SANKAR ACHARYYA,J. - (1.) On 20.03.2009 learned Additional Sessions Judge, Fast Track, 6th Court, Malda delivered the judgment of conviction of the accused- appellant (hereinafter called as impugned judgment) of an offence under Section 376 of the Indian Penal Code (in short I.P.C.) and of acquittal of another accused Durgesh Mondal of the charge under Section 376 (2) (g) of the I.P.C. in Sessions Trial No. 01/09. In that judgment the convict-appellant was sentenced on 21.03.2009 to suffer imprisonment of ten years for the offence under Section 376 of the I.P.C. and to pay compensation of Rs.10,000/- in default to suffer imprisonment for one year. Said judgment of conviction and sentence is under challenge in this appeal. We have been apprised by the learned counsel for the parties that no appeal has been preferred against acquittal of Durgesh Mondal and the appellant is in judicial custody.
(2.) In the trial Court charge was framed against both the accused (appellant and Durgesh Mondal) as on or about the 29th day of May, 2007 at Krishnapur Shyamtola on a jute field behind Anchal office both of them committed gang rape upon the victim girl (named) at about 8 p.m. and thereby committed an offence punishable under Section 376 (2) (g) of the Indian Penal Code. In the charge form it was not recorded whether the accused persons pleaded guilty or not guilty to the said charge. However, the trial commenced on 20.01.2009 as if there was plea of not guilty taken by both the accused persons.
(3.) The case was initiated at Baishnabnagar Police station registering a first information report (in short FIR) on 29.05.2007 at 1:05 p.m. under Section 376 (2) (g) of the I.P.C. Father of the victim girl lodged the FIR informing that his 15 years old daughter was returning home from the house of his next door neighbour Raj Kumar Mondal son fo Chittaranjan Mondal after 'bidi' binding on 28.05.2007 at about 8:00 p.m. when both the accused gagged her mouth by cloth and took her to the jute field of Arup Mondal behind panchayat office. Then the accused appellant committed rape on her while the another accused was guarding. Anyhow the victim girl fled away and returning home narrated the whole incident.;