BHAJAN MALAKAR Vs. STATE OF ASSAM AND ORS.

JUDGEMENT

(1.) The judgment and order dated 10-05-2007 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 12(J-J) of 2005 convicting the appellants under Sec. 366 read with Sec. 34 of the Penal Code and sentencing them thereby to undergo rigorous imprisonment for 5 years with fine of Rs.1000.00 in default, R.I. for 3 months for their conviction under Sec. 366 Penal Code and also further rigorous imprisonment for 6 months for their conviction under Sec. 342 read with 34 Penal Code is under challenge in Criminal Appeal No. 91 of 2007. Criminal Appeal No. 118 of 2007 is against the same judgment and order and the appellant has been convicted under Sec. 366/342 read with Sec. 34 Penal Code as well as under Sec. 376 Penal Code and thereby he has been sentenced to undergo rigorous imprisonment for 7 years for his conviction under Sec. 376 and 5 years under Sec. 366 Penal Code and further imprisonment of 6 months for his conviction under Sec. 342 Penal Code. Since both the appeals have been arisen out of the common judgment and order, I propose to dispose of both the appeals by this common judgment and order.

(2.) I have heard Mr. A. Khalid, learned counsel for the appellants in Crl. A. No. 91 of 2007 and Mr. B. Banerjee, learned counsel for the appellant in Crl. A. No.118 of 2007. Also heard Mr. B. Gogoi, learned Addl. P.P., Assam.

(3.) The prosecution case, in brief, is that on 25-04-2003, at around 9.30 P.M., while the victim was washing utensil behind the back of her house, the accused Ajit Malakar along with his brother Bhajan Malakar and accused Kamai Bhumiz appeared. The accused Ajit Malakar was a teacher of a School. He asked the victim to produce her certificate with regard to her citizenship and while the victim entered in her house to bring out the documents, the accused followed her, gagged her mouth and thereafter all the three accused dragged her to the shop house of accused Ajit Malakar. The accused Ajit Malakar forcefully committed rape on her. Early in the next morning at around 4.00 A.M., the accused Bhajan Malakar and Kamai Bhumiz tied her mouth, lifted and dropped her in the cane groove in almost in a naked condition. The victim could regain her sense at 4.00 P.M. and went to the cattle shed of Benu Malakar. Seeing her, Benu Malakar commotion and provided her sari and her parents were informed. The FIR was lodged by the victim on 27-04-2003. On the basis of the said FIR, Titabar P.S. Case No. 35 of 2003 under Sections 366/376 Penal Code was registered.