Pradeep Kumar, J.@mdashThis appeal is directed against the judgment of conviction dated 17.6.2002 and order of sentence dated 18.6.2002 passed by Shri Alok Kumar Dubey, Additional Sessions Judge (Fast Track Court), Gumla in Sessions Trial No. 149 of 2000, by which judgment he found the Appellant guilty under Sections 376 and 366A of the Indian Penal Code and has been sentenced to undergo R.I. for 7 years u/s 376 of the Indian Penal Code and 5 years u/s 366(A) of the Indian Penal Code. However, he directed both the sentences shall run concurrently.
2. It is submitted by the learned Counsel for the Appellant that it will appear from the evidence of the witnesses that the victim girl after elopement was staying in the house of the Appellant for the last 3 days just in front of the house of her father, but the victim never raised ''Hullah'', which is admitted by the evidence of P.W.6-informant himself. Moreover, although the victim girl-P.W.3 has admitted that she was taken by force and the accused had shown ''Chura''. P.W.1, who is eye witness, he does not say that he saw any ''Chura'' in the hand of accused. Moreover, the allegation of rape, has not been supported by the evidence of the doctor, who found no external or internal injury and also found that the victim is habitual in sexual act and there is no sign of recent sex. In that view of the matter, the conviction of the Appellant u/s 366A as also u/s 376 of the Indian Penal Code is not correct and the same is only fit to be set aside. Learned Counsel further submitted that the F.I.R has been lodged after a long delay of 30 days for which there is no explanation and as such the entire prosecution case is false and fabricated.
3. On the other hand, learned Counsel for the State has opposed the prayer and submitted that it will appear from the evidence of the victim girl that she was taken by force at the point of ''Chura'' to the house of the accused where the accused kept her for three days and committed rape upon her and the Appellant has rightly been found guilty and it requires no interference by this Court.
4. After hearing both the parties and going through the record, I find that the prosecution case was started on the basis of a written report given by the informant, Bitwa Ekka (P.W.6) stating therein that on 19.2.2000 at about 5.00 P.M. his daughter, Neelam Ekka had gone to graze the ox at Masari Kona. Meanwhile, the accused, Sibru Baraik came and by force took his daughter towards the jungle. The occurrence was witnessed by Ashok Bara. He came to his house and told about the occurrence. Thereafter, the informant went in search of his daughter at various places, but he could not trace her. He has further stated that earlier he had informed the Chainpur Police Station, but Chainpur Police Station has not taken any action.
5. On the basis of the said F.I.R. police registered a case under Sections 363/364/366(A) of the Indian Penal Code and after investigation submitted charge-sheet under Sections 363, 366(A), 376 of the Indian Penal Code.
6. Since, the case was exclusively triable by a Court of Sessions, the same was committed to the Court of Sessions and the learned 2nd Additional Sessions Judge, Gumla framed the charges and subsequently trial was held by the Additional Sessions Judge (Fast Track Court), who passed the impugned judgment.
7. It appears that in course of trial the prosecution has examined 9 witnesses.
8. P.W.1 is Ashok Bara stated that on 19.2.2000 while he was grazing goats at Masri Kona where Neelam Ekka was also there for grazing her ox. Then, the accused came and caught hold of her hand and took her towards the jungle. He was at some distance. Then, he went to his house for keeping the goats and rushed to the house of Neelam Ekka to inform her father. Thereafter, they searched for her in the jungle. On the next day they came to Gumla and father of Neelam gave information to S.P. Gumla. When they returned home then children said that they had seen Neelam in the house of Sibru Baraik. Then they went there and brought her back.
In his cross-examination, he stated that Neelam is daughter of his mama and he was the only person apart from Neelam at Masri Konda at the time of occurrence.
9. P.W.2 is Jayram Ekka, son of the informant, he is a hearsay witness, he stated that he was told by Ashok that Neelam was taken by force by the accused from Mashri Kona towards jungle and on search she was not found in the Jungle or in the village. Then he went to Gumla and gave information to the S.P. Gumla when they returned home, they came to know from children that Neelam is residing in the house of the accused.
10. P.W.3 is Neelam Ekka (victim girl) she stated that on 19.2.2000 while she was grazing her ox at Masri Kona. Then the accused came and caught hold of her hand and started dragging her towards jungle. He had a knife in his hand. Thereafter, he brought her into his house and committed rape upon her. On the next day her parents came and bring her to home. She has also proved her statement u/s 164 Code of Criminal Procedure.
In her cross-examination, she admitted that her house and house of accused is just in front of each other, separated by a road. She also admitted that while she was residing in the house of accused she made no ''Hullah'' out of fear
11. P.W.4 is Marium Bara, who is also a hearsay witness. She stated that she was told about the occurrence by Ashok and on the next day she came to know from children that she is in the house of accused then they went to Sibru''s house and brought Neelam to their home.
12. P.W.5 is Mohni Bakla, who is also a hearsay witness
13. P.W.6 is Bitwa Ekka-the informant has also supported the prosecution case that after getting information from Ashok that her daughter was taken by force by accused towards the jungle, then he went in jungle for search of his daughter but she was not found. Subsequently, he gave a written complaint to S.P. Gumla.
In his cross examination, he stated that his brothers are five in number, they also residing in the same village. He also admitted that just after two days his daughter was recovered from the house of accused and his house is just in front of his house separated by one road where Neelam stayed for three days, but she made no ''Hullah''.
14. P.W.7 is also a hearsay witness.
15. P.W.8 is Dr. Shakuntla Pandey, who examined the victim girl on 27.3.2000 and found that the victim girl is a habitual in sexual act and there was no external or internal injury on the part of body of Neelam and she was aged about 15-16 years.
16. P.W.9. is Lakhan Murmu the Investigating Officer of this case.
17. After going through the evidences, I find that the victim girl is a minor girl and she has stated that there was rape committed upon her and she was taken by force by the accused.
18. However, it appears that the victim girl was staying for two days just in front of the house of the informant''s house, but she raised no Hullah. She was staying virtually in front of her house for three days. Moreover, even after her recovery no F.I.R. was lodged with the police for full one month. The informant has tried to say that he had informed Chainpur Police Station about the occurrence, but no action was taken by Chanari Police. As per the evidence of P.W.1 that he had gone to Gumla on the very next day and gave a report to the S.P., but, in fact, this written report to the S.P. which is contained in serial number of paper 2 i.e. has been given after one month on 18.3.2000, which caste some doubt and the prosecution case however even if there was consent of the victim girl her consent has got no meaning and the Appellant has rightly been found guilty for the offence u/s 376 of the Indian Penal Code.
19. However, in the facts and circumstances of the case, since the prosecution case was lodged after a long delay and the victim girl, who was living in front of the house of accused, but she made no hullah and even after her recovery F.I.R. was not lodged immediately. The Appellant, who has been sentenced to undergo R.I. for 7 years u/s 376 of the Indian Penal Code and for 5 years u/s 366(A) of the Indian Penal Code. His sentences are reduced to the period already undergone by him during trial from 2.3.2000 to 3.7.2003 i.e. 3 years four months.
20. With the aforesaid alteration in the sentence the appeal is dismissed.
21. The Appellant is on bail, he is discharged from the bondage of his bail bond.
