- (1.) THIS appeal is directed against the judgment of conviction dated 31.05.2005 and order of sentence dated 02.06.2005 passed by the then Additional Sessions Judge, Fast Track Court -VI, Hazaribag in S.T. No. 275 of 1998 whereby and whereunder the court having found the appellant guilty for kidnapping the victim and then committing gang rape upon her convicted them for the offence punishable under Sections 366 and 376 (2 - g) of the Indian Penal Code and sentenced them to undergo imprisonment for life for the offence punishable under Section 376 (2 -g) and further for ten years for the offence punishable under Section 366 of the Indian Penal Code.
(2.) THE case of the prosecution as it appears from the fardbeyan of the informant - Suresh Bhuiya (P.W. -3) is that the informant along with his family members were residing in C.C.L quarter at Bhurkunda. On 03.03.1998 at about 9.00 a.m his sister aged about 15 years, went to collect cow dung towards Sangam Dumping Yard. When she did not return home then the informant and other family members started searching her. In that course they went to Sangam Dumping Yard but did not find any clue. Meanwhile, the appellant -Prakash Bhuiya residing in the neighbourhood was found missing from his house and thereby they suspected the hand of the appellant - Prakash Bhuiya in the commission of offence of kidnapping. After getting some clue the informant - Suresh Bhuiya (P.W. -3) came to Dumri in the night along with Dugun Bhuiya (P.W. -7) and Jagdish Bhuiya (P.W. -6) but they did not find the victim. Thereafter, they came to village Sudna in the next morning at 7.00 a.m and found the accused Prakash Bhuiya and his sister present in the house of Ramdeo Bhuiya (Mousa of the appellant -Prakash Bhuiya). There the victim (sister of the informant) told them that when she was picking cow dung near dumping area, all the three appellants suddenly came over there and then forcibly took her towards river where they administered some toxic substance to her, from where they took a tracker and came to Ramgarh, from where she was taken to Daltonganj and ultimately to village Sudna. It was disclosed by the victim that the appellant Rakesh Bhuiya and Md. Ashphque @ Babua had returned from Ramgarh itself and only the appellant Prakash Bhuiya had brought her to village Sudna where appellant -Prakash Bhuiya had committed rape on her. On that day i.e. 04.03.1998, the informant as well as P.Ws. 6 and 7 stayed back in the night. On 05.03.1998 they returned home along with the victim but, the informant did not go there to lodge the case. Only on 08.03.1998, the informant came to Bhurkunda police station along with victim and gave his fardbeyan, upon which a case was registered under Section 366 and 376 of the Indian Penal Code against all the appellants. On the basis of fardbeyan a formal F.I.R was drawn. The matter was taken for investigation by the I.O -Mehndi Hasan (not examined). During investigation, the I.O got the victim examined by Dr. Prakash Kumar Bisa -P.W. -5 on 08.03.1998, who did not find any evidence of administration of any intoxication nor did find any sign of victim being raped. To that effect, he issued injury report (Exhibit -1/1). After two days, the I.O again got the victim examined by Dr. Kalpana Saran -P.W. -4, a Civil Assistant Surgeon, who after examining victim also did not find any sign of rape nor she did find any mark of violence on the person of the victim, however, the hymen was found torned but, it was old. She also determined the age of the victim on the basis of the ossification test and found the age of the victim as seventeen years. The I.O during investigation, got the statement of the victim recorded by P.W. -8 under Section 164 of the Cr.P.C., after 20 days of the lodgment of the case where she stated that while she had gone to Sangam Dumping Yard for collecting cow dung, all the appellants came over there suddenly and forcibly took her towards river side where all the three persons committed rape upon her. Thereupon, all the three persons took her to village Sudna to the house of Mousa of appellant no.1, where all the three appellants committed rape upon her. Further, she has stated that when her brother Suresh Bhuiya -P.W. -3 came to village Sudna along with P.Ws. -6 and 7, they did find only Prakash Bhuiya present in the house as the other two appellants had already left the place. The I.O. also recorded the statement of father of the victim as well as P.W. -6 and P.W. -7, who had accompanied Suresh Bhuiya -P.W. -3 to village Sudna.
(3.) ON completion of the investigation, charge sheet was submitted upon which cognizance of the offence punishable under Section 366 and 376 of the I.P.C. was taken against the appellants. When the case was committed to the court of Sessions, charge was framed under Section 366 of the Indian Penal Code. However, subsequently charge was framed also under Section 376 and then later on charge was also framed under Section 376 (2 g) of the Indian Penal Code. During trial, the prosecution examined altogether eight witnesses. Of them, P.W. -3 is the informant (brother of the victim), P.W. - 1 -Bigan Bhuiya is the father whereas P.W. -2 is the victim. According to the victim, while she had gone to collect cow dung, all the appellants came there and caught hold of her and forcibly took her at the river side where they committed rape and then all the three appellants took her to village Sudna where all the appellants committed rape upon her. Similar is the testimony of the informant -P.W. -3, though in his fardbeyan, he had never alleged that all the three appellants had committed rape upon her rather he had made statement that only Prakash Bhuiya had committed rape upon her. P.W. -6 - Jagdish Bhuiya and P.W. -7 -Dagun Bhuiya are the persons who had accompanied P.W. -3 to village Sudna where they found the victim girl in the company of the appellant Prakash Bhuiya. According to P.W. -6, when they reached village Sudna and met with the victim the victim told that she had come to that place willingly in company of Prakash Bhuiya as she wanted to marry him but, father and mother were objecting it.;