The prosecution must prove the case beyond all shadow of reasonable doubts, and the victim's statement should be corroborated. Non-examination of crucial witnesses can prejudice the prosecution case.

JUDGMENT :

1. Heard learned counsel for the parties.

2. The instant criminal appeal has been preferred against the judgment of conviction and order of sentence dated 17.06.2003 passed by learned 3rd Additional District & Sessions Judge, Dumka corresponding to S.T. No.76 of 88/639 of 02, whereby the appellant was convicted for the offence under Section 376 IPC and sentenced to undergo R.I. for a period of Five years for the offence under Section 376 IPC.

3. The brief fact of the case is that on 27.02.1987 informant was going to Tetaria village along with his brother and sister-in-law (Bhaiya & Bhabhi) and at about 6.p.m in the evening when they were on the way, four persons suddenly came out and caught hold of the informant and took her in the field. The brother and sister-in-law fled away out of fear. Thereafter, all four accused persons committed gang rape on the informant forcibly for the whole night. In the morning informant went to village Tetaria and narrated the alleged occurrence.

4. Mr. Indu Shekhar Gupta learned counsel for the appellant assisted by Mr. Ranjan Kr. Singh and learned Amicus, Ms. Abha Verma, made following submissions:-

(i) The FIR has been lodged after two days as such it can be inferred that the F.I.R. is an afterthought.

(ii) The I.O has not been examined in this case so as to corroborate the place of occurrence and manner of occurrence.

(iii) Even the Doctor has not been examined in this case so as to prove the charge under Section 376 IPC.

(iv) Although as per the prosecution case there were four persons involved, however one of the co-accused Mahabir Rout was acquitted by the learned trial court in different trial, marked as Ext. A, against whom there was a direct allegation of rape. He draws attention towards the deposition of P.W.3 and submits that P.W.3 has categorically stated in his examination-in-chief that Mahabir Rout was in police custody and villagers were assembled there and Mabavir Raut has confessed the commission of rape upon the victim lady. Since the main accused has been acquitted from the charge of Section 376 IPC there is no reason as to why the learned trial court has convicted the appellant.

(v) He further draws attention of the evidence of P.W.1 and submits that she also did not identify the appellant on the dock with certainty.

(vi) Even the brother and sister-in-law of the victim who were going along with the victim have not been examined for reason best known to the prosecution.

Relying upon the aforesaid submissions learned counsel for the appellant submits that the instant appeal may be allowed and the judgment passed by the learned trial court be set aside.

5. Learned APP has supported the judgment and submits that there is no error or perversity in the impugned judgment as the learned trial court after dealing with the evidences found the appellant guilty and thus convicted him. So far as delay is concerned, the victim is a rustic villager and it is quite natural for a village girl not to say about the offence freely and that is the reason of delay of one day because the offence has been committed on 27.2.1987 in the evening and on the next day the F.I.R has been lodged.

However, learned APP could not revert the argument of the learned counsel for the appellant with regard to the examination of doctor and I.O. She also could not able to reply to the query as to why the brother and sister-in-law (bhaiya and bhabhi) who accompanied with the victim at the time of occurrence, have not been examined.

6. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR, it appears that the appellant has been convicted under Section 376 IPC; though initially charges were framed for the offence under Section 379 and 376 IPC but finally the learned trial court acquitted this appellant from the charge under Section 379 IPC.

All together four prosecution witnesses were examined in this case including the informant. However