- (1.) The appellant is aggrieved by a judgement and order of the Sessions Judge, Malda dated April 12, 2002 in S.T. No.36 of 2001 convicting him of an offence under s.376 IPC and sentencing him to suffer rigorous imprisonment for ten years and pay Rs.2000 fine, in default to suffer a 6 - month rigorous imprisonment, and ordering him to pay the victim Rs.25,000 compensation.
(2.) The FIR No.12 was registered at Manikchak police station in Sadar sub - division of the district Malda on March 13, 1997 under s.376 IPC. In his written information the victim's father stated as follows. On the night of March 12, 1997 the appellant, a 25 -year old man, slept on the same bed with him, his 7 -year old daughter and the appellant's younger brother. At around 5 a.m. he rose and left the room for a wash, and taking the opportunity the appellant committed rape on his daughter. The rape caused bleeding injury on the victim's private parts. He brought the victim's wearing apparels. After completing investigation, the investigating officer submitted a charge -sheet No.62/97 dated November 7, 1997 against the appellant on December 30, 1997 under s.376 IPC. The magistrate took cognizance of the offence on December 30, 1997 itself. The court of session took cognizance on January 18, 2000 and framed charge under s.376 IPC on July 23, 2001. The appellant pleaded not guilty and claimed to be tried.
(3.) Between December 7, 2001 and January 15, 2002 the prosecution examined fourteen witnesses. The appellant was examined under s.313 CrPC on February 14, 2002. He answered the eighth question in the affirmative. The other questions he answered claiming innocence. He, however, did not give any evidence in defence. The court of session relied mainly on the evidence given by the victim (PW1). Dr Mandal appearing for the appellant has argued as follows. The court of session ought not to have convicted the appellant relying on the victim's uncorroborated testimony, especially when her parents contradicted her materially and substantially. Corroboration was essential in this case, because the delay in lodging the FIR was explained saying that the victim's parents tried for a settlement. When the offence was a non -compoundable one, there was no question of settlement. Mr Public Prosecutor appearing for the State has submitted as follows. There is no valid reason why the unshaken testimony of the victim should be disbelieved giving unnecessary importance to minor contradictions and discrepancies in the evidence given by the prosecution witnesses, especially the parents of the victim, who all were little read village people. In view of the provisions of s.357 CrPC, perhaps, the court of session was not right in imposing the sentence of fine and also ordering the appellant to pay compensation. Evidence given by the victim (PW1) is very categorical. She said as follows. On the night of March 12, 1997 she, her father, the appellant and the appellant's younger brother all were sleeping on her father's bed in the farmhouse jointly owned by her father and the appellant's father. At around 5 a.m. the appellant committed rape on her covering her face with a cloth, removing her pants and tying her hands and legs. The appellant inserted his penis in her vagina and the act caused her pain and made her senseless as well. After waking up, she left for her house and the appellant left for the field. There was blood on her thigh. Her mother wanted to know the reasons for blood. She narrated the incident. She narrated the incident to one Indu also.;