Rajarshi Bharadwaj, J. - (1.) Both the appeals arose out of a common judgement and order dated 7th January, 2009 and 9th January, 2009 passed by the learned Additional District and Sessions Judge, 3rd Fast Track Court, Cooch Behar in Sessions Case no. 211 of 2008 convicting the accused/appellants under Section 365/109 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- each; in default, to suffer simple imprisonment for a further period of three months.
(2.) The prosecution case in short is that one Shyamal Barman, brother of the victim lodged a written complaint on 23rd February, 2007 before Kotwali Police Station alleging that his sister Sathi Barman aged about 14 years and 6 months went to her school at Konamali Santaradevi Adarsha High School on 20th February, 2007, but she did not return back to the house. At the time of incident she studied in class VIII. The complainant along with other persons searched for her and came to know that on the date of incident his sister's friend Salema came to their house at about 6.30 a.m. and talked with his sister and his sister went out from the house with Salema. They also came to know that the victim girl was returning from the school with Salema and at that time Salema's cousin Makshedul Mia and his friend Aminoor Mia came there and induced his sister with ill motive. It was his firm conviction that they induced his sister dishonestly and hidden her elsewhere and the complainant expressed his doubt that damage might be caused to his sister.
(3.) On the basis of the said complaint, a criminal case, being Kotwali P.S. Case No. 85 of 2007 dated 23rd February, 2007 was initiated against the accused/appellants under Sections 363/365/366/376/511/109 of the Indian Penal Code. Investigation was started and during investigation the Investigating Officer examined available witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure. Thereafter, he arrested the accused Makshedul Mia and recovered the victim, who was sent to the hospital for medical examination and vaginal swab and wearing apparels of the victim were sent to the R.F.S.I., but no sign of rape could be established. The victim in her statement under Section 164 of the Code of Criminal Procedure stated that attempt was made to rape her by the accused persons. During investigation one motorcycle was seized and the Investigating Officer arrested Rajjakul Haque and forwarded him to the Court and collected ossification test report of the victim. Thereafter, the Investigating Officer was transferred and the case was introduced to another Officer, who submitted the charge sheet against the accused persons namely, Yakub Ali, Rajjakul Haque and Aminoor Mia under Sections 363/365/366/109 of the Indian Penal Code and the case was started against the accused Makshedul Mia under Sections 363/365/366/376/511/109 of the Indian Penal Code. The accused persons pleaded not guilty and claimed to be tried.;