ADITYA KUMAR TRIVEDI, J.:–Appellant, Makku Dom has been found guilty for an offence punishable under Section 366A of the I.P.C. and sentenced to undergo R.I. for four years as well as fined of Rs.3,000/-, in default thereof, to undergo R.I. for one month, under Section 376 (2)(g) of the I.P.C. and sentenced to undergo R.I. for ten years as well as to pay fine appertaining to Rs.5,000/-, in default thereof, to undergo R.I. for two months vide judgment of conviction dated 14.10.2014 and order of sentence dated 16.10.2014 passed by the 3rd Additional Sessions Judge, Bagaha, West Champaran in Sessions Trial No.463 of 2011.

2. PW-4 Mina Devi filed written report on 01.11.2009 alleging inter alia that in her absence, Makku Dom, Birendra Dom, Firoz Dom, Muria Devi and Nazma Devi kidnapped her daughter Bindiya Kumari aged about 15 years in the night of 29.10.2009. They have also taken away Rs.20,000/- in cash, ornaments made of gold as well as silver. When she returned back, knew about the incidence from the neighbours, whereupon written report has been filed.

3. On the basis of the aforesaid written report, Ram Nagar P. S. Case No.267 of 2009 was registered followed with an investigation and during midst thereof, as appellant was apprehended, so chargesheet was submitted under Section 366A of the I.P.C. keeping the investigation pending against others, whereupon cognizance was taken and trial had proceeded. During midst thereof, it is also evident from the record that victim was traced out, her statement under Section 164 of the Cr.P.C. was recorded and that happens to be reason behind framing of charge against the appellant under Section 366A of the I.P.C. as well as under Section 376 (2)(g) of the I.P.C.

4. Defence case, as is evident from mode of cross-examination as well as statement under Section 313 of the Cr.P.C. is that of complete denial. However, neither oral nor documentary evidence has been adduced in defence.

5. Prosecution had examined altogether eight PWs viz. PW-1 Mst. Beldari Devi, PW-2 Subhawati Devi, PW-3 the victim, PW-4 Mina Devi, the informant, PW-5 Babita Devi, sister, PW-6 Daulat Devi, sister, PW-7 Nawal Kishore Singh, the main I.O. and PW-8 Bhagwan Pandey, the part I.O. as well as had also exhibited the documents viz. Exhibit-1, formal F.I.R., Exhibit-2, chargesheet, Exhibit-3, report of the PW-8, called for during course of trial with regard to medical examination, if any, of the victim. As stated above, appellant/ victim had not entered into in evidence.

6. Learned counsel for the appellant while challenging the judgment of conviction and sentence impugned has submitted that the finding recorded by the learned lower Court is not at all based upon sound legal principle as well as cogent reasoning and that being so, is fit to be set aside. In order to substantiate such plea, it has been submitted that victim was not at all recovered during course of filing of first chargesheet keeping the investigation pending against the others. During course of which, victim had herself put her presence. Then in that event, supplementary chargesheet should have been submitted as the event taken up by PW-8 was on account of pendency of further investigation. That being so, on account of non-submission of supplementary chargesheet, the evidence of victim could not be relied upon and so, the whole prosecution case, which is based upon the disclosure made by the victim stood non-permissible in the eye of law. It has also been submitted that though the learned lower Court had inquired (Exhibit-3) with regard to medical examination, but the fact remains that victim was not examined by the doctor and so, apart from absence of closet recording over rape, status of victim being minor or major also remained unexposed. Both the parties are illiterate, members of the downtrodden group of the society and so, at least status of the victim would have properly exposed whether she was minor or major, though in the written report, her age has be

Click Here to Read the rest of this document