- (1.) The Reference has been made in view of the divergence of opinion between two Hon'ble Judges of this Court in the matter of disposal of the present appeal. While Banerjee, J. was of the opinion that the appellant was liable to be convicted under Section 376 of the Indian Penal Code, Chatterjee, J. was of the contrary view.
(2.) As no point for reference had been framed, I proceed to formulate that the following point of reference for opinion: "Whether the prosecution has been able to prove beyond reasonable doubt that the appellant committed rape upon the victim -
(3.) The factual matrix giving rise to the appeal is as follows:- The victim is a deaf and dumb girl who resided with her family members at 114, Lockgate Basti, Chetla within New Alipore Police Station, Kolkata 700 027. She was aged above 17 years at the time of the incident. It is alleged that on 30.08.2004 at about 7.30 p.m. the victim left her residence with Rupees five for purchasing tiffin. On the next day, that is, on 31.08.2004 around 11 a.m. the victim returned to her home and reported that the appellant took her away on the promise of marriage and committed rape upon her in an abandoned jhupri (shack) of 113, Lockgate Basti. Thereafter, he drove her away. On the basis of the aforesaid information, Debi Naskar, the mother of the victim, lodged a FIR at New Alipore Police Station which was registered as New Alipore Police Station Case No.170 of 2004 dated 31.08.2004 under Sections 366/376 of the Indian Penal Code against the appellant.;