HIRALAL MIRDHA Vs. STATE OF BIHAR NOW JHARKHAND

JUDGEMENT

(1.) The appellant has preferred this appeal against the order and judgment dated 21st December, 1996 passed by 5th Additional Sessions Judge, Dumka in Sessions Case No. 16 of 1995 whereby and whereunder the appellant stand convicted under Sections 376 and 452 of the Indian Penal Code and sentenced to imprisonment for seven years under Section 376 of the Indian Penal Code and one year under Section 452 of the Indian Penal Code. Both the sentences shall run concurrently.

(2.) Brief facts leading to this appeal are that in the night of 18-8-1993 the appellant forcibly committed rape upon the complainant Sili Mirdha. According to the prosecution case the complainant was sleeping on the veranda of her house while her husband and mother-in-law were sleeping inside the room, then the appellant forcibly gagged her and committed rape against her will. The complainant raised alarm after the rape on which P.Ws. 1, 2, 3 and 6 rushed to her house to see the appellant fleeing away. However they could not catch hold of the appellant. According to the prosecution case when P.Ws. 4 and 6 went to police station their complaint was not entertained, as such a complaint case was filed by P.W.4 in the Court of CJM, Dumka on 25-8-1993, The learned CJM, Dumka dismissed the complaint case. However after revisional order cognizance was taken in this case under Section 376 of the Indian Penal Code. The appellant was accordingly summoned and charged to face trial. The appellant claimed false prosecution due to previous enmity. In this context Ext.-A, a proceeding under Section 107 of the Cr.P.C. between the son of the appellant and the husband of the complainant has been brought on record. However the learned Court below believing the prosecutrix and witnesses found and held him guilty under Section 376 of the Indian Penal Code and sentenced him to serve R.I. for seven years.

(3.) The present appeal has been preferred on the ground that the learned trial Court has not considered the improbability of the prosecution version, it is further asserted that the delay in lodging the complaint case of seven days along with the admitted enmity between the husband of the complainant and the son of the appellant should have been accepted by the trial Court. It is also submitted by the learned counsel for the appellant Mr. Sunil Kumar Mahto that witnesses P.Ws. 1,2,3 are apparently inimical and improbable because none of the neighbouring house inmates came to support the prosecution case. Therefore the appellant may be acquitted of the charges.