- (1.) All these appeals, arise from common judgment and order, are directed against the judgment of conviction and order of sentence dated 16-2-2001 passed in Sessions Trial No.72 of 2000, whereby and whereunder the learned 3rd Additional Sessions Judge, Chaibasa held all the appellants guilty under Sections 366A and 376 IPC and convicted and sentenced them to undergo RI for ten years.
(2.) The brief facts leading to their conviction are that in the forenoon of 23-4-1999 Manju Sinku. daughter of the informant Bika Sinku, PW 5, left her house situated in Mauja Katepara, P. S. Jagannathpur, district West Singhbhum along with two minor relatives Tushu Mai and Lobga Mai for Karanjia Bazar and when they did not return in the evening, the informant thought that they might have stayed with their relations and waited for them. Next morning on 24-4-1999 one Ghanshyam Tape of village Amjora, Tola Chinisai came to his house and informed him that the girls were confined and raped by the above named convicts persons along with one unknown person outside the village. He further stated that he was informed regarding this incident by one Subodh Hessa of the same village. The informant along with Ghanshyam went in search of Subbodh Hessa, who could not be found but his wife, Sukhmati narrated about the incident that her husband has said that when he was coming back Tushu Mai has asked him to help her but he was prevented by the accused persons. The informant started searching the girls and the accused persons and ultimately in the morning of 26-4-1999 the matter was reported to Jagannathpur P.S. The police registered Jagannathpur P.S. Case No. 14/99 under Section 366A/376/34 IPC against all the accused persons and one unknown. In the meantime, the girls Tushu Mai and Lobga Mai were recovered by the police from the house of the convict Rajesh. The police further investigated the case and finally submitted chargesheet against all of them under Section 366A/376/34 IPC. The learned CJM took cognizance and the case was committed for trial by the Court of session. The trial Court framed charges against the appellants and further against accused Shiv Sumbrui and Subodh Deogam under Section 366A/376/34 IPC. The trial Court after examining witnesses, found and held that accused Shiv Sumbrui and Subodh were not involved in the alleged occurrence and acquitted both of them from the charges but appellant being found and held guilty under Sections 366A/376 IPC, they were convicted and sentenced to serve RI for ten years.
(3.) In the present appeals, all the appellants asserted separate grounds for setting aside their conviction. The main contentions raised in these appeals are that the trial Court has not considered the improbability of the allegations. According to them, the informant was a hearsay witness who was informed about the incident by Ghanshyam, who in turn was informed by Suboth. It is further submitted that even the wife of Subodh has stated that Sanjay has informed them the manner, in which he saw Tushu Mai asking for help and rescue from the appellants. The learned counsel for the appellants stressed that in absence of Sanjay, Subodh and Ghanshyam, the evidence of the informant Bika Sinku requires to be scrutinized strictly. It is further asserted that even the statement of PW 3 Sukhmati , PW 4 Sanjay Hessa does not support the prosecution case, as they have been declared hostile. The memo of appeal further mentions that the evidence of victim girl Tushu PW 6 and Lobga PW 7 materially contradicts each other. According to the counsel for the appellants the independent witness PW 8, Kaira Sinku has been declared hostile while PW 9 Satrughan Soy, father of victim PW 6, has not supported the prosecution story properly, who admitted in cross-examination that he has stated whatever was stated to him by PW 5. Therefore, the conviction of the appellants made on the basis of uncorroborated evidence of PWs 6 and 7 with evidence of PWs 1 and 2, the doctors, who examined them, deserves to be set aside. It is further submitted that in absence of I.O. and non-explanation of delay in lodging of FIR and sending the same to Court, the prosecution version deserves to be discarded. Learned counsel further submitted that the medical report does not support the prosecution version. It is further stated that the victim girls, examined by the trial Court, have attained the age of consent and finally that on hearsay evidence, the conviction of the appellants is not maintainable.;