- (1.) THE appeal is directed against the judgment of conviction dated 11.9.2001 and order of sentence dated 19.9.2001 passed by Sri Dilip Kumar Sinha, learned Sessions Judge, Lohardaga in Sessions Trial No. 491 of 2000/52 of 2000, by which judgment the learned Sessions Judge found the appellant guilty under Section 376 of the Indian Penal Code and sentenced him to undergo R.I. for 7 years and also directed to pay a fine of Rs. 2,000/ -.
(2.) THE prosecution case was started on the basis of a complaint filed by the complainant, Tabassum Khatoon stating therein that on 29th August 1998 her parents had gone to work in the field in another village and the complainant was left alone in her house. At about 9.00 a.m. while she was doing her domestic work, the accused -appellant, Masmul Chaudhary entered into her house, closed the door from inside, caught hold her hair and forcibly made her to sleep on the earth. When she raised 'Hullah', the accused gagged her mouth. After removing her garments the accused -appellant committed rape upon her. After the offence was over the complainant started weeping, to which the accused threatened of dire consequences and also threatened to kill her by pistol and do away with her life and also he will commit the murder of her parents. The accused -appellant, Masmul Chaudhary assured her to marry with her, if she does not disclose about the incident to anybody else. Her parents returned back at about 5.00 p.m. then she narrated the occurrence to them. The father of the complainant immediately went to the house of the accused. On interrogation the accused admitted his guilt and assured him that he would marry his daughter. Then, his father went to the anjuman and narrated the story to the authorities of the anjuman and again the complainant took the witnesses Khursid Mirdaba and Tahir Khan and in their presence the accused admitted his guilt and assured to marry her. On 4.9.1998 a meeting of the anjuman was held but it was adjourned to 6.9.1998 for final decision. On that day, a meeting was again held in which the accused -appellant and the complainant were present. The accused -appellant became ready to marry with the complainant, but the brother of the accused - appellant, namely, Samiar Chaudhary and Asam Chaudhary opposed the said marriage, who took away the accused -appellant with them challenging to see the action of the authorities of the anjuman that directed the complainant to file a case in Court. Then on 6.9.1998 and 8.9.1998 the complainant with her father went to the Bhandra Police Station where they found the brothers of the accused - appellant were also present there and as such the police refused to register the FIR against the accused -appellant and lastly on 8.9.1998 the Bhandra Police directed the complainant to go to Court, hence the complaint case was lodged. The complainant had examined on solemn affirmation. After enquiry cognizance was taken under Section 376 of the Indian Penal Code against the accused -appellant. Subsequently the case was committed to the Court of Sessions, as the case was exclusively triable by Court of Sessions. Finally the case was tried by the Sessions Judge and after trial the Court found the accused guilty as aforesaid and convicted and sentenced him. It is submitted by the learned counsel for the appellant that the prosecutrix (PW 1) has fully supported the prosecution case even other hearsay witness Nos. 2, 3 and 4 have also supported the prosecution case and the trial Court has rightly discussed their evidences. Learned counsel further submitted that as far as appreciation of evidences of PWs 6 and 7 are concerned they have only been commented by the learned Sessions Judge at Paras 2 and 6 to their evidence and has not been discussed in detail. The Court has only stated that PWs 6 and 7 are consistent that on the instance of Arshad Mallik (PW 5) the meeting of anjuman was held requesting in writing that Masmool Chaudhary had ravished his daughter Tabassum Khatoon, but has not discussed their evidences in detail and as such the finding of the trial Court is not complete and has come to a wrong finding. Learned counsel also further submitted that it will appear from the evidence of PW 5 in para 19 that he has admitted that by the order of the Court the complainant was medically examined at Lohardaga, but no medical report has been brought on record and as such in absence of any medical report with regard to allegation of rape and prosecution case has become undoubtful.
(3.) ON the other hand, learned counsel for the State has opposed the prayer and submitted that the evidence of the prosecutrix has fully stood the test of cross -examination and the prosecutrix was not asked anything with regard to her medical treatment and as such the conviction is well founded and requires no interference by this Court.;