JUDGMENT :

This appeal is preferred against the Judgment of Conviction and order of sentence dated 21.12.2004 passed by the learned 3rd Additional Sessions Judge, (Fast Track Court), Jamtara, in Sessions Case No.189 of 1995 / 57 of 2003, arising out of Kundahit (Bagdehari) P.S. Case No. 04 of 1995, corresponding to G.R. Case No. 40 of 1995 whereby and where under the sole appellant has been convicted for the offence punishable under Sections 448 & 376 of IPC and sentenced to undergo R.I. for seven years as well as fine of Rs.1,000/-(Rupees one thousand) for the offence punishable under Section 376 of IPC and in case of default of payment of fine, the appellant was further directed to undergo simple imprisonment for six months and no separate sentence was awarded for the offence punishable under Section 448 of IPC.

2. The prosecution case arose in the wake of fardbayan of the informant (hereinafter referred as ‘victim’), daughter of late Mahabir Pal of village Bhalko, P.S. Kundahit (Bagdehari), District Jamtara recorded by S.I. Manju Pandey, Officer In-Charge of Bagdehri P.S. on 21.01.1995 at 19/30 hours. Briefly stating the allegations as presented by the victim in her fardbayan as under.

She had stated that her brother was working in Bengal and her mother had gone to Bengal on 15.1.1995 where her brother was residing and she was alone in her house. She alleged that on 15.01.1995 at about 10.30 PM in the night, the accused appellant came to her house and started holding her with an intention to commit rape upon which she protested and raising alarm (hullah) but he committed rape with her by putting her in fear on the point of knife. She further stated that on hearing hulla villagers came there and thereafter the accused appellant was caught from her house, where he was hiding inside her house, by the villagers including P.W.1 Gunadhar Pal, P.W.2 Mangal Pal and P.W.3 Dhiren Pal. In the meantime the brothers of accused appellant namely Ajit Pal and Prabhakar Pal had come there and after giving assurance of marriage with their brother (accused appellant), they have taken him to his home. Next day both brother and the accused-appellant fled away. She further stated that villagers had given information about this incident to her mother and brother, upon which they came on 21.01.1995 and then she narrated story to them. Hence there was delay in instituting the case after six days.

3. On the basis of aforesaid fardbeyan of the victim, Kundahit P.S. Case No. 04 of 1995 was instituted under sections 376, 448 of IPC. After investigation, police submitted the charge-sheet against the above named accused u/s 376 and 448 of IPC. Cognizance had also been taken under the aforesaid sections and the case was committed to the Court of Sessions and the charges were framed by learned Sessions Judge on 14.09.2000, u/s 448 and 376 of IPC. The contents of the charges were read over and explained to the accused persons in Hindi to which he pleaded not guilty and claimed to be tried and after closure of the evidence of the prosecution, the accused was examined u/s 313 of Cr.P.C. on 13.12.2004, in which, he claimed to be innocent and plea of false implication due to animosity has been taken, and the learned trial court after conducting full-fledged trial, passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal.

4. Heard Mrs. Jasvinder Mazumdar and Mr. Rohan Mazumdar, learned defence counsel appearing on behalf of the sole appellant and Mr. Tarun Kumar, APP on behalf of the State.

Arguments advanced on behalf of the appellant

5. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel submitted that the learned trial court has committed error in appreciating the evidences adduced on behalf of the prosecution in view of the fact that PW – 2 is the own brother of the victim and PW – 1 is the neighbour and both of them had categorically deposed that the appellant had married wit