BARUN DULEY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The judgment of the Court was as follows : This appeal preferred by the appellants is directed against the judgment and order of conviction by which they were sentenced to suffer rigorous imprisonment for 10 years each and to pay a fine of Rs.10,000/- each i.d. to suffer rigorous imprisonment for 2 years each by the learned Additional Sessions Judge, Hooghly for the offence under Section 376(2(g) of the I.P.C. in Sessions Trial No. 1 of 2000 (Sessions Case No. 398 of 1999) arising out of G.R. Case No. 1163 of 1997.

(2.) Prosecution story in a nutshell, is that, the victim lady Smt. Arati Duley (P.W. 1) came out of her house at about 10.00 P.M. on 27.9.97 for attending nature's call and at that time the appellants came near to her and the appellant Barun Duley gagged her mouth by a napkin and both of them lifted her and took away her over the land of Sukumar Bhattacharya surrounded by bush and forcibly made her lie thereon. The appellant Barun Duley caught hold of her legs and appellant Kalipada Duley raped her and thereafter Barun Duley raped her. P.W. 1's attempt to raise alarm failed as the accused persons pressed her mouth. In the mean time her husband Anil Duley (P.W. 2) returned to the house with his trolley and not finding his wife in the house, P.W. 2 made a search for her and when he reached near the place of occurrence the appellants fled away. The victim lady was brought to house by P.W. 2, her husband and P.W. 1 narrated the entire matter to her husband. On 28.9.97 both P.W. 1 and P.W. 2 came to the Dhaniakhali P.S. and lodged the F.I.R. (ext.1) Which was written by P.W.2. On the basis of the said complaint or F.I.R. Dhaniakhali P.S. Case No. 134 of 1997 was started against the appellants and it ended in submission of charge-sheet against them. The trial that ensued subsequently resulted into conviction of the appellants as already indicated above, and hence this appeal.

(3.) Mr. H.K. De, learned Senior Advocate appearing for the appellants being assisted by Mr. Tapan Dutta Gupta and Iqbal Hussain contended that there is serious discrepancy regarding scribe of the F.I.R. and three versions have been revealed from evidence and materials-on-record. The F.I.R. itself shows that it was written by P.W. 2 whereas P.W. 1, the victim lady in her cross-examination stated that Mejobabu of Dhaniakhali P.S. wrote the complaint and P.W. 2 stated that he wrote the complaint as per dictation of his wife. He further contended that there is serious discrepancy between F.I.R. and evidence regarding arrival of P.W. 2 at place of occurrence. The F.I.R. shows that when P.W. 2 reached near the place of occurrence the appellants fled away. But in evidence P.W. 1, the victim lady did not say in such manner. She in her evidence stated that her husband came near the filed for searching her and she narrated him about the incident. P.W. 2 stated that he came back to house with his trolley at about 10.30 P.M. on that night and not finding his wife in the house he searched for her. When he reached near the bush she found his wife lying on the land belonging to Bhattacharya. These discrepancies as stated above indicates that both P.W. 1 and P.W. 2 are not trustworthy witnesses and no credibility can be placed on their evidence.