DILIP KUMAR SINHA, J. - (1.) BOTH the appeals are taken together arising out of common cause of action as directed against the judgment impugned dated 23rd November, 2000 passed by the Additional Sessions Judge, II, Seraikella in Sessions Trial No. 212 of 1997 with respect to Gamharia P.S. Case No. 15 of 1997 by which the appellants Ajit Mandal, Manik Mandal, Barun Mandal and Gurua Mandal (Cr Appeal No. 434 of 2000) were convicted under Section 448/34, IPC and sentenced to undergo R.I. for one year whereas, the other appellant Sunil Mandal @ Akal Mandal (Cr Appeal No. 436 of 2000) was convicted under Section 376, IPC and sentenced to undergo R.I. for 7 years. The another accused Anand Chitrakar (Cr. Appeal No. 436 of 2000) was convicted under Sections 109/376, IPC and was sentenced to undergo R.I. for 7 years. He was further convicted under Section 448/34, IPC and sentenced to undergo R.I. for one year and it was directed that the sentences passed against Anand Chitrakar would run concurrently.
(2.) THE prosecution story in short was that the informant PW Indrajeet Barik submitted a written report before the Officer - in -Charge of Gamaharia Police Station that on 25.2.1997 when he returned back from Jagranathpuri, he was apprised by his brother and son that on the alleged date of occurrence i.e. on 23.2.1997 while they were watching serial on T.V on 23.2.1997 whereas his deaf and dumb daughter aged about 16 years was cooking food in the adjacent room, the appellants Sunil Mandal @ Akal Mandal and Anand Chitrakar peeped from the boundary wall of the informant and having found no daughter was alone. It was alleged that the appellant Anand Chitrakar stood outside on guard whereas appellant Sunil Mandal @ Akal Mandal outraged modesty of his daughter and there held altercation in such transaction. The brother of the informant Lakhan Barik (PW 1) suspected some foul play from the noise emerging from her room and upon visualising that Anand Chitrakar was standing outside in suspicious condition, he entered in her room and found the appellant Sunil Mandal @ Akal Mandal trying to hide himself. It is alleged that the appellant Anand Chitrakar in the meantime informed to the members of the family of Sunil Mandal @ Akal Mandal consequent to sudden appearance of other appellants Ajit Mandal, Manik Mandal, Barun Mandal with Anand Chitrakar. All of them forcibly got Sunil Mandal released from the clutches of the witnesses. It was further alleged that the appellants Sunil Mandal @ Akal Mandal and Gurua Mandal returned back after a short while and extended threat of dire consequences to the witnesses. The informant was apprised by his victim daughter Renuka Barik that the accused held her body with the intention to commit rape. The police initially instituted a case for the alleged offence under Sections 448/354/323/34, IPC against all the six appellants but later on Section 376, IPC was added on the request of the Investigating Officer. The victim girl was examined by a lady doctor and after conclusion of the investigation charge - sheet was submitted against the accused persons under Sections 448/34/376/109, IPC. The trial Judge, however, framed the charge under Sections 448/34, IPC against the appellants Anand Chitrakar, Ajit Mandal, Manik Mandal, Barun Mandal and Gurua Mandal. separate charge under Section 376, IPC was framed exclusively against Sunil Mandal @ Akal Mandal and Charge under Sections 109/376, IPC was framed against Anand Chitrakar and all the six accused were put on trial. Mr. A.S. Dayal, learned counsel appearing on behalf of the appellants in both the appeals first took up the matter of the appellants Sunil Mandal @ Akal Mandal and Anand Chitrakar (Cr. Appeal No. 436 of 2000) and assailed the impugned judgment by submitting that the trial Court failed to take into consideration that the entire prosecution story was full of contradictions and the witnesses had improved their version in the Court what they had earlier stated before the police in course of investigation. The occurrence as alleged took place on 23rd February, 1997 but the written report was presented after three days on 26th February, 1997 after due deliberation and consultation, in spite of the fact that the uncles and brother of the victim were present in the house who were competent to lodge the case, if at all the offence as alleged had taken place.
(3.) MR . Dayal, pointed out that at the first instance the informant had not complained of rape having been committed on his daughter Renuka Barik by the appellant Sunil Mandal @ Akal Mandal rather such allegation was developed intentionally and purposely by the witnesses in course of trial and the learned trial Judge failed to take into consideration of such omission and commission. Even uncles of the victim viz PW 1 Lakhan Barik and PW 2 Andar Mohan Barik who were present in the adjacent room watching T.V. have not supported the prosecution case that the offence of rape was committed on their niece Renuka Barik by the appellant Sunil Mandal or that such offence was abetted by the appellant Anand Chitrakar or the other appellants had extended threat of dire consequences by trespassing into the house of the informant.;