RABINDRA MALAKAR Vs. STATE OF TRIPURA

JUDGEMENT

(1.) BY this criminal appeal, filed under Section 374 of Cr.P.C., the appellants, named above, challenged the judgment and order of conviction and sentence dated 08.10.2004, passed by learned Sessions Judge, North Tripura, Kailashahar in case No. ST 106 (NT/K) of 2003.

(2.) BRIEFLY stated, facts of the case, is that on 07.10.2002, a Monday, at about 6/6 -30 p.m. the victim prosecutrix (here -in -after mentioned as prosecutrix, actual name kept concealed), a minor girl, aged about 13 years, a student of Class VI of Kanchanbari H.S. School, was in her house at Bhati Dudhpur, (Dudhpur Gram Panchayat) under Kumarghat P.S. Her mother was also present in the house at the relevant time and was engaged in evening prayer inside 'thakurghar' (prayer room). She went outside their house to answer nature's call. At that time, the accused persons, who are her co -villagers, namely Rabindra Malakar alias Rabi Malakar, Sumanta Malakar alias Katai Malakar and Sukanta Malakar suddenly caught her from behind, gagged her mouth and forcefully taken her about half/ 1/4th K.M. away from her house on the backside of a rice mill of Nilamani Malakar (P.W.5) in the bush and there the accused Rabindra Malakar at first raped her and then accused Sumanta Malakar also raped her. She could not say whether accused Sukanta Malakar raped her or not, but he was also there and thereafter the accused persons left the place and she somehow came out of the bush in front of the rice mill and at about 9 -00 p.m. her paternal uncle Shyamapada Sen(P.W.6) brought her to the house. She was perturbed, frightened and was found exhausted. On query by her mother, she narrated the occurrence to her. When her father returned home, she also narrated the incident to her father. On the following day, her mother Sukriti Sen(P.W.1) lodged an FIR written by P.W.12 Sri Jadav Dutta and submitted the FIR to the Officer in -charge of Kumarghat P.S. who registered Kumarghat P.S. Case No. 53/2002 under Section 376 read with Section 34 of IPC and an investigation was taken up.

(3.) COGNIZANCE was taken on the basis of police report and on commitment of the case for trial to the court of Sessions, learned Sessions Judge framed charges against the accused appellants for commission of offence punishable under Section 366 and Section 376(2)(g) of IPC to which they pleaded not guilty and claimed to be tried. Charges so framed against the accused persons, for fair appreciation, reproduced here as under: -