D.K.SINHA, J. - (1.) ALL the three sets of Cr. Appeals are directed against the judgment of conviction passed against the appellants by the 1st Addl. Sessions Judge, Garhwa in Sessions Trial No. 316 of 1993 on 12.5.2003 whereby and whereunder the appellant Ram Janam Singh @ Ram Janam Kharwar @ Charku (Cr. Appeal No. 703/03) and the appellant Shankar Choudhary (Cr. Appeal No. 704/03) were convicted under Sections 366/34, 342/34 and 376/34, IPC and sentenced to undergo RI for 7 years, 1 year and 10 years respectively. The appellants Ketar Bhuiyan and Basudeo Bhuiyan (Cr. Appeal No. 692 of 2003) were convicted only under Sections 364/34 and 342/34, IPC and sentenced to undergo RI for 7 years and 10 years respectively arising out of Meral P.S. Case No. 83/92 which was lodged on 12.10.1992 on the statement of the informant PW 2 Faguni Devi.
(2.) THE prosecution story as it stands narrated in her statement at the police station is in the following manner. Faguni Devi along with her husband Suresh Bhuiyan (not examined) had visited her parental home on 6.10.1992 on the eve of "dashara". At about 4 p.m. on 8.10.1992 Shankar Chaudhary, Charku @ Ram Janam Kharwar, Basudeo Bhuiya, Ketar Bhuiyan (All appellants) and Dhanesh Choudhary (absconder) came to her parental home and asked to accompany them in panchayati. When the informant and her husband refused, both were forcibly taken away and confined in the room of the house of the appellant Ram Janam Kharwar @ Charku. From there she was separated from her husband and was removed to another room in the same night where she was ravished by the appellant Shankar Chaudhary and Charku @ Ram Janam Kharwar against her will till morning. In the next morning she was shifted in the room where her husband was confined and both were released in the morning on 3rd day (10.10.1992) but at the same time her husband was taken away forcibly by the appellants to which she raised objection but without heed. She then anyhow came to her parental home in agony and pain but she did not find her parents and therefore, she went to her sister's house at village Tasrar. When her father came there after locating her whereabouts, she narrated the occurrence and was brought to her parental home. On the next day she along with her parents came to the police station and by that time she had no knowledge of the whereabouts of her husband. The case was instituted on her statement against 5 named accused persons including one Dhanesh Choudhary who was declared absconder. After framing of charge, the appellants were put on trial and their defence was of false implication. The allegation of commission of rape of Faguni Devi was specific against Shankar Choudhary and Ram Janam Kharwar @ Charku but in place of framing of the charge under Sec. 376(2)(g), IPC of the gang rape, the charge was framed erroneously under Sec. 376/34, IPC against both the appellants on the basis of prima facie materials which could not be modified at any stage either on the instance of the prosecution or by the Court on its own motion.
(3.) LEARNED Counsel for the appellants submitted that the occurrence as alleged took place on 8.10.1992 at about 4 p.m. but the statement of the prosecutrix was recorded after 5 days on 12.10.1992 whereas the police station was at the distance of only 12 K.M. west from village Karke. The inordinate delay was not explained In lodging FIR and the trial Judge ignored the fact that the FIR was received in the Court of C.J.M on the next day of 13.10.1992.;