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Asraf Mallick vs The State Of West Bengal on 3 September, 2018

‘IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

Appellate Side

Present:

The Hon’ble Justice Md. Mumtaz Khan

And

The Hon’ble Justice Jay Sengupta

C.R.A. 295 of 2003

Asraf Mallick

Versus

The State of West Bengal

For the appellant : Mr. Ranadeb Sengupta
….Amicus Curaie

For the State : Mr. Saswata Gopal Mukherjee

Ms. Saryati Dutta
…..Advocates

Heard on : 14.05.2018, 15.05.2018

Judgment on : 03.09.2018
Jay Sengupta, J.:

1.

This appeal is directed against a judgment and order of conviction and

sentence dated 17th September 2002 passed by the Learned Additional

Sessions Judge, 2nd Court, Murshidabad in Sessions SL. No. 108 of 2002:

Sessions Trial No. 1 of May, 2002, thereby convicting the accused/appellant

Asraf Mallick for committing an offence under Section 376 (1) of the Indian

Penal Code and sentencing him to suffer rigorous imprisonment for 10 years

and to a pay a fine of Rs. 10,000/-, in default to suffer rigorous

imprisonment for 2 years.

2. On 24th December 2001 at about 9:15 hours, the de facto complainant

Md. Saidul Mallick (PW 11) lodged a First Information Report with the

Raninagar Police Station that on 23rd December 2001 at about 21:00 hours,

alleging that the appellant Asraf Mallick, taking advantage of the absence of

the informant and his wife, came to their house, took their 11 years old

daughter Nasima by forcibly putting a cloth on her mouth and committed

rape on her in the garden behind their house. Thereafter the appellant left

the victim girl outside the door on the lane. After the informant returned

home at the next dawn, his daughter narrated the incident to him. She was

still bleeding profousely and was sent to Godhanpara BPHC for medical

treatment.

3. During investigation, several witness were examined and documents

were seized. The minor victim girl as well as the appellant were medically
examined. The victim’s statement under Section 164 of the Code was

recorded on 18th November 2002. A charge sheet was submitted against the

appellant. On 19th March 2002, a charge was framed against the appellant

under Section 376 of the Penal Code.

4. The prosecution examined as many as 14 witnesses to establish its

case. The defence case appears to be the denial of the prosecution case.

5. PW 1 was the minor victim girl. She clearly deposed that at about

21:00 hours on the date of occurrence, the accused entered the house, lifted

her after closing her eyes, took her to a garden and sexually assaulted her.

She said that she had made a statement before the Learned Magistrate. At

this point, she was declared hostile. She deposed that she did not know the

appellant. She could not recognize the assailant properly and did not tell his

name before the Learned Magistrate. She stated that she was deposing

whatever she was directed to say by the men who took her.

6. PW 2 is a dubious entity who masqueraded as the father of the victim

girl and attempted to destroy the prosecution case by turning hostile. He

had the impudence of deposing on oath that the victim did not tell him that

the appellant had subjected her to sexual assault. This was obviously done

to help the appellant get away. The timing also suggests that the

immediately preceeding witness that is to say, the victim girl also might have

been under pressure, which compelled her to turn hostile. These things

became clear only after the actual father of the victim girl came to depose as
PW 11. It may be pertinent to observe that the Learned Trial Court ought not

to have taken such a contemptuous affront lying down and should have

directed an inquiry as to how anyone could impersonate a witness and

depose falsely in Court on his behalf.

7. PW 3 was a seizure list witness for the seizure of a pant.

8. PW 4 was the doctor who treated the minor victim on 4th January,

2002 at about 11.30 hours. He found a bruise on a nipple, hymen absent

and an injury present in the vagina. Examination was painful and there was

profuse bleeding. In his opinion, the victim had been raped. According to PW

4, the victim was a minor, probably 11 years old. However, the victim did

not give any statement to him.

9. PW 5 was the learned Judicial Magistrate who recorded the victim’s

statement under Section 164 of the Code on 7th January, 2002. In the cross,

he admitted that he did not write any question relating to voluntariness of

the statement of the victim girl, but in fact he asked questions to her. The

name of the assailant was not specifically mentioned in the statement.

10. PW 6 was a co-villager and an immediate post-occurrence witness.

Hearing a hue and cry, he went and saw the appellant being taken out of a

closed room. The victim girl stated that she was raped by the appellant. PW

6 was also a seizure list witness. In the cross, he admitted that he did not

tell the police about the victim’s statement to him.

11. PW 7 was another co-villager and an immediate post-occurrence

witness. He found the victim lying unconscious and learnt from others

present there that the appellant had ravished her.

12. PW 8 was the mother of the victim girl. She deposed that at about

21.00 hours on the fateful night, she went out to answer nature’s call. When

she returned, she did not find her daughter home. She searched for her and

finally found her lying unconscious by a side of the house. When she

regained her senses the victim told her that the appellant had lifter her,

taken her and raped her. Blood was coming out of her private parts.

13. PW 9 was the victim’s aunt. She corroborated the evidence adduced by

PW 8. She accompanied PW 8 to answer nature’s call. After returning from

the field they searched for the victim girl and finally found her lying on the

ground at the back side of their house and saw blood coming out of her

pant. When the victim regained her senses, she disclosed that the appellant

had lifter her away by closing her mouth with a napkin and committed rape

on her. In her cross, she stated that the victim regained her senses two days

after the operation.

14. PW 10 was the doctor who examined the appellant on 8th January,

2002. He found him capable of sexual intercourse. He also found an injury

on the appellant’s forehead, stitched about 15 days back.

15. PW 11 was the real father of the victim girl and the de-facto

complainant in the case. On knowing that someone else had impersonated

him and given evidence, he came to Court to depose by filing an affidavit

and a Vakalatnama. He supported the First Information Report and

identified the appellant in Court. He deposed that the victim told her about

the incident when he came back and clearly implicated the appellant. She

was left in the courtyard. He saw blood coming out of her private parts when

he returned in the morning.

16. PW 12 was the gynaecologist who examined the minor victim on 4th

January, 2002. He too had found an injury at the side of a nipple, hymen

absent, an injury on the vagina, profuse bleeding and a painful examination.

In his opinion too, she was raped. He found the victim to be a minor,

approximately 11/12 years old.

17. PW 13 was the doctor who held an ossification test on the victim girl.

In his opinion, the girl was above 10-12 years, but below 14 years in age.

18. PW 14 was the Investigating Officer of the case. He added that the

appellant had been manhandled after the incident and was admitted at

Raninagar PHC. He deposed that the victim girl had clearly taken the name

of the appellant as the perpetrator of crime before him.

19. Mr. Ranadeb Sengupta, the learned Amicus appointed by this Court to

defend the appellant submits that the impugned judgement and order of

conviction and sentence is absolutely bad in law. He contends that there is a

discrepancy as regards the place of occurrence. While the First Information

Report stated a place outside the door on the lane as the place where the

victim was left, PW 8 the victim’s mother mentioned a side of the house as

the place where the victim was found. The learned Advocate submits that

the statement of the victim first recorded under Section 164 of the Code

should not be acted upon as there was no note appended as to who

produced her. He submits that most important of all, the minor victim girl

turned hostile and could not recognize the appellant. He further submits

that considering the nature of allegations, there should have been some

external injuries on the victim’s body. The learned Advocate points out that

there was no report available from the Godharpara BPHC where the victim

girl was taken first. He submits that PW 6, the co-villager who gave out an

immediate post occurrence account including that the appellant was

brought out from a room and the victim reported about rape, had not been

examined by the police. PW 12, the doctor also said that the victim did not

name any culprit. The learned Advocate also submits that a few important

materials were not placed before the accused in his examination under

Section 313 of the Code like the evidence of the seizure list witness PW 3,

the evidence adduced by PWs 8 and 9.

20. Mr. Saswata Gopal Mukherjee, the learned Public Prosecutor

appearing with Mr. Saryati Dutta, learned Advocate for the State strongly

supports the conviction and sentence passed on the appellant. The learned

Advocate submits that the 12 years old victim child had categorically taken

the name of the appellant before the police and before the learned

Magistrate. Before the doctor who examined her after 12 days, she did not

take the appellant’s name specifically possibly because she was traumatised

and was still bleeding. He submits that during trial, someone else first came

in impersonating as the victim’s father and deposed as PW 2 in opposition to

the prosecution case, obviously at the instance of the appellant. Such

conduct of the appellant was absolutely deplorable and additionally points

towards his culpability. PW 11, the victim’s real father clearly implicated the

appellant by name. The learned Advocate placed much emphasis on the

evidence of PW 6, an independent co villager who saw the appellant being

taken out of a closed room and before whom the victim stated immediately

after occurrence that the appellant had ravished her. He also submits that

the medical evidence clearly supports the prosecution case. The learned

Advocate also submits that PW 14, the Investigating Officer of the case told

that the victim had taken the name of the appellant as the miscreant and

that the appellant was manhandled by the locals after the incident and had

to be treated in a hospital.

21. In the present case, the medical evidence as adduced by PWs 4 and 12

clearly proves that the victim girl was raped. There were some injuries at the
side of a nipple and on the vagina. There was profuse bleeding. Even the

examination was painful. Both the doctors opined that the victim PW 1 was

raped.

22. While the doctors PWs 4 and 12 pegged the age of the victim at 11/12

years, the doctor PW 13 who held an ossification test on her found the

victim to be aged more than 10-12 years, but less than 14 years. So, there

can be no doubt whatsoever that the victim girl was a minor at the date of

occurrence.

23. PW 10, another doctor, found the appellant to be capable of

committing sexual intercourse.

24. PW 10 found an injury on the appellant’s forehead, stitched about 15

days back. This supports PW 14’s evidence that the appellant was

manhandled after the incident and had to be treated in a primary health

centre. Such fact finds indirect corroboration from the evidence of PW 6 that

he saw the appellant being taken out of a closed room after the incident.

These circumstances of the appellant being confined in a room and being

manhandled after the incident and having to receive the medical treatment

clearly act as links in the chain of circumstances pointing towards the

involvement of the appellant in the crime.

25. As regards the identification of the appellant as the perpetrator of

crime, the victim PW 1 had clearly taken his name specifically before the
Investigating Officer (PW 14), her mother (PW 8), her aunt (PW 9), her father

(PW11), and a covillager ( PW 6). There is no reason why the independent

covillager (PW 6) and the Investigation Officer (PW 14) would lie against the

appellant. That PW 6 was deposing for the first time in Court does not

impeach his credibility as a witness in this case. In fact, a careful reading of

the victim’s statement under Section 164 would reveal that the victim stated

about the accused committing rape on her although without specifically

taking the name of the appellant. But, the appellant was the only accused

in the case. It should naturally imply that the victim had named the

appellant as the rapist. True, the minor victim turned hostile during trial.

But, before that she had deposed that the accused had committed the crime.

One can understand the kind of pressure and fear that the victim might

have undergone from her reluctance to specifically name the appellant as

her violator in Court. But she also made it clear that she was deposing as

per the asking of the men who had taken her. The atmosphere of fear and

deceipt at that point became clear from the immediately succeeding incident

of a rank outsider masquerading as the victim’s father and turning hostile in

Court as PW 2.

26. This incident of rape by the appellant is further corroborated by

evidence of PWs 6, 8, 9, the immediate post-occurrence witnesses and PW

11, another post-occurrence witness who saw the victim profusely bleeding

from her private parts.

27. The purported non putting of the evidence of PW 3, a seizure list

written and PW 8 and 9 in the examination under Section 313 of the Code

does not vitiate the trial. First, the evidence was recorded in presence of the

accused. Secondly, the cross-examination of the witnesses by the defence

was done in good measure. From these, it is clear that the appellant was

clearly made aware of the case and the purported non putting of certain

evidence under Section 313 of the Code did not cause any prejudice to him.

28. The evidence of the prosecutrix and post-occurrence witnesses

coupled with the medical evidence unerringly point towards the guilt of the

appellant.

29. In view of the above discussions, we hold that the prosecution has

been able to prove its case beyond all reasonable doubts and hence, the

appeal being C.R.A No. 295 of 2003 is dismissed and the impugned

judgment and order of conviction and sentence passed by the learned Trial

Court against the appellant is affirmed. It may be germane to mention here

that from Memo No. 8620/RB dated 18th November 2013 sent by the

Superintendant, Berhampur Central Correctional Home it appears that the

appellant had deposited the fine amount and was released after serving out

the sentence imposed.

30. A copy of this judgment along with the lower Court Records may be

sent down to the learned Trial Court forthwith.

31. Urgent photostat copies of the judgement may be delivered to the

learned Advocates of the parties, if applied for, upon compliance of all

formalities.

(Jay Sengupta, J)

I agree

(Md. Mumtaz Khan, J)

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