D.K.SINHA, J. - (1.) THE appellants have preferred this Cr. Appeal against the judgment of conviction under Sections 366 and 376 I.P.C. and order of sentence passed against them awarding rigorous imprisonment for 7 years and 10 years respectively on each count by Shri S. Prasad, learned Sessions Judge, Godda in Sessions Case No. 36/1999. Both the sentences were directed to run concurrently.
(2.) THE prosecution story is in narrow compass. The informant Anti Mandal (P.W. 5) delivered his statement before the Pathargama Police Station on 14.2.99 with respect to the occurrence that on 7.2.1999 at about 4 p.m. his daughter -in -law Rita Devi P.W. 6, had been to the grazing grounds with the she -goats but she did not return in the night and could not be traced. The informant presumed that his daughter -in -law might have gone to her parental home. It was conspicuous that the appellants were also absent from the village since then. On 11.2.99 the appellants returned back to their village and on interrogation the informant gathered that the appellant Jai Krishna Mandal and one Shankar Singh of Village Gangta had kidnapped Rita Devi and she was confined in the village Maheshadih within the District of Banka. The appellants Jai Krishna Mandal and Munna Das appellants then were apprehended and confined in a school and thereafter the informant filed a written report giving rise to Godda(M) PS. Case No. 65/99 for the offence under Section 366A/34 I.P.C. against three accused persons including the appellants. The police after investigation submitted charge -sheet against the appellants showing the another accused Shankar Singh absconder. The informant Rita Devi was rescued in course of investigation and on the basis of her statement recorded under Section 164 Cr.P.C. the offence under Section 376 I.P. C. was introduced besides under Section 366 I.P.C. Mr. Jai Prakash Jha, learned Senior Counsel appearing on behalf of the appellants submitted that in the instant case the Investigating Officer was not examined on behalf of the prosecution and non -examination of I.O. has deprived the appellants to cross -examine him on the factum of recovery of Rita Devi and in this manner the appellants have been highly prejudiced. He further pointed out that the statements of the witnesses produced on behalf of the prosecution suffered from inherent contradiction and certain developments were made by them against what they had stated before the police in course of investigation under Section 161 Cr.P.C. The important witness such as one Dipu in whose house it was alleged that the victim Rita Devi took shelter at Pathargama was not produced in the witness box on behalf of prosecution. It was an admitted fact, as accepted by the witnesses that there was enmity prevailing between the parties much prior to the alleged occurrence. Mr. Jha further submitted that the learned Sessions Judge perhaps lost sight of the narration of the fact by the victim that she was taken from one village to another within the view of the public at large but at no point of time she ever tried to attract the attention of the by -passers or the villagers for her rescue or she did not try to run away from the clutches of the appellants. Mr. Jha pointed out that the victim P.W. 6 admitted that she was within the control of the accused Shankar Singh till 14.2.1999 and in this manner though she had given clean chit to the appellants but the latter have been convicted and sentenced she admitted that she was wearing the same dress i.e. in the same blouse, petticoat & sari for 5 days and in spite of the allegation of commission of rape on her no stain of semen on her garment was found, in the backdrop of the allegation that she was gang raped by three persons including the appellants for 5 consecutive days. The Doctor ruled out the possibility of forced sex with her and in this manner the conviction and sentence passed against the appellants is illegal and bad in law which is fit to be set aside.
(3.) FINALLY Mr. Jha submitted that the witnesses produced on behalf of the prosecution said to be the material witnesses are none but the near relatives of the informant who are highly interested and inimical to the appellants and therefore, the evidence of such witnesses were no scrutinized by the trial court in its right perspective.;