- (1.) The present appeal is directed against the judgment and order dated 5.10.91 passed by Sessions Judge, Cooch Behar in Sessions Case No. 55/91, through which the accused/appellant was convicted under Section 457 and under Section 376 I.P.C. and sentenced to suffer R.I. for 10 years and to pay a fine of Rs. 3000/- in default, to suffer R.I. for 2 years more for his conviction under Section 376 I.P.C. and the appellant was further sentenced to suffer R.I. for 4 years and to pay fine of Rs. 1500/- in default, to suffer R.1. for 1 year more, on his conviction under Section 457 I.P.C. It was further ordered that both the sentences would run concurrently.
(2.) In short, the prosecution case is as follows :- On 27th April, 1991 at night Smt. Jayanti Barman (PW.1) after taking night meal slept along with her two minor male children in-side the bed-room situated on the east bhiti of the house of her husband, Sri Mondal Barman. In that night her husband slept along with their two other minor sons in another bed-room situated in the northern bhiti of the house. After mid- night at about 1 a.m., on 28.4.91, the appellant entered into the bed-room where P.W. 1 was sleeping. After opening its door by applying pressure and thereafter he gagged the victim with a napkin and lifted her from her bed and forcibly made her lie on the floor of the bed-room and then he removed the only apparel of the victim that is to say saree and made her stark nude. The accused thereafter in spite of her strong resistance, raped her by forcibly penetrating his penis into her vagina. After the commission of the offence, the accused fled away from the said place of occurrence. The victim at once raised hue and cry and after hearing her cries her husband Mondal Barman (P.W.3) and some of her neighbours came running to the spot. The victim quoted the entire incident of rape committed by the accused upon her. It was alleged that a kerosene lamp was burning inside her bed-room and with the light of the lamp the victim could recognize and identify the accused. It was further alleged that the victim knew the accused from before the said incident, as he occasionally used to work at her house as a day labourer. The victim lodged the F.I.R. in the afternoon of 28.4.91 which was scribed by Sri Haripada Roy (P.W.7). On the basis of the F.I.R. a case, namely, Dinhata P.S. Case No. 144 dated 28.4.91 against the appellant was started. The police on completion of the investigation submitted charge-sheet and on the basis of the materials collected by the police, the learned Sessions Judge raised charges under Section 457 I.P.C. and under Section 376 I.P.C., after the case had been committed to the Court of Sessions by the Magistrate. The defence plea in the instant case is that accused Nripen Barman mortgaged a piece of land measuring 10 cottas to P.W.3, the husband of the victim, on receiving a sum of Rs. 500/- for defraying the medical expenses of his ailing wife. The wife of the accused died and the accused could not repay the amount, and accordingly, he sold that land to the husband of the victim (P.W.3) under a registered kobala for which the consideration money was fixed at Rs. 1,500/-, besides the aforesaid sum of Rs. 500/-, which the accused had already received at the time of mortgage of the land as above. The further plea of the defence was that P.W. 3 managed to procure the said registered kobala from the accused without paying the said consideration money of Rs. 1,500/- and at that the accused threatened to start a case against P.W. 3 for realization of that unpaid consideration amount from him and on being so threatened the husband of the victim (P.W. 3) falsely initiated the case against the accused through his wife in collusion with her.
(3.) The learned Sessions Judge in the judgment impugned discussed the evidence on record and observed that the victim (P.W. 1) gave a vivid description of the alleged incident in her evidence and there was no scope for doubting the veracity of her oral testimony. In coming to his ultimate conclusion regarding the guilt of the accused, the learned Judged further recorded relying on the evidence of P.W. 1 that the accused entered into her bed-room by removing the thin wooden bar by putting his fingers through a space in the upper portion of one door leaf of the door of that bed-room. He also relied on the evidence of P.W. 1 that at the relevant time of occurrence one of the iron hinges of the door leaf was in broken condition and for that reason, the said door-leaf remained slanting inwardly in that bed-room making a space allowing a gap through which any person could open that door from outside by removing a thin wooden bar with which that door was bolted from inside. The learned Judges also recorded that the evidence of P. W 1 on the point of commission of the offence of rape was impeachable. On hearing her cries, the witnesses like P.W. 6, P.W. 8, P.W. 9, P.W. 12 and P.W. 13 and other neighbours came to her house and saw her weeping with her hair in dishevelled condition and wearing a torn saree. The learned Judge also observed that the medical evidence given by P.W. 2 Dr. Mihir Kr. Banerjee, who examined the victim two days after the occurrence that is to say on 29.4.91 was not incompatible with the prosecution case and it was quite possible that the victim, a married woman having 4 children between the age of 16 years to 4 years if raped then injuries on her vaginal canal would not occur. Regarding some discrepancies, the learned Sessions Judge observed that those inconsistencies did not go to the root of the case and after observing and concluding thus, the learned Session Judge came to a clear findings that prosecution had been able to prove the charges beyond all reasonable doubt and thereafter convicted and sentenced the accused/appellant as noted above.;