D.K.SINHA, J. - (1.) THE present appeal is directed against the judgment of conviction under Section 366A read with Section 34 of the Indian Penal Code passed by the lllrd Additional Judicial Commissioner, Ranchi in S.T. No. 484 of 1998/Tr. No. 279 of 1998 whereby and whereunder both the appellants have been awarded sentence for seven years rigorous imprisonment and to pay fine of Rs. 1000/ - with default stipulation.
(2.) THE prosecution was launched on the written report (Ext. 2) of the informant, Krishna Thakur (P.W. 6) presented before the Tatisilway police station alleging therein that on 19.11.1997 at about 6 p.m. his daughter aged about 14 years Poonam Kumarl was taken away by Sushil Rawanl and Suresh Mahli both of village Chatra towards overbrldge of Tatisilway Railway Station on persuatlon and that he had information that the accused Balesh Mahli was about to go some where by train. The informant further narrated that he tried to search her out in his near relation but his daughter could not be traced out and therefore, he had reason to believe that his daughter Poonam Kumari was kidnapped by the appellants and the accused, Balesh Mahli. The informant requested the police to search out his minor daughter and to take action against the culprits. On the basis of the said written report (Ext. 2) Tatisilway RS. case no. 51 of 1997 was registered on 20.11.1997 for the offence under Section 366A/34 of the Indian Penal Code against the appellants and one Balesh Mahli and subsequently, Section 376 IPC was added. The police after investigation submitted charge -sheet in the aforesaid sections of IPC. The victim girl was recovered and her statement was recorded under Section 164 Cr. P.C. on 28.11.1997. In her statement she implicated the appellants that when she came out with Fulo Kumari to find out her father, who was a tempo driver, her mouth was gagged by both the appellants and was brought to Tatisilway Railway Station on a bicycle and thereafter they delivered her custody to the accused, Balesh Mahli. She further narrated that she was taken away by Balesh Mahli in a train to Patna and was threatened to be thrown out from the train in case of raising alarm. She came to Patna on 20.11.1997 and was kept in a room and in the same night the accused Balesh Mahli committed rape on her. She was confined there till 23.11.1997 and on subsequent date i.e. 24.11.1997 her father came there with Tatisilway police and Patna police and took her to her home village.
(3.) CHARGE against both the appellants including Principal accused Balesh Mahli was framed under Sections 376/34 and 366A/34 of the Indian Penal Code and they were put on trial. I find that the charge under Section 376/34 IPC against all the three accused was erroneous.;