- (1.) This appeal is directed against the judgment of conviction dated 27th August, 2002 and order of sentence dated 29th August 2002 passed by Sri Anant Kumar Singh, Additional Sessions Judge (F.T.C.-I), Hazaribagh in Sessions Trial Case No. 108 of 1988, by which judgment he found the Appellant guilty under Sections 376 and 450 of the Indian Penal Code and sentenced him to undergo R. I. for 7 years under Section 376 of the Indian Penal Code and R.I. for 5 years under Section 450 of the Indian Penal Code. He directed both the sentences shall run concurrently.
(2.) It is submitted by the learned Counsel for the Appellant that it will appear from the F.I.R. that the date of occurrence is 14-8-85, but the matter was reported to the police on 31-8-85. Moreover even when the matter was reported to the police on 31-8-85 the same was sent to Court on 1-9-85 and it was received in Court on 2-9-85 and as such there is a delay in sending the F.I.R for which there is no explanation. Moreover, again there is delay in sending the report to the Chief Judicial Magistrate when the Court is only at a distance of 1 kilometer from the police station. Learned Counsel for the Appellant has relied on a judgment of this Court reported in Cri. Appeal No. 154 of 2000 wherein it has been held on the basis of a Division Bench Judgment, the delay of 2 days in sending the F.I.R. which provides a legitimate basis for suspecting that the F.I.R. was recorded much later than the stated date and as such the entire prosecution is doubtful and not fit for acceptance. Learned Counsel for the Appellant has further submitted that the informant, Sushmita Munshi lives with her mother and sister in a rented house where landlord and other tenants also resides, but none of the neighbouring witnesses have supported the prosecution case. They were examined as defence witnesses and they have stated that no such occurrence took place. In that view of the matter, the prosecution case is doubtful and the judgment of conviction and sentence is fit to be set aside.
(3.) On the other hand, learned Counsel for the State has opposed the prayer and submitted that it will appear from the evidence of the prosecutrix as also her mother and her sister that the Appellant has committed rape upon the prosecutrix and as such the entire prosecution story is well founded and the finding of conviction and sentence requires no interference by this Court.;