- (1.) Both these appeals arise out of the judgment dated 16th August, 2004 passed by Shri S.K. Sinha 1st Additional Sessions Judge-cum- Special Judge, Godda in S.C. Case No. 04 of 2002 convicting the appellants under Sections 376/34 LEG. and 3/4 of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 and sentencing them to undergo R.I. for life. The prosecution case in short is that the Complaint Petition was filed on 29.05.2000 alleging that at about 12 O'clock the complainant and others were picking cow dung when the appellants and one Md. Khalil committed gang rape. Other witnesses saw the occurrence and raised alarm upon which some other witnesses rushed and then the accused persons fled away. The witnesses brought the informant to her house. Her husband was not there. When her husband returned, the occurrence was narrated to him. The informant went to the Police Station along with her husband. As the accused persons were members of 'Raksha Bahini', the police in collusion with them did not register the case. The informant alleged that she is a scheduled caste and therefore, the accused persons committed offence under the S.C. & S.T. Atrocities Act also. The complainant also alleged that her medical examination was essential.
(2.) Learned C.J.M. sent the complaint under Section 156 (3) Cr.P.C. to the Police with direction to institute and investigate the case. The case was registered on 20.06.2000 and formal F.I.R. was drawn. The I.O. pending investigation submitted charge-sheet against the appellants against whom cognizance was taken and the trial proceeded before the Special Court.
(3.) The prosecution examined six witnesses. PW. 6 is a formal witness. PW. 1, 4 & 5 reached at the place of alleged occurrence after the alleged occurrence. PW 3 is the informant and PW. 2 is the only eye witness projected by the prosecution. The conviction is based mainly on the statement of PW 2 & 3 but there are vital contradictions in their evidences. It is not possible to believe that PW. 2 is an eye witness. There is nothing to show that she was threatened or restrained by the appellants. In such circumstances, she could raise alarm or could resist the accused persons or could try to save the informant but she simply witnessed the rape from some distance. The evidence of PW 3 and the defence witness indicate that there were some dispute between the parties. Therefore, the chance of false implication cannot be ruled out. No medical evidence has been brought on record by the prosecution. The Investigating Officer has not been examined which has caused serious prejudice to the defence case.;