IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE Present:-

HON’BLE JUSTICE CHAITALI CHATTERJEE DAS.

CRA/328/2011 WITH IA NO.CRAN 1 OF 2011 RAKHAL GHOSH VS.

STATE OF WEST BENGAL For the Appellant : Mr. Amit Ranjan Pati, Adv.

Ms. Swastika Chowdhury, Adv.

Ms. Khadijatul Kubra, Adv.

For the State : Mr. Debasish Roy, Adv.

Mrs. Manisha Sharma, Adv.

Mr. S. Nandy, Adv.

Last heard on : 29.04.2025 Judgement on : 05.05.2025 CHAITALI CHATTERJEE DAS, J.:-

1. This is an application under Section 374 (2) of the Code of Criminal Procedure filed by the appellant petitioner challenging the judgement dated 26 April 2011 and order of sentence dated 28 April 2011 passed by the Learned Additional Sessions Judge, re-designated Court, Paschim, Mednipur in Session Trial Case No. February 2011 arising out of Shani P.S. case number 18 of 2009 dated April 3, 2009 under Sections 376 of the Indian Penal Code, 1860 corresponding to GR case number 518 of 2009, whereby convicting the appellant for an offence committed under Section 354 of the Indian Penal Code 1860 and sentencing him to suffer simple imprisonment for nine months and to pay a fine of ₹10,000 in default to suffer further simple imprisonment for one month.

Prosecution case

2. A complaint was written by the father of the victim being P.W 4 on 3rd of April 2009 before the Officer-in-charge Salboni Police Station alleging that on 30 March 2009 at noon about 2 o’clock when his daughter that is the victim girl aged about 15 years went to the river for natural call, and while returning alone, the present appellant picked her up and took to a nearby Doba and raped her muffling her mouth. It was further narrated that since his daughter was late in returning, his wife went to search and suddenly found that the present appellant is running away from the said Doba. The de-facto complainant then went to the Doba and noticed his daughter lying down there, and then he called everyone by shouting. After recovery, the victim narrated the incident to the parents who informed to the appellants father, namely Badal Ghosh, and on hearing, they became furious and tried to assault the de-facto complainant and used filthy languages for the reason of which the de-facto complainant did not lodge any complaint on that day, considering the future of his daughter. He also expressed his apprehension of being threatened by the Appellant and his father.

3. On the basis of the said written complaint, the Salboni police case number

18/2009 dated April 3, 2009 started under Section 376 IPC. After completion of investigation, the I.O. submitted the charge sheet against the present applicant for an offence punishable under Section 376 IPC. Subsequently, the said case was transferred to the court of Learned Sessions Judge and on February 28, 2011, the charge was framed against the present appellant under Section 376 IPC.

Submission

4. Learned Advocate appearing on behalf of the Appellant initially submits that the charge was framed under section 376 of the Indian Penal Code but the Learned Trial court has passed the order of conviction under section 354 of the Indian Penal Code since no such materials were found against the appellant to prove the said charge. Further submitted before this court that the prosecution examined 11 witnesses, including the de-facto complainant who did not support the case of prosecution and declared as hostile. The mother of the victim also did not support the prosecution story and declared hostile. There was a delay in lodging the F.I.R of 5 to 6 days, which created doubt over the prosecution case. It is argued that in the written complaint, the age of the victim was mentioned about 15 years but the Doctor Who examined the victim, considering the x-ray for determination of age opined that the age of the victim was more than 17 years, but less than 19 years. The doctor adduced evidence as PW 2 and said medical examination report of the victim girl has been marked with Exhibit 2 and the pla