Calcutta High Court (Appellete Side)
Mritunjoy Dalui vs The State Of West Bengal on 19 July, 2023
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice Rai Chattopadhyay
C.R.A No. 40 of 2010
Mritunjoy Dalui
Vs.
The State of West Bengal
Amicus curiae : Mr. Mit Guha Roy.
For the State : Mr. Saswata Gopal Mukherjee,
Ld. P.P,
: Mr. Narayan Prasad Agarwala,
: Mr. Pratick Bose.
Hearing concluded on: 22/02/2023
Judgment on: 19/07/2023
Rai Chattopadhyay, J.
1. Appellant has preferred this appeal to challenge the judgment of the trial
Court of conviction and sentence, being Sessions Trial No.4 dated
05.03.2009.
2. The trial Court has convicted the appellant for an offence under Section
376 (2) (f) read with Section 511 of the Indian Penal Code. It has
sentenced him to suffer imprisonment for five years with a fine amount of
Rs. 2,000/-, in default, of payment of which he is to suffered simple
imprisonment for a further period of six months.
3. The connected FIR is Sadaipur Police Station Case No. 12/2008 dated
02.03.2008 under Section 376 (2) (f) of the Indian Penal Code. One Ajay
Dalui is the informant and father of the victim. He informs that on
March 2, 2008, the nine years old daughter of the informant/victim went
to the bank of the pond to respond nature's call. The time has been
mentioned to be about 3:00 p.m. in the afternoon. Allegedly, the present
appellant had committed rape upon the minor girl at the bank of the
pond taking the advantage of her being alone there. Investigation started
pursuant to the said FIR and has culminated into filing of charge sheet
against the present petitioner under Section 376 (2) (f) of the Indian
Penal Code and the appellant faced the trial.
4. Upon consideration of the evidence on record the trial Court found the
appellant to have been committed an offence of abetment of rape and
thus convicted and sentenced in the manner as above.
5. Appellant's challenge to the said judgment impugned is mainly on the
ground that the trial Court has failed to consider the evidence on record
in its proper perspective and thus has reached to an erroneous finding,
that the evidence on record would no way be said to have proved the
allegation against the appellant beyond scope of any reasonable doubt
and there are various circumstances to question the truthfulness of the
prosecution's case and also the witnesses' evidence.
6. Appellant has not been represented in this appeal. That has prompted
the Court to appoint ld. Amicus Curiae to assist the Court in disposing of
the appeal. State is represented. It has been submitted that the
appellant has already undergone incarceration for the period of sentence,
as was granted by the trial Court in the impugned judgment.
7. So far as the merits of this appeal is concerned, it is found that amongst
all the witnesses the evidence of the victim and her friend who
accompanied her to the bank of the pond on the relevant date and time,
would be very important for the prosecution. The quality of the evidence
of these two witnesses, if found sufficient would bring home the charges
against the appellant. Victim P.W 1 is a minor. She has supported the
prosecution's evidence to the fullest, her evidence is consistent and
coherent and has not been shaken in the cross-examination. Her
evidence is duly corroborated by that of her friend, i.e, P.W 5 and her
mother, i.e, P.W 4 to whom the victim has disclosed the entire incident
immediately after the occasion of the same. The evidence of the doctor,
i.e, P.W 8 would also be relevant in this trial. The victim was examined
on the day of the alleged incident when the doctor has not however found
any sign of vaginal penetration or existence of sparm and pubic hair like
foreign bodies, at the private part of the minor victim.
8. In consideration of the evidence of P.W 1, P.W 4, P.W 5 and also the
doctor, it would be found sufficient, in view of its dependability,
truthfulness and consistency, that the appellant though has not been
able to commit any penetrative sexual act with the minor victim on the
relevant date and time as alleged, but definitely has made preparation
and advanced to the state of abetment of the offence of rape upon the
victim.
9. Thus on consideration of the evidence on record, the finding of the trial
Court can be said to be just legal and proper and the same would not
warrant any interference by this Court.
10. The sufficiently tangible evidence by the prosecution as above, has
successfully brought home the charges against the present appellant of
abetment of rape and he has been properly convicted. That far this
Court does not interfere in any way as to finding of the trial Court.
11. However, so far as suffering the period of sentence, in custody already, is
concerned, this Court takes into consideration the fact that the period of
sentence for suffering simple imprisonment of five years, has already
been undergone by the appellant, during the pendency of this appeal.
Therefore the sentence is modified to the extent that the period already
undergone by the appellant in custody would be sufficient discharge of
the punishment imposed upon him.
12. With the directions as above this appeal being C.R.A 40 of 2010 is partly
allowed and disposed of along with applications, if any.
13. Before parting, the Court appreciates the able assistance put in by the
Ld. Amicus Curie in this case. Let the High Court Legal Services
Committee take necessary steps to pay fees to the learned Amicus Curiae
in accordance with the scale applicable to "Category-A" lawyer in its
panel. The same may be paid within a period of one month from the date.
A copy of this order be immediately forwarded to the Secretary, High
Court Legal Services Committee, for doing the needful.
14. Urgent photostat certified copy of this judgment, if applied for, be given
to the parties, upon compliance of requisite formalities.
Digitally signed by RAI
RAI CHATTOPADHYAY
CHATTOPADHYAY Date: 2023.07.19 10:05:48
+05'30'
(Rai Chattopadhyay,J.)
