ASHIM KUMAR BANERJEE. J. - (1.) ON the day of Swaraswati Puja victim along with her two friends, one of whom was Nagari, went out to see Swaraswati idol. After sometime her friends left her. She was alone. She met one of the villagers known as Krishna, PW-7 and asked for his help. Krishna advised her to avail the van rickshaw of Nikhil. She accordingly boarded the rickshaw. ON the way Shashi boarded the rickshaw. Sadhan started walking in front keeping pace with the rickshaw. Nikhil took the rickshaw to a high land. All three together dragged the victim to the said high land. They stripped bare the victim and ravished her. According to the victim, she sustained bleeding injury on her private parts. The accused pressed her breast. Victim became senseless. Blood was oozing out of private parts. The accused took her to her house and asked her not to disclose the incident to anyone. She met her mother in the house, asked for a glass of water and then went for sleep after taking water. Next day she disclosed the incident to Ratna (PW-5) and Basanti (PW-2), who, in turn, narrated the incident to Mangoli (PW- 3). According to the victim and her parents, they initially lodged the complaint to the Panchayet.
(2.) AFTER being refused justice they approached the Police and lodged the complaint. The police arrested Nikhil, Sadhan and Sashi. The police also got the victim examined by the Doctor being PW-6. The accused were chargedsheeted under Sections 376 (2)(g)/511 of the Indian Penal Code. All the accused persons pleaded not guilty and faced trial. The learned Assistant Sessions Judge, Cooch Bihar, after considering the evidence on record, held the accused guilty of the offence and convicted all of them. The three accused were imposed punishment of rigorous imprisonment for five years coupled with a fine of Rs.1,000/- each and in default, to suffer simple imprisonment for one month. Being aggrieved and dissatisfied with the judgment and order of the Assistant Sessions Judge, three accused / convicts preferred an appeal before the learned Sessions Judge, Cooch Bihar. The learned Sessions Judge reappraised evidence and came to a finding that the prosecution miserably failed to establish the case against the accused. He allowed the appeal and acquitted the convicts by setting aside judgment and order of the learned Assistant Sessions Judge, Cooch Bihar, hence, the revisional applications by the de-facto complainant, being the mother of the victim. Mr. Sumanta Chakraborty, learned Counsel appearing for the revisionist, contended as follows :- i) The learned Assistant Sessions Judge was convinced with the evidence that led by the prosecution particularly, through the victim and her parents. Such unimpeachable evidence was overlooked by the learned Sessions Judge. ii) The learned Sessions Judge failed to appreciate that detailed Medical Examinations would of no assistance as there would be hardly any possibility of finding any sign of rape. He erred in relying on the Medical Evidence while acquitting the convicts. iii) It was settled law that the victim's statements narrating the incident of rape was sufficient enough to sign the judgment of conviction. The learned Sessions Judge failed to appreciate the same. While elaborating his argument, Mr. Chakraborty took the evidence that led by the prosecution. He contended that there might be little anomaly in the version of the victim and her parents, however, they were consistent on the happening of the incident, which was rightly appreciated by the learned Assistant Sessions Judge. Hence, the learned Sessions Judge ought not to have upset the finding of the First Court.
(3.) IN support of his contention, Mr. Chakrabory relied on the following decisions : i) All INdia Reporter 1958 Supreme Court Page-97 (Ramgopal Ganpatrai Ruia and another-Vs- state of Bombay) ii) All INdia Reporter 1992 Supreme Court Page-2004 (State of Rajasthan-Vs- Shri Narayan) iii) All INdia Reporter 1973 Supreme Court Page- 469 (Madho Ram and another Vs- The State of U.P) iv) 2000 Volume-V, Supreme Page-204 (State of Tamil Nadu Vs. Ravi) v) 2005 Volume-VIII Supreme Page- 165 Vishnu @ Undrya -Vs- State of Maharashtra) vi) 2006 Volume IV Supreme Page-313 (Om Prakash- Vs- State of Uttar Pradesh) While opposing the application on behalf of the accused / convicts, Mr. Shiladitya Sanyal, learned counsel, contended as follows :- i) There was substantial discrepancy in the version of the complainant, which would automatically create suspicion in the mind of the Court. ii) In a case of single rape, there might not be any injury. However, in a gang rape injury was obvious. Such injury was not found by the Doctor while examining the victim. iii) There was substantial anomaly in the version of the victim and her parents, which would automatically lead to suspicion. iv) The conduct of the victim and her parents would not support the case of the prosecution. ;