Amitava Roy, C.J. - (1.) IN challenge is the judgment and order dt. 27.03.1989 passed by the learned Additional Sessions Judge No. 1, Bharatpur in Sessions Case No. 19/1987 convicting the appellant under Secs. 376, 377 & 457 IPC and sentencing him to undergo 10, 5 & 4 years R.I. correspondingly and to pay a fine of Rs. 500/ - on each count, in default to suffer R.I. for further 1 year on each of the convictions. Heard Mr. Biri Singh Sinsinwar, Senior Advocate with Mr. Rajesh Choudhary on behalf of the appellant and Mr. Javed Choudhary, learned Public Prosecutor for the State.
(2.) THE prosecution case is traceable to the FIR dt. 16th October, 1986 lodged by one Smt. Basanti to the effect that in the night of 15/16th October, 1986 at about 1.30 AM while she was sleeping in her house, the appellant knocked at her door. She having enquired, the appellant disclosed his identity, entered the room and sought for her daughter Kusum who was sleeping in the next room. In course of the commotion, the informant's daughter Kusum also woke up and realizing the presence of the appellant in the house alongwith the house lady Safedi (PW -4) fled therefrom. The FIR mentioned that when for about one hour, Kusum did not return, the appellant threatened the informant to outrage her modesty if she did not take immediate steps to bring her back. It was alleged that he thereafter held the informant/prosecutrix by hand and dragged her towards nearly low lying pit. The informant stated that in the process, she also assaulted the appellant with a lathi and raised alarm, but he committed forcible sexual intercourse with her and threatened to kill her with a country made gun. According to the prosecutrix, when she was being dragged, her neighbours Kishan Punjabi and his wife alongwith Govind Singh & others were present. On the basis of the FIR, the police registered a case against the appellant and laid chargesheet against him under the above provisions of the IPC. He denied the charge when confronted therewith by the learned trial Court. In the trial, that followed, the prosecution examined several witnesses including the prosecutrix Basanti (PW -3), the house lady Safedi (PW -4), her daughter Kusum (PW -9) and her son Suresh (PW -14). The prosecutrix in her testimony though substantially adhered to the version made in the FIR, she did not noticeably mention that she had while being dragged by the appellant assaulted him with lathi and had raised alarm. She did not disclose the presence of Kishan Panjabi who had arrived at the scene of occurrence on her alarm. She, however, averred about her medical examination, seizure of her wearing apparels and collection of sample of her vaginal swab for the forensic examination. In cross -examination she denied the suggestion that she had previous association with the appellant and that he used to visit her house and that she was a consenting party to the alleged act of coitus.
(3.) THE house lady Safedi (PW -4), Kusum (PW -9) and Suresh (PW -14) were declared hostile as none of them supported the prosecutrix. This is of utmost significance that Kusum (PW -9) and Suresh (PW -14) are incidentally her children and expectedly having regard to the relationship and gravity of the offence alleged were supposed to affirm the correctness of the allegations made by their mother.;