The conviction for gang rape was upheld as prosecution proved the charges beyond reasonable doubt despite challenges regarding medical evidence and witness credibility.

JUDGMENT :

Sunil Kumar Panwar, J.

Heard Mr. Vipul Sinha, learned Amicus curiae on behalf of the appellants and S.A. Ahmad, learned APP appearing for the state.

2. This appeal has been preferred by the appellants being aggrieved and dissatisfied with the judgment of conviction dt. 4.5.2006 and order of sentence dt. 9.5.2006 passed by learned Additional Sessions Judge, F.T.C. No.-III, Muzaffarpur, in Sessions Trial No. 350/2003, whereby and whereunder the appellants/convicts were convicted u/s 376(2)/34 of the INDIAN PENAL CODE . The appellants have been sentenced to undergo rigorous imprisonment for ten years for the offences punishable u/s 376(2)/34 of the INDIAN PENAL CODE and fine of Rs. 2000/- (Two Thousand) each and in default of payment of fine, they have further been sentenced to undergo simple imprisonment for six months.

3. The prosecution case as per fardbeyan of the informant (P.W.-5) is that on 26.10.2002 at about 9:00 P.M. while she was sleeping in hut with her children, in the meantime, the appellants along with Rajendra Mahto entered in her hut. Suddenly, she woke up and on seeing the accused tried to raise noise, but the appellant Binshundeo Rai was having a dagger in his hand, shut her mouth by putting cloth and threatened her not to create any noise. Thereafter, appellants Ramjanam Mahato and Bishundev Rai lifted the informant/victim's saree and committed rape one by one. It is further alleged that co-accused Rajendra Mahato was standing at the door and keeping an eye on the outsider coming there. After committing rape, the accused persons fled away. The victim/informant started crying and screaming, upon which the people of the locality came there, to whom she informed about the incident.

4. On the basis of fardbeyan of the informant (P.W.-5), an FIR was registered on 27.10.2002 as Saraiya P.S. Case No. 242 of 2002 for the offence punishable under sections 376/34 of the INDIAN PENAL CODE . After completion of investigation, investigating officer submitted charge-sheet against the appellants/convicts. On the basis of charge sheet and materials available on record, learned S.D.J.M. Muzaffarpur (West) took cognizance and the case was committed to the court of Sessions for its disposal.

5. The defense of the appellants/convicts totally denied from the charge leveled against them and pleaded for their innocence.

6. The point to be considered in this appeal before this Court is whether the prosecution has been able to prove the charge leveled against the appellants/accused beyond the shadow of reasonable doubt or not.

7. In order to bring home the guilt to the accused, altogether seven witnesses had been examined on behalf of the prosecution, namely, PW-1 Dahaury Devi, PW- 2 Sharda Devi, PW-3 Parwati Devi, PW-4 Binda Devi, PW-5 Sunita Devi (victim), PW-6 Reeta Rani Chaudhary (Doctor), and PW-7 Anil Kumar Nayak, Investigating Officer. Defence has also examined two witnesses on their behalf namely, Kishore Deo Rai, D.W.-1 and Surya Devo Sahani, D.W.-2.

8. Dahaury Devi has been examined as P.W.-1 who deposed in her examination-in-chief is that the victim (PW-5) is wife of her grandson. On the date of incident, at about 9:00 P.M., she woke up on hulla and came to know from the victim that the accused persons/convicts had raped her. She further deposed in her cross-examination that the victim (PW-5) is second wife of her husband.

9. P.W.-2, Sharda Devi is a resident of the same village, who deposed in her examination-in-chief that she woke up at around 9:00 PM due to noise and saw the appellants Ramjanam Mahato and Bishundev Rai running away fr