D.K.SINHA, J. - (1.) THE present appeal is directed against the judgment and order dated 22nd April, 2000 passed by the Sessions Judge, Chaibasa in S.T. No. 95 of 1999 whereby and whereunder the appellant, Ramesh Liyangi has been convicted for the offence under Sec. 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years.
(2.) THE prosecution story as it stands recorded in the written report (Ext. 2) of the prosecutrix, Sarojini Sundi (PW 1) was that on 30.9.1998 at about 8 p.m. when she retired to her bed after closing the door of the house, soon thereafter her neighbour, appellant, Ramesh Liyangi came out from under the cot having dagger in his hand and committed rape on the cot itself after terrorizing her. In the meantime, her brother, Manoranjan Sundi (PW 4) came and asked her to open the door. On his command when she opened the door, the appellant started running away from the room to which her brother raised alarm and the neighbouring people assembled there and caught hold the appellant. The elder brother of the appellant, Bangali Liyangl also appeared who Inflicted fist to the appellant Ramesh and taking advantage of the situation, he fled away and hid himself somewhere but who could not be located on search. On the alleged date of the occurrence her father was away working at Joda and only on his return from posting written report was presented. Pant and shirt left over by the appellant in the house of the prosecutrix was handed over at the police station. She further narrated that on her alarm the villagers namely Kundan Sundi (PW 6) and Brajil Sundi appeared at the scene and learnt about the occurrence. On the written report Chaibasa (Muffasil) P.S. Case No. 95 of 1998 was registered on 8.10.1998 for the alleged occurrence dated 30.9.1998 for the offence under Sec. 376 of the Indian Penal Code against the sole appellant. Mr. R.P. Gupta, the learned Counsel appearing for the appellant assailed the judgment of conviction of the appellant on the ground that the prosecutrix (PW 1) Sarojni Sundi neither supported the allegation of rape on her nor the complicity of the appellant in the alleged rape. She deposed in clear words that no rape was committed on her in the night of 30.9.1998 and that nobody had committed rape on her. She has deposed to the extent before the trial Judge that even nobody came to her house in the said night and in the cross -examination she exonerated the criminal liability of the appellant by deposing that he had not ravished her. Elaborating his argument, the learned Counsel further submitted that the appellant is admittedly next door neighbour of the prosecutrix as would be evident in the statements of the other witnesses produced on behalf of the prosecution. PW 6 Kundan Sundi, brother of the prosecutrix, has clearly stated under cross -examination that his brother, Manoranjan Sundi (PW 5) had quarrel with the appellant for ducks and when he arrived at the scene on hearing of alarm raised by Manoranjan Sundi (PW 5) that the latter was dragging out the appellant from his house and in the meantime, the elder brother of the appellant slapped the appellant and the appellant escaped. Finally Mr. Gupta submitted that the appellant has been convicted solely on the ground of the statements of the mother (PW 2) and brothers (PWs 5 and 6) of the prosecutrix merely on the circumstances that the appellant was seen in the room of the prosecutrix, presuming that the appellant had committed rape on the prosecutrix. When the prosecutrix denied the commission of rape on her by the appellant and there was no other eye -witness of the alleged occurrence of rape on her, the conviction of the appellant on the basis of the statements of the these three witness are unwarranted and unsustainable in the eye of law. There may be an offence of criminal tress pass but not the offence of rape against the appellant but no such charge was framed against him.
(3.) MR . Jawahar Prasad, the learned APP fairly conceded that no offence under Sec. 376 of the Indian Penal Code is made out against the appellant though there is circumstance appearing against the appellant that he was found in the room of the prosecutrix, Sarojni Sundi. Admittedly, there was no eye -witness of the alleged charge under Sec. 376 of the Indian Penal Code.;