JUDGMENT :

Heard learned counsel for the parties.

2. This appeal is directed against the judgment of conviction and order of sentence dated 07/08.12.2004, passed by the learned Additional Sessions Judge-cum-Fast Track Court No.1, Gumla, in Sessions Trial No. 55 of 2003; whereby the appellant was convicted under section 376 IPC and sentenced to undergo R.I. for 7 years.

3. The prosecution case in short is that on 22.01.1995 at about 7 p.m. the informant was returning home after attending the call of nature. On the way, appellant stopped her, took her in his home, at that time he was alone and forcibly committed rape upon her by covering her face with cloth. When she threatened to disclose the fact to the villagers, he assured her that he will marry her and on pretext of marriage he continued sexual relationship with her, due to this reason she became pregnant.

4. Learned counsel for the appellant submits that he has been falsely implicated in this case and since the appellant had married another girl, therefore, the prosecutrix has filed this case. The prosecutrix was already married and therefore, there could not be any second marriage of the prosecutrix with the appellant and the P.Ws. 1, 4, 5 and 6 have clearly stated that since the appellant did not marry the complainant, she has filed this case for section 376 IPC.

Further, the complaint has been lodged after a delay of five years and no explanation has been given for such delay.

Last but not the least, even the prosecutrix at para 2 in her deposition has stated that for four years, she lived happily with the appellant though she was already married with another person and since the appellant wanted to marry another girl the case has been lodged, as such looking to the entire facts and circumstances; the appellant prays for his acquittal.

5. Mr. Tarun Kumar, learned A.P.P. opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellants. However, he fairly submits that as per record, there is no criminal antecedent of the appellant.

6. Having heard learned counsel for the parties and after going through the documents available on the LCR, it appears that altogether 9 witnesses were examined and out of 9 witnesses P.W.2 was brother of the informant and he has categorically stated that the informant was married to one Harsha of village Badhani 10 years ago which clearly goes show that the prosecutrix was a married girl.

P.W.-1 has stated that the appellant has not kept the prosecutrix and therefore the case has been filed against him.

P.W.-3, who was maternal grand-father of the informant/complainant has stated that the prosecutrix and appellant has done second marriage.

P.W.4, who was uncle of the informant has also deposed that the prosecutrix married with one Harsha ten years ago. However, the appellant has taken her away and when the appellant did not marry the prosecutrix, the case has been filed.

P.W.5 has stated that the appellant has left the prosecutrix four years ago on the ground of dowry. However, he has categorically admitted that the appellant and the prosecutrix lived as per their own wish and only when the appellant did not marry her and did not keep her at home, therefore, the case has been filed. Even the Bhabhi of the appellant has stated that since the appellant did not marry the prosecutrix the case has been filed.

7. Apart from the above PWs, who all were relatives, even the P.W.5 who was a co-villager at paragraph 8 of his cross-examination has admitted that the prosecutrix lived with the appellant with her own wish and she was very happy with him and when she did not marry her the case has been filed. For brevity paragraph 8 is quoted hereinebelow:-

f>jxh ftruk fnu fcjlk ls jgh izse ls jgh rFkk vius bPNk ls jghA ’kknh ugha fn;k rFkk ?kj esa ugha j[kk blhfy;s ds’k gqvk A**

8. It further transpires from the deposition of informant-PW7 herself that they used to meet regularly and were living happily for