The main legal point established in the judgment is the reliance on medical evidence, witness testimonies, and circumstantial evidence to prove the guilt of the appellant in a rape case.

JUDGMENT :

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 preceding 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 t