- (1.) Heard the learned counsel for the appellants and learned counsel for the State
(2.) The instant appeal is directed against the judgment of conviction dated 8.5.2009 and sentence dated 12.5.2009 passed by Sri Vijay Shankar Singh, 13th Additional Sessions Judge, Dhanbad in Sessions Trial No. 322 of 2008 by which judgment he found both the appellants guilty u/S. 376(2)(g) of the I.P.C. and sentenced them to undergo R.I. for 10 years and also to pay a fine of Rs. 1000/ - and in default to undergo R.I. for 3 months. They have also been convicted u/S. 342 of the I.P.C. and sentenced to undergo R.I. for 1 year. Both the sentences were directed to run concurrently.
(3.) It is submitted by learned counsel for the appellants that during course of trial, although 9 witnesses have been examined, but except the prosecutrix, RW.5 Sandhya Devi alias Geeta Devi-informant/victim, nobody supported the prosecution case and even Geeta Devi has very specifically stated in court that these two appellants, Anil Goswami and Ashok Rawani, who are present in the court have not committed rape upon her and she had named them on the basis of the name given by the villagers, who had caught hold of one of the person named as Anil Goswami and they also stated about the other persons who ran away named as Ashok Rawani. Independent witnesses are the villagers who had caught hold of appellant, Anil Goswami on the spot have not been brought by the prosecution. In that view of the matter,in the absence of independent witnesses, who caught hold of the accused, conviction of the appellants in absence of any such evidence and only on the basis of the statement of the victim made u/s 164 Cr.RC before the Magistrate is bad in law and fit to be set aside.;