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IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Present:-

HON’BLE JUSTICE CHAITALI CHATTERJEE DAS.

CRA 135 OF 2009

ALI SHA

VS

THE STATE OF WEST BENGAL

For the Petitioner : Mr. Arijit Bhusan Bagchi, Adv.

For the State : Mr. Md. Adil Badr, Adv.

Last heard on : 04.02.2026

Judgement on : 16.04.2026

Uploaded on : 16.04.2026

CHAITALI CHATTERJEE DAS :-

1. This criminal appeal is filed against the judgement dated 10

th

September, 2008

passed by the Learned Additional District and Session Judge, Fast Track

Court, Paschim Medinipur, Jhargram convicting the accused appellant under

Section 376 of the Indian Penal Code and sentencing him to suffer Rigorous

Imprisonment for 7 years and to pay a fine of Rs. 2000/- in default to suffer

Rigorous Imprisonment for 6 months more.

Factual matrix of the case

2. In order to set the police in motion the complaint was lodged by the de facto

complainant before the Court of Learned SDJM at Jhargram, against the

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accused persons alleging that on 16

th

September, 2001 the complainant went

to bed along with family members and his daughter at 10 P .M., after

completing their dinner. About 11 P.M. the minor girl went to attend nature’s

call at the courtyard house but did not return after 20 to 25 minutes and then

the complainant and his wife started searching for their daughter and called

their neighbours and when they reached near the house of Sk Kadu, on

hearing the screaming of his daughter, they entered in the house and found

the accused persons committing rape on the minor daughter. They also found

the accused person being completely naked and trying to remove the wearing

apparel of the daughter of the complainant . The other witnesses also reached

at the spot of occurrence and rescued the minor girl and apprehended the

accused persons. They came to learn from the minor girl that when she went

to attend the nature’s call in the courtyard at about 11 P.M. The accused

person came from her back and held her and after covering her mouth with

cloth forcibly took her in his bed at his house with a bad intention. Further the

accused person raped the minor daughter of the complainant. The accused

was taken by the witnesses to the Binpur Police Station and on assurance by

the O.C to lodge appropriate case and the Opposite Party assured them of

lodging appropriate case but later did not lodge any case of the accused person

and released the accused person.

3. On the basis of this complaint received on October 4, 2001 at 10.25 hours the

Binpur P.S, case no 44/1 dated 4.10.2001 under Section 376 of Indian Penal

Code was started against the accused person. On completion of investigation

the charge-sheet was submitted and the matter being exclusively triable by the

Sessions Court was committed to the Learned Session Judge and

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subsequently transferred before the Learned Fast Track Court, Jhargram

where the charge was framed under Section 376 of the Indian Penal Code

against the present accused person after considering the materials.

Submission

4. The learned Advocate appearing on behalf of the appellants argued that there

is a prolong delay in lodging the complaint without any explanation . The

complaint was lodged under Section 156(3) of the Code of Criminal Procedure

on the ground that though a complaint was l odged before Binpur Police

Station and assurance was given to start a case they did not do that but the

evidence of the recording officer discloses that no complaint was lodged before

the police station. It is further argued that there are severe inconsistencies in

the evidence regarding the time of alleged incident .The I.O. of the case was not

examined to contradict and corroborate the prosecution case. The injury report

was prepared on a white paper without the seal of the hospital . The evidence

further disclosed that a complaint of kidnapping was lodged against the

defacto complainant by the father of the appellant so as a counter blast to the

same this complaint was lodged. No blood was found from the body of the

victim as claimed and the opinion of the doctor suggest she was used to with

sexual intercourse . The only independent witness could not recollect whether

he was examined by the I.O. or not. There was no seizure list of the wearing

apparels of the victim or the accused. Th e age of the victim was not

ascertained. More so the appellant was a thalassemia patient.

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5. On behalf of the prosecution it is argued that the prosecution adduced

evidence of 7 witnesses and proved the documents being exhibit 1 to 11 and

the Learned Court after considering the same arrived at a conclusion that the

accused committed such offence. Accordingly prays for dismissal of this

appeal.

Analysis

6. Heard the submission. From the materials on record as well as considering the

submissions advanced by both the Learned prosecution as well as the defence

counsel the seminal issue required to be ascertained is whether the

prosecution proved the case beyond the shadow of all reasonable doubt before

the Learned Trial Court or not and or whether the judgement and order of

conviction passed by the Learned Trial Court warrant any interference.

7. In this case the de-facto complainant being the father of the victim adduced

evidence as P.W. 1. It can be gathered from his testimony that at the time of

lodging of the complaint the daughter was aged about 12 years and the

incident happened about 6 years ago when he deposed before the court. On

that day with the help of some of his neighbours he found his daughter from

the house of the accused persons and then excepting his daughter and the

accused none was there. He further deposed that his daughter lost senses

when rescued . He further deposed that they took the accused and the

daughter to their house and from there, taken to local police station. Her

daughter could not speak anything to him on that day and subsequently told

him about the rape committed by the accused person. This witness said that

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his daughter was medically examined. From his evidence it can be seen that in

between his house and the house of accused there were 15 houses. He

specifically stated that in that night the parents of the accused were not in

their house. They broke down the door of the accused while entering into his

house as it was locked from inside and then his daughter was in senseless

condition. He did not see any blood on the body of his daughter but his

daughter could not speak anything about the incident to them. It further

transpires from the nature of evidence adduced that a case of kidnapping was

started against the de-facto complainant and three others and they were

released on bail .Other than the de facto complainant Jahangir, Sadhua and

Alamgir were arrayed as an accused in such case of kidnapping. His daughter

was not admitted to Hospital for her medical treatment.

8. P.W. 2 is the victim who deposed that she identified the accused person .

According to her version, the accused and she resided at the same village and

on that night when she came out to attend the nature’s call then the accused

came from her back and gagged her mouth with cloth and took her

somewhere. She further narrated the accused put off her pant and forcefully

raped her. She wept and raised hue and cry. Her parents and neighbours

rescued her. She further deposed that she was medically treated and also

gave statement before the Learned Judicial Magistrate. She also said that the

accused came from behind hence she could not identify him and then he lifted

her to his house and she raised hue and cry then she struggled to free herself

from the clutches of the accused , she raised hue and cry but none of the

neighbour came from their house to rescue her. She also resisted and

struggled to come out from the clutches of the accused when he forcefully

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ravished her. She scratched him with nail at the back of the accused and also

caught the hair of the accused to free herself from him. She sustained injuries

on the backside of her to elbows but she did not show the injuries to any

Doctor. She could not see whether any bleeding injuries was there in any part

of her body but blood oozed out from her private part. She also said that she

became unconscious when the father along with other boys of nearby house

reached she could not speak anything to her father and her neighbours and

also could not say the names of the neighbours who went to her. She further

deposed that prior to this incident she never experienced sexual intercourse

with any person. She was medically examined by a Doctor at Jhargram but

she could not say the time . The family members of the accused /appellant

said at their house .She denied that she is habituated in sexual intercourse

with different persons.

9. P.W. 3 is a neighbour who also knows the appellant/ accused of their village.

It is further deposed that he heard a hue and cry about 5/6 years ago in night

and he woke up and found the sound coming from the house of the accused

and then found that Liakat , calling his neighbours and was moving here and

there. The next door neighbour of Liakat was also called. They went to the

house of the accused person and found the door locked from inside. They

knocked the door but the door was not opened, then they broke down the door

and found the girl lying unconscious and the accused was standing beside her

and they took the accused to the local police station. He denied that the de-

facto complainant is his brother or the victim girl is his niece .His house is

situated about 100 yards away from the house of Liakat and Liakat did not call

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him. He could not give the names of other neighbours who went to the house

of Liakat.

10. He could not say whether the victim was medically treated or not and he

did not go to the local police station taking the accused. He could not say who

broke the door. He also could not say the time when they went to the house of

accused but he was sleeping in his house.

11. The mother of the victim deposed as P.W. 3, Reshma Bibi who could not say

the year or months when the incident took place. She could only say that the

incident took place about 12 O’ clock in the night when they were sleeping and

her four daughters were sleeping in the house. She further deposed that her

daughter went out to their house to urinate and within 2 minutes heard hue

and cry raised by her daughter from the house of the accused person. She and

her husband went to the house of the accused and they found that the door

was locked from inside and they could not open the door. Then they returned

to their local area and called the neighbours and went to the house of accused

and broke down the door and then the neighbours took out her daughter from

the house of accused. The witness further found the pants of her daughter and

pants of accused were put off from their bodies and found dirt on the pant of

her daughter. She sprinkled water on the face of her daughter and then asked

her about the incident who told her that accused caught her chest and

committed dirty act on her. She denied having any relationship with Faruk

Khan. From her cross examination the presence of the father and step

mother of the accused can be seen . She said that the pant of her daughter

was handed over to the police and there was scratch mark on the body of her

daughter. The victim was medically examined 3 days after the incident when

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she was with her daughter. She further said that when her daughter narrated

the incident none of the neighbours were present. Her daughter regained

senses after the water was sprinkled on her face and when their neighbours

were present. She did not tell her anything after she regained sense. She

admitted that she did not state to the police that the door of the house was

locked from inside. She also did not state that the boys of their locality went

to the house of the accused and broke out the door and took out the victim

.She herself did not enter into the house of the accused and could not say

whether Alamgir, Sadhua and her husband took away the accused or not. She

could not say whether Ali sha, brought a criminal case of kidnapping against

her husband and all others. She could not say the nature of the neighbours of

their locality who came to the house and took the victim from that house.

Beside this witness, no other witness of the locality was examined or adduced

evidence before the Court.

12. P.W. 6 Dr. G.M. Jana was attached to Jhargram. S.D. Hospital as a

Gynaecologist on October 9,2001 , when he medically examined the victim in

connection with Binpur P.S. case no. 44 of 2001 . He held medical

examination on V.G in presence of her lady constable and prepared the

medical examination report when V.G . informed that she was a victim of

rape. He further deposed that if a victim girl is examined 15 days after

commission of rape the evidence of rape may not be found. During his cross

examination he said that the report was prepared on a white paper and not on

prescribed form and regarding his holding medical examination over the victim

girl ,there is a note in the relevant registrar of hospital. He had no independent

recollection beyond the findings as recorded in the medical examination report.

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He admitted that it was not noted in the medical examination report that the

victim made allegation that she was a victim of rape. He further said that

victim girl did not give any statement to him. He did not find any sign of

forcible sexual intercourse on the victim girl and also did not get any foreign

particles on the vaginal canal of the victim girl. He further mentioned that the

victim girl is probably habituated to sexual act as the vaginal outlet is

capacious early admitting two fingers. He did not receive any chemi cal

examination report of vaginal swap and did not note if she got any mark of

violence on the private part of the victim girl or marks of violence on the

external part of the victim girl. He did not find any scratch mark on any part of

the body of the victim girl. He did not determine the age of the victim girl but it

was noted that her age is to be determined after getting the radiological

finding. He further deposed that if a man forcibly causes the intercourse the

woman will sustained injury on her private part.

13. P.W. 7 Dr. Pranab Majumder who was attached to Jhargram SD Hospital as

Medical Officer on 30.11.2001 deposed that on that day he medically examined

the accused in connection with Binpur .P.S case no. 44 dated 4.10.2001

under Section 376 of the Indian Penal Code. After examination he found and

opined that there is nothing suggestive that he is incapable of sexual

intercourse. During his cross-examination he deposed that there was no mark

of violence detected on the private part of the accused as per the report and

also that no foreign hair was detected apparently. It was noted in the report

that the accused was a patient of Thalassemia since birth. He referred the

patient to Pathological Department for analysis of semen of the accused.

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14. P.W. 5 Jibon Sankar Niyogi who was posted as C. I. of Police at

Nandakumar, Purba Medinipur deposed that on 4

th

of October, 2001 he was

posted as the Officer-in-Charge of Binpur Police Station. He received a written

complaint under Section 156 (3) Cr.P.c made by Liakat Ali from the Court of

Learned SDJM, Jhargram, on the basis of the written complaint received; he

started the Binpur Police Station case under Section 376 against the accused

person. This witness was re-examined on re-call deposed that on 4

th

of

October, 2001 he was posted as the O.C. Binpur P.S. and was acquainted

with the hand writing and signatures of Md. Ilahi Box who was attached to

Binpur P.S. as S..I of Police of 4

th

of October, 2001. He also identified the

signature of Md. Ilahi Box ,the I.O. who prepared the Sketch map of the place

of the occurrence and the index. The charge sheet was submitted by Md. Ilahi

Box on 13

th

December of 2001 under Section 376 on completion of

investigation, against the accused.

15. In this case the defence did not adduced any evidence was examined under

Section 313 of the Code of Criminal Procedure and he only denied the

incriminating materials which were placed before him and claimed to be

innocent. Therefore the original I.O. was not examined as can be found from

the record.

16. The Learned Advocate on behalf of the appellant raised the point that the

time of occurrence was not ascertained since P.W. 1 stated at 12 O’ Clock

when in complaint he said about 11 P.M. There were 15 houses in between the

house of the accused none of them did not adduce evidence before the Court.

No blood was found in the daughter’s body and she was not treated medically

immediately after the incident. On the other hand, it was argued that against

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de-facto complainant and others a case of kidnapping was started for

kidnapping the present appellant by them. Nothing was seized by the I.O. and

no forensic report was found to ascertain whe ther the accused person

committed rape on her.

17. On close scrutiny of the above evidences adduced primarily it appears that

the specific version of the P.W. 1 was that the de-facto complainant and his

wife with the help of neighbours broke open the door and rescued their

daughter and found his daughter lying unconscious who could not speak

anything to them and only a day thereafter she told him about the commission

of rape by the accused persons. There are certain discrepancies found as the

mother of the victim girl deposed that the boys of their locality broke down the

door and the victim told her about the commission of dirty act on her by the

accused. However later on she deviated from such narrative and deposed she

did not enter inside the room and she did not know who broke the door . The

stand of the victim girl throughout maintained that she was taken forcibly to

the house of the accused and rape was committed on her by the accused

person and she struggled to free herself from the clutches of the accused.

18. The victim girl recorded her statement before the Learned Magistrate which

was marked as exhibit 11 on 9

th

of October, 2001 about the incident occurred

about 20 to 23 days before the date of giving statement. Primarily from the

entire facts and circumstances it can be gathered that the date of incident was

16

th

of September,2001 at about 11 to 12 at night and the complaint was

lodged on 4

th

of October,2001 that is after 20 to 23 days. The reason assigned

in the said complaint lodged under Section 156 clause (3) of Cr.P.C. manifest

that it was the assurance given by the local P.S, no complaint was lodged and

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the local police released the accused person who was taken by the neighbours

to the Police Station. The testimony of the de-facto complainant speaks of a

case lodged against him and three others for kidnapping of the appellant

however they were released on bail. In the present case the I.O was not

examined. P.W 5 Jiban Shankar Neogy received the complaint made by the

complainant from the court of Learned S.D.J.M ,Jhargram and started Binpur

case .The investigation was endorsed to Elahi Box to whom he forwarded the

case and he submitted the charge sheet and this I.O retired from service and

he was not examined .

19. It is settled law that the evidence of a victim of sexual offence is equated

with the evidence of an injured and order of conviction can be passed on the

basis of sole testimony of the victim’s evidence without asking for further

corroboration unless it fails to inspire confidence.

20. In this case the age of the victim was not ascertained .She herself stated

her age as 12 years which was corroborated by her father .Before the learned

judicial magistrate also she disclosed her age as 12 years but before the

doctor no age was mentioned and he did not determine the age . The learned

trial court while taking evidence did not mention the age but after assessing

evidence the learned trial court did not accept the age of the victim as 12

years ,however no attempt was made to ascertain such age .

21. In this case excepting the victim, the witnesses are the parents of the victim,

and Faruk Ali Khan whose house was shown in the sketch map situated

within a close proximity .The defence raised a dispute regarding his strained

relationship with the family of the victim as a kidnapping case was lodged

against the P.W1 and other persons by the father of the accused. No date or

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number of the case was mentioned by any of the witnesses and though

admittedly a case was lodged alleging kidnapping . It is settled law that mere

delay in lodging the complaint cannot be a factor for not accepting the victim’s

testimony and the delay alone cannot be a cause for acquitting the accused of

rape victim if otherwise found convincing evidence against him. In the present

case the reason was assigned for delay that no action was taken in respect of

the complaint lodged before the Binpur Police station but the recording officer

stated that no complaint was received at Binpur Police by the P.W 1 .

22. In the deposition it was stated that the house of the accused was at a stone

strowing distance and the sketch map also shows the place of occurrence

within a very close proximity however the P.W. 1 deposed that in between his

house and the house of accused there are 15 houses. P.W 3 Faruk Ali is the

neighbour who could not give any name who were present and broke the door

opened by the local boys. He even could not remember as to whether he was

examined by the police or not but said that he did not state the incident to

police. So this fact was stated before the court for the first time. According to

his version he found the accused standing beside the girl who was lying

unconscious when the father found them in naked condition and the mother

found after entering into the room that the undergarments of both the

accused and the victim were put off and found dirt in the pant of her

daughter. Later on she said that she did not enter into the room. So the entire

incident narrated by her about entering into the house including sprinkling

water on her face and who then disclosed the incident happened with her,

loses its credibility. Further inconsistencies which are apparent from the

evidence of the mother that while she narrated the incident none was present

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and she did not say anything after she regained sense when according to the

father she could not say anything on that day and disclose on the next day.

According to the mother, her daughter was medically examined after three

days of the incident and she accompanied her daughter but according to P.W

6, the doctor after 15 days the examination took place. The injury report is

dated 9.10.2001 and no other injury report is produced. No seizure list is

produced to show the said pant was seized from the mother as deposed or it

was sent for forensic report or not. It also cannot be ascertained that the injury

report was collected by the I.O from the hospital .The injury report placed

before the court did not contain any seal of the hospital and was prepared on a

white plain paper .The opinion of the doctor suggest no injury in her private

part or any external injury and she was probably habituated in sexual

intercourse. No hospital Register was produced to show the victim was treated

on the relevant date at the said hospital .No explanation is forth coming as to

why the previous treatment sheet or the injury report was not produced and

what complaint was lodged before the Binpur Police Station immediately after

the incident. Not a single person was cited as witness in order to show that on

the relevant date a number of local people assembled and reached at the house

of the appellant and broke the door and rescued the victim girl from there. The

medical paper suggested that the appellant is a patient of thalassemia from

birth and the defence raised the issue that it was not possible for a patient

suffering from thalassemia to lift the victim. More so the victim was not only

lifted but taken to his house crossing 15 houses and none came out from the

adjacent houses when her parent could hear the crying of their child coming

from that house. The P.W. 1 was with Jahangir, Alamgir, Sk.Bajudwar and

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Sadhu against whom a case of kidnapping was lodged for kidnapping of the

appellant and they had to surrender and obtained bail. None of the aforesaid

person adduced evidence.

23. In the light of the above glaring inconsistencies and without having any

corroborating evidences , found to establish that the girl was rescued from the

house of the appellant after the parents searched her out, hearing her cry from

the house of the appellant and the door of the house had to be broken with the

help of the local people. More so the father of the victim along with the others

allegedly accompanied him at the house were made accused in co nnection

with a kidnapping case. The mother though found dirt in the pant of her

daughter didn’t mention about blood in the pant when the victim said blood

oozed out from her private parts. The father clearly deposed he did not find

any blood in the body of his daughter .

24. However it is time and again reiterated by the Hon’ble Supreme Court that

mere delay in lodging the F.I.R, Absence of any injury in her private part or the

procedural laches cannot be a factor to be considered when the victim of

sexual exploitation adduce evidence and her testimony remained

unchallenged. From the statement of the prosecutrix, it clearly emerges that

she was abducted and forcibly subjected to sexual intercourse by the appellant

without her consent and against her will. The question of age of the

prosecutrix in this situation would pale into insignificance however, in the

present case, from the evidence on the record prima facie her age on the date

of the occurrence, was below 16 years . The offence was committed in the year

2001 before promulgation of POCSO Act otherwise the case could have been

registered under the said Act. The victim’s testimony of ravishing her in the

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middle of night lifted from the outside of her premises from her back and

gagging her mouth remained unchallenged. In all possibility the case of

kidnapping might have been filed against the father of the victim immediately

after the appellant was confined by them and probability of lodging the

complaint thereafter seems justified. It is trite law that the defence cannot take

the advantage of the procedural laches in the case of sexual exploitation. Even

if it is considered that the appellant was a patient of thalassemia the doctor’s

report clearly discloses that nothing found to show he was not capable of doing

sexual intercourse .The victim girl appears to be an illiterate as gave her

thumb impression and she recorded her statement before the learned

Magistrate and throughout maintained her narrative about the commission of

rape on her.

Conclusion

25. Therefore from the above facts and circumstances this court does not find

any reason to interfere with the order passed by the learned sessions court on

the basis of the sole testimony of the victim.

26. Hence this criminal appeal stands dismissed. The judgement and order of

conviction passed by the Learned Session Court is hereby affirmed. The bail

bond in favour of the appellant stand forfeited with immediate effect.

27. The learned Sessions Court after considering the gravity of offence did not

gave the benefit under Section 3 & 4 of the Probation of Offender’s Act.

However it transpires that no provision was made for victim compensation by

the learned court. The provisions of 357A of the Code of Criminal Procedure,

1973 was not in place at the time of occurrence of the incident being a

beneficial legislation was inserted in the year 2009.

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28. In the case of Piyali Dutta vs State of west Bengal

1

, it was held;

“The provision does not say that a crime occurring prior to

a specified date is not covered thereunder .As noted that it

is not introducing a criminal liability. It is time neutral that

is to say ,that, it does not distinguish between victims of a

crime happening prior to introduction of the section to the

statute with those incidents of crime happening post its

introduction in the statute book. The section itself not

making any distinction between victims on the basis of the

time of occurrence of the crime, the same cannot be read

into it .The plain reading of the section does not permit one

to interpret the same to mean that, it contemplates

differential treatment of the victims of the specified crimes

on the basis of time of occurrence of each crime. Such a

difference if sought to be read into section 357A of the code

it would do violence to it. It would not be an intelligible or a

reasonable differentia or distinguish between victims of

crime on the basis of time of occurrence more so when

prosecution itself be silent on time.”

29. Therefore in this case the incident happened prior to 2017 when the victim

compensation scheme is given effect and in the order no reflection was

there but in view of the above observation the petitioner being a victim of

sexual assault is entitled for the said compensation. Hence, the Member

Secretary, State Legal Services Authority will take appropriate step and

extend such benefit of scheme in accordance with law.

30. Let a copy of this judgement along with the trial court record be forthwith

sent before the Trial Court

1

(2017) CriLJ 4041

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31. Urgent certified copy of this order, if applied for, is supplied expeditiously

after complying with all necessary legal formalities.

(CHAITALI CHATTERJEE DAS , J.)