D.G.R.PATNAIK, J. - (1.) THESE three appeals are being disposed of by the common judgment, since they arise out of the same impugned judgment of conviction and sentence dated 22.11.2003/24.11.2003 passed in Sessions Trial No. 289 of 1991 passed by the Additional Sessions Judge, Fast Track Court No. 5, Dhanbad.
(2.) APPELLANTS along with the co -convicts were charged with and tried for the offences under Sections 376,364 and 34 of the IPC. They were however convicted for the offences under Sections 376(2)(g) of the IPC and sentenced to undergo 10 years imprisonment and acquitted for the offences under Section 364/34 of the IPC. Appellants have challenged the impugned judgment of conviction and sentence. Case against the appellant was registered at Dhanbad Police Station on the basis of the fardbeyan of the prosecutrix (PW7) recorded at the police station on 28.7.1981 at 11.30 PM. Case of the prosecution is that in the night of Sunday between 26/27.7.1981 she was sleeping in her house, along with her six year old sister Leelawati Nonia (PW4). Her uncle Villayati Nonia was sleeping outside the room on the veranda and her parents had gone to Deoghar on pilgrimage. While she was sleeping in her house in her room, the present appellants along with other co - convicts entered her room and gagged her mouth. They picked up sleeping sister and took her out of the room and thereafter returned. They lied the hands and feel of the prosecutrix and thereafter all of them committed rape on her one after the other. They left the house after committing the crime and while retreating, they look away a sum of Rs. 95/ - kept in the box besides silver anklets and other jwellery and a transistor. In the morning, her sister came into her room and untied her feet and hands. The mohalla people including the mother of the appellant Mohan Singh came to her house and she reported the incident to them. She alleges that the mother of the appellant Mohan Singh had threatened and persuaded her to name her uncle Villayati Nonia as her offender and forbade from naming any of the appellants. Her parents returned home two days later on Tuesday. She narrated the entire occurrence to them naming all the five offenders. Her parents left the village being afraid of the village Mukhia and went to the Superintendent of Police at Dhanbad where a typed complaint was submitted to the Superintendent of Police and to the Deputy Commissioner and later, she accompanied her parents to the police station where her fardbeyan was recorded.
(3.) APPELLANTS have denied the charges, pleading not guilty and had preferred to be tried. Their case in defence was that they have been falsely implicated in this case at the instance of the father of the prosecutrix on account of previous enmity and that the actual offender was the uncle of the prosecutrix against whom the prosecutrix had complained to the villagers in the early hours of the morning of the next day when they had assembled at her house on hearing her cries. In course of trial, co -accused Chudhiya Mian died while another co -accused Prahalad Nonia had absconded and consequently, trial had proceeded against the remaining five accused persons including the present appellants.;