The court affirmed conviction under Sections 448 and 323 of IPC, citing insufficient evidence for rape charge under Section 376, emphasizing the need for corroborative evidence.

JUDGMENT :

BISWAJIT PALIT, J.

This appeal is filed challenging the judgment and order of conviction and sentence dated 18.10.2023 delivered by Learned Addl. Sessions Judge, Unakoti District, Kailashahar in connection with case No.S.T.(Type-1) 18 of 2021.

2. Heard Learned Counsel, Mr. Kawsik Nath appearing on behalf of the appellant-accused and also heard Learned P.P., Mr. Raju Datta along with Learned Addl. P.P., Mr. R. Saha appearing on behalf the State-prosecution.

3. Taking part in the hearing, Learned Counsel for the appellant first of all drawn the attention of the Court that the Learned Court below in this case framed charge against the appellant under Section 448/376/323/506 of IPC but on conclusion of trial, Learned Trial Court found the appellant to be guilty under Section 448/323 of IPC and convicted him accordingly. Learned Counsel further submitted that in this case prosecution could not adduce any independent public witness to support the case of the victim. Furthermore, the victim in the FIR did not say anything about the ingredients of offence punishable under Section 376 of IPC, but when she turned up to the witness box to depose as a witness, that time she stated that she was raped by the appellant, but in this regard the prosecution could not prove any medical report to support her allegation. Furthermore, the daughter of the victim also did not support the case of her mother. Even regarding seized mobile phone, no specific evidence was led by the prosecution. The prosecution also could not produce the Learned Magistrate who recorded the statement of the victim before the Learned Trial Court, nor the contents of the statement were proved by the prosecution. Thus, in summing up Learned Counsel for the appellant submitted that since the prosecution both by oral/documentary evidence on record failed to prove the charge framed by the Learned Trial Court below properly, so, the present conviction and sentence suffers from infirmities and furthermore, Learned Counsel submitted that there was long standing enmity between the rival parties and from the allegation levelled by the victim itself shows that the same was nothing but a concocted and fabricated story but the Learned Court below did not consider the same and found the appellant to be guilty for the charges punishable under Section 448/323 of IPC for which the judgment imposed against the appellant cannot be sustained in the eye of law and urged for setting aside the judgment and order of conviction and sentence delivered by Learned Trial Court below. Learned Counsel further submitted that during investigation also the accused was in custody for a considerable period of time. However, the prosecution both by oral/documentary evidence on record failed to adduce any cogent materials evidence on record to substantiate the charge but the Learned Trial Court failed to appreciate the evidence on record properly and found the appellant to be guilty for which the appellant may be acquitted from the charge of this case. Learned Counsel further submitted that if the evidence on record is properly appreciated, it will appear that the allegation of the informant was nothing but a false and fabricated story.

04. On the other hand, Learned P.P., Mr. Raju Datta appearing on behalf of the State-respondent submitted that admittedly the independent witnesses did not see the appellant to the alleged place of occurrence on that relevant point of time, but the evidence of the informant is so trustworthy that the appellant by the trend of cross-examination could not discard her evidence. Even the mobile which was left by the appellant to the place of occurrence on that relevant point of time was belonging to the appellant-accused, but the appellant-accused could not give any clear explanation/account that the same was not belonging to him. Furthermore, the injury report of the victim itself shows that the appellant caused injury to her on the alleged day of the commission of offence. M