- (1.) The present appeal has been preferred under Section 374(2) of the Code of Criminal Procedure challenging the judgment and order dated 11.09.2001 passed by the learned 1st Additional Sessions Judge, Saraikella in Sessions Trial No. 198/99, Kharswan P.S. Case No. 11/99 dated 01.04.1999 corresponding to G.R. Case No. 142/99 vide which the appellant has been convicted under Section 366 read with Section 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for seven years. At the very outset the Counsel for the appellant submitted that the appellant has already undergone the period of sentence, however, he preferred to argue the appeal for the purpose of acquittal. In the aforesaid background the present appeal is being heard on the merit of the case.
(2.) The case of the prosecution in brief is set out as under: On the occasion of Chait festival the informant, who is the husband, and others after taking their meals were preparing to go to bed when he found his wife missing. He made enquiries from the villagers and other relatives and came to the conclusion that Nakul, the appellant herein, has enticed away his wife in order to marry her. It is also stated that he searched for his wife for nearly 11 months and could finally trace her at Adityapur living with Nakul Kumhar, the appellant herein and was having sexual intercourse with her. The prosecution has examined six witnesses in all out of which P.W.-1 Chaitan Kumhar, P.W.-2 Sita Ram Kumhar and P.W.-3 Ratan Kumhar were declared hostile and there was no other independent witness examined to support the prosecution case. P.W.-4 is Dr.Radhika Kumari Sinha of Saraikela Hospital, who examined the victim, wife of the informant on 06.04.1999 and has reported that the prosecutrix was above 25 years of age and that there was no sign of rape nor spermatozoa was found on her. P.W.-5 Jai Ram Kumhar, the informant, in his First Information Report (Ext-2) has nowhere stated that on the alleged night of occurrence the brother-in-law .of the informant had come to his house and he went to see him off nor did he state that the appellant Nakul Kurnhar was also present in the house on the alleged night.
(3.) From the perusal of deposition of P.W.6 (victim) and her statement under Section 161 Cr.P.C. it transpires that she left the house of the informant and went with the appellant and during the period of 11 months she traveled at several places. The F.I.R., in the instant case, has been lodged nearly after one year of the alleged kidnapping. On the aforesaid basis Saraikela, Kharsawan P.S. Case No. 11/99 was registered under Section 366, 497, 498 & 376 I.P.C. against the appellant. The I.O. was not examined in the instant case by the prosecution. P.W.-5 in his evidence has stated that on the occasion of Chait festival in 1998 his entire family had gathered in his house including his brother-in-law and the appellant Nakul, who happens to be the husband of the niece of the informant, to celebrate the occasion. He further submitted that after taking meal the informant went to see off his brother-in-law and when he returned at about 2 a.m. he found that his wife Pati Kumharin and the appellant Nakul were missing from the house and even upon search could not find them. He has also submitted that he searched his wife for about 11 months and it is only thereafter that the informant lodged the written information which is Ext.2 at Kharsawan Police Station. In his cross-examination he has reiterated the alleged occurrence and stated that after 11 months of the occurrence the accused was arrested by the police and he disclosed that he had abducted the wife of the informant and kept her at Adityapur and on his disclosure the wife of the informant was recovered. In his cross-examination this witness has admitted that he informed the police about the occurrence but no such information has been proved by the prosecution. P.W.-6, the victim, in her evidence also corroborated the evidence of the informant and stated that on the occasion of alleged Chait Parva the entire family gathered at her house and on that occasion the accused Nakul also had come to her house. She further stated that the appellant accused Nakul came to her and took her away with her entire ornaments to Rourkela. Thereafter the accused brought her to Adityapur. She has also stated that during that period the accused has committed rape on her several times and she has identified the accused in the dock. In cross-examination she has fully corroborated the prosecution case and reiterated that the accused forcibly took her away with her clothes and money at about 2.00 p.m. and took her to Kharsawan and thereafter went with her to Rourkela and she could not say anything due to fear. She has further stated that the accused took her to the house of his brother at Hamirpur and kept her for seven days and thereafter he kept her for two months in a rented house. She has further stated that after two months the accused brought her from Rourkela to Adityapur and kept her secretly at Khanbari. She has further slated that at Khanbari the appellant was residing with her when the the police recovered her and arrested the appellant.;