- (1.) BY the impugned judgment of conviction and sentence, the appellant was convicted for the offence under Section 376 of the IPC and sentenced to undergo RI for a period of five years and pay a fine of Rs. 1,000/ - for the offence.
(2.) THE case against the appellant was registered on the basis of the fardbeyan of the prosecutrix (PW 3) recorded on 10.1.2003 at the Bagdehri Police Station. As per the fardbeyan, the prosecution's case is that the prosecutrix being a blind girl, aged about 22 years was living with her parents. On the day, prior to the date of lodging the FIR she was alone in her house. Her mother had gone to visit to her grand parents about three months earlier and was expected to return later after two months. Her father was away from home in course of his employment. The prosecutrix was thus left with her two younger brothers, one of whom though aged over 20 years, was blind and the other five year old. While she was sleeping in her room within the verandas of her house during the night, the appellant entered into her house and on being asked by the prosecutrix as to who he was, the appellant responded by stating his name. The prosecutrix also identified the appellant by his voice, since the appellant being a neighbouring resident, was a frequent visitor to her house. It is alleged that after entering into the house, the appellant forced himself upon the lady and committed rape on her four times throughout the night and left her in the next morning. On the following day, her father returned home but she could not muster courage to inform him about the occurrence. Later when she had lost her menstruation cycle, she could realize that she was pregnant. Thereafter, she reported the matter to her mother on the latter's return to her house. The father was also informed. The matter was reported to the village panchayat and a panchayat meeting was also convened where the appellant had appeared and in presence of the members of the panchayat, the appellant had confessed to have indulged in the sexual act with the lady and had agreed to marry her but later he resiled from his commitment. Thereafter the prosecutrix along with her father went to the police Station to report the incident. The lady was referred to the doctor for her medical examination. Subsequently in due course, the lady had delivered a child claimed to be the child of the present appellant. The appellant had denied the charges, pleading not guilty and had preferred to be tried. His case in defence was of total denial of the allegation and of his false implication. As many as nine witnesses including the prosecutrix and her parents were examined at the trial. Besides these witnesses, the Doctor and the Investigating Officer were also examined The trial Court placing reliance primarily on the testimony of the prosecutrix (PW 3) and collecting, corroborative support from the evidence of her parents as well as of independent witnesses, who had claimed themselves to be the members of the panchayat, recorded its finding of guilt against the appellant for the offence under Section 376 of the IPC and convicted him, accordingly.
(3.) THE appellant has challenged the verdict of the trial Court primarily on the ground that the impugned judgment of conviction has been passed by the trial Court without appreciating the evidences on record in proper perspective. Mr. Yogesh Modi, learned counsel appearing as amicus curiae on behalf of the appellant has highlighted the following grounds for consideration : (i) That there is a delay of more than five months in lodging the FIR and such delay has not been explained satisfactorily by the prosecutrix. (ii) That the evidences of the witnesses contradict each other on particular materials including the prosecution's claim that the appellant was a frequent visitor to the house of the prosecutrix. (iii) That the story of the prosecutrix about her being subjected to forcible sexual intercourse by the appellant is highly improbable. Learned counsel explains that it is unbelievable that the appellant would reveal his own identity to the prosecutrix before committing the alleged offensive act on her and that had he any such intention, he would have taken advantage of the blindness of the prosecutrix and would not divulge his own identity and that even otherwise the facts and circumstances suggests that the prosecutrix was a consenting party to the act of sexual intercourse. ;