- (1.) Pursuant to a chargesheet submitted by P.W. 33, Hiten Kumar Mukherjee the sole Appellant hereinabove was arrayed in Sessions Trial No.6(2) of 2000 before the learned Additional Sessions Judge, First Court, Barasat to answer the following charge: "That you, on or about the 17/18.2.96 at about 01.30 hours committed rape on Kr. Jamuna Poddar at Debigarh near Grocery shop of Biswanath Haider, under Madhyamgram Municipality and thereby committed an offence punishable under section 376 of the Indian Penal Code."
(2.) Since he pleaded not guilty he was placed in the trial. The learned Trial Court upon conclusion of the Trial on 19.1.09 convicted the appellant in respect of the offence punishable under section 376(2)(f) of the Indian Penal Code, and directed him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/- in default suffer rigorous imprisonment for one year more. The prosecution in order to prove its case examined as many as thirteen (13) witnesses.
(3.) For a profitable discussion of the entire case before us it would be proper to set out the nature of evidence adduced on behalf of the prosecution. P.W. 1 was the author of the FIR. He was the father of the Victim-girl (P.W.2). P.W. 4 was her mother. P.Ws. 3, 6, 8 and 10 were the witnesses who came to the place and heard about the incident just after the occurrence. P.W.5, Superintendent of Barasat Sadar Hospital, certified with regard to potency of the appellant. P.W. 9, Professor Rama Saha Asstt. Professor of the Department of Pathology attached to the Saha Asstt. Professor of the Department of Pathology, attached to the Institute of Post-Graduate Medical Research 8a Institute at Kolkata at the relevant time was the Medical Officer of the Block Primary Health Centre, Madhyamgram. P.W. 9, Prof. Saha was the first Medical Officer who examined the Victimgirl (P.W.2). P.W.12, Dr. Goutam Bera of the Sub-Divisional Hospital, Barasat being referred to by Prof. Saha examined the Victim. P.W. 11 drew up the formal FIR (Ext.7) on the basis of the Written Complaint (Ext.1) filed by P.W. 1 and P.W. 13, on a completion of investigation, submitted chargesheet. We have been addressed at the Bar by Sri Saha with Sri Chowdhuri in support of the appeal and Mrs. Das with Sri Majumder for the State. It is submitted by Sri Saha for the appellant that at first, P.W.I lodged the FIR against the sole appellant on the premises of section 354 of the Indian Penal Code. There was no whisper with regard to the commission of any offence under section 376 of the Indian Penal Code. He laid great emphasis on this aspect of the matter as it was P.W. 1 who first heard about the incident from the Prosecutrix. But yet Sri Saha wondered as to how in the FIR, which was lodged on the very next day, this aspect was left out. He also invited out attention to the fact that the Victim had gone to the house of one Biswanath Haider for the purpose of playing Ludo. But neither Biswanath nor any one of his inmates was examined, in connection with this case.;