- (1.) By Court. This appeal is directed against the impugned judgment of conviction and sentence passed on 12/15 th October, 2001 by Sri Pradeep Kumar, Sessions Judge, Garhwa in Sessions Trial No. 467 of 1998, whereby the appellant Krishna Prasad Modi has been found guilty for committing the offence under Sections 376 and 342 of the Indian Penal Code and, thereby, he has been sentenced to undergo R.I. for 10 years for the offence under Section 376 IPC. No separate sentence was passed under Section 342 IPC.
(2.) The prosecution case, in short, is that accused Sarswatia Devi took a loan of Rs. 2000/ for purchasing land from the appellant Krishna Prasad Modi, who was a Constable in Meral Police Station. In lieu thereof, she asked the Victim Bhukhali Devi (PW 5), who happened to be her daughter in law, to sleep with the appellant Krishna. When she refused, Sarswatia Devi threatened her. After about 8 days, Krishna again came to meet Sarswatia Devi at about 10 p.m. And started talking to her. Thereafter, Sarswatia Devi asked the victim to give water to him. When she refused, Sarswatia Devi insisted to give water to him and when she went near Krishna, he caught hold of her hand. She wanted to run away by getting herhand disengaged. She wanted to bite him on his hand but Sarswatia Devi caught hold her and put a cloth into her mouth. Thereafter, Sarswatia Devi and Krishna put her on a cot and tied her hands and legs with cot. While Sarswatia Devi kept her mouth closed with clothes, Krishna committed rape on her. When Krishna left her after committing rape, Sarswatia Devi untied her hands and legs. She wanted to meet villagers and tell the occurrence to them but Sarswatia Devi asked her to keep silence . She contacted the villagers and with their help, she came to the police station and gave the statements. The FIR was registered on 10/04/1998. On 11/04/1998, the statements of witnesses were recorded under Section 164 Cr.P.C. including the husband of the victim Mahendra Saw (PW 4).
(3.) Learned counsel for the appellant assailed the impugned judgment on various grounds. He submitted that the FIR was lodged after about 15 days and there is no explanation for such delay; and that the Doctor opined that it was difficult to say as to whether the victim was raped or not; and that PW 4 the husband of the victim, turned hostile; and that in any event, the appellant has remained in jail custody for about five years and five months and, therefore, at least the sentence may be reduced to the period already undergone.;