The prosecution failed to prove the charges beyond a reasonable doubt, leading to the conviction's reversal.

Judgement :

CHAITALI CHATTERJEE DAS, J.

1. This criminal appeal is filed by the applicant challenging an order of conviction passed on September 17, 2014, by the learned Additional Session Judge, 3rd Court, Nadia, Krishna Nagar in Sessions Trial Number VII (April) 2014 arising out of sessions case no. 8(4) 2014, convicting the appellant under section 354/323 of the INDIAN PENAL CODE and sentencing him to suffer rigorous imprisonment for two years and to pay fine of Rs 5000 in default to suffer rigorous imprisonment for 6 months for the offence punishable under section 354 of the INDIAN PENAL CODE and to suffer, regardless imprisonment for one year and to pay fine of Rs 1000 in default to suffer further R.I for two months for the offence punishable under section 323 of INDIAN PENAL CODE and that the sentences shall run concurrently.

2. The prosecution case in a nutshell is that on July 25, 2012 at about 20.00 hours, the accused person tried to commit rape upon the victim in the house of the victim at village, Subarna Bihar, Modak Para, under Police Station Kotwali, District, Nadia and the complaint was lodged on 28th July, 2012 by the victim herself against the present petitioner alleging that the accused entered into her room and embraced her from her back and took off her sari, torn her blouse forcibly and attempt to rape her, and she tried to recuse herself anyway, and during scuffle her ‘sankha’ ( bangle used by married Hindu woman of right hand )was broken, and then she cried out, and the accused assaulted her with blows on her chest and fled away. She further alleged that she became sick and began to vomit, later on when her husband returned home she narrated the entire incident and then he brought her to Shakti Nagar Hospital for treatment and there is a delay to lodge the complaint due to the treatment of her. The investigating officer after completion of investigation submitted the charge-sheet under Section 376 /511/323 of the INDIAN PENAL CODE and the matter being exclusively triable by a Session court transferred before the learned District Judge, Nadia on commitment and subsequently before the learned court of Additional Session Judge, 3rd Court, Nadia, Krishnanagar. On perusal of the materials on record and after hearing the prosecution, the Learned Court framed the charge under Section 376 IPC read with Section 511 and 323 of IPC against the accused person which was read over and explained to him to which he pleaded, not guilty and accordingly trial commenced.

3. In order to prove the charges, the prosecution adduced as many as 10 witnesses and exhibited certain documents. The Learned Trial Court after assessing the evidences adduced by the prosecution witnesses and considering the exhibited materials and after hearing the prosecution and the defence counsel passed the order of conviction against the accused person under Section 354 /323 IPC. Being aggrieved, thereby the instant criminal appeal has been preferred by the appellant.

Submissions

4. The Learned Advocate representing the applicant took the point of delay in lodging the FIR and sending the FIR to the Magistrate without any plausible explanation for such delay. In this regard, reliance has been placed in the decision reported in Ishwar Singh versus state of Uttar Pradesh , (1976) 4 SCC 355 Balaka Singh and others versus State of Punjab , [1975 SCC (cri) 601], Gulu Shanra @ Ghulu Shanra versus state of West Bengal , [(2025) (2) Cal Cr LR 616]

5. It is further argued that P.W.3 Swapna Modak and P.W.4, Chhobi Rani Modak being relatives of P.W.1 and P.W.2 and resides in the