JUDGMENT
Hari Shankar Prasad, J.
1. This appeal is directed against the judgment of conviction dated 19-2-1998 and order of sentence dated 20-2-1998 passed in Sessions Trial No. 118/ 1997, whereby and whereunder the learned third Additional Sessions Judge, Deoghar, held the appellant guilty under Section 376, I.P.C. and convicted and sentenced him to undergo R.I. for seven years and to pay a fine of Rs. 1000/- and in default of payment, to further undergo R.I. for two months.
2. Prosecution case in brief is that on 18-4-1996 Salita Devi went to village Jasobandh for grinding wheat at 4 p.m. and while she was returning to her village from Jasobandh after grinding wheat and when she reached near Jhuri Jungle near the Khamar of one Prayag Rai, appellant, all of a sudden, at about 4.30 p.m., caught her from behind and asked her for sexual intercourse and when she denied and raised alarm, she was forcefully thrown on the ground and rape was committed on her in spite of resistance given by her (informant). Salita Devi thereafter went to Buchikura weekly market where she met Arun Kumar Pandey, who is Mukhia of the village and she narrated the occurrence to him and thereafter she returned back home and narrated the incidence, which took place with her to her parents and other persons. She went to Karon P.S. along with her father Arjun Mahto, Bhupan Mahto, Panchanand Mahto, Gopal Mahto and her uncle Bucha Mahto and gave her Fardbeyan before the Officer-in-charge of Karon P.S. at about 10.30 p.m. on 18-4-1993 and a case under Section 376, I.P.C. was registered. Police after investigation submitted charge-sheet. Cognizance in the case was taken and case was committed to the Court of session and learned 3rd Additional Sessions Judge, Deoghar recorded evidence of witnesses both oral and documentary and came to a finding and held the appellant guilty and convicted and sentenced him as aforesaid.
3. Prosecution has examined 14 witnesses. PW-1 is Arjun Mahto. He has supported the commission of rape on her by appellant. PW-2 is Salita Devi. She is the informant as well victim girl. She has supported the prosecution case but has admitted that she had narrated the occurrence to Mukhiaji (Arun Kumar Pandey), who had recorded her statement and taken her thumb impression but that paper is not before her. She has further admitted that Mukhiaji gave that very piece of paper to Choukidar to give the same to Darogaji but that paper is not before her. PW-3 is Bhupan Mahto. This witness was in Buchikura market where PW-2 was narrating the occurrence of rape upon her by Banarsi Singh before Mukhiaji and Mukhiaji and others came to P.O. along with the girl (PW-2) and thereafter he sent PW-2 to her residence and this witness has accompanied her to her residence. PW-4 is Basanti Devi. She is the mother of PW-2. She has also supported the prosecution case but has stated that she has not seen the occurrence from her eye. PW-5 is Dr. Kumari Asha, who examined the victim girl and found mark of violence on her body but not found any mark of violence on her private part but found semen stains in Saya of the victim girl and she has found her to be aged 13-14 years but she has not given any opinion about commission of rape on her nor she is definite about stains which was either semen stains or any other thing. PW-6 has been tendered. PW-8 is Arun Kumar Pandey and he has been declared hostile and he has not supported the occurrence. PW-9 has been tendered. PW-10 is Panchanand Mahto. He is also a hearsay witness but he was in Buchikura market and saw PW-2 talking with PW-8 and thereafter she was sent to her house and he had also accompanied PW-2 to her house. PW-11 has also supported the prosecution case, although he is a hearsay witness. PW-12 has also stated that PW-2 narrated the occurrence of commission of rape on her by appellant before Arun Kumar Pandey (Mukhiaji) and at the instance of Mukhiaji he had accompanied PW-2 to her residence along with others. PW-13 has been tendered. PW-14 is I.O. of the case and he has examined the witnesses, visited the place of occurrence and gave description of P.O. On this piece of evidence learned Court below found the material sufficient for conviction of the appellant.
4. While assailing the judgment, learned counsel for the appellant submitted that this case has been lodged at the instance of Arun Kumar Pandey, Mukhia, who has been examined as PW-8 but he has not supported the prosecution case. It was also pointed out that there is no eye-witness nor any independent witness to support the prosecution case. It was also pointed out that it is ridiculous to note that after commission of rape PW-2 did not go home but she went to the market to narrate the occurrence to Mukhiaji and that piece of evidence goes to show that this false case has been lodged at the instance of Arun Kumar Pandey (PW-8). It was also pointed out that her first statement, which was given before Mukhiaji, on which she has put her thumb impression and that was forwarded by Choukidar to the Officer-in-charge, has not been brought on record only because no rape appears to have been committed and, therefore, no case of rape appears to have been made out and that fact has been purposely suppressed and instead a different case has been made out against the appellant.
5. From the piece of evidence and material available on record and the fact that appellant has been convicted to R.I. for seven years and he has already remained in jail for more than 3 1/2 years and the case is of the year 1997. I think that the period already undergone by him in jail will meet the ends of justice.
6. In that view of the matter, this appeal is dismissed with modification in the period of sentence to the period already undergone by the appellant in jail.
