KANCHAN CHAKRABORTY,J. - (1.) THE challenge in this appeal is to the judgment and order dated 4.5.2009/5.5.2009 passed by the learned Additional District & Sessions Judge, Fast Track, Court No.II, Uluberia, Howrah in Sessions Trial No.274/2008 thereby convicting the appellant Sukur Ali @ Sukur Ali Khan @ Bablu for committing offence punishable under Sections 363/376 of the I.P.C. and sentencing him to suffer R.I., for five years for the offence under Section 363 of the I.P.C. and R.I. for seven years for the offence under Section 376 of the I.P.C. together with fine and with a direction that all the sentences would run concurrently.
(2.) ON 29.2.2008, at 16.35 hours, Subhendu Pandit (P.W.2) lodged one F.I.R. with Bagnan Police Station stating therein that on 27.2.2008, while his 'Boudi ' was returning home with her three daughters by a bus from her parents house at Deuli Bazar under P.S. Shyampur at about 4.00 P.M. by a bus at Bagnan and changing the bus therefrom. After some time, her elder daughter Sarmistha Pandit, P.W.1 wanted to drink water and had gone to a sweet meat shop for that purpose. Thereafter, Sarmistha did not come back and she was not found in the vicinity. A thorough search was done and one missing diary was lodged bearing No.2164 dated 27.2.2008. In course of searching Subhendu Pandit and others reached Daxin Malia village under Bagnan Police Station on 29.2.2008 and they came to know that Sarmistha was detained by Mahela Bibi, wife of Aktar Gazi. Having so information, they rescued Sarmistha from Mahela Bibi 's house. Sarmistha disclosed that on 27.2.2008, when she went to the sweet meat shop to drink water, an unknown dark thin boy of medium height threatened her with a knife and compelled her to board on Amta bound bus. Thereafter, she was taken by tracker and on foot to the house of Mahela Bibi. After reaching there, Mahela Bibi and that boy detained her in a room. The boy raped her during the night. The boy and Mahela Bibi detained Sarmistha with an intention of trafficking her. On the basis of the said F.I.R., Bagnan Police Station Case No.30 of 2008 dated 29.2.2008 was started against Mahela Bibi and one unknown male person under Section 363/372/376/34 of the I.P.C. Mahela Bibi was arrayed to face charges under Section 342/372/34 of the I.P.C. while the appellant Sukur Ali was arrayed to face charges under Section 363/366/342/372/376/34 of the I.P.C. Both of them pleaded not guilty to the charges and the trial commenced.
(3.) IN course of trial, the prosecution examined 11 witnesses. The F.I.R., statement under Section 164 of the victim, T. I. Parade report, birth certificate, medical reports, G.D. entry No.2164 dated 27.2.2008, sketch map of the place of occurrence etc. were admitted into evidence and marked Exts.1 to 11 on behalf of the prosecution. No witness was examined on behalf of the accused Mahela Bibi and Sukur Ali. The learned Trial Court upon consideration of the evidence on record found that the prosecution failed to bring home charges lebelled against the accused Mahela Bibi and as such, she was acquitted while the learned Trial Court found that the prosecution could establish the charges under Section 363 and 376 of the I.PC. against Sukur Ali @ Bablu and accordingly, passed the order impugned which has been assailed in this appeal on the following grounds; a) that the learned Trial Court failed to appreciate the evidence on record in its true and proper perspective; b) that the learned Trial Court failed to take note of the fact that there was delay in lodging the F.I.R and no explanation was provided by the prosecution for such delay; c) that the learned Trial Court was oblivious of the fact that the victim was medically examined at a belated stage on 11.3.2008 and no explanation for such delay was provided by the prosecution although the victim was rescued according to the prosecution case on 29.2.2008; d) that the learned Court also failed to take into consideration that the victim was examined by a local Doctor on 29.2.2008 but the said Doctor was not cited as a witness; e) that the learned Trial Court erred in coming to conclusion that the appellant committed offence under Section 363 of the I.P.C. as the ingredients of offence were conspicuously absent in the evidence; f) that the learned Trial Court did not consider that the place of occurrence was a crowded place and the police personnels were posted nearby and that there was hardly any chance for any one to be kidnapped at the point of knife; g) that the learned Trial Court failed to take into consideration the discrepancies and contradictions in the statement of witnesses on material points; h) that the learned Court failed to take into consideration that the scribe of the F.I.R. was not examined and that the incident was not narrated to the P.W.9 Dr. Shyamal Kr. Bera by the victim or any other person; i) that the judgment being otherwise bad in law, is liable to be set aside; ;