The judgment establishes the importance of corroboration in a rape case, the burden of proof on the prosecution, and the significance of medical evidence in determining guilt.

Sankar Acharyya, J.

1. On 20.03.2009 learned Additional Sessions Judge, Fast Track, 6th Court, Malda delivered the judgment of conviction of the accused-appellant (hereinafter called as impugned judgment) of an offence under Section 376 of the Indian Penal Code (in short I.P.C.) and of acquittal of another accused Durgesh Mondal of the charge under Section 376 (2) (g) of the I.P.C. in Sessions Trial No. 01/09. In that judgment the convict-appellant was sentenced on 21.03.2009 to suffer imprisonment of ten years for the offence under Section 376 of the I.P.C. and to pay compensation of Rs.10,000/- in default to suffer imprisonment for one year. Said judgment of conviction and sentence is under challenge in this appeal. We have been apprised by the learned counsel for the parties that no appeal has been preferred against acquittal of Durgesh Mondal and the appellant is in judicial custody.

2. In the trial Court charge was framed against both the accused (appellant and Durgesh Mondal) as on or about the 29th day of May, 2007 at Krishnapur Shyamtola on a jute field behind Anchal office both of them committed gang rape upon the victim girl (named) at about 8 p.m. and thereby committed an offence punishable under Section 376 (2) (g) of the Indian Penal Code. In the charge form it was not recorded whether the accused persons pleaded guilty or not guilty to the said charge. However, the trial commenced on 20.01.2009 as if there was plea of not guilty taken by both the accused persons.

3. The case was initiated at Baishnabnagar Police station registering a first information report (in short FIR) on 29.05.2007 at 1:05 p.m. under Section 376 (2) (g) of the I.P.C. Father of the victim girl lodged the FIR informing that his 15 years old daughter was returning home from the house of his next door neighbour Raj Kumar Mondal S/o Chittaranjan Mondal after ‘Bidi’ binding on 28.05.2007 at about 8:00 p.m. when both the accused gagged her mouth by cloth and took her to the jute field of Arup Mondal behind panchayat office. Then the accused appellant committed rape on her while the another accused was guarding. Anyhow the victim girl fled away and returning home narrated the whole incident.

4. According to recorded FIR (Exhibit-1/2) the police station (P.S.) is about 10 km. away from the place of occurrence in short P.O. and the occurrence of 8:00 p.m. of 28.05.2007 was reported on 29.05.2007 at 01:05 p.m. when Baishnabnagar P.S. Case No. 59/07 under Section 376 (2) (g) of the I.P.C. against the appellant and Durgesh Mondal as accused was registered and sub-inspector Gopal Pandey was entrusted with the investigation of the case. Said investigating police officer was examined and cross-examined as PW 17 during trial. As per his examination-in-chief, during investigation, he visited the P.O., drew rough sketch map (Exhibit-9), examined available witnesses and recorded their statements under Section 161, Cr.P.C. arrested the appellant accused, arranged for recording statement of the victim girl under Section 164, Cr.P.C. (Exhibit-3), seized one undergarment of victim girl with stain of semen under a seizure list (Exhibit-2/1), got the victim girl and the appellant medically examined and collected reports (Exhibits 5 and 4 respectively), collected semen of accused appellant under a seizure list (Exhibit-8/2), collected vaginal swab of the victim girl under a seizure list (Exhibit-7/3), sent the seized articles to Forensic Science Laboratory (in short FSL) for examination and collected report (Exhibit-10) during investigation. After completion of investigation the PW 17 submitted charge sheet against two accused.

5. Date of occurrence was mentioned as 29.05.2007 instead of 28.05.2007 at the time of framing charge against the accused persons which date was palpably erroneous. At the time of hearing this appeal learned advocate for the appellant argued that since the said date 29.05.2007 is contrary to the date of alleged occurrence as claimed by wit