Joymalya Bagchi, J. - (1.) The appeal is directed against the judgment and order dated 9th February/10th February, 2015 passed by the learned Additional District & Sessions Judge, Fast Track, 1st Court, Contai, Purba Medinipur in Sessions Trial No. 06 (June) 2011 [Sessions Case No.159 (June) 2011] convicting the appellant for commission of offence punishable under Section 376(2)(f) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs.20,000/-, in default, to suffer rigorous imprisonment for one year more.
(2.) The prosecution case as alleged against the appellant is to the effect that the appellant had an Ashram which was adjacent to the residence of the victim, a nine-year old girl. The victim along with her sister used to go to the Ashram for receiving Prasad from the appellant. Taking advantage of the situation the appellant used to sexually assault her. On 27th January, 2011 he sexually assaulted the victim. At that time, mother of the victim (PW1) came to the Ashram and saw both of them in naked condition. The victim returned home and divulged the incident to her mother (PW1). Her mother narrated the incident to the father of the victim (PW11). The latter took up the matter with a Panchayat member (PW7) and other local people. A salish was fixed in the evening but the appellant ran away. On 1st February, 2011 mother of the victim (PW1) on the advise of the villagers lodged FIR against the appellant resulting in registration of Bhupatinagar Police Station Case No.09 of 2011 dated 1st February, 2011. In the course of investigation, the victim was medically treated and her statement was recorded under Section 164 of the Code of Criminal Procedure. In conclusion of investigation, charge-sheet was filed against the appellant. Charge was framed under Section 376(2)(f) of the Indian Penal Code against the appellant. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 11 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgement and order dated 9th February/10th February, 2015 convicted and sentenced the appellant, as aforesaid.
(3.) Mr. Sumanta Chakraborty, learned advocate appearing for the appellant submitted that there is unexplained delay in lodging the FIR which improbabilises the prosecution case. Version of PW3, even if believed, does not disclose penetration a sine qua non for commission of offence punishable under Section 376(2)(f) of the Indian Penal Code. Medical opinion of PW10 with regard to the injuries on the private parts of the victim is contradicted by PW6 who examined her on the previous day. Opinion of PW10 is inconclusive. Hence, conviction of the appellant may be set aside and the appeal be allowed.;