PATHERYA,J. - (1.) THIS Appeal is directed against the Judgment and order of conviction dated 30th January, 2006 and order dated 1st February 2006 passed by the learned Additional Sessions Judge, 1st Fast Track Court, Alipurduar in Sessions Trial No. S.T. No.41 of 2004 arising out of Sessions Case No.99 of 2004. By the said order dated 30th January, 2006 the appellant was convicted under Section 376 I.P.C. and by order dated 1st February, 2006 the appellant was sentenced to suffer rigorous imprisonment for 10 years so also to pay fine of Rs.3,000.00in default to suffer rigorous imprisonment for further three months.
(2.) THE case of the Prosecution is that the appellant had committed sexual offence on P.W.3, the victim in the instant case on 8.4.2002 at 3 P.M. An F.I.R. was filed on 15.4.2002 and investigation initiated. Chargesheet was thereafter filed and on the basis thereof charge was framed under Section 376 I.P.C. and as the appellant pleaded "Not guilty", trial began. On the basis of the said charge framed, the prosecution examined eight witnesses whereas the defence examined three witnesses. Documents were also exhibited and on the basis of the evidence and the exhibits the appellant was convicted and sentenced to suffer rigorous imprisonment for 10 years. Being aggrieved by the said order of conviction and sentence, this appeal has been filed. Counsel for the appellant submits that there has been delay of 7 days in filing of the F.I.R., and the reason for such delay is not consistent while the F.I.R. maker being the father of the victim and P.W.1 has stated that due to mental trauma the F.I.R. could not be lodged in time in evidence it has surfaced that as he was informed after 3 to 4 days of the incident by P.W. 3. The perplexed state of mind mentioned in the F.I.R. is not supported by the evidence of P.W.1 and the reason given in the evidence is totally different. The absence of Utpal Das, scribe of the F.I.R. was also a reason for the delay in filing of the F.I.R. Therefore, as the reasons has not been explained properly and are divergent, the delay and the reasons for such delay is unbelievably fatal.
(3.) ACCORDING to the F.I.R. maker, P.W.1, it was his wife who told him of the incident but this is belied by the evidence of P.W. 4 who nowhere has stated that she told her husband PW1 of the incident. The 164 statement was made on 22nd April 2002. Admittedly, the incident took place on 8th April 2002. The delay in recording the 164 CrPC statement is evident. On a comparison of the statement made under Section 164 CrPC and the prosecution's case it will appear that the two do not match. The case of the prosecution is that sexual offence was committed at 3 P.M. on 8.4.2002 while in the 164 statement the victim has said about 'Kharap Kaaj' and thereafter the door being closed. This is not in proper sequence as after 'Kharap Kaaj' there was no necessity to close the door or remove clothes. It is only on 18.4.2002 that the victim was examined by the doctor. None has proved the age of the victim nor has her birth certificate been exhibited. It was only the school certificate, which was marked for identification on the basis of which an attempt was made to fix the age of the victim. Therefore, the procedure required to be followed was in fact not followed.;