D.N.UPADHYAY, J. - (1.) THIS Criminal Appeal has been directed against the Judgement dated 24.02.2004 and order of conviction dated 28.02.2004 passed by A.J.C. (F.T.C. No. VIII), Ranchi in Sessions Trial No. 624 of 2002/Trial No. 81 of 2003 whereby the appellant has been held guilty for the offence punishable under Section 376 of the Indian Penal Code and he has been sentenced to undergo R.I. for seven years and further to pay fine of Rs.10,000/ - and in default of making payment of fine further R.I. for one year. It is also directed that if the fine amount is realised, Rs.5,000/ - may be paid to the prosecutrix by way of compensation.
(2.) THE prosecution case in brief is that on 13.09.2001 the informant lodged written report addressing to the Officer Incharge, Kanke Police Station alleging therein that she fell in love with the appellant/ accused while they were studying in a school and the accused after assuring her to marry established sexual relation since the year 1997. It is further alleged that the accused was also hurling threat to spoil career and reputation of the informant due to that she did not report the incident to her parent. On 22.08.2001, the informant was taken by the accused to maize field belonging to Moti Mahto where she was subjected to rape. After commission of rape, accused Deepak Mahto threatened her not to disclose the incident to anyone otherwise she will have to face the consequence. Considering the threat and the promise given by the accused that he would marry her, she did not report the incident. On the basis of written report lodged by the prosecutrix, Ranchi Kanke Police Station Case No. 81/2001, dated 13.08.2001 under Section 376 IPC was registered against accused Deepak Mahto (appellant). After due investigation, chargesheet was submitted, the case was committed to the Court of Sessions and charge was framed on 13.01.2003. Since the accused had not pleaded his guilty, he was put on trial. Prosecution has examined altogether 13 witnesses including the Investigating Officer (P.W. -9), Dr. Ragini Minz (P.W. -11), the prosecutrix/informant (P.W. -4), father, uncle and mother of the prosecutrix (P.Ws. -1,2 and 3 respectively). The written report, formal F.I.R. and medical reports have been marked exhibits. In course of trial, the prosecution has produced love letters allegedly written by the accused which have also been marked exhibits. The appellant has also proved order dated 13.09.2001, passed in Complaint Case No. 629/2001 in order to show that he had lodged a complaint case against Suresh Mahto and others. On the basis of evidence and documents, learned Additional Judicial Commissioner (F.T.C. -VIII), Ranchi held the appellant guilty and hence this appeal.
(3.) APPELLANT has assailed the impugned Judgement on the ground that the prosecutrix was a consenting party and she was also enjoying sexual relations. There is inordinate delay in lodging the F.I.R. No explanation regarding delay was extended by the informant in her written statement. Dineshwar Mahto (P.W. -1), Sumeshwar Mahto (P.W. -2), Lalo Devi (P.W. -3) father, uncle and mother of the prosecutrix respectively. have given a different story in their deposition in Court. According to deposition of these witnesses, on 22.08.2001, Deepak Kumar (appellant) had taken the prosecutrix to the maize field of Moti Lal where she was subjected to rape. The occurrence was witnessed by Bablu and Suresh who caught hold of Deepak (appellant) and assaulted him by means of fist and slaps. The people assembled at the place had learnt about the incident. A Panchayati was held in which the appellant was requested to marry the prosecutrix but he refused and thereafter the matter was reported to the Police and this was the reason behind the delay in lodging the F.I.R. These witnesses have gone to the extent of saying that the accused was caught at the spot and he was brought to the shop of one Bittu where the people had assembled. It was submitted that Babloo and Suresh have not been examined to support the contention made by P.Ws. -1, 2 and 3. No villagers except the family members of the prosecutrix have come forward to support the prosecution case as made out by father of the prosecutrix. The Investigating Officer did not find any incriminating articles at the place of occurrence. Dr. Ragini Minz (P.W. -11) has proved the medical report as Ext. -5/1. According to opinion of the Doctor, no positive evidence of rape was found at the time of examination of the victim. No dead or alive spermatazoa was found in the examination of vaginal swab. According to Ext. -5/1, age of the prosecutrix was assessed between 15 to 17 years. It was contended that age assessed on the higher side should be considered and if it is done so, the prosecutrix was above the age of 16 years and she was a consenting party and, therefore, no offence under Section 376 IPC is made out.;