- (1.) This appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, Fast Track Court - II, Krishnanagar, Nadia in Sessions Trial No. IV of December, 2004 arising out of Sessions Case No. 36 of October, 2004 sentencing the appellants to suffer RI for life and to pay fine of Rs.4,000/- each in default to suffer RI for four months under section 376(2)(g) of the Indian Penal Code.
(2.) The prosecution case, in short, is that on 13.6.2004 around 12 at night four persons entered into the house of the victim and by putting cloth on her mouth lifted her away to a nearby field and committed rape upon her. THE names of the accused persons are Kurman Sheikh, Shamsul Sheikh, Idrish Sardar and Marfat Sardar. Each of them were armed with pistol and knife and they threatened her with dire consequences and also to kill her husband if the incident was disclosed to anyone. THE victim and some other families reside in a field and, as such, she could not disclose the incident to any other person out of fear. After the said incident, the accused persons attempted several times to commit torture upon her. After receipt of the complaint, the Tehatta P.S. Case No. 158 dated 25.7.2004 was started under section 376(2)(g) of the Indian Penal Code. THE charge was framed against the accused persons under section 376(2)(g) of the Indian Penal Code. THE accused persons pleaded not guilty and claimed to be tried. The learned Trial Judge upon consideration of the materials on record passed the impugned judgment holding that the evidence of the prosecutrix was truthful and worthy of credence and no further corroboration was required when the probability factors echoed in favour of the prosecution. The learned Trial Judge placed reliance upon the evidence of the prosecutrix (P.W.1), the evidence of P.W.2 and the independent and disinterested witnesses, namely, P.W.6 and P.W.7. The learned judge ultimately convicted the accused persons and passed the sentence as stated above. Mr. Bhattachryya appearing on behalf of the appellant Nos. 1, 2 & 4 submits that there was delay of 42 days in lodging the FIR and this delay has not been reasonably explained. It is contended that there are discrepancies between the evidence of the prosecutrix (P.W.1) and the statements made by her before the learned Magistrate which was recorded under section 164 Cr PC. Mr. Bhattacharyya contends that in the statement under section 164 Cr PC there was no mention of holding 'salish'. Mr. Bhattacharyya submits that the alleged holding of 'salish' has been introduced at the time of trial.
(3.) Mr. Bhattacharyya contends that the seizure was made long after the incident and the I.O. did not send the wearing apparels to the chemical examiner for examination. MR. Bhattacharyya submits that the papers relating to the alleged 'salish' were not produced at the time of trial. MR. Bhattacharyya contends that the evidence on record does not warrant conviction of the appellants and the learned Trial Judge was not justified in passing the impugned judgment. Mr. Kazi Saifuddin Ahmed appearing on behalf of the appellant No.3 submits that in view of the serious discrepancies and improbabilities, the learned Trial Judge was not justified in passing the impugned judgment of conviction and sentence. Mr. Ahmed submits that the impugned judgment is not sustainable in law.;