RONGON MUKHOPADHYAY, J. - (1.) THIS appeal is directed against the judgment of conviction and order of sentence dated 31.08.2001 and 01.09.2001 respectively, passed by Sri Vikramaditya Prasad, learned Sessions Judge, Hazaribagh in S.T. No. 110 of 2001 ( Sadar (M) P.S. Case No. 164/2000, whereby and whereunder the appellants have been convicted for the offences punishable under Section 376/511/34,452 and 323/34 of the Indian Penal Code and have been sentenced to undergo 3 years and 6 months rigorous imprisonment for the offence under section 376/511 /34 of the Indian Penal Code, 3 years rigorous imprisonment for the offence under Section 452 of the Indian Penal Code and 6 months simple imprisonment for the offence under section 323/34 of the Indian Penal Code as also to pay a fine of Rs.1,000/ - for the offence under Sections 376/511/34 of the Indian Penal Code and in default of payment of fine to undergo 3 months rigorous imprisonment and all the sentences are to run concurrently. During pendency of the appeal, appellant no. 2 -Vidya Sagar Gope died in the year 2002 and as such the appeal preferred by him had already abated under Section 394 of the Code of Criminal Procedure and the present appeal is being pursued by the appellant nos. 1 and appellant no. 3.
(2.) THE prosecution story as would appear from the fardbeyan given by the prosecutrix (P.W -1) on 7.5.2000 at about 5 P.M. is that when the informant was returning to her house after having bath, accused no. 1 (A/1) entered by scaling over the wall and attempted to catch hold of her. It has been alleged that the informant started running but A/1 caught hold of her hair and she fell down on her back. It has further been alleged that A/1 opened his 'lungi' and on alarm having been raised by the informant, her sister Makdali Hembram came and started pelting stones. Accused nos. 2 and 3 ( A/2 and A/3) have caught hold the hands of sister of the informant, on which she also raised alarm and on hearing cry, the father of the informant came but A/1 threw him on the ground and started pressing his neck. Based on the aforesaid allegations, Sadar (M) P.S. Case No. 164 of 2000, corresponding to G.R. No. 862 of 2000 was instituted against the three accused persons, all of whom are appellants in the present case.
(3.) AFTER registration of the case, the investigation commenced and after finding the case to be true, chargesheet was submitted against all the accused persons and after cognizance was taken the case was committed to the court of Sessions by Shri M.K. Sinha, learned Judicial Magistrate, 1st class, Hazaribagh. Charge was framed against the accused persons for the offences punishable under Sections 376/511/34,450/323/34 of the Indian Penal Code and all the accused persons pleaded not guilty and claimed to be tried. The prosecution in support of its case examined seven witnesses. P.W -1 -Suchita Hemrom is the prosecutrix of the present case and she had stated in course of deposition that when she came back after having bath, A/1 entered by scaling over the boundary wall and started chasing her. She was pulled by her hair and when she fell down on her back, A/1 climbed over her and after opening his 'lungi' tried to force himself upon her. She had stated that when he was prevented, A/1 started assaulting her and he pulled her 'kurta' and on hearing her cry of alarm, her sister -Makdali Hembram ( P.W -2) came to the place of occurrence. Makdali Hembram (P.W -2) was caught by Khem Lal Gope, A/3 and Vidya Sagar Gope, A/2 and when their father came to their rescue, A/1 threw her on the ground and started assaulting him, whereas A/3 also started assaulting upon her father and A/2 caught hold of her sister. It has also been stated by this witness that she ran out to telephone the police and her father went to the police station to lodge a report but he was stopped midway by the accused persons and was warned of dire consequences if the matter is reported to the police. She had further deposed that she and her sister went to Saint Stannislas College and phoned the police from there. The police asked them to stay in the college but instead the police went to their house and on the subsequent day, the case was instituted. In her cross -examination, she has stated that none of the neighbours had come to her place at the time of incident. P.W -2 -Makdali Hembram is the sister of the prosecutrix and she has stated in her deposition that she was studying when she heard the sound of her sister and when she went to the place of occurrence, she saw Robinson Barla, A/1, on top of her sister and was trying to forcibly commit rape upon her. On failure, her sister was assaulted, whereas A/2 and A/3 had caught hold of her. When she tried to intervene and assist her sister in saving her from the clutches of the accused persons, she had stated that A/3 in course of her intervention had kicked her and when her father came to the place of occurrence, he was also assaulted by A/1 and A/3. It has also been deposed by this witness that after the incident, her sister had gone to the Father of Saint Stannislas College for consultation. It has also been stated by her that when the father of this witness was going to the police station, he was stopped by A/1 and A/3, who had threatened him. She also went to Saint Stannislas College, from where the local police was telephoned and the next day police called for lodging an FIR. In her cross -examination, this witness has stated that the place where she saw her sister, was outside the boundary. She had also stated that even though the occurrence had taken place for one hour, but no one had come to their rescue even on raising alarm. P.W -3 -Father John Minz has deposed that P.W -1 and P.W -2 had come to his place on 7th May, 2000 at about 6.30 P.M. and P.W -1 had stated that she was misbehaved with and she wanted to phone the police. This witness has also stated that P.W -1 had named A/1, A/ 2 and A/3 as the persons who had misbehaved with her. P.W -1 had also told him that A/1 had thrown her in the plot situated between her house and A/1's house. She had further stated before this witness that P.W -2 and her father were assaulted by the accused persons when they tried to save her. In his cross -examination, this witness has admitted that he is not an eye witness and he came to know P.W -1 for the first time when P.W -1 had approached him. P.W -4 -Lucas Hembrom is the father of P.W -1 and 2 and this witness in his deposition has stated that on alarm raised by P.W -2, he reached the place of occurrence where he saw A/1 on top of P.W -1 and A/2 and A/3 were also present there. When he tried to intervene he was assaulted by A/1 and A/3. This witness has also stated that when he was going to the police station on the threatenings given by the accused persons, he returned back and on the same day, police had come at about 7.30 P.M. In cross -examination, this witness has stated that there are several houses in the locality but no one had come after the incident. He has further stated that on the northern side of the open plot, there is a road which is frequented by the locals. He has also stated in his cross examination that the place where P.W -1 had fallen, it was about 10 degs from the road. P.W -5 -Simon Munda has denied to have any knowledge about the occurrence. P.W -6 -Dr. Suresh Kumar had examined P.W -1 who had complained of pain and on examination he had opined that the injuries are simple caused by hard and blunt substance. P.W -7 -Venkatesh Kumar is the Investigating Officer, who has stated in his evidence that the place of occurrence is situated at Sitagarha behind open space, which is bounded by boundary wall, 3ft in height and there is a well situated and beside the well, there is a bathroom, from where P.W -1 was getting out when she was caught by A/1. In his cross -examination, this witness has stated that there are several houses situated near the place of occurrence. He has also stated that P.W -1, P.W -2 and P.W -4 had never disclosed to him about the incident, the subsequent assault and threatenings. P.W -1 had stated that A/1 had thrown her but she had never disclosed to this witness that he had mounted her. ;