PRADEEP KUMAR, J. - (1.) THIS appeal is directed against the judgment of conviction dated 21.1.2002 and order of sentence dated 22,1.2002 passed by Sri Surya Narayan Mahto, 2nd Additional Sessions Judge, Dhanbad in Sessions Trial No. 300 of 2000, corresponding to G.R. Case No. 1983 of 2000, Jagta P.S. Case No. 43/2000 by which judgment he found the appellant No. 1, Md. Sohrab guilty under Sections 376/32/306/34 of the Indian Penal Code and' he also found the appellant No. 2, Md. Rauff @ Abdul Rauff guilty under Sections 342/306/34 of the Indian Penal Code. The appellant No. l, Md. Sohrab has been sentenced to rigorous imprisonment for 10 years for offence under Section 376 of the Indian Penal Code and 5 years for the offence under Section 306 of the Indian Penal Code and the appellant No. 2, Md. Rauff @ Abdul Rauff has been sentenced to rigorous imprisonment for 5 years under Section 306 of the Indian Penal Code. Both the sentences/shall run concurrently.
(2.) IT is submitted by the learned Counsel for the appellants that F.I.R. was lodged against the appellant -accused No. 1. Md. Sohrab on the basis of the statement given by the deceased for committing rope upon her as also against the appellant -accused No. 2, Md. Rauff @ Abdul Rauff for instigating the prosecutrix to commit suicide, but subsequently the other four accused, namely, Md. Amzad, Md. Alam, Md. Ayub and Md. Kalim were discharged, but appellant No. 2, Md. Rauff @ Abdul Rauff was tried for the offence under Sections 306 and 34 of the Indian Penal Code since there is no evidence against him that he alone instigated the prosecutrix to commit suicide and as such his case is similar to those of co -accused, who were discharged and in absence of any specific evidence against him his conviction is bad in law and fit to be set aside. On the other hand, learned Counsel for the State opposed the prayer and submitted that there is direct allegation of instigation against the appellant -accused No. 2, Md. Pauff @ Abdul Rauff and as such he does not deserve any sympathy.
(3.) AFTER hearing both the parties and going through the record, I find that the prosecution case was started on the basis of dying declaration recorded by P.W.ll, Gopal Jee, Judicial Magistrate 1st Class, Dhanbad at Patliputra Medical College Hospital, Dhanbad on 30.6.2000 at about 1.45 hrs. where the injured victim in a precarious burnt condition. She stated that on 26.6.2000 at about 2.00 a.m. in the night the appellant -accused No. 1, Md. Sohrab son of Md. Rauff @ Abdul Rauff entered into her house by force after scaling the wall with a pistol in his hand and lifted her from her house and took her to Sijua Railway Line where he committed rape upon her and thereafter he ran away. She further stated that she came to Madnadih Sadar with much difficulty and went to the sadar of Madniadih, who brought her to the sadar of her Panchyat, Md. Ayub Thikedar. He kept her confined his house for whole day and assured her that he will decide the case in the Panchyat in the morning, but instead of calling the Panchyat her mother was called by them and she was advised to go back to her house and not to file any case against his son and at that time the appellant -accused No. 2, Md. Rauff @ Abdul Rauff was also present but she refused to do so and then the panches threatened her that if she will report the matter to the police then her two sisters might meet the same fate like her and her house would be burnt. Thereafter, she went to her house and poured kerosene oil on her be Ay and put machis on he body at 7.00 p.m. in the evening and in the burnt condition she was brought to the hospital by her neighbours to the hospital where she was under treatment.;