- (1.) These appeals are directed as against the judgment and order of conviction passed by the Additional Sessions Judge, 4th Fast Track Court at Barrackpore, District: 24-Parganas (North) on 17.08.2006 and 18.8.2006 in respect of Sessions Trial No. 8(3) of 2005 arising out of Sessions Case No.10 (12) of 2001 in which the Trial Court was pleased to convict both the appellants before us in respect of the Charge punishable under Section 376 (2)(g) of the Indian Penal Code (Code) and both were sentenced to suffer rigorous imprisonment for 10 years and they were also directed to pay fine of Rs.5,000/-, in default, to suffer further rigorous imprisonment for a period of one year.
(2.) It may not be out of place to mention that both the appellants have already served out the sentence and as such our effort is almost academic in nature, in respect of appellant No.2 but the appellant no.1 Saroj Banerjee wanted to proceed with this appeal as his service benefits are at stake in view of this order of conviction and sentence.
(3.) The appellant no.2, Sahadeb Paul, did not appear and from the Legal Aid Panel, the learned counsel, who was representing the appellant no.1, was appointed also to represent the appellant no.2. The case of the prosecution made out in the F.I.R., can be stated in brief, thus: That one F.I.R. was lodged by one Nitya Karunananda Abadhut on 12.5.1997 with Noapara Police Station, North 24- Parganas at about 14.35 hours giving rise to Noapara P.S. Case No.32 dated 12.5.1997 wherein he alleged that on 11.05.1997 between 9 P.M. to 9.30 P.M. one local postal peon, i.e., the appellant no.1 came to Mahanirban Math Ashram with one unknown woman aged about 20 or 21 years and disclosed that the said woman had come there in search of a job. He requested the de facto complainant to keep that woman with him on that night in that Ashram. The de facto complainant accepted the request of the appellant no.1, in the presence of Hiralal Das and Dibakar De both of whom were present in the said Ashram at that point of time and the said woman was taken inside the said Ashram. On the next day, that is on 12.05.1997 at about 7 A.M or 7.30 A.M. one Usha Biswas, who was working in the said Ashram, reported to the de facto complainant that the victim alleged that she was ravished by two persons last night (11.5.1997) at about 8 P.M. to 8.30 P.M. in the courtyard in front of the Mandir of that Mahanirban Math Ashram. Thereafter, the FIR maker informed the two persons who were present at the time the victim was brought to the Ashram and the victim when asked by them also admitted the correctness of what she had divulged to Usha (P.W.7) and relying on this, the F.I.R. was lodged. The victim was taken to the Judicial Magistrate for recording her statement under Section 164 Cr.P.C. on the very next day and her statement was duly recorded. She was, however, taken to the doctor for her medical examination on 20th March, 1997. F.S.L. report was collected by the I.O. The appellants were examined by the doctor on the next day of their arrest. Report of the Serologist was also collected and after investigation the I.O. submitted Charge Sheet against both the accused persons in respect of the offence punishable under Section 376 (2) (g) of the Code. It may be mentioned that at first the appellant no.1 was arrested on 12.5.1997 and as per his identification the second appellant was also arrested on the same day even before the F.I.R. was lodged.;