicity and had indulged in sexual intercourse in an abandoned house as a result of which she had become pregnant. On the basis of the aforementioned F.I.R, and after completing the investigation, charge-sheet was submitted against the appellant under Section 376 of the Indian Penal Code. The case was committed to the Court of Sessions where charge was framed under Section 376, I.P.C. and where the case was tried.
(2.) P.W 1 is Rubi Mandal, the informant. She identified the appellant in Court and supported whatever she had stated in the F.I.R. She stated that having observed a vomiting tendency in her daughter Kajal, she consulted one Dr. Anjan Pattanayak of Kandi who found out that Kajal was pregnant. She further stated that when she returned home she asked her daughter as to what had happened and it was then that her daughter Kajal, told her by gestures and postures, that she had been raped in an abandoned house on the eastern side of Nawpukur at Madhunia by accused Raju Das. Thereafter, Rubi Mandal reported the matter to her husband, Sudhan Mandal. Subsequently, Kajal gave birth to a male child. This Witness further stated that when she came to Court, she narrated the incident in detail to her Advocate who wrote out the complaint under Section 156(3) of the CrPC and according to her, the said complaint was written by her Lawyer under her instructions. In her cross-examination, she has stated that the house of the appellant Raju Das was situated in the vicinity of her house and that Raju Das, the appellant used to call her 'Pishi'. Raju had one sister, Bibha, who was married. She further stated that before the incident had occurred, they were on visiting terms with the family of Raju but the accused Raju never visited her house but her father used to visit their house. She further stated that she and her daughter used to visit the house of the appellant occasionally. She further stated that in the middle of Shrawan, she came to learn, from her gestures and postures, that Kajal had been raped by the appellant at about 1:30 P.M. while she was taking bath. Her daughter had also told her, by gestures and postures, that she could not cry at the time of being raped as she had been threatened by the Appellant with dire consequences.
(3.) She also stated that when Kajal had gone to take bath in the pond, one Manika Acharjee, D/o Bablu Acharjee was also there. She stated that Manika Acharjee had called Kajal to the place of occurrence where the incident occurred. She further stated that Manika knew about the incident and on being asked, she had replied in the affirmative. The informant further stated that upon being asked as to how many times she had cohabited with the appellant before institution of the case, her daughter had answered saying that the appellant Raju Das, had cohabited with her for 6 months. The informant reported the incident to Pankaj Upadhyaya and Prabir Upadhyaya of her village. She also stated that over this issue, a meeting was held in the village so that the matter could be compromised and the meeting was attended by 300 / 400 persons. The villagers suggested to the father of the accused to get the matter compromised either in lieu of money or to solemnize the marriage of the victim Kajal with the appellant but the father of the accused did not agree.;