AMARESHWAR SAHAY, J. - (1.) THE appellant was charged under Sec.376, I.P.C. for committing rape on Sakunwa Devi on 23rd September, 1993. He was further charged under Sec.354 and 323, I.P.C. for outraging the modesty of Chamelwa Devi and also has voluntarily caused hurt to her. However, the trial Court convicted the appellant, under Sec.376/511, I.P.C. and sentenced him to undergo R.I. for 10 years. He was further convicted under Sections 354 and 323, I.P.C. and was sentenced to undergo R.I. for 1 year under Sec.354, I.P.C. and 6 months under Sec.323, I.P.C. All the sentences were ordered to run concurrently.
(2.) THE prosecution case, as stated in the Fard Beyan of Chamelwa Devi -P.W.4, is that on 19 -9 - 1993, while she was going to her house, Sumitri Devi (P.W. 1) stopped her on the way and informed her that at about 9 a.m., while she (Sumitri Devi) was washing her mouth, she saw Babulal Sao (appellant) committing rape on her daughter Sukawa Kumari, aged about 5 years, and when she (Sumitri Devi) raised Halla then Babulal Sao fled away. The further case of the prosecution is that when the informant went to interrogate the appellant, at that time he was not available. On 23 -9 -1993 in the morning when she interrogated the appellant, she was assaulted by the appellant by means of "Danta" and he molested her breast. On her alarm Rani Devi -P.W.2, her husband Pyare Gope and others came to the place of the occurrence. To establish the charges altogether by witnesses were examined on behalf of the prosecution, but of whom 'P.W. 5 and P.W. 6 were tendered. P.W.4 is the informant. P.W.5 is the husband of the informant and P.W. 7 is the victim girl whereas P.W. 1 and P.W. 2 are the witnesses who according to the prosecution, informed the informant about commission of rape by the appellant.
(3.) MR . Dayal, learned counsel appearing for the appellant has vehemently argued that the charges framed against the appellant are wholly defective as there is no charge to the effect that the appellant either tried to commit rape or committed rape on the victim on 19 -9 -1993. Rather the charge framed was for committing the said offence on 23 -9 - 1993, which is not the prosecution case at all, and, therefore, on this ground alone the whole trial is vitiated. Learned counsel for the appellant next submitted that even while recording the statement of the appellant under Section 313, Cr.P.C., no date of occurrence has been put to the accused for the alleged commission of crime. He further submitted that according to the informant, she was assaulted by the appellant by means of a "Danta" and she was examined by a Doctor, but neither the injury report has been brought on record nor the Doctor, who treated the informant, has been examined as a witness in this case. The learned counsel of the appellant has cited a decision of Patna High Court reported in (1992 (2) PLJR (154) in the case of Samad Mian alias Md. Samad V/s. State of Bihar in support of his contention.;