Calcutta High Court (Appellete Side)
Bhuban Basak vs The State Of West Bengal & Ors on 16 March, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 3202 of 2019
Bhuban Basak
Vs
The State of West Bengal & Ors.
For the Petitioner : Mr. Musharaf Alam Sk.
For the State : Ms. Sujata Das.
For the Opposite Party No. 2 : None.
Heard on : 20.02.2023
Judgment on : 16.03.2023
2
Shampa Dutt (Paul), J.:
The present revision has been preferred praying for quashing of
the proceedings in connection with Manikchak Police Station Case No.
17 of 2016 dated 13.01.2016 under Sections 448/493/376 of the
Indian Penal Code read with Section 4/8 of POCSO Act in G.R. Case No.
163/2016 which is registered as POCSO Case No. 13/2016, pending
before the Learned Judge Special Court, 2nd Court, Malda, i.e.
Additional District & Sessions Judge 2nd Court, Malda.
The petitioner's case is that a complaint was lodged by one Atul
Basak of Madhabpur with Manikchak Police Station on 13.01.2016
against accused Bhuban Basak aged about 22 years to the effect that
since 5/6 months with the assurance of marriage with his daughter
Fultushi Basak, love affairs developed between the accused and his
daughter and both visited many places. It is alleged that on 11.01.2016
in the morning about 11.00 a.m. when complainant and his wife were
not in the house being engaged in day labour work, the accused entered
the house and forcibly raped his daughter. He also put sindur on her
head saying they were married. When his daughter raised alarm, the
accused filed away. After knowing about the incident from his daughter,
a complaint was lodged with Manikchak Police Station under Section
448/493/376
of the Indian Penal Code read with Section 4/8 of POCSO
Act.
After completion of Investigation, Police submitted Charge sheet
vide No. 68/2019 dated 16.02.2019 under Sections 448/493/376 of the
Indian Penal Code read with Section 4/8 of POCSO Act.
The victim is aged about 14 years and there allegedly was a
love affair with the petitioner and as such both the parties visited
different places, which was within the knowledge of the complainant
who is the father of the victim. As per Charge Sheet it is evident victim
was medically examined in which R.M.O. Dr. Mita Halder of Malda
Medical College and Hospital, Malda opined "there is no marks of injury
detected in her private parts. Hymen ruptured. No Foreign body
detected in her vagina."
It is submitted that hymen may be ruptured for various reasons
but there is no ingredients of Section 376 of the Indian Penal Code.
The date of birth of the Victim, Fultusi Basak is 03.05.2001. Her
marriage has been solemnized on 12.06.2018 with one Pappu Das son
of Sri Laxman Das.
That as per Medical Report there is no marks of injury in her
Private Parts. That more over as per complaint/F.I.R both parties had
love affairs only. That this case has been started falsely having grudge
against the petitioner.
The petitioner is a day labour and he is now a married person
having married another woman. On the other hand the victim also is
now a married lady (not with the petitioner).
In the present situation proceedings of this case is required to be
set aside.
Mr. Mushraf Alam Sk., learned counsel for the petitioner has
submitted that the petitioner is in no way connected with the alleged
commission of offence. If the proceedings of this case is allowed to
continue. It will be miscarriage of justice.
In spite of due service there is no representation on behalf
of the opposite party.
Ms. Sujata Das, learned counsel for the State has placed the
case diary.
On hearing the learned counsel for the petitioner and
considering the materials on record and the case diary. The following
facts are before the court:-
1) The date of birth of the victim is 03.05.2001.
2) Alleged marriage with another person took place on
12.06.2018.
3) Victim is married to one Pappu Das.
4) The petitioner is also married to another person.
5) Medical report shows that though there is no marks of injury
detected in her private parts, Hymen ruptured.
6) The alleged incident of rape by the petitioner took place on
11.01.2016.
7) Victim was clearly a minor aged about 15 years.
The fact of them being married to other persons does not lessen
the offence alleged, considering the prima facie materials on record.
Thus from the materials on record including the medical report,
age of the victim and the statements on record as discussed there
appears to be a prima facie case against the petitioner of committing a
cognizable offence and quashing the proceedings at the stage would
amount to an abuse of the process of law/court.
The materials on record are sufficient for the case to proceed
towards trial.
CRR 3202 of 2019 is thus dismissed.
There will be no order as to costs.
All connected Application stand disposed of.
Interim order if any stands vacated.
Copy of this judgment be sent to the learned Trial Court
forthwith for necessary compliance.
Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)
