Calcutta High Court (Appellete Side)
Rajesh Mallick vs State Of West Bengal & Ors on 13 December, 2021
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
CRA 252 of 2009
With
CRAN 2 of 2011 (Old No. CRAN 145 of 2011)
Rajesh Mallick
-vs.-
State of West Bengal & Ors.
For the Appellant : Mr. Sukumar Ghosh,Adv.
Mrs. Moumita Ghosh,Adv.
For the State of West Bengal : Mr.Binoy Kumar Panda, Adv.
Mrs. Puspita Saha, Adv.
Heard On : 13.12.2021
Judgment on : 13.12.2021
Rabindranath Samanta, J:-
1.
This appeal arises out of the judgment and the order of conviction
and sentence passed by the Learned Additional Sessions Judge,
Fast Track, 3rd Court, Burdwan in Sessions Trial No. 12 of 2008
arising out of Sessions Case No. 3 of 2008 whereby the appellant
Rajesh Mallick was convicted for commission of the offence
punishable under Sections 376/417 of Indian Penal Code (in short
I.P.C.) and sentenced to suffer rigorous imprisonment for seven
years and to pay a fine of Rs. 1,000/-, in default, to suffer rigorous
imprisonment for a further period of one month.
2. The prosecution case, in brief, may be stated as under:-
The victim girl, then aged about 17 years, is the elder daughter of
the informant Tanjila Bibi of village Mutra, P.S - Memari. The
victim girl developed a love affair with the appellant Rajesh Mallick,
a resident of the informant's village. Giving promise to marry her,
the accused sexually exploited her several times. Out of sexual co-
habitation between them, the victim girl became pregnant. The
parents of the victim girl went to the house of the appellant with
the victim girl and apprised them of the incident. They requested
them to give the appellant in marriage withh the victim girl. But,
they flatly refused to give their son Rajesh Mallick in marriage with
her. They drove the victim girl and her parents out of their house
abusing them in filthy languages.
3. Getting no other alternative for redressal of their grievances, the
informant lodged a written complaint at Memari Police Station
narrating the episode as above. On the basis of the written
complaint lodged by her one Memari P.S. case no.7 of 2006 dated
07.02.2006 under Sections 376/417, I.P.C. was registered against
the appellant for investigation.
4. During the course of investigation the investigating officer
arrested the appellant and forwarded him to Court. On prayer of
the I.O. the statement of the victim girl was recorded under Section
164 Cr.P.C. by a learned Judicial Magistrate. She was medically
examined by a doctor. The I.O. recorded the statements of the
available witnesses under Section 161 of the Code of Criminal
Procedure. Besides, the I.O. made arrangement for mediccal
examination on the person of the appellant. After completion of the
investigation the investigating officer submitted charge-sheet
against the appellant under Sections 376/417 I.P.C.
5. Charge under Sections 376/417, I.P.C. was framed against the
appellant who pleaded not guilty to the charge and claimed to be
tried. Hence, the trial commenced.
6. To bring home the charge the prosecution examined as many as
fifteen witnesses including the victim girl and the attending doctor.
Some documents upon which the prosecution has placed reliance
have been marked as Exhibits 1 to 6. No witness has been
examined on the part of the appellant.
7. On consideration of the oral and documentary evidence as
adduced by the prosecution, the Learned Trial Judge by the
judgment as impugned held that the appellant ( hereinafter be
referred to as the accused) guilty for commission of the offence
punishable under Sections 376/417, I.P.C. and awarded the
sentence as above.
8. Being aggrieved by and dissatisfied with the aforesaid judgment
and the order of conviction and sentence the appellant has
preferred the instant appeal.
9. The appellant assails the impugned judgment on the grounds that
the Learned Trial Judge recorded the findings and conviction
without proper appreciation of evidence and applying his judicial
mind. As such the judgment suffers from illegality and irregularity
and the judgment and the order of conviction is liable to be set
aside.
10. Mr. Sukumar Ghosh, Learned counsel appearing for the
accused submits that the Learned Trial Judge failed to appreciate
that sexual co-habitation, if any took place between the victim girl
and the accused was consensual. Learned Lawyer argues that the
prosecution evidence do not discuss that the accused had sexual
co-habitation with the victim girl forcibly and against her will. On
this score, Learned Lawyer submits that the judgment and the
order of conviction and sentence passed by the Learned Trial Judge
is not sustainable.
11. Per contra, Mr. Binoy Kumar Panda, Learned Lawyer submits
that in a case like the present one the evidence of the prosecutrix is
most important. If the evidence of the prosecutrix inspires
confidence, the Court can record conviction on the solitary
evidence of the prosecutrix. However, the Court may as a matter of
prudence look for corroboration of such evidence by the medical
evidence. Learned Lawyer submits that in the instant case the
evidence of the prosecutrix i.e., the victim girl and the medical
evidence, if read conjointly , unerringly reveal that the accused
sexually exploited the victim girl giving a false promise to marry
her. On this score, Learned Lawyer submits that the judgment and
the order of conviction and sentence as passed by the Learned Trial
Judge is quite justified and no room is left for this Court to
interfere with the judgment.
12. Since, the instant appeal is the First Appeal before this Court, I
have meticulously scrutinized the ocular as well as documentary
evidence as produced by the prosecution.
13. Amongst the witnesses P.W. 1 Tanjila Bibi is the informant,
P.W. 2 is the victim girl, P.W. 3 Mamin Mallick is the father of the
victim girl and P.W. 13 Dr. Biswanath Kahali is the attending
doctor who examined the victim girl.
14. It appears from the evidence of P.W. 1 Tanjila Bibi and P.W. 8
Sudipta Nayek that P.W. 1 with the help of P.W. 8 scribed the FIR
and after putting her thumb impression on the written complaint
she lodged the FIR at Memari Police Station. P.W. 1 in her evidence
states that a love affair between her daughter and the accused
developed. She came to know from her daughter that giving
promise to marry her the accused sexually ravished her several
times and ultimately she conceived. But, the accused refused to
marry her.
15. The prosecutrix i.e., the victim girl (P.W. 2) in her evidence
states that she had a love affair with the accused. The accused
used to visit their house. She went out of their house with the
accused. The accused promised her to marry and giving such
promise he co-habited with her several times for about three
months. She became pregnant. While her parents went to the
parents of the accused and told them to give her in marriage with
the accused, they flatly refused to do so. P.W. 3, the father of the
victim girl, in his evidence narrates the same episode as revealed
by his wife and the victim girl.
16. Dr. Biswanath Kahali, P.W. 13 who medically examined the
victim girl has opined as under:-
1. She is well accustomed, habituated and experienced in
sexual intercourse in ordinary course of nature;
2. She is pregnant for about 20 weeks;
3. There is no mark of injury, violence, disease,
deformity, foreign body, foreign pubic hair noted above
her body or external genitalia.
17. The Learned Trial Judge mainly on consideration of the
evidence of the prosecutrix and the medical evidence has recorded
the findings of guilt of the accused.
18. In the decision in the case of State of Himachal Pradesh Vs
Gyan Chand reported in (2001) 6 SCC 71, the Hon'ble Apex Court
has held that conviction can be based on the sole testimony by the
prosecutrix, provided it is natural, trustworthy and worth being
relied upon. As a matter of prudence, while evaluating the evidence
of the prosecutrix, the court must remain alive to the fact that in a
case of rape or sexual offence no self-respecting woman would
come forward in a court just to make a humiliating statement
against her honour. After meticulous assessment and appreciation
of the evidence as adduced by the prosecution, I find that the
evidence of the prosecutrix and the medical evidence in this regard
establish the factum without any shadow of doubt that the accused
giving a false promise to marry the victim girl sexually ravished and
exploited her and as a result of which she conceived. It appears
from the evidence on record that the victim girl has given birth to a
child.
19. Therefore, I concur with the findings recorded by the Learned
Trial Judge that the accused is guilty of commission of offence
punishable under Sections 376/417, I.P.C. I find no justification to
interfere with the findings recorded by the Learned Trial Judge.
20. That being so, the judgment and the order of conviction and
sentence does not call for any interference by this Court.
21. In the result, the appeal merits dismissal and accordingly, the
appeal is dismissed. Connected appllication, if any, stands
disposed of.
22. No order as to costs.
23. The judgment and the order of conviction and sentence passed
by the Learned Additional Sessions Judge, Fast Track , 3rd Court,
Burdwan in Sessions Trial No. 12 of 2008 arising out of Sessions
Case No. 3 of 2008 is hereby confirmed.
24. From a report received from the Superintendent, Alipore
Central Correctional Home, it appears that the convict Raju Mallick
has served out the entire sentence awarded to him by the Learned
Trial Judge. Therefore, it doesnot require to pass any further
direction upon the convict to serve out any part of the sentence.
25. Send down the L.C.R. along with a copy of this judgment to the
Learned Court below for information.
( Rabindranath Samanta, J.)
