D.N.PATEL, J. - (1.) THE present appeal has been preferred by the appellant accused against the judgment of conviction dated 16th September, 2005 and order of sentence dated 17th September, 2005 passed by the learned Additional Sessions Judge, at Ghatsila in Sessions Trial Case No.116 of 2001, whereby the present appellant -accused has been punished for an offence under Section 376 of the India Penal Code and sentenced for rigorous imprisonment for fifteen years for committing rape upon the prosecutrix (PW.4).
(2.) IT is case of the prosecution that on 25th November, 2000 at about 17.30 hours, the informant Basanti Mahatian (PW.2) lodged a First Information Report that on 25th November, 2000 at about 8.00 a.m. stating therein that the informant had gone to work in Kulgora brick klin and her husband had also gone to work at Jamshedpur. Her daughter is seven years old. It is further alleged by the informant that when she returned to her house after work at about 12.00 noon from Kulgora brick klin, she heard cry of her daughter who is prosecutrix (PW.4). Upon hearing cry of her daughter, when the informant immediately entered the house, she saw that her daughter was lying on the ground and the accused Ganesh Mahto is lying over her and was committing rape upon her daughter. Her daughter was crying. After seeing the informant, the accused Ganesh Mahto fled away by jumping over the wall. Thereafter the informant found that the blood is coming out from private part of her daughter (PW.4). The informant raised alarm, villagers immediately rushed to the house. Thereafter, the First Information Report was lodged by the informant (PW.2). Upon lodging of the First Information Report, the investigation was carried out, statement of the witnesses were recorded and the statement of the prosecutrix under Section 164 of the Code of Criminal Procedure was also recorded by Sri Dhirendra Rai, Judicial Magistrate, 1st Class, Ghatsila (PW.6). Charge sheet was filed and the case was committed to the Court of Sessions being Sessions Trial Case No.116 of 2001 and on the basis of the deposition by the prosecution witnesses i.e. PW.1 to PW.7 and on the basis of the documents available on record, the learned trial Court has convicted the appellant for an offence punishable under section 376 of the Indian Penal Code and awarded sentence of rigorous imprisonment of fifteen years for committing rape upon the prosecutrix who is PW.4 aged about seven years as on date of incident. Against this judgment of conviction and order of sentence passed by the Additional Sessions Judge, Ghatsila in Sessions Trial Case No.116 of 2001 dated 16th/17th September, 2005, the present appeal has been preferred by the appellant. We have heard the learned counsel for the appellant who has mainly submitted that there are major omissions, contradictions and improvement in the depositions of the prosecution witnesses. There is no independent evidence given by any of the villagers, though it is stated by the informant that hearing the alarm raised by her, several villagers arrived at the spot. It is also contended by the learned counsel for the appellant that clothes of the prosecutrix though seized, but, not sent to Forensic Science Laboratory for getting report. No such report has been presented by the prosecution. Similarly, no medical examination of the accused was made by the prosecution, though he was arrested and presented before the trial Court on 27th November, 2000. Prosecutrix was also examined by two doctors, but no medical report has been presented by the prosecution and the counsel for the appellant has relied upon a decision rendered by Hon'ble Patna High Court in Allauddin Seikh Vs. State of Bihar reported in 2000(1) B.L.J.R. 386 especially upon paragraphs 6 to 9. On the basis of these arguments, it is submitted by the learned counsel for the appellant that the prosecution has failed to prove the offence of rape committed by the appellant beyond all reasonable doubts and, hence, the judgment of conviction and order of sentence passed by the learned trial Court deserves to be quashed and set aside.
(3.) WE have heard the learned A.P.P. appearing on behalf of the State who has vehemently submitted that the prosecution has proved the offence of committing rape by the appellant upon minor girl beyond all reasonable doubts. It is submitted by the A.P.P. that immediate is the F.I.R., the appellant was named in the F.I.R., the deposition of the prosecutrix (PW.4) is explicitly clear and without any exaggeration, omission, contradiction or improvement. Her deposition is also getting further corroboration by deposition of other prosecution witnesses i.e. PW.1, PW.2, PW.6 and PW.7. Their evidences have been properly appreciated by the learned trial Court and hence, this Court may not interfere with the judgment and order of conviction an sentence passed by the learned trial Court.;