The delay in lodging FIR and the credibility of the survivor's version were central to the court's decision, emphasizing the need to consider the impact of sexual trauma on the survivor and the reasonableness of her actions.

JUDGMENT

Joymalya Bagchi, J. - Appeals are directed against judgment and order dated 18.12.2017 & 20.12.2017 passed by learned Additional District & Sessions Judge, Fast Track Court, Tamluk-I, Bongaon, North 24-Parganas in Sessions Trial No.2(4)/2012 arising out Sessions Case No. 06(11)/2011 convicting the appellants for commission of offence punishable under Section 376(2)(g) of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for fifteen years and to pay a fine of Rs.25,000/- each, in default, to suffer rigorous imprisonment for one year more.

Prosecution case:-

2. Prosecution case as alleged against the appellants is to the effect that the survivor is a married lady whose husband used to work in Dubai. On the fateful day i.e. 28.04.2010, her mother-in-law had gone to a relation's house. She was alone with her five-year old daughter. At night around 9:00/10:00 P.M. she put her daughter to sleep. She went out to tie the calf at the cowshed and entered the house. Thereafter, she had a bath and was about to lock the main door when Lankeswar Sarkar and Nirmal Sarkar forcibly barged into the room. Lankeswar gagged her mouth and made her lie on the ground inside the room and told Nirmal to do whatever he wanted. Thereafter, they disrobed her. She was only wearing a petty coat. First Nirmal raped her and thereafter, Lankeswar also raped her. The accuseds told her to keep quiet otherwise she would be killed. Out of fear, she kept quiet. After the incident, Lankeswar left the room.

3. She somehow ran out of the room and found Ujjal was outside the door. Ujjal caught hold of her and tore her petty coat and threw it in the courtyard. He tried to assault her. As a result, she again entered the room.

4. Her mother-in-law returned after 2-3 days. After consultation with her mother-in-law, she lodged written complaint at police station on 02.05.2010 which resulted in registration of Bongaon Police Station Case No.195 of 2010 dated 02.05.2010 under Sections 376(2)(g)/506 of the Indian Penal Code against Lankeswar Sarkar, Nirmal Sarkar and Ujjal Sarkar i.e. the appellants herein.

Proceedings before the trial Court:-

5. In the course of investigation, the survivor was medically examined. Her statement was also recorded before Magistrate. In conclusion of investigation, charge sheet was filed and charges were framed against the appellants under section 376(2)(g) and 506 of the Indian Penal Code. In course of trial, prosecution examined six witnesses and exhibited a number of documents. Defence of the appellants was one of innocence and false implication.

6. In conclusion of trial, learned trial Judge by the impugned judgment and order convicted and sentenced the appellants, as aforesaid.

7. Mr. Debasis Roy and Mr. Kallol Mondal, learned Advocates for the appellants viz. Lankeswar Sarkar and Nirmal Sarkar respectively submit the survivor (PW1) is not a reliable witness. There is a delay of four days in lodging FIR. Father of the survivor had come to the residence on the next day. It is unclear why she had to wait for the arrival of her mother-in-law to lodge FIR. Though she claimed she suffered injury on her hand, Medical Officer (PW4) who examined her did not find marks of injury. Incident occurred in a populated area. PW1 claimed she had cried 'bachao bachao'. No local people assembled at the spot. This also improbabilises her version. There was enmity between the mother-in-law of the survivor (PW1) and Ujjal Sarkar. This had prompted them to falsely implicate the appellants. Hence, the appellants are entitled to an order of acquittal.

8. Mr. Sekhar Basu, learned senior Advocate for the appellant viz. Ujjal Sarkar submits his client was not present before or during the incident. In all probability hearing cries of the survivor, he had come out and tried to save her. This finds corroboration from the statement of the survivor before Magistrate. Though she alleged she suffered injuries when Ujjal had scuffled with her, no injury