JUDGMENT : Joymalya Bagchi, J. 1. Lower Court records have been received. On consent of the parties dispensing with preparation of Paper Books, the matter is taken up for hearing. 2. Judgment and order dated January 24, 2017 passed by the learned Additional Sessions Judge, Fast Track, 1st Court, 3rd Court, Kandi, Murshidabad in Sessions Serial No. 144 of 2007 and Sessions Trail No. 08(02) of 2008 convicting the appellants for committing offence punishable under Section 376(2)(g)/34 and under Section 341/34 of the Indian Penal Code of the Indian Penal Code and sentencing him to suffer rigorous imprisonment ten years each and to pay fine of Rs.1000/- each and in default to suffer rigorous imprisonment for one year more for the offence punishable under Section 376 of the Indian Penal Code and to suffer simple imprisonment for ten days for the offence punishable under Sections 341/34 of the Indian Penal Code, both the sentences to run concurrently. 3. Prosecution case as alleged against the appellants is to the effect that on 25-01-1996 the victim along with Hari Mondal (PW 5), Bandana Mondal, Babu Mondal, Rabi Mondal (PW 4) and Kalyani Mondal had gone to attend Sradh ceremony at the house of Kartick Mondal at village Udaychandpur and after attending the said ceremony while they were returning home through village Dhalla and had reached near Dhalla Primary School around 6.30 PM, the appellants accosted them on the road. Appellant nos. 1 and 3 caught hold of Hari Mondal, PW 5, the uncle of the victim while appellant no.2 along with Masud Sk. @ Farid Sk. (absconding accused) dragged her to the field and raped her. Thereafter, PW 1, Ajit Mondal, father of the victim lodged first information report being Kandi PS Case No. 22 of 1996 dated 26-01-1996 under section 376 of Indian Penal Code and 25/27 of the Arms Act against unknown accused persons. 4. In conclusion of investigation, charge sheet was filed against the appellants and Masud @ Farid and the case was committed to the Court of Sessions and transferred to the Additional Sessions Judge, Fast Track, 1st Court, 3rd Court, Kandi, Murshidabad, for trial and disposal. Charges were framed against the appellants and Masud @ Farid for committing rape on the victim, Archana Mondal and wrongfully restraining Hari Mondal, PW 5. Charges were framed against the appellants and Masud @ Farid for committing rape on the victim, Archana Mondal and wrongfully restraining Hari Mondal, PW 5. However, at the time of framing charges, one of the alleged offence was inadvertently described as Sections 376/511 of the Indian Penal Code instead of Sections 376(2)(g)/34 of the Indian Penal Code. 5. In the course of trial, prosecution examined 8 witnesses and exhibited a number of documents. The defence of the appellants is one of innocence and false implication. 6. In conclusion of trial, the trial judge by judgment and order dated 24-01-2017 convicted and sentenced the appellants, as aforesaid. 5. Mr. Mondal, learned Advocate appearing for the appellants submitted that although charges were framed under Section 376/511 IPC, conviction was recorded under Section 376(2)(g)/34 IPC without reframing the charges which is impermissible in law. He further submitted that the appellant nos. 1 and 3 were not identified by the victim in course of test identification parade. Their identification in Court by the said witness is also doubtful as she admitted in cross-examination that the facts of the miscreants were covered. Evidence of PW 5 with regard to identification of appellant nos. 1 and 3 is also doubtful as their names did not transpire in the first information report recorded by PW 1. Doctor treating the victim has not been examined and therefore, rape of the victim cannot be said to have been proved. He, accordingly, prayed for acquittal of the appellants. 6. On the other hand, Mr. Ghosh appearing for the State submitted that an erroneous reference to a incorrect section of law while describing the offence could not have prejudiced the appellants. The ingredients of the offence were clearly described in words in the body of the charge and had been read over and explained to the appellants. He referred to Section 215 of the Code of Criminal Procedure in support of his contention. He also submitted that injury report of the victim had been exhibited as exhibit 4 and, therefore, it cannot be said that the allegation of rape is not supported by medical evidence. He also submitted that the appellants had been identified by P.W.2 (the victim) and her uncle (P.W.5) in the course of trial clearly establishing their roles in the alleged offence. Hence, the appeal is liable to be dismissed. 7. He also submitted that the appellants had been identified by P.W.2 (the victim) and her uncle (P.W.5) in the course of trial clearly establishing their roles in the alleged offence. Hence, the appeal is liable to be dismissed. 7. Firstly, with regard to the incorrect section of law being quoted in the charge, I find that such error was an inadvertent one and as the ingredients of the offence under Section 376(2)(g)/34 of the Indian Penal Code had been clearly stated in the charge and read over and explained to the appellants, I am of the opinion that they had not been prejudiced in the course of trial to prepare their defence. Hence, such inadvertent error had not occasioned any failure of justice and resulted in its mistrial in view of Section 215 Cr.P.C. 8. Let me now examine the evidence of the witnesses to ascertain whether the prosecution has been able to prove its case beyond reasonable doubt. 9. P.W.2 is the victim in the instant case. She deposed that on the date of the occurrence, that is 10th Magh, 1403 B.S. at around 6.00/6.30 p.m. she was returning home along with Hari Mondal (P.W.5), Babu Mondal, Bandona Mondal and Robi Mondal (P.W.4) from Udaychandpur after attending a ‘Shradh’ ceremony. Near Dhalla Primary School two unknown persons caught her uncle, Hari Mondal and two others caught hold of her. She identified the persons who had caught hold of her as Masud @ Farid Sk. and Sabek Sk. She also identified appellant nos.1 and 3 in court by face as those who had caught her uncle. Masud @ Farid Sk. brought her to a field and raped her against her will. She cried out and as people assembled, Masud left the place. Thereafter she reached the residence of her grandmother and reported the incident to her uncle, Hari Mondal and father. Police came and took her to Kandi Hospital. She was admitted in hospital for two days. Police seized her wearing apparels. Blood was coming out from her private parts. She also received injuries on her hand and leg due to assault by the accused persons. 10. In cross-examination, she stated that she had been given in marriage one and half years after the occurrence. She was 20-22 years of age at the time of her marriage. Police seized her wearing apparels. Blood was coming out from her private parts. She also received injuries on her hand and leg due to assault by the accused persons. 10. In cross-examination, she stated that she had been given in marriage one and half years after the occurrence. She was 20-22 years of age at the time of her marriage. She had gone to Udaychandpur at about 2.30 p.m. She stated that the faces of the miscreants were covered by napkin. One of the culprits released her hand when people came. She went to her grandmother’s house alone. She identified one person in T.I. Parade. 11. P.W.5, Hari Mondal is an uncle of the victim who was present at the place of occurrence. He deposed that the incident took place on 10th Magh about 12 years ago around 6.30 p.m. He along with five others were coming from Udaychandpur. Bani and Intajul held his hand and threatened him not to talk. Farid and Sabir brought the victim to a field. Bani and Intajul left the place as other people assembled there. The victim returned to her residence and reported that Farid had raped her. His elder brother, Ajit informed the matter to police. Thereafter the victim was taken to Kandi Hospital. Her wearing apparels were seized. He signed on the seizure list (Ext. 2). In cross-examination, he stated that he disclosed the name of Intajul to police. 12. P.W.1, Ajit Mondal is the father of the victim and the defacto complainant in the instant case. He deposed that on 10th Magh 12 years ago around 6.30 p.m. his daughter was returning along with Hari Mondal, Babu Mondal, Bandana Mondal and Kalyan Mondal from Udaychandpur to their residence at Natunpara. In a field near Dhalla School four persons kidnapped his daughter. His daughter was aged around 14 years. He came to know the incident from Hari Mondal. On the way he met police and thereafter the police brought his daughter to hospital. He asked one Ratan Loho to write the complaint. Thereafter he put his signature on the complaint after coming to know about the contents. He proved his signature (Ext.1). He came to know from his daughter that she was raped by Farid. Police seized the wearing apparels of his daughter. 13. P.W.3, Ratan Chand Loho is the scribe of the first information report. Thereafter he put his signature on the complaint after coming to know about the contents. He proved his signature (Ext.1). He came to know from his daughter that she was raped by Farid. Police seized the wearing apparels of his daughter. 13. P.W.3, Ratan Chand Loho is the scribe of the first information report. He proved the first information report (Ext.1). 14. P.W.4, Rabi Mondal was also present at the place of occurrence. He deposed that four persons attacked them. Two persons threatened them with a shotter and two persons kidnapped the victim. After ten minutes the victim shouted in the field. Then they left for their residence and the victim reached her residence behind them. The victim narrated the matter to her family members. 15. P.W.6, Sanat Mondal is the husband of the victim. He deposed that after the incident the victim married her. 16. P.W.7 is the Investigating Officer of the case. He deposed that at the time of occurrence he was posted as Officer-in-charge of Kandi Police Station. He received complaint from P.W.1 and drew a formal first information report (Ext.3). He visited the place of occurrence, prepared sketch map, examined the witnesses, recorded statement of the victim and seized her wearing apparels under a seizure list (Ext. 2/2). He arrested the accused persons. The victim was medically examined. He identified the wearing apparels of the victim and submitted charge sheet. 18. From the aforesaid evidence on record it appears that while the victim was returning to her residence at Natunpara with P.W.4, P.W.5 and others after attending a ‘Shradh’ ceremony at Udaychandpur four persons accosted them. Two of them held P.W.5 and threatened them with a firearm and two others kidnapped the victim. Thereafter the victim returned home crying and reported that she was raped by one Masud @ Farid. 19. It has been argued that none of the appellants were named in the first information report by P.W.1. It is also argued that although P.W.5 named the appellants in court, names of the said appellants did not transpire in the first information report which was recorded by P.W.1, Ajit Mondal after coming to know of the incident from his brother Hari Mondal (P.W.5) and the victim (P.W.2). Identification of the appellants by the victim (P.W.2) in court is doubtful as she admitted that the faces of the miscreants were covered. 20. Identification of the appellants by the victim (P.W.2) in court is doubtful as she admitted that the faces of the miscreants were covered. 20. On the other hand, learned lawyer appearing for the State submitted that the omission to state the names of the first informant in the first information report is a minor one and ought to be overlooked in the light of the identification of the appellants by P.W.2 and P.W.5 in court. 21. I have given anxious consideration to the aforesaid submissions of the parties. I find although the names of appellant nos.1 and 3 transpired from the deposition of P.W.5, the victim (P.W.2) has failed to name the said appellants. It is true that she identified the said appellants in court but had not identified the said appellants in the course of T.I. Parade. The victim, however, had named appellant no.2 as the associate of the principal accused, Masud @ Farid who had kidnapped and thereafter raped her. 22. Evidence has also come on record that after the incident, the victim was admitted in hospital for two days and the injury report has been exhibited as Ext.4 in the instant case. Hence, I have no doubt in my mind that appellant no.2 was associated with the principal accused, Masud @ Farid and they had dragged the victim to a field where she was raped. However, the identity of appellant nos.1 and 3 as the persons who had held P.W.5 and threatened the party with firearm has not been proved beyond reasonable doubt. Their names did not transpire in the first information report and P.W.2 had also not identified them in the course of T. I. Parade. 23. In view of the unreliable and scanty evidence with regard to the identification of appellant nos.1 and 3 in the instant case, I am inclined to extend the benefit of doubt to them. Accordingly, appellant nos.1 and 3, namely, Intaj Sk. and Bani Sk. are acquitted of the charge levelled against them. 24. On the other hand, appellant no.2 has been named by P.W.2 and P.W.5 in court as the person who kidnapped the victim (P.W.2) with Masud alias Farid and the latter raped her. In view of the aforesaid evidence on record, conviction and sentence of the appellant no.2 are upheld. 25. Conviction and sentence imposed upon the appellant nos.1 and 3 are set aside. In view of the aforesaid evidence on record, conviction and sentence of the appellant no.2 are upheld. 25. Conviction and sentence imposed upon the appellant nos.1 and 3 are set aside. They shall be forthwith released from custody upon furnishing a bond to the satisfaction of the Chief Judicial Magistrate, Murshidabad which shall remain in force for six months in terms of Section 437A of the Code of Criminal Procedure if they are not wanted in any other case. 26. Period of detention suffered by the appellants during investigation, inquiry and trial shall be set off against their substantive sentences under Section 428 of Code of Criminal Procedure. 27. The appeal is partly allowed. The application for suspension of sentence being CRAN 1617 of 2017 is also disposed of. 28. Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance. 29. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.