D.G.R.PATNAIK, J. - (1.) APPELLANT Mabin Mian @ Mabin Ansari was charged with and tried for the offence under sections 366 and 376 of the Indian Penal Code and convicted for the offence under section 366 of the Indian Penal Code and sentenced to undergo R.I. for five (5) years by the additional Sessions Judge, Fast Track Court No. III, Gumla. The case was registered at the police station on the basis of the F.I.R. lodged by the prosecutrix (PW 3) on 30.1.1986. Brief facts of the case is that in the morning of the same day i.e. 30.1.1986, prosecutrix alongwith her father Ram Bilash Bharti came from her village to Chainpur market for purchasing provisions. When on their return journey, they missed the bus, her father went in search of conveyance leaving her alone at the Chainpur -Gumla bus stand. Meanwhile, a boy who had on a previous occasion met her at the same market and had introduced himself as a Brahmin boy hailing from a rich family and proposed to marry her, had met her again and after asking her as to why she was standing at the bus stand alone, he offered assistance for providing conveyance and took her alongwith him to a lonely place and again declared that he intends to marry her. At that time, an unknown boy came there and called out the companion of the present appellant by his name Mobin Mian with a passing comment that he had trapped a cute girl. The prosecutrix adds that on being called upon by his name, she could learn that the boy, who had earlier introduced himself as a Brahmin boy, was in fact a Muslim and having realized that he had taken her alongwith him on false pretext, she ran away towards the roadside where she met a policeman, to whom she narrated the entire story. She was brought by the policeman to the police station where she met her father: On the statements of the lady, the case was initially registered for the offence under sections 363 and 366 of the Indian Penal Code. In course of investigation, statement of the prosecutrix was recorded under section 164 Cr.P.C. and the accused/appellant Mobin Mian was put on T.I.P., in course of which, he was identified by the prosecutrix. After concluding the investigation, the investigating officer submitted charge -sheet for the aforesaid offences recommending trial of the accused/appellant. Charge for the offence under section 366 of the Indian Penal Code was framed against the appellant on 18.7.1990. At the trial, prosecutrix was examined as PW 3 on 25.3.1991. Later, a fresh charge for the offence under section 376 of the Indian Penal Code was framed against the accused/appellant on 6.1.1993. -
(2.) APPELLANT had pleaded not guilty to the charge, claiming false implication. At the trial, prosecution had examined altogether seven witnesses including the prosecutrix (PW 3), her father Ram Bilash Bharti (PW 2), the doctor (PW 1) who had medically examined the prosecutrix and the Judicial Magistrate (PW 5) who had recorded the statement of the prosecutrix under section 164 Cr.P.C. and had also conducted the T.I.P. of the accused.
(3.) LEARNED trial court on considering the evidences on record, convicted the accused for the offence under section 366 of the Indian Penal Code, but acquitted him for the offence under section 376 of the Indian Penal Code in absence of sufficient evidence. Learned trial court has observed that the evidence relating to the offence under section 376 of the Indian Penal Code, as appearing in the statement of the prosecutrix (PW 3), cannot be considered on account of the fact that subsequent to the framing of the charge for the said offence, the prosecutrix was not produced by the prosecution for her cross -examination. Learned trial court further relied upon the statement of the prosecutrix and that of her father (PW 2) for recording its finding of guilt against the accused/appellant for the offence under section 366 of the Indian Penal Code.;