‘IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
The Hon’ble Justice Md. Mumtaz Khan
The Hon’ble Justice Jay Sengupta
C.R.A. 295 of 2003
The State of West Bengal
For the appellant : Mr. Ranadeb Sengupta
For the State : Mr. Saswata Gopal Mukherjee
Ms. Saryati Dutta
Heard on : 14.05.2018, 15.05.2018
Judgment on : 03.09.2018
Jay Sengupta, J.:
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
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
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
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
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
(Jay Sengupta, J)
(Md. Mumtaz Khan, J)