- (1.) THE appeal is directed against the judgment and order dated 16th May, 2013/14th May, 2013 passed by the learned Additional Sessions Judge, 1st Fast Track Court, Jangipur, Murshidabad convicting the appellant for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 15,000/ - in default of payment of fine to undergo rigorous imprisonment for one year more with a direction that if the fine amount is realised, half amount therefrom shall be paid to the prosecutrix.
(2.) THE prosecution case as alleged against the appellant is as follows: "The victim (P.W. 1) in the instant case was residing with her father at her parental home being deserted by her husband. The appellant is her cousin. On 1st March, 2009 in morning, the appellant came to the house of the brother (P.W. 3) of the victim and was served tea by his wife (P.W. 2). In the night of that date the appellant went inside the room where the victim was sleeping. The room had a jhanp (bamboo split cover) only. The appellant got hold of the victim and as she tried to raise alarm, he gagged her and threatened to kill her and forcibly committed rape on her. The appellant threatened to kill her if she disclosed anything and fled away. On the next morning the victim P.W. 1 disclosed the incident to P.W. 2 the brother's wife. P.W. 2 on her turn informed the brother of the victim P.W. 3. P.W. 3 went to the house of the appellant and confronted him. The appellant admitted his guilt and threatened P.W. 3 that he may do whatever he wanted. Thereafter they went to Farakka police station and informed the incident to the police. The police assured them that they would take action. However, no steps were taken. On 18th March, 2009, the victim took out an application under Section 156(3) of the Code of Criminal Procedure before the learned Additional Chief Judicial Magistrate, Jangipur, Murshidabad through her lawyer P.W. 9. Pursuant to direction passed by the learned Magistrate, instant case being Farakka P.S. case No. 47/09 dated 4th April, 2009 under Section 376 of the Indian Penal Code was registered for investigation. In conclusion of investigation, charge sheet was filed against the appellant under Section 376/511 of the Indian Penal Code. Subsequently the offences in the charge sheet were changed to Section 376/448 of the Indian Penal Code. The case, being a sessions triable one was committed to the Court of the learned Additional Sessions Judge, Jangipur, Murshidabad. Thereafter the case was transferred to the Court of the Additional Sessions Judge 1st Fast Track Court,, Jangipur, Murshidabad for trial and disposal. The charge was framed under Sections 376/448 of the Indian Penal Code against the appellant. The appellant pleaded 'not guilty' and claimed to be tried. In course of trial prosecution examined as many as 10 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Court by the judgment and order dated dated 14th May, 2013/16th May, 2013 convicted the appellant for the offence punishable under Section 376 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 15,000/ - in default of payment of fine to undergo rigorous imprisonment for one year more with a direction that if the fine amount is realised, half amount therefrom shall be paid to the prosecutrix."
(3.) P .W. 1 is the victim and de facto complainant in the instant case. She stated that she was residing at her father's house when the incident took place. The appellant is her cousin. Her elder brother P.W. 4 resides in a house adjacent to that of her father. On the fateful night around 10 p.m. she was sleeping in a room which is covered by a jhanp. The appellant entered the room and caught hold of her. She tried to cry out, the appellant pressed her mouth and threatened to kill her. Thereafter the appellant forcibly raped her. After committing rape the appellant threatened that she would be killed if she disclosed the incident to anyone. Then the appellant left the room. Next day the victim inform the incident to P.W. 2 her boudi (wife of P.W. 3). P.W. 2 on her turn, informed the brother of the widow (P.W. 3). P.W. 3 went to the house of the appellant and confronted him. The appellant admitted to have committed rape on the victim. P.W. 1 along with her father went to police station and informed the police about the incident. The police assured that they would look into the matter but did not start any case. Thereafter P.W. 1 filed a complaint before the learned Additional Chief Judicial Magistrate, Jangipur through her learned lawyer P.W. 9. She put her L.T.I. on the application. She was medically examined. She put her L.T.I on the medical examination report. In cross -examination, she stated that her father stayed with her step mother and three children. There were two rooms in her father's house. She informed the incident to P.W. 3 at 8 a.m. on the next morning. P.W. 2 is the wife of the brother of the victim. She stated that on the date of occurrence the appellant had come to their house at 8 A.M. He took tea and stayed there till 12 noon. Next day, P.W. 1 informed her weeping that at 11 -00 P.M. on the previous night the appellant had entered her room and forcibly raped her. She narrated the incident to her husband, P.W. 4. P.W. 4 went to the house of the appellant and confronted him. The appellant admitted that he raped the victim and threatened P.W. 4 that he may do whatever he wanted. P.W. 1 reported the matter to the police. As police did not take any action, she filed the complaint. In cross -examination, she stated that the stepmother and her children were not present in the house of her father -in -law on the date of occurrence. She further stated that husband of P.W. 1 had pronounced talak to her.;