The court emphasized the importance of considering the circumstances and the victim's situation in cases of sexual assault, and the discretion to modify the sentence based on aggravating and mitigating factors.

JUDGMENT :

Joymalya Bagchi, J.

1. The appeal is directed against the judgment and order dated 09.10.2013 & 10.10.2013 passed by the learned Additional Sessions Judge Special, 1st Court, Darjeeling in Sessions Case No.36/2011 convicting the appellant for commission of offence punishable under Sections 376 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.50,000/- in default to suffer imprisonment for a further period of two years.

2. Prosecution case as alleged against the appellant is to the effect that the victim, who was aged around 15 years at the time of occurrence was in the custody of the appellant and her maternal grandmother. The appellant, being the second husband of her grandmother, took advantage of his fiduciary control over the minor victim and ravished her between September, 2008 till May, 2011. As a result she became pregnant. When her pregnancy was detected, she divulged the incident to her father (P.W.1), who lodged F.I.R. being Darjeeling Sadar Case No.47/11 dated 06.05.2011 under Section 376 of the Indian Penal Code. Victim was medically examined and her statement was recorded under Section 164 Cr.P.C. In conclusion of investigation, charge sheet was filed in the instant case under Sections 376 of the Indian Penal Code against the appellant.

3. The case was committed to the court of sessions and transferred to the court of learned Additional Sessions Judge Special, 1st Court, Darjeeling for trial and disposal.

4. Charge was framed under sections 376 IPC. The appellant pleaded not guilty and claimed to be tried.

5. In the course of trial, the prosecution examined 16 witnesses to establish its case and exhibited a number of documents.

6. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial court by the impugned judgment and order dated 09.10.2013 & 10.10.2013 convicted and sentenced the appellant, as aforesaid.

7. As the appeal has been filed from jail, we requested Mr. Sabir Ahmed, learned lawyer empanelled with the State Legal Services Authority to appear on behalf of the appellant.

8. Secretary, State Legal Services Authority is requested to regularize his appointment.

9. Mr. Ahmed, appearing for the appellant argued that evidence of the victim (P.W.9) suffered from various contradictions. He argued that the grandmother of the victim and the doctor who examined her had not been examined as a witness. There is considerable delay in lodging the first information report and it is highly improbable that the victim would keep quiet in spite of sexual assault upon her and not revealed the incident to her parents and her grandmother. Accordingly, the appellant is liable to be acquitted.

10. Learned Public Prosecutor along with Mr. Das, learned counsel argued that the victim (P.W.9) was a minor child who was in the control and custody of the appellant, her grandfather by relation, at the time of occurrence. In view of all pervasive control of the appellant over victim, a minor girl, she was unable to raise protest and kept quiet until her pregnancy was discovered by her father, P.W.1. P.W.6 examined the victim and found that she was pregnant which corroborated her allegation of rape by the appellant. Evidence of the school teachers, that is, the independent witnesses corroborated the version of the victim of brutal sexual assault by the appellant. Hence, the appeal is liable to be dismissed.

11. P.W.9 is the victim and the most vital witness in the instant case. She deposed that she was studying in Class IX at St. Philomina Girls' Higher Secondary School, Kalimpong. She is 14 years' old and the appellant is her step grandfather. Since her childhood she was residing with the appellant and her grandmother at Singmari, Ropeway as her parents had separated. In the absence of her grandmother, the appellant used to touch in different parts of the body and wanted to have sexual intercourse with her. He threatened her with dire cons