KANCHAN CHAKRABORTY,J - (1.) THE challenge in this appeal is to the judgment dated 9/10th February, 2010 passed by the learned Additional Sessions Judge, Fast Track Court, Berhampore in Sessions Trial No.8 (1) of 2006 thereby convicting the appellant Sukchand Sheikh @ Mondal @ Sukchand Sk. for committing offence under Section 376 of the I.P.C. and sentencing him to suffer R.I. for 7 years with a fine of Rs.20,000/-.
(2.) SUKCHAND Sheikh, the appellant assailed the judgment on the following grounds; a) that there was inordinate delay in lodging the F.I.R; b) that there are discrepancies on the material points in between the statement of the prosecutrix and her mother over material issue; c) that the alleged 'Salish' was not at all established; d) that the learned Trial Court did not apply his judicial mind at all and failed to appreciate the evidence on record in its true and proper perspective; e) that the judgment being otherwise bad in law, is liable to be set aside. This criminal prosecution against the appellant was initiated on 3.1.2002 by Taj Mohammad Sk., the father of the victim by lodging a F.I.R. It was alleged that the appellant being a neighbour used to visit his house and one day he, in absence of any member of the family, committed rape on his minor daughter Arjina Khatun after putting a gag in her mouth and also threatened her with dire consequences. The matter was reported to him and others by Arjina. The local people were also informed and a village meeting was called on wherein the appellant pleaded his guilt and assured to marry Arjina with a hope that the appellant would marry his daughter Arjina. The father of Arjina or any member of his family did not go to the Police Station to report the incident. But, ultimately, the appellant did not agree to marry the victim Arijina and the father of the victim had to file the F.I.R. through Court, which has been marked as Ext.1. Arjina became pregnant by this time. The appellant was arrayed to face charges under Section 376 of the I.P.C. for committing rape on Arjina Khatun on 29th June, 2001 at 10.00 P.M. He pleaded not guilty to the charge and, as a consequence, the trial commenced.
(3.) IN the trial, 10 witnesses were examined on behalf of the prosecution including the prosecutrix. The defacto complainant, the father of the prosecutrix, who lodged the F.I.R., however, was not examined. Formal F.I.R., signature thereon, medical examination report, statement of the prosecutrix under Section 164 of the Cr. P. C. and sketch map with index prepared by the I.O. were admitted into evidence and marked exhibits on behalf of the prosecution. No witness has examined nor any document was filed on behalf of the defence in course of trial. Upon consideration of the evidence on record, oral and documentary, the learned Trial Court came to a conclusion that the prosecution brought home the charge under Section 376 of the IPC against the appellant. Accordingly, the impugned judgment of conviction of sentence has been recorded. Mr. Partha Pratim Das, learned Amicus Curiae appointed on behalf of the appellant contended that there was inordinate delay in lodging the F.I.R. which cast shadow of doubt in the prosecution case. He also contended that the father of the prosecutrix who initiated the case by lodging the F.I.R. was not examined. The learned Trial Court did not apply its mind inasmuch as the grounds for delay mentioned in the F.I.R. was not supported by the facts and circumstances of the case. He contended further that there are discrepancies in the statement of prosecutrix, P.W.4 and her mother, P.W.3 on material points. He contended that according to the prosecutrix, the appellant put gag inside the mouth of the victim and, as a result, she could not shout. But, according to the P.W.3, the mother, hearing the shouting of prosecutrix, she and her husband returned back home from the relative's house and found Arjina was crying. Mr. Das contended further that in the cross-examination, the P.W.3 stated that some of his close relations, in consultation with her, contemplated to file the complaint against the accused in order to teach him a good lesson and that the local leader of the C.P.I.M. party also instigated her to lodge the complaint. Mr. Das contended that this fact was overlooked by the learned Trial Court.;