Amirul Sheikh vs The State Of West Bengal
2022 Latest Caselaw 6505 Cal

Sl. No. 1




                IN THE HIGH COURT AT CALCUTTA
                 CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
                 And
The Hon'ble Justice Ajay Kumar Gupta


                             C.R.A. 162 of 2014

                                 Amirul Sheikh
                                     -Vs-
                            The State of West Bengal


For the Appellant       :      Mr. Fazle Rabi, Adv.
                               Mr. Amal Kumar Samanta, Adv.


For the State           :      Mr. Neguive Ahmed,   Ld. Addl. Public Prosecutor.




Heard on                :      13.09.2022


Judgment on             :      13.09.2022


Joymalya Bagchi, J. :-

        Appeal is directed against judgment and order dated 05.12.2013

& 06.12.2013 passed by learned Additional Sessions Judge, Fast Track

Court, Rampurhat in Sessions Trial No. 02 of July, 2011 arising out of

Sessions Case No. 83 of 2011 convicting the appellant for commission of

offence punishable under Section 376 of the Indian Penal Code and

sentencing him to suffer rigorous imprisonment for ten years and to pay

a fine of Rs.50,000/-, in default, to suffer further rigorous imprisonment
                                     2


for two years more. Fine amount, if realised, was directed to be paid to

the victim (PW2) as compensation.

       Prosecution case as alleged against the appellant is to the effect

that on 11th Baisakh, 1415 BS appellant had forcibly raped the victim

against her will. When victim protested, appellant initially promised to

marry the victim. A female child was born to the victim. Subsequently,

the appellant did not marry the victim. Father of the victim (PW1)

submitted written complaint before the Officer-in-charge, Mayureswar

Police Station. No steps were taken. Under such circumstances, he took

out an application under Section 156(3) before the learned Additional

Chief Judicial Magistrate, Rampurhat against the appellant and his

relations viz. Rahamatullah Sekh (father), Anesha Bibi (mother) and

Nurelhaque Sekh (brother) alleging commission of offence punishable

under Sections 376/493/120B/406 IPC. Pursuant to direction by the

Magistrate, Mayureswar Police Station Case No.200 of 2009 dated

09.11.2009

under Sections 376/493/120B/406 IPC was registered

against the appellant and co-accuseds. In conclusion of investigation,

charge-sheet was filed and charges were framed under Sections

376/493 IPC against the appellant and under Sections 376/120B IPC

against the co-accuseds.

In course of trial, prosecution examined 12 witnesses. Initial

defence of the appellant was to the effect that he did not have sexual

relationship with the minor victim (PW2) at all. However, DNA report

(Ext. 12) placed before the Court showed appellant was the biological

father of the minor child. Faced with such a situation, appellant

changed his stance and claimed there was a consensual relationship

between them.

Disbelieving the pre-varicating stance of the appellant, learned

trial Judge by the impugned judgment and order dated convicted and

sentenced the appellant, as aforesaid. Appellant, however, was acquitted

of the charge under Section 493 IPC. Co-accuseds were acquitted of the

charges levelled against them.

Learned advocate for the appellant submits victim (PW2) was

above 16 years at the time of occurrence. She was a consenting party.

Hence, offence is not disclosed and appellant may be acquitted.

Learned Additional Public Prosecutor submits PW2 was a minor

at the time of occurrence. Her deposition shows appellant had forcibly

raped her. Hence, question of consent does not arise.

We have considered the evidence on record particularly that of

the victim (PW2).

PW2 deposed incident occurred on 11th Baisakh, 1415 BS. In the

evening she had gone to the pond near her house. While returning the

appellant caught her, closed her mouth with her dupatta and forcibly

raped her. He threatened to kill her with a knife. Thereafter, he

requested her not to disclose the incident to anyone. Parents of the

victim had gone to Calcutta for treatment of her mother. When they

returned, she reported the matter to her father. Her father brought the

matter before the local villagers. Under pressure, appellant agreed to

marry. In the meantime, a female child was born to her. She made

statement before the Magistrate.

Her father (PW1) corroborated the version of her daughter. He

stated his daughter had been forcibly raped by the appellant.

Subsequently, the parents of the appellant assured that they would look

into the matter but later they denied the incident. He lodged complaint

with Mayureswar Police Station. Subsequently, he filed complaint before

court.

PW6 is the brother of PW1. PW7 (Mainuddin Sk.) and PW8

(Kalam Sheikh) are the co-villagers. They have corroborated PW1 with

regard to the incident.

PW11 (Manik Chandra Mondal) is the Teacher-in-charge of

Radhanagar High School where the victim was admitted as a student.

He produced the admission register. As per the admission register, date

of birth of the victim was 02.04.1993.

PW12 (Dr. Sanjib Shome) is a doctor posted at Rampurhat S.D.

Hospital. He took blood samples from the appellant, victim girl (PW2)

and minor child for the purpose of ascertaining paternity.

PW3 (Kazi Md. Hossain) is the investigating officer of the case.

Defence examined three witnesses. All the witnesses including

DW1 and DW2 deposed regarding procedure of DNA examination to

determine paternity of the child.

From the evidence on record, I note that the sexual attack on the

minor was a forcible one. Thereafter, appellant gave an impression that

he would marry the victim. Subsequently, he denied the incident. Even

during trial, initially, he took a defence there was no sexual relationship

between him and the minor victim. DNA examination was conducted

and DNA report (Ext.12) shows the appellant is the biological father of

the child.

The aforesaid evidence on record leaves no doubt in my mind

that appellant had forcibly raped the minor girl who became pregnant.

There was no consensual relationship between the parties. Plea of

consensual relationship was an afterthought on the part of the appellant

to protect himself from legal punishment.

In view of the aforesaid discussion, conviction and sentence of

the appellant is upheld.

Appeal is accordingly dismissed. Connected applications, if any,

are also disposed of.

Period of detention suffered by the appellant during investigation,

enquiry and trial shall be set off against the substantive sentence

imposed upon him in terms of Section 428 of the Code of Criminal

Procedure.

Lower court records along with a copy of this judgment be sent

down at once to the learned trial Court for necessary action.

Photostat certified copy of this order, if applied for, be given to

the parties on priority basis on compliance of all formalities.

I agree.

(Ajay Kumar Gupta, J.)                            (Joymalya Bagchi, J.)




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