Calcutta High Court (Appellete Side)
Samir Majhi vs State Of West Bengal on 13 January, 2023
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. 682 of 2016
CRAN 2 of 2022
Samir Majhi
-Vs-
State of West Bengal
For the Appellant : Mr. Moinak Bakshi, Adv.
For the State : Ms. Sreyashee Biswas, Adv.
Heard on : 13.01.2023
Judgment on : 13.01.2023
Joymalya Bagchi, J. :-
1.
Appellant has assailed the judgment and order dated
16.06.2014 and 17.06.2014 passed by learned Additional District
& Sessions Judge, Fast Track Court-I, Purulia, in Sessions Trial
No. 19 of 2013 arising out of Sessions Case No. 350 of 2012
convicting the appellant and co-accused Wasinghton Kumar for
commission of offence punishable under Sections 458/376(2)(g) of
the Indian Penal Code and sentencing them to suffer rigorous
imprisonment for 5 (five) years and a fine of Rs. 2,000/-each, in
default, to suffer rigorous imprisonment for six months more for
committing offence under Section 458 IPC and to suffer rigorous
imprisonment for 12 (twelve) years and to pay a fine of Rs.5,000/-
each, in default, to suffer rigorous imprisonment for one year
more for the offence punishable under Section 376(2)(g) IPC. Both
the sentences to run concurrently.
2. Prosecution case, as alleged against the appellant, is to
the effect that 28.08.2012 at around 7:30 P.M. while the victim
was cooking in her house, three persons came into her house and
committed rape on her. Thereafter, they inserted stone in her
private parts. Due to pain, she lost her senses. She was shifted to
hospital where she was treated. She lodged written complaint at
police station resulting in Kashipur Police Station Case No. 65 of
2012 dated 28.08.2012 under Sections 448/376(2)(g) IPC.
3. During investigation she made statement before the
Magistrate disclosing the identity of the appellant. Appellant and
Wasinghton Kumar were arrested.
4. Charge was framed under Sections 458/376(2)(g) IPC.
Appellant pleaded not guilty and claimed to be tried. Prosecution
examined 9 witnesses to prove its case. Defence of the appellant
was one of innocence and false implication.
5. In conclusion of trial, the trial Judge by the impugned
judgment and order dated 16.06.2014 and 17.06.2014 convicted
and sentenced the appellant and Wasinghton Kumar, as
aforesaid.
6. Mr. Bakshi, learned Counsel for the appellant submits
that victim (PW1) did not name the appellant in the FIR. His name
also did not transpire in the medical papers. On the other hand,
victim referred to the miscreants as unknown persons. Implication
of the appellant is an afterthought and he ought to be acquitted.
7. Ms. Biswas, learned Counsel for the State submits victim
disclosed the identity of the appellant during her examination
under Section 164 of the Code of Criminal Procedure. In her
subsequent statement before Magistrate, she explained that the
appellant and Wasinghton Kumar had threatened her. As a result,
she was fearful to disclose their identity.
8. P.W.1 is the victim girl and the de-facto complainant in
the instant case. She deposed on 28.08.2012 at 7:30 P.M. she was
cooking meal. Three persons entered the kitchen. One of them
gagged her mouth. They tied her hands. Then appellant and
Wasinghton Kumar committed rape on her. They inserted stones
in her private parts. She became senseless. None of the family
members were present at the time of occurrence. Local people
untied her hands and took her to hospital. She was treated in the
hospital. She made statement before the police. She made two
statements before the Magistrate. She proved her signature on the
statement.
9. PW2, PW5 and PW8 are medical officers.
10. PW2 (Dr. Sourav Das) was attached to Kalloli BPHC as
medical officer. He treated the victim. He found three stones
inside her vagina. He recorded history of assault. The patient was
referred to Purulia Sadar Hospital for better treatment. He proved
the referral card. He signed on the seizure list. He also proved the
injury report.
11. PW8 (Madhumita Bhattacharjee) was also attached to
Kalloli BPHC. She deposed the victim was admitted in the hospital
at 11 P.M. She is a signatory to the seizure list.
12. PW5 (Dr. Hari Mohan Dey) was a Gynecologist attached
to Purulia Sadar Hospital. He deposed victim was admitted in the
hospital on 29.08.2012. He treated the victim. Victim was
discharged on 31.08.2012. He proved the treatment report.
Husband of the victim a neighbour son are examined as PW3 & 6
respectively. They corroborated the victim.
13. From the aforesaid evidence it appears that on
28.08.2012 appellant and others had trespassed into the house of
the victim. She was cooking in the house. No one else was in the
house. They forcibly tied her up. Appellant and another accused
committed rape on her. Thereafter, they inserted stones in her
private parts. Victim was admitted to hospital. Stones were
brought out of her private parts. Her deposition is corroborated
by PW2 and PW8 who treated her at the hospital.
14. Mr. Bakshi strenuously argues the appellant was not
named in the FIR. Victim described her assailants as 'unknown
persons' in the FIR and on the medical papers. Hence, his
implication is an afterthought. Soon after the incident, victim had
been examined under section 164 of the Code of Criminal
Procedure. In her statement before Magistrate she disclosed the
name of the appellant as one of the rapists. In her subsequent
statement, she explained the appellant and Wasinghton Kumar
had threatened her. It is likely due to fear she had kept quiet
earlier. Non-disclosure of the name of the appellant at the earliest
opportunity is clearly explained. Prosecution case levelled against
him is proved beyond reasonable doubt.
15. Conviction and sentence of the appellant is upheld.
16. The appeal is accordingly, dismissed.
17. In view of disposal of appeal, connected application
stands disposed of.
18. Period of detention suffered by the appellant during
investigation, enquiry and trial shall be set off from the substantive
sentence imposed upon him in terms of 428 of the Code of Criminal
Procedure.
19. Copy of the judgment along with L.C.R. be sent down to the
trial court at once.
20. Urgent Photostat Certified copy of this order, if applied for, be
supplied expeditiously after complying with all necessary legal
formalities.
I agree.
(Ajay Kumar Gupta, J.) (Joymalya Bagchi, J.)
