GIRISH CHANDRA GUPTA, J. ( 1 ) THIS appeal has been preferred against the judgment dated 6. 10. 2004 and order dated 7. 10. 2004 passed by the learned Additional sessions Judge, Fast Track Court, Raiganj, Uttar Dinajpur in Sessions Trial no, 6/2004 arising out of Sessions Case No. 27/2003. ( 2 ) BISWANATH Sarkar, son of Dwijen Sarkar and Naresh Sarkar, son of bhagirath Sarkar, both of village Hasua, were charged under Section 376 (2) (g)of the I. P. C. for committing gang rape on 9th February, 2000 at 1/1. 30 A. M. in the night upon the wife of the accused Biswanath. Biswanath was also charged under Section 498a of the I. P. C. for subjecting his wife Manju Sarkar to cruelty by inflicting both physical and mental torture. Both Biswanath and naresh were convicted by a judgment and order dated 6th October, 2004 under Section 376 (2) (g) of the I. P. C, Biswanath was also convicted under section 498a of the I. P. C. By an order dated 7th October, 2004 both Biswanath and Naresh were sentenced, to suffer rigorous imprisonment for 10 years as also to pay fine of Rs. 2,000/- each, in default, to suffer rigorous imprisonment for two years each. The convict Biswanath. was further sentenced to suffer rigorous imprisonment for one year as also to pay fine Rs. 500/- and in default to suffer further rigorous imprisonment for two months for the offence punishable under Section 498a of I. P. C. Both the convicts have now come up in appeal. ( 3 ) THE prosecution case briefly stated is as follows : -On 9th February, 2000 in the night at about 1/1. 30 A. M. Biswanath, the husband of the prosecutrix, entered into her room in intoxicated condition with his friend Naresh, who was also in intoxicated condition. Both of them physically tortured the prosecutrix as also raped her one after the other. She could not shout because she had been gagged by a piece of cloth in her mouth. Her clothes were torn and she became naked. They threatened her with dire consequences in the event of disclosure of the incident to anyone. ( 4 ) THE actual date of marriage between the appellant Biswanath and the prosecutrix has not been deposed to by anyone. Her clothes were torn and she became naked. They threatened her with dire consequences in the event of disclosure of the incident to anyone. ( 4 ) THE actual date of marriage between the appellant Biswanath and the prosecutrix has not been deposed to by anyone. During trial on 29th March, 2004 the prosecutrix deposed that she was married about 4 years ago. After sometime she deposed that she had been married about 6 years ago. Nibaran, the P. W. 2, the father of the prosecutrix, deposed that they were married 5/6 years ago. The date of incident we already have noticed is 9th February, 2000. Nibaran deposed in Court on 30th March, 2004. Therefore, according to his evidence the couple were married sometime between 1998 and 1999. The prosecutrix in her evidence has deposed that owing to dispute with her husband she stayed with her parents for six months at a stretch and she came back about a month before the incident. She deposed that her husband Biswanath with one Badal went to bring her back. Her father, the P. W. 2. has however admitted that Biswanath did not go to bring her back to the matrimonial home. According to the father, Biswanath went to his in-laws' house only once i. e. at the time of Astamangala which is within a week or such shorter time alter the marriage. ( 5 ) P. W. 2, Nibaran the father of the prosecutrix in his deposition has alleged that Biswanath used to torture his daughter, the prosecutrix. He however admitted in his cross-examination that he never complained about the torture to the police. He also admitted in cross-examination that Biswanath had never been disrespectful to him. ( 6 ) THE prosecutrix, in her evidence admitted that the room occupied by her was contiguous to the room occupied by her parents-in-law in the matrimonial home. ( 7 ) ANOTHER significant fact deposed to by the P. W. 3 Shilpi Das is that the prosecutrix herself had at one point of time introduced her to the accused naresh who happened to be a friend of her husband Biswanath. ( 8 ) THE prosecutrix the sole witness of the alleged rape in her deposition stated that she was sleeping in her room. A lighted lantern was there. At about 1/1. 30 A. M. in the night her husband called her from outside. ( 8 ) THE prosecutrix the sole witness of the alleged rape in her deposition stated that she was sleeping in her room. A lighted lantern was there. At about 1/1. 30 A. M. in the night her husband called her from outside. She opened the door of her room. The husband entered into the room. He put a cloth in her mouth and called one person named Naresh. Naresh also entered into the room. Both of them were in intoxicated condition. Thereafter, her husband caught hold of her and pressed her on the bed. As per direction of her husband Naresh raped her. They had also torn the clothes of the prosecutrix and made her naked. The husband thereafter, also raped her. She was thereafter told not to disclose the fact to anyone or else they would kill her. After the incident both of them left the room. On the next morning she disclosed the fact to one Ujjal Das. She deposed that Nimai Sarkar, elder brother of her husband and his wife Aduri Sarkar also knew about the fact. On hearing the information from the local people her father Nibaran, one Tapan Sarkar, one parasuram Mahato, one Shilpi Das and her elder brother Ratan Das came to her in laws' house in the morning; and she disclosed the fact to them. She accompanied by her father and the party who had come along with her father went to the Itahar Police Station and lodged a written complaint which was scribed by Tapan Sarkar. The complaint was read over to her and she put her signature. The written complaint was marked exhibit 1'. The police came to her father- in-law's house, seized her wearing apparels and the bloodstained bed sheets (cover) and prepared a seizure list where the prosecutrix put her signature. The seizure list was marked exhibit 2'. She identified her sari, saya seized by the police. ( 9 ) IN her cross-examination she deposed that she went to the police station on the next day i. e. 10th February, 2000 at 2/2. 30 P. M. She further deposed that she was sent to Itahar hospital. From the Itahar hospital she was referred to Raiganj District Hospital where she was treated as an indoor patient for three days. According to the P. W. 3 Shilpi Das they reached the Itahar police Station at about the noon. 30 P. M. She further deposed that she was sent to Itahar hospital. From the Itahar hospital she was referred to Raiganj District Hospital where she was treated as an indoor patient for three days. According to the P. W. 3 Shilpi Das they reached the Itahar police Station at about the noon. Thereafter they came to Raiganj Hospital in the afternoon. From Raiganj hospital she returned her home in the evening. According to the father of the prosecutrix the P. W. 2 they reached the police station at about 4/5 P. M. on 10th February, 2000. According to the P. W. 4 parasuram they went to the police station at about 10/11 A. M. According to p. W. 6 Tapan who scribed the complaint, they had reached the village Hasua at about 9/10. A. M. They stayed there for about 2. 5/3 hours and then they went to the police station which is about an hours journey by a vehicle. They went by a vehicle and from the police station Nibaran along with his daughter the prosecutrix came back to their village Kamlia and they did not go anywhere else from the police station. ( 10 ) WE, thus, have different versions as regard the time of visit to the police station commencing from 11. A. M. upto 5 P. M. Different witnesses have spoken differently. According to the P. W. 1 the written complaint: was lodged at about 2/2. 30 A. M. whereas the formal FIR shows that the written complaint, was received in the night at 11. 15 P. M. (23. 15 hours) ( 11 ) ACCORDING to Tapan, the P. W. 6, from the police station the entire party including the prosecutrix and her father came back to the village Kalmai where the house of Nibaran is situate. According to Shilpi Das, the P. W. 3, from the police station, during the noon, they went to the Itahar Hospital and therefrom in the afternoon they went to Raiganj Hospital and in the evening they returned home. ( 12 ) THE incident of rape deposed to by the prosecutrix, the P. W. 1, is stated by her to have been narrated to her father Nibaran, her brother Ratan, tapan Sarkar, Parasuram Mahato and Shilpi Das. ( 12 ) THE incident of rape deposed to by the prosecutrix, the P. W. 1, is stated by her to have been narrated to her father Nibaran, her brother Ratan, tapan Sarkar, Parasuram Mahato and Shilpi Das. P. W. 2 Nibaran in his cross-examination admitted that he did not tell the police officer during the investigation that the victim had narrated the incident of rape to him. P. W. 3 shilpi Das also deposed that the victim had narrated the incident to her but the p. W. 11, the investigating officer deposed that Shilpi during her examination did not say so. P. W. 4 in his examination-in-chief deposed to have been told by the victim about the incident but in his cross-examination, he deposed that he did not even enter the house of the victim. He added that the sister in-law of the prosecutrix had called her outside her house where she narrated the incident. It is significant that the sister-in-law of the prosecutrix is not even alleged by any of the witnesses to have visited the matrimonial house of the prosecutrix on 10th February, 2000. Moreover, the I. O. the P. W. 11 deposed that the P. W. 4 did not tell him during investigation that the prosecutrix had narrated the incident to him. Ujjal the P. W. 5 also deposed in his examination-in-chief to have been told about the incident by the victim but the I. O. the P. W. 11 said otherwise which it would be fruitful to quote "i also examined Ujjal Das. He did not state to me that he entered into the room of Manju or that he found manju was then crying or that Maniu disclosed him that on the previous night bisu and Naresh came to her room and both of them committed rape upon her". Similarly P. W. 6, Tapan in his evidence-in-chief repeated that the incident was narrated to him by the prosecutrix but P. W. 11 the I. O. deposed that no such thing was told to him by the P. W. 6. ( 13 ) WE already have noticed that according to the prosecutrix her elder brother Ratan Das is alleged to have accompanied her father Nibaran and the party on the following day in the morning. ( 13 ) WE already have noticed that according to the prosecutrix her elder brother Ratan Das is alleged to have accompanied her father Nibaran and the party on the following day in the morning. The father, the P. W. 2, however did not in his evidence include Ratan as one of the persons who visited the house of the prosecutrix on the following day. He instead included one Rabindranath mondal in the party, who was not cited as a witness. ( 14 ) THE most important revelation came from the evidence of the doctor who deposed that on 12th February, 2000 he examined the victim when she told him that she had been raped by unknown persons. To be precise his report, reads as follows : -"1) Forceful intercourse by unknown persons, 2) biting and scratching over the person. " his report dated 12th February, 2000 has been tendered in evidence which is exhibit 4'. To the same effect is his oral evidence. ( 15 ) ON behalf of the appellants a doctor of the Raiganj Hospital was examined who deposed that the records did not reveal that the prosecutrix was treated at the Raiganj Hospital as an indoor patient. ( 16 ) THE P. W. 1 in her deposition admitted that 2/3 days after the incident she accompanied by the members of the Mahila Samity and the police went to her matrimonial home and some of her streedhan was seized and returned to her. Nibaran, the father of the prosecutrix has also admitted in his cross-examination that the police recovered the streedhan articles of the prosecutrix from the house of Biswanath and returned to them. The prosecutrix has further admitted that she has filed a case for maintenance. She also admitted to have filed a case for return of streedhan. She however corrected herself by saying that part of the streedhan was seized and returned to her. She also admitted that her husband has filed a case of snatching against the prosecutrix and a police officer. ( 17 ) THE picture which emerges from the evidence discussed above may briefly be summarised as follows : a) The prosecutrix herself was well acquainted with Naresh. She, as a matter of fact, introduced him to Shilpi Das the P. W. 3 on an earlier occasion. b) The relationship between the husband and the wife was not good. ( 17 ) THE picture which emerges from the evidence discussed above may briefly be summarised as follows : a) The prosecutrix herself was well acquainted with Naresh. She, as a matter of fact, introduced him to Shilpi Das the P. W. 3 on an earlier occasion. b) The relationship between the husband and the wife was not good. c) The prosecutrix spent a considerable part if not a greater part of her marital life, prior to the date of occurrence, at her father's house. d) The husband Biswanath did not visit his wife in his in-laws' house except for one occasion immediately after the marriage. e) Even after a long stay of six months at the father's house when the prosecutrix came back to her matrimonial home her husband did not go to bring her. f) The husband Biswanath was respectful to his in-laws. q) The prosecutrix immediately after the incident, on 12th 'february; 2000 told the doctor that she had forcibly been raped by unknown persons. h) The prosecutrix untruly deposed that she had been treated at the raiganj Hospital as an indoor patient, i) The father of the prosecutrix reached the village Hasua at about 8 A. M. on 10th February, 2000. The FIR was lodged at 11. 15 p. M. in the night on 10th February, 2000 whereas various contradictory statements as regards the time of lodging the FIR have been given out by the witnesses including the father and the daughter. j) The witnesses deposed that the alleged incident was relayed to them by the prosecutrix on 10th February, 2000 in the morning when they went to meet her but this was not disclosed by them to the police officer during investigation. ( 18 ) THE summary highlighted above establishes a clear case of concoction. We are fortified in our view by the fact that the accused persons were not even sent for medical examination which is required under Section 53 (A) of the Code of Criminal Procedure. Such an examination was all the more necessary because the defence case is that the husband Biswanath is impotent. The wearing apparels including the bed-sheets allegedly bloodstained were sent to the forensic laboratory. According to the P. W. 11 the report was received but the report has not been tendered in evidence. Such an examination was all the more necessary because the defence case is that the husband Biswanath is impotent. The wearing apparels including the bed-sheets allegedly bloodstained were sent to the forensic laboratory. According to the P. W. 11 the report was received but the report has not been tendered in evidence. ( 19 ) WE are surprised that the learned Trial Judge was persuaded to conclude that - I) the FIR was lodged at 11. 15 P. M. in the night for the reasons best known to the police officers ; ii) the prosecutrix may have made a mistake as to the meaning of the word 'indoor patient' being a rustic woman ; iii) the prosecutrix may have fought shy in disclosing the names of the actual rapists ; iv) the suggestion of false implication can not be believed. ( 20 ) THE learned Trial Judge appears to have over emphasised the fact that the medical evidence suggests that rape was committed. The question which did not occur to him is whether the accused persons are connected with the alleged rape. Even assuming that a rape has been committed that would not; justify an order convicting the accused persons when they were no way connected with it. We have no doubt that the judgment under appeal is perverse. The finding as regards the torture is equally without any basis. ( 21 ) IN the result the appeal succeeds and allowed. The order of conviction as well as sentences passed by the learned Trial Judge in the judgment impugned are set aside. Both the appellants shall bo set at liberty forthwith, if not required in connection with any other case.