This appeal is directed against a judgment and order of conviction dated 30th March 2005 and sentence dated 31st March 2005 passed by the Learned Additional Sessions Judge, 1st Fast Track Court, Jangipur, Murshidabad in Sessions Trial No. 05/2004: Sessions SL No. 103/2004, thereby convicting and sentencing the appellant no. 1 to suffer rigorous imprisonment for life and to pay a fine of Rs. 5000/-, in default to suffer simple imprisonment for one month for committing an offence under Section 376 of the Penal Code, convicting and sentencing the appellant nos. 1 to 4 each to suffer rigorous imprisonment for life and to pay a fine of Rs. 5000/-, in default to suffer simple imprisonment for one month for committing the offence under Section 302 read with Section 34 of the Penal Code and further convicting and sentencing the appellant nos. 2 to 4 each to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1000/-, in default to suffer imprisonment for one month for committing the offence under Section 201 read with Section 34 of the Penal Code, all sentences having to run concurrently.She alleged that due to severe threats given by the accused, the informant could not come before the Learned Court although 3 the police had taken no action over the alleged offences.Pursuant to the direction passed under Section 156 (3) of the Code, Farakka Police Station Case No. 20/2004 dated 29th February 2004 was started against the present appellants for commission of offences under Sections 201, 302, 376 of the Penal Code.The allegations made by the de facto complainant in the said First Information Report were as under:-The accused 1, 2, 3 and 4 lived right next door to the complainant.The daughter of the complainant was aged about 14 years.At 6 p.m. on the day of occurrence the accused no. 1 told the daughter of complainant that his mother had sent for her for some urgent reason.Accordingly, she told her mother that her next door neighbour Minati Halder had sent for her and asked whether she should go.As the complainant consented, she went to Minati's place.The complainant waited for quite a while, but as Kalpana did not return she went to Minati's house.There she found her daughter lying in the room, all but dead and almost naked with her pants and clothes lying around blood-stained.As soon as the complainant entered the room, the accused no. 1 ran away.The complainant asked her daughter about who had done this to her.The victim girl said that Ujjal Halder (of that household) called her there on a false pretext and taking advantage of the vacant house, forcibly raped her.When she said she would tell this to all, he tried to throttle her.Then as the complainant raised a cry, the villagers and the people of the household came there and heard this.The accused no. 3 throttled the victim girl lest she would talk.Then as the people of the complainant's household and the villagers came to see the aftermath, the accused no. 2, 3 and 4 ordered 4 everyone out and shut the door, saying that they would take her to the hospital themselves.After a while, the appellants proceeded with the victim girl in a van towards Beniagram P.H.C. Hospital.She died on the way.After a while, as the aforesaid witnesses went to the hospital the doctor said that the victim girl had died and the accused had taken her to the cremation ground for burning.As the aforesaid witnesses went to Beniagram cremation ground, they found accused no. 2, 4 and some other unknown people burning the victim girl in the cremation ground.As the witnesses created an uproar, the accused threatened that they would settle the issue in the village and if people informed the police, they would kill them.The above incident was intimated to the Farakka Police Station in writing through another person.But the police then took no action.3. Investigation commenced.The Investigating Officer prepared a sketch map and examined witnesses.As the dead body of the victim was forcibly cremated several months ago, no post-mortem examination of the deadbody could be held.She deposed about a 'salishi' or 'bichar' that took place after 2/4 days.In fact the 'bichar' took place twice.He too was a post-occurrence witness.The victim told him as well as PW 1 that the appellant no. 1 had raped her and had tried to throttle her.6 The appellant no. 2 also tried to throttle her.The accused then drove them out.The appellant thereafter took away the dead body and burnt it without any post-mortem examination.After that the appellant nos. 2, 3 and 4 threatened him.They further stated that they would do some 'bichar' in the village only.In his cross-examination PW 3 stated that there was a panchayat member in the village and a chowkidar.But, he was not doing his duty properly.He deposed that in the burning ghat at that time there were about 8/10 persons.The 'dom' or the' 'ijaradar' was actually not present there.PW 4 was a co-villager and a post-occurrence witness to the incident.He saw the victim lying naked.PW 1 told him about the incident.After that the appellants 2, 3 and 4 threatened her that they would assault her and they ousted PW 4 from their house.The local doctor Dr. Sajal Pandit stated that the victim was brought dead to him.On their way back, PW 4 could see the burning ghat.They all asked the appellants 2, 3 and 4 as to why they were burning the dead body of the victim without conducting post-mortem examination.But the said appellants did not allow them to stay near the burning ghat and they stated that they would do 'bichar' of the matter in the villager itself.PW 5 was the father of the victim.At the time of the incident he had been to the river for catching fish.After coming back home at about 3 O'clock in the night, he found his daughter absent and learnt that she was taken to the burning ghat.Then he went and saw the appellants 2, 3 and 4 and some others burning the dead body of his daughter.She saw the victim lying naked on floor of the appellant's house with clothes stained with blood.The victim's mother narrated the incidence to her.She also saw the appellant no. 2 throttle the victim and thereafter the appellant no. 2 threatened her and drove her out of their house.PW 6 deposed that at that time the victim was still alive, but the appellants brought a van and took her away.In her cross, she stated that she told the police that she had seen the victim in almost senseless condition.Hearing hue and cry raised by the victim's mother, she went to the appellant's house and saw that the victim was lying on the floor of the house.The victim's mother narrated the incident to her.The appellant no. 1 tried to throttle the victim, but thereafter fled away.Then the appellant no. 2 throttled the victim and forcibly ousted them from the house.After that the appellants went to a burning ghat and cremated the victim.After completion of investigation, PW 14, the Investigating Officer submitted a charge-sheet dated 21st May 2004 under Sections 201, 302, 376 of the Penal Code.On 12th August 2004 charges were framed against the appellant no. 1 under Section 376 of the Penal Code and against all the four appellants under Section 302 read with Section 34 of the Penal Code as also under Section 201 read with Section 34 of the Penal Code.During trial the prosecution examined 14 witnesses to establish its case.The case of the defence was mainly a denial of the prosecution case.She alleged that the accused had offered money to her, but she refused to accept the same.In her cross, she categorically said that when she went to see her daughter, the appellant no. 4 pulled her down from the van in which the appellants carried her daughter allegedly for treatment.PW 2 was a co-villager and a post-occurrence witness.She deposed that the victim told her that the appellant no. 1 had ravished her.After the appellant no. 1 tried to throttle the victim, the appellant no. 2 too came and throttled the victim.Seeing all these, PW 1 the mother of the victim became ill.The appellants 2, 3 and 4 drove them out of their house.In her cross-examination PW 2 vouched that she had stated to the police that she saw the appellant no. 2 throttling the victim girl and that the appellant no. 1 was also going to throttle the victim.She admitted that PW 1 was her 'ja'.She also stated that the accused were one group and the witnesses were the other group.PW 3 was a co-villager and an uncle of the victim.He deposed that the appellants then took the victim away in the name taking her to a hospital.The local doctor, Dr. Pandit said that the victim was brought dead.PW 7 was a neighbour of the victim.In her cross, PW 7 deposed that she stated to the police that she had seen the victim in the appellant's house in unconscious state.She also stated to the police that the appellant no. 2 had throttled the victim and the appellant no. 1 had tried to throttle her.She admitted that there were divisions in the village, the accused belonged to one division and the others belonged to another division.PW 8 was a doctor who examined the appellant no. 1 and found him sexually capable.PW 9 was a neighbour of the victim.He heard about the incident from others in the village.PW 10 was another neighbour who admitted his signature on Ext.3 which was a mass petition given to the police in respect of cremation of the victim's dead body without the parents' permission.PW 11 was a learned Advocate who prepared the de 8 facto complainant's petition under Section 156 (3) of the Code.PW 12 was the victim's brother and a pre-occurrence witness to the incident.The appellant no. 1 had called the victim to his house.Thereafter PW 12 went to the market and came back after the incident and found his mother crying.In the cross-examination he stated that the police had arrested the accused after 3/ 4 days of the incident.PW 13 was a co-villager who had turned hostile.PW 14 was the Investigating Officer of the case.He examined available witnesses and submitted a charge-sheet against the appellants under Sections 376, 301, 201, 34 of the Penal Code.In his cross- examination, he admitted that the burning ghat was not a registered one.In his answer to question no. 8 under Section 313 of the Code, the appellant no. 1 stated that he did not know whether the victim's father killed her, but the said father was the one who had burnt her.Likewise in his answer to question no. 9, the appellant no. 1 reiterated that the victim's father had burnt her.The Learned Advocate appearing on behalf of the appellants submitted that there was an inordinate delay, in filing the complaint, of more than five months and the same was not properly explained.He submitted that even the purported initial intimation to the police about the incident was neither proved nor explained.According to him, mere saying that an intimation was sent to police is not enough.As per the Learned Advocate the only evidence present in the case is alleged verbal dying declaration, which is itself a very weak piece of evidence.The Learned Advocate submitted that the appellant no. 1 did not murder the victim nor was there any medical evidence on rape 9 or murder.He wondered as to why the doctor to whom the victim was taken was not examined.Moreover, if the intention were to murder, then the appellants would not have taken the victim to a doctor, but would have directly proceeded for the burning ghat.He further submitted that there was no document of any 'salish' or 'bichar'.Even the so-called mass petition was not exhibited.The Learned Advocate submitted that PW 2 was contradicted by the Investigating Officer over the issue whether she saw the appellant no. 2 throttle the victim or the appellant no. 1 for that matter throttle the victim.According to the Learned Advocate, PW 2's deposition that it was discussed about who would be accused and that there were two divisions in the village exposed the malice of the informant's side in falsely implicating the appellants.He also referred to a cross-examination of PW 3 which mentioned that the local people burnt the body.The Investigating Officer also deposed that PW 4 did not state that he had seen the appellant no. 2 throttling the victim.The Learned Advocate relied on a few decisions on the question of delay in lodging First Information Report and the need to explain the said delay.The decisions are - AIR 73 SC 501: Thulia Kali vs. The State of Tamil Nadu; (1994) 5 SCC 188: Mehraj Singh (L/Nk.) vs. State of U.P.; AIR 2007 SC 155: Ramdas & Ors.vs. State of Maharashtra; (2014) 9 SCC 365: Ramaiah @ Rama vs. State of Karnataka.On the question of reliance on a dying declaration made only to the victim's mother, he relied on (2001) SCC (Cri) 1148, Arvind Singh vs. State of Bihar.The Learned Advocate appearing on behalf of the State strongly supported the conviction and sentence.He submitted that the incidents 10 commenced from the victim going to the appellant's house upon the appellant no. 1's call and ended at the burning ghat.All these long the victim was under the control of the appellants.As the appellants had full knowledge of the incident, they should have explained as to how the victim got killed and illegally cremated.There were several witnesses like PWs 1, 2, 3, 4, 6 and 7 to the verbal dying declaration.According to PWs 1 and 2, the appellants took away the dead body.PWs 2, 3 and 4 saw the appellant no. 1 throttle the victim.PWs 1, 6 and 7 were the ones before whom the victim said that the appellant no. 1 tried to throttle and kill her.PWs 2, 3, 6 and 7 raised the question before the appellants as to why they did not send the dead body of the victim for post-mortem before cremation.PWs 1, 4 and 12 said that the incident was reported to police and police came and assured them that the police would inquire further and take appropriate steps.PWs 3, 4 and 5 saw burning of the dead body.PWs 1, 2, 3, 4, 6 and 7 saw the appellant no. 2 throttle the victim.He submitted that threats were given by the appellants not to report to the police.The Learned Advocate further submitted that a 'bichar' was held.As police did not do anything, the de facto complainant filed a complaint under Section 156 (3) of the Code.Delay has thus been well explained.In any event, the circumstances as referred above provide a good explanation for the delay in lodging the complaint.From the evidence of PW 1, the mother of the victim and PW 12, the victim's brother it is clear that the appellant no. 1 had asked the minor victim to come to their house on the pretext that his mother had asked for her.After taking permission from her mother, the victim girl went to the appellant's house.There, by taking advantage of absence of others, the appellant no. 1 raped the victim.According to the statements given by the victim to other witnesses like PWs 1, 2, 3, 4 and 7 after committing such crime, the appellant no. 1 throttled her as she stated that she would tell others about the incident.PW 6 saw the appellant no. 1 throttle the victim.When the victim girl did not return home for sometime, her mother PW 1 went to the house of the appellants and found the victim girl lying practically naked on the floor of the room.Seeing PW 1, the appellant no. 1 fled away from inside the room.The victim then told PW 1 about the incident.Thereafter the appellant no. 2 also came and tried to throttle the victim.By this time upon hearing the hue and cry raised by PW 1, other neighbours like PWs 3, 4 and 6 had come to the appellant's house.They too saw the victim girl in such dishabille condition.PWs 2, 3 and 4 saw the appellant no. 2 throttle the victim.Thereafter the appellants, in an ostensible use of their relatively elevated status and position of influence, ousted all the visitors from their house.Then the appellants took the victim girl in a vehicle purportedly to see a doctor.In fact, the appellant 13 no. 4 pushed away PW 1 when she tried to get into the car.There is no witness about what happened inside the vehicle.But, the local doctor Dr. Sajal Pandit to whom the appellants took the victim stated to other witnesses that he had found the victim brought dead.Thereafter without intimating the police and waiting for a post-mortem examination over the dead body and without any kind of permission from the victim's parents, the appellants took the dead body to an unofficial burning ghat and illegally cremated the dead body.PWs 3, 4 and 5 were the witnesses to such cremation.The non-examination of the doctor to whom the victim was taken was a gross error committed by the Investigating Officer.But, that does not take away the copious amount of evidence adduced by others about the sequence of events.

Cited provisions: Section 34 in The Indian Penal Code; Section 201 in The Indian Penal Code; Section 376 in The Indian Penal Code; Section 302 in The Indian Penal Code; Section 156 in The Indian Penal Code; Section 304 in The Indian Penal Code; Section 313 in The Indian Penal Code