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Rajesh Sk vs State Of West Bengal on 9 January, 2018

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Form No. J(1)

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE

Present:

The Hon’ble Justice Asha Arora

CRA No.196 of 2012
Rajesh Sk
Vs.
State of West Bengal

For the appellant: Mr. Sandip Chakraborty

For the State: Mr.Manoranjan Mahata

Heard on: 14/12/2017, 08/01/2018 and 09/01/2018,

Judgment on: 09/01/2018.

Asha Arora, J.

This appeal is directed against the judgement and order of conviction and

sentence dated March 7, 2012 passed by the learned Additional Sessions Judge,

3rd Fast Track Court, Jangipur, Murshidabad in Session Trial No.2/March/2011

arising out of Sessions Case No.24 of 2011 whereby the appellant Rajesh Sk.

and two others have been convicted for the offence punishable under section 354

IPC and sentenced to suffer imprisonment for two years each and to pay a fine of

Rs.10,000/- each, in default of which to suffer further imprisonment for six months

each.

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Prosecution case in brief is that on January 8, 2009 at about 9.30/10.00

PM, the appellant Rajesh Sk., who was known to the defacto complainant Sundari

Khatun, set out with her and her uncle’s daughter Rehana Khatun for his house at

Bagsirapara. On the way, the appellant took them to an abandoned room at

Aurangabad Balika Vidyalaya where four friends of the appellant came. It is

further alleged that the appellant embraced Sundari Khatun forcibly and pressed

her breast. He also tried to pull her trouser but she managed to escape by biting

his finger. Two of the companions of the appellant named Hanif Sk and Abdul Sk

sexually assaulted Rehana Khatun while the appellant and two others aided in the

commission of such offence. When Sundari Khatun raised cries, the accused

persons fled away. While fleeing, the accused persons took away the gold

necklace, silver ‘tora’ and gold earrings of Rehana.

On the basis of the written complaint of Sundari Khatun, Suti Police Station

Case No.4 of 2009 dated 9th January 2009 under sections 376(2)(g) and 379 IPC

was initiated against the appellant and four others. Investigation into the case

culminated in the submission of the charge-sheet under sections 376(2)(g) and

379 IPC against all the accused persons including the appellant. The learned trial

Judge framed charge under section 376(2)(g) and 379 IPC against the appellant

and two other accused persons who pleaded not guilty to the indictment and

claimed to be tried. During the trial, prosecution examined nineteen witnesses

and exhibited several documents.

Defence version in short is innocence and complete denial of the

prosecution story.

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On conclusion of trial, the learned Judge found that though the charge

under section 376(2)(g) and 379 IPC could not be established, the offence

punishable under section 354 IPC has been proved against the accused persons.

The accused were accordingly convicted and sentenced as aforesaid for the

offence punishable under section 354 IPC.

The point for determination is whether the conviction and sentence of the

appellant for the offence punishable under section 354 IPC is sustainable.

The main thrust of argument of the learned counsel for the appellant is that

the two victims are majors and consenting parties as the appellant was known to

them. It is submitted that the entire story of the prosecution is false and concocted.

As the allegation of rape and theft made out in the FIR could not be established,

the learned trial Judge was not justified in convicting the appellant under section

354 IPC. It is canvassed that the appellant being admittedly known to the victims,

there was no reason why they did not disclose his name to the medical officer who

examined them. It has also been argued that the evidence of the two victims is

contradictory to each other on material points and cannot be relied upon.

Prosecution story is full of discrepancies and inconsistencies.

Learned counsel appearing for the State countered that the conviction and

sentence of the appellant for the offence punishable under section 354 IPC is

justified in the facts and circumstances of the case.

Prosecution case hinges mainly on the evidence of the two victims. PW 1

Sundari Khatun is the de facto complainant and one of the victims. She has

testified in her evidence that about two years ago at night at about 9.30/10.00 pm
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the accused Rajesh Sk took her and her uncle’s daughter Rehana Khatun to see

the Moharam fair. On the way, Rajesh took them to an abandoned room at

Aurangabad Girls High School where there were four other accused persons who

threatened them with a knife and told them to hand over their ornaments. Due to

fear she and Rehana handed over their ornaments to the accused persons. PW

1 further stated in her evidence that accused Rajesh touched her body and

pressed her breast but she managed to escape by biting his finger. The

companions of Rajesh caught her and pressed her mouth with a piece of cloth

whereafter they committed rape upon Rehana Khatun. When she (PW1) raised

cries, the accused persons fled away. In her cross-examination PW1 stated that

she took Rehana to her house with serious bleeding injuries and she herself also

sustained bleeding injuries on her body and was medically treated by a doctor.

Curiously enough the medical officer (PW 15) who examined the two victims did

not find any injury or mark of injury on any part of their body. It is also significant

to note that there is nothing in the evidence to suggest that the two victim girls

were medically treated for their alleged injuries on the date of the incident or on

the following day.

PW 2 Rehana Khatun is another victim who deposed almost in a similar

manner by testifying that on the date of the incident the accused Nagar, Mala Sk.,

Abdul and Hanif committed rape upon her in a room at Aurangabad Girls High

School. According to PW 2 she and her cousin Sundari (PW1) had been to

Maharam fair wherefrom the accused Rajesh, on the pretext of taking them to his

house, took them to a room near Aurangabad Balika Vidyalaya where four others
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were waiting. The accused persons took away their ornaments and accused

Rajesh touched the body of her cousin who managed to escape by biting the

finger of Rajesh while the other four accused persons committed rape upon her

by threatening her with a knife. It has been stated by PW2 in her cross-

examination that they met Rajesh at the moharam fair and therefrom he took

them to an abandoned room. The evidence of PW 2 on this point is contradictory

to that of PW 1 who testified that she and her cousin Rehana were taken by the

accused Rajesh to see the Maharam fair. In her cross-examination PW 2 stated

that she sustained bleeding injuries on her private parts but the medical evidence

of PW 15 does not corroborate her testimony in this regard.

The evidence of PW 4, PW 5, PW6, PW7 and PW 12 who are related to the

victim girls is hearsay. There is nothing in the evidence to show that the victims

girls were medically treated by any doctor for their alleged injuries. On the

contrary, from the medical evidence of PW 15 it transpires that no mark of injury

was found on any part of the victims’ body. It is also interesting to note that as

per the statement of the two victim girls before the medical officer (PW 15), they

were physically assaulted by some persons but the names of the persons were

not disclosed to PW 15. Admittedly the appellant Rajesh Sk. was known to the

two victim girls who remained silent before the medical officer (PW 15) and chose

not to disclose his name. The post occurrence conduct of the victims was far from

natural. Who prevented the victims from lodging a complaint promptly at the

police station which is about 1½ km. distant from the place of occurrence as

according to PW 1 accused fled away from the site when she raised cries.
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According to PW 2 there are many houses around the room where the incident

took place. In her cross-examination PW2 stated that she raised cries for a few

minutes before the incident but surprisingly no one came to the aid of the victims

on hearing their cries. This is indeed an incredible story which is far from

believable. The evidence of the two victims does not inspire confidence and is far

from creditworthy. In the absence of cogent, credible and convincing evidence the

learned trial Judge was not justified in recording an order of conviction and

sentence under section 354 IPCagainst the appellant.

For the reasons aforestated, the impugned judgement and order of

conviction and sentence passed by the learned trial Judge warrants interference

and is liable to be set aside.

Consequently the appeal is allowed by setting aside the impugned

judgement and order of conviction and sentence. The appellant is hereby

acquitted and discharged from his bail bond

A copy of this judgement along with the lower court records be sent

forthwith to the trial court.

Urgent photostat certified copy of this judgement if applied for, be given to

the applicant upon compliance of requisite formalities.

(Asha Arora, J.)
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