- (1.) The appellant Atul Roy in a trial held before the learned Assistant Sessions Judge, Alipurduar in connection with Sessions Trial No. 7 of 2001 was convicted under Section 376 IPC and was sentenced to suffer simple imprisonment for 8 years and to pay fine with default clause. The said judgement was delivered on 18th of November, 2003 and challenging the order of conviction and sentence the convict preferred this appeal being CRA No. 589 of 2003 on 23rd of December, 2003. Which was admitted and on 13th of February, 2004 a Division Bench, on merit, rejected the appellant's prayer for suspension of sentence and bail. Soon thereafter while the aforesaid appeal was pending the appellant filed another appeal being CRA No. 197 of 2004 with an application for condonation of delay. Such appeal was filed completely suppressing the fact that against the self-same judgment and order of conviction and sentence another appeal is pending before this Court. On 20th of April, 2004 the delay in filing the appeal was condoned and on 21st of April, 2004 the appeal was admitted. Thereafter by an order passed on 26th of April, 2004 another Bench of this Court allowed the petitioner's prayer for bail during the pendency of the appeal. Subsequently, such fraud came to the notice of this Court on 2nd of April, 2012 and the bail was cancelled and the appellant was directed to be taken into custody. Accordingly he was apprehended and he is now in custody. Having regard to the fact that CRA No. 197 of 2004 was filed before this Court by the convict Atul Roy challenging the self-same judgment and order of conviction, against which he earlier preferred an appeal being CRA No. 589 of 2003 and during the pendency of the said appeal, the next appeal i.e. CRA No. 197 of 2004 is totally incompetent and not maintainable and same stands dismissed. However so far as the CRA No. 589 of 2003 is concerned the same still survives.
(2.) The background fact of the prosecution case out of which the CRA No. 589 of 2003 is arising are as follows: The victim girl aged about 12 years and was a class VI student at the time of the occurrence. About 7 months before the lodging of the FIR one day she got asleep while was studying, at that time her parents were not present in the house. When on being called by the appellant, one of her neighbour, she woke up and found the appellant was inside his room and he sat on the bed. Then the appellant told her that she need not be afraid and started pressing her breast. Although she tried to resist him but, could not succeed and the appellant raped her against her will. Later he consoled the victim and promised to marry her and forbade her to inform anything about the incident to her parents. Thereafter the appellant regularly cohabited with her in absence of her parents and after became pregnant, she informed the appellant who asked her not to worry and he would marry her. Nearly after about 6 months the victim once again requested him to marry but he refused to marry, and asked her to go for abortion. She then informed her parents and police was informed.
(3.) The aforesaid incident being reported to the Madarihat police station a case under Section 376 was registered and after completion of investigation police submitted charge-sheet for the self-same offence. Thereafter the appellant was placed on trial to answer charge under Section 376 IPC before the learned Assistant Sessions Judge, Alipurduar.;