B.D. Agarwal, J.

1. The appellant herein stands convicted under Section 376 and 498A of the Indian Penal Code vide impugned Judgment and Order dated 12.1.2006 passed by the learned Sessions Judge, Kamrup, Guwahati in Sessions Case No. 115(K) of 2004. On such conviction the appellant has been sentenced to undergo rigorous imprisonment for 7 years with fine of Rs. 10,000/- under Section 376 IPC and another sentence of 2 years rigorous imprisonment with fine of Rs. 5000/- under Section 498(A) IPC. Both the sentences have been directed to run concurrently. Being aggrieved with the conviction and sentence the accused has preferred this appeal.

2. Heard Mr. A.K. Bhattacharyya, learned senior counsel for the appellant and Mr. B.B. Gogoi, learned Additional Public Prosecutor for the State. Also perused the impugned judgment and the prosecution evidence, given in the trial court. The defense case was of total denial and no evidence in defense was proffered in the trial court.

3. The offence of rape is against the maid servant, whereas, the offence of cruelty is against the wife.

4. The prosecution case is in a nutshell is that the prosecutrix and the appellant were married in the year 1990. The accused was an officer in the Food, Civil Supply and Consumer Affairs Department, Government of Assam as Inspector at the relevant time and both the husband and wife were living at Hedayatpur, Guwahati. Since it was a flood prone area the accused and his wife shifted to Lakhtokia area in the year 2000 and started living in a house, owned by the parents of the prosecutrix. At this place the marital relation between the husband and the wife became strained and the couple had shifted to a rented house in Pathar Kuari area. In between this period, the accused was transferred to Karimganj and he used to visit the rented house at Pathar Kuari occasionally. During his intermittent visit to Guwahati also the accused used to misbehave and torture his wife, besides establishing illicit relationship with their domestic help. Hence, apart from the allegation of physical and mental torture, the wife has slapped the allegation of rape against her husband with the domestic help.

5. With the aforesaid story an FIR was lodged by PW-1 at All Women Police Station, Panbazar on 21.06.2002 which was registered as GD Entry No. 307. Another FIR was lodged at the same police station on 2.11.2002 alleging mental cruelty and for not providing maintenance allowance. Despite filing of two FIRs nothing moved in the police station. Hence, the victim had to file a complaint in the Court of learned CJM, Kamrup, Guwahati on 7.11.2002. This complaint was forwarded to All Women Police Station, Panbazar and only thereafter a regular case, being All women PS Case No. 50 of 2002 u/s 498(A) and 376 IPC was registered on the basis of the earlier FIR dated 2.11.2002. After investigation the accused was challaned for the said offence.

6. To establish the offence altogether six witnesses were examined by the prosecution. PW-1 is the victim woman herself; PW-2 is their domestic help; PW-3 is distantly related grandmother of the prosecutrix and PW-4 is the daughter of PW-3 and PW-5 is the I.O. and PW-6 is the doctor.

7. Mr. Bhattacharyya, learned senior counsel for the appellant submitted that entire trial is vitiated in law inasmuch as the learned CJM should not have forwarded the complaint to the police station in view of specific statement therein about filing of an FIR at the police station. According to the learned counsel in view of Section 210 of the Criminal Procedure Code, 1973, the learned Magistrate ought to have registered the complaint in his Court and after recording statement of the complainant and her witnesses under Chapter-XV of Cr.P.C. the learned Magistrate ought to have stayed further proceeding till the receipt of police report on the FIR.

8. I agree with the learned senior counsel for the appellant that since there was a mention of lodging an FIR it would have been pr