S.C. Das, J.

1. This criminal appeal under Section 374 of Cr. P.C. is directed against the judgment and order of conviction and sentence, dated 29-9-2007, passed by learned Sessions Judge, Hailakandi, in case No. 62 of 2006, whereunder learned Sessions Judge found the accused appellant, Md. Jakir Hussain alias Jakir Hussain Laskar and Md. Rehan Uddin alias Kuki guilty of committing offence punishable under Section 366 read with Section 34 of IPC and sentenced both the accused appellants to suffer RI for three years and to pay a fine of Rs. 1,000/- (rupees one thousand) each, in default of payment of fine to suffer further RI for fifteen days. Learned Sessions Judge also found accused, Md. Jakir Hussain, guilty of committing offence punishable under Section 376 of IPC and sentenced him to suffer RI for five years and to pay a fine of Rs. 2,000/- (rupees two thousand), in default of payment of fine, to suffer further RI for one month.

Sentence in respect of accused Jakir Hussain were directed to run concurrently.

Heard learned counsel, Mr. A.M. Barbhuiya for the appellants and learned Addl. P.P., Assam, Mr. B.S. Sinha for the State respondent.

2. Brief Fact:

2.1. Fact of the case, in short, for the purpose of disposal of this criminal appeal is that on 28-7-2003 (Monday), at about 11.00 p.m. (intervening night of 28-7-2003 and 29-7-2003), the victim prosecutrix, "Jahanara" (actual name kept concealed), went out of her residential hut to urinate in her house premises and, at that time, the accused persons caught hold her from behind, gagged her mouth and forcefully took her away from her house and, then took her in the house of accused, Jakir Hussain and kept her confined in the room. She was threatened not to raise any alarm. The accused bolted the door from inside and, thereafter, against her will, committed rape on her three/four times on that night. She was a student of Class-V and was aged thirteen years at that time. She requested the accused to open the door but the accused declined and, at dawn, she asked the accused to open the door saying that she would go out to urinate and the accused took her out and after urination she was again taken back in that room and the accused, asking her to wait there on the cot, went out of the room and whispered something with her sister and parents and then went away. After sometimes, sister of the accused, namely Sajia Begum, entered into the room and assaulted "Jahanara". Thereafter, the parents of the accused, Jakir and her relatives also assaulted her but she was still waiting in that room as there was no scope for her to go back to her house as she was afraid of being ill treated by her father. Subsequently, she was driven out from the house of the accused Jakir after physical assault by him and, then, she went to the house of Gafur Uddin alias Gafur Panchayat and, ultimately, she took shelter in the house of Sonu Miah, brother of Gafur, in the same house.

2.2. Mother of "Jahanara", namely, Kamlarun Nessa (PW-2), while woke up, found "Jahanara" missing in the room and she went out on a search but found her nowhere in the house. She reported her neighbours and also called her husband, who was ill, but on search "Jahanara" could not be traced out. On the following morning, Noorjan Begum (PW-3) went out in the village to find out "Jahanara" and in course of search she went to the house of accused Jakir and enquired with Sajia about "Jahanara" to which Sajia told her (witness) that "Jahanara" was not there. While Noorjan was coming back home, some minor boys of the locality, informed her (witness) that they found the inmates of the house of Jakir Hussain were assaulting "Jahanara" in the house. Thereafter, she came back home and reported the incident to Kamlarun, i.e. the mother of the victim girl.

2.3. On 30-7-2003, Kamlarun went to Lala PS and reported the incident lodging an FIR in writing narrating the fact and, accordingly, Lala PS Case No. 138 of 2003 under Section 447, 366A, 342