Dilip Kumar Sinha, J. - (1.) THE Instant appeal is directed against the judgment of conviction dated 30.06.1998 and order of sentence recorded by the 4th Additional Sessions Judge, Dhanbad in Sessions Trial No. 117 of 1988 by which the sole Appellant was convicted under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a term of 7 years.
(2.) THE prosecution case, as it stands narrated on 18.06.1985 in the Fard Bayan of the prosecutrix Pewasi Kamarin before Tundi Police Station was that a day prior i.e. on 17.06.1985 she was asked by her mother to take away food for her father, who was fishing at the Khudin rivulet along with other villagers. Pursuant to such instruction, she went there carrying food but she was asked by her father to return back as he was likely to come soon in course of her return journey when she reached near Deritarn, she spotted Badruddin Mian of her village, who suddenly appeared before her coming from behind the Neem tree and caught hold her hand to which she resisted and tied to get rid of him by raising alarm. The prosecutrix further alleged that the Appellant Badruddin Mian then gagged her mouth with the help of his towel, pushed her on the earth and committed rape and then fled away. She anyhow came to the place where her father was fishing and fell down on the earth unconscious. She regained her senses after about half an hour and then she narrated the occurrence to her father in presence of the villagers. The occurrence took place at about 2.30 p.m. and on Information, her mother also arrived there or the bank of river to whom also she narrated the occurrence. She was then taken to home and from there to the Police Station on a cot where her statement was recorded. Tundi Police registered Tundi P.S. Case No. 48 of 1985 for the alleged offence under Section 376 of the Indian Penal Code against Badruddin Mian. She was medically examined by P.W. 10 Dr. Rita Gupta and during examination her age was determined as 14 years on the alleged date of occurrence. The police after investigation submitted charge -sheet under Section 376 of the Indian Penal Code against the Appellant, who was put on trial after framing of charge. The defence of the Appellant was of false implication on account of an incident that a day prior to the alleged occurrence there was altercation between the father of the victim and the father of the Appellant and at that time the father of the victim had threatened to implicate the accused in a false case. Altogether 10 witnesses were produced and examined on behalf of the prosecution and a formal witness D.W. 1 Hardayal Prasad Sao was examined on behalf of the defence, who proved the station diary entry No. 397, based upon the written information of Piru Mian i.e. the father of the accused -Appellant, received at the Police Station on 18.06.1985 at about 1.00 p.m. with respect to the alleged altercation, which took place on 17.06.1985. P.W. 1 Sheolal Hazra and P.W. 2 Kali Charan Mandal were unfavourable to the prosecution and hence they were declared hostile. Nothing material could be elicited from their evidence. P.W. 3 Rajan Kamar is the father of the victim, who categorically supported the prosecution case and the statement of his daughter Pewasi Kamarin. P.W. 4 Durjan Kamar, P.W. 5 Budda Kamar, P.W. 6 Ramesar Kamar were the uncles of the prosecutrix who have corroborated the prosecution case. P.W. 7 Pumi Kamarin was the mother and P.W. 8 Pewasi Kamarin was the prosecutrix. P.W. 9 had investigated the case and P.W. 10 Dr. Rita Gupta had medically examined the prosecutrix. Besides, the prosecution has proved the Fard Bayan of the prosecutrix Ext. 1. Signatures of the witnesses Kali Charan Mandal and Sheolal Hazra thereon Ext. 2 and 2/1 respectively. The production -cum -seizure list of the undergarments of the girl was proved and marked Ext.3 whereas injury report of the victim was proved Ext. 4.
(3.) P .W. 3 Rajan Kamar is the father of the prosecutrix. He testified that the occurrence took place some 4 1/2 years ago. He had been to the river side at about 1.30 p.m. along with Durjan Kamar, Kali Charan Mandal and Ramesar Kamar etc. for fishing. His daughter Pewasi Kamarin carried food for him but he asked her to return back, as he had almost completed fishing and was about to return back and expressed that ha would take his food at the home. She than proceeded but returned back almost running to his utter surprise and simultaneously he witnessed the accused (Appellant) running away from that place. His daughter apprised that the accused Badruddin Mian to whom he identified in the dock had sexually assaulted her. She was taken to home and from there to Tundi Police Station on a (sic) as she was suffering pain in movement. She was sent to Dhanbad for medical check up from the Police Station. Her Sari and Petticoat was collected by the police: He identified the Appellant in the dock. In the cross -examination, the witness admitted that several co -villagers were there at the rivulet including the father of the Appellant engaged in fishing. The rivulet was situated at the distance of about 11/2 miles from his village. He further admitted that the accused was his co -villager and the occurrence took place by the side of the foot path which led to Khudin river from the village. He denied the suggestion that on account of previous enmity as his cattle had grazed the field of the Appellant, he instituted the false case against him. The witness explained that the tiffin containing his food had fallen at the place of occurrence and his daughter had returned back without collecting the tiffin but later on it was collected and brought to his home. He further testified that his daughter became unconscious at the river side and gained her senses after about half an hour on the bank of Khudin river. Her mother came there later on and took her to home. The victim narrated the occurrence on the bank of Khudin river itself. The village Mukhia was informed about the occurrence but he did not come. The police arrived at the village after about a day or two of the occurrence to whom the place of occurrence was shown. The place of occurrence was surrounded by bushes and trees. She could not say as to on which part of her body she had sustained injuries. There were blood shins in her Sari and that Sari was delivered to the police at the Police Station, The witness testified that it took six hours to reach at the Police Station but he could not say the distance, however, he explained that he had to cross the hillocks on foot while coming to Police Station.;