- (1.) The appellants have filed the instant appeal for setting aside the judgment of conviction and order of sentence dated 25.1.1991 passed by the Additional Sessions Judge, Godda in Sessions case; No. 143/89 whereby the appellants have been convicted under Sections 376 and 342 of the Indian Penal Code . The appellants have been sentenced to undergo R.I. for a period of ten years under Section 376 IPC but no separate sentence under Section 342 IPC has been passed. There were seven accused persons including the appellants but the charges having been not proved against them, the other five co-accused were acquitted.
(2.) The prosecution case, in brief, is that one Ajit Bhushan Prasad appeared before the Godda police station on 2.4.89 and made a report (presumably oral) informing the police that immediately before his arrival at the police station when he was on the way from Sahibganj to Godda by cycle and reached at village, Punasia, he heard bulla from the side of his village and thinking that some mishap had taken place m his village, he had come to the police station to inform the police for taking necessary action. This report was entered as S.D, entry No. 54 dated 3.4.89. On such report the S.I. reached the village and recorded the fardbeyan of the informant, Tillotama Kumari in the village itself. She in her fardbeyan stated that on 2.4.89 her parents had gone to Godda and her younger brothers had also gone out of the house for playing. At about 12 a.m. the appellants came to her house and forcibly dragged her to their house and confining her in a room, they committed rape upon her one by one. Thereafter, they locked the room from outside and went away. It is alleged that at about 1.30 P.M. she, some how or other, managed to escape from the room and reached her own house at 4. p.m. When her parents returned, she narrated the entire story. Thereafter, there was some hot exchange of works between the parents of the informant and the convicts appellants. It is said that the appellants threatened the entire family of the informant. It is further alleged that appellant No. 1, Ujjawal called his father, Kirti Bhushan Prasad, the co-accused, from Dumka and then all the seven accused persons armed with lathi and bhala started abusing t he informant s family. They entered into the informant s house, threw the movable articles of the house in the courtyard and took away the utensil etc. On the basis of the said fardbeyan a case was lodged and after investigation charge sheet was submitted.
(3.) The defence of the accused persons was denial of the charge and pleading of their innocence. Defence case is that on 3.4.89 at about 7.30 P.M. appellant No. 1, Ujjawal and one Bhuneshwar Mahto were returning from Godda on a motorcycle and when they reached Punasia Kurmi tola Bijay Bhushan Verma, PW4 and Anil Kumar Verma, PW 1, stopped them and started assaulting by means of kora and danta. In the meantime, the uncle and grand father of the appellant No. 1 came: and saved them. It is alleged by the defence that appellant the No. 1 Ujjawal also lodged a case being Godda PS case No. 69/89 against the informant in which, after investigation, the police submitted charge sheet.;