JUDGMENT :

(Bibek Chaudhuri, J.)

1. The appellant has assailed the judgment and order of conviction and sentence dated 14th November, 2018 and 15th November, 2018 passed by the learned Additional Sessions Judge, Fast Track 1st Court at Alipore in Sessions trial No. 08 (08) 2017 corresponding to Sessions Case No. 57(05) 2017 convicting the appellant to suffer rigorous imprisonment for seven years and fine of Rs. 20,000/- ,in default, to suffer imprisonment for further period of six months for the offence punishable under Section 376(1) of the Indian Penal Code.

2. Maheshtala Police Station case No. 78 of 2017 was registered on 15th February, 2017 under Section 376 of the Indian Penal Code (hereafter “IPC” for short) on the basis of a written complaint submitted by one Tanjila Bibi. It is alleged in the complaint that on 12th February, 2017 her daughter aged about 20 years was found missing. She is mentally retarded. The de facto complainant lodged a missing diary with the Maheshtala Police Station. She and her family members also conducted search for her said daughter. On the next morning at about 7.30 a.m. the victim was found at a place call Garwan Para. At that time she was physically exhausted and struggling while walking. She was bare footed. Her wearing apparels were full of dust. On being asked, she told her mother and sister-in-law Manoara Bibi that during afternoon of 12th February, 2017 she went to see the football match at Sanjibini club. The accused took her from the playground to a small field near Panchanan Tala and committed rape upon her. After commission of such offence the accused left her on the field. She was then somehow coming towards her husband, while she met her mother and sister–in-law. During trial of the case the prosecution examined eleven witnesses. Amongst them the victim deposed during trial as P.W.1. P.W.2 Tanjila Bibi is her mother and P.W. 3 Manoara Bibi is the sister-in-law of the victim. P.W. 4, Jarina Bibi, P.W.5, Sk. Kachi, P.W.6, Motila Bibi are the neighbours of the victim. P.W.7, Alamin Molla, the elder brother of the victim, wrote the first Information Report under the instruction of her mother. P.W.8, Dr. Bipul Kanti Sikdar is the Medical Officer who examined the victim on 15th February, 2017 medically. P.Ws. 10 and 11 are the Judicial Magistrates attached to the Criminal Court at Alipore. They recorded the statement of the mother of the victim and the victim respectively under Section 164 of the Criminal Procedure Code. P.W. 9 is the Investigating Officer of the case.

3. The accused was examined under Section 317 of the Code of Criminal Procedure. However, he did not examine any witnesses in support of his defence. Defence case as revealed from the cross–examination made on behalf of the accused to the witnesses on behalf of the prosecution appears to be denial of the prosecution story.

4. It is ascertained from the FIR that victim at the time of alleged incident was aged about 20 years. She is mentally retarded and she was found missing from the evening of 12th February, 2017. On the next day, that is on 13th February, 2017 the mother and the sister-in-law of the victim found her at a place called Garwan Para in troubling condition. Thus, it is ascertained from the FIR that the victim was found on 13th February, 2017. The FIR was lodged on 15th February, 2017.

5. Learned advocate for the appellant at the outset submits that there is unexplained delay of about two days in lodging the FIR in the instant case by the de facto complainant. The de facto complainant did not assign reason about such delay in lodging the FIR.

6. It is further pointed out by Mr. Chakraborty, learned advocate appearing for the appellant that the FIR discloses a gory event. Inasmuch as the victim was allegedly taken away by the accused to a field and committed rape upon her. The offence was committed in such a manner that the victim could not return her house on the date of occurrence and she was left alone on the ope