JUDGMENT
D.G.R. Patnaik, J.
1. By the impugned judgment dated 7.8.2004 passed by the Sessions Judge, Deoghar in Sessions Case No. 158 of 2003, both the appellants were convicted for offences under Sections 376(2)(g) and 458 of Indian Penal Code and sentenced to undergo rigorous imprisonment for the offence under Section 376(2)(g) of the Indiar Penal Code for a period of ten years and a fine of rupees twenty thousand and rigorous imprisonment for a period of seven years with fine of rupees five thousand for the offence under Section 458 of the Indian Penal Code.
2. The case against the appellants was registered on the basis of a written report dated 7.4.2003 submitted at the police station by the prosecutrix (PW4), aged about 17 years, alleging therein that on the night of 4.4.2003 she was sleeping in her room along with her five year old brother who was sleeping by her side. Her mother was not at home. At about 9.30 p.m. while she was sleeping, both the appellants intruded into her room by removing a portion of thatched roof of the house. They caught hold of the prosecutrix and gagged her mouth preventing her from raising alarms. Thereafter while the appellant Maha Hansda held her firmly by (sic) her hands on the ground, the appellant Tufan Soren committed rape on her. Thereafter both he appellants dragged her out of the room into the courtyard. At that time, the victim managed to raise alarms. Her aunt (PW 1) living next door came running on hearing her alarms and on seeing her (PW1), both the appellants fled away through the door of the boundary wall. The victim narrated the incident to PW 1 and to other neighbouring residents who had arrived at her house on hearing her alarms. The matter was reported to the Village Head for necessary action, but when no positive action was taken, the victim girl lodged her complaint at the police station.
3 Both the appellants had denied the charges and pleaded not guilty. Their case in defence was of their false implication in the case on account of suspicion that they were instrumental in breaking the marriage negotiations of the victim which was earlier settled by her parents.
4. As many as seven witnesses were examined by the prosecution at the trial. These witnesses besides others, include the prosecutrix (PW4), her aunt (PW1), brother (PW3), the doctor (PW7) who had examined the prosecutrix and the investigating officer (PW6).
5. On considering the evidences of the prosecutrix am obtaining support from the evidence of the other witnesses including that of the doctor (PW7), the trial court recorded its finding of guilt against the appellants for the aforesaid offences and sentenced them accordingly.
6. The appellants have challenged the verdict of the trial court primarily on the ground that the findings recorded by the learned trial court are perverse and against the weight of evidence on record.
Sri Ranjan Kumar Singh, learned Counsel for the appc Hants while elaborating the grounds submits that the learned court below has gravely erred by ignoring the fact that the first information report (FIR) vas lodged after a delay of three days and no satisfactory explanation has been offered by the prosecutrix. It is further submitted that the learned court below ought to have appreciated the fact that the theory of rape, as propounded by the prosecutrix, is totally belied by the medical report which indicates that on the date of the examination of the prosecutrix, the doctor did not find any sign of rape or marks of violence on the body of the prosecutrix. Learned Counsel explains further that the learned court below has also erred in placing reliance or the testimony of the prosecutrix ignoring the vital contradictions appearing in her evidence. Inviting attention to the testimony of the prosecutrix, learned Counsel explains that though in the FIR the prosecutrix has claimed that both the appellants are her co-villagers but in her deposition, she admits that she did not know the appellant Tufan Soren from before and that she had not seen him prior to the date of the occurrence. Learned Counsel argues further that there is no supportive corroboration of the evidence of the prosecutrix from any independent source and the alleged manner of occurrence is highly improbable, in as much as the allegation that the appellants had intruded into the house of the prosecutrix by breaking open the thatched roof has not been corroborated by the investigating officer who did not find any marks of violence at the alleged place of occurrence at the time of inspection of the place of occurrence. Learned Counsel proceeds to explain further that the appellants were falsely implicated menely on the suspicion that they were responsible for breaking the marriage negotiations of the prosecutrix and that the basis for such suspicion is available in the evidence of PWs 1 and 3 as well as that of the prosecutrix herself, all of whom have categorically admitted that the marriage negotiations of the prosecutrix earlier settled was broken and that the witnesses had believed that these appellants were responsible for breaking the negotiation.
7. Learned Counsel for the State, on the other hand, while refuting the entire grounds advanced by the learned Counsel for the appellants, supports the findings of the conviction and sentence against the appellants by the learned trial court. Learned Counsel submits that the evidence of the posecutrix in itself is sufficient for recording the order of conviction of the appellants for the aforesaid offences and that her evidence finds convincing support from the evidence of other material witnesses including the doctor and the investigating officer.
8. PW4, the prosecutrix, in her deposition has reiterated the same statements as contained in her FIR. In her narration she has elaborated the manner of occurrence in which she was sexually assaulted by the appellants. She affirms that the appellant Tufan Soren had prevented her from raising alarms by gagging her mouth and while the appellant Maha Hansda held her hands firmly on the ground, the appellant Tufan Soren undressed her and undressed himself and thereafter committed rape on her. In her cross examination, she informs that the house of the appellant Tufan Soren is within the neighbouring State of Bengal and that his marriage was solemnized with a girl of village Bhirkibad. She explains further that the appellant Maha Hansda is her co-villager and is also married to a girl belonging to village Jamunia. She further informs that her marriage was fixed with a boy of village Mohanadih and the baaraat was also expected to visit for the marriage and the family waited since morning and throughout the whole night for arrival of the baaraat, but it did not arrive, as they had come to know about the rape committed on her through the villagers. She affirms further that after committing rape on her, the appellant Tufan Soren along with appellant Maha Hansda dragged her into the courtyard out of the room and at that time, she managed to raise alarms and hearing alarms her aunt Lubni Soren (PW 1) came running and on seeing her, both the appellants fled away. She has also affirmed the arrival of her brother at that time who earlier in the evening had gone to witness a cinema in the village. She has also affirmed that on being forwarded by the police, she was examined by the doctor and thereafter the police had also visited her village and had conducted inquiry. She informs further that the matter was reported to the villager Head the next morning, but both the appellants evaded appearance before the village Panchayat and thereafter she lodged her complaint at the Police Station.
9. The evidence of the prosecutrix finds support from the evidence of PW1 who, being a neighbouring resident, claims that on hearing the alarms of the prosecutrix, she came running and saw both the appellants within the courtyard of the prosecutrix and also saw both of them fleeing away. On inquiry, she was informed by the prosecutrix that both the appellants had entered into her room through the thatched roof of the house and had committed rape on the prosecutrix. She has further deposed that she knew both the appellants and that Tufan Suren though a resident of a neighbouring village in Bengal, used to frequently visit her village to meet his grand-father Tuthu Murmu who lived in her village.
PW3 who is the brother of the prosecutrix affirms that he had gone to witness a cinema in the village and on his return, he saw his sister (Prosecutrix) crying and his aunt (PW1) was present and that his sister told him that both the appellants had entered into the house while she was sleeping and had committed rape on her.
10. The evidence of PW5 who is also a neighbouring resident is identical to the evidence of PWs 1 and 3. He has also claimed that on hearing alarms from the house of the prosecutrix his mother (PW1) went there. He too followed her and he heard the prosecutrix narrating that both the appellants had entered into the house through the thatched roof and had committed rape on her.
11. The evidence of the prosecutrix (PW4) thus finds adequate support from the evidence of PWs 1 to 3. The fact that both the appellants had entered into the house of the prosecutrix at night finds support from the evidence of PW 1. The evidence of PWs 1, 2, 3 and that of PW5 are though hearsay on the point of occurrence, since they have deposed on the basis of what they had heard from the prosecutrix, but their evidence is relevant and significant inasmuch as the information as to the occurrence was revealed to them immediately after the occurrence and PW1 had also seen both the appellants fleeing away from the house of the prosecutrix.
12. The Doctor (PW7) in her evidence has stated that on being forwarded by the police, she had clinically and radio logically examined the prosecutrix at the hospital on 7.4.2003. She had found the hymen of the prosecutrix ruptured although she did not find any external marks of violence on the body of the prosecutrix. She adds that she found (sic) on the under garments of the prosecutrix which she had handed over to he police for chemical examination. She has also opined that as per the radiological examination, the age of the victim girl was assessed as between 16-17 years. It may be noted that the victim girl was examined three days after the occurrence and the absence of any sign of rape after such delay is not unlikely. The fact remains however that the hymen of the victim girl was found ruptured and her age was assessed between 16-17 years.
13. The evidence of the investigating officer (PW6) also offers support to the evidence of the prosecutrix in as much as on inspection of the place of the occurrence, the investigating officer had also found a hole in the thatched roof of the house of the prosecutrix, though which, as claimed by the prosecutrix, both the appellants had made their entry into the house.
14. As regards delay of three days in lodging the FIR, the prosecutrix has explained that she had reported the matter on the very next morning to the Mukhiya of the village and a Panchayati was also convened by the Mukhiya but the appellants had absconded and thereafter the matter was reported to the police. The learned Counsel for the respondent explains that the prosecutrix belongs to the Scheduled Tribe community and as per the traditional practice in the village which is predominantly inhabited by the people of Santhal community, incidents in the village are reported to the village Head and the matters are settled through Panchayat. Thus, the prosecutrix had only followed the traditional practice and it was only when no tangible result could be obtained from the panchayat, the matter was reported to the Police and in the process there was inevitable delay of three days. The explanation offered is reasonable. Even otherwise, mere delay in lodging the FIR in itself would not be sufficient to discard the testimony of the prosecutrix, particularly in a case of rape.
15. In the instant case, the prosecutrix had reported the incident immediately to her next door neighbour and at the earliest point of time, to the village head. It cannot therefore be said that the prosecutrix on her own had caused intentional delay in reporting the incident to her co villagers.
16. As regards the plea of defence that the appellants were falsely implicated on suspicion that they had broken the marriage of the prosecutrix, it appears from the evidence of PW 1 as also that of PW5 that negotiations of marriage of the prosecutrix was settled prior to the date of the occunence, but it was broken subsequent to the date of the occurrence and reason for breaking of the marriage negotiations was that the family of the proposed bridegroom had come to know that the girl was subjected to rape. It is natural for the witnesses to infer therefore that the present appellants by their offensive act were responsible for breaking the marriage. The offence on the prosecutrix was committed prior to the breaking of the marriage negotiation. Though each of the witnesses was subjected to lengthy cross-examination by the appellants in their defence, but no such circumstance has been elicited from the witnesses which could suggest that the appellants were falsely implicated in the case.
17. From perusal of the judgment impugned in this appeal, I find that the learned trial court has elaborately discussed the evidence of the witnesses on record and has assigned adequate reasons for holding the appellants guilty of offences under Sections 376(2)(g) and 458 of the Indian penal Code. Though the appellant Tufan Soren is specifically accused of having committed rape on the prosecutrix, the co-appellant Maha Hansda is also equally liable for the said offences in view of his active involvement in facilitating the commission of rape on the victim by the appellant Tufan Soren.
18. For the reasons aforesaid, I do not find any infirmity or illegality in the findings recorded in the impugned judgment for the conviction and sentence of the appellants. There is no merit in these appeals. Accordingly, both these appeals are dismissed and the order of conviction and sentence against the appellants by the trial court is hereby sustained.