- (1.) THIS appeal is directed against a judgment and order dated 31st March, 2005. passed by the learned additional Sessions, 3rd Court, Bankura, in Session Trial No. 1 of 2004 arising out of Sessions Case No. 15 of 2003 convicting the appellant. Sk. Sarif alias Puna under sections 363 and 376 of the Indian Penal Code. The appellant was sentenced to suffer rigorous imprisonment for a period of five years a also to pay a fine of Rs. 1. 000/-, in default to suffer further rigorous imprisonment for a period of three months for the offence punishable under section 363 of the IPC. He was also sentenced to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs. 2,000/-, in default to suffer further rigorous imprisonment for a period of six months for the offence punishable under section 376 of the Indian Penal Code. Both the sentences were directed to run concurrently.
(2.) THE facts and circumstances of the case briefly stated are that on 14th April, 2000, at about 7 P. M. in the evening when the prosecutrix was alone in her house, one Champamukhi called her through the window requesting her to guard so that she might respond to nature's call. The prosecutrix accompanied her to the open toilet. At that time, batu Garai, Debasis Goswami, Nemai Garai, Bapi Ruidas, Hero Jadav and the appellant came near her and asked Champamukhi in some code language "whether she had brought" to which she answered "she did". Then the aforesaid persons asked the prosecutrix to accompany them. The prosecutrix declined to go. Nemai Garai at a knife point threatened her that if she thought of shouting, she would be murdered. Nemai Garai pulled her hand, Debasis Goswami assaulted her and thereafter, the prosecutrix was forcibly taken away in a Rickshasw to lokpur and kept in a house. On the following day she was taken to bishnupur where she was raped by the appellant. The mother of the prosecutrix, P. W. 4, Smt. Minoti Bhatt, lodged a written complaint on 14th April, 2000, itself at about 23. 05 hours stating that her minor daughter aged about 14 years was missing from her residence. She could gather from the people of the locality that the appellant. Sk. Sarif alias Puna, son of Langta had kidnapped her forcibly.
(3.) THE prosecutrix was brought back to Bankura by the appellant on 17th April. 2000. She was recovered from the custody of the appellant at 4 P. M. on 17th April 2000. A charge sheet under sections 363/366a/376 of the IPC was filed against the aforesaid six persons including the appellant. All of them were charged. The five out of the six accused persons have been acquitted. Insofar as the charges proved against the appellant under sections 363 and 376 of the Indian Penal Code are concerned, the relevant evidence of the prosecutrix may be noticed which is as follows: "my next door neighbour Champa Mukhi called me from the window and she requested me to guard as she will go for nature's call. I accompanied her in the bamboo groove in the back side of my house. While I was there at that time accd. Batu Garai, Debasis Goswami, nemai Garai, Bapi Ruidas, Hero Jadav, Puna came to us and they asked Champa Mukhi " Neeya Esechis" and in reply Champa Mukhi told " Ha Enechi". I asked Champa about the matter and at that time accd. Batu and others accd. told me to accompany with them and I declined to go. Accd. Nemai Garai threatened me by showing a knife that if I raise shouts he will murder me. Accd. Nemai pulled my hands and Debasis assaulted me and thereafter they forcibly took me in a rickshaw at Lokepur and kept me in a house. On the next day morning they took me at Bishnupur in bus at Katandhar and they kept me in a room of a house and at about 10 p. m. accd. Puna entered in my room and Puna pressed my breast and had torn my wearing apparel and had thrown me in the floor and sat on my chest and showed a knife and he told that anyhow he will commit rape upon me and thereafter he forcibly penetrated his penis in my vagina. He made sexual intercourse for about 10 minutes and after completion of intercourse he left the room and after one hour again Puna entered inside the room and committed rape upon me forcibly against my will. I lost my sense. When I regained my consciousness i saw accd. Puna in my bed in naked condition. I sustained bleeding injury. Champa Mukhi and his maternal grand mother took my torn wearing apparels and they handed over a churidar to me. At the time of commission of rape my wearing apparel was a Churidar, a tape and a panty. On the next day in the evening the accd. persons took me at Bankura town and kept me in an unknown house and on the next day the police arrested me and puna at Gopinathpur, Bankura, and took us in the P. S. I reported the entire incident to the police. The police sent me to the Court. ";