ORDER :

1. This appeal is directed against the judgment of conviction dated 26.08.2003 and order of sentence dated 26.08.2003 passed by the learned Additional Sessions Judge, Fast Track Court-III, Hazaribagh in Sessions Trial No. 79 of 2000 whereby and whereunder the appellant Pachu Gope has been convicted under sections 376/511 of IPC and sentenced to undergo Rigorous Imprisonment for three years.

Prosecution Story

2. Briefly stating the prosecution case arising in the wake of written report dated 10.11.1999 of the informant (hereinafter referred to as ‘victim’) is that on 07.10.1999, the informant had gone to Ghoghari Forest for collecting fire woods and her husband had gone to Hazaribagh for working as labour. It started raining at about 4 P.M. then she hide herself beneath Mahuwa Tree near her Ghoghari field to save herself from rain. In the meantime, accused Pachhu Gope who happens to be her Dewar (brother-in-law) came and caught her hand and breast with bad intention and forcibly fell her on the ground. She protested to this action due to which he did not succeed in committing rape on her. She shouted (Hulla), then accused-appellant Pachhu Gope fled away due to fear leaving behind her lying on the earth. She narrated the offence to her husband when he returned home in the evening and also to co-villagers Ramu Gope, Lado Gope and others. Her husband went to the house of Pachhu Gope to enquire about his misdeeds, then, the appellant and his brother (co-accused Basudeo Gope who has been acquitted during trial in the court below) abused him and assaulted him by danda (Thick stick) and slaps. She further stated that she did not go to the police for lodging information due to shame and prestige, but, now she came to police because both, the appellant and his brother Basudeo Gope who has been acquitted by the learned court below, were threatening her and her husband.

3. On the basis of the aforesaid written report dated 10.11.1999 of the victim, a formal FIR was drawn vide Katkamsandi P.S. Case no. 137 of 1999 dated 10.11.1999 for the offence punishable u/s 376/511 and 323 of IPC and the investigation of the case commenced.

4. After completion of the investigation the charge sheet was submitted vide charge sheet no. 174 of 1999 dated 30.11.1999 for the offence punishable u/s 376/511 and 323 IPC against the two accused persons including the appellant Pachu Gope and one Basudeo Gope (since acquitted).

5. The Chief Judicial Magistrate on the receipt of charge sheet took cognizance for offences u/s 376/511/323 IPC vide his order dated 03.01.2000 and the case was committed to the court of sessions.

6. After commitment the learned trial court framed the charges for the offence punishable u/s 376/511 and 323 IPC against two accused persons including this accused appellant and one Basudeo Gope and trial of the case commenced and after concluding the trial the co-accused Basudeo Gope was acquitted and this accused appellant was convicted for the offence punishable u/s 376/511 IPC and sentenced to undergo R.I. for 3 years therein which is under challenge.

7. Heard Mr. Tirthankar Bose, learned counsel for the appellant and Mr. Santosh Kr. Shukla, learned A.P.P. for the State.

Arguments on behalf of the appellant:

8. Assailing the impugned judgment of conviction and order of sentence it is submitted on behalf of the appellant that the trial court has failed to take into consideration that there is no corroborative evidence in the present case to convict the appellant and there has been serious contradictions amongst the prosecution witnesses particularly PW-1 and PW-2 which caste the serious doubts in the entire prosecution story.

9. Learned defence counsel has further submitted that the court below has failed to take into consideration that there is inordinate delay in lodging the FIR which has not been properly explained and no independent witness has been examined and further it has been pointed out that there are two parts of the occurrence one i