KAILASH PRASAD DEO,J. - (1.) Heard, Mr. Manoj Kumar Sah learned counsel appearing for the appellant and Mr. Sudhir Kumar Roy, learned Addl. Public Prosecutor for the State.
(2.) The instant Criminal appeal has been preferred against the judgment of conviction and order of sentence, both dated 06.12.2003, passed by the learned Sessions Judge, Godda (arising out of Mahagama P. S. Case No.26 of 2001 in S.T. No.98 of 2001 dated 17.02.2001 corresponding to G.R. No. 164 of 2001) whereby the sole appellant, Ghiso Das has been convicted for the offence punishable under Sections 448 and 376 read with Section 511 of the Indian Penal Code. The appellant has been awarded simple imprisonment for six months for the offence committed under section 448 of the Indian Penal Code and rigorous imprisonment for four years for the offence committed under Section 376 read with Section 511 of the Indian Penal Code and both the sentences are directed to run concurrently.
(3.) The prosecution case is based upon the fardbeyan of Sulekha Devi (P.W. -1) who went to Mahgama Police Station on Saturday morning at 7:45 a.m., along with her husband, Mangal Das and father-in-law, Gannu Das, recorded her 'fardbeyan' in presence of Officer-In-charge, Mahagama police station, whereby the informant alleged, that in the night of 16/17.02.2001 after taking meal, she was sleeping along with her husband. At around of 12 o'clock in the night, she felt that somebody has climbed over her and tried to catch her breast. Feeling so, the informant got up and she identified the accused in the light of the lamp as his co-villager, Ghiso Das, who has climbed over her. As soon as, the informant got up, Ghiso Das inserted cloth in her mouth and pressed her mouth with one hand and was trying to remove sari and petticoat for committing rape upon her. When the informant tried to save herself, her husband got up and raised hulla as 'thief' 'thief' and thereafter both husband and wife together scuffled with the accused and caught-hold of the accused. On the brawl raised by them, the neighbours and other co-villagers also assembled. They became aggressive and they assaulted Ghiso Das (appellant) with fists and slaps. The informant has further stated, that her husband informed the Chowkidar to save the apprehended accused from further and excess assault, but because of the night, they could not come to the Police Station and in the morning, informant along with the Chowkidar, her husband, father-in-law (Gannu Das), co-villager, Nepali Das, Sargho Das (uncle-in-law) came with the accused at the Police Station and handed over the accused to the Police Station. The informant stated that if her husband was not there, accused, Ghiso Das would have committed rape upon her. The occurrence is known to the several villagers, who will disclose the same on enquiry. The apprehended accused had entered into her house from open window. On the basis of the aforesaid 'fardbeyan' of the Sulekha Devi, informant, the Police instituted First Information Report being Mahagama P.S. Case No. 26 of 2001 dated 17.02.2001 corresponding to G.R. No.164 of 2001 under Sections 448/376 /511 of the Indian Penal Code.;