IMPORTANT POINT
The prosecution must prove charges beyond reasonable doubt, and the victim's testimony must be corroborated by reliable evidence.

JUDGMENT :

Ananya Bandyopadhyay, J.

1. This appeal is preferred against judgment and order dated 29.01.2010 and 30.01.2010 passed by the Learned Additional Sessions Judge, 3rd Fast Track Court, Cooch Behar arising out of Sessions Case No. 169 of 2009 under Sections 448/376/511 of the Indian Penal Code and sentenced the appellant to suffer rigorous imprisonment for 1 year and to pay fine of Rs.1000/-in default of payment of fine, further imprisonment for 3 months for the offence punishable under Section 448 of the Indian Penal Code and further sentenced the appellant to suffer rigorous imprisonment for 5 years and to pay fine of Rs.2000/-in default of payment of fine, he shall undergo rigorous imprisonment for 4 months for the offence punishable under Sections 376/511 of the Indian Penal Code and both the sentences shall run concurrently. The appellant was further directed to pay compensation of Rs.25,000/-only to the de-facto complainant within three months in Sessions Case No. 169 of 2009 arising out of Kotwali Police Station, Case No. 171 dated 16.03.2009 under Sections 448/376/511 of the Indian Penal Code.

2. The prosecution case precisely stated that on 16/03/2009, the victim lodged a complaint to the Inspector-in-Charge, Kotwali Police Station alleging that on 14/03/2009 at about 9 p.m. to 10 p.m., she was along with her three children were at home in the absence of her husband. In the light of lamp, she recognized that appellant who forcibly entered into the room, he pressed the mouth of the victim with sari, undressed her, tore her blouse, and tried to commit rape upon her but due to her cries along with that of her children, the appellant escaped. It was mentioned that a marriage ceremony was solemnized at that time at the next door room.

3. On the basis of the aforesaid complaint, the Police initiated Kotwali Police Station, case No. 171 dated 16.03.2009 under Sections 448/376/311 of the Indian Penal Code.

4. During investigation, on 20.03.2009, the de-facto Complainant made a statement under section 164 of the code of Criminal Procedure before the Learned Judicial Magistrate stating that the appellant committed rape upon her forcibly.

5. After completion of investigation, the Police submitted charge-sheet against the appellant under sections 448/376 of the Indian penal Code.

6. The charge was framed under sections 448/376 of the Indian Penal Code against the appellant.

7. The prosecution examined as many as 12 witnesses and exhibited 6 documents to prove the charge.

8. Learned Advocate for the appellant submitted that –

i. The prosecution failed to prove the case beyond all reasonable doubts.

ii. The alleged victim girl, PW-1, did not lodge any complaint with the Officer-In-Charge, Katwali Police Station on 15.03.2009. Ext-I, the written complaint was received by the Police on 16.03.2009. No explanation was given for such inordinate delay in lodging the complaint and as such, no reliance should be given upon the written complaint. According to the prosecution, no complaint was received by the Police on 15.03.2009.

iii. The prosecution failed to prove the charge brought against the appellant under section 448 of the Indian Penal Code; No prosecution witnesses supported the case of the de-facto complainant, PW-1. No PWs had seen the appellant to enter into the residence of the PW-1. Though the Children of the PW-1, were the eye witnesses of the alleged occurrence but they were not examined to prove the case and the contradictory statements of PW-1 could not be relied on.

iv. When the victim house wife, PW-1 stated on oath that she was raped by the appellant and even she made statement before the Judicial Magistrate that she was raped by the appellant but the prosecution failed to prove the charge under section 376 of the Indian Penal Code.

The Judged should not hold that the appellant was guilty of the offence punishable under sections 376/511 of the Indian Penal Code and the Learned Judge should hold that the entire case was concoc