Joymalya Bagchi, J. - (1.) The appeal is directed against the judgment and order dated 27.09.2016 and 28.09.2016 passed by the learned Additional Sessions Judge, Fast Track Court No.1, North 24-Parganas in S.T. 1(4)2012 convicting the appellant for commission of offences punishable under Sections 363/365/366/326/307/376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.50,000/-, in default to suffer rigorous imprisonment for five years more for the offence punishable under Section 326 of the Indian Penal Code, to suffer rigorous imprisonment for five years and to pay fine of Rs.5,000/-, in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 363 of the Indian Penal Code, to suffer rigorous imprisonment for five years and to pay fine of Rs.5,000/-, in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 365 of the Indian Penal Code and to suffer rigorous imprisonment for ten years and to pay fine of Rs.10,000/-, in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 366 of the Indian Penal Code and to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 376(2)(n) of the Indian Penal Code. All the sentences to run concurrently.
(2.) Prosecution case as alleged against the appellant is to the effect that the victim is a young girl aged about 22 years who hailed from a needy family. Four years prior to the incident the appellant, a married man and the father of the victim's friend, sought to take advantage of their poverty and prior to establish a relationship with her. Her parents disliked such advances and requested the appellant not to come to the house. On 30.11.2010 acid was thrown on the face of the victim and she was severely injured. On the pretext of helping with her treatment, the appellant again entered into her life. Unable to fund the expensive treatment, father of the victim was compelled to agree to his assistance. On 22.12.2011, when the victim along with her mother and sister had gone to the chamber of Dr. Arindam Sarkar at Deshpriya Park, Rash Behari, Kolkata for her treatment, the appellant met them took them for a trip to Digha. On 24.12.2011 on their way back the appellant forcibly threw out the mother and sister of the victim from the vehicle on Krishnannagar Road at Kachari More under Amdanga Police Station. Thereafter, the appellant took the victim to an empty flat of his friend owned by Subhas Dutta and detained her. On the false promise of marriage, the appellant cohabited with her. Initially, the victim kept quiet but when she realised that the appellant did not intend to marry her she informed the incident to her parents who rescued her with the help of police. On the next day, that is 02.01.2012 the victim lodged complaint resulting in registration of Amdanga Police Station Case No. 3 dated 03.01.2012 under Sections 365/366/ 363/506/323/376 of the Indian Penal Code. In conclusion charge-sheet was submitted against the appellant and the case was transferred from the Court of learned Additional Sessions Judge, Fast Track Court No. 1, North 24-Parganas to the Court of the learned Chief Judicial Magistrate, North 24-Paganas, Barasat for trial and disposal of the case. Charges were framed under Sections 307/363/ 365/366/376 of the Indian Penal Code and the appellant pleaded not guilty to the said charges. The prosecution examined 21 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. It was the specific defence that the appellant that he had been falsely implicated in the instant case as he had demanded a share from the compensation paid to the victim due to her acid burn injuries as he had borne her medical expenses. He, however, did not examine any witness to probabilise such case. In conclusion of trial, the trial judge by judgment and order dated 27.09.2016 convicted and sentenced the appellant, as aforesaid.
(3.) Mr. Roy, learned senior Counsel appearing for the appellant, at the outset, argued that the conviction of the appellant under Section 376(2)(n) of the Indian Penal Code was illegal as the incident had occurred in 2011 when the aforesaid offence was not in the statute book. There cannot be retroactive operation of penal law in terms of Article 22(1) of the Constitution and the conviction was, therefore, not only illegal but unconstitutional. He criticized the prosecution case on the ground that the victim had made a completely different case in Court when compared to her narration in the F.I.R. Throwing of acid by the appellant on the victim is an afterthought which is neither alleged in the F.I.R. nor appears from the attending facts and circumstances of the case. It was argued that the victim and her mother and sister were forcibly taken to Digha against their will is contrary to her version in F.I.R. It has also been brought to my notice that no contemporaneous complaint was lodged by the mother and sister of the victim although it is alleged that they were forcibly thrown out of the vehicle while returning from Digha. Medical evidence does not support the prosecution case of forcible rape and, therefore, the appellant is entitled to an order of acquittal.;