The judgment emphasizes the importance of assessing the evidence of hostile witnesses, relying on circumstantial evidence, and the duty of the court to search for the truth.

JUDGMENT

Ajay Kumar Gupta, J. - Appellant has assailed the judgment and order of conviction and sentence dated 10.12.2014 and 11.12.2014 passed by the Learned Additional Sessions Judge, 1st Court, Darjeeling in Sessions Case No. 12 of 2013 arising out of Pulbazar P.S. Case No. 11 of 2012 dated 14.11.2012, thereby convicting the appellant under Section 376 (2) (g) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and pay fine of Rs.1,00,000/- which would be applied in compensating the victim, in default, he would further suffer imprisonment for two years.

PROSECUTION CASE:

2. Bereft of details the allegations brought by way of the complaint by the de facto complainant, inter alia, to the effect that on 13.11.2012 at about 10.00 P.M. his daughter aged about 11 years along with her friends went to play 'vailo' (play performed as part of local custom at the night of Laksmi Puja) at Bhotay Gaon, at the residence of the appellant. She was dragged to the room by the appellant with the help of Binod Chettri and Deo Kr. Gurung. Thereafter, appellant committed rape upon the victim girl. Pulbazar P.S. Case No. 11/12 dated 14.11.2012 under Section 376 (f) (g) of the I.P.C. was registered against Krishna Kr. Gurung, Binod Chettri and Deo Kr. Gurung. On completion of investigation, the investigating officer submitted charge sheet against all the three accuseds under Section 376 (2)(g) of the I.P.C.

PROCEEDINGS:

3. The case was committed to the Ld. Court of Sessions. Subsequently, same was transferred for trial before the Learned Additional Sessions Judge, 1st Court, Darjeeling.

4. Charge was framed under Section 376 (2) (g) of the I.P.C. against the appellant along with two others who pleaded not guilty and claimed to be tried. In order to prove the case, prosecution examined 20 witnesses as well as exhibited a number of documents as Exhibit 1 to 23 and material exhibits I and II respectively.

5. Defence of the appellant was that he is innocent and has been falsely implicated. During the questioning by the court under Section 313 of the Cr.P.C., the appellant made a simple denial, though incriminating materials both oral and documentary were brought to his notice.

6. After appreciation of the oral evidence and considering the documents exhibited by the prosecution, the Trial Judge, by impugned judgment and order, convicted and sentenced the appellant as mentioned above. By the selfsame judgment, co-accuseds Binod Chettri and Deo Kumar Gurung were convicted and sentenced to suffer imprisonment for three years and each to pay fine of Rs. 10,000/-, in default, to suffer simple imprisonment of two months more. They have not appealed against their conviction and sentence.

ARGUMENTS:

7. The learned Advocate appearing on behalf of the appellant strenuously submitted that prosecution has miserably failed to prove the case beyond reasonable doubt because the victim girl did not support the prosecution case. Victim was examined as P.W. 6. She did not depose anything against the appellant. She was declared as a hostile witness. Furthermore there are inconsistencies in the deposition of other witnesses. As such prosecution has failed to establish the case against the appellant. Appellant is entitled to get the benefit of doubt and is liable to be acquitted.

8. On the other hand, learned Advocate appearing on behalf of the State vehemently submitted though the victim (P.W. 6) did not support the prosecution case but on questions being put by the Ld. Court she has deposed that she went to play 'vailo' at the night of Laxmi Puja along with Minuka, Samjana, Minagma Chaki. She also identified her signature on the statement recorded under Section 164 of the Cr.P.C. by the Magistrate. Minuka, Samjana, Minagma Chaki examined as witnesses corroborated the prosecution case. Medical evidence also corroborated the allegation of rape. Accordingly, the learned Trial Judge rightly convicted and sentenced the appellant.

APPRECIATION OF ORAL AND