- (1.) THIS appeal is directed against the judgement and order of conviction dated 18. 2. 2006 passed by the learned Additional Sessions Judge, fast Track Court, Kandi in sessions trial No. 353/05 arising out of sessions serial case No. 73 of 2005 by which the appellants herein were convicted for the offence punishable under Sections 448/366/376 (2) (g) of Indian Penal Code. The appellants were heard on the question sentence and thereafter by an order passed on the same day that is on 18. 2. 2006 they were sentenced to suffer Rigorous Imprisonment for ton years as also to pay fine of Rs. 5,000/-each, in default of payment of fine to undergo further R. I. for a period of six months each for the offence punishable under Section 376 (2) (g) of Indian penal Code. They were also sentenced to suffer R. I. for six months as also to pay fine of Rs. 100/- each, in default of payment of fine to undergo further R. I. for a period of one month each for the offence punishable under Section 448 of I. P. C. No separate sentence for the offence punishable under Section 366 of I. P. C. was however awarded by the learned trial Court. The sentences awarded to the appellants for the offence punishable under sections 376 (2) (g)/448 of I. P. C. were ordered to run concurrently.
(2.) PROSECUTION version as unfolded during trial in a nutshell is as follows :-The prosecutrix , P. W. 2 (her name is not being mentioned herein as per directives of the Hon'ble Apex Court) was the resident of Village Jadavpur within the limits of Bharatpur P. S. . The prosecutrix is a married woman having a male child aged 18 months. The appellants belonged to Bindapur village within the limits of Bharatpur P. S. and they were not the strangers to the prosecutrix. In the night of 5/6 April, 2005, the prosecutrix along with her 18 months old son was lifted from their house by the appellants after gagging her mouth. The appellants thereafter, took the prosecutrix along with her said baby to a nearby field and raped her forcibly one after another. The incident was narrated by the prosecutrix to her mother-in-law, Chadrabali Das (P. W. 3) immediately after her arrival to the house. Sufal Das (P. W. 1), husband of the prosecutrix at that time was working elsewhere. He was informed over phone by his mother. He came back and having acquainted himself with the incident from the prosecutrix on her way to hospital, he along with his mother took the prosecutrix to Kandi hospital, where he was engaged upto 2. 30 p. m. for arranging the medical treatment of the prosecutrix. The prosecutrix was medically examined by Dr. Samar Mondal (P. W. 5) at Kandi hospital who was at the relevant time on emergency duty. Thereafter, the husband of the prosecutrix came to bharatpur P. S. and lodged complaint (Exhibit -1), scribed by Nur Alam (P. W. 7) at 18. 15 hours on 6th April that is to say within 15/16 hours from the incident.
(3.) AT Police Station, Bharatpur, on the basis of the First Information report of Sufal Das a case being No. 29/05 dated 6. 4. 2005 under Sections 448/376 (2) (g) of the I. P. C was registered against the appellants. Investigation was entrusted to S. I. Manik Lal Dey (P. W. 15) who in course of investigation visited the P. O. ; seized the wearing apparels of the prosecutrix that is one torn mudstained sari, one saya without tying rope, an old torn blouse without hooks and one lamp under seizure list ; recorded the statement of the prosecutrix in hospital and other witnesses ; seized also the bed head ticket of the prosecutrix from hospital under seizure list and subsequently made prayer before the learned SDJM, Kandi for recording the statement of victim under section 164 of Cr. P. C, on the basis of which the statement of the victim was recorded under Section 164 of Cr. P. C. (Exl. 7) by Smt. Sutapa Sana, the then judicial Magistrate, Kandi on 18. 4. 2005. In course of investigation, the appellants too had undergone potency test conducted by Dr. Samir Mondal (P. W. 5) and Dr. Bholahalh Manna (P. W. 6) who on clinical examination found the appellants capable of sexual intercourse.;