The central legal point established in the judgment is the requirement of penetration for the offence of rape, the need for evidence to prove the accused's intent in cases of attempt to commit rape, and the consideration of the accused's period of incarceration in sentencing.

JUDGMENT

Bibek Chaudhuri, J. - Five accused persons stood trial and convicted for the offence under Section 376(2)(g)/511 of the Indian Penal Code, IPC in short and also under Section 323/34 of the IPC on conclusion of trial of Sessions Case No.26(2) of 2011 corresponding to Sessions Trial No.1 (august) 2011. The learned trial judge handed down sentence of rigorous imprisonment of five years each with fine and default clause for committing offence under Section 367(2)(g)/511 of the IPC. The appellants were also sentenced to suffer rigorous imprisonment for one year each with fine and default clause for the offence punishable under Section 323/34 of the IPC.

2. On 11th January, 2010 the defacto complainant lodged a written complaint alleging, inter alia, that she had love relationship with accused Sudip Singh. They used to visit different places in an around of the township of Nabadwip where they used to stay, riding on a red coloured motorcycle of accused Sudip. On 10th January, 2010 at about 4 pm Sudip called the defacto complainant on her mobile phone and informed her that the paternal aunt of Sudip was seriously ill and she wanted to see the defacto complainant. He also said that he would be waiting for her at a place called Gabtala. The defacto complainant went to Gabtala at about 5.30 pm where Sudip came to the spot by his motorcycle. She rode on the said motorcycle and took her to a house situated at Tegharipara at about 6 pm. The defacto complaint saw one Sauvik Das a friend of Sudip standing in front of the house. Sauvik told Sudip that everybody was waiting for them inside the house. When they entered into the house Sauvik closed the entrance door. She also found other friends of Sudip, namely Papan Barik, abhijit Chandra Nath @ Bijon Nath and ashim Sadhu inside the said house. They told Sudip to go to the room of the aunt with the defacto complainant. Sudip took her to a room. The friends of Sudip also followed them. There was no other person in the said room. They immediately closed the door of the room from inside. When the defacto complainant sensed about some foul play and asked Sudip about his aunt, he assaulted her by slaps on her cheek. He also threatened her with dire consequences. The defacto complainant raised hue and cry. at this Sudip and all his friends started assaulting her by slaps. Then they forcibly laid her on a cot. Sudip disrobed her and all of them inappropriately touched different parts of her body with sexual intent. When they tried to commit rape upon her the neighbouring people started to knock at the entrance door of the said house. Sudip fled away scaling the wall of the house. His friends were however caught red handed by the local people. They were manhandled by them. They sent the defacto complainant to her home. as she was mentally upset on the date of occurrence, she could not lodge a complaint in the local P.S. On the following day the defacto complainant lodged the complaint with the Inspector-in-Charge, Nabadwip P.S.

3. The case under Sections 376/511/120B/34 of the IPC was registered against the accused persons. On completion of investigation charge-sheet was submitted before the learned Sessions Judge at Nadia, the case was committed to the 3rd Fast track Court at Krishnanagar for trial.

4. The learned trial judge framed charge against the accused/appellants under Section 376(2)(g)/511 of IPC and 323/34 of the IPC. On conclusion of trial the accused persons were convicted under the charge framed against them and sentenced to suffer imprisonment as narrated above.

5. Mr. Milan Mukherjee, learned Senior advocate for the accused persons/appellants submits that the written complaint contains two different incidents in respect of same cause of action. The first incident speaks about making a phone call by appellant Sudip to the defacto complainant requesting her to come to a place, called, Gabtala on 10th January, 2010 at about 5.30 pm. accordingly the defacto complainant went to Gabtala o