- (1.) This Appeal is directed against the judgment and order of conviction and sentence dated 11th August, 2010, 12th August, 2010 and 13th August, 2010 passed by the Additional Sessions Judge, 1st Court, Tamluk, Purba Medinipur, in Sessions Trial No. 01 (07) 05 arising out of Sessions Case No. 50 (06) 01 under Section 376 (2) (f) I.P.C. whereby and whereunder the accused appellant was directed to suffer rigorous imprisonment for 10 years and also to pay a fine of Rs.5,000/-, in default, to suffer additional six months simple imprisonment.
(2.) The case of the Prosecution is that on 22nd January, 1999, the complainant and his wife were not at home. They went to the field for cultivation, which was at a distance of 600/700 feet from their house. At that time their daughter Kumari Mamoni Mondal, aged 8 years, was at home. During the absence of the complainant and his wife on the same day at about 6/6.30 p.m. the accused appellant visited their house and forcibly ravished their minor daughter which resulted in the victim girl becoming ill. The complainant and his wife attended to the illness of the victim girl and it was because of this that although the incident took place on 22nd January, 1999 but the complaint was filed with the Officer-inCharge, Moyna Police Station on 27th January, 1999 under Section 376 I.P.C. Moyna P.S. Case No.03/99 dated 27.01.1999 was registered and investigation initiated. On completion of investigation, Charge sheet was submitted under Sections 448/376 I.P.C. against the accused appellant. The case was committed to the Court of Sessions and thereafter was transferred to the Court of Additional Sessions Judge, 1st Court, Tamluk, Purba Medinipur for trial. Charge was framed under Section 376 I.P.C. and was read over and explained to the accused appellant who pleaded not guilty and claimed to be tried.
(3.) The prosecution examined as many as 14 witnesses while no witness was adduced by the defence. The specific case of the defence was - one of innocence and false implication. The accused appellant was also examined under Section 313 Cr.P.C. On consideration of the oral and documentary evidence, the Trial Court passed the order of conviction and sentence against the accused appellant. Hence, this Appeal. Counsel for the accused appellant submits that the Charge has been framed under Section 376 I.P.C. only, while the sentence has been given under Section 376 (2) (f) I.P.C. Section 211 I.P.C. mandates mention of time, day, place so also the manner mentioned in the Charge sheet. There is no mention of time or place of occurrence. All that has been mentioned is the village. The victim girl was 8 years old and each of the co-villagers who were independent witnesses, namely, P.Ws. 3, 4, 6, 7 and 8, have been declared hostile. No sketch map has also been drawn up by the I.O. Although the victim girl was examined by a quack on 22nd January, 1999, that is, the date of incident, the said quack doctor has not been examined. On 24th January, 1999 and 27th January, 1999 the victim girl was examined by P.W.9 and after being administered Paracetamol tablets and Tetanus Oxide Injection the victim girl was discharged on 30th January, 1999. No mark of external injury was found on the victim girl and the victim girl was found to be suffering from fever. Therefore, in the absence of any injury found and having been discharged after being administered medicines for treatment of fever, the case run by the prosecution remains unsubstantiated. P.W.13 is the Judicial Magistrate who recorded the statement of the victim girl under Section 164 Cr.P.C. on 15th February, 1999, that is after 24 days of the incident. P.Ws 9 and 12 are the doctors who examined the victim girl. P.W.12 examined the victim girl on 28th April, 1999 and he too on examination did not find any marks of injury on her body or private parts. No foreign body was also found in her private parts. The victim girl so also P.Ws. 1 and 5 to whom she narrated the incident have not disclosed about the victim girl being ravished to either P.W.9 who was the first Medical Officer to treat the victim girl. It is for the first time that the victim girl stated to P.W.12 on 20th April, 1999 that she had been sexually assaulted by the accused appellant. Therefore, there is every possibility of the victim girl being tutored as a long time had elapsed between the date of incident and the date of examination of the victim girl on 28th April, 1999. The wearing apparels of the victim girl was also not seized. This emerges from the evidence of P.W.1. In a case of forceful rape injury is imminent. Although P.W.5 has stated that in her private parts there was swelling and there was some bleeding therefrom, the controlled earth has not been seized. According to the evidence of P.Ws 2 and 5 the accused appellant left the house on hearing the voice of P.W.5. It has not emerged from the evidence of P.Ws 2 or 5 that there were many entrance from the said house and there was one entrance through which the accused appellant left the said house. P.Ws 3 and 4 have been declared hostile and not examined by the I.O. P.W. 6 has no knowledge of the incident and has also been declared hostile. Similarly, P.Ws 7 and 8 have also been declared hostile and P.W.9 was the Medical Officer, who treated the victim girl at the BPHC but no history of the patient has been recorded by him. Exhibit-2 is the emergency ticket dated 24th January, 1994 wherein there is only the mention of metrogyl and injection. There is no mention of any injury suffered. Similarly, in exhibit-3, which is the Medical Report dated 27th January, 1999, it has been recorded that P.W.9 examined the victim girl and as stated by her she was suffering from fever for three days and headache. He did not find any external injury but treated her for viral fever. Neither on 24th January, 1999 nor on 27th January, 1999 was the accused appellant named by the victim girl or her parents to the doctors. No incriminating circumstance was put to the accused appellant while being examining under Section 313 Cr.P.C. The medical evidence being an incriminating circumstance was not put to the accused appellant. On the date of incident the victim girl was playing with her brother and sister, but the brother has not been examined. On 27th January, 1999 three events took place i) the filing of the F.I.R.; ii) the arrest of the accused appellant and iii) the examination of the victim girl by P.W.9 for viral fever and headache.;