JUDGMENT

1. The sole appellant-Aman Raj @ Bitu Singh faced trial before learned Additional Sessions Judge 1st-cum-Special Judge, Madhubani in S.Tr. No. 736 of 2018 arising out of Madhubani Mahila P.S. Case No. 102 of 2016 corresponding to G.R. No. 2521 of 2016.

By the impugned judgment dated 03.10.2018, the learned Trial Judge found the appellant guilty for offence under Section 376(D) IPC and under Sections 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. By the impugned order dated 06.10.2018, the learned Trial Judge sentenced 10 years rigorous imprisonment alongwith fine of Rs. 10,000/- for both the aforesaid offences separately. In default of payment of fine, three months further imprisonment was ordered. The sentences are to run concurrently.

2. The prosecution case as disclosed in the Fardbeyan of the prosecutrix, recorded on 14.12.2016 at 3.00 P.M. by Sub Inspector, Kanchan Kumari (P.W.4) at Women Police Station, Madhubani, is that on 11.11.2016 at about 12.00 night, the prosecutrix came out of her house to answer the call of nature. Three persons hiding there, namely, Raja Kumar, Pankaj Singh and appellant-Bitu Singh, caught her from ahead and pressed on her mouth. Then lifted her upto Km towards south in Sanskrit Vidyalay, Hanuman Nagar. In a room of the school, all ravished her one by one, thereafter two unknown persons also joined and they also ravished her. Later on, she was left at the bamboo clumps behind her house. The accused persons created video of their act. When the prosecutrix made alarm at the bamboo clumps, the parents, (P.Ws.1 and 2)came and took her to the house where she narrated the incident. The parents took the matter to the Panches, however, no resolution was reached thereat. Hence, the matter was reported to the police.

The fardbeyan is Ext.2 and the formal FIR is Ext.3.

On 16.12.2016, the statement of the victim was recorded under Section 164 Cr.P.C. wherein she supported the occurrence that five persons had forcefully ravished her on the point of dagger, however, she does not claim to have identified anyone as all had come from behind. The statement under Section 164 Cr.P.C. is Ext.6. The victim was medically examined by the Medical Board on 14.12.2016. The medical report is Ext.5. After investigation, the police submitted chargesheet against the appellant and investigation against the rest was kept pending vide report as Ext.4.

3. The prosecution examined altogether eight witnesses. P.W.1, Dukhan Ram and P.W.2 Savitari Devi are parents of the victim girl. P.Ws.1 and 2 have supported as hearsay witness of what they had heard from P.W.3 i.e. the victim. P.W.4, Kanchan Kumari is investigating officer of the case. She deposed about investigation done by her. P.W.5. Dr. Gargi Sinha and P.W.6 Dr. Rama Jha are members of the Medical Board, who had examined the victim. On the basis of radiological examination, the Board assessed the age of the victim as 19 years. The Board did not find any injury present over the body or private part of the victim. The Board was specific that since occurrence took place one month back definite opinion, whether rape was committed or not, was not possible. The Doctors had noticed hymen ruptured old and no spermatozoa, on the basis of pathological report. The reports on the basis whereof, these Doctors expressed their opinion are not on the record nor the Doctors, who had performed pathological or radiological examination, were examined in this case.

P.W.7, Ashok Kumar, is the Judicial Magistrate, who had recorded the statement of the prosecutrix under Section 164 Cr.P.C. P.W.8 Balkrishan Singh is a formal witness and had identified the writing of Headmaster of Kuldeep Sanskrit Madhya Vidayalay Hanuman Nagar on a school leaving certificate.

The defence examined two witnesses. D.W.1, Anirudh Mandal, who deposed that in Panchayat election, Manoj Singh and Baidyanath Singh i.e. father of the appellant, both were candidates. In the election of Ch