KANCHAN CHAKRABORTY,J - (1.) THIS appeal is directed against the judgment and order dated 10/11.08.2010 passed by the learned Additional District & Sessions Judge, Fast Track Court, Gangarampur at Buniadpur, Dakshin Dinajpur in Sessions Case No. 413 of 2008 (Sessions Trial No. 06 of 2009) thereby convicting the appellant Sanjit Roy alias Kostu for committing offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven year and to pay fine.
(2.) THE factual aspects of the prosecution case, on the basis of which the trial commenced in the learned Trial Court is stated below, in short:- On 06.09.2007, the prosecutrix, Putul Singh (Roy), wife of Biswajit Roy was sleeping in her matrimonial house. In the night, at about 2.00 A.M., accused Sanjit Roy entered into her room, lifted the mosquito net, came on her bed and caught hold Putul forcibly and, as a result, Putul woke up. Seeing Sanjit inside her room and on her bed at that odd hour, Putul began shouting but Sanjit muffled her mouth and threatened to kill her by throttling if she continues to do so. Thereafter, Sanjit put off her blouse and committed rape on her. He also threatened her that he would kill her in case of disclosure. On the next date, Putul narrated the incident to her parents-in-laws, who told her not to disclose the facts to anyone and in case of disclosure, they would kill Putul by setting her on fire. She was confined into the house. She somehow managed to send a letter to her elder brother requesting him to come in her matrimonial house. Her husband was sent away from home by Ukil Roy and Padma Roy, the father-in-law and mother-in-law of Putul and the incident took place in his absence. The father-in-law and mother-in-law of Putul, being abettors, were involved in the case. Putul lodged First Information Report stating the above mentioned facts with the Gangarampur Police Station on 08.09.2007 at 18.20 hours against Sanjit Roy, Ukil Roy and Padma Roy. Ukil Roy and Padma Roy were the father-in-law and mother-in-law while Sanjit Roy was the husband of sister-in-law of Putul. On the basis of the said First Information Report, Gangarampur Police Station Case No. 180 of 2007 dated 08.09.2007 was started against Sanjit, Ukil and Padma under Sections 376/201 of the Indian Penal Code. The case was investigated into and ended in a charge sheet against all three accused persons. Sanjit was arrayed to face the charge under Section 376 of the Indian Penal Code while Ukil and Padma were arrayed to face charge under Sections 201/34 of the Indian Penal Code. All of them pleaded not guilty to the charges and, as a result, trial commenced. The prosecution examined as many as 11 witnesses in course of trial. No witness was examined on behalf of the defence. The Medical Report, one letter of the victim girl, seizure list, First Information Report, written complaint, Sketch map of the place of occurrence, etc. were admitted into evidence without any objection and marked exhibits on behalf of the prosecution. One sari and one petticoat were also produced in Court and marked material exhibits 1 and 2 on behalf of the prosecution. The report of State Forensic Science Laboratory and notice received by the accused persons were also admitted into evidence and marked exhibits. Upon consideration of the evidence on record, oral and documentary, the learned Trial Court came to a conclusion that the prosecution established the charge under Section 376 of the Indian Penal Code against the appellant Sanjit Roy but failed to establish the charge under Sections 201/34 of the Indian Penal Code against Ukil Roy and Padma Roy. Ukil Roy and Padma Roy were acquitted while Sanjit Roy was convicted under Section 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay fine. The judgement is challenged in this appeal by Sanjit Roy, mainly, on the following grounds: (a) that the learned Court failed to appreciate the evidence recorded by it in its proper and true perspective; (b) that the learned Court failed to take into consideration that investigation into the case was done in a perfunctory manner causing extreme prejudice to the appellant; (c) that the learned Court failed to take note of the gross contradictory and inconsistent statements of the witnesses; (d) that the learned Court failed to appreciate the conduct of the victim immediately after the alleged incident, which was unnatural; (e) that the learned Court failed to consider that the case was initiated out of grudge and enmity between the de facto complainant and her in- laws; (f) that the uncorroborated testimony of the victim was neither acceptable nor believable as she did not narrate the incident to anyone but her in- laws who were having inimical relations with her at that time; (g) that the learned Court did not note of the fact that the victim did not raise any alarm when she found the appellant on her bed although she was sleeping on the floor keeping the door of her room open; (h) that the learned Court erred in accepting the exhibit-3 sacrosanct, which, in fact, did not disclose case of rape; (i) that the learned Court also failed to appreciate that there was a scuffling between the appellant and the victim but no sign of injury was detected on the body of the victim; (j) that the learned Court erred in believing the sole testimony of the victim for recording conviction; and (k) that the judgment being otherwise bad in law, is liable to be set aside. The fact of this case is peculiar one. The victim had been living in her matrimonial house but she was not liked by her in laws including her mother-in-law and father-in-law. She lodged one criminal case against all in laws' including her husband and she had to leave her matrimonial house for some time. Her marriage with Biswajit was a result of love affairs between them. But Biswasjit was sent elsewhere by the parent-in-laws for the sake of job. She was prevented by her parent-in-laws to reside in her matrimonial house immediately after the marriage. She lodged F.I.R. to that effect and thereafter she was allowed to reside in her matrimonial house. The appellant Sanjit was the husband of the sister of Biswajit. He and his wife, i.e., sister of Biswajit had been living elsewhere. Sanjit used to visit his matrimonial house and on that particular night, he had been to her matrimonial house where the victim Putul was staying. There were two rooms in the matrimonial house, one was occupied by parents-in-law and another was under occupation of Putul. It was summer time. Putul, the victim, kept the door open and slept on a mattress putting mosquito net. The parents-in-law were sleeping on the varandah of the house, opposite the room of Putul. Sanjit, the appellant, entered inside the mosquito net and started unbuttoning the blouse of Putul. Putul woke up and tried to shout but stopped by Sanjit who threatened her that he would kill her by throttling. Thereafter, he had taken off her blouse and raped her. Before leaving, he again threatened her with dire consequences in case of disclosure. 4. The victim was examined as P.W.1. She stated that she was alone in her room at that particular night. It was summer time and she kept the door of the room open when she went to the sleep. At about 02.00 A.M., Sanjit entered inside her room. Thereafter lifted the mosquito net and started unbuttoning the blouse of Putul. The P.W.1 stated that she woke up and told Sanjit not to act in that way but Sanjit did not listen to her. Putul then started resisting him and that Sanjit threatened her with dire consequences. Thereafter, he committed raped on her and Putul could not make any resistance. Before leaving, she was also threatened by Sanjit with dire consequences. In the morning, she reported the matter to father-in-law and mother-in-law but they told her not to disclose the matter to anybody and in case of disclosure, they would set her on fire. The parents-in-law of Putul confined her inside the room so that she would not talk to any outsider. On the next morning, she could come outside from her matrimonial house for attending nature's call and at the time, she handed over a letter to Sona Roy (P.W.2) and requested her to hand it over to her brother. At about 10/11 A.M., her elder brothers Durga Singh (P.W.8) and Birbal Singh (P.W.6) came to her matrimonial house. Some villagers were also present at that time. Putul narrated the incident openly before them. Her brothers, thereafter, took her to her paternal house situated a bit away about 2000 Quebec fts. from her matrimonial house. She took her bath and meal in her paternal house and thereafter had gone to Trinamul Congress Party Office and reported the incident in the party office and one Ratan Ghosh (P.W.10) prepared the F.I.R. at the dictation of Putul. Thereafter, Putul had been to Gangarampur Police Station and lodged the same.
(3.) IN course of investigation, Putul was medically examined by P.W.4, Dr. Swapan Das who prepared the report which was marked Ext.2/1. The P.W.4, Dr. Das stated that on 8.9.2007, she examined Putul Singh in connection with Gangarampur Police Station Case No.180 of 2007 dated 8.9.2007. It was stated by Putul that she was sexually assaulted by Sanjit Roy on 7.9.20-07 at about 2.00 A.M. in her father-in-law's house. Dr. Das could not detect any mark of injury on the entire body including private part of the victim. He denied in his cross-examination that the patient Putul did not report him that she was sexually assaulted by Sanjit Roy. Sona Roy was examined as P.W.2 in the case. She stated that one day in the morning, she met Putul Singh on road and at that time, Putul handed over a letter and requested her to give the same to her mother. Sona Roy had been to that place to attend nature's call. She incidentally met the mother of Putul on the road and delivered a letter. Sona Roy, P.W.2 stated also that on the relevant date and time, Putul was residing in her matrimonial house. Sona Roy, as it appears from her cross-examination, was a local girl and she had acquaintance with Putul as well as Biswajit from their childhood. There is nothing in her evidence to suggest that she had any inimical term with the appellant or appellant's family or had any reason to make any false statement in the Court.;