- (1.) This appeal is directed against a judgement dated 30th August, 2008 by which the learned Additional Sessions Judge, Fast Track 3rd Court, Jalpaiguri in Sessions Case No. 153 of 2004 corresponding to Sessions Trial No. 1 of 2005 arising out of Rajganj P.S Case No. 56 of 2004 dated 18th June, 2004 convicted the appellant of an offence punishable under Sections 376 and 448 of the Indian Penal Code. Rest of the accused persons were acquitted. By an order dated 1st September, 2008 the convict was sentenced to rigorous imprisonment for 8 years and was also sentenced to pay a fine of Rs. 5,000/- in default to suffer further rigorous imprisonment for a period of 2 years for the offence punishable under Section 376 of the Indian Penal Code. He was further sentenced to simple imprisonment for 6 months for the offence punishable under Section 448 of the Indian Penal Code.
(2.) The facts and circumstances of the case briefly stated are as follows:- On 1st May, 2004 when the prosecutrix was alone at home and was cleaning her western room, the accused Kabul suddenly came from behind, overpowered her and raped her. In order to prevent her from shouting she was gagged. While the act was still in progress the father of the prosecutrix entered the room. The appellant left the victim and hid himself underneath the chowki. The father of the prosecutrix caught hold of him and kept him tied. By that time the brother of the victim had also arrived. The father of the appellant Kabul called at the house of the prosecutrix and insisted upon release of the appellant to which the father of the prosecutrix was not agreeable. While they were engaged in the aforesaid conversation, Abul and Jainal rescued the appellant from inside the place of occurrence by breaking open the fencing of the room. Hearing the sound the father of the prosecutrix rushed to the place of occurrence and found Kabul escaping. On 1st May itself the police was informed about the incident. The prosecutrix it appears was also sent to Rajgang Rural Hospital but she was not examined and was referred to the Sadar Hospital, Jalpaiguri. In the same evening a Salish was held in which it was decided that on 13th Jaistha, 0.50 decimal land shall be conveyed to the victim by the father of the appellant Kabul and on 17th Jaistha marriage between the victim and the accused shall be solemnized. Based on the aforesaid promise the matter was not further proceeded with. Ultimately neither the land was conveyed nor was the marriage solemnized. In that view of the matter the aforesaid Rajganj case was started on 8th June, 2004 on the basis of the written complaint dated 1st May, 2004. Statements of the victim and her father were recorded under Section 164 of the Code of Criminal Procedure. The victim was medically examined. The accused was also medically examined.
(3.) 18 witnesses were examined. P.W.1 is the victim herself. P.W.2 is her father. P.W.3 is her mother. P.W.4 is a neighbour and also a relation of the victim. P.W.5 is a neighbour and also a relation of the victim. P.W.7 is an uncle of the victim. P.W.6 is a Panchayat member who was present at the salish. P.W.8 was also present at the salish. P.W.14 is also a member of the gram panchayat and he was present at the salish. P.W.10 is both a member of the panchayat and the scribe of the written complaint. He turned hostile. P.W.9 is a medical officer of the Sadar hospital. He examined the victim on 21st June, 2004. P.W. 13 held ossification test of the victim. P.W.15 is an official of the Forensic Science Laboratory. P.W.18 is a Doctor attached to the Rajgang Rural Hospital. P.W.12 recorded the statement under Section 164 of the Cr.P.C.. Rest of them are all official witnesses.;