Nur Islam Mallick @ Gutu vs State of West Bengal

Ashim Kumar Roy, J. - The appellant was arrayed accused in connection with a case registered at Dhubulia Police Station relating to an offence punishable under Section 376(2)(f) of the Indian Penal Code. The maker of the FIR was the mother of the victim girl.

The case unfolded in the FIR was as follows:

Her daughter aged about 5 years and student of KG standard of Anganwadi School used to take private tuition from Nur Islam Mallick @ Gutu, the appellant before us. On April 10, 2007 at about 7:30 in the evening, she as usual went to take her tuition from the appellant. When taking advantage of absence of the inmate of the house and the victim was alone, the appellant raped. After the incident, she returned home and disclosed the incident to her mother (PW/1). When on examination of her private parts the same was found inflamed and as she became sick she was at once removed to the hospital.

During the course of investigation, police recorded the statements of quite a large number of witnesses, including the victim girl and her statement was also recorded under Section 164 Cr.P.C. and submitted charge-sheet.

Finally, the appellant was placed on trial before the learned Additional Sessions Judge, Fast Track 4th Court, Krishnagar, Nadia to answer a charge under Section 376(1)(f) of the Indian Penal Code.

During trial, the prosecution examined as many as 14 witnesses. However, defence examined none and the appellant pleaded not guilty and claimed to have been falsely implicated.

The learned counsel appearing on behalf of the appellant assailing the order of conviction first drew our attention to the evidence of the victim girl (PW/2) and submitted that according to her, at the time of occurrence, she and one Jewel Mallick (PW/9) went together to the house of the appellant for taking tuition, at that time on the pretext of having his meal, Jewel Mallick was sent out and getting her alone, she was raped against her will but the PW/9, Jewel Mallick while deposing in Court did not support the prosecution case and was declared hostile. He further pointed out that if we consider her evidence-in-chief together with her statement recorded under Section 164 Cr.P.C., contradictions on vital and material circumstances between the two would be apparent. He also contended that there has been delay in reporting the incident to the police. He also added that the medical evidence i.e. the testimony of PW/12, Dr. Sudhir Ranjan Sarkar did not support the case of the prosecution that she was subjected to rape as claimed. He then vehemently submitted that the order of conviction is against the materials on record.

On the other hand, according to the learned counsel for the State, there was no deliberate delay and delay, if any, is not only negligible but quite natural and reasonable. In this regard, she submitted that the incident took place around 7.30 pm. Thereafter she was taken to the hospital and was medically treated and on the next morning around 8 am, the police was reported and FIR was lodged. She then submitted, at the time of occurrence and when deposing in court the victim was around 4/5 years, however, she vividly described how she was violated and during her cross-examination nothing emerged that may touch her credibility.

She then added after the incident the victim disclosed the entire incident to her mother PW/1, father PW/3 and aunt PW/10 and all of them corroborated her fully. Then she drew our attention to the evidence of Doctor and contended that this is not a case of complete penetration but partial penetration, which will be evident from the evidence of that witness and partial penetration amounts to rape. She contended that the prosecution case has been proved beyond all reasonable doubt, therefore, the question of interference with the order of conviction does not at all arise.

We have given our anxious and thoughtful considerations to the rival submissions of the parties and also taken into consideration the depositions of the witnesses and other materials on record.

The victim girl (PW/2) is the key witness of the prosecution. We find in her testimony she at her best disclosed as to how she was sexually violated. Merely because Jewel Mallick (PW/9) did not support her on the point that both of them together went to take tuition at the house of the appellant and to get rid of him, on the pretext of having his meal, the PW/9 was sent to his house and taking advantage of that and when none was present in the house, she was raped, we are not inclined to discard her evidence.

We agree with the learned counsel for the State that her such statement was duly corroborated by her mother, father and aunt, who are the most natural witnesses and to whom she disclosed about the incident soon after the occurrence. In our opinion, the delay in lodging the FIR is quite negligible and has no bearing on the veracity of the prosecution case.

The next question arose whether the claim of the prosecution has been corroborated by medical evidence or not. PW/12, Dr. Sudhir Ranjan Sarkar examined the victim girl on the very next day of the occurrence with a history of sexual assault and on examination he found vulva oedematous, inflamed, radish tinge about 2-4 cm., Hymen intact and deep seated. He opined if there was full penetration by any adult male penis.

This witness was thoroughly cross-examined and nothing could be brought out to impeach his credit.

No case is made out from the side of the appellant which may deserves interference with the order of conviction.

Now coming to the question of sentence, we find that the minimum sentence has been imposed, therefore, there is also no question to interfere with the same.

Having regard to above, we do not find any merit in this appeal and the same stands dismissed.

Let the Lower Court''s Record be sent down the Court below.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties, as early as possible.

Ishan Chandra Das, J. - I agree.