The central legal point established in the judgment is the requirement for corroborative evidence and proof beyond reasonable doubt in cases of sexual offenses under Section 376 of the Indian Penal Code.

JUDGMENT :

Ananya Bandyopadhyay, J.

1. This appeal is preferred against the judgment and order dated 8.2.2001/9.2.2001 passed by the Learned Sessions Judge, Uttar Dinajpur, at Raiganj, in Sessions Case No. 88/99 (Sessions Trial No. 37/99) convicting thereby the appellant under Section 376 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for a period of 4 years and 3 months and to pay a fine of Rs. 5,000/-in default to suffer simple imprisonment for 3 months more.

2. The prosecution case was initiated on the basis of a complaint which precisely stated that the victim was forcibly grabbed from behind by the appellant while she was working at the field and thereafter raped in a paddy field.

3. There was a delay of two days to file the aforesaid complaint as the amicable settlement between the parties failed to fructify.

4. Based on the written complaint, P.S. Case No. 88/96 dated 28.11.96 under Section 373/323 of the Indian Penal Code was initiated.

5. Investigation resulted in submission of the charge-sheet based on which charges were framed to which the appellant pleaded not guilty and claimed to be tried.

6. The prosecution to prove its case examined 12 witnesses and exhibited certain documents as exhibits.

7. The Learned Advocate for the appellant submitted that :

i. The Learned Sessions Judge erred in law and in fact in not considering and relying on the evidence of PW-9, Dr. Narayan Chandra Bhowmick, who examined the victim girl Momina Khatun (PW-1). P.W-9, Dr. Bhowmick opined that he had not found any definite proof of rape. P.W.-9 also did not find any foreign body or injury mark on the private parts of the victim i.e. P.W.1.

ii. The Learned Judge should have considered the Medical Report of Dr. Narayan Chandra Bhowmick, P.W-9, who after examination of the victim girl came to the conclusion that clinically he had not found any definite proof of rape.

iii. The Learned Judge also erred in law and in fact in not considering the report of the Dr. Arabinda Chakraborty (PW-10) who examined the vaginal swab of the victim girl and opined that smear did not reveal the presence of spermatozoa.

iv. After considering the opinions and evidences of the P.W-9 and P.W-10, the Learned Judge ought to have passed an order of acquittal of the accused holding that the charge under Section 376 of Indian Penal Code has not been proved at all.

v. The delay in lodging the complaint and/or accepting the alleged story of ‘Salish’, tried to be established by the prosecution witnesses to be a cause of delay in lodging the said complaint should not have been accepted in as much as from the evidence of PW-12, S.I. Phani Bhusan Das, the Investigating Officer, it was evident that not a single witness stated before him at the time of recording the statements under Section 161 of the Code of Criminal Procedure that a ‘Salish’ was held on the date of the alleged occurrence and the accused took two days of time for settling the dispute.

vi. Although the complaint was lodged on 28.11.96 but the Investigating Officer (PW-12) visited the residence of the complainant on 25.11.96, the day on which the alleged offence took place and purportedly advised the complainant’s family members to settle the alleged dispute. In view of the above specific evidence it was evident the Police started the investigation before registering the F.I.R. in connection with the alleged offence and therefore the First Information Report hits under Section 162 of the Code of Criminal Procedure.

vii. In the First Information Report there was no averment or allegations that the victim girl was kidnapped by the accused-appellant by tying her mouth by a piece of cloth but in the evidence the prosecution had tried to develop their case through the mouth of P.W-13 and other interested witnesses that PW-1 was kidnapped and taken away after tying her mouth by a piece of cloth by the accused/appellant.

viii. The PW-4, the wife of PW-3 deposed before the Court that her husba