IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Prasenjit Biswas C.R.A. 442 of 2009 Jahangir Sk.

-Versus-

The State of West Bengal For the Appellant : Mr. Prabir Majumder, Mr. Saidur Rahaman, Mr. Snehansu Majumder, Mr. Debraj Shil, Ms. Sangeeta Chkraborty.

For the State : Mr. Avishek Sinha Hearing concluded on : 30.04.2025 Judgment On : 06.05.2025 Prasenjit Biswas, J:-

1. The judgment and order of conviction passed by the learned Additional Sessions Judge, Fast Track 2nd Court, Lalbagh, Murshidabad in connection with Sessions Trial No. 9(8)08 arising out of Sessions Sl. No.

85/05 dated 19.04.2009 is assailed in this appeal.

2. By passing the impugned judgment and order of conviction the learned Trial Court found this appellant guilty for commission of offence punishable under Section 376/511 and 447 of the Indian Penal Code and sentenced him to suffer three years rigorous imprisonment with fine of Rs. 1000/-, in default to suffer simple imprisonment for further three months for the offence committed under Section 376/511 of the Indian Penal Code and fine of Rs. 300/- and in default to suffer simple imprisonment for one month for the offence committed under Section

447 of Indian Penal Code.

3. Facts which are necessary to dispose of this appeal in nutshell are as follows:-

“The victim girl lodged a written complaint before Islampur P.S. stating that on 10.05.2005 at around 5 P.M. when she was combing her hair for going to see the dead body of her uncle-in- law in his room then suddenly the accused Jahangir Sk. entered into her room wearing lungi and embraced her from behind. The accused applied force on her and this victim could not resist him. Accused Jahangir forcibly opened the sari of the victim and also opened his wearing lungi and tried to commit rape upon the victim. This victim started to shout and on hearing her shout, her sister-in-law rushed to the spot and seeing her the accused Jahangir Sk. fled away from the spot. The husband of the victim had gone to outside work and after four days when he returned home then this victim disclosed the incident to him. The husband of the victim informed the entire matter to the respectable persons of their village. Although, they assured the victim and her husband to look after the matter but no action had been taken by them. So, the victim girl filed the complaint before the police station.”

4. Over the complaint lodged by the victim a case was started being Islampur P.S. Case No. 55/05 dated 15.05.2005 under Sections 447 and 376/511 of the Indian Penal Code. After completion of investigation charge-sheet was submitted by the prosecuting agency. The charge was framed by the Trial Court under Sections 376/511 and

447 of the Indian Penal Code against this appellant-convict.

5. In this case, eight (8) witnesses were examined by the side of the prosecution and documents were marked as exhibits 1 to 5 on its behalf. Neither any oral nor any documentary evidence was adduced on behalf of the accused.

6. Mr. Prabir Majumder, learned Advocate for the appellant said that there are apparent contradictions and omissions in the depositions of the witnesses and as such, the impugned judgment and order of conviction is bad in law and is liable to be set aside. It is said by Mr. Majumder that the alleged incident was happened on 10.05.2005 at 5 P.M. in the afternoon but the FIR was lodged delaying five days and no plausible explanation was given by the prosecution in respect of delayed FIR. It is further said by the learned Advocate that the victim girl (PW1) has made a departure in her oral evidence from the allegations as made out in the written complaint. It is said that in the written complaint the victim girl stated that at the time of alleged incident she was shouting loudly but in deposition she did not say that she raised alarm when the appellant tried to commit rape upon her. PW1 stated in his evidence that she suffered injury and also suffe