- (1.) C .A.V.ON:20/08/2009 PROUNCED ON: 28 / 08/ 2009 Both the appeals arise though from two different judgments but from the same Majgoan P.S.Case No. 28 of 1990 corresponding to G.R. Case No. 209 of 1990. As the appellant Ram Sundar Baitha (appellant in Cr. Appeal No.1514 of 2005) absconded for long time, his trial was separated.
(2.) THE case of the prosecution is short as appeared from the fardbayan of the victim cum informant Kabutari Devi (P.W.4) recorded on 25.5.1990 at about 10 P.M. where she has stated that on last Saturday 20.5.90 at about 9.P.M., she after taking meal with her daughter -in -law Bachiya Devi (P. W.3), was slept in a room having no door whereas her daughter -in -law slept in another room having its door situate at village Raja Ghatwa, at that time six persons came to her house to whom she had identified as Ram Sundar Baitha, Dadul Dhobi, Suresh Sao, Bihari Chamar, Prasad Mahto and Ramesh Mehto (all the appellants) as they were known to her since before and they asked for water and Bena (hand -fan). After drinking water, they asked for to make a bed for them. Upon this, as there was no male member in the house, she requested them to leave the place but they did not. Ram Sundar Dbobi had a big gun in a hand and Dadul Dhobi also has a small gun. Accused/appellants Ram Sundar Dhobi, Dadul Dhobi and Suresh Sao remained with her whereas accused/appellants Bihari Chamar, Prasad Mahto and Ramesh Mahato forcibly entered into the room of her daughter -in -law Bachiya Devi (P.W.3) and closed the door from the inside thereafter. When she was trying to protect herself, Ram Sundar Dhobi pressed her neck and started scratching her on her neck, shoulder and cheek and forcibly raped her. Ram Sundar Dhobi, Dadul Dhobi, and Suresh Sao committed rape upon the informant one by one. Thereafter, they left the place. Other three persons came out from the room of her daughterin - law left the place by threatening them. After their departure, the daughter -in -law of the informant stated her that all the three accused persons forcibly raped her one by one on which she was suffering pain on her waist, neck, throat and shoulder. On the following morning, she narrated about the said occurrence to the villagers Nanak Paswan (P.W.1) and Budhiya Paswan but the said persons told her that all the accused persons were Gundas and it is the matter of prestige. On this, she did not go to the police station on that day. It is further stated that her husband and son of the informant were not present in the house in the night of alleged occurrence. On the basis of the fardbeyan, a case was registered against the aforesaid six accused appellants and after investigation charge sheet has submitted against all of them under Section 376/34 I.P.C. As the accused person Ram Sundar Baitha (appellant in Cr. Appeal No.1514 of 2005) absconded for long time, his trial was separated. The prosecution has examined seven witnesses to prove its case. Out of them P.W.1, Nanhak Paswan is declared hostile, P.W.2, Shyam Sundar Paswan is tendered, P.W.3, Bachiya Devi is the victim and daughter -in -law of the informant, P.W.4, Kabutri Devi is victim cum informant of this case, P.W. 5, Doctor Sudhakar Lal and P.W.6, Doctor Ram Naresh Singh Diwakar who have examined the victims by constituting the medical board. Two injury reports and an order for constituting the Medical Board are marked as Exhibits -1, 1/1 and 2 respectively. P.W.7 is son of the informant, who is a hearsay witness. Defence of the appellants is false implication due to land dispute and they claimed to be tried.
(3.) THE learned counsel of the appellants submits that there was delay in lodging F.I.R. and no proper explanation has been given by the prosecution. There are numbers of contradictions in the evidence of the P.Ws. 3, 4 and 7.;