- (1.) The challenge in this appeal is the Judgment and the order of conviction dated 21.12.2011 and 22.12.2011 passed by the learned Additional District & Sessions Judge, Fast Track 2nd Court, Alipurduar in Sessions Trial No. 34/11 arising out of Sessions Case No. 234/10 thereby convicting the appellant under Section 376(2)(f)/511 of the Indian Penal Code sentencing him to suffer rigorous imprisonment of five years and to pay a fine of Rs.1,000/-, in default, simple imprisonment for three months.
(2.) Bithika Barman, 8 years old girl while studying in her room on 11.06.2010 at about 7.00 to 7.30 a.m., she was raped by the appellant who allegedly took off the undergarment of Bithika and penetrating his penis inside her vagina causing profused bleeding. The brother of Bithika aged about two/two and half years witnessed the incident. Bithika lost her sense but before that she raised alarm which attracted her mother who rushed to the living room and found Bithika lying unconscious with bleeding private organ, Neighbours gathered and with the help of them, Bithika was taken to Silbarihat Primary Health Centre and thereafter to Alipurduar Sadar Hospital.
(3.) One F.I.R. was lodged stating the incident committed by the appellant, Nitai Barman and on the basis of the said F.I.R. Alipurduar Police Station Case No. 179/2010 dated 11.06.2010 started against this appellant under Section 376(2)(f) of the Indian Penal Code. The appellant, however, pleaded not guilty to the charge and accordingly, faced the trial. In course of trial, 15 witnesses were examined. The F.I.R., seizure list, medical examination report, statement of the victim recorded under Section 164 Criminal Procedure Code etc. were admitted into evidence and marked exhibits on behalf of the prosecution. No witness was examined on behalf of the appellant in any form. Upon consideration of the evidence on record, the learned Trial Judge came to the conclusion that the appellant could not succeed in committing rape but made an attempt to commit rape on Bithika. Accordingly, he recorded conviction of the appellant under Section 376(2)(f) of Indian Penal Code and passed the sentence, which is impugned in this appeal.;