- (1.) The challenge in this appeal is to the judgement and order passed in Sessions Case No. 162 of 2004 [S.T. 7(4) of 2005] dated 28.7.2005 by the Additional District and Sessions Judge, 5th Fast Track Court, Malda whereby the opposite party Nos. 2 and 3 were found not guilty to the charges under section 376 (2) (g) read with section 34 of the IPC and were acquitted therefrom.
(2.) Sabitri Barman lodged one FIR in Habibpur Police Station of District-Malda on 18.10.2010 alleging therein that on 10.10.2002 while she was sleeping in her bed room, Sunil Roy and Kanka Barman entered into the room. Kanka Barman caught hold her mouth tightly while Sunil Roy committed rape on her. Hearing odd sounds, the parents of Sabitri Barman came there and seeing them Sunil and Kanka left the place through the window. Sabitri Barman recognized Sunil Roy and Kanka Barman by the light of a kerosine lamp. Hearing alarm the co-villagers reached the house of Sabitri Barman. All of them had gone to the house of Kanka Barman. A 'salish' was held wherein Sunil Roy and Kanka Barman admitted their guilt. The delay in lodging the FIR was caused because Sabitri Barman expected something in her favour in the 'salish'. On the basis of the said FIR, the Habibpur Police Station Case No. 107 of 2002 dated 18.10.2002 was started against the opposite party Nos. 2 and 3 under sections 357, 376/34 of IPC. In course of investigation the witnesses available were examined by the I.O. who also seized under garments, Kerosine lamp, wearing apparels of the prosecutrix under seizure list, got the statement of the prosecutrix recorded under section 164 Cr. PC and got the prosecutrix examined medically. After completion of the investigation, a chargesheet was filed against the opposite party Nos. 2 and 3 under sections 376 (2) (g), 457/34 of IPC. The trial was conducted by the learned District and Sessions Judge, 5th Fast Track Court at Malda. As many as sixteen (16) witnesses were examined on behalf of the prosecution. No witness was examined on behalf of the defense. The learned Trial Court, after considering the evidence on record, found that the prosecution failed to establish the charges against the respondent Nos. 2 and 3 and, accordingly, recorded their acquittal. The prosecutrix/de facto complainant Sabitri Barman has come with this revision application challenging the legality, validity and propriety of the judgement and order of acquittal on the grounds that - i) that the learned Court failed to consider and appreciate the evidence on record in its proper perspective; ii) the judgement of the learned Court is based on conjecture and surmise; iii) the learned Court overlooked the material and substantive pieces of evidence and put unnecessary importance on irrelevant and immaterial evidence/issue while recording acquittal, iv) the learned Court erred in coming to a conclusion that the delay in lodging the FIR was not properly explained; v) the learned Court erred in not accepting the prosecution case of seizure of 'jangia' on the place of incident belonging to the opposite party Sunil Roy; vi) that the learned Court did not put any importance on the extra judicial confession made by the opposite party No. 2 before the prosecution witnesses Nos. 1,3,4 and 5; vii) that the learned Court should not have discarded the evidence of the prosecutrix which was supported by other witnesses simply because she was a major girl; and viii) that the judgement and order impugned being otherwise bad in law are liable to be set aside and order of retrial be passed.
(3.) The point for decision is whether the judgement and order impugned are sustainable in law and an order of re-trial is necessary.;