D.K.Sinha, J. - (1.) The present appeal has been preferred by the sole appellant against the judgment of conviction under Section 376, IPC and order of sentence passed respectively on 18th and 19th November, 1997 whereby and whereunder the appellant was sentenced to undergo rigorous imprisonment for 10 years.
(2.) The prosecution story in brief is that the prosecutrix Mira Kumari delivered her statement before the Bundu Police at about 8.30 p.m. stating, inter alia, that she was aged about 10 years and on the same day while she was returning from the grocery shop of Akchhay Mahto after purchasing Biscuit, she came across the appellant Dilip Machhua who after delivering a Chocklet asked her to accompany him and took her away towards Manager Babu on the northern bank of the pond and laked her down from back side. She further narrated that the appellant terrorised that in case of raising alarm she would be thrown in the pond after killing her. When she could not resist out of fear, the appellant lowered down her pantee and committed some bad work (rape) on her. During commission of offence he kissed her and after commission she was let off. She returned back to her home and narrated the occurrence to her mother, father and maternal grandfather. Disclosing the identity of the appellant she narrated that the appellant was the driver of the vehicle of the landlord of the house where she with her parents and maternal grandfather were living on rent. The police registered Bundu P.S. case No. 48 of 1996 under Section 376, IPC and after investigation submitted charge-sheet against the appellant under the said offence.
(3.) Mr. A.N. Deo, the learned counsel appearing on behalf of the appellant submitted that the conviction as well as the sentence passed against the appellant is unsustainable only on the ground that the prosecution failed to prove the offence of rape against the appellant.;