The main legal point established in the judgment is the reliance on the credibility of the prosecutrix, dismissal of the defence's plea, and confirmation of the conviction and sentence of the appellants.

Sankar Acharyya, J.

1. On being convicted under Sections 448/376 (2) (g) of the Indian Penal Code and being sentenced to suffer simple imprisonment of one year each and also to pay fine with default clause and also to suffer rigorous imprisonment for ten years each with fine and default clause respectively awarded in the judgment dated 06.08.2012 passed by learned Additional Sessions Judge, Fast Track (1st) Court, Raiganj in Sessions Trial No. 08 of 2005 corresponding to Sessions Case No. 25 of 2005, three appellants have preferred this appeal. All the convicts are in judicial custody. This is a case of committing house trespass and gang rape of a 25 years old house wife, the mother of three children in the mid night on 29.01.2004/30.01.2004 frightening the victim woman as alleged against the three appellants of this appeal.

2. In the following day time of the occurrence the prosecutrix lodged first information report (FIR) at Itahar police station making specific allegations against the appellants by names and police recorded the FIR on 30.01.2004. As per FIR the victim and her three children who were sleeping in a single bed in their bed room are the only witnesses of the alleged occurrence. Police investigated the case and submitted charge sheet against the three appellants under Sections 448/376 (2) (g)/506 of the Indian Penal Code. During investigation two appellants Kashim Sk. and Saiful Alam could be arrested by police and they were medically examined on prayer of the investigation police officer. Since the another appellant Sukum Ali was absconding his medical examination could not be done.

3. In the trial Court all the three appellants were tried jointly framing charges under Sections 448/376 (2) (g)/506 of the Indian Penal Code. After full trial the appellants were found guilty of the charges under Sections 448/376 (2) (g) of the Indian Penal Code and they were found not guilty of the charge under Section 506 of that Code.

4. Defence of the appellants in the trial Court was denial of alleged incident and their false implication in the case by prosecutrix out of previous enmity and grudge. Such defence was not believed as true by the trial Court.

5. In course of hearing this appeal, hearing the learned counsel for the parties at the first instance, we were convinced about some curable irregularities took place in examining the accused persons under Section 313 Cr.P.C. As such, under our direction the appellants were examined for the second time under Section 313 of the Code of Criminal Procedure in the trial Court and further opportunity was given to them for adducing evidence but they did not adduce any evidence. said process was adopted by this Court of appeal as the proceeding of trial Court is being continued in this appeal also.

6. In this appeal learned counsel for the appellants advanced arguments that PW 1 is the alleged victim, PW 2 is the husband of PW 1, PW 3 is minor daughter of PW 1 and PW 6 is brother of PW 2 and there exists gulf of contradiction in their depositions inter se and also with the FIR. His further arguments is that the PW 3 is a child witness but her competence was not tested under Section 118 of the Evidence Act. According to him, the statements made by PW 7 who is a neighbour of PW 1 are hearsay and not helpful for the prosecution case. He pointed out that there was delay of 13 hours and 45 minutes in lodging the FIR without explanation. He also argued that the medical evidence does not support the prosecution case which is fatal but not considered by the trial Court. He has claimed that the place of alleged incident is not proved beyond reasonable doubt and the benefit must go in favour of defence.

7. He relied on some judicial pronouncements. It has been submitted by him that the appellants remain in custody for more than six years out of their substantive punishment of imprisonment for ten years as awarded in the impugned judgment and as such, in case this Court of appeal is satisfi