KANCHAN CHAKRABORTY,J. - (1.) THIS appeal is directed against the judgment and order dated 24.5.2010 passed by the learned Additional Sessions Judge Fast Track Court, Sealdah in S.C. No.07 (01) of 08/S.T. Case No.04 (01) 08 thereby convicting the appellant Sanjay Das for committing offence under Section 376 of the I.P.C. and sentencing him to suffer S.I. for 7 years with a fine of Rs.1,000/-.
(2.) THE judgment has been assailed by the appellant Sanjay Das, mainly, on the following grounds:- a) that the F.I.R was lodged 20 days after the series of incidents of rape and this inordinate delay has not been properly explained; b) that no independent witness was examined by the prosecution in support of its case despite the fact that the place of occurrence being a Basti area, was thickly populated; c) that after two consecutive dates of rape, the prosecutrix did not report or narrate the incidents to anyone and her conduct, in fact, destructed the entire case of the prosecution; d) that there is no evidence to prove, even suggest that there was any resistance or protest from the side of the prosecutrix when she was raped on three occasions; e) that the learned Trial Court did not take into consideration as to how a young widow who was working in a Nursing Home can sleep in her room without bolting the door from inside; f) that on the self same fact, two other accused were acquitted for no special reason; g) that the learned Court erred completely that because of injury found on the bridge of the nose of the appellant, the resistance on the part of the prosecutrix was established and that is how the prosecution brought home the charge under Section 376 of the I.P.C. against this appellant and not against the co-accused; h) that the judgment impugned being otherwise perverse, is liable to be set aside. This is a peculiar case where a young widow was raped by one Bablu Das who happens to be her husband's elder brother and two sons of Bablu Das, Sanjay and Sanajit on three consecutive nights in the same manner and almost at the same time. The prosecution case goes like this:- On 5.9.2007, at 01.30 hours, Aruna Sarkar was sleeping in her matrimonial house at 4/16/A, Convent Lane. Bablu Das, her brother-in-law, entered into her room, raped her and threatened her with dire consequences in case of disclosure. Two days thereafter, Sanjay Das, son of Bablu Das raped Aruna in the similar way at almost same time. On the next date, Sanajit Das raped Aruna in the similar manner and almost at the same time. Aruna informed the incident to the wife of Bablu Das but she did not take any step and ultimately, she informed the incident to the Entally Police Station and on the basis of the said information, Entally Police Station Case No.229 of 2007 dated 26.9.2007 under Sections 376/34 of the I.P.C. was started. The case was investigated into and finally ended in a charge sheet against Bablu Das, Sanjay Das and Sanajit Das for committing offence under Section 376 of the I.P.C. All the accused were arrayed to face the charge to which they pleaded not guilty. As a consequence, the trial commenced. The learned Court recorded evidence of 12 witnesses examined on behalf of the prosecution and admitted some documents into evidence including the statement of the prosecutrix under Section 164 of the Cr. P. C. and medical reports which were marked as exhibits. No witness was examined on behalf of the accused persons.
(3.) UPON consideration of the evidence on record, oral and documentary, the learned Trial Court came to a conclusion that the charge against Bablu Das and Sanajit Das was not established but charge against Sanjay Das, the appellant herein, was established and accordingly, his conviction and sentence was recorded which is impugned in this appeal on the grounds mentioned earlier. Mr. Bhattacharyya, learned Counsel appearing on behalf of the appellant submits that the facts of the entire case is not at all believable and acceptable. The learned Trial Court itself did not accept the prosecution case. But, recorded conviction and sentence of the appellant simply because a healed up injury was detected on the bridge of his nose. The learned Court connected the injury with the alleged incident of rape that took place two days after the alleged incident of rape by Bablu Das. He submitted that the learned Court relying on the injury detected on the bridge of the nose of the appellant and the vaginal part of the prosecutrix, came to such a conclusion which is not supported by any evidence even evidence of the prosecutrix.;