- (1.) This statutory appeal is arising out of a judgement and order passed by the Learned Additional District and Sessions Judge, Sealdah, South 24 " Parganas, convicting the appellant no. 1 under Sections 376/511 of the Indian Penal Code and the appellant no. 2 under Section 376 of the Indian Penal Code simplicitor and sentencing them thereunder to suffer rigorous imprisonment for 4 years and rigorous imprisonment for 7 years respectively and to pay fine with default clause.
(2.) In the trial the appellant Atin Mullick was called upon to answer the charge under Section 376 of the Indian Penal Code, which is read as follows; "That you, on or about the 4th day of June, 2009 at about 10.30 P.M. at 5D, Abinash Chowdhury Lane, Kolkata " 46 under P.S. Topsia committed rape on Sangita Jaiswal and thereby committed on offence punishable under Section 376 of the Indian Penal Code, and within the cognizance of this court of session And hereby direct that you be tried by the said Court on the said charge. The Charge is read over and explained to the accused who pleads not guilty and claims to be tried." Whereas, the appellant Mahasin Alam was charged under Sections 376/511 of the Indian Penal Code and same is read as follows; "That you, on or about 4th day of June, 2009 at about 10.30 P.M. at 5D, Abinash Chowdhury Lane, Kolkata " 46 under P.S. Topsia attempted to commit rape upon Sangita Jaiswal and in such attempt did certain acts towards the commission of the said offence, to wit you became completely naked, you lied upon Sangita etc. and thereby committed on offence punishable under Section 376 of the Indian Penal Code read with S. 511 I.P.C. and within the cognizance of this court. And I hereby direct that you be tried by the said Court on the said charge. The charge is read over and explained to the accused who pleads not guilty and claims to be tried."
(3.) After perusal of the materials on record, more particularly the evidence on records, since I am of the opinion that the order of conviction and sentence cannot be sustained and an order of retrial is to be made inasmuch as framing of charge was not proper and in accordance with law, there is no need to go into the details of the case.;