The reliability of victim testimony and the presumption of absence of consent in rape cases are crucial legal principles established in the judgment.

ORDER :

1. This appeal is directed against the judgment and order dated 28.01.2013 and 29.01.2013, passed by Additional District & Sessions Judge, Fast Track 3rd Court, Rampurhat, Birbhum in Sessions trial no. 40 (9)/2011 arising out of Sessions case no. 119/2011 convicting the appellants under Section 376 (2) (g) of the Indian Penal Code and sentencing the appellants for rigorous imprisonment for life and pay fine of Rs. 20,000/- each in default rigorous imprisonment for a further period of one year for offence punishable under section 376 (2) (g) of the Indian Penal Code.

2. The prosecution case against the appellants is to the effect that on 17.05.2011 in the morning while the victim was returning after offering puja at Tulsipur village and had reached near Tulsipur River the appellant no. 1 forcibly took her near the canal and committed rape upon her. Victim tried to raise alarm but was threatened by appellant no. 1 that he would have her and her son murdered. Appellant no. 2 at the material point of time kept surveillance upon the passer-bys. After committing rape appellant no. 1 took away the golden earing and bangle from the victim and both of the miscreants fled away. In relation to the incident Murarai Police Station case no. 42 of 2011 dated 17.05.2011 under Section 376 (2) (g)/379 of the Indian Penal Code was initiated against both the appellants.

3. Upon completion of investigation police submitted charge sheet under Section 376 (2) (g) of the Indian Penal Code against the appellants.

4. Thereafter on compliance of legal formalities the case was committed to the Court of Sessions which was incidentally transferred to Additional District & Sessions Judge, Fast Track 3rd Court, Rampurhat, Birbhum for trail and disposal.

5. Charge under Section 376 (2) (g) of the Indian Penal Code was framed against both the appellants who pleaded not guilty and claimed to be tried.

6. The prosecution in order to prove the aforesaid charge against the appellants has examined as many as 17 witnesses and proved number of documents. Defence did not adduce any evidence, however the defence case is of innocence and false implications. From the trend of cross-examination it appears that the appellants tried to make out a positive case that due to their protest against the illegal selling of country liquor (Cholai Mod) by the husband of the prosecutrix (victim) they have been falsely implicated in this case.

7. Upon consideration of the materials and the evidence on record the trial judge by the impugned judgment and order dated 28.01.2013 and 29.01.2013 convicted and sentenced the appellants as aforesaid.

8. Mr. Md Asraf Ali, learned advocate appearing for appellant no. 1 submitted that the evidence of the victim is full of inconsistencies and infirmities and therefore, is not at all reliable to convict the appellants on the basis of the same. Further it is evident from the statement of PW16, Swapan Mondal, who helped her to reach her home after the incident, that PW1 (victim) only stated to him that her sari was pulled by somebody nothing more nothing less. Moreover, as per the doctor (PW15) and the medical report of the victim (Exhibit 7) she did not sustain any injuries either to her private parts or other parts of the body to probabilise the occurrence, as alleged. Furthermore he submitted that there is delay in lodging FIR resulting in embellishment and conjectures. He further submitted that the husband of the victim has illegal business of selling country liquor (Cholai Mod) in the locality which was objected by the appellants which led to false implication. In view of his above submissions he prayed that the appeal be allowed and the appellant no. 1be acquitted from the case.

9. Mr. Sumanta Ganguly, appearing as amicus curiae on behalf of appellant no. 2 also submitted in similar fashion and asserted that the case of the prosecution against the appellants has not been proved to the hilt and there are several loop-holes in the prosecution case